{
  "id": 1579514,
  "name": "NEW MEXICO DEPARTMENT OF PUBLIC WELFARE v. CROMER",
  "name_abbreviation": "New Mexico Department of Public Welfare v. Cromer",
  "decision_date": "1948-09-20",
  "docket_number": "No. 5090",
  "first_page": "331",
  "last_page": "336",
  "citations": [
    {
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      "cite": "52 N.M. 331"
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    {
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      "cite": "197 P.2d 902"
    }
  ],
  "court": {
    "name_abbreviation": "N.M.",
    "id": 8835,
    "name": "Supreme Court of New Mexico"
  },
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    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
  },
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      "category": "reporters:state_regional",
      "reporter": "S.E.",
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    {
      "cite": "127 Ga. 68",
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      "reporter": "Ga.",
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        444104
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        "/ga/127/0068-01"
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  "last_updated": "2023-07-14T22:29:03.931466+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "LUJAN, SADLER, McGHEE and COMPTON, JJ., concur."
    ],
    "parties": [
      "NEW MEXICO DEPARTMENT OF PUBLIC WELFARE v. CROMER."
    ],
    "opinions": [
      {
        "text": "BRICE, Chief Justice.\nThe relator, a New Mexico public corporation, filed a petition in the district court, praying for a writ of habeas corpus, the object of which was to obtain possession of June Whitley Johnson, a female child seven or eight months old. The relator (it is alleged) had placed the child with the respondent for \u201cthe purpose of boarding said June Whitley Johnson until such time as the New Mexico Department of Public Welfare (relator) could place her for adoption, pursuant to an agreement entered into between the child\u2019s mother\u201d and the relator.\nThe fourth paragraph of the petition for the writ is in words as follows: \u201cThat said imprisonment or restraint is illegal in that it seeks to set aside and nullify the agreement for custody and disposition entered into between petitioner and June Whitley Johnson\u2019s guardian, and is contrary to that which is best for the welfare of said June Whitley Johnson.\u201d\nThe return to the writ is in substance an \u25a0answer and an application for the custody of the child and for general relief. The trial court made the following findings of fact and conclusions of law:\n\u201cThat the petitioner, New Mexico Department of Public Welfare, is a public corporation and an agency of the State of New Mexico.\n\u201cThat June Whitley Johnson, the subject of this petition, is an infant female child, having been born December 18th, 1946; that the mother of said child is Flora Johnson Fountain. That the father of said child is unknown. And that said child was not born in wedlock.\n\u201cThat the natural mother of said child .'.has heretofore given custody of the child to the New Mexico Department of Public Welfare and has consented to the adoption of said child by any person or persons approved by the said Department of Public Welfare.\n\u201cThat the said June Whitley Johnson has been supported by the New Mexico Department of Public Welfare since January 15th, 1947, in the home of the Respondent.\n\u201cThat the petitioner, New Mexico Department of Public Welfare, has found a home in which it desires to place the child for adoption.\n\u201cThat the responden1 refuses to deliver up the said June Whitley Johnson to the New Mexico Department of Public Welr fare.\n\u201cThat the welfare of the said June Whitley Johnson will be best served by removal of said child from the home of the respondent and the placing of said child for adoption in a home duly approved by the petitioner.\n\u201cThat the relief sought by the petitioner should be granted.\n\u201cBased upon the foregoing findings of fact, the court concludes:\n\u201cConclusions of Law\n\u201cThat the court has jurisdiction of the persons and subject matter involved herein.\n\u201cThat said child, June Whitley Johnson, is a dependent and neglected child as defined by the laws of the State of New Mexico.\n\u201cThat the New Mexico Department of Public Welfare is now, and has been since January 15th, 1947, entitled to the custody of the said June Whitley Johnson and that the respondent\u2019s rights in the premises are inferior to the rights of the said Depart-, ment of Public Welfare.\u201d\nThe respondent\u2019s first point is as follows: \u201cA writ of habeas corpus will not be granted where relief may be had, or could have been procured, by resort to another general remedy.\u201d\nIt is true that there is a complete remedy provided by law whereby an alleged dependent and neglected child may be brought before the district court for inquiry regarding its condition, and to make it a ward of the court (if the facts justify such action) until it can be legally adopted. Art. 2, Ch. 44, N.M.Sts.1941.\nWe have no doubt but that this procedure should have been followed, but the court had jurisdiction to issue the writ, 25 A.J. \u201cHabeas Corpus\u201d, Sec. 78, and the statutory remedy is not exclusive, Kennedy v. Meara, 127 Ga. 68, 56 S.E. 243, 9 Ann.Cas. 396, and see 27 A.J. \u201cInfants\u201d, Sec. 111.\nThe relator originally had possession of the child and delivered it to respondent for care and attention, for which it paid her a consideration. As between the two, the relator was entitled to its possession. But dependent and neglected children are placed under the jurisdiction and' control of the district court, and the right of possession as between the two litigants-does not preclude the district court from exercising its jurisdiction by making the child its ward, and making such disposition of it thereafter as in its considered' judgment is for the child\u2019s best interest.\nThe pleadings, evidence, briefs and findings all raise questions of fact and law necessary to the determination by the court of whether it should make the child its ward, and thereafter exercise its full jurisdiction, rules and regulation of appellee board to\u2019 the contrary notwithstanding.\nAmong the conclusions of law (which are set out in this opinion) is the following: \u201cThat said child, June Whitley Johnson, is a dependent and neglected child as defined by the laws of the State of New Mexico.\u201d This, we think, is an ultimate fact and we will consider it so. In the trial court\u2019s \u201cMemorandum Decision,\u201d which is-not in fact a part of \u201cThe Decision of the Court,\u201d it was held that the child in question was a dependent and neglected child. The court stated: \u201cAs such, the child, as a dependent and neglected child, is made a ward of this court.\u201d But this was omitted' from the judgment, no doubt by inadvertence.\nA dependent and neglected child is defined as follows: \u201cThe words \u2018dependent and neglected\u2019 child as used in this act (\u00a7\u00a7 44-201-44-207) mean any child, of either sex, under the age of sixteen (16) years, who is destitute, homeless or abandoned or dependent upon the public for support or has not proper parental care or guardianship; or is found begging or soliciting or receiving alms; or is found in any house of prostitution or living with any vicious or disreputable person; or who has no responsible parent or guardian, or who has a home which by reason of neglect, abuse, mistreatment, cruelty or depravity on the part of its parents, guardians or the person in whose care it may be, is an unfit place for such child.\u201d Sec. 44-202, N.M.Sts.1941.\nThe court having found that the child in question was a dependent and neglected child, it followed that that court had exclusive jurisdiction of all matters relating to its care, treatment, control and disposition, as provided by Sec. 44-201, N.M.Sts. 1941; and of course may yet make it a ward of the court.\nThe respondent has become greatly attached to the child, as often happens in such cases. It was premature, only a few weeks old, sick, and weighed only four and a half pounds when delivered to her. Apparently it had been negligently cared for, whether by an agent of relator, the record does not disclose. It had a serious burn on one leg, and its condition was so precarious that the relator\u2019s agent, it seems, did not expect it to live. By almost constant nursing and the best of care the respondent probably saved the child\u2019s life. She is now-over seven months old, apparently in good health, which is indicated by the fact that she weighs more than eleven pounds. She was under the care of respondent for about six months.\nThe district court stated that the respondent\u2019s home would be a good home for the child, and from the evidence in the case we are satisfied that this is correct. That court is not bound by any prearranged disposition of the child by relator, in fact the relator has no authority to place the child in any home temporarily or otherwise without the consent of the district court, after the child has been declared a ward of the court. Neither should the court be unduly influenced by the respondent\u2019s love for the child, although this is a matter of prime importance in the selection of foster parents. The welfare of a child is its first and paramount consideration.\nThe writer agrees with the district court that \u201cthe most difficult thing that can confront a court is what to do regarding the custody of a small child.\u201d This is the experience of the writer as a trial judge for many years. While temporary custody has been given to the relator, the question is still open as to what should ultimately be done with this child.\nThe persons to whom respondent proposes to turn over its temporary custody with a view to its adoption, are unknown to the court, although they were investigated -by the relator to determine whether they were proper persons to become foster parents; but not of this particular child.\nThere is much in the respondent\u2019s favor in this case. She probably saved the child\u2019s life, but that can only be considered by the court in determining the ultimate welfare of the infant.\nThe judgment of the district court should be affirmed, and it is so ordered.\nLUJAN, SADLER, McGHEE and COMPTON, JJ., concur.",
        "type": "majority",
        "author": "BRICE, Chief Justice."
      }
    ],
    "attorneys": [
      "Otto Smith and Earl E. Hartley, both of Clovis, for appellant.",
      "C. C. McCulloh, Atty. Gen., and William R. Federici and Robert W. Ward, Asst. Attys. Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "197 P.2d 902\nNEW MEXICO DEPARTMENT OF PUBLIC WELFARE v. CROMER.\nNo. 5090.\nSupreme Court of New Mexico.\nSept. 20, 1948.\nOtto Smith and Earl E. Hartley, both of Clovis, for appellant.\nC. C. McCulloh, Atty. Gen., and William R. Federici and Robert W. Ward, Asst. Attys. Gen., for appellee."
  },
  "file_name": "0331-01",
  "first_page_order": 357,
  "last_page_order": 362
}