Watson v. Shepard, 751397

• Citation: 229 S.E.2d 897,217 Va. 538
• Decision Date: 24 November 1976
• Docket Number: No. 751397,751397
• Parties: Sarah Elizabeth WATSON v. Roger SHEPARD et al. Record
• Court: Virginia Supreme Court

Page 897

229 S.E.2d 897

217 Va. 538

Sarah Elizabeth WATSON v. Roger SHEPARD et al.

Record No. 751397.

Supreme Court of Virginia.

Nov. 24, 1976.

Douglas R. Schwartz, Roanoke (Claude M. Lauck, Rochmond, on brief), for appellant.

William F. Quillian, III, Lynchburg, for appellees.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

This appeal arises from a dispute over custody of Judith Dawn Watson, now approximately six years of age. The contestants are the natural mother, on the one hand, and the paternal aunt and her husband, who seek to adopt the child, on the other. The natural father is deceased. The adoptive parents are divorcing.

The appeal stems from two separate proceedings which were consolidated and heard Ore tenus by the chancellor. Appellees Roger Dale Shepard and Cynthia Gail Watson Shepard filed on March 1, 1974 in the court below a petition to adopt the child and to change her name. Code § 63.1--220, Et seq. Thereafter, on February 28, 1975, appellant Sarah Elizabeth Watson, the child's natural mother, petitioned the court for an award of custody, Judy having been in the Shepards' custody pursuant to a June 28, 1973 order of the Juvenile and Domestic Relations District Court for Campbell County. Following the hearing in May 1975, the trial court (1) entered an interlocutory adoption order, Code § 63.1--226, in favor of the Shepards, and (2) denied the mother's petition for a change of custody; we awarded the mother an appeal from these July 30, 1975 orders.

The Watsons were married in November 1969 when the mother was 16 years old; the father, a construction worker, was 18. The child was born in Lynchburg 15 months later and lived with her parents throughout the course of their turbulent marriage, during which the father used alcoholic beverages to excess, experienced violent fits of rage, and inflicted physical and mental abuse on the mother. The Watsons separated in January 1973 and Judy remained with her mother for the next two months. The evidence showed during March 1973, Judy's father asked his sister, Mrs. Shepard, a resident of Campbell County, to keep the child because the mother 'didn't want to take care of Judy and he needed to find a home for her'. Mrs. Shepard consented, but after a week the mother told Mrs. Shepard 'she was going to settle down and wanted Judy back', so the child was returned to the mother. Another week passed and the father brought Judy back to the Shepards' home.

The Shepards, concerned because Judy was being 'jerked back and forth', then discussed with the child's father 'the fact of starting to get legal custody'. The Shepards, in their mid-twenties and natural parents of a daughter about 16 months older than Judy, desired to establish a regular baby-sitting schedule for the two children and to make financial arrangements for their care because both Shepards were employed outside the home, Shepard then as an insurance agent and his wife as an insurance company data analyst.

Following the Watsons' separation, the mother began working in an Altavista drive-in restaurant. She leased a house trailer and testified 'there wasn't no way that I could take care of Judy working and paying a baby sitter and keeping food in the trailer and paying the rent, too.' In addition, the mother testified she was 'deathly scared' of her husband, who threatened to kill the mother if she tried to 'get' Judy from the Shepards again. The mother further testified she knew Judy 'would be better off with (the Shepards) . . . until I could get myself straightened out.'

Consequently, on June 9, 1973, the mother executed a notarized 'statement', not introduced in evidence in these proceedings, which read, according to the testimony, 'I give my consent for Roger and Cynthia to have custody of (my) daughter, Judith Dawn . . ..'

Thereafter the Shepards initiated custody proceedings in the Campbell County juvenile court. The child's 'temporary care and custody', according to the mother's allegations in the instant petition for change of custody, was awarded by the court to the Shepards during a 'first hearing' on June 11, 1973. The record shows such custody was granted upon request of the child's father and upon 'the signed statement of her mother.' Subsequently, during the course of a court-authorized investigation for a June 28, 1973 hearing on the Shepards' custody petition, Virginia M. Babcock, probation officer supervisor for the juvenile court, discussed with the mother her reasons for desiring to relinquish custody of Judy to the Shepards. Mrs. Babcock testified in the instant proceeding that:

'(The mother) said her daughter was better off with the Shepards. She said she is too wild to look after the child. According to her she is 20 years old and she wants to live and have a good time before she settles down. Beth (the mother) said she expected to try to regain the custody when she had settled down.'

Mrs. Babcock also testified she tried, unsuccessfully, to convince the mother at that time to reconsider her decision to relinquish custody. When asked if she then concluded whether the mother was an unfit parent, Mrs. Babcock answered that the mother was 'living in an environment in which there was a man to whom she was not married and . . . this was not in the best interest of the child to be in that environment'.

Following the hearing on June 28, at which the mother, although notified, did not appear, the juvenile court entered the following order:

'The court having this day read the Probation Officer's Report of Mrs. Virginia M. Babcock, Probation Officer Supervisor of this Court, and having heard the evidence in this case, doth award the custody of Judith Dawn Watson to Roger D. Shepard and Cynthia W. Shepard with the right of the parents to visit said child at all reasonable and proper times.'

In September 1973, Judy's father was killed in a motorcycle accident. Subsequently, the Shepards' petition for adoption was filed in March 1974 and the mother began visiting the child in the Shepards' home in May 1974. When asked why she made no effort to visit her child during a period of about 14 months beginning in March 1973, the mother testified she thought the child would be upset by 'jumping back and forth' between her and the Shepards; she stated, however, she thought 'about that girl every day and I love her very much.' The evidence shows that during this period, the mother inquired about the child's welfare, considered the custody arrangements temporary, and intended, in the future, to regain custody of the child.

In September 1974, the Shepards separated. Their relationship, at the time of the hearing, was thus described by Mrs. Shepard:

'We are friends and we intend to stay that way. We have no hard feelings against each other. It's just our ideals, as we have gotten older, are in different directions. So we just decided it was logical to separate.'

Judy and the Shepards' daughter now live with Mrs. Shepard. The children are visited regularly once a week by Mr. Shepard. The Shepards' evidence shows there has been no substantial change in Mr. Shepard's 'relationship' with his wife or the children since the separation. Judy's mother testified, however, that her child was 'upset' because of the separation.

In October 1974, Judy's mother asked the juvenile court to establish specific and more liberal visitation privileges. At the time, the mother was visiting the child during a three-hour period on Saturday mornings in the Shepards' home. The mother's request was granted following a court investigation of the mother's living conditions and, during the eight months prior to the present hearing, the evidence shows the mother regularly has visited with Judy away from the Shepard home during each weekend.

At the time of the request for expanded visitation, the child's mother, then 21 years old, had been working as a 'housekeeper' since July 1974 for one Harvey Johnson in his home in rural Bedford County. Johnson, then 35 years of age and branch manager for a structural steel erector, was separated from his wife. Also living in Johnson's home were seven of his children whose ages ranged from eight to seventeen. Judy's mother moved to the Johnson home because, while unemployed and 'staying with a girl in Bedford,' she learned from one of Johnson's daughters that he needed a housekeeper. After residing in the home for several weeks, the mother commenced the housekeeping duties for which she is now paid $30 per week.

The mother occupies a room in the basement, which had been converted into two bedrooms and a recreation room by the use of partitions. Two of Johnson's sons, ages 15 and 17, occupy one bedroom and Judy's mother occupies the other, an area of about 15 by 28 feet which includes a bathroom. The mother testified she plans to remain in Johnson's home, engaged in her present employment, if she regains custody of her daughter; Johnson testified a bed for the child would be placed in the mother's room 'where Judy could sleep.'

Prior to her present employment, and subsequent to her separation from Judy's father in January 1973, the mother worked at the drive-in for about six months; at 'Burlington Mills' for about six months, leaving there after her husband was killed because she 'sort of (gave) up'; and at 'Dudi-Duds' as a sewing machine operator until 'they just told me they didn't need me no more', which was about one month before she went to live in Johnson's home.

In her February 1975 petition for change of custody the mother alleged she 'has a stable home environment, adequate income and has arranged extremely comfortable living conditions for her child.' During the May 1975 hearing, the mother, when asked her opinion as to her present ability to care for Judy, stated:

'Well, I have changed a whole lot since I have moved out there (to Johnson's home) and I think it is a good place. There are a lot of...