July 12, 1963.
Appeal from the Superior Court, Maricopa County, Ruskin Lines, J.
Hash Hash, Phoenix, for appellant.
Johnston Gillenwater, Phoenix, for appellee.
This is an appeal from the granting of a writ of habeas corpus.
Petitioner brought the application for a writ of habeas corpus to gain custody of a minor child then living with respondent. Subsequent to the application the minor child was made a ward of the court and was placed with foster parents. Petitioner and respondent had been married but were divorced at the time of the application for the writ. The minor child is not the natural child of the parties. The parties had made application for adoption of the child in California but the adoption had never become final. The respondent claims that the best interest and welfare of the minor child will not be served by granting the custody of the child to the petitioner.
Appellee has not favored us with a brief and this cause has been submitted for decision under Rule 7(a) 2, 17 A.R.S. Rules of the Supreme Court. We have recently held that:
"* * * where debatable issues were raised by the appeal, we will assume failure to file an answering brief is a confession on the part of the appellees of reversible error." Nelson v. Nelson, 91 Ariz. 215, 217, 370 P.2d 952, 953. See also Tom v. Baca, 93 Ariz. 96, 378 P.2d 912.
Reversed and remanded with instructions that the judgment of the trial court be vacated and the writ of habeas corpus be denied.
UDALL, V.C.J., and STRUCKMEYER, J., concur.