Rains v. Alston

John I. Purtle, Justice. This matter is considered upon the Petition for Rehearing filed herein by the appellant on December 14, 1978. The Petition for Rehearing is denied; however, we are at this time issuing this substitute opinion. We feel that, in the interest of justice and fairness to everyone concerned, our opinion of November 27, 1978, should have been more fully explained. With regard to the Petition for Rehearing, the appellant relies on the “full faith and credit” of a sister state, in particular, an Order of the Domestic Relations Court of Dallas County, Texas, dated December 30, 1976, wherein custody of the minor child was awarded to the appellant. We have examined Texas law and determined that the finality of a former judgment respecting custody of children of divorced parents obtains so long as conditions remain the same, and, in order to change or modify a former judgment, complainant must allege and prove that circumstances have so materially changed since rendition of the judgment as to render it to the best interest of the minor child to modify the judgment. Bezner v. Sawyer, 217 S.W. 2d 858 (Tex. Civ. App. 1949); Goodman v. Goodman, 236 S.W. 2d 641 (Tex. Civ. App. 1951). Even so, there is no indication in the record that the child was ever in the jurisdiction of the Domestic Relations Court of Dallas County, Texas, during the time the action was pending. However, it is clear that the child was in Franklin County, Arkansas, on December 20, 1976, the date of the divorce in Texas, and was in Arkansas on February 2, 1977, when the appellees filed the Petition for Appointment of Guardian for Sarannah Elizabeth Rains, who is at this time less than three years of age, and was physically present in Franklin County on the trial date. The most important matter to be considered by any court in matters of this nature is the best interest of the infant child. Consideration of both parents is of great importance but must, nevertheless, be subordinated to the best interest of the child. We have always attached special weight to the findings of the trial judge who has had the opportunity of observing the witnesses as they testified under oath before the court. The chancellor in this case heard the testimony of Calvin Rains, the natural father of Sarannah Elizabeth Rains, who testified that the child was, from the beginning, very sickly and was treated by numerous doctors in Dallas, Texas. His mother came to stay with the parents for a week when Saran-nah was born. He testified of the very difficult task of finding a babysitter who would sit with the child after appellant returned to work. Many times the child was taken out at night to the home of a babysitter and in many instances thereafter suffered from colds. Before the child was three months old, appellant called the appellees (her parents) and had them come to Texas and get the child and return her to Arkansas. Appellant, who is without sight, and her husband were having serious marital problems and she had recently suffered epileptic seizures which rendered her unconscious for periods up to 30 minutes and caused her to sleep for many hours thereafter. Appellant had suffered one seizure at work and was taken to the hospital from her job. She had suffered other seizures at home. Appellant’s husband testified that appellant had a hot temper and on one occasion slashed at him with a butcher knife while he was holding the baby in his arms. About two weeks after appellant sent her child to the appellees, she returned the child to her home for a period of two or three weeks after which she again asked her parents to bring the child back to Arkansas to live. Since that time, with the exception of a very short period, the child has remained in the care and custody of the grandparents in Franklin County, Arkansas. Joann Alston, appellant’s mother and grandmother of Sarannah Rains, stated she and her husband, appellant’s father, went to Dallas and brought appellant and Sarannah back to Arkansas when the child was about two weeks old. Although appellant had planned to stay several weeks, she got mad and left in two or three days and took the child back to Texas. A short time later, appellant called her mother and asked her to come get the baby and bring her back to Arkansas. On this occasion the child stayed with her grandparents three weeks. The child had been sickly and the doctor advised appellant to allow Mrs. Alston to bring her to Arkansas where she could care for her. During this three-week stay, the child’s health improved greatly. Three days after appellant returned the child to Dallas the second time she again called her mother and asked her to come get the baby for the third time because she simply could not cope with things or take proper care of the baby. The Alstons have paid the expenses for appellant to come visit her child on a monthly basis. At the time of the hearing, the child was healthy and well adjusted and was walking and talking. Mrs. Alston stated, in her opinion, appellant loved her child but simply could not take care of the child. The Alstons own their own home and are financially able to care for the child. The Alstons obviously love their daughter Linda (appellant) and sincerely desire to help her and her child. No doubt, appellant loves her child as much as most mothers love their children. The grandparents are willing for the natural parents to have unlimited visitation rights with the child. They would do all they could to encourage the child to have love and affection for appellant; also, when the child is a little older and able to help care for herself, they would be willing for Sarannah to live with appellant. However, on the last two visits appellant had appeared like a wild person. John Alston, appellant’s father, testified essentially the same as Mrs. Alston. He emphasized the child is helpless at this age and simply must have someone to care for her. He stated he had about $200,000 owed to him for land he had sold. There was no question his resources would allow them to adequately care for the child. Mr. Alston also would welcome the natural parents of the child to visit the child in his home and to spend weekends there visiting. He did condition his offer upon decent behavior by his daughter. From the testimony of appellant’s husband and parents, it is obvious appellant has a rather violent temper sometimes. Neither is there any doubt that she loves her child very dearly or that she is a good worker. These matters are not the question to be decided by this Court. It becomes necessary to look at the testimony of appellant to determine her attitude and ability at the present to care for her child. Upon being questioned by the court, she stated she could not possibly visit peacefully in her parents’ home. She expressed hatred for her father. She stated she had many relatives in Franklin County but she didn’t know them and didn’t care to know them; she stated if the court gave her parents custody of her child it was total, as far as she was concerned, because there was no way she would visit her child in her parents’ home. She denied her parents love her (appellant). She said if she were awarded custody of the child she would have help in caring for the child from a friend and the friend’s 15-year old son, who is also without sight. The boy would take care of Sarannah while appellant and her friend were at work. The testimony of Mrs. O. G. Davis, who lives next door to appellant in Dallas, Texas, is of significance to the Court. They had been neighbors for about three years. Mrs. Davis stated appellant had refused to be friendly with her neighbors and even ordered them out of her house. Nevertheless, after the birth of appellant’s child, she became a close friend of appellant and loves her very much. When the Alstons visited appellant, they requested Mrs. Davis to help their daughter and the child and they would pay for her trouble. She visited in appellant’s home at least three days a week; she prepared food and took it to appellant and the child on Monday, Wednesday and Friday and sometimes on Saturday and Sunday. This testimony relates to the times the child was staying with appellant. Mrs. Davis testified the child was sick a lot and appellant refused to follow the doctors’ orders because she didn’t think the doctors knew what they were doing. She observed appellant trying to feed the baby some beef which still had blood coming from it and the baby threw it up on the table. She saw food on the table literally covered with roaches. Mrs. Davis said while she fed the baby she had to fight roaches off the food. Appellant did make some progress in reducing the number of roaches but they were still plentiful. Mrs. Davis saw the child pick things up off the floor and put them in her mouth after roaches had crawled over it. There was usually a lot of “gook” on the floor, except for the two days a cleaning lady was there. The bed linens were dirty. Sometimes the child was covered with jelly, and things of that nature. One day while Mrs. Davis was writing bills for appellant, she o' served the child trying to open appellant’s pills which were kept in a purse within reach of the child. This happened more than once. On one occasion a bottle of pills was open. There was an open heater in the bedroom where appellant slept with the child. Several times, Mrs. Davis found clothing, toys and pillows so close to the open flame stove they were scorched. One time the fire department was called because something caught fire. On another occasion, the child got out into the street, which is a very busy one, while appellant was on the telephone. Several children have been struck by vehicles in the street near the homes of Mrs. Davis and appellant. In : ct, one child was fatally injured in front of appellant's house. Appellant told her she was sure her parents had spoiled the child but it would not take her long to “beat it out of her.” Sometimes the child was locked in the bedroom where the open flame stove was installed. Appellant sometimes did not know where the child slept at night because she wouldn’t sleep with her. The child often hid from appe lant somewhere in the house. Mrs. Davis had seen appellant out of the house on days when the housekeeper was not there and the child would not be with her. When appellant gave the child liquid medicine, she allowed her to drink it from the bottle because she spilled it if she tried to give it to the child in a spoon. Some of the medicine was tasteful and the child would drink several swallows before appellant took it away from her. Sometimes appellant failed to turn the lights on at night. Appellant sometimes, when she isn’t working, sleeps for many hours while the child is awake. The child has been observed playing with the hot water controls on the tank and crawls behind the refrigerator where electric wires are located. Mrs. Davis even observed the baby turning the pilot light off the gas stove and then turning the gas on without it being lit. The child has been out with appellant when she was suffering from diarrhea and her legs would be covered with excretion and her shoes full too. On several occasions the appellant and her child became lost in the snow in 25 degree weather; the child was bareheaded and without a coat in the sub-freezing weather. We do not ignore the testimony which favored appellant. Although she is without sight which renders some things more difficult for her to perform than for sighted persons, this handicap is not the controlling issue at all. Appellant is to be highly commended for her determination and desire to work and provide for her child. Appellant’s neighbor, Mona Hubbard, considered her to be extremely stable. Further, she had allowed appellant to move into her home with her and would, if necessary, give financial assistance. She had never seen appellant abuse the child nor display a violent temper. Mrs. Hubbard states she definitely felt appellant could properly care for her child and that all the neighbors would be willing to help. It was Mrs. Hubbard’s 15-year old son who would help with the child if she and appellant were both away from the residence. Althought the witness had never seen the child until the day of the trial, she expressed a desire to assist appellant and the child in any manner in which she could. Mr. A. H. Lewis came from Dallas, Texas to testify on behalf of appellant. He had been her supervisor when she first came to the Lighthouse for the Blind and had been in touch with her ever since. Mr. Lewis stated appellant was an excellent worker and willing to do more than her part; he felt she was honest and able to handle finances well. He testified that appellant’s mobility was good enough to allow her to go anywhere she wanted to whenever she desired even though he would not consider her among the most mobile unsighted persons he knew. He did not consider her a violent person. Appellant always was among the top workers on any job she held. We conclude that, for the time being, it is in the best interest of the child to affirm the decision of the trial court which has had this case under consideration for many months. The court heard all the testimony and observed the witnesses as they testified and was in a better position to evaluate their testimony then we are. Perhaps appellant should evaluate her own attitude and position, and when her child is a little older the matter will, no doubt, again be considered by the court, as well as the grandparents and the father of the child. They have all indicated when conditions have changed their attitude on the matter will be different. Affirmed. Harris, C.J., concurs., George Rose Smith and Holt and Hickman, JJ., dissent.