De Witt v. Brooks

• Decision Date: 21 June 1944
• Docket Number: No. A-147.,A-147.
• Citation: 182 S.W.2d 687
• Parties: DE WITT et ux. v. BROOKS et ux.
• Court: Texas Supreme Court

182 S.W.2d 687

DE WITT et ux. v. BROOKS et ux.

No. A-147.

Supreme Court of Texas.

June 21, 1944.

Rehearing Denied October 25, 1944.

Second Motion for Rehearing Overruled November 22, 1944.

Error from Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Jacque O. Brooks and wife against Fred J. DeWitt and wife to recover custody of a child of which the plaintiffs were the natural parents. To review a judgment of the Court of Civil Appeals, 178 S.W.2d 718, reversing a judgment of the trial court in favor of the defendants, the defendants bring error.

Judgment of the Court of Civil Appeals reversed, and the judgment of the trial court affirmed.

Leonard Brown, of San Antonio, for plaintiffs in error.

Davis, Hall, Clemons & Knight and J. C. Hall, all of San Antonio, for defendants in error.

H. P. Drought, of San Antonio, amicus curiae.

ALEXANDER, Chief Justice.

This suit was brought by Jacque O. Brooks and wife, the natural parents of a small child, against Fred J. DeWitt and wife, the adopting parents of said child, to recover the custody of the child.

When the child was about two months old the parents left it with Mrs. Grooms in San Antonio, promising to pay her for keeping the child. They intended to go to Florida, their home state, where they hoped to obtain employment and settle a lawsuit which they had pending in that state. They were to send money to have the child brought to them when they arrived in Florida. After reaching Florida they made remittances for a few weeks for the care of the child, but finally ceased to do so; and Mrs. Grooms, being unable to hear from them, turned the child over to Mrs. R. C. Hugman, Executive Secretary of the San Antonio Social Welfare Bureau. Mrs. Hugman filed a petition in the district court, and had the child adjudged a dependent child and the custody thereof awarded to her as Executive Secretary of said welfare bureau. The court later, on a proper petition, permitted the DeWitts to adopt the child.

Upon the trial of the case at bar the judgment of the trial court was in favor of the adopting parents, but the Court of Civil Appeals reversed the judgment of the trial court, and rendered judgment in favor of the natural parents. 178 S.W.2d 718.

The trial court found that Mr. and Mrs. Brooks had no notice of either the dependency proceeding or the adoption proceedings. The court further found that both Mr. and Mrs. Brooks and Mr. and Mrs. DeWitt were suitable persons to have custody of the child, but awarded the custody to the DeWitts, holding that the child had been duly and legally adopted by them.

It is plaintiffs' contention, in effect, that since they had no notice of the dependency proceedings, such judgment is in nowise binding on them; and since they established upon the trial that they were the natural parents of the child, and the trial court found that they were suitable persons to have the custody of the child, that they were entitled, as a matter of law, to a judgment awarding them the custody of the child.

Revised Statutes Article 2330 provides, in effect, that any child under sixteen years of age who is dependent upon the public for support, or who is destitute or homeless or abandoned, is a dependent or neglected child. Article 2331 provides for the institution of proceedings to have a child adjudged to be a dependent or neglected child. Article 2332 provides that if the parents or guardian of the child are not within the county where the proceedings are instituted, it shall not be necessary to serve them with citation, but the court shall appoint some suitable person to represent the best interests of the child. Article 2335 provides that if the court adjudges the child to be a dependent or neglected child, an order may be made making disposition of the child by awarding it to some suitable person or institution. Said Article further provides:

"It may be turned over to the care and custody of any suitable person or any suitable institution in the county or State organized for the purpose of caring for `dependent children,' and which is able and willing to care for same. And when such child is so turned over to the custody of such person or institution, such person or institution shall have the right to the custody of said child, and shall be at all times responsible for its education and maintenance, subject at all times to the order of the court."

Article 2336 authorizes the court to change the custody of the child when necessary, and Article 2337 provides as follows:

"In case any child is adjudged to be dependent or neglected under this title then such parents or guardian shall thereafter have no right over or to the custody, services or earnings of said child except upon such conditions in the interest of such child as the court may impose, or where, upon proper proceedings, such child may lawfully be restored to the parents or guardian."

The proceedings by which the child in question was adjudged to be a dependent and neglected child appear to be regular, and to have been carried on in the manner provided by the statutes. The trial court specifically found that no fraud was committed by any one in connection with said proceedings, and that a full disclosure of the residence of the plaintiffs was made at the time the proceedings were had. The judgment in the dependency proceedings recited that the court found that the parents had abandoned and neglected the child, and that it was destitute and homeless and without proper parental care. The child was adjudged to be a dependent child, and the parental rights of its natural parents were declared to be terminated, and the custody of the child was vested in Mrs. Hugman, Executive Secretary of said welfare bureau, subject to the further orders of the court.

The trial court upon the trial of the case at bar concluded that the proceedings in the dependency case were valid.

While ordinarily the natural parents are entitled to the custody and care of their child, this is not an absolute unconditional right. The State has such an interest in the welfare of its citizens as will authorize the enactment of suitable legislation by which the State may assume the custody of children and the parents may be deprived of the custody thereof where the parents abandon the children or neglect them in such manner as to cause them to become a public charge, or where the parents otherwise prove to be unsuitable. 39 Am.Jur., p. 602, § 15; 27 Am.Jur., p. 828, § 107; Schiltz v. Roenitz, 86 Wis. 31, 56 N.W. 194, 21 L.R.A. 483, 39 Am.St.Rep. 873; Fischer v. Meader, 95 N.J.L. 59, 111 A. 503; Davis et ux. v. Sears et ux., Tex. Com.App., 35 S.W.2d 99; Legate v. Legate, 87 Tex. 248, 28 S.W. 281. Proof of the unsuitableness of the parents to have the custody of their children may be shown by evidence that they had abandoned them. 39 Am.Jur., p. 617, § 27; Nugent v. Powell, 4 Wyo. 173, 33 P. 23, 20 L.R.A. 199, 62 Am.St.Rep. 17; Re Lally, 85 Iowa 49, 51 N.W. 1155, 16 L.R.A. 681. The legislation above referred to was enacted for that purpose; and the judgment entered in March, 1941, declaring the child to be a dependent child and awarding the custody thereof to Mrs. Hugman, Executive Secretary of said welfare bureau, was in accordance with the authority granted in such statute.

The only serious attack made on the judgment adjudging the child to be a dependent child and awarding its custody to Mrs. Hugman is that Mr. and Mrs. Brooks had no notice thereof. Hence it is contended that the judgment in that case is not binding on them.

It will be noted that the statute, Article 2332, authorizes the court to adjudge a child to be a dependent child upon a proper showing, without notice to the parents, where the parents are out of the county. The power of the State to so adjudge a child to be dependent where the facts warrant it, without notice to the parents where they are inaccessible, must necessarily exist because of the exigencies of the case. Children of tender years who have been abandoned or neglected and are in distress cannot wait for attention indefinitely while search is being made throughout the country for their parents and service is had on them. Delay might be ruinous. It is a matter of importance that action be taken at once for the protection of the child. Some one must be given authority to take possession and custody of the child at once and supply its needs. The Legislature in recognition of the need of prompt action in such cases has provided for summary proceedings for the taking of such children into custody and the awarding of the custody thereof to a suitable person or institution for the protection of the children.

It is generally held that a statute authorizing such summary proceedings without notice to the parents is constitutional, and that a decree entered in accordance therewith is valid subject only to the right of the parents or guardian who were without notice thereof to a full hearing in a subsequent proceeding on the issue as to whether the child was, in fact, a dependent and neglected child. 39 Am.Jur., p. 604, § 17; 31 Am.Jur., p. 802, § 35; Jensen v. Hinckley, 55 Utah 306, 185 P. 716; People ex rel Riesner v. New York Nursery & Child's Hospital, 230 N.Y. 119, 129 N.E. 341; In re Sharp, 15 Idaho 120, 96 P. 563, 18 L.R.A.,N.S., 886; Farnham v. Pierce, 141 Mass. 203, 6 N.E. 830, 55 Am.Rep. 452. This question was discussed in the case of Allen v. Williams, 31 Idaho 309, 171 P. 493, 494. That case involved a delinquency proceeding, and not a dependency proceeding, but the rule in this respect is the same. It was there said:

"The plaintiff is proceeding under the impression that due process of law requires that the determination of the parent's rights to the custody of his child must precede any interference therewith. This view cannot be sustained. Our statute was enacted as a matter of protection to the child and for the welfare of the state. The Legislature, in enacting...