4 Wyo. 173 | Wyo. | 1893
This case comes before this court upon exceptions duly reserved, taken by plaintiffs, in error to- sundry rulings, findings of fact, conclusions, of-law and-final decree-made by-the district .court of Laramie County in. the matter of .the final distribution of the .estate.-.pf .Michael Powell, deceased.-. The matter was heard - in the court below upon the petition for final distribution, filed by the .defendants in error,-.the answer of Emily Powell, by Francis J.. Nugent, her-guardian, one of the plaintiffs in error to-said petition-and.the reply of defendants in error thereto,-and the, evidence .adduced-in support of the issues -presented by ¡said- pleadings.
It appears from the record that .on July 1st,. A. D. 1891, M. C. Brow-n, one of-the plaintiffs, in error, was-duly appointed, guardian ad litem of said, child, Emily. Powell, andiqualified as. such. From the record-these facts conclusively appear: That
At the time Leonard left his family in August, 1878, he left them without money or means of support, and in circumstances of extreme destitution, and from that time up to the time of the adoption proceedings hereinafter mentioned he in no way whatever contributed to the support of his wife and children, except the sum of twenty dollars furnished them while they were at Omaha, Nebraska, and before they came to Cheyenne, Wyoming, in May, 1880, and this notwithstanding the fact that during most of the period he was earning reasonable wages and could have contributed to their support had he so desired, and also notwithstanding the fact that the wife and children frequently appealed to him for assistance and apprised him of their destitute condition.
Prior to the date of the adoption proceedings, John W. Leonard, in a court of competent jurisdiction of the State of California, obtained a decree of divorce from his said wife, and in said decree he was awarded the custody of the child Emily. On the 4th day of January, 1882, Esther Leonard, who was then living in Cheyenne, Wyoming, with her four children, appeared before the probate judge of Laramie County, Wyoming; made application to relinquish her child Emily and consented that she might be adopted by Michael Powell, the son of Patrick and Margaret Powell and the brother of the full blood of the other six defendants in error. In this proceeding she filed in the office of said probate judge, as stated in the petition of defendants in error for distribu
“In the Probate Court of Laramie County. .Territory of “Wyoming.
“To Isaac Bergman, Judge of Probate:
“The undersigned,'Mrs. Esther Leonard, would respectfully “represent that she is the mother of Emily Leonard, a minor “female,child of the age of four (4) years, and is willing to “relinquish all right to the said Emily Leonard to Michael “Powell and Elizabeth Powell,, his wife, who have signified “their willingness to adopt such child and to assume the relation of parent to her, and she further represents that she is “a resident of Laramie County, Territory of Wyoming.
“Mrs. Esther Leonard.
“Sworn to and subscribed to before me this 4th day of “January, A. D. 1882.
“Isaac Bergman, Judge of Probate.
“and thereupon the following order was entered by the said “Probate Judge, to-wit:
' “January 4, 1882.
“Matter of adoption of Emily Leonard, a minor.
“On this day came before me Mrs. Esther Leonard and “Michael Powell, and the said Mrs. Esther Leonard made her “application in writing to relinquish all her right to her minor “child Emily Leonard, aged four (4) years, of which she is “the mother, to the said Michael Powell and Elizabeth Powell, “his wife, and the said Michael Powell and Elizabeth Powell “being willing to adopt the said minor child Emily Leonard, “I hereby consent to and allow such adoption to be made. “Said child to be hereafter known as Emily Powell.
“Isaac Bergman, Judge.”
Upon the hearing before the, probate judge. evidence was introduced tending to' show that the father was living, but
Michael Powell died intestate at Laramie County, Wyoming, February 24, -1888, owning real and personal property in said county. He left surviving him neither wife nor children of his body begotten. His estate was fully administered upon, and being in condition for distribution this controversy arose between the defendants in ■ error and. the said child Emily, concerning the property, left, by the deceased. :
In the said adoption proceedings no notice of any kind was given to said John Leonard, nor did he in any. manner .consent to said adoption of .the said child, nor did he in any way appear in said proceedings or in relation thereto.... ■ ¡..
Upon these facts the court found as conclusions of law that John W. Leonard had-abandoned the child Emily before and at the time of said adoption proceedings; that Esther Leonard was not entitled to make any relinquishment of said child; that said adoption proceedings were and are vo.id and of none effect, and that the defendants in. error were the heirs and only heirs-at-law of said Michael Powell, deceased, and entered up a decree accordingly, ....
Motion for new trial was filed, and overruled,.and the .ease brought for review to this court.
Upon the argument...of this cause these main questions were presented to the court, viz.;
First. Were the adoption proceedings.-had- before --the.probate judge of Laramie County, Wyoming, in conformity with the provisions of the.statute relating,thereto?
Second. Is the action of the. probate judge in allowing and consenting to the adoption of .the child Emily by...Michael Powell subject to collateral attack in. this;proceeding? ...,.:
Third. Are the circumstances surrounding the ease , such, that Michael Powell would .have been, and consequently these defendants in. error, his privies in blood and in law, are es-topped to deny the validity and legality of the proceedings in adoption? .
It is evident that if the first and third questions,; o.r either;.of
The statutory provisions relating to the .adoption .of-.children in-this State are to be found in Sections 2274; to 2286, inclusive — B. S., 1887. Those which relate particularly, to this controversy are as follows: 3274, 2275, 2376, 2-27.7, .2278, 2279 and 2286.
It will be observed that'seetion 2274 provides .that-in eases of adoption, the-probate judge “shall enter of-record in' the “records of his office the-fact of-such application and consent “with-his approval of such agreement and adoption.”
Upon the hearing -below the- court found as a fact that the probate judge, after full inquiry, consented-tofhe adoption of the child Emily, and we quote:- “but did-not enter .of record “in the records of his office any. consent or-approval of -such “adoption. The court further.finds that the. said judge of “probate did write out his consent and-approval of such adoption upon a detached piece of paper and retained the same in if his' office among -the papers of his office, which said paper is “in the words and figures -following, to-wit:” and then is set forth the consent order, set forth in our statement- of facts, supra.
Upon the argument it was strongly urged that.inasmuch as the probate judge failed to enter the order as required by the statute the adoption did not take place; that, .he ..entry .of- the order of consent was a condition precedent to-the adoption.-
There was no evidence upon the hearing tending to.-show that the said probate judge kept the records of his proceedings or the proceedings of his court in any other-way than-by.writing them out upon sheets.of paper;-, and inasmuch as there was no statute prescribing the manner in which--the records should be kept, whether in .bound books or-.:upon pieces of paper, we know of no rule of- law which would prohibit him from keeping his records in the way in which .-it seems he .did in this ease; he certainly-had very ancient ■ authority for so
We now come to the main question in the case, viz.: Were the adoption proceedings had in conformity with the provisions of our statute? The determination of this question demands an examination of the statute, and also of the general principles of the law relating to the rights and duties of parents and children. It must be admitted in the beginning that a proceeding in adoption was wholly unknown to the common law, and in our system of jurisprudence it is purely a statutory matter; hence it follows that in order to give any va
From a careful and thorough examination of our statutes
' This -brings us' to- the- consideration of the -question whether or not-the mother in this'instance had the right to relinquish the child, or, tó' use the words of the statute, was “entitled to make such relinquishment.”
. TJponthe arg.ument:it was; strongly, forcibly and eloquently urged upon the court by the-'distinguished counsel for defendants in error, that even though the statute does' not in terms “require notice to the absent father.-where .proceedings were in“stituted-forthe adoption of his child by a- stranger, such a proceeding so materially affecting and invading his rights would “be invalid and without jurisdiction unless upon due notice; to “him-, that he might have the Opportunity of defending and “protecting hisnights. That if - the statute should be so construed as to authorize the adoption of- -a child with the “consent .of the mother but in the absence of the father, and “without-his consent,, and without-notice to him, such construction would render the statute unconstitutional and Sherefor any proceeding under it void. That if 'the expression ' "the parent’. or ‘any parent,’ as used in sections. 2274, “2277 and 2279 is meant to give to a-'single parent where both “are-'living the right to relinquish, then the father is the par“ent intended because he it is who has under the law the right “to: the custody and services of the child and who is charged “with its maintenance..and-nurture. That-‘the fundamental “principle of the common -law was that the father possessed “the paramount right'to the custody- and control of his minor
Such, in brief, is the argument made by defendants in error; we have stated it so fully because we desire to give the fullest consideration to it. In the first place it is to be remembered that this entire argument in support of a father’s alleged rights is not made in a case in which a father is seeking to establish those rights. The father is not before this court and is a stranger to these proceedings; it is made in a case in which the collateral heirs of Michael Powell are seeking to have «declared invalid a proceeding in which Michael Powell participated, and they base their claim not upon the fact that the legal rights of the person under whom and through whom they claim have been invaded, but upon the
But what are the rights of a father with respect to his child?
It is claimed in this case, and there are many sayings in the books, that at common law the father has the paramount right to the custody of his child, and that independently of statutes such is the prevailing rule in America. If this statement simply means that inasmuch as the law has imposed upon the father the duty of caring for and maintaining his minor child, and therefore has given him the custody and control of it in order that he might the better perform these duties, the statement may be accepted as accurate; and in a general way it may be said that all things being equal the father has a better right to the custody and services of his child than has the mother, because the law primarily imposes upon the father the duty of maintenance and nurture. But it is, I think, well settled that the father has not an absolute vested right in the custody of his child.
Judge Story, in the case of United States v. Green, 3rd Mason, at page 485, states what I conceive to be the true rule as follows:
“As to the question of the right of the father to have the “custody of his infant child in a general sense it is true. But “this is not on account of any absolute right of the father, “but for the benefit of the infant, the law presuming'it to be “for its interest to be under the nurture and care of his nat“ural protector both for maintenance and education. * * * “It is an entire mistake to suppose the court is at all events “bound to deliver over the infant to his father or that the “latter has an absolute right in the custody.”
It may well be doubted whether the rule of the common law was other than as stated in the case above cited. From an examination of the authorities it will be found that prior
“As the laws now stand the father -of a child born in -lawful “wedlock -was entitled to-the.entire' and.absolute control and “custody of that child and to exclude from any share in that, “control and custody the mother of that -child. The mother “might be -the most'virtuous woman that ever lived, amiable “in her manners, fond and attached to her children; the. father “on -the other hand might be profligate in character, brutal “in- manner, living in adultery, and -yet would have the right; “under the existing law, to the custody-of the 'children, of his “marriage'-to-the exclusion'of even access to them :of his wife, “their mother.”
Lord.'Denman, -who was .-the Chief Justice of the King’s Bench, and who-concurred in the decision-in-the above cited case, in the' course-of the -debate upon'the bill -referred to, said:
“In the ease of-Greenhill which had been decided in 1836, “before himself and the other judges 'of the King’s Bench, “he believed-that there was not- one judge who had not felt*193 "ashamed of the state of the law, and that it was siich as to "render it odious in'the eyes of the country. The effect in' “that case was to enable the father to take his children from' “his young and blameless wife, and place them in charge of a “woman with whom he then cohabited.”
■ If such was the common law of England it is not surprising that Lord Denman might say he was ashamed of it. But as stated by Chief Justice Ranney in Gishwiler v. Dodez, 4 Ohio St., at page 623, I am strongly disposed to think that the learned Chief Justice of-the King’s Bench mistook a judicial excresence upon the law for the law itself, and that Parliament did little more than restore it to its former condition. If, however, the English cases alluded to were fair expressions of the common law, it is safe to say that they have never found place in American jurisprudence; and I have no sort of doubt but that in American jurisprudence the right of a father to the custody of his child is not an absolute inalienable right, but that it is in all cases referable and subordinate to the interest and welfare of the child. Mercein v. The People, 25 Wend., 63.
It has been said that “By the law of nature the father has “no paramount right to the custody of his child. By that law' “the wife and child are equal to the husband and father. *" * “There is no parental authority independent of the supremo “power of the State. But the former is derived altogether “from the latter. In the civil state there is no inequality between the father and the mother. Ordinarily a child during “infancy is entirely under the discipline of its mother: and’ “very frequently wives discharge the duty of education of “their children better than the husbands. De Felice, Lectures on Natural Rights, Lecture 30. It'seems then by the “law of nature, the father has no paramount, inalienable right “to the custody of the child; and the civil .or municipal .law “in setting bounds to his parental authority, and in entirely “or partially depriving him of it in cases where the interests “and welfare of his child requires it does not come in conflict' “with or subvert any of the principles of natural' law.” Mercein v. The People, 25 Wend., page 103.
The true doctrine was stated in In re Moore, 11 Iv. C. L. N. S. 1, by Hayes, Justice, as follows:
“The dominion which a parent has over a child is a quali“fied one and given for the discharge of important trusts. “He will he secured in it so long as, and no longer than he “discharges the correlative duties; ■ and a failure in them, “under circumstances and to an extent to, bring on him the “brand of ‘unfitness/ amounts to a.forfeiture of his right and “warrants the interposition ,of the proper legal tribunal for “the protection of. the child hy wresting from the parent .the “trust which he, has abused or which the court plainly sees “he is unable or unwilling to perform.”
The right to custody and services of the child and the .obligation to support and educate are reciprocal rights, and obligations; they are dependent upon each other; they do not exist apart. One may not and ought not to-be permitted to deny the obligations, to refuse to perform -them. and still claim the existence of the right. .
In Chapsky v. Wood, 26 Kans., 652 and 653, Justice Brewer in delivering the opinion of the court says:
“A child is not in any sense like a horse or any other chattel, “subject matter for absolute and irrevocable gift or contract. “The father cannot by merely giving away his child release “himself from the. obligation to support it nor be deprived of “the right to its custody. In this it differs from the gift of “any article which is only property. If to-day Morris Chapsky “should give a horse to another party that gift is for all time “irrevocable and the property never can be reclaimed; but he “cannot by simply giving away his child relieve himself from*195 “the obligation to support -that, child, nor deprive himself of-“the right to its custody. *
“A parent’s right to the custody of a child is not like the “right of property, an absolute and uncontrollable right: “If it were it would end this' case and relieve us from all further difficulties: A mere right of property may be asserted “by any man, no matter how bad, immoral or- unworthy he “may be, but no case can be found in which the courts have “given to the father who was 'a drunkard and a man-of gross “immoralities the custody of a minor child, especially-when “the child is a girl. The fact that in such cases the courts “have always refused the father the custody of his child, shows “that he has not an: absolute and uncontrollable right thereto.”
In Hocheimer, Custody of Infants, at Sec..10,-we find this statement of the American rule:
“The general result of the American eases may be. characterized as an utter repudiation of the notion that there can “be such a thing as a proprietary right or interest in or to the “custody of an infant, or that a claim to such custody can .“be asserted merely as a claim, and the general drift of opinion is in the direction of treating the idea of trust as • the “controlling principle in all controversies in relation to such “custody.”
And hence, from a careful examination of the question we come to the conclusion that the -right of a father with re-' spect to his child is not- an absolute paramount proprietary right or interest in or to the custody of the infant, but is in the nature of a trust reposed in- him, which- imposes upon him the reciprocal obligation to maintain, care for and protect the infant. ' And that the -law secures '-him in this right ’So' long and no longer than he shall discharge the .correlative duties and obligations. The fact that by a mere gift of his child or a contract with reference- to- its .custody- the father may not- divest himself- of the right to the custody of his child to such an extent that he may not reclaim it, does not militate against this conclusion. -Such right to reclaim has its-foundation in the regard which the -courts have for the interest >and
And it follows from the foregoing that the contention of counsel for defendants in error that there can be no forfeiture-of a father’s right except by means of some statutory provision cannot be sustained. Take this case. The facts found by the court below upon this proposition are substantially as follows:
“That nine months after the birth of the child the father-“left his wife Esther Leonard and their four children without-“means of support, and in circumstances of extreme destitution and never thereafter up to the time of the adoption-“proceedings in question (a period of three years and five “months) contributed to the support of his wife and children* “except the sum of twenty dollars furnished them while in “Omaha, and before said family came to Wyoming in the “month of May, 1880, and during all that period had left the “said child Emily to the sole support and care of its mother, “Esther Leonard; that the said John Leonard during most of “said period was earning reasonable wages and was thereby “enabled to contribute to the support of his said family had “he desired to do so.”
And the court further expressly finds that these acts-constitute an abandonment of the child by the father — and of this there can be no sort of doubt in the mind of anyone who' will read the record’.
In the face of these facts how can it be said that this father did not by his own acts forfeit and part with and lose all the
The father in this ease parted with all of his rights. It did not require any' transfer on his paid in order that the right of custody, control and services of the child might devolve upon the mother. In such a case as this in which a father has cruelly deserted his family, and refused to recognize and he hound by those obligations which not only the law hut nature and the plainest instincts of humanity imposed upon him, upon whom should devolve the care and custody of an infant child nine months old, if not upon its mother? Is there a case to he found in the hooks in which the lawfulness of the custody and control of an infant child by its mother under such circumstances as appear in this case has been denied? If there he such a case then it is a case in which every principle of natural law and common justice and right has been utterly and entirely disregarded.
Our statute, Sec, 2250, R. S., provides “The father is the “natural guardian of the persons of his minor children. If “he dies or is incapable of acting, the mother becomes the “guardian.” This statute is but declaratory of the general rule and in that view we may consider it.
Is it to be said that the words “incapable of acting” when viewed in the light of the general principles of the law, are not broad enough by fair and reasonable intendment to cover and embrace this case. If the father had been convicted of a crime and imprisoned in the penitentiary, in such case he certainly would be “incapable of acting.” Such would be the ease if he should become insane, and such also in my opinion would be the case if he should become mentally weak to such “an extent as to bring on him the brand of unfitness.” Such would be the case if he should become unable by reason of physical disabilities to perform the ordinary duties of a nat
In Clark v. Bayer, 32 Ohio St., 310, the court after an exhaustive review of 'the authorities say:
“Prom authority and reason the following propositions “may be stated generally:
“1. As a general rule the parents are entitled to the custody of their minor children. When the parents are living “apart, the father is prima facie entitled to that custody, and “when he is a suitable person, able ;and willing to support and “care for them his.right is paramount to that of all other “persons except that of the mother in cases where the infant “child is of such tender year? as to require her present care: “but in all cases of controverted right, to custody the welfare “of the minor is first to be considered.
“2. The father’s right, however, is. not absolute under all “circumstances. He may relinquish it by contract, forfeit it “by: abandonment, lose it. by being in a condition of total inability to afford his minor children necessary care and support.”
In Commonwealth v. Dougherty, 1st Pa. Leg. Gaz. 63, cited at page 376-7, Am. and Eng. Enc. of Law, Vol. 17, the court held that:
“A parent may-relinquish the care, custody and-control of “his child and after, having done so his right to claim it is*199 “gone and will not be enforced by the court. Second, such “relinquishment by a parent of a child may be either by a “deed or other instrument in writing; or it may be by parol, “or by abandonment, or by turning it out of the house and “permitting it to go upon its own resources; and such relinquishment or abandonment may be presumed from the “act of the parties.”
In Pennsylvania a statute provided that justices of the peace who performed the ceremony of marriage of minors without the consent of the parents should be liable to the father in the sum of $50.00, which might be recovered in an action.
In the case of Stansbury against Bertron, 7th Watt. & S., at page 364, a justice of the peace solemnized the marriage of plaintiff’s minor daughter, and plaintiff brought suit against the justice. The defense was that the father was a drunkard, often intoxicated, and when in that condition frequently turned the daughter out of doors, and that he told her to go about her business and do for herself. The supreme court speaking by G-ibson, C. J., held this to be a good defense, saying “But the father had ceased to stand in the relation of a “parent, or consequently of a party who could be grieved. “By turning his daughter loose on the world to shift for her“self, he relinquished his paternal right in relation to> her “person, and absolved her from filial allegiance.”
In Farrell v. Farrell, 3 Hous. (Dela.) 639, which was an action brought by a son against a father to recover the amount of the son’s wages earned by him during his minority and collected by the father, the court charged the jury:
“If therefore, the defendant neglected or refused to support and maintain his son, or denied him a home or discarded “or abandoned him so that he was forced to labor abroad to “procure a living for himself he is not upon any principle “of law or justice entitled to the earnings of his son; because “under such circumstances the law will imply that the father “has emancipated or freed the son from his service and conceded to him the right to enjoy the fruits and profits of his “own labor.”
Prom the foregoing we conclude that at the time of the adoption proceedings, and for a long time prior thereto, this .father by his own acts had parted with and relinquished all right in and to the custody of the child; that under the circumstances of this ease, the mother at said time was and for a long time prior thereto had been lawfully and exclusively in the custody and control of the child, and had the right to relinquish, that custody and control, and no rights of the father were affected thereby, because upon the conceded facts he had no rights in the premises, having divested himself of them.
. But it is contended that the probate judge had not the power, in the absence of the father and without notice to him, to determine the question of abandonment by him; and further, that if the statute is to be so construed as that it confers upon the mother in such case as this the power to make such relinquishment without notice to or consent of the father, then the statute deprives the father of his sacred rights without due process of law, and is unconstitutional.
We will examine these two contentions in their order.
What is abandonment? It is simply the evidentiary fact which proves the ultimate fact of relinquishment; in other words, the relinquishment of one’s rights is the effect and result of one’s abandonment of those rights. As we have seen, this relinquishment “may be either by a deed or other “instrument in writing, or it may be by parol or by abandonment or by turning the child out of the house,”- etc. Commonwealth v. Doughtery, supra.
In this ease it was by abandonment, which I conceive in cases of this kind to be the strongest possible kind of relinquishment; but suppose that instead it had been by deed executed by the father and the mother had produced the deed, could it in such a case be successfully contended that in order to enable the judge to determine the due execution of the deed or its effect that notice to the father was necessary in
As to the constitutionality of the statute when construed as we construe it, we have this to say: An examination of the
Upon principle I am unable to conceive of any valid constitutional objection to the statute as we construe it. Under the facts of this case we are without doubt that the mother could lawfully exercise all the common law rights of the parents without any express consent of the father; and no reason occurs to us why she could not also under the circumstances of this, case exercise the statutory power of both parents with respect to the adoption of the child. Van Fleet, Collateral Attack, Sec. 408; Sewall v. Roberts, 115 Mass., at pp. 277-278.
The case of Ferguson v. Jones, 17th Oregon, 204, was strongly urged- upon us as being exactly in point with and decisive of this case. But from an examination of that case we are of opinion that except upon one minor proposition it substantially supports the views herein expressed. No attempt was made in that case to. show that the father had abandoned the child, and there is a clear intimation in the original opinion and also in the opinion upon rehearing that had such been the case, neither- his consent or notice to him would have been necessary. It is -true that the Oregon statute provides that in cases where the- parent has abandoned his child the court may proceed as if he- were dead, but in our opinion this is the rule in the absence of a statute.
■ But little stress was laid at the argument upon the fact found by the court that the father had prior to the adoption proceedings, obtained a decree of divorce from the mother, in which he was awarded the custody of the child. It appears from the findings that he not only abandoned the child before .the decree was obtained, but continued to abandon it even
Our conclusion upon the whole is that'Emily Powell, alias Emily Leonard, was the lawfully adopted child of the late Michael Powell, and that the district court of Laramie county erred in its decree.
The decree of that court is reversed and the cause remanded to it with instructions to further proceed in this matter in accordance with the views herein expressed.
