Dissenting Opinion
BARRON, Justice.I respectfully dissent.
This is an appeal from the Juvenile Court of Harris County, Texas, wherein appellant, Carlyeen Harrell, seeks to set aside prior judgments of the same court declaring the subject children dependent and neglected and granting an adoption of the children to their grandparents, Mr. and Mrs. H. M. Harrell, Sr. Appellant also seeks custody of the children. The trial court sustained appellees’ plea in abatement and dismissed appellant’s first amended motion to set aside judgments. Thus this appeal. The natural mother of the children, Carlyeen Harrell, movant below, is appellant. Mr. and Mrs. Harrell, the grandparents of the subject children, respondents below, are appellees.
The children made the subject of this suit are the issue of appellant and Clayton M. Harrell, Sr., appellees’ deceased son. Appellant and Clayton M. Harrell, Sr., were divorced in 1963, at which time appellant was awarded custody, care and control of the children by the Court of Do*378mestic Relations of Nueces County, Texas. For many months prior to the divorce and since the divorce, the minor children, Clayton M. Harrell, Jr. and Byron Harrell, have been living in the home of the grandparents and as appellees allege, “either abandoned or pursuant to court order.” This status has continued to date.
There is no statement of facts in the record, and the rights of the parties must he determined from their allegations and admissions contained in the various pleadings and orders in the transcripts.
Appellant’s allegations show that soon after the above divorce, the grandparents, Mr. and Mrs. Harrell, induced Carlyeen Harrell to take a trip around the world, paying her transportation expenses therefor and promising to take care of her boys during her absence. Appellant departed on the trip on October 16, 1963, and soon after her departure, on November 29, 1963, appellees instituted dependency and neglect proceedings in the Juvenile Court of Harris County, the court granting the petition and awarding the custody of the minors to appellees and terminating the parental rights of appellant on December 6, 1963, in Cause No. 12,670. Appellant had no notice of the proceedings.
In their petition for dependency and neglect, appellees alleged, under oath, the following facts which they claim constitute dependency and neglect as defined in Article 2330, V.A.T.S.:
“That said children now reside with petitioners at S Courtland Place, Houston, Harris County, Texas.” ******
“That immediately after custody of the children was awarded to her, ‘the said Carlyeen Harrell left said children at the residence of petitioners. That said children have remained in the home of petitioners.’ ”
******
“That the mother of said children has left said children at the petitioners’ home, is now in India, and she has made no effort to provide a home or care for said children.”
The trial court, pursuant thereto, signed and entered a judgment dated December 6, 1963, in which it is stated that the children appeared by and through their duly appointed guardian ad litem, that the mother of the children was in India, and that the court “finds that the allegations in said petition are true; * * * that said children are dependent and neglected children under sixteen (16) years of age; * * * that since on or about July 1, 1963, the children, Clayton M. Harrell, Jr. and Byron Harrell, have been residing in the home of petitioners where they were left by the mother Carlyeen Harrell, immediately after the care and custody of said children were awarded to her in Cause No. 72,887, in the Domestic Relations Court of Nueces County, Texas * * * that Carlyeen Harrell left said children at petitioners and is now in India, and she has made no effort to provide a home or care for said children.” The court then proceeded to declare the children dependent and neglected and to place custody in the grandparents, the ap-pellees.
Throughout the record, by allegations of appellant and appellees, it is claimed and admitted that the children had for many months since appellant’s divorce in Nueces County, been living with the grandparents in a good and sufficient home in Houston, Texas, and had been provided for in a suitable manner, in fact in such a satisfactory manner that the trial court permitted it to continue by granting the grandparents custody. No party, in fact, claims anything to the contrary so far as the residence, care of the children and suitability of appellees’ home is concerned, and the fact that the children had lived there and were welcomed at all times since the divorce is not disputed. See Lashbrook v. Altum, 391 S.W.2d 549 (Tex.Civ.App.), no writ.
The statute defining a dependent or neglected child, Art. 2330, V.A.T.S., and the *379decisions of the courts of this State, have made it clear enough that the above facts, which the court found to be true, cannot warrant or justify a dependency and neglect action against children so situated and which severs the parental rights of parents and places permanent custody in someone else. Regardless of what the facts in the dependency hearing may have been, the trial court could not have made a valid adjudication of dependency and neglect by finding the facts alleged in the petition to be true. The trial court made specific findings in its judgment contrary to a valid dependency and neglect judgment. In Hendricks v. Curry, 401 S.W.2d 796 (Tex.Sup.), the court said:
“The statute does not provide that a child is dependent and neglected when it is not provided proper care by its parents. If it did, we would have a different problem. ‘Parental care’ may be provided by persons who occupy a parental position in the life of a child, either permanently or temporarily. Even the word ‘parent’ when used in a statute is sometimes interpreted to include one who merely occupies the position of a parent.”
The Supreme Court in the Curry case above held that where it was not proven that children were actually dependent upon the public for support, destitute, homeless, abandoned or had not proper parental care, no occasion exists for adjudication by a court of dependency and neglect. See Leddon v. Herman, 402 S.W.2d 512 (Tex.Civ.App.), no writ; Gaston v. Gaston, 371 S.W.2d 707 (Tex.Civ.App.), writ ref., n.r.e.; Rosson v. DeArman, 323 S.W.2d 75 (Tex.Civ.App.), writ ref., n.r.e.; Pettit v. Engelking, 260 S.W.2d 613, 618 (Tex.Civ.App.), writ ref., n.r.e. Small children may not be declared dependent and neglected for the sole purpose of facilitating adoption proceedings. The children must, in fact, be dependent and neglected at the time the proceedings are instituted or be in imminent danger of so becoming in the immediate future. This was not the case here, and under the pleadings and the trial court’s own fact findings, the judgment of December 6, 1963, is fundamentally erroneous on the face of the record, and I would accordingly vacate it. A judgment must conform to the pleadings, and if it fails to do so, it is fundamentally erroneous. City of Fort Worth v. Gause, 129 Tex. 25, 101 S.W.2d 221, 223 (Tex.Com.App.), opinion adopted; Williams v. Sinclair-Prairie Oil Co., 135 S.W.2d 211, 216 (Tex.Civ.App.), writ dismd., judg. corr.; Moszkowicz v. A. B. Lewis Co., 268 S.W.2d 548, 551 (Tex.Civ.App.), writ ref., n.r.e.; 33 Tex.Jur.2d 65, p. 564 et seq.; 4 McDonald, Texas Civil Practice, Sec. 17.-27, p. 1397. Similar judgments in similar form have been held to be void. Ex parte Yelton, 298 S.W.2d 285 (Tex.Civ.App.), no writ. Especially is the above rule true in a case of this type where the drastic and hafsh remedy of declaring children dependent and neglected without notice is involved. The unfitness and derelictions of the parent constituting dependency and neglect should clearly appear. See Poss v. Anderson, 188 S.W.2d 726 (Tex.Civ.App.), writ ref., w.m.; Martin v. Cameron County Child Welfare Unit, 326 S.W.2d 31, 36 (Tex.Civ.App.), writ ref., n.r.e. (160 Tex. 274, 329 S.W.2d 83). Appellees contend that the pleadings support the judgment of the Juvenile Court. We are referred to Rule 67, T.R.C.P., involving trial of issues by express or implied consent. Of course, appellant could not have agreed. But the trial court in its judgment specifically found that the written, sworn pleadings were true, and made specific findings that the children had been residing with permission in the home of the petitioners where they were left by the mother. The judgment contradicts the express pleadings and specific findings of the court. See Eu-banks v. Akers, 197 S.W.2d 370, 371 (Tex.Civ.App.), no writ. Reina v. State, 377 S. W.2d 838 (Tex.Civ.App.), writ ref., is not in point. There the trial court made no findings. Pleadings negativing the right of the trial court to enter the judgment are not referred to or did not exist. Children cannot legally be dependent and neglected *380when they are being amply provided for and are living in a suitable home with their grandparents, who are making every effort to retain custody and control of the children to continue their status.
What appellees apparently rely on to show dependency is abandonment. But the children have since the divorce of appellant and her husband been well taken care of, and there can be no voluntary abandonment as a matter of law under the facts of this case. See Hendricks v. Curry, supra, 401 S.W.2d p. 801; Gaston v. Gaston, supra, 371 S.W.2d p. 711.
Appellees contend, however, that subsequent to the dependency and neglect proceedings which took place in 1963, the appellant instituted in 1964 a proceeding in the same court seeking to regain custody of her children by petition for writ of ha-beas corpus. It is contended that such suit and the court’s judgment in that case validated or confirmed the dependency and neglect case and that appellees’ plea of res judicata in the present case forever bars an attack upon the original dependency judgment. Appellant, on March 4, 1964, filed suit against appellees for custody of her children and alleged that she sought their custody, and that appellees had conspired to defraud her of her children’s custody.
In the 1964 habeas corpus suit the appellant, Carlyeen Harrell, alleged as follows:
“While maintaining a friendly and family relationship with petitioner and her two minor children, the respondents encouraged petitioner to take a trip to India, and bought air tickets on Pan American Airways for petitioner to go to India. Petitioner did not leave Houston until on or about October 16, 1963. The Respondents (Mr. and Mrs. Harrell, the grandparents) encouraged her to take this trip and said that they would care for her two children while she was gone. Upon petitioner’s return to the United States, respondents refused to permit her to have custody of her children and have taken the said minors by force and violence against the express desires and wishes of petitioner, and the said respondents, who are now restraining the said minors, are unfit to have the care and custody of said minors; that petitioner is the mother of said minors, and the petitioner is a person lawfully entitled to the custody of said minors because in Cause No. 72,887, Carlyeen Harrell vs. Clayton M. Harrell, Sr., in the Court of Domestic Relations in Nueces County, Texas, on June 26, 1963, petitioner was awarded the care, custody and control of said minors by a judgment of said court, duly rendered and entered, and such judgment is still in full force and effect and has not been altered or changed by said Court or otherwise, and that under the terms and conditions of said judgment the petitioner is entitled to the custody of said minors.”
In a separate paragraph, the appellant, Carlyeen Harrell, alleged that the dependency and neglect judgment of December 6, 1963 was void for all purposes. In appellant’s prayer in the 1964 suit, she alleged that the minor children should be released from said illegal confinement and restraint, and that the custody of the said children be re-affirmed in Carlyeen Harrell, their natural mother, and she prayed for general relief.
The trial court, pursuant thereto, entered its judgment on June 29, 1964, and ordered and decreed that the “writ of habeas corpus of Petitioner, Carlyeen Harrell, for the discharge of such minors from alleged illegal confinement and restraint and for custody of said minors to be re-affirmed to Petitioner, be in all things denied. * * * ” No findings of fact were made by the court.
When a dependency judgment is entered without notice, the natural parent is entitled to a hearing to determine whether the facts were sufficient to authorize the entry of the judgment. DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687; Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.Sup.). The *381pleadings of appellees show that there were no such facts. The matter of custody of the children was pleaded by appellant as essentially the sole ultimate result sought in the habeas corpus proceeding though she did allege separately that the dependency judgment of 1963 was void. The trial court in the 1964 suit had the power to grant custody to the grandparents or to appellant mother as the childrens’ welfare demanded regardless of the dependency and neglect judgment. Davis v. Collins, 147 Tex. 418, 216 S.W.2d 807, 811. Appellees in their answer to the habeas corpus suit in 1964 repeated the same facts which necessarily show the dependency order to be erroneous or void as they did in 1963.
In a suit of the nature of appellant’s present action, where a mother is trying to regain her parental rights and custody and control of her natural children, I believe that all intendments and presumptions must be ruled in favor of the mother and the children. This is true especially under the facts of this case. Under the judgment in the 1964 suit, there is nothing included therein which requires that the judgment, “actually and necessarily litigated matters which were essential to a judgment,” pertaining to the validity of the dependency and neglect judgment of 1963. It is clear to me that the 1964 judgment could have been, and probably was, based upon the inherent power of the court to place custody in the persons it thought best suited at the time for award of custody of the children. Whenever the necessity arises for determining which of the two contending persons is entitled to custody of the children, the trial court might require the children to be brought before it on a writ of habeas corpus to determine not only whether the children are being improperly detained, but also which of the parties should have custody and control. 30 Tex.Jur.2d, Sec. 17, p. 676, and cases cited; 1 Speer’s Marital Rights in Texas (4th Ed.), Sec. 117, p. 162 et seq.; Legate v. Legate, 87 Tex. 248, 28 S.W. 281; Herrera v. Herrera, 409 S.W.2d 395 (Tex.Sup.); Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79. The 1964 judgment of the trial court did not specify what ground or theory it pursued. The judgment was general. And I assume that the judgment was based upon the court’s inherent power to place custody at that time according to the best interests of the two children involved. When a mother sues for custody of her natural children, it must be assumed that the judgment is based upon a power which would not forever destroy her parental right to custody. And in cases involving the vital and crucial right to minor children, strict construction in favor of the natural mother and children seems to be required, and no presumptions against them should be indulged. See and compare Jones v. Willson, 285 S.W.2d 877 (Tex.Civ.App.), writ ref., n.r.e.; Stinson v. Rasco, 316 S.W.2d 900, 905 (Tex.Civ.App.), no writ; 1 Tex. Jur.2d, Sec. 24, p. 706.
In almost all of the authority involving res judicata and estoppel by judgment, I find substantially the following rule:
“It is * * * equally well settled that an issue of fact necessary for a determination of issues in a prior case, and a judgment entered therein, creates an es-toppel by judgment against relitigation of the same issue.” Rio Bravo Oil Co. v. Hebert, 130 Tex. 1, 106 S.W.2d 242, 246.
And in the case of Landa v. Isern, 141 Tex. 455, 174 S.W.2d 310, 312, it is said:
“* * * the judgment in that suit estops the Iserns only as to those issues actually and necessarily litigated there which are essential to a judgment here.”
Texas authorities are clear to me that actual determination and litigation of appropriate issues is necessary if a plea of res judicata or estoppel by judgment is to be applied. State v. O’Connor, 96 Tex. 492, 74 S.W. 899 (96 Tex. 484, 73 S.W. 1041); Davis v. First Nat. Bank of Waco, 139 Tex. 36, 161 S.W.2d 467, 472, 144 A.L.R. 1; Landa v. Isern, 141 Tex. 455, 174 S.W.2d 310; Grimes v. Maynard, 270 S. *382W.2d 282, 285 (Tex.Civ.App.), writ ref.; Withers v. Republic Nat. Bank of Dallas, 248 S.W.2d 271, 282 (Tex.Civ.App.), writ ref., n.r.e.; Buckley v. Atlantic Refining Co., 146 S.W.2d 1082 (Tex.Civ.App.), writ dismd., judg. corr.; Auto Refinance Corp. v. Biggs, 62 S.W.2d 211 (Tex.Civ.App.), no writ; Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.2d 526; First Nat. Bank of Bryan v. White, 91 S.W.2d 1120 (Tex.Civ.App.), writ dismd., w.o.j. And see 30A Am.Jur., Sec. 377, p. 425; 50 C.J.S. Judgments §§ 724 and 725, p. 211 et seq.; 2 Freeman on Judgments (5th Ed.), Sec. 675, p. 1424 ; 34 Tex.Jur.2d, Sec. 552, p. 658. See also Trotter v. Pollan, 311 S.W.2d 723 (Tex.Civ.App.), writ ref., n.r.e.; Butler, Williams & Jones v. Goodrich, 306 S.W.2d 798, 805 (Tex.Civ.App.), writ ref., n.r.e.; 34 Tex.Jur.2d, Sec. 529, p. 613; James v. James, 81 Tex. 373, 16 S.W. 1087, 1089; Adcock v. Schweizer, 190 S.W.2d 705 (Tex.Civ.App.), rev’d on other grounds, 145 Tex. 64, 194 S.W.2d 549.
The issues of custody and dependency are severable. Hendricks v. Curry, supra; Leddon v. Herman, supra. I believe they are severable here, and that the trial court did not necessarily pass on the dependency and neglect issues in its 1964 judgment. This is true in this case even though the issue was contained in appellant’s pleadings as a separate count. See 50 C.J.S. Judgments § 725, p. 214.
The pleadings of appellant in the 1964 suit being sufficient to invoke the powers of the trial court in its general jurisdiction to award custody to the best suited custodian for the paramount interests of the children, it is impossible to determine which ground the trial court applied, and I must assume that the ground favorable to appellant’s present case were applied. There is nothing in the 1964 judgment to indicate otherwise. The judgment could well have been based upon grounds other than an adjudication of the validity of the dependency and neglect judgment of 1963. Moreover, the 1964 suit, according to the pleadings and the admissions of the appellees, could not have actually given validity to the original dependency judgment which was fundamentally erroneous or void on its face. From the date of the dependency judgment on December 6, 1963, it would have been impossible for any change in grounds or different facts to have occurred to justify the judgment, and appellees’ 1964 pleadings stated no grounds which could have validated the 1963 judgment. Appel-lees were bound by the adverse admissions contained in their 1964 pleadings in my opinion. Ross v. Orr, 214 S.W.2d 150 (Tex.Civ.App.), writ ref. The pleadings were included in the record.
It is contended that if we do not hold that the 1964 judgment validated the 1963 dependency and neglect judgment many similar judgments will be reopened and that fraud may be invited in the reopening of adoption and dependency judgments in the state. In the first place there are not many cases with this type of factual background. Secondly, if courts attempt to declare children dependent and neglected on similar facts or in similar form, such judgments are wrong and might be justifiably reopened. All it takes to rectify the problem, if any, is for the trial court to enter a valid, precise and definite judgment based upon sufficient grounds. The entry of a dependency and neglect judgment and a plainly erroneous order later procured which supposedly validates it, cannot be condoned under any circumstances. The law offers a suitable remedy only in a proper case. I would overrule appellees’ contentions and give the mother a full hearing upon these matters, free and clear of any question about the correctness of the right to her children.
The appellant’s allegations show that she had no notice of the adoption of her children in 1965 by Mr. and Mrs. H. M. Harrell, Sr. until appellees filed their plea in abatement on August 25, 1967, and since the basis for such adoption without notice to appellant should be held to be fundamentally and fatally defective on its face, I *383would reverse the order of the trial court sustaining the plea in abatement and' remand this case to the trial court for a full hearing on the merits. Hendricks v. Curry, supra, 401 S.W.2d p. 802; Art. 46a, Sec. 6, V.A.T.S.
I,of course, cannot pass upon the propriety of the trial court’s eventual adjudication of care, custody and control of the minor children upon another hearing. Appellant has alleged changed conditions which might warrant the placing of custody of the children in her. Likewise, the appellees have alleged facts which might result in a contrary determination. That question and others should be for the trial court based upon the evidence after a full hearing. But a new trial should be had without consideration of the dependency and neglect judgment in this record on the custody issue, which judgment I would vacate, in effect, denying the petition of ap-pellees for declaration of dependency and neglect and the severing therein of parental rights of appellant, Carlyeen Harrell.
Moreover, in any event, appellant is entitled to a hearing on the present custody rights to the children and such a hearing should have been granted. Art. 46a, Sec. 7, V.A.T.S.