Ex parte Hoines

• Decision Date: 17 April 1920
• Parties: Ex parte HOINES.
• Court: New Jersey Court of Chancery

112 A. 613

Ex parte HOINES.

Court of Chancery of New Jersey.

April 17, 1920.

In the matter of the application on habeas corpus of Elizabeth Hoines, Sr., for the custody of her children, Elizabeth and Mary, twins. Heard on petition, return, traverse, answer, and replication, and proofs taken in open court. Custody of children awarded to petitioner.

See, also, Ex parte Kirschner, 111 Atl. 737. Edward Stover, of Hoboken, for petitioner.

Thomas McCran, Atty. Gen., and Francis H. McGee, Asst. Atty. Gen., for respondents.

STEVENSON, V. C. The writ of habeas corpus was employed in this case not to liberate the infant children from imprisonment or restraint of any kind. The writ was merely ancillary to the exercise of the jurisdiction of the Court of Chancery of New Jersey as parens patriae to determine the custody of infants who are brought within the control of the court by the writ. Baird v. Baird and Torrey, 19 N. J. Eq. 481; Buckley v. Perrine, 54 N. J. Eq. 285, 293, 34 Atl. 1054 et seq.

1. The important facts are as follows: The petitioner is living in a state of separation from her husband, who is not made a party to this proceeding. The evidence indicates that the husband is an irresponsible man of bad habits, who has deserted his wife and children at various times and for various periods. In 1915 the wife was caring for these two children, who are twins, then nine months old, but was unable by reason of illness or other adverse conditions to work for their support and her own; her husband having deserted her. Accordingly she applied for relief to the poormaster of Jersey City and was by him committed to the almshouse. The infant children were also in form committed to that institution.

The regularity and legality of the commitment of these two children is one of the questions raised in this case. The papers appear to have been altogether irregular, inasmuch as they recite that application for relief had been made by the children themselves to the poormaster. It is contended that such infants cannot be committed by the poormaster to an almshouse upon the application of any one on their behalf; that if the poormaster takes cognizance of the situation of abandoned pauper children he must proceed before a magistrate under the "Act concerning the welfare of children." L. 1915, p. 441, amended L. 1918, p. 217.

The State Board of Children's Guardians, having received notice that these children had in fact "become public charges," proceeded to assume the "care and general supervision over" them (2 Comp. St. p. 2820, § 64), and subsequently placed them in care of a family selected by the Board. Later the Board, in the exercise of its discretion, returned the children to their parents, who had become reunited, and who remained living together for a time.

There seems to be room to argue that this action of the Board was a surrender of its right of custody pursuant to the statute. 2 Comp. St. p. 2821, § 69. I received the impression from the testimony that the agents of the Board undertook only temporarily or experimentally to surrender or return the children to their parents; but I think it is very questionable whether by giving up the children in fact to their parents the Board did not terminate its right of custody as "the legal guardian" of the children which the statute (section 69) vests in the Board as against the parents. I think, however, that we may leave this question undetermined.

After a time the parents separated again, and the petitioner and the two children with whose custody we are dealing, and a third child, which the petitioner had born subsequently, became public charges in Boston, and were returned by the poor authorities of Boston to the poor authorities of Jersey City. The mother was again committed to the almshouse and the Board reassumed the custody of the children and placed them with another family, with whom they have since resided. The persons with whom the children are living, Mr. and Mrs. Grayson, have no children of their own, and appear to be in every way qualified to give, and they have given, the children a plain but comfortable home.

The mother having permanently separated from her worthless husband and having recovered her health has, for about a year past, been employed as forewoman in a candy factory in Hoboken, where she was employed before her marriage. She earns $20 a week. She is living with a man and wife named Penzig, in Hoboken. This couple appear to be respectable and worthy people, having no children of their own, and they are desirous of having the petitioner's children live with her and with them. The undisputed evidence in the case shows that the mother is an entirely responsible, sober, industrious woman, whose character is vouched for by her employer and others. The home to which she desires to take her children is a four-room flat, where Mr. and Mrs. Penzig reside, on a business street in Hoboken, and she and her children have the opportunity of occupying at present a good-sized comfortable room. They will be lodged and hoarded at an expense of $10 per week, so that the mother will have about $500 per annum to provide herself and her children with clothing and to pay other expenses of their living, besides the expense of board and lodging.

A comparison of the situation of the children where they now are with Mr. and Mrs. Grayson and their situation if they are taken to reside with their mother, leaving the personal equation out of view, may be conceded to favor somewhat the home of the Graysons.

The Board has refused the application of the mother for the children, and the evidence seems to show, as the superintendent, Miss Day, distinctly indicated, that its refusal is largely founded upon a consideration of the condition of the home which these children formerly had when the petitioner was dependent for support upon her worthless husband, and also upon a comparison of the two possible homes which the children may now have. There can be no doubt that throughout this affair the officers of the Board have been governed by a sincere desire to do their duty as they understood it, and to serve the best interests of these little girls. It is possible, however, that they take somewhat of a departmental view of the case and overlook considerations affecting the welfare of these children which are connected with a mother's care and love.

If these infant children were living with their mother, as now it is possible for them to do, and were supported by her as children of an industrious, employed woman, there can be no doubt that there is no lawful power in the state of New Jersey through any court, board, or other agency, to take them from the petitioner and give them to somebody else, merely because that...