85 P.2d 75 | N.M. | 1938
The relators invoke the jurisdiction of this court to compel by mandamus the Honorable Harry L. Patton, judge of the Ninth judicial district, to desist from taking any further proceeding in the matter of the adoption of Billy Dee Hogue.
On July 24, 1937 we affirmed the judgment of the trial court in Crook v. Walker,
The Hills, prior to the filing of the affidavit by Herbert N. Hill seeking to disqualify Judge Patton, filed petition seeking to adopt the child here involved, were granted temporary custody of it, filed objections to the Crooks' motion for leave to intervene in the Hill petition appeared at a hearing on said motion, and appeared at a hearing before Judge Patton and offered proof on a motion by the Crooks in which the latter sought temporary custody of said child. From the foregoing it clearly appears that the affidavit filed by Herbert N. Hill in cause No. 5784 seeking to disqualify Judge Patton was not timely filed. We have heretofore said that if the one seeking the disqualification has invoked the ruling of the court on a controverted question he is denied the right to have the cause further heard by another judge. State ex rel. Gandert v. Armijo,
Geraldine Evans was named in the Crook petition, but was not made a party to the proceeding nor given notice thereof. Our statute does not specifically provide for notice to the parent. The question arises: Does Geraldine Evans, the mother of the illegitimate child here involved, have a right to be heard on the allegation of abandonment? If she is entitled to be heard, was her affidavit seeking to disqualify respondent timely filed? Sec. 2-112, 1929 N.M.Comp.St.Anno., reads as follows: "Abandonedchildren — Consent of parent unnecessary. Upon satisfactory proof that a child is abandoned and unprovided for by its parents or relatives, the probate judge shall permit such child to be adopted without the consent of its parents or relatives, upon the execution of the agreement hereinbefore required of the applicant."
Sec. 2-105, 1929 N.M.Comp.St.Anno., provides that "An illegitimate child *24 cannot be adopted without the consent of its mother, if known or capable of consent. * * *"
It is plainly right that a parent charged with abandonment be heard upon that issue in the adoption proceeding at any time prior to the entry of the decree regardless of the state of the pleadings. In 2 C.J.S. Adoption of Children, 410, § 30, it is stated: "e. Notice of Proceedings * * * Under a statute providing that the consent of a parent who has abandoned the child is unnecessary for its adoption, but containing no express provision requiring notice to a parent that he or she may be heard on the question of abandonment, it has been held that without actual or constructive notice no conclusive adjudication could be made against the parent on that issue, but the order of adoption, however, if made without such notice, is not void, or voidable, because of the parent's right to attack it, and the order is valid, unless the finding of abandonment was erroneously made. The reason for this holding is that natural parents are entitled to their day in court on the issue of whether or not the jurisdictional allegation of abandonment is true. * * *" (citing N Y cases).
Our statute is the same as those referred to in the foregoing section. In Re Clarke,
The New York Surrogate's Court in Re Davis' Adoption,
In People v. Feser,
Respondent strenuously argues, and the trial court so found, that Geraldine Evans' written consent to the adoption of her child by the Hills constitutes an abandonment — that she now has no interest in the proceedings — and that the giving of such consent gives the court jurisdiction in cause No. 5844, the Crook Case, despite the above quoted provisions of Sec. 2-105 and Sec. 2-112.
Since the appearance of the mother has been entered and the two causes consolidated the court has jurisdiction to dispose of the child as the welfare and best interest of the child may dictate if the issue of abandonment is resolved against the mother. We had these statutes under consideration in Crook v. Walker, supra, in which the court found that the mother was a fit and proper person to have the custody of her child and that she had not abandoned it. In that case we said, 70 P.2d 766: "This court has heretofore said a parent has no property right in their children, and the paramount issue is the welfare of the child. Ex parte Wallace,
In Pra v. Gherardini,
It is here alleged that after the court handed down the opinion in Crook v. Walker, supra, the mother abandoned the child. If that issue stood alone there would be no doubt as to the proper proceeding. The mother would be entitled to be heard and before an impartial judge. Her allegation that she has not abandoned the child must be held to mean that she desires to have its custody in case the petition of the Hills is denied; and in case the court finds that she has not abandoned him his custody will be awarded to her.
A concise statement of the rights of parents with respect to their children is difficult of expression. Prima facie, parents have the right to legal custody of their minor children, but this right is not absolute. It cannot be transferred to the detriment of the child nor can it be commercialized. Mr. Justice Hoar said in Re O'Neal, 3 Am.Law Rev. 578, that "A human being cannot be treated like a piece of property," and that a child is not the property of its parent. In Richards v. Collins,
Under our statute consent that one person may adopt a child does not give the *27 court jurisdiction to award it to another. However, the selection of a foster parent is a judicial act and the responsibility is that of the chancellor. As stated in Pra v. Gherardini, supra, "`The welfare of the child under the above rule may require that its custody be denied the parent and awarded to others. * * *'" and the mother who has abandoned her child cannot limit the court to any particular petitioner. If it is found that she has not abandoned the child and the Hills' petition is denied custody will be awarded her and both petitions dismissed. If it is found that she has abandoned the child Judge Patton, respondent herein, will proceed to hear the adoption petitions in the consolidated proceedings. It is so ordered.
SADLER, BICKLEY, and BRICE, JJ., concur.
ZINN, J., did not participate.