Opinion
Opinion filed July 2, 1949.
1. INFANTS.
In a case involving the custody of small children, the duty of the court is to determine what is for the best interest of the children and must place the children where their welfare will be best served.
2. HABEAS CORPUS.
In habeas corpus proceeding by natural mother to secure custody of children from those who had adopted children in a suit in which mother was not a party, trial judge erred in refusing to receive evidence of adoptive parents that best interests of children demanded that they be left in custody of adoptive parents, and erred in holding that natural mother was entitled to children, irrespective of who was best fitted to have them.
FROM SULLIVAN.Error to Circuit Court, Sullivan County. — HON. SHELBURNE FERGUSON, Judge.
Habeas corpus proceeding by the State of Tennessee, on the relation of Earie Lee Winston, against Kyle McKamey and wife to secure the custody of her natural children who had been adopted by the defendants, wherein the defendants filed an intervening petition asking for adoption of the children. From an adverse judgment, the defendants appeal in error. Judgment reversed and case remanded.
JOHN R. TODD, JR., and T.A. DODSON, SR., Kingsport, for plaintiffs in error.
PAUL K. BARNWELL, of Hendersonville, N.C., and BURKETT C. McINTURFF, of Kingsport, for defendant in error.
This is a habeas corpus suit brought by Earie Lee Winston, the natural mother of Gary Douglas Winston and Earie Jane Winston, a baby boy age two years and a baby girl age ten months, respectively, against the McKamey's who had their custody by reason of an adoption suit in which the natural father had consented to the adoption. This mother had no notice of the adoption suit nor was she a party thereto.
The McKamey's made various defenses to this suit. Their only defense which is pertinent here is their intervening petition herein asking for the adoption of these children as to the natural mother. They set up the adoption proceedings wherein they were granted custody of these children and allege that the natural mother "had abandoned these children, left them destitute, neglected and sick, . . . and that her reputation and character is bad, and if the custody of these two infant children was decreed to her, that they would again become neglected and dependent children, . . . that "she lived and worked in beer gardens, keeping company with a man that she told was her husband, which was untrue; that her reputation and character is bad, and she is rotten to the core."
These intervenors (adoptive parents) alleged that they were of the best of characters and were able and willing to properly rear these children and that the best interests of these children demanded that these children be taken from their mother and placed with their adoptive parents.
The trial judge refused to hear proof on the above quoted allegations of the intervening petition for adoption and said:
"The only question involved here, as I see it, is whether or not the proceedings heretofore had in the County Court are binding on his client, the mother of these children, if they aren't, she is entitled to those children, irrespective of who is the best fitted to have them. This is not that kind of a proceeding."
The above statement of the trial judge is an erroneous statement of his duty herein.
Beginning with the case of State ex rel. Paine v. Paine, 23 Tenn. 523, 529, this Court has consistently followed the rule that in a case involving the custody of small children the duty of the court is to determine what is for the best interest of the child involved. See also State ex rel. Bethell v. Kilvington, 100 Tenn. 227, 234, 45 S.W. 433, 41 L.R.A. 284; Baskette v. Streight, 106 Tenn. 549, 62 S.W. 142; State ex rel. v. West, 139 Tenn. 522, 201 S.W. 743, Ann. Cas. 1918D, 749; In re Knott, 138 Tenn. 349, 197 S.W. 1097; Stubblefield v. State ex rel. Fjelstad, 171 Tenn. 580, 106 S.W.2d 558; and others. This is the universal rule. The Court can and must, the welfare of the child requiring it, take the child from the parties and place it (the child) where its (the child's) welfare will be best served. The Court in doing this considers the welfare of the child from "its temporal and its mental and moral welfare". See State ex rel. v. West, supra, and Smith v. Smith handed down at Knoxville on May 6, 1949, Tenn. Sup., 220 S.W.2d 627, 629, wherein it was said: "The court in acting on these custody or adoption cases is more or less acting in the capacity of parens patriae for the child."
For the above reasons it is necessary that the judgment below be reversed and the case remanded for the trial court to hear proof on the issues presented, keeping in mind that the paramount issue is what is for the best interest of these children as viewed from their temporal, mental and moral welfare.
All concur.