Court: Supreme Court of Arkansas; October 2, 1961; Arkansas; State Supreme Court
Troy Gene Powell, the appellant, contested the custody arrangement of his two minor children, Debra and Rebecca, following his divorce from Winnie Sue James Powell. The original custody was awarded to Mrs. Powell as per the divorce decree on September 29, 1958. Powell filed a motion for custody modification on November 10, 1960, citing concerns about Mrs. Powell's new husband, James Woolfolk, who had a serious health condition (advanced pulmonary tuberculosis) that could endanger the children’s health. Evidence presented included testimony from Dr. T. H. Lipscomb, superintendent of the Arkansas Tubercular Sanatorium, confirming Woolfolk's multiple hospital admissions and his diagnosis, which indicated he posed a risk to those around him, including the children. Dr. Lipscomb noted Woolfolk had left the hospital against medical advice and highlighted the dangers of his positive sputum. The hearing concluded on January 27, 1961, with the court denying Powell's motion to modify the custody arrangement and ordering the children to be returned to Mrs. Woolfolk. The appeal raised several points, but the evidence regarding Woolfolk's health was deemed sufficient to support a change in custody.
Woolfolk was transferred to a surgical facility for an upcoming operation, with Pierce noting his recovery would hinge on the surgery's outcome and his future behavior. Evidence presented by the appellant indicated that Woolfolk and his family lived in substandard conditions in a four-room house, relying on a wood heater and a well for water. The drinking water was stored in a bucket shared among the family, and witnesses reported unsanitary conditions, undernourishment, and lack of care for the children. These claims were contested by the appellee and her witnesses. Sheriff McCormick testified to Woolfolk's previous arrest for drunkenness and possession of illegal alcohol, alongside reports of his financial irresponsibility.
The appellee asserted she provided proper care for her daughters while working at a sanatorium, paying a caregiver $60 monthly. She acknowledged her husband's financial contribution but indicated it was insufficient. She also noted that her husband had children from a previous marriage and that the family lived and dined together. Although aware of Woolfolk's tuberculosis, she did not know he was infectious and expressed reluctance to live with him while he remained ill. She stated she was not planning to divorce him but would if necessary for her children's welfare.
Testimony from Ellen James, the appellee's mother, and social worker Lucille Pledger supported the appellee's claims of good parenting, with Pledger asserting that the children were not neglected and that the family had a reputable standing. However, Pledger’s investigation did not include a home visit, and her findings were based primarily on hearsay, rendering much of her testimony inadmissible.
The report in question was based on hearsay evidence, deemed inadmissible, referencing Trannum v. George. Appellant’s parents expressed their willingness and financial capability to care for the Powell children, Debra and Rebecca, while their son served in the navy. They had previously cared for the children for about six weeks in 1959. The court concluded that a change in custody was necessary for the children's best interests, not due to the mother's immorality or incompetence, but because of health risks associated with her marriage to Woolfolk, who had tuberculosis. Despite the mother’s assurance that she would not live with Woolfolk while he was ill, the court remained unconvinced, noting the mother's prior allowance of the children to live in close quarters with him.
The court emphasized that child welfare is the paramount concern in custody matters, referencing previous cases that affirm this principle. The significant health risks posed by Woolfolk justified a custody change. Although the grandparents were not parties to the record, their willingness to care for the children was considered valid, echoing precedents like French v. Graves. Consequently, the Chancery Court's decree was reversed, and custody was awarded to Troy Gene Powell, with stipulations for the children to live with their grandparents and visitation rights for the mother. A response from Mrs. Woolfolk contesting the change in conditions was filed post-hearing, three days later.
When a health officer believes a person has active, communicable tuberculosis and the individual refuses voluntary medical examination or treatment, the officer is required to investigate the person's circumstances to assess their suitability for isolation or local quarantine. If the conditions are deemed unsuitable for proper isolation and the individual poses a danger to others, the health officer must petition the Probate Court for the person's admission to a state-operated tuberculosis hospital or sanatorium. The petition must detail the findings that justify the need for such action. Upon reviewing the petition, if the court agrees that isolation is not feasible and the individual continues to refuse treatment while being a risk to public health, it will order the person's commitment to the proposed facility. Additionally, the document notes the birth of a child from the marriage between the appellee and Woolfolk on November 26, 1960, and confirms the presence of Mr. and Mrs. Powell before the court, acknowledging its jurisdiction.
