Beloin v. Bullett

• Decision Date: 31 October 1941
• Parties: BELOIN et ux. v. BULLETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 206

37 N.E.2d 483

BELOIN et ux.

v.BULLETT.

Supreme Judicial Court of Massachusetts, Hampshire.

Oct. 31, 1941.

Report from Probate Court, Hampshire County; Welch, Judge.

Petition by Hector J. Beloin and his wife for adoption of the minor child of George H. and Mary G. Bullett, wherein the case came before the Supreme Judicial Court upon the report and reservation of the judge made after hearing for final determination.

Petition ordered dismissed.

Argued before FIELD, C. J., and QUA, DOLAN, COX, and RONAN, JJ.E. L. O'Brien, of Northampton, for petitioners.

No argument or brief for respondent.

DOLAN, Justice.

This is a petition of Hector J. Beloin and his wife, Stella M. Beloin, for adoption of the minor child of George H. and Harry G. Bullett. The case comes before us upon the report and reservation of the judge made after hearing for final determination. G.L.(Ter.Ed.) c. 215, § 13.

Findings of fact made by the judge may be summarized as follows: Carolyn Ann Bullett, the child sought to be adopted, was born April 15, 1935. Her father consented in writing to the proposed adoption. Her mother, the respondent, did not assent and was represented at the hearing by counsel and opposed the granting of the petition. The parents of the child were married in New Hampshire in 1934, and had three children, Carolyn; Cathryn, born in July, 1936; and Patricia, born in 1937. The children and their parents were living together at Greenfield in this Commonwealth on September 18, 1938. At that time the respondent left the home without cause. She and her husband have not lived together since that date and ‘within twenty-four hours [thereafter] the children were placed in foster homes.’ In June, 1939, they were placed in very good homes. Carolyn, hereinafter referred to as the child, was placed in the home of the petitioners. The father of the children contributed to the support of the children to the best of his ability until about March, 1939, when he abandoned them. His whereabouts were unknown until about September, 1940. He was then in Montana. The petition for adoption was filed September 20, 1940.

The petitioners were granted custody of the child by a decree of the Probate Court dated September 7, 1939, the respondent having been present ‘at that hearing.’ In the present proceeding the judge found that the qualifications of the petitioners are such as to present an unusual opportunity to secure by the adoption the child's future welfare and happiness.

Other material findings of the judge follow: The respondent was convicted on August 31, 1939 (in the District Court of Franklin), of lewd and lascivious cohabitation with one Charles F. Lawrence, and was sentenced to the reformatory for women. She was released on or about December 23, 1939, and immediately resumed keeping company with Lawrence. In January, 1940, she filed a libel for divorce against her husband in the Superior Court, Sullivan County, New Hampshire, and a decree of divorce was granted her at its ‘February term of 1940.’ Further findings bearing on those of the judge to the effect that the respondent was unfit to have the ‘custody’ of the child and that she was a ‘lewd, wanton and lascivious person’ need not be recited in detail. The judge also found that prior to her conviction the respondent did buy a few articles of clothing for the child, but that ‘She did neglect to provide proper care and maintenance for her child * * * from March, 1939, to the date of the hearing of this petition.’ (The report is dated January 21, 1941.) The judge further reported that he would enter a decree of adoption ‘if the mother's consent in writing was not required, because of her conviction of the offence * * * [set forth in his] findings of fact, and of her neglect to provide proper care and maintenance for * * * [the child].’

Except as otherwise provided in G.L.(Ter.Ed.) c. 210, a decree for adoption shall not be made without the written consent of the child's lawful parents (section 2). By section 3, it is provided in part that the consent of a parent is not required ‘if such person has been convicted of being a common night walker or a lewd, wanton and lascivious person, and neglects to provide proper care and maintenance for [the] child.’ G.L.(Ter.Ed.) c. 272, § 16, provides as follows: ‘A man and woman who, not being married to each other, lewdly and lasciviously associate and cohabit together, or a man or woman, married or unmarried, who is guilty of open and gross lewdness and lascivious behavior, shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than three hundred dollars.’ Section 53 of the same chapter provides in part for the punishment of ‘common nightwalkers * * * lewd, wanton and lascivious persons in speech or behavior,’ the penalty therefor being imprisonment for not more than six months or a fine not exceeding $200.

It thus appears that these statutes define separate and distinct crimes, with much more severe penalties fixed for the first than for the second crime. The complaint against the respondent and Lawrence was phrased in the language of section 16, charging that, ‘not being married to each other, [they] lewdly and lasciviously associate[d] and cohabit[ed] together’ contrary to the statute in such case made and provided. The record of their conviction is entitled ‘For Lewd and Lascivious Cohabitation.’ We think that it must be held that this conviction was of the crime described in section 16 and not of that described in section 53.

The language of G.L.(Ter.Ed.) c. 210, § 3, providing that the consent of a parent is not required ‘if such person has been convicted of being a common night walker or a lewd, wanton and lascivious person’ follows for the most part the descriptionof the crime set forth in G.L.(Ter.Ed.) c. 272, § 53. Had the words ‘in speech or behavior’ been added to the provisions of the adoption statute just referred to, it would have identified literally the crime described in section 53. The words of section 3 of chapter 210 are not those of section 16 of chapter 272 under which the respondent was convicted, but are more nearly descriptive of the crime described in section 53 of chapter 272. It would seem that upon the complaint against the respondent and Lawrence a conviction could not have resulted...