Purinton v. Jamrock, 80 N.E. 802

Purinton v. Jamrock

80 N.E. 802

Mass.

1907

Check Treatment

Sheldon, J.

We think it manifest that the ruling by which the resolution passed by the State board of charity on March 18, .1904, was excluded was correct. Indeed, there has been no direct argument to the contrary, although, as this exception is referred to in the opening.statement of the respondent’s brief, . we have not felt at liberty to treat it as waived. The views of • the members of the board, stated in that resolution, however commеndable in themselves were not material to any issues involved in the hearing. It was the duty of the court itself to *197pass upon all disputed questions of law and of fact. Brunette v. Lowell Flectric Light Corp. 194 Mass. 407. Nor could this resolution be received to show that the board refused to consent to the adoрtion prayed for. No such consent was required by the statute; R. L. c. 154, §§ 2, 8; and the board had appeared in the Probate Court by the Attorney General and neither consented nor objected to the adoption. For the same reasons the effect of the vote of the board relating to the removal of Kate Jamrock from the family of the petitioners was properly limited; and it follows that the sixth request for rulings was rightly refused.

Statutes relating to adoption are in alteration of the common law and must be strictly followed in all essential particulars. Foster v. Waterman, 124 Mass. 592, 594, 595. Johnson v. Terry, 34 Conn. 259. Watts v. Dali, 184 Ill. 86. Sarazin v. Union Railroad, 153 Mo. 479. Furgeson v. Jones, 17 Ore. 204. Ex parte Clark, 87 Cal. 638. The child whose adoption is sought is illegitimate. It is provided by our statute that “ illegitimacy shall in no case be expressly averred upon the record.” R. L. c. 154, § 2. Sts. 1902, c. 544, § 22; 1904, c. 302. This petition describes the child as the “child of Mary Jamrock, a single woman.” The respondent contends that this is an express averment of illegitimacy within the meaning of the statute, and that this violation of the statute makes the petition incurably bad and avoids the whole proceeding; that the defect is likе that which was considered in McDonald v. Green, 176 Mass. 113, and accordingly that no valid decree ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of adoption could be made.

Assuming that this contention is open to the respondent upon these exceptions, in our oрinion it cannot be sustained. The present statute is a substitute for the original provision of R. L. c. 154, § 2, that the fact of illegitimacy should in no case appear upon the record. This change of languagе must be presumed to have been made advisedly. There is a plain distinction between forbidding a fact to appear upon the record by inference or otherwise, and forbidding the pleader from making an express averment of that fact. If the statute had required an express averment of illegitimacy to be made, an inferential averment like that in question would not have been sufficient at cоmmon law. Atwood v. Caswell, 19 Pick. 493. Salt Lake City National *198Bank v. Hendrickson, 11 Vroom, 52, 56. Mower v. Burdick, 4 McLean, 7. Wadhams v. Swan, 109 Ill. 46. It is at most an inferential statement only, not such an express averment as the statute forbids. Nor, if this were otherwise, should such a defect deprive the court of its jurisdiction or make further procеedings upon the petition impossible. The Probate Court might if it chose order the words “ single woman ” to be stricken out of the petition. In the authority over the making up of the record given to it by R. L. c. 162, § 85, it might prevent thе final recording of any such averment. It is not every minor error that can deprive the court of jurisdiction. Sewall v. Roberts, 115 Mass. 262. Edds, appellant, 137 Mass. 346. The very statute which makes this prohibition provides for obtaining the consent “ of the mother only if the сhild is illegitimate,” and thus seems to contemplate some reference to that fact. It may have been for this reason that only the express averment of illegitimacy was forbidden.

The first request rightly was refusеd, upon the finding that the mother, for more than two years continuously prior to this petition, had suffered her child to be supported as a pauper by the Commonwealth. R. L. c. 154, § 3. Unless on the evidence this finding was еrroneous as a matter of law, it must stand; for the case comes before us only on exceptions, without any appeal. It is not contended that the child was not supported as a pauper. Opinion of the Justices, 11 Pick. 538. The respondent’s contention is that this finding was erroneous, because the proceedings by which the child was committed to the custody of the State board of charity and supported by the Commonwealth were adversary to her, that she was unable to resist them, that she did not acquiesce in them, and accordingly that she cannot properly be said to have “ suffered ” her child to be supported by the Cоmmonwealth. She contends that the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍word “ suffer ” implies not merely non-resistance to that which is done, but also an approval of or at least an acquiescence in it, with an ability to prevent it; and thаt she cannot be said to have suffered her child to be so supported unless she either approved of this result or failed to make reasonable efforts to prevent it. To show that this is the meaning tо be put upon the word “ suffer ” she cites, among other cases, Hobson v. Middle*199ton, 6 B. & C. 295; Bosley v. Davies, 1 Q. B. D. 84; Gregory v. United States, 17 Blatchf. 325; Selleck v. Selleck, 19 Conn. 501; Robertson v. Ongley Electric Co. 82 Hun, 585; Commonwealth v. Fourteen Bogs, 10 S. & R. 393; Collinsville v. Scanland, 58 Ill. 221. But, if we assume without deciding that this is the meaning of the word “ suffer ” as used in this statute, as it seems to have been assumed at the hearing, yet the facts found аnd the testimony are ample to show that she did so acquiesce in the support of her child as a pauper. She had made only a few cursory inquiries, the latest of which was much more than two years before the filing of the petition. She does not appear to have made any opposition to the adjudication by which the child was taken from her, although notified of the proceedings.. She took no appeal^ from that judgment. She never has sought to regain the custody of her child by application to the State board of charity under St. 1903, c. 334, § 3. . Wares, petitioner, 161 Mass. 70. The very complaint upon which the adjudication was made charges, not the poverty of the mother, but her “neglect, crime, drunkenness or other vice.” It rested upon what must now be taken to have been her voluntary acts and omissions. On all the evidenсe, we are satisfied that the finding made was fully warranted.

The other requests for rulings seem to us to have been disposed of by the findings. It is undoubtedly the general policy of the Commonwealth to secure to those of its wards who are children of tender years the right to be brought up, where this is reasonably practicable, in the religion of their parents. St. 1905, c. 464, § 1. But it is the right of the children that is protected by this statute, The rights of the рarents are still regulated by the same principles as before. The mother of an illegitimate child has doubtless all the rights of other parents. Wright v. Wright, 2 Mass. 109. Barnardo v. McHugh, [1891] A. C. 388. Regina v. Nash, 10 Q. B. D. 454. Rex v. New, 20 T. L. R. 583. Kerrigan v. Hall, 4 Fraser, Ct. of Sess. 10. But in such a case as this it is not the rights of the parent that are chiefly to be considered. The first and paramount duty is to consult the welfare of the child. The wishes of the parent as to the religious education and surroundings of the child are *200entitled to weight; if there is nothing to put in the balance against them, ordinarily they will be. decisive. If, however, those wishes cannot be carried into effect without sacrificing what the court sees to be for the welfare of thе child, they must so far be disregarded. The court will not itself prefer one church to another, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍but will act without bias for the welfare of the child under the circumstances of each case. This is the fair consеnsus of judicial opinion, although a difference of circumstances has caused the use of different expressions and the reaching of different results in the different cases. As was said in substance in F. v. F., [1902] 1 Ch. 688, the parents’ religion is prima facie the infant’s rеligion, and the infant should be brought up in that religion and protected against disturbing influences from persons of a different religious faith; but the infant’s welfare must be first of all regarded and its requirements must be treated as pаramount. See Stourton v. Stourton, 8 DeG., M. & G. 760; Davis v. Davis, 10 W. Rep. 245; In re Nevin, [1891] 2 Ch. 299; In re McGrath, [1892] 2 Ch. 496; S. C. (on appeal) [1898] 1 Ch. 143; In re Meades, Ir. R. 5 Eq. 98; Matter of Jacquet, 40 N. Y. Misc. 575; Matter of De Marcellin, 24 Hun, 207; In re Turner, 4 C. E. Green, 433. Cases like The Queen v. Williams, 58 L. J. (N. S.) Q. B. 176, The Queen v. Barnardo, 58 L. J. (N. S.) Q. B. 522, and The Queen v. Clarke, 7 El. & Bl. 186, in which the return of' a child to a parent who had lost no right was opposed by reason of a difference in religious belief, have no application here. In the present cаse the child had been for over four years in the family of the petitioners; they were found to be suitable persons to have her custody and education; a strong affection had grown up between hеr and them; her interests will be greatly promoted by the adoption. Under these circumstances the second, third and fifth requests were rightly refused.

Nor could the fourth request have been given. We do not regard the сonstitutionality of the provisions of R. L. c. 154, as to adoption, as now open to question. This was assumed in Stearns v. Allen, 183 Mass. 404. Similar statutes have been held to be constitutional in other States. In re Stevens, 83 Cal. 322. State v. Meyer, 63 Ind. 33. Nugent v. Powell, 4 Wyo. 173. Van Matre v. Sankey, 148 Ill. 536. The decision *201in People v. Congdon, 77 Mich. 851, turned upon another question. Nor have the parents any inherent right of property in their minor child, of which they can in no way be deprived without their consent. They are the natural ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍guardians of their child, entitled to its custody, with the right to appropriate its earnings, and may recover damages for any interference with their rights by a wrongdoer. Morgan v. Pacific Mills, 158 Mass. 402. But this right is not an absolute and uncontrollable one. It will not be enforced to the detriment or destruction of the hаppiness and well being of the child. See the strong opinion of Brewer, J. in Chapsky v. Wood, 26 Kans. 650. The same doctrine is laid down in Clark v. Bayer, 32 Ohio St. 299, 310. As the child owes allegiance to the government of the country of its birth, so it is entitled to the protection of that government, which must consult its welfare, comfort and interests in regulating its custody during its minority. Mercein v. People, 25 Wend. 64, 103. United States v. Creen, 3 Mason, 482, 485. The right of the parents is not an absolute right of property, but is in the nature of a trust reposed in them, and is subject to their correlative duty to care for and protect the child; and the law secures their right only so long as they shall discharge their obligation. Nugent v. Powell, 4 Wyo. 173. Grishwiler v. Bodes, 4 Ohio St. 615. Ex parte Crouse, 4 Whart. 9, 11.

Nor has this mother been discriminated against by reason of her poverty. It appears that she wаs employed in a cotton mill; and there is nothing to overcome the presumption that she was able to support her child. The custody of her child was taken from her by reason of her misconduct; she has acquiesced in this, and for several years has suffered the child to be supported as a pauper by the Commonwealth. Under these circumstances, the statute may properly provide that hеr consent to its adoption shall not be necessary. Wellesley v. Wellesley, 2 Bligh, (N. S.) 124, 129, 133. In re Moore, 11 Ir. C. L. 1. See the statutes and cases cited in 1 Am. & Eng. Encyc. of Law, (2d ed.) 729, and in 1 Cyc. 922.

Accordingly the fourth request could not have been given.

We have treated the questions arising upon these exceptions as ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍if the effect of this decree of adoption would be to entitle *202the petitioners at once to the custody and control of the child. But in this case she is still in the custody of the State board of charity, and apparently will remain so until she shall come of age or that board shall consider the object of the commitment accomplished. St. 1903, c. 334, § 3. Wares, petitioner, 161 Mass. 70.

Exceptions overruled.