1 Mills Surr. 468 | N.Y. Sur. Ct. | 1900
This is a proceeding to set aside an order of adoption, made herein on the 8th day of February, 1898, by the county judge of Erie county, on the ground that the foster-parents are not proper persons to have the care and custody of the child.
It appears without controversy that the child was surrendered to the superintendent of the poor of Erie county in December, 1892, by a written instrument, and was thereafter
On the fifth of February an order was made by which the petition for the writ of habeas corups was dismissed and the custody, care and control of said infant was ordered to remain in and with the superintendent of the poor of Erie county.
It will be observed that this order in no way disturbed the decree of the Surrogate’s Court theretofore made on the 11th of January, 1898, since by force of the surrogate’s decree the
Subsequently thereto and on the 8th day of February, 1898, the present order of adoption upon which these proceedings arise was made by the county judge of Erie county, which resulted in the County Court again giving, in adoption to the same parties, this infant upon the consent of the superintendent of the poor and the consent of the foster-parents, and this notwithstanding the decree of this court theretofore made which had in no way been disturbed by appeal or otherwise, and so remains.
From the order of adoption made by the County Court, above mentioned, an appeal was taken to the Appellate Division of the Supreme Court, and the same was in all things confirmed without opinion. Another writ of habeas corpus issued out of the Supreme Court, which resulted in an order being made by which the petition for the writ was dismissed, and the petitioners sent to the Surrogate’s Court for further relief.
Before the final hearing in this proceeding a writ of prohibition was served restraining me from in any manner proceeding with the same. This writ was set aside and the matter went on to a conclusion.
■ It should be remembered that no appeal was ever taken from the decree of the Surrogate’s Court and the force of that judgment remains unimpaired except in so far as it was practically reversed and set aside by the County Cour.t in its order of adoption made in February, 1898.
The circuit having been completed, a fresh start is again taken in this court, and it must be admitted that if the proceedings are not unique they are at least novel.
Ho question of jurisdiction was raised in the first proceeding in this court, but since it is now contended that the Surrogate’s Court has no jurisdiction on the admitted facts of the case, the matter of jurisdiction is treated as an original question.
" Without passing on the question, I am impressed with the fact that unless the officers designated in the statute can act in this proceeding, there can be no remedy or relief. The pro■ceeding to abrogate adoption can only be effected by the proceeding instituted, and only by the court and officers provided by law, to wit, the county judge or by the Surrogate’s Court. While it is true that the Supreme Court has plenary power over "the custody and control of infants even to the extent of taking
It follows, therefore, that the proceedings of the Supreme Court upon the writs of habeas corpus were only directed to the question of who was the proper custodian of the infant, and had no bearing on the question directly under discussion. There is no doubt but that court may exercise the very widest range of authority over the person and property of an infant, yet it seems to have no power under the Domestic Relations Law to abrogate an adoption, or in the words of the former statute “cancel the agreement of adoption.” Such power is placed in the county judge and in the Surrogate’s Court and until the adoption is abrogated by one of these two tribunals the contract of adoption carrying with it parental and filial relations with property rights appertaining to those relations, remains in force, wholly undisturbable by anything and other court can do.
It is interesting to inquire what effect the former decree made by this court has upon this proceeding. It is somewhat anomalous. When the decree of the Surrogate’s Court was made, the child, by operation of law, was placed in its former status, which in the words of the statute “ should be the same as if no proceeding had been had for the adoption thereon.” The decree being unreversed and not even appealed from, stands it would seem as an adjudication between those parties, not only as to its final effect but also as to all material questions involved in its validity.
My views as to the unfitness of the foster-parents and of their cruel and inhuman conduct, and to their being improper persons to have the custody and control of this child, are expressed in the decree of January, 1898, and have never changed. These conditions were shown to my satisfaction to exist at that time, and from the precocious untruthfulness of the infant herself
Proceedings have been brought -for abrogation, adoption and to set aside original surrenders in this matter and have heen constantly before the courts for upwards of three years.
The result of concurrent jurisdiction has been exceedingly harmful, at least to the welfare of this infant. The proceedings in one form or another in different courts for the past years has made life almost a burden to the foster-parents as well as this infant. The abrogation of the decree of the Surrogate’s Court being almost immediately followed by the readoption to the same foster-parents in the County Court, again followed by another proceeding in this court for abrogation, leaves neither tribunal with any assurance that a judgment rendered after careful deliberation will ever be final.
I have determined to dispose of the question of jurisdiction upon a view presented by neither party to this proceeding.
This infant was adopted in pursuance of the provisions of chapter 272 of the Laws of 1896, and though the jurisdiction of the county judge and Surrogate’s Court is concurrent under this act, I am nevertheless of opinion that the power to abrogate an order of adoption does not rest in a court other than that which granted it; nor, do I believe an order of adoption can be granted after another court of concurrent jurisdiction has judicially determined between the same parties, that they are unfit to retain the privileges and rights following such a contract by abrogating the same.
While the law always requires the sanction of a court to create or destroy such status, it never could have been intended that the county judge should sit as a court of appeals on the
The petitioners must, therefore, seek their relief in that ■court from which the order of adoption issued.
I can only express my regret that the question of jurisdiction was not argued on the first hearing. It was assumed by all parties. Upon the merits of the controversy there is nothing that ■changes my views as originally expressed in the decree rendered in January, 1898, after carefully weighing the testimony of thirty witnesses.
I regret again to add uncertainty to what seems to be a determined effort to establish right as differently viewed by the parties to this proceeding, and would gladly direct such judg
Petition dismissed, without costs.