Opinion
No. 21943.
November 2, 1953.
Robison Miller, Maysville, for petitioner.
Randolph Randolph, St. Joseph, for respondents.
Mary S. Kaufman, the mother of Tina Jo Kaufman, an infant child born May 28, 1951, filed in this court a petition in habeas corpus seeking custody of the above child who is in the care and custody of respondents but not by any judicial order. Petitioner alleged that she is the mother of said child, who is being unlawfully detained by respondents; that petitioner has requested of respondents that custody of said infant be given to her; that her request has been refused; that no previous application for relief has been made to any court or officers. She prayed for issuance of a writ of habeas corpus.
Our writ issued and, in due time respondents, husband and wife, filed their return thereto. They admitted that the child was in their custody and that petitioner is its mother. They alleged that respondent Dorothy Norris is a sister of petitioner; that when the child was about three months of age petitioner requested respondents to take said child and provide it with a home; that they took her into their home and have, ever since, maintained and cared for her, except for a period of about four weeks during which time petitioner had custody.
Respondents further stated that the child had been, and was then being maintained by them in comfort and good health; that the relief prayed by petitioner should be denied because petitioner is morally unfit to have the custody and rearing of her child; that she has been guilty of immoral conduct over a long period of time; and that she is an habitual drunkard and, when intoxicated, uses vile and obscene language in public places, has attempted to assault various people, and has permitted herself to be photographed in the nude, the photographs having been distributed to persons unknown to respondents. They alleged that the welfare of the child demands that her custody be denied to petitioner, and that they go hence with their costs.
Respondents moved that a commissioner be appointed to hear testimony. Petitioner filed suggestion in opposition thereto and moved for judgment on the pleadings, which motion was overruled. Petitioner filed her reply to the return. The court ordered Commissioner Floyd L. SPERRY to hear evidence offered by the parties, to prepare an opinion in the case, and to file his report thereon.
Petitioner's evidence consisted of the testimony of herself and daughter, Lynctte Shaw.
Petitioner testified to the effect that she is 38 years of age; that she is divorced; that she lived at the home of Mr. and Mrs. Sylinsky, near St. Joseph, Missouri; that her daughter Lynette, lives with her; that she is the mother of Tina Jo; that petitioner was, at the time she gave evidence, employed at a restaurant in St. Joseph, Missouri; that her hours of work are from 5 p. m., until 2:00 a. m.; that, five months after the birth of Tina Jo, she underwent surgery and, when the child was eleven months old, she had a hysterectomy; that for a month following the birth petitioner lived in the home of respondents; that before she was able to return to work respondent Dorothy Norris came to petitioner's apartment and arranged to take and care for the baby, petitioner agreeing to pay $10 per week for her care; that she made payments for a time but eventually "got behind" to the extent of $150, and has paid nothing since December 28, 1952; that on that date she went to the home of respondents to get the baby; that they refused her request.
On cross-examination she stated that she was forcibly ejected from the Jesse James Hotel, in St. Joseph; that a settlement was effected whereby she received $1500 damages. Respondents offered in evidence Exhibits A and B, they being a photograph of a nude female and a copy thereof. Petitioner denied that they were her photographs, and denied that she ever permitted herself to be photographed in the nude. She stated that both of her daughters were born out of wedlock; that, if given custody of Tina Jo, she would make a home for her where petitioner now lives.
Lynette Shaw, about 20 years of age, testified to the effect that she and her mother went to the home of respondents on December 28, 1952, and demanded custody of Tina Jo; that Dorothy attacked witness; that Orville ejected witness and her mother from the home.
Respondents live at Clarksdale, Missouri, and both testified. They also offered the testimony of twenty other witnesses.
Dorothy stated that, after the baby was born, petitioner was not able to work; that she stayed with respondents for a month and, when the baby was two months of age, witness agreed to quit her employment and look after the baby; that petitioner agreed to pay $10 per week for the child's support, which she paid for the first nine months and then petitioner "got behind"; that almost every time respondents went to see petitioner, to let her see the baby and to collect, petitioner "would either have been beat up or drunk"; that the situation grew worse; that one week end when she took the baby in, by appointment, petitioner was not home; that she called her at the "Rendezvous," a tavern; that petitioner came home, drunk; that that was the last time she ever left the baby with petitioner; that up until January 1, 1953 petitioner owed witness $260, and has paid nothing since, nor furnished any food or clothing: that, in Los Angeles, in the early 1940's, petitioner introduced to witness and her husband a man named "Buck," to whom, she stated, she was married; that they lived together at an apartment, near petitioner's home, for about six months; that "Buck" disappeared, and petitioner then said that she was never married to him; that when Lynette was of school age, petitioner came to the home of their mother, with a Mr. Kaufman, and wanted to take Lynette to his parents' home to live, but was not permitted to do so until they were married; that she had seen petitioner intoxicated on a number of occasions. She identified Exhibit "A" as a photograph of petitioner. She stated that petitioner told her that "Maxine", with whom petitioner had had trouble at the Jesse James Hotel, had called her and said that if she made any trouble (over the hotel affair) she would get on the stand and show the pictures; that petitioner told witness that they were taken one night at the Red Clock, a tavern; that petitioner came to their home about January 1st and demanded the baby and her demand was refused; that she and Lynette came again January 25th; that petitioner took the baby and was going to leave with her; that Lynette attacked witness; that Orville put them out and caused the sheriff to be called.
Orville's testimony was to the same effect, in almost every respect, as that of Dorothy. He also stated that the pictures had come to respondents, in the mail, anonymously, in January, 1953.
Witnesses Chitwood, Riley, Markham and Kiner testified to lewd and lascivious acts and conduct of petitioner, including several incidents of indecent exposure of her person in taverns. There was also evidence of her use of vile and indecent language in public, on divers occasions while under the influence of intoxicants.
Witnesses Schellhorn, Chitwood, and Maxine Myers, gave testimony concerning petitioner's expulsion from the Jesse James Hotel because of drunkeness and indecent conversation and conduct. Witness McDaniel stated that he had ordered petitioner to leave "The Towers," a tavern, because of drunkeness and indecent language.
Witnesses Clark, Mrs. Buster, Mr. and Mrs. Pearson, and Mr. and Mrs. Durant, all respectable citizens of Clarksdale, business men and women of that community, testified to the fine reputation of respondents in that community. They stated that Tina Jo is receiving the best of care and attention and is at all times neat, clean, healthy and happy.
Mr. and Mrs. Shaw, aged 74 and 73, respectively, are the parents of petitioner. They both identified Exhibits A and B as photographs of petitioner. Mrs. Shaw stated that she had seen another nude picture of petitioner which she had had made. They stated that they loved petitioner but that she had never conducted herself properly or decently; that she was wholly unfit to have the care and custody of Tina Jo.
Some weeks after the above testimony was heard, petitioner moved to reopen the evidence in order to permit her to offer additional evidence touching the authenticity of Exhibits A and B. She contends that some unknown person transposed a picture of her head and face to the picture of another's nude body. The motion was sustained.
Thereupon she offered the testimony of Mr. Reno, a commercial photographer. He gave it as his opinion that the head appearing on Exhibit "A" had been transposed from another photograph. He based his opinion upon the following facts: (1) There is a line running across the photograph, at the neck which, he said, indicates that the original print had been cut at this point and, (2) that the "tone," (coloring) of the head and face is different from that of the torso. However, on cross-examination, and upon questioning by the Commissioner, he admitted that Exhibit A, from which B was copied, showed many lines of breakage caused by crumpling the print, and that the line above mentioned, across the neck, extends diagonally upward into the hair, and diagonally downward to a point far beyond the juncture of the neck and torso.
It was shown that, although petitioner had a very noticeable brown mole, or birthmark, on her shoulder, it does not appear in the photograph.
It is petitioner's contention that she, being the natural mother of the infant child, is entitled to its care and custody as against all of the world, and that no question of the fitness of petitioner to have custody may be presented or considered in a habeas corpus action. She bases that contention, chiefly, on the case of State ex rel. White v. Swink, Mo.App., 256 S.W.2d 825. While this court has, heretofore, ruled adversely to petitioner on this point, it is appropriate to here point out that petitioner's position is untenable.
In the Swink case the petitioner sought a writ of habeas corpus against the natural father and mother of the child who, at the time the writ issued, was in their care and custody. The evidence showed that they were morally and otherwise fit and qualified to have custody of their natural child. What the court there said is good law; but it may not be applicable to a case where the facts as to the moral fitness of natural parents is impeached, or where special circumstances require that the child be in the custody of another, for its best interests.
In Daugherty v. Nelson, Mo.App., 234 S.W.2d 353, petitioner was the natural father of two small children. He sought custody as against the maternal great-aunt, the mother being in bad health, remarried, and living in the state of California. We denied petitioner the relief sought and decreed custody in the maternal great-aunt. The power of the court to deny custody to a natural parent, in a proper case on the facts, in a habeas corpus action instituted against a stranger having physical custody, unsupported by judicial decree or order, is fully recognized and stated in Cox v. Carapella, 246 S.W.2d 513, 518. That is a decision by the St. Louis Court of Appeals, which court also handed down the decision in State ex rel. White v. Swink, supra.
The evidence in the case at bar is overwhelmingly to the effect that petitioner is, and has been since her girlhood, of bad moral character. She is shown to be wholly lacking in the qualities essential to the proper care and training of a child, and morally unfit to rear said child. It clearly appears that the best interest of the child requires that custody be denied to petitioner.
Respondents are shown, by unanimous opinion of several fine citizens of Clarksdale, to be of excellent character and reputation. They are, and have been for almost two years, giving Tina Jo a good home and excellent care and attention.
The petition should be denied, and the custody of Tina Jo Kaufman should be awarded to respondents, Orville Norris and Dorothy Norris. Petitioner should be granted the privilege of visiting her said child Tina Jo at the home of respondents, or at some other place to be agreed upon by respondents and petitioner, such visits to be at convenient hours twice each month, and should be at times as not to interfere with said child's education or health. At no time on the occasion of such visits should petitioner permit herself to be or to become under the influence of intoxicating liquor.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The petition is denied, and the custody of Tina Jo Kaufman is hereby awarded to respondents Orville Norris and Dorothy Norris. Petitioner is hereby granted the privilege of visiting her said child Tina Jo at the home of respondents, or at some other place to be agreed upon by respondents and petitioner, such visits to be at convenient hours twice each month, and shall be at times as not to interfere with said child's education or health. At no time on the occasion of such visits shall petitioner permit herself to be or to become under the influence of intoxicating liquor.
All concur.