In re Gould

• Decision Date: 08 April 1913
• Citation: 174 Mich. 663,140 N.W. 1013
• Parties: In re GOULD.
• Court: Michigan Supreme Court

174 Mich. 663

140 N.W. 1013

In re GOULD.

Supreme Court of Michigan.

April 8, 1913.

Certiorari to Circuit Court, Ingham County; Charles B. Collingwood, Judge.

In the matter of an application for a writ of habeas corpus to obtain the custody of George Graham Gould, an infant. Judgment ordering the custody of the child to be delivered to petitioner, and another claimant brings certiorari. Judgment reversed.

Argued before STEERE, C. J., and MOORE, McALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ. Edward Cahill and Cummins & Nichols, all of Lansing, for appellant robinson.

C. W. & W. S. Foster, of Lansing, for appellees George Graham and Lydia Graham.

STEERE, J.

This case is presented by a writ of certiorari to review the action of the Ingham county circuit court in certain habeas corpus proceedings involving a contention between aunt and grandparents over the custody of their nephew and grandson, George Graham Gould, a boy nine years of age.

On August 19, 1912, said George Graham Gould was in the care and custody of, and resided with, his grandparents, George and Lydia Graham, at Lansing, Mich., when his aunt, Nina L. Robinson, of Detroit, Mich., presented a petition to, and obtained from, the circuit judge of Ingham county a writ of habeas corpus to inquire into the cause of his detention by his grandparents, alleging in her verified petition that she and her husband had legally adopted him and were by law entitled to his care and custody. The grandparents made return to said writ, admitting that the boy was in their custody and under their control, alleging their right thereto, and stating, among other things in substantiation of their claim, that, upon the death of the mother of said child, he was abandoned by his father, Duel L. Gould, since which time he had lived with, and been cared for by, them, they standing in the relation of parents to him; that they had never consented to his adoption by petitioner or any other person; and denying that petitioner had any legal right to the custody of their grandchild.

A hearing was had in open court upon the petition, writ, and return, all the parties in interest being present, and a small amount of testimony was then taken. Petitioner rested her right to the custody of the child on adoption papers issued to her and her husband by the Wayne county probate court, produced and properly proven, showing that on November 6, 1911, she and her husband, William H. Robinson, had, with the written consent of the father, adopted the child according to the statute authorizing such proceedings. At the conclusion of said hearing, the circuit court determined that petitioner and her husband were, by such adoption, the legal parents of the child, and ordered that he be surrendered to them by his grandparents, who thereupon obtained a writ of certiorari from this court to review such determination and order.

A contention over the custody of this boy between the same parties in fact and purpose, but not in form, was before this court under a different guise in the case of Graham v. Gardner, Probate Judge, 137 N. W. 223. The facts in this case are conceded by counsel to be the same as in that case, so far as they go, and are so well stated there that repetition here is unnecessary. A small amount of additional evidence, taken in this case, consists of proof of the adoption proceedings heretofore referred to, and the testimony of petitioner and the grandmother supplementing in detail certain matters only presented in a general way in the former case, which adds little of importance to what there appears, but will be adverted to later, so far as material.

In the case of Graham v. Gardner, supra, the grandparents, as result of some friction which had arisen over the custody of the boy, in which the aunt and grandmother each thought that the other had taken undue advantage of permission given for him to visit the other, instituted proceedings before the probate judge of Ingham county under Public Act No. 6, extra session of 1907, as amended by Public Act No. 310 of 1909, for the purpose of having the boy adjudicated a dependent and neglected child on the theory that the court might and would thereafter make an order legally awarding his care and custody to them. They had him with them and were tenderly caring for him at that time. The probate court, circuit court, and this court were unable to find that the child had become destitute, homeless, abandoned, or dependent upon the public for support, or habitually begged, or was without proper parental care or guardianship, within the meaning of that act, because it appeared that the petitioners themselves had at all times given him the best of parental care, support, schooling, training and guardianship, and therefore denied the relief prayed for, saying: ‘It is undisputed that the has an excellent home with his grandparents, who have heretofore cared for, and are anxious to care for, him in the future.’ It is the contention of petitioner's counsel that said decision thoroughly adjudicated the status of the father in relation to his child and determined that the father not only had not abandoned or neglected his offspring, but was entitled to his custody, and therefore as surviving parent could legally consent to and authenticate the child's adoption by the petitioner and her husband. This view appears to have been taken by the trial court in passing upon the questions raised in that proceeding.

The right of the father to the child as against the grandparents was not involved in that case as a controlling question, and was not directly passed upon. The case was not, in its true legal aspect, a proceeding to determine between contending parties who should have the custody of the child. It did not raise the question of his being taken from where he was, by a contending claimant, but called upon the court to first determine whether or not he was of the class of children mentioned in the statute, and, if so, then, under the statute, the court was asked to confirm existing conditions and leave him where he was, in the custody of his grandparents. The determination that he was not of that class was not based upon anything the father had done or not done with or for his child. There is little dispute over the facts in the present case. The trial court in awarding the custody of the child did not, as a mtter of fact, determine that the best interests of the child made it imperative that he should be awarded to the petitioner and her husband, but concluded that as a matter of law, under the letters of adoption, it was imperative to make such award.

[1] Had the court found, as a paramount consideration, that the welfare and best interests of the child did in fact demand that he be taken from the grandparents and turned over to the petitioner, this court could not in this proceeding review the trial court's finding of facts in that particular. Corrie v. Corrie, 42 Mich. 509, 4 N. W. 213;In re Sneden, 105 Mich. 61, 62 N. W. 1009,55 Am. St. Rep. 435;Carpenter v. Carpenter, 149 Mich. 141,112 N. W. 748. But the judgment was not based on conflicting evidence, and the questions presented for determination here are questions of law applied to undisputed facts. The decision of the trial court was: ‘The papers showing the adoption of George Graham, Gould by William O. Robinson and Nina L. Robinson, his wife, are legal and binding.’

Therefore we are to consider whether the adoption papers obtained by petitioner and her husband from the Wayne county probate court control the disposition of the child under the undisputed facts in this case. It is undisputed that they were obtained without the knowledge or consent of the boy or his grandparents, who at the time practically stood, as this court held in the former case, temporarily, at least, in loco parentis to him; that he and they then were in, and residents of, Lansing, Ingham county; and the juvenile court of the latter county, with jurisdiction to act, was, at the very time the adoption papers were obtained in Wayne county, engaged, with the boy before it, in a judicial inquiry as to his legal status. Those proceedings were pending from November 11 until December 7, 1911, and the petition for adoption was filed and order made by the Wayne county probate court on November 16,...