Appeal of Goshkarian

• Decision Date: 06 January 1930
• Citation: Appeal of Goshkarian, 148 A. 379, 110 Conn. 463 (Conn. 1930)
• Court: Connecticut Supreme Court
• Parties: APPEAL OF GOSHKARIAN.

148 A. 379

110 Conn. 463

APPEAL OF GOSHKARIAN.

Supreme Court of Errors of Connecticut.

January 6, 1930

Appeal from Superior Court, Fairfield County; John Richards Booth Judge.

An order and decree of the court of probate for the district of Norwalk approving an agreement of adoption of Florence Asderian between the Fairfield County Home for Dependent and Neglected Children and Louis and Rose Kozma was appealed by Rose Goshkarian to Superior Court, where a demurrer to answer was sustained, and the case tried to the court. From a judgment setting aside the decree of the Probate Court the Fairfield County Temporary Home and others, defendants appeal. Error, and judgment reversed and remanded with directions.

Wheeler C.J., and Haines, J., dissenting.

John J Cuneo, of South Norwalk, for appellants.

Edward J. Quinlan, of Norwalk, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

BANKS J.

The parents of Florence Asderian were divorced on January 27, 1922, when she was six years old, and her custody was awarded to her mother, and later, by a modification of the decree, to her father, with whom she lived until January 23, 1924. She was then neglected and uncared for and, with the knowledge of her father, who at that time had her in his sole care and custody, but without notice to her mother, she was committed by the city court of Bridgeport to the Fairfield County Home for Dependent and Neglected Children. Her mother, the appellant, had married Joseph Goshkarian, and was living in New York City. She learned that Florence had been committed to the county home and visited her there, but made no attempt to obtain her custody and control, and declined to do so while Florence was at the home. No appeal from the order of commitment was ever taken by Florence, or by her father or mother. On May 16, 1925, she was placed by the management of the home with Louis and Rose Kozma of Westport, and has lived with them ever since. Her father, Asderian, died on April 24, 1926. Since his death no further steps have been taken to remove her mother as sole surviving natural guardian. On January 19, 1927, the board of management of the county home entered into an agreement with Louis and Rose Kozma for the adoption of Florence, who was then eleven years old, which was submitted to the Court of Probate for the district of Norwalk for its approval and was approved by the court. No notice of the proceeding in the probate court was given to the mother, Rose Goshkarian, who was then living in New York City; but she learned of it more than a month later and took an appeal to the superior court. That court held that the board of management of the county home had no authority to give Florence in adoption without either the removal of Rose Goshkarian as her guardian, or her consent to the adoption, and set aside the decree of the probate court.

The adoption of a minor child, and the giving of it in adoption to persons other than its natural parents, is a procedure, and creates a status, unknown to the common law. Being of purely statutory origin, a legal adoption results if the statutory procedure is followed, but fails if any essential requirement of the statute is not complied with. Our controlling statute, section 4878 of the General Statutes, is printed in the footnote.^[1]

It is not claimed that the board of management of the county home, in giving the child Florence in adoption, failed to comply with any of the requirements of the statute. The trial court held, notwithstanding, that the statute conferred no authority upon the board of management to take such action, without the consent of the mother, Rose Goshkarian, until she had been formally removed as natural guardian pursuant to General Statutes, § 4861. Primarily the parents are entitled to the custody and control of their minor children and at common law this right inhered in the father to the exclusion of the mother. Under section 4861, first enacted in 1901, the rights of both parents are made equal, and upon the death of either the surviving parent becomes sole guardian. This statute adds nothing to the rights of the surviving parent. At common law the mother of a child upon the decease of its father became its natural guardian. Fields v. Law, 2 Root, 320. Section 4861 also provides for the removal as guardian of one or both of the parents upon a finding by the probate court having jurisdiction that either or both are unfit persons to have charge of such child, or have abandoned it, or neglected to make suitable provision for its support or education. Long prior to 1901, when this statute was first enacted, the Legislature had provided for the commitment to temporary homes of children who were neglected, dependent, or otherwise in need of care by the state. This legislation was first enacted in 1883. Public Acts of 1883, chap. 126. In chapter 328 of the Public Acts of 1895, it was enacted that the board of management of a temporary home " shall have full guardianship and control of each child committed to the temporary home for such county until such child shall have reached the age of eighteen years, or such guardianship and control shall have been legally transferred, or another guardian appointed by the probate court with the consent of said board" (section 3); also that " said board may give any such child, being an orphan or having been in charge of the county home for more than one year, in adoption in the same manner as any other legal guardian might do" (section 3). The first clause above quoted is now a part of section 1769 of the General Statutes, and the latter clause with slight changes was incorporated by the reviser in section 233 of the Revision of 1902, the adoption statute, which is now section 4878 printed in the footnote. This legislation clearly intrusts the care and custody of the children affected by it to the board of management of the county home to which they have been committed, and constitutes such board their legal guardian to the exclusion necessarily of any custody or control on the part of their parents if any. The history of the legislation also explains the absence in section 4878 of any provision for notice to, or consent by, the parents or guardian of any child given in adoption by the board of management of a county home, since the board itself has been given full guardianship and control of the child. We cannot say that the act of 1901 (now General Statutes, § 4878), which neither amended nor repealed any of the legislation regarding the care and custody of children committed to a county home, was intended to provide an exclusive method for taking from parents the guardianship and control of their children so long as they are inmates thereof. It would seem clear that its purpose was to provide a procedure for their removal in cases, which might not infrequently arise, where the conditions were not such as would justify or make expedient the commitment of the child to the county home under the previously enacted legislation.

It is found that the mother received no notice of the commitment of her daughter to the county home. The statute (Gen. St. § 1782, as amended by Public Acts of 1923, chap. 184, § 1) regulating the procedure upon such commitments does not require notice to the parent or parents of the child, and the validity of the statute is not questioned. She did know of the commitment, and visited her daughter at the county home, but made no attempt to obtain her custody and control, and in fact declined to do so. She could at any time have made application for the revocation of the order of commitment and the termination of the guardianship of the county home. General Statutes, § 1773.

It is suggested that the natural rights of a mother to the care, custody, and nurture of her daughter are invaded by permitting the daughter to be given in adoption to strangers without the mother's consent. It is perhaps a sufficient answer to this suggestion to say that the statute, whose validity has not been questioned, authorizes such procedure. But apart from this, it must be borne in mind that parents have no right of property in their minor children of which they cannot be deprived without their consent. Their rights are not absolute rights; they may be forfeited by their own conduct. The relation of parent and child is a status, not a contract, and that status may be altered or abrogated by the state as parens patriæ in the interests of society. The welfare of the child is paramount to all other considerations, and the right of the parent to its custody and control must yield to the state when, because of the neglect of its natural guardians, the state assumes its guardianship and protection. Whalen v. Olmstead, 61 Conn. 263, 267, 23 A. 964, 15 L.R.A. 593; Woodward's Appeal, 81 Conn. 152, 166, 70 A. 453; Purinton v. Jamrock, 195 Mass. 187, 80 N.E. 802, 18 L.R.A. (N. S.) 926; 1 Schouler, Dom. Rel. (5th Ed.) § 720.

When the custody of a child has been taken from its parents because it is neglected and uncared for, their consent to its adoption is not required, since they have already been fully devested of its custody and control. Purinton v. Jamrock supra; Fischer v. Meader, 95 N.J.Law, 59, 111 A. 503; In re Antonopulos, 171 A.D. 659, 157 N.Y.S. 587; Egoff v. Board of Children's Guardians of Madison County, 170 Ind. 238, 84 N.E. 151, 24 A.L.R. 427. In Lewis v. Klingberg, 100 Conn. 201, 123 A. 4, we held that a probate court had no jurisdiction to appoint a guardian for a child until its mother, who was its sole guardian, had been removed. In that case there had been no action by any authority affecting the status of the mother as the natural guardian of the child. Here, as we have seen, by virtue of...