Commonwealth v. Ball

259 Mass. 148 | Mass. | 1927

Sanderson, J.

This is a petition brought by the parents of Helen Ball asking that an order of the Superior Court, made in 1918, placing her in the care of William J. Driscoll until the further order of court, be modified by the entry of an order for her return to the petitioners. The original order was made in accordance with the provisions of St. 1903, c. 334, as amended by St. 1909, c. 181, after a decision that Helen Ball was a neglected child. A judge of the Superior Court denied the petition, and the petitioners saved exceptions to his refusal to make certain rulings. For the purposes of this case it is assumed, without deciding, that this action of the Superior Court is subject to review by bill of exceptions.

The first request is, in substance, that the decree be modified and the child returned to her parents. Such ruling could not have been made. The question, whether the child should be returned, depended upon facts found by the judge upon the evidence. The second is, that the petitioners have the right to the custody of the child if the cause of the commitment has ceased; and the third, that they have the right to such custody if the court finds that there would be no danger of her neglect were she returned.

In proceedings under earlier statutes this court has said that, while the rights of parents are to be protected in such cases, the welfare of the child is the “paramount consideration.” Wares, petitioner, 161 Mass. 70, 72. Unless the welfare of the child will be promoted by returning her to her parents, it cannot be said that “the object of . . . [her] commitment has been accomplished.” G. L. c. 119, § 44. See Purinton v. Jamrock, 195 Mass. 187, 201. Even if the cause stated for the original commitment no longer exists and the parents are now competent and fit to have the care of the child, the court may, in the exercise of a wise discretion and upon an impartial determination of the facts in a particular case, decide that the welfare of the child will not permit her removal from her present custody.

The fourth request is, in effect, that the exercise of the discretion of the custodian should be based upon the condition of the home of the parents, their lives, and the probability of neglect if the child were returned, and not upon a comparison of that home with the home of the foster parents. The judge, in refusing this request, said: “A custodian who is asked to return a child should in exercising his discretion take into consideration the home condition of the parents, their manner of living, the probability or lack of probability of neglect, crime, cruelty, insanity, drunkenness or other vice of the parents affecting the child if it is returned. He should not base a denial of return merely upon his belief that the conditions of the home where the child is living under his custody are superior to those of the home of the parents.” We find no error of law in the judge’s refusal to give the rulings requested.

Exceptions overruled.