I respectfully dissent from the majority opinion and the decree. I am not unmindful of a parent's natural and legal right to have the care and custody of his own child. But that right is not absolute. It is conditional. No parent has the right to retain the custody of his child if by the exercise of that right its physical or moral welfare is jeopardized. The Legislature has so declared, and this court has so held over and over again.
Act No. 79 of 1894, p. 91, § 1, provides that: "Whenever an affidavit shall be made before any district judge that the physical or moral welfare of any child in the State is seriously endangered by the neglect, or abuse, or the vicious, or immoralhabits, or associations, of its parents, * * * tutor, or other person having the custody of such child * * * it shall be the duty of such district judge to summon witnesses, as to the facts set forth in such affidavit * * * and if the proofs be sufficient to establish the facts set forth in such affidavit, it shall be the duty of such judge to cause such child to be removed from *Page 131 the custody of such parents or parent." (Italics ours.)
In State ex rel. Martin v. Talbot, 161 La. 192, 108 So. 411, 413, this court said:
"The courts are not authorized to interfere with a parent's authority over his or her child except in cases where the physical or moral welfare of the child is endangered by neglect or abuse or vicious or immoral habits on the part of the parent."
The court reiterated this principle in the very recent case of State ex rel. Bethany v. Corley, 172 La. 266, 134 So. 87.
The trial judge, who has been on the district bench for many years, and who, no doubt, knows these people as well, if not better, than any one else, took occasion to make two visits to their homes prior to the institution of this suit. Not only that, he saw the witnesses and heard them. He, of all people, knows the conditions and what is best for the child. Here is what he says:
"The relator has convinced the Court from his actions and his conduct, that he is not so much attached to the child as he is actuated by a desire to take the child away from its grandparents because of pique and a desire to injure them; he well knows the attachment that the grandmother has for the child and though he was at the home of his parents with the child, only a stone's throw from that of respondents, he permitted four months to pass without a single visit by the little child to its grandparents.
"In the opinion of the Court he is not entitled to the care and custody of his child; his conduct is notoriously bad and this conduct has developed since he left the home of *Page 132 the respondents; he has become a well-known bootlegger since August, 1930, and, during last Fall liquor was being sold by him at the home of his father, where he proposes that the little child shall have its residence. The paternal grandparents' home is not to be compared to that of the respondent and in fact, the little child, on the occasion that the Court visited the home of Ignace Burleigh, was in an ill kept condition and in tatters and rags. Witnesses have testified on the trial that the home of relator's parents is infested with chinch bugs; whiskey is now being sold from this home; the relator is young, inexperienced and his conduct has not been of the best. He has no home, is unsettled in his habits and proposes to have his father and mother rear the child. The father himself, (meaning the relator's father) on the witness stand testified that he had two children of educable age who had never gone to school and that he was not in favor of education and could make better use of his children in the field; he frankly admitted that two high schools were in the neighborhood of his residence and that school transfer buses passed very near his house."
According to what the trial judge says, this child, a girl, if allowed to remain in the care and custody of its father, will be reared by a "well-known bootlegger" in a house used as a blind tiger. The majority opinion concedes that relator is a bootlegger. But it is held that, even though this be true, that is no reason for depriving this father of the custody of his female child of tender years.
I cannot subscribe to such holding. The sale of intoxicating liquors is outlawed by both federal and state laws. The father of *Page 133 this child is therefore a lawbreaker; a criminal. His conduct is in open defiance of law and constituted authority. His habitual violation of these penal statutes can be construed in no light other than as rebellion against rule, law, and authority. He has no respect for the laws of his country, and is therefore not a good citizen. It is stated in the majority opinion that the sale of intoxicating liquors "is contrary to the laws of both state and nation and it is always wrong to violate such laws or any others. * * * Its sale, though unlawful, is not considered as involving moral turpitude."
This holding is wholly contrary to my idea of morals and morality. I think bootlegging is grossly immoral for various reasons, only one of which need be here stated. A bootlegger is a lawbreaker, and I cannot bring myself to the belief that one who habitually breaks the laws of this country is moral.
But let us lay aside the question whether relator is moral. He is concededly a law-breaker, and he breaks the law, according to what the trial judge says, in the house where he proposes to carry and rear his child. If he conducts himself in the future as he has in the past he will break the law in the very presence of the child. That, to my mind, is the worst feature of this case. I can conceive that a parent's immorality, bad conduct, or propensity to break the laws might not endanger the moral welfare of the child, because, if a child knows nothing of its parents' bad traits, it will not be influenced by the lives they lead. A child naturally thinks that there is no harm, no wrong, in what its parents do. Children are imitators. When they come into the world they know nothing. *Page 134 They must follow and learn from some one. Naturally they follow and learn from those they love. Relator says his child loves him. That is natural, and therefore it will be influenced by him; by his conduct.
Then what are the prospects; what is the outlook for this child? What chance has it to develop into an upright, law-abiding citizen under the environment which we know exists in the place where relator proposes to rear it? None in the world! It must come up with and under a father who has no respect for the law, none for himself, nor for others.
On one occasion we know of, he was thrown out of a dance hall because he was drunk. So he not only sells liquor, but drinks it also, at least on occasions. He probably sees no harm in all this; but therein lies the danger. His child will in all probability think as he does.
Aside from all this, there is the question of education. Relator can neither read nor write, and two other members of his family are in the same sad plight, although the three were reared almost within the shadow of public school buildings. These people don't believe in education; they don't want it. Relator's father says he thinks the place for a child is in the field, and this child is to be kept in his house. He says he will see that it goes to school if its father wants it to go. Judging by their present and past conduct, I don't believe either will want it to go. It will certainly not be encouraged to go.
Relator is young, irresponsible, and has no home of his own. He proposes to carry the child to his father's. The trial judge says *Page 135 he visited there and saw the child in tatters and rags. All the witnesses say the child was rather poorly clad and that the house was infested with bedbugs. I see no reason to believe that these were there by chance. They were seen crawling on the furniture and on the clothing of the inmates in the daytime.
All in all, I think this house is a bad place to raise a child. I think the child's environment, the vicious and immoral habits of its parent, is such as to seriously endanger its welfare, and that the father has forfeited his natural and legal right to its custody.
The other side of the case is that the child's maternal grandmother wants it. She raised it from infancy on the bottle. Due to illness, its mother could never nourish or care for it. She knew what was best for her child, and requested her mother to raise it. She probably knew what the trial judge suspects; that its father cared but little for it.
This grandmother has no small children of her own. She loves the child and wants it. She demonstrated her devotion by properly caring for it. While she had the child, it was properly nourished, healthy, well clothed, and always neat. The testimony warrants the statement that her home ranks above that to which relator proposes to carry it. I think under the law she should have it.
In matters of this kind I think the welfare of a child is paramount to the parent's natural and legal right of custody. Children are not chattels. They are citizens in the making; wards of the state. The moment a parent so conducts himself as to endanger his child's moral or physical welfare, that moment he forfeits his right to its custody *Page 136 and the state takes charge. Undoubtedly this is a case where the state should protect its ward.