Ellis v. Doherty
| Decision Date | 24 July 1956 |
| Parties | Melvin B. ELLIS et al. v. Marjorie J. DOHERTY 1 (and companion cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James Zisman, Roxbury, for petitioners.
John F. McAuliffe, Boston, John J. Sullivan, Jr., Boston, for respondent.
Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.
These are eighteen appeals (not counting four that have been waived) by Melvin B. Ellis and Frances V. Ellis, his wife, from orders or decrees of the Probate Court for the County of Norfolk. These appeals are brought here in two separate records, and all relate in one way or another to the adoption, guardianship, or custody of the illegitimate minor child McCoy, also known as Hildie C. Ellis.
For present purposes it is sufficient to begin with the decision of this court on February 14, 1955, reported in 332 Mass. 254, 124 N.E.2d 266. In that decision this court affirmed a decree entered in June, 1953, dismissing the appellants' petition for adoption of the child, which had been filed in 1951. At the time of the dismissal of the petition the child was about two years of age. She has been in the possession of the appellants almost from birth. The mother at first consented to the petition of the appellants to adopt her, but later was allowed to withdraw that consent by decree of the Probate Court which was also affirmed in Ellis v. McCoy, 332 Mass. 254, 124 N.E.2d 266. Further facts are stated in the opinion in that case and need not be repeated here.
It appears that on April 12, 1955, after the rescript of this court affirming the decree of the Probate Court dismissing the appellants' petition for adoption, the Probate Court, acting under the authority of G.L. (Ter.Ed.) c. 201, §§ 14, 15, appointed the appellee, the mother of the child, temporary guardian with custody. The powers of the temporary guardian were not suspended by the appeal. Section 14. Compare G.L. (Ter.Ed.) c. 215, § 22, applicable in the case of a permanent guardian. Upon the appointment of the temporary guardian with custody it became the legal duty of the appellants to turn the child over to her. This they did not do. Instead, as is shown by affidavit filed with the appellee's motions to dismiss these appeals and not controverted, the appellants 'disappeared,' and a guardian ad litem reports that they are not at their residence, and that he has been unable to locate them or to determine the whereabouts of the child. At the argument in ...
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