77 N.J. Eq. 593 | N.J. | 1910
Jessie A. Wood, the appellant, presented to the orphans court of the county of Essex a petition praying that she be authorized to adopt her minor niece, Loretta Wood, pursuant to the provisions of “An act concerning minors, their adoption, custody and maintenance” (P. L. 1902 p. 259), as amended in 1905 (P. L. 1905 p. 272). The application was resisted by the mother of the child, the present respondent, and, after a full hearing, the prayer of the appellant’s petition was granted and a decree of adoption made. From this decree the mother appealed to the prerogative court, and that court, after hearing, reversed the decree of the orphans court. The present appeal is from the decree of reversal.
Our examination of the ease satisfies us that the conclusion reached by the Essex orphans court was entirely justified by the proofs submitted and for the reasons set out in the following-opinion of Mr. Justice Ten Eyck, filed in that court:
“Loretta Wood, a child now twelve years old, is the niece of the petitioner, being the child of her brother Eobert Wood.
“Until 1902 all the parties lived in Summit. The petitioner and her sister then moved to Newark and have since lived there,
“The mother continued to allow Loretta to stay with her aunts, making no objection until June, 1908, when she wrote, saying
“After the father’s death, the third eldest child, Lucy, was also -taken by these two aunts and kept about two and a half years, a third aunt paying her expenses for board and clothes; the second eldest, Bertie, then being the only one remaining with the mother, the two jnungest being in the Eresh Air home.
“The aunts made no objection to Lucy’s going back, but wished to keep Loretta. They told the mother if she insisted on taking her, that they would charge board at $3 a week for the six years. They said they did this only because they thought it would induce the mother to leave her with them, as they knew she had no money.
“In November the mother went, with another woman, to the public school and when Loretta came out the mother, by advice of her counsel, took her and compelled her to go with her. The child cried and objected. She asked to be allowed to tell her aunts, but the mother refused, saying, ‘They didn’t consider me,_ why should I consider them ?’ Loretta- threatened to tell the school principal, but was not given the opportunity to do so. Her school companions followed them to the railroad station.
“The mother wrote the aunts, and Miss Jessie had a talk with her in Newark and afterwards in Summit. Mrs. Wood told her that she had taken the children home to bring them up as Catholics; that they had been bringing Loretta up to look down on her, and that she must, rough it like the others. The aunt offered to have her confirmed in Newark and bring her up as Catholic, but she refused. The aunt had seen a priest in Newark and he had said he would speak to the priest in Summit about it.
"The children’s ages now with Mrs. AVood are — Loretta twelve, Bertie ten, Lucy seven..
"Under the facts brought out at the hearing, some of which are shortly stated above, I am satisfied that Loretta was, at the ago of six, placed by the father, with the mother’s consent, in the care of her aunts, with the intention of having her brought up and educated by them. No objection to her schooling or on religious grounds was ever made by the mother. She had a .good home, loved her aunts and was loved by them. She attended the public schools in Newark and was brought up in a much better condition of life than was within the power of her parents to afford. They had a large family of small children, and it was no doubt a hard strain on them to look after and bring them up properly. The aunts had always provided Loretta’s clothes, even before they took her, and she had spent much of her time with them while they lived in Summit. She evidently was entirely happy and contented with them. She said she would not go back to her mother and threatened to run away if she took her back. I do not believe the evidence of the child, after she had been several months in her mother’s care, that her aunts'ever tried to poison her mind against her mother. I believe tire real state of the child’s mind was shown by her crying and objection to going when her mother took her away by force. The aunts impressed me as people of truthfulness and of unusual refinement and cultivation for their station in life, and no doubt are as fond of Loretta as they could be if she were their own child. The conduct of her father and mother during all the time she was there, and of the mother after the father’s death, showed their confidence in the aunts and belief that it was for Loretta’s welfare to remain there. The only reason why Mrs. AVood wanted to take her away evidently was to make some use of her and to have her hough it’ at home with her younger sisters. Not for Loretta’s benefit, but to keep her down to the level with the others. So far as the religious aspect is concerned, while the
“As to the objection that there can be no decree of adoption without the mother’s consent, I think the facts bring the case within the rule laid down in the case of Winans v. Luppie, 47 N. J. Eq. (2 Dick.) 302. While there has been no actual abandonment, there has been, in my opinion, such a course of conduct on the part of both the father and mother as to indicate that there was a settled intention to forego parental rights and to leave the child permanently in the care of her aunts, for the reason that it was considered by both parents to be for the child’s good. The mother should not now be allowed to reassert her rights to the child’s detriment.”
The decree of the prerogative court will be reversed.
For ajfirmoMce■ — None.
For reversal — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voori-iees, Minturn, Vreden-BURGTT, YbOOM, GRAY, DlLL, CONGDON-13.