Guadelupe M. GARCIA, Petitioner,
The SUPERIOR COURT of the State of Arizona IN AND FOR the COUNTY OF GREENLEE and Hon. Jesse A. Udall, one of the Judges thereof, Respondents.
H. B. Daniels and Normand F. Birtcher, Phoenix, for petitioner.
Anderson & Smith, Safford, and Kent A. Blake, Phoenix, for respondents.
This is an original proceeding initiated by petitioner, Guadelupe M. Garcia, seeking to prohibit respondent, the Honorable Jesse A. Udall, then presiding in the superior court of the State of Arizona, in and for the County of Greenlee, from continuing to exercise jurisdiction in cause No. 91, now pending in said court, entitled 'In the matter of the adoption of Sammy Ayala, Jr. (also known as Sammy Ayala Ponce), a minor.' Counsel representing respondent filed both a motion to quash and a response to said petition. Briefs have been filed by the respective parties and the matter has been ordered submitted for decision.
[78 Ariz. 352] But few facts need be stated in order to understand the legal problem presented for determination. Petitioner Garcia is the natural mother of the minor Sammy who was born in March, 1948. The mother being at that time without means to provide for he child gave the physical custody to her married sister, Maria Ponce of Morenci, Greenlee County, Arizona, and the child has at all times since then resided in the Ponce home.
Petitioner beginning in the year 1950 has taken various legal steps to regain possession of her child. Her two petitions for writ of habeas corpus filed in the superior court of the State of Arizona in and for the County of Greenlee have been resisted by the Ponces and the latter have countered with petitions to adopt. These were opposed by the natural mother who at all times has refused to consent to the adoption of Sammy.
The Ponces' first petition to adopt was heard on February 10, 1951, with Judge Benjamin Blake of Graham County presiding. At the conclusion of this hearing the court entered the following order:
'It is ordered by the Court that said adoption is denied; and further ordered that temporary custody for Sammy Ayala Ponce be turned over to the Greenlee County Board of Welfare and it is recommended that said child remain with the Petitioners, Mr. and Mrs. Ponce until further order of the Court.'
Thereafter on April 20, 1953, the natural mother filed a second petition for a writ of habeas corpus (No. 3220-B), asserting that the court, in its adoption order quoted above, lacked jurisdiction to retain the child in Greenlee County. Judge Blake heard this matter on May 8, 1953, it being stipulated that it be submitted on the testimony taken at the previous adoption hearing, and at the conclusion thereof the following order was entered:
'The Court being advised in the premises hereby orders that the Writ of Habeas Corpus be granted and the child delivered to its natural mother, Guadelupe Mannelley Garcia, forthwith. Add (to above order) that the mother of said child not take the child out of the jurisdiction of this Court.'
Immediately following the entry of the last-mentioned order the court permitted the Ponces to file a new petition to adopt Sammy and upon the same date this order was entered in that matter:
'The petition was filed in my presence, in open Court, and I feel justified in granting this order. The order will be signed granting possession of the child to the adopting parents until such time as the petition is heard. I want it understood, too, that this child is not to be taken out of the jurisdiction
of this court. This order supersedes the order made in the Writ of Habeas Corpus.'
[78 Ariz. 353] Petitioner objected to this order, challenging the jurisdiction of the court to enter same. Thereafter she moved the court to dismiss the petition. Judge Blake having died in the meantime and the resident Judge of Greenlee County being disqualified by reason of having been of counsel in the case, this adoption matter was assigned to and heard by respondent Judge Jesse A. Udall, who had been appointed to succeed Judge Blake. The motion to dismiss was first denied on October 21, 1953; it was again urged and denied on August 30, 1954, and the matter was set for trial on its marits for January 5, 1955. Thereupon the petitioner sought and obtained from us an alternative writ of prohibition ...