Blue v. Boisvert.

• Decision Date: 16 February 1948
• Citation: 57 A.2d 498
• Parties: BLUE et al. v. BOISVERT.
• Court: Maine Supreme Court

57 A.2d 498

BLUE et al.

v.BOISVERT.

Supreme Judicial Court of Maine.

Feb. 16, 1948.

Exceptions from Superior Court, York County, at Law.

Habeas corpus proceeding by Albert Paul Blue and another against Nester Mary Boisvert to obtain custody of adopted child. On exceptions by respondent to a decree awarding custody to petitioners.

Exceptions sustained and writ quashed.

Gendron & Gendron and Titcomb & Siddall, all of Sanford, for plaintiff.

Simon Spill, and Lausier & Donahue, all of Biddeford, for defendant.

Before STURGIS, C. J., THAXTER, MURCHIE, TOMPKINS, and FELLOWS, JJ., and MANSER, Active Retired Justice.

TOMPKINS, Justice.

This cause came to the Supreme Judicial Court on exceptions by the respondent to the decree of the Justice of the Superior Court, in vacation. It is a habeas corpus proceeding. The proceeding was founded upon Chapter 113 of the Revised Statutes of 1944, which makes the remedy available to minors restrained of their liberty, on their own application or on the petition of a parent or guardian under sections 1, 3 and 4 of said Chapter. The case is not without its difficulties.

The essential facts on which it is grounded are as follows: The petitioners claim to be the adoptive parents of the child Robert Roland Boisvert, and that he is acting through the adoptive parents. The respondent is the mother and natural guardian, over whose objection the decree of adoption was made. Unfortunately the testimony was not reduced to writing, and the exceptions before the court relate solely to alleged errors of law in the decree of adoption and the habeas corpus proceedings. The exceptions to petition, the writ of habeas corpus, the return, the decree, attested copies of docket entries and adoption of Robert Roland Boisvert filed in the York County Probate Court by Albert Paul Blue and Viola Rita Blue dated May 14, 1946, the order of personal service thereon, attested copy of the decree, motion for dismissal of the petition of Nester Mary Boisvert, attested copy of the decree of the Probate Court in the county of York dated October 29, 1946, on the aforesaid petition for adoption, attested copy of motion and appointment of Nester Mary Boisvert guardian ad litem and next friend and the acceptance thereof under date of October 31, 1946, attested copy of the petition for adoption of Robert Roland Boisvert by Rose Alma Shaw dated February 28, 1946, order of notice thereon and decree dismissing the same, dated October 29, 1946, and the stipulation that no appeal bond was filed by Nester Mary Boisvert (the stipulation is not set forth in the case as it is not necessary to pass upon its contents, as will be disclosed later in the opinion) constitutes the entire record in the case.

From the record and finding of the Judge it appears that Nester Mary Boisvert obtained a decree of divorce from Raymond Boisvert on October 25, 1945, on the ground of gross and confirmed habits of intoxication, and the exclusive custody of their minor children Robert Roland and David James Boisvert was given to her; that Robert Roland Boisvert is alleged in the petition for adoption to have been born at Sanford on October 10, 1938; that on February 26, 1946, Rose Alma Shaw, maternal grandmother of the child, petitioned the Probate Court in York County for leave to adopt him; that Nester Mary Boisvert, mother, consented to this adoption and signed the consent clause. The court ordered this petition dismissed on October 29, 1946; that on May 14, 1946, Viola Rita Blue, paternal aunt, and Albert Paul Blue, her husband, both of Mesa in the county of Maricopa and State of Arizona, petitioned the same court for leave to adopt this child, with right of inheritance, and that the name of the child be changed to Roland Joseph Blue. Their petition stated that the father of said child ‘Has indorsed this petition and given his consent to the adoption therein proposed; and that the mother, having custody of said child under and by virtue of the decree of the Superior Court within and for said county of York, is unfit to have the custody of said child; that both parents have abandoned said child and ceased to provide for its support.’ Personal service was ordered to be made on the mother. Whether this notice was ever served or not does not appear in the record, but the record discloses that the mother appeared by her attorney and filed a motion that the petition for adoption be dismissed, alleging, among other things ‘That under and by virtue of the decree of divorce of the Superior Court within and for the county of York held at Alfred, at the October term 1945 thereof, the said Nester Mary Boisvert was granted the care and custody of said Robert Roland and David James Boisvert, both minors under the age of fourteen years; and that the said Nester Mary Boisvert has not given written consent to the petition for adoption of Robert Roland Boisvert dated May 14, 1946, filed by Albert Paul Blue and Viola Rita Blue.’ This motion for dismissal was filed July 18, 1946, and upon hearing on the 29th day of October 1946 the petition was overruled and dismissed by the Judge of Probate for said county.

The petition filed by Viola Rita and Albert Paul Blue for leave to adopt with change of name and rights of inheritance was granted by the Probate Court on October 29, 1946, and the Judge of Probate found the mother ‘Unfit to have the custody of the (child) Robert Roland Boisvert’ and both parents to ‘Have abandoned said child and ceased to provide for its support.’ On the 31st day of October 1946 the mother filed a motion asking to be appointed guardian ad litem and next friend of Robert Roland Boisvert, and the motion was granted and she was appointed. On the 15th day of November following she filed an appeal from the decree of adoption setting forth that ‘She is interested as mother and next friend of Robert Roland Boisvert,’ that ‘She is aggrieved’ by the decree of adoption and that ‘She hereby appeals therefrom,’ claiming her appeal to the Supreme Court of Probate, and filing her ‘Appeal and reasons for appeal’ but filed no appeal bond. Thereupon the adoptive parents claiming that the appeal was not properly perfected and consequently was void and completely inoperative, and that the time limit had expired, thus making the decree of adoption final and absolute, brought this habeas corpus proceeding asking that the child be ordered delivered to them; that the Court so found and ordered that the child be ‘Forthwith delivered to Albert P. Blue and Viola Rita Blue in accordance with the decree of adoption issued by the Probate Court on October 29, 1946.’ The respondent thereupon filed the exceptions which are before the Court. The exceptions are six in number.

The first exception contends that the Court erred in ruling and finding that the appeal ‘Was not properly taken.’

Second, the Court erred in that it failed to determine and declare whether the judgment of the Probate Court was valid or void, which finding the Court had no make in order to determine the legal status of the petitioners in their relationship toward the said minor child.

Third, the decree of adoption of the Probate Court was void because the mother of the minor child did not give written consent to such adoption, she having sole care and custody by virtue of the unannulled and unreversed decree of divorce, and that the Probate Court neglected to make a ruling on the motion to dismiss the petition, and that the juatice hearing the habeas corpus writ erred in disregarding the aforesaid decree of divorce, and in disregarding the lack of the written consent of the mother, required by law.

Fourth, that the decree of adoption of the Probate Court is void in that its decree found that both parents had abandoned the child and ceased to provide for his support, and which, if so, would require consent to be given by the legal guardian as required by law, and in disregarding the lack of written consent the court failed and erred.

Fifth, that the Court erred as to a matter of law for that it failed to determine what would be the paramount welfare and interest of said child, Robert Roland Boisvert, inasmuch as this was an habeas corpus proceeding wherein the welfare of the child was involved, and wherein the petitioners did not have an absolute vested right in his custody.

The sixth exception is omitted because it was not pressed by the respondent in her argument to the Court.

The question here involved is whether the Court erred on any one or more of the points raised by exception. The petitioners in the habeas corpus proceedings claim that there was no error made by the Court in any of the points raised by the exceptions.

The answer to the second, third and fourth exceptions, which we will first consider, depends upon the interpretation of the adoption statute, Sec. 36 of Chap. 145 of the Revised Statutes of 1944 as amended by Chap. 60 of the Laws of 1945. The section as amended reads as follows, quoting only those parts deemed applicable to this case: ‘Before such petition is granted, written consent to such adoption must be given by the child, if of the age of 14 years and by each of his living parents, if not hopelessly insane or intemperate; or, when a divorce has been decreed to either parent, written consent by the parent entitled to the custody of the child, personal notice of such petition to be given to the other parent if within the jurisdiction of the court, or if beyond the jurisdiction of the court or the residence is unknown such notice as the judge deems proper; or such consent by 1 parent when, after such notice to the other parent as the judge deems proper and practicable, such other parent is considered by the judge unfit to have the custody of the child. If there are no such parents, or if the parents have abandoned the child and ceased to provide for its support, consent may be given by the legal guardian; if no such guardian, then by the next of kin in the...