Nelson v. Department of Public Assistance , 149 W. Va. 143 ( 1964 )

Berry, Judge:

This habeas corpus proceeding was instituted in the Circuit Court of Raleigh County, West Virginia, by the petitioner, Lillian Nelson, against the Department of Public Assistance of Raleigh County, West Virginia, to obtain the custody of her illegitimate child which was voluntarily relinquished to the West Virginia Department of Welfare, Division of Child Welfare of West Virginia. The Circuit Court, after hearing had thereon, found that it was for the best interest and welfare of the child in question to deny the relief prayed for by petitioner and on December 5, 1963 discharged the writ. Upon petition to this Court a writ of error was granted on March 23, 1964. The case was submitted on arguments and briefs at the September 1964 Term of this Court.

The petitioner lived with her mother and stepfather near Richlands, Virginia until about May, 1962, at which time she found that she had become pregnant and left their home. She had been married in 1955 when she was about 19 years of age but had been divorced. The petitioner told her mother that she was going to Florida when she left home, and although she did go to Florida she was dissatisfied and returned to West Virginia. She did not write to her mother, although she did call her periodically, leading her mother to believe that she was in Florida all this time.

The child was born in a Beckley hospital on December 1,1962. After the birth of her child her health was not good, and she discussed her situation with a social worker employed at the hospital. The social worker, after talking with the petitioner regarding her situation, sent for Katherine Ann Ross, a Child Welfare Worker for the West Virginia Department of Welfare, Child Welfare Division, who was stationed at the office of the Raleigh County Department of Public Assistance in Beckley, West Virginia. The welfare worker came to the hospital and discussed the matter with the petitioner in detail, advising her that, if desired, she could reheve herself of the financial burden and all matters in connection with the rearing of her child by relinquishing her parental rights to the State of West Virginia. A blank form of relinquishment was left with the petitioner overnight for her to read and weigh carefully. The welfare worker apparently understood from her conversation with the petitioner that she had decided to give up the custody of her baby, because the next day the worker returned to the hospital with a relinquishment form completed and ready for signature, which was executed by the petitioner afterwards and acknowledged before a notary public after petitioner stated that was definitely what she wanted to do. The relinquishment was executed on December 11, 1962.

After relinquishing all of her rights to the custody of her child petitioner left the hospital in Beckley and obtained a job as a waitress in a night club called the “Red Barn” near Bluefield, West Virginia. She apparently visited her mother and stepfather occasionally during the time she was employed at that place. It appears that during this time the petitioner told Mary Buckles, a friend of hers, about the birth of her child. She had known Mrs. Buckles during the time she was employed at a motel and restaurant near Cedar Bluff, Virginia. Later on she told her stepfather about the child after which time they conveyed the information to her mother. Her mother and stepfather advised her that they would help her care for the child if she could get it back.

Some two months after the child had been relinquished to the State Department of Child Welfare an attempt was made by the petitioner, her mother and her stepfather to get the child back but by that time the child had been placed in a foster home where it still remains. No attempt was made to have the child adopted after the petitioner indicated that she wanted to obtain custody of it. At the time the request was made of the child welfare worker to return the child to the petitioner, it appears that the welfare worker told her that it might be possible, but not likely that such return could be made, and that in any event it would have to be determined by a higher authority.

In September, 1963, the petitioner was notified by the child welfare worker that the decision of the State Department of Child Welfare, as a result of a review had of the case, was that the custody of her child would not be returned to her. After being so advised, the petitioner employed an attorney and this habeas corpus proceeding was instituted on September 23, 1963, after which the Attorney General, on behalf of the State of West Virginia, filed an answer denying that the change of custody would be for the welfare of the child and also demurred to the petition.

It is contended by the petitioner that her delay in taking legal action was caused by misleading statements on the part of the welfare worker which caused her to believe that she would get the child back. However, this contention is denied by the child welfare worker. It is also contended by the petitioner that she changed her job as a waitress at the “Red Bam” and obtained a position as bookkeeper near her mother’s home in order to get the baby back and that her stepfather moved from the home in Cedar Bluff near Rich-lands, Virginia to North Tazewell, Virginia, where he purchased a house which they thought was more suitable for the child. The house in North Tazewell has five rooms and the petitioner’s mother, stepfather and sister live in it at the present time. It is the contention of the petitioner that if she obtains custody of the child she will live with her parents in North Tazewell in order that her mother could care for the child while she works.

The evidence indicates, however, that her stepfather had been planning to purchase the home in question in North Tazewell for quite some time before he knew about the birth of petitioner’s child, for the reason that it would be closer and more convenient to his work. The evidence in this case indicates and the trial court so stated that there was nothing against the petitioner except that the child was bom out of wedlock and of course her former employment was not of the highest type. It also appears from the evidence that her mother and stepfather are decent, honest people. The evidence of the respondent on the other hand was that in situations similar to the one at bar it would not be for the best interest and welfare of the child to move it and that it would also result in an embarrassing situation in the location to which it would be taken by the unwed mother. It was also admitted that if the petitioner had not voluntarily relinquished the custody of her child that the mere fact that it was illegitimate would not constitute any reason for taking the child from her as long as it was not placed in the cata-gory of a neglected child as defined in Code, 49-1-3, as amended. See Pierce v. Jefferies, 103 W. Va. 410, 137 S. E. 651, 51 A.L.R. 1502, and State ex rel. Bennett v. Anderson, 129 W. Va. 671, 41 S. E. 2d 241. The evidence also indicates that in cases where a child is to be placed for adoption the State Department of Welfare, through a selective process, matches the child’s background with that of prospective adoptive parents who have similar characteristics and adequate means of caring for the child.

There is very little conflict in the facts in the case at bar and the only question involved is whether the mother of an illegitimate child who permanently relinquishes, with full awareness of her actions, all of her rights to such child may then change her mind after several weeks or months and again obtain custody of the child.

It is true that the welfare of the child is the polar star by which courts are guided in cases where the custody of an infant child is contested. State ex rel. Palmer v. Postlethwaite, 106 W. Va. 383, 145 S. E. 738; State ex rel. Cook v. Williams, 107 W. Va. 450, 148 S. E. 488; Reynolds v. Reynolds, 109 W. Va. 513, 155 S. E. 652; Frame v. Wehn, 120 W. Va. 208, 197 S. E. 524. However, in any case where a parent has relinquished his or her right to a child the burden is upon such parent to show that it will be for the best interest and welfare of the child that the custody be given back to the parent. Bell v. Eicholtz, 132 W. Va. 747, 53 S. E. 2d 627; Lucyk v. Brawner et al., 144 W. Va. 690, 110 S. E. 2d 739.

The leading case dealing with the matter involved in the instant case is Green v. Campbell, 35 W. Va. 698, 14 S. E. 212, 29 Am. St. Rep. 843, which was decided in 1891. It was held in the sixth point of the syllabus in the Green case that: “When a parent has transferred to another the custody of his infant child by fair agreement which has been acted on by such other person, to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the custody of the child, unless he can show that a change of custody will materially promote his child’s welfare, moral or physical.” Tlie agreement in the Green case was an oral agreement and of course, a written agreement makes for a much stronger case. This principle has been followed by this Court in numerous cases. Cunningham v. Barnes et al., 37 W. Va. 746, 17 S. E. 308; Fletcher v. Hickman, 50 W. Va. 244, 40 S. E. 371, 55 L.R.A. 896, 88 Am. St. Rep. 862; State ex rel. Coffield v. Bonar et als., 75 W. Va. 332, 83 S. E. 991; Grass v. McMullen, 86 W. Va. 216, 103 S. E. 51; Odlasek et al. v. Odlasek, 98 W. Va. 357, 127 S. E. 59; State ex rel. Palmer v. Postlethwaite, supra; Beaumont v. Beaumont, 106 W. Va. 622, 146 S. E. 618; Frame v. Wehn, supra; State ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S. E. 2d 221.

When at the time a relinquishment is executed and it is shown that it was the intent on the part of the natural parent to give up permanently the custody of a child and that it would not benefit the welfare of the child to be returned to the parent the natural parent cannot regain the custody of the child. Bell v. Eicholtz, supra; Lipscomb v. Joplin, supra; State ex rel. Harmon v. Utterback, 144 W. Va. 419, 108 S. E. 2d 521; Lucyk v. Brawner, supra. It was held in the second point of the syllabus in the Harmon case that: “A parent may, by fair agreement or otherwise, transfer or relinquish the custody of his or her infant child to another person and by such action make the custody of the child by such other person valid and legal.”

The trial court heard and observed the witnesses, and from all of the evidence in the case, after careful consideration, it was the decision of the trial court that the best interest of the child would be served by allowing it to remain in the custody of the State Welfare Department, Division of Child Welfare, State of West Virginia.

It cannot be said from the evidence in this case, as disclosed by the record, that the trial court abused its discretion in the disposition of this case and therefore the decision of the trial court should be upheld. Hammond v. Dept. of Public Assistance of Doddridge Co., 142 W. Va. 208, 95 S. E. 2d 345; Lucyk v. Brawner, supra.

It should be-rioted that this proceeding was instituted against the Department of Public Assistance of Raleigh County, West Virginia, as respondent, but the record clearly indicates that the West Virginia Department of Welfare, Division of Child Welfare for the State of West Virginia was given the custody of the child in question by its mother and it still has the custody of the child. Therefore, it would appear that the proper party was not proceeded against in order to obtain the custody of the child. See Code, 49-1-5, subsections 1 and 4, as amended, and Code, 9-1-2, as amended. However, this question was not raised by the attorney for the respondent in the pleadings or in its brief. It was only mentioned during the argument of the case and then by the petitioner’s attorney.

For the reasons stated herein, the judgment of the Circuit Court of Raleigh County is affirmed.

Affirmed.