Graham v. Francis
| Decision Date | 05 March 1928 |
| Docket Number | 11786. |
| Citation | 265 P. 690,83 Colo. 346 |
| Parties | GRAHAM v. FRANCIS et ux. |
| Court | Colorado Supreme Court |
Error to District Court, Jefferson County; S.W. Johnson, Judge.
Adoption proceeding by Miles Francis and wife and habeas corpus proceedings by the father of the child and by Edith Graham for custody of the child sought to be adopted, in which Miles Francis and wife were permitted to adopt the child, were consolidated for review, when Edith Graham brought error.
Judgment affirmed.
Con K. O'Byrne and Albert E. Sherlock, both of Denver, for plaintiff in error.
John C. Vivian and Robert H. Kane, both of Denver for defendants in error.
The district court awarded to defendants in error the custody of a little girl, born in Colorado on March 21, 1921. A decree of adoption was also entered in their favor. Plaintiff in error, who is the child's mother, brings the case here for review and asks for a reversal.
The infant was born out of lawful wedlock and it is claimed that she was abandoned by her parents at birth or shortly thereafter. Defendants in error are husband and wife. In response to an advertisement in a Denver newspaper soon after the baby was born, they took her into their home in this state, where she is now, and ever since has been, nurtured and reared as their own child.
Three cases in the district court have been consolidated in this review, two in habeas corpus under chapter 146, C. L. 1921 and one an adoption proceeding under the statute (sections 5512 to 5515, C. L. 1921).
The first action was No. 2649, instituted under the latter act by petition of defendants in error, filed May 20, 1925, in the district court, praying for the adoption of the child, and that it be given their name. Petitioners give the date of the child's birth, and allege that the parents abandoned her at that time or soon thereafter, and that they still abandon her; that notwithstanding such abandonment, the mother of the infant has consented to such adoption, as will appear from her written consent filed in the cause; that it would be to the best interest of the child to be adopted by petitioners who pray for an order declaring said child to be their adopted daughter, capable of inheriting their joint and several estates, and for her change of name as above. They asked that a next friend be appointed by the court and that due notice of the application be given.
The the above petition the putative father of the child interposed written objections and prayed that he be awarded her custody. The mother also filed written objections, and said that her consent was obtained through misrepresentations; that she had revoked such consent, and joined in the father's request that the custody of the child be delivered to him. The father and mother both claimed in cause No. 2649 that the child's best interests would be subserved by awarding the care and custody of the child to the father.
The second case was No. 2650, a petition in habeas corpus filed by the father on May 21, 1925, against Francis and his wife, wherein the father sought to obtain such custody. Issue was joined on the answer of the foster parents, Francis and wife, and petitioner's replication thereto.
The third case, No. 2751, was likewise in habeas corpus, filed by the mother of the child, plaintiff in error, on June 27, 1926, against Francis and wife, defendant in error, to obtain custody of the infant. Issue was joined on the answer and cross-complaint of respondents. The mother has married another man since the child was born.
Various consolidated hearings were had in the above three cases. At first, the court, while not disturbing the custody and control of the child by the foster parents, refused their petition for its adoption, but later granted it, denied the father's and mother's petitions, and awarded such custody and control to the foster parents, Francis and his wife. The child's mother is the only one who assigns error.
1. We shall speak first of the habeas corpus proceedings, Nos. 2650 and 2751. The issues in both involved the right to the custody and control of the infant. In both, they were resolved in favor of defendants in error; in the first, against the child's father, and in the second, against the mother. The court had full and complete jurisdiction in the habeas corpus proceedings over the subject-matter and the parties. Breene v. Breene, 51 Colo. 342, 346, 117 P. 1000; Hudson v. Mattingley, 69 Colo. 528, 530, 195 P. 113. Courts of chancery, from the earliest times, have exercised a jurisdiction in the matter of the custody of infants. Hochheimer on Custody of Infants, 45. Allison v. Bryan, 26 Okl. 520, 109 P. 934, 30 L.R.A. (N. S.) 146, 138 Am.St.Rep. 988. 'At common law, jurisdiction over the writ was exercised by courts of chancery, as well as of King's Bench and common pleas.' Flynn v. Casper, 26 Colo.App. 344, 346, 144 P. 1137; Richards v. Collins, 45 N.J.Eq. 283, 17 A. 831, 14 Am.St.Rep. 726. 'In this jurisdiction it has long been held that every child is under the control of the state, and even the paternal right to its custody and control must yield to the interests and welfare of the child.' People v. Bolton, 27 Colo.App. 39, 43, 146 P. 489, 490. Such is the settled American doctrine. Hochheimer on Custody of Infants, 16, 17. 'The paramount and controlling question by which courts must be guided in proceedings affecting the custody of the infant is the interest and welfare of the child.' People v. Bolton, supra; Breene v. Breene, supra; McKercher v. Green, 13 Colo.App. 270, 58 P. 406; Wilson v. Mitchell, 48 Colo. 454, 111 P. 21, 30 L.R.A. (N. S.) 507; People v. Parks, 57 Colo. 458, 462, 141 P. 994; Hurd on Habeas Corpus, 461; Bailey on Habeas Corpus, 592.
2. Jurisdiction in habeas corpus having been full and complete, we are next interested in the propriety of the decision therein, first as to the claims of the father. Concerning the action instituted by him, No. 2650, it is enough to say that he has assigned no error thereon. In fact, he has made no appearance at all in this court in any of the above cases. This eliminates him, and makes it unnecessary to consider serious objections to him as proposed custodian of the infant, or the counter arguments on his behalf. We decline to disturb the judgment as to him.
3. As to the mother's rights as determined in habeas corpus: We remark on the record which shows that her mind went through at least four stages of fluctuating and unstable purposes: First, to permanently abandon the baby. The mother denies this, but the evidence is clear and convincing that such was the fact. Second, she decided to give the child to defendants in error and allow them to adopt her, evidenced by the mother's written consent thereto. Third, to renounce such consent, and give the custody to the father. Fourth, four or five years after the waif had been abandoned, but through the interposition of kind friends had found a happy home, the mother sought and now seeks to take the little girl away from her foster parents. Such caprice suggests a serious doubt as to whether even now plaintiff in error has any fixed or abiding desire to exercise the rights of motherhood.
It is easy to understand how some poor distressed mother, compelled to go to work out for a living, or for reasons beyond her control, might be forced to temporarily deliver her child into the keeping of another person. We have no such situation here. Each case must be determined on its own facts, and we shall decide no case except the one presented. It would serve no good purpose to relate in detail the painful and distressing circumstances shown by the evidence, nor even to unnecessarily reproach the parent. A similar case doubtless will never occur again. We simply remark that we are convinced that the trial court was right in its conclusions that it is by far to the best interests of the child that she remain where she is, and so we approve of the judgment in habeas corpus.
4. Adoption proceedings. Section 5512, C. L. 1921, reads:
'Any inhabitant of Colorado, not married or a husband and wife jointly may petition the district or county court of the courty of their residence or of the county being the residence of the person sought to be adopted, for leave to adopt a minor child * * * not theirs by birth and for a change...
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