State ex rel. Harmon v. Utterback

• Decision Date: 12 May 1959
• Docket Number: No. 11032,11032
• Citation: 108 S.E.2d 521,144 W.Va. 419
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Delores Jean HARMON v. George UTTERBACK et al.

Page 521

108 S.E.2d 521

144 W.Va. 419

STATE ex rel. Delores Jean HARMON v. George UTTERBACK et al.

No. 11032.

Supreme Court of Appeals of West Virginia.

Submitted April 21, 1959.

Decided May 12, 1959.

Syllabus by the Court

1. In a habeas corpus proceeding involving the right to the custody of an infant the vital and controlling question is the welfare of the child and its determination rests in the sound discretion of the court.

2. A parent may, by fair agreement or otherwise, transfer or relinquish the custody of his or her infant child to another person and by such action make the custody of the child by such other person valid and legal.

3. The right of a parent to the custody of his or her child, being founded in nature and wisdom and recognized and declared by statute, will be respected unless such right is transferred, relinquished or abandoned and though a parent is ordinarily entitled to such custody, a court is not required in any case to deliver the child into the custody of any claimant but may permit it to remain in such custody as its welfare at the time appears to require.

4. When a parent, by agreement or otherwise, has transferred, relinquished or surrendered the custody of his or her child to a third person and subsequently demands the return of the child, the action of the court in determining whether the custody of the child shall remain in such third person or whether the child shall be returned to its parent depends upon which course will promote the welfare and best interests of the child; and the parent will not be permitted to reclaim the custody of the child unless the parent shows that such change of custody will materially promote the moral and physical welfare of the child.

Harold A. Bangert, Jr., Charleston, for relator.

John L. Detch, Andrew Detch, Lewisburg, for respondents.

HAYMOND, Judge.

This is an original proceeding in habeas corpus instituted in this Court in November, 1958. It was continued from time to time by agreement of the parties, and on April 21, 1959 was submitted for decision upon the petition of the relator, the answer of the defendants, the depositions in behalf of the parties, and the written briefs and the oral argument of counsel.

The relator, Delores Jean Harmon, an unmarried woman under the age of twenty one years, the mother of a male child born July 10, 1958, seeks a writ to obtain the permanent custody of her child from the defendants, George Utterback and Louise Utterback, his wife, who are its present custodians. When her child was born the age of the relator was eighteen years and five months.

At the age of fourteen years the relator was committed as a delinquent child by the Juvenile Court of Kanawha County to the West Virginia Industrial Home for Girls near Salem until she became twenty one years of age. After remaining at that institution for a period of approximately two years she was paroled and, under the control and supervision of the Department of Public Assistance, she was placed in the home of Mr. and Mrs. Bayard L. Cutlip near Hurricane, in Putnam County. While living in the Cutlip home she attended high school and in November, 1957, she became pregnant. About six o'clock in the morning of Thursday, July 10, 1958, while confined in a Huntington hospital, she gave birth to the male child whose custody is involved in this proceeding. Neither the identity nor the whereabouts of the father of the child is disclosed by the evidence.

Before her admission to the hospital she had discussed the matter of the disposition of the child with Mrs. Ruby Ellen Bailey, a registered nurse and the wife of Dr. Ray W. Bailey, who examined and advised the relator during her pregnancy. Having learned of the birth of the child by a telephone call about eight o'clock on the morning of July 10, 1958, Mrs. Bailey, accompanied by Mrs. Cutlip, visited the relator at the hospital about eleven o'clock that morning. Before her arrival at the hospital Mrs. Bailey had obtained from a lawyer a form of a written relinquishment and consent to the adoption of the child to be signed by the relator. After remaining for some time with the relator Mrs. Bailey and Mrs. Cutlip left the hospital in search of a notary public but they returned to the hospital about two o'clock in the afternoon and at that time the relator signed and acknowledged the paper in triplicate before a notary public whose services had been obtained by them.

When the child was born it was removed from the presence of the relator without being seen by her. According to the doctor who delivered the child, this was done at the request of the relator who has never seen the child at any time. After the paper was signed the child was released from the hospital in the custody of Mrs. Bailey who had previously arranged to place it with the defendants who reside in Greenbrier County. The defendants and the relator are total strangers to each other and neither had seen the other until after the institution of this proceeding. Though Mrs. Bailey had learned from a pastor of a church in Oak Hill that the defendants with whom he was well acquainted desired to adopt a child, she did not see or become personally acquainted with the defendants until the day immediately following the birth of the child when they came to the home of Mrs. Bailey and obtained possession of the child from her.

On Sunday following the birth of the child the relator was discharged from the hospital and on Monday, July 14, 1958, according to her testimony, she wrote Mrs. Bailey a letter in which she told her that she wanted her baby, that she 'could not go through with it.', and that, though she had told her she would not change her mind, she had changed her mind, and asked that the 'people who has the baby' be notified immediately of her desire to have her child. Later, by letter dated and mailed August 14, 1958, she wrote Mrs. Bailey that she wanted the custody of the child. In October, 1958, she instituted a proceeding in habeas corpus against Mrs. Bailey and Mrs. Cutlip in the Circuit Court of Putnam County to obtain the custody of her child but when it appeared that neither of the defendants in that proceeding had the possession of the child it was dismissed without prejudice, and in November 1958 this proceeding was instituted in this Court.

The written instrument signed and acknowledged by the relator at the hospital on the afternoon of July 10, 1958, states that she irrevocably gave, transferred, delivered and relinquished to the defendants all right to the custody and control of the child and that she agreed and consented to its adoption by the defendants.

Since the birth of her child and her release from the hospital in July, 1958, the relator has continued to remain in the custody and under the care and supervision of the Department of Public Assistance and the department provides for her support and maintenance and furnishes her food, clothing, shelter and medical attention. After attending a high school in Huntington for a few weeks in the fall of 1958 the relator left the school and she is now living in a home maintained by the Department of Public Assistance on West Third Street in Huntington. She is unemployed, has no income, has received no training for any particular kind of employment and is not fitted for any type of work except maid or household service.

The defendants are persons of good moral character and are gainfully employed. The husband, a school teacher, is forty eight years of age, has taught school for twenty one years, and his wife, who is forty five years of age, is also a school teacher and has taught school for twenty seven years. They were married in July 1947 but have no children. They attend church regularly, have a joint income of approximately $800.00 per month, and own a modern dwelling located on a tract of nine and one half acres of land in Alderson, Greenbrier County. Their home contains three bedrooms, living room, kitchen, bath, and basement, is suitably furnished and equipped, and is located near a school and the church which the defendants attend. They have become attached to the child and desire to adopt and rear it as their own. They have given it their name and they plan to provide a public school and college education for it. The defendants have no physical disabilities and are possessed of good health.

Most of the foregoing facts are not disputed but there is a conflict in the evidence as to the intention of the relator in signing the paper and consenting to the removal of the child from the hospital on July 10, 1958, and her understanding of the effect of those transactions.

The relator, the only witness in her behalf, testified that she did not read or understand the effect of the paper which she signed; that she had not fully recovered from the anesthetic administered to her in connection with the birth of her child; that she intended to relinquish only the temporary custody of the child; that she was told and thought that she could revoke any transfer of its custody within 120 days from the time it was taken from her; and that she did not tell anyone that she did not want to commit the child to the care and custody of the Department of Public Assistance. Her testimony concerning these matters is weakened by statements made by her on cross-examination in which she admitted that she had been told if she gave the child to the Department of Public Assistance the child would be moved from place to place and that she had said that she did not want this to happen; that she had discussed the disposition of her child with Mrs. Cutlip and Mrs. Bailey before it was born and had told them that she would let them know when the child was born; that she arranged for a telephone call by which Mrs. Bailey was informed of the birth of the child on the morning of July 10, 1958; that the relator expected Mrs. Cutlip and Mrs. Bailey to visit her at the hospital when the child was...