Bottoms v. Carlz

• Decision Date: 11 September 1941
• Citation: 36 N.E.2d 379,310 Mass. 29
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: OLGA B. BOTTOMS v. MANUEL J. CARLZ & another.

310 Mass. 29

36 N.E.2d 379

OLGA B. BOTTOMS v. MANUEL J. CARLZ & another.

Supreme Judicial Court of Massachusetts, Essex.

September 11, 1941

May 14, 1941.

Present: FIELD, C.

J., DONAHUE, DOLAN & RONAN, JJ.

Adoption. Parent and Child.

Guardian, Of minor. Minor. Probate Court, Report of material facts, Appeal Decree. Words, "Unfit.

"

Upon an appeal from a probate decree and the filing, under G. L. (Ter. Ed.) c 215, Section 11, of a report by the judge of material facts found by him, there can be no implication of further facts.

The status of adoptive parents of a minor established upon a probate decree under G. L. (Ter. Ed.) c. 210, Section 6, is that of natural parents and they cannot be deprived of the minor's custody without their written consent unless, after notice and hearing, they are found to be "unfit" under G L. (Ter. Ed.) c. 201, Section 5. A finding, that a man and his wife, who under G. L. (Ter. Ed.) c. 210,

Section 6, had adopted a child six months of age when the adoptive father was a retired fisherman sixty-nine years of age and his wife was an invalid sixty years of age, had become during the next six years so

"unfit" to have further custody of the child as to warrant a probate decree under c. 210, Section 5, appointing the child's natural mother as his guardian with custody, was not warranted where it appeared that there had been no material change in their condition other than that due to the natural passage of time, they were "morally, intellectually, and religiously . . . all that" could be desired, that their home was neat and clean and that the child was well fed and well clothed.

The circumstances leading to a decree of adoption of a minor child could not be considered as affecting the consequences of the decree in a subsequent proceeding by the natural parent against the adoptive parents for custody of the child.

PETITION, filed in the Probate Court for the county of Essex on August 31, 1940.

The case was heard by Phelan, J.

A. B. Cohen, for the respondents.

C.

H. Parsons, for the petitioner.

DOLAN, J. This is an appeal from a decree entered in the Probate Court appointing the petitioner guardian with custody of the person of Edward Albert Carlz, the minor child by adoption of the respondents Manuel J. and Mary A. Carlz. The evidence is not reported but the judge made a report of material facts found by him, at the request of the respondent appellants, under the provisions of G. L. (Ter. Ed.) c. 215, Section 11.

Material facts found by the judge are as follows: The child was born to the petitioner, who is now twenty-four years of age, on June 22, 1934. The respondents are her "uncle" and "aunt." She was brought up from childhood, together with her brother and the two sons and daughter of the respondents, in the respondents' home in Gloucester, where they own and occupy, in part, a three-tenement dwelling. The respondent Manuel was a fisherman, and comfortably supported his own family as well as the petitioner and her brother. Due to an injury, received in 1930, Manuel, who is now seventy-five years of age, retired, and since that time has been unable to do any work other than chores about the house. His wife, the respondent Mary, who is sixty-six years old, has been confined to her bed for the past seven years by reason of an illness which appears to be "permanent." The present members of the household are the respondents, their daughter Viola Carlz, who is thirty-three years of age, and the child Edward.

The petitioner was a high school student, seventeen years of age, when she gave birth to the child. After his birth his putative father was complained of in the District Court, where a finding of paternity was made. Pending an appeal taken by him counsel for the respondents told them in the presence of the petitioner that, in order to effect a monetary settlement, it would be necessary to procure a decree of adoption. The respondents agreed to adopt the child at that time and said "that they had always taken care of the petitioner and that they would continue caring for her and her child, and that if at some time in the future she was married or had a home of her own, she could always take the child, and that it was always to be her child." The respondents' petition for adoption of the child was allowed on January 9, 1935.

The petitioner continued up to October, 1937, to live in the home of the respondents with the child, who occupied the same room with her and the respondents' daughter Viola, and took full charge of him with the exception of short periods when she was employed, during which the respondent Manuel cared for him in the daytime. In October, 1937, the petitioner married one Benjamin Bottoms, "a first class radio operator in the United States Coast Guard," and "lived in the immediate neighborhood for five months thereafter, calling daily at the respondents' home to care for the child. At the end of this time, being in ill health, she visited the home of her mother-in-law in Atlanta, Georgia, and remained there until the latter part of July, 1938, when she returned to Gloucester, and took up her residence with her husband in the home of the respondents." The child occupied the same room as the petitioner and her husband. In October, 1939, the petitioner and her husband established a home in Salem. From that time until July 4, 1940, the petitioner made regular visits to the respondents' home to see the child. On that date a discussion arose as to the petitioner's right to "take the child out," and she made demand on the respondent Mary to give the child up. The demand was refused; the petitioner took the child from the house, but upon complaint being made to the police, returned him "immediately."

Since October, 1939, the child has been "occupying the same bed" with the respondents' daughter Viola. She bears an excellent reputation, and is employed as a clerk from 9 A.M. to 6 P.M. She washes and dresses the child and takes him to school each morning. The respondent Manuel prepares the child's lunch at noon, does some housework and assists in the care of his wife. When the child returns from school at 4 P.M. he plays with children of his own age in the immediate vicinity, but is "not [then] under the supervision of anyone in the respondents' home." Viola prepares the meal for the family at 6:30 P.M. and shortly thereafter puts the child to bed. "The respondents have no means of support other than the net income from the three-tenement house above mentioned, and contributions from their children [other than the adopted child Edward], two of whom are married and live elsewhere." (There is no finding that this income is inadequate for the support of the household.)

The respondents are highly recommended as honorable citizens and "morally intellectually, and religiously they are all that can be desired." Their home is neat and clean. The child is well fed, and well clothed, and there has been "no material change other than the natural passage of time in the condition of the respondents from the time of the adoption up to the date of" hearings before the judge. The judge, however, found that because of advanced years and physical infirmities the respondents are not as capable of caring for the child as they were of caring for their own children, and...