109 Misc. 479 | N.Y. Sur. Ct. | 1919
The Surrogate’s Court of Westchester county allowed and confirmed the adoption of one Charlotte Hayford, aged about three years, by order dated January 22, 1919. The mother, Jessie Hayford, consented to the voluntary adoption by agreement executed January 13, 1919, wherein she signed by her mark in the presence of two witnesses. The mother thereafter died on January 16,1919. The full story of her life’s drama will be found here.
It was alleged in the adoption papers that the father, Biley Hayford, had abandoned the mother and child. The mother said: “ Biley Hayford deserted and abandoned me and the child on or about June 10, 1917; I had not heard from said Biley Hayford since the aforementioned date; I have made every effort to trace and locate him without result, and I do not know of his present whereabouts. ”
In September, 1919, a proceeding was commenced by the petitioner herein, Biley Hayford, seeking an order abrogating the adoption. The court will discuss and decide two questions: Was the adoption contract valid ? Could such a contract be abrogated by this court?
At common law adoption of children as now understood did not exist. The status and rights of adopted children are of purely statutory creation. Matter of Livingston, 151 App. Div. 1; United States Trust Co. v.
Chapter 830 of the Laws of 1873, chapter 438 of the Laws of 1884, chapter 703 of the Laws of 1887, chapter 352 of the Laws of 1915, chapter 453 of the Laws of 1916, and chapter 149 of the Laws of 1917 embrace the laws of adoption in this state. The laws relating to adoption are now a part of the Domestic Relations Law. Section 111 relates to the consent to the adoption. In the instant case the foster parents and the mother consented to enter into the contract. The consent of a parent under section 111 who has abandoned a child is unnecessary. Whenever a parent abandons a child, or is deprived of civil rights, or divorced, or becomes insane, or is an habitual drunkard, or is judicially deprived of the child, the law visits such a parent with its disregard and places such a parent without the pale of the law. Matter of Miller, Judge May, N. Y. L. J., July 19, 1919. Section 112 relates to the requisites of voluntary adoption. Section 115 applies to adoption of children from charitable institutions.'
The term “ abandonment ” means neglect and refusal to perform the natural and legal obligations of care and support. If a parent withholds his presence, his love, his care, the opportunity to display filial affection and neglects to lend support and maintenance, such a parent relinquishes all parental claim, and abandons the child. Matter of Larson, 31 Hun, 539.
From the affidavits and papers in connection with the adoption contract, I am of the opinion that Riley Hayford, if a <£ parent,” had on and before January, 1919, abandoned his wife and child, and in the exercise of my discretion was satisfied at that time that the moral and temporal interests of the child would be promoted by the adoption. Supplemented by the sworn testimony in this proceeding, I still hold to the same opinion.
As to the question of abrogation. Section 116 of the Domestic Relations Law relates to abrogation of voluntary adoption. Section 117 relates to applications in behalf of a child for abrogation of adoption from a charitable institution. These two sections are the only sections of the law relating to question of abrogation. This being a voluntary adoption, section 117 does not apply. Section 116 says: “ The foster parent, the person adopted and the persons whose consent would be necessary to an original adoption, must appear
The foster parents, of course, have not agreed nor consented to the abrogation.
In Matter of Trimm, 30 Misc. Rep. 493, Surrogate Marcus of Erie county, in a proceeding to abrogate an adoption of a child coming from a charitable institution, held the Surrogate’s Court has power to abrogate an adoption. This case is not in point, however, as the instant case is & voluntary adoption. Likewise, Matter of Ward, 59 Misc. Rep. 328, is not a case in point for the same reason. Matter of Moore, 72 Misc. Rep. 644, and Matter of Johnston, 76 id. 374, hold that under section 2461, subdivision 6 (old number of the Code, now section 2490, subdivision 6), the surrogate may vacate and set aside an order of adoption, and that the fact of abandonment by the father may be raised on the. father’s application for abrogation upon allegations that he had made proper provision for maintenance of the child and upon his denial of the charge of abandonment. The opinion refers to powers of the surrogate over their own orders, and refers to Matter of Armstrong, 72 App. Div. 286; Kamp v. Kamp, 59 N. Y. 216; Seaman v. Whitehead, 78 id. 306.
In Matter of Ziegler, 82 Misc. Rep. 346, Surrogate Fowler held, in a proceeding to vacate an adoption, that a surrogate has jurisdiction of a proceeding to
Section 2510 of the Code of Civil Procedure, enacted since the decision of Justice Scott, does not enlarge the equity power of the Surrogate’s Court upon this particular point. Justice Carr of the second department, in Matter of Livingston, 151 App. Div. 1, raised the question whether the legislature had power to provide for an adoption of an infant without notice to its parents in these words: “ To hold that the State may permit its courts to determine without notice to the parent that he has forfeited his natural rights to the
In the Massachusetts case (Matter of Gibson, 154 Mass. 378) the court declined to hold the adoption void because of failure to give notice to the father. This ruling was followed in Nugent v. Powell, 4 Wyo. 173, upon facts same as in the instant case. The Wisconsin courts, in Shiltz v. Roenitz, 86 Wis. 31, and Parsons v. Parsons, 101 id. 76, held the adoption to be void without notice. It is unnecessary in tMs matter to go further into the power of the state to enact adoption laws in their present form, because I have already held that the petitioner herein does not stand in the relation of “ parent ” to this cMld, in the sense of the statutes of this state.
The two late cases in this state have been decided by the second department, and so far as this court is concerned control the law upon the point in the instant case. They overrule the prior holding that the Surrogate’s Court has power to abrogate a voluntary adoption. Matter of McDevitt (1917), 176 App. Div. 418; affd., 221 N. Y. 598. Justice Stapleton, writing for that court, said: “ The voluntary adoption of an infant * * * to which the parent consented cannot be abrogated by a county judge without the consent of the foster parent, for the abrogation is controlled by the statute, which requires the consent of all parties concerned. The county judge * * * has no power to dispense with the essential requirement prescribed by the Legislature, to wit, the assent of the foster parent. The Supreme Court, in the exercise of its equity jurisdiction, can annul an adoption which violates equitable principles.”
Again, in Stevens v. Halstead (1917), 181 App. Div.
Not being a judicial proceeding, the order or consent does not fall within the power of the surrogate set forth in section 2490, subdivision 6.
These two last cases considered in the Appellate Division, second department, write the present law of the state upon the power of the surrogate or a county-judge to abrogate a voluntary adoption.
For the reasons set forth herein the prayer of the' petitioner is denied.
Let order be entered dismissing the petition.
Decreed accordingly.