85 Wash. 617 | Wash. | 1915
On the 23d day of November, 1910, one Elsie Potter gave birth to an illegitimate child. Nellie Myers, the petitioner and appellant herein, a caller at the place where the mother was staying, was informed that the mother, a girl only sixteen years old, had given birth to a child. Petitioner talked with the mother, who told her that she wanted her to “take it away and get rid of it. I don’t
“Oroville, Washington, November 23, 1910.
“I hereby turn over my right and title of my baby girl, born November 23, 1910, to Mrs. Nellie Myers, Riverside, Wash. E. N. Potter. Witness — Edith Hayes, R. H. Hayes.”
From this time on, the foster mother has been the sole support of the child. She has cared for her as her own, according to the testimony of many neighbors and residents of that county. She has given her a good home, good clothing and good food, and is sincerely attached to it.
In July, 1913, she filed a petition with the court asking for a formal order of adoption. The statutory notice was given. Upon her petition, W. E. Grant, an attorney practicing at the bar of the court in Okanogan county, was appointed the next friend of the child. A trial was had. Many witnesses were called and examined. They were closely and severely cross-examined by Mr. Grant. The proofs were abundant to show that appellant has been a true mother; that she is able to care for, support and educate the child in keeping with its station in life. The proofs show that at no time has the mother ever concerned herself about her offspring, nor has she contributed in any way or in the slightest degree to its support;; Her brother, who cared for her at the time of her confinement, testified to the good character of the appel
It will be unnecessary to discuss the appellant’s case further than to say that she has made out a case entitling her to the care and custody of the child, unless the objection filed by the mother is sufficient in itself to sustain the judgment of the lower court.
Reference to § 1696 of the code will show that the consent of a parent is not necessary where there has been an abandonment. The trial judge has fallen into error in this-: He has treated the filing of the objection by the mother as a fact sufficient in itself, whereas, the question of abandonment should have been determined by reference to all of the facts in the case. When so measured, it is clear to us that the objection should not be allowed to overcome what we may
Abandonment does not necessarily mean that a parent has no interest in a child’s welfare. It means rather a withdrawal or neglect of parental duties. It means a withholding of care and protection, of sympathy and affection. When the subsequent conduct of the mother is considered in connection with her expressed dislike for the child and her desire that appellant get rid of it for her, and the giving of the writing which we have quoted, after sufficient time for the mother love to reassert itself, we have no hesitation in finding an abandonment. Then, again, this proceeding is instituted by the foster mother. The mother had not been interested to the slight extent of inquiring for the welfare of the child. We must presume that the situation and relation of the parties would have remained unchanged but for the fact that the mother was brought in by order of the court. It cannot be said that because a woman has given birth to .a child she has a mother love for it. Mother love does not depend upon the pains and perils of childbirth. It is not every child that is welcome. On the other hand, there is an affection that grows from care and association and the tender ministrations which are prompted by a heartfelt sympathy for the weak and helpless. These beget a love as real as the love of a mother, and more, for the one who voluntarily assumes such a privilege must have far deeper maternal instincts than one who is an unwilling mother.
This court has frequently held, in considering cases of this kind, that we will make our first consideration the welfare of the child. It seems to the writer of this opinion that we would not be true to our own expressions if we were to hold that this child had not been abandoned by its parent.
In In re Fields, 56 Wash. 259, 105 Pac. 466, we held to the doctrine that abandonment was a question of intent; that intention was to be found at the time when a parent set in motion a set of circumstances which might and did culminate
“We are forced to the conviction that the fact was that the intention of the appellant when she took the child to the hospital was to abandon it, in the sense of relinquishing all claims that she had upon it, so that it might be legally disposed of by the authorities of the hospital.”
See, also, Winans v. Luppie, 47 N. J. Eq. 302, 20 Atl. 969; Nugent v. Powell, 4 Wyo. 173, 33 Pac. 23, 62 Am. St. 17, 20 L. R. A. 199.
Furthermore, we are of the opinion that the writing made by the mother at the time the baby was turned over to appellant is a sufficient evidence of consent to an adoption. It will hardly be denied that, if the proceeding had been had immediately, the paper would have been sufficient, if authenticated and filed, as an exhibit in court.
“The dominant question is the moral, intellectual, and material welfare of the children. The wishes of the parent are subordinated to these considerations which, by all the courts, are deemed paramount.” Viereck v. Sullivan, 77 Wash. 313, 137 Pac. 456.
This court gave great weight to a writing indicating the desire and purpose of a mother in In re Wells, 60 Wash. 518, 111 Pac. 778. In the one case the writing breathes a mother’s love. In the other, a mother’s indifference. Such expressions, whether the one or the other, are potent factors in controlling the discretion of a judge and satisfying him of the “fitness and propriety” of entering an order of adoption.
We hold that the mother abandoned her child at the time she gave it into the keeping of the appellant, and has since continued to abandon it; that the right of the foster mother is paramount to that of the parent, and that the interest of the child will be better served by an order of adoption.
If there were anything in the record to suggest that the objection made by the mother was well founded, or if there was any showing of conduct on her part that could be con
The judgment of the lower court will be reversed, with directions to enter an order of adoption.
Morris, C. J., and Mount, J., concur.
Parker and Holcomb, JJ., concur in the result.