215 A.D. 38 | N.Y. App. Div. | 1925
The custody of Vernon Owen Pickle, a child six years of age, is the subject of this proceeding.
Vernon is the son of the relator, Mabel Pickle, and her former husband, Lyle Pickle, who were married in the city of Cleveland, on the 30th day of December, 1918. Mabel Pickle was at that time a few months over sixteen years of age, and Lyle Pickle was twenty-two. Vernon was born in Cleveland on November 24, 1919. The young people had known each other at the time of their marriage for about a year, during which period Lyle Pickle had been living with his parents, the defendants Henry and Bertha Pickle, in Cleveland, in a rooming house conducted by the relator’s mother. After their marriage the young couple lived in various places, including Cleveland and Toledo in the State of Ohio, and Hornell, in the State of New York. Finally in the month of June,
The 24th day of August, 1920, is an important date in the history of the relator. On that day Mabel and the defendant Bertha Pickle were alone with the baby in the kitchen when a woman, whom Bertha Pickle did not recognize, came to the door, told Bertha Pickle that she was ill, said that she and others were traveling through Fremont and asked if she could have a cup of hot tea or coffee. When Bertha Pickle went to get the tea, this woman gave to the relator a note, which read as follows:
“ "Wednesday
''Mabel,
“ Grab the baby and run. A big machine outside, four people in it. This is your last chance. Come down a purpose for you. Have clothes for you and things for the baby, so do not tarry even if you have to come in your nightgown. We are going south. There is no chance of our plans failing as every thing has been thought out.”
Bertha Pickle made the tea and brought the woman a cup of it, and the woman then inquired the way to Buffalo. Bertha Pickle could give directions for only a short distance. Mabel then said: “ I’ll go over to grandfather’s; they have a map there.
The testimony given by Bertha Pickle in relation to these events is corroborated by Mabel, except that according to Mabel’s version she said to the baby, “ Come on Vernon, I will take you over to grandfather’s,” and Bertha Pickle interposed, saying: “ No, you can go, but my son’s baby you will never take.” These expressions seem hardly reasonable when we remember the age of the child; that the mother of the child was merely going to get a map from the neighboring house, and the grandmother of the child had no knowledge, and quite evidently no thought of any intended absence of Mabel except that necessitated by fetching the map.
The strange woman left the house shortly afterwards and both she and Mabel entered a waiting automobile and drove away without further word to any one.
Within two months of this time Lyle Pickle went to Cleveland, met his wife and talked about a possible reconciliation but without effect. At about the beginning of the year 1921 Lyle Pickle again went to Cleveland to see her for the same purpose, and while there process was served upon him in an action in an Ohio court of competent jurisdiction for a divorce on the ground of gross neglect of duty and extreme cruelty. The complaint was not served with the process which began the action. Lyle Pickle did not appear in the divorce action, and on the 18th day of June, 1921, a judgment of divorce was granted Mabel Pickle, which also awarded her the custody of her son Vernon.
About two or three weeks before the divorce action was instituted, however, a proceeding was begun in the Surrogate’s Court of Steuben county for the adoption of the child Vernon by bis grandparents, Henry and Bertha Pickle, and on December 14, 1920, upon the consent of the child’s father, Lyle, and the child’s grandparents, Henry and Bertha Pickle, and upon the allegation that the mother, the relator, had abandoned the child, a decree was granted allowing and confirming the adoption of Vernon by Ms grandparents, and.ordering that “ the said minor Vernon Owen Pickle shall hereafter be regarded and treated in all respects as the cMld of the said Henry Pickle and Bertha Pickle.” TMs decree
Mabel Pickle testified that she knew when she went away that the baby , would be well taken care of by his grandmother, and there is proof as well as a concession upon the record that the child has been well cared for at the home of his grandparents.
Relying on the divorce obtained by the relator, Lyle Pickle married in the State of Pennsylvania, where he is now living with his wife.
We now come to another episode which occurred during the latter part of June, 1925. About June twenty-fourth the relator, together with her sister, Merle Watson, and her sister’s husband, proceeded to Steuben county to get possession of Vernon. She consulted counsel and was advised that she was apt to be arrested if she took the baby without an order from the New York courts. Nevertheless, on June twenty-sixth she and her sister, with two men, one of whom was the sheriff of Steuben county, went to the residence of the defendants Henry and Bertha Pickle. Bertha was at that time alone in the house with the child who was asleep. The relator and her sister with two men came to the door. Bertha Pickle recognized Mabel and her sister. Mabel said she wanted to see the baby. Bertha replied that she could not see him then because he was asleep. Mabel said: “Then I will wait until he awakens.” Bertha said that they could not come in because she was there alone and two strange men were with them, and she did
An information was promptly laid before a justice of the peace charging Mabel Pickle with assault, and on this information a warrant was issued, in consequence of which Mabel Pickle, the relator, was taken into custody by the sheriff of Erie county, and while in such custody had the child Vernon with her. This accounts for the sheriff of Erie county being made a defendant in this proceeding.
The petition of Mabel Pickle for a writ of habeas corpus is dated June 29, 1925. The order for the writ was granted June 29, 1925, and the writ was made returnable at two o’clock in the afternoon of the same day. At that time counsel appeared for the defendants Henry and Bertha Pickle, and moved to dismiss the writ on several grounds, one of them being that the writ had not been served on such defendants. The court denied the motion and ordered the hearing to proceed. Although no return had been filed, evidence was received without objection as to the claims, of the respective parties. The hearings closed on July first, and on July second a final order was granted discharging the child Vernon “ from the custody of the sheriff of Erie County or any other person detaining him, and from further restraint under and by virtue of * * * the order of adoption, * * * ” and ordering “ that said order of adoption is null and void as no notice of the proceedings was given to the mother of said Vernon Pickle, and she had not abandoned the child,” and giving the child into the custody of his mother, Mabel Pickle.
Under these circumstances we have determined to treat the case as though a return had been filed setting forth (a) the abandonment of the child by his mother upon August 24, 1920; (b) the decree of adoption, and (c) that the best interests of the child
Assuming as we must that the judgment of divorce is valid, it constitutes a conclusive determination of the right to the custody of the child as between the parents upon the facts as they existed at the time of the granting of such judgment. (People ex rel. Allen v. Allen, 40 Hun, 611.) It is not conclusive upon others than the parties to the action. (Matter of de Saulles, 101 Misc. 447, 459.) The defendants Henry and Bertha Pickle do not found their claim to the custody of the child upon the authority of the child’s father, but upon an order of adoption granted by the Surrogate’s Court which in turn has its basis in the welfare of the child itself. The adoption proceeding antedates the beginning of the divorce action. The statute relating to the adoption of children provides that the consent of a parent who has abandoned the child is unnecessary. (Dom. Rel. Law, § 111, as amd. by Laws of 1913, chap. 569, and Laws of 1915, chap. 352; since amd. by Laws of 1921, chap. 655; Laws of 1922, chap. 628, and Laws of 1924, chap. 323.) The statute contains no express provision requiring notice to a parent that he or she may be heard on the question of abandonment. Without such notice, however, either actual or constructive, an adjudication cannot be made that will be conclusive on the parent on that issue. (People ex rel. Lentino v. Feser, 195 App. Div. 90; People ex rel. Cornelius v. Callan, 69 Misc. 187.) Somewhere, either in the Surrogate’s Court, or in some proceeding like the one now before the court, Mabel Pickle is entitled to attack the finding of abandonment made in the adoption proceeding. We will assume that she has the right to raise that question in this proceeding. The -order of adoption, however, is not void or voidable because of her right to attack it, but is valid unless the finding of abandonment was erroneously made. (People ex rel. Lentino v. Feser, supra; Matter of Antonopulos, 171 App. Div. 659, 660.) In our opinion, however, the finding of an abandonment before December 14, 1920, was not erroneous. Her conduct, when she left Fremont in August, 1920, stated above, impels that conclusion. Her later conduct confirms it. Youth and its irresponsibility, loneliness of country fife, even cruel treatment by her husband, are insufficient to alter the fact. Abandonment is conclusively established, and the relator has not successfully attacked the validity of the decree of adoption.
It was open to the relator, despite the legality of the adoption proceeding, to found a claim to the custody of the child on the best interests of the boy himself. However, the record is barren of proof to show that the welfare of Vernon would be improved by changing his environment.
The order should be reversed, with costs, the writ dismissed, ■ and the child Vernon Owen Pickle ordered to be returned to his adopted parents, Henry and Bertha Pickle.
Hubbs, P. J., Clark, Crouch and Taylor, JJ., concur.
Order reversed on the law and facts and writ dismissed, and the child Vernon Owen Pickle ordered returned to his adopted parents.