In Re Petagno.

• Decision Date: 18 September 1946
• Docket Number: 157/95
• Citation: 48 A.2d 909
• Parties: In re PETAGNO.
• Court: New Jersey Court of Chancery

48 A.2d 909

In re PETAGNO.

157/95

Court of Chancery of New Jersey.

Sept. 18, 1946.

Proceeding in the matter of the application of Patsy Petagno for a writ of habeas corpus for the infant Donna Lee Piazza or Donna Lee Petagno, opposed by Emillia Piazza.

Decree awarding custody to Emillia Piazza advised.

Syllabus by the Court

1. The parens patriae jurisdiction of the Court of Chancery comprises illegitimate infants.

2. The parens patriae jurisdiction of the Court of Chancery comprises a custody proceeding where none of the parties is a parent of the infant.

3. Hearsay evidence, that is, evidence of hearsay statements, received without objection, if relevant to the issue, has the value of direct evidence.

Rule 503 of the Model Code of Evidence promulgated March 15, 1942, by the American Law Institute, is commended. The Rule: Evidence of a hearsay declaration is admissible, if the judge finds that the declarant (a) is unavailable as a witness, or (b) is present and subject to cross-examination.

Samuel E. Barison, of Jersey City (Philip Barbash, of Jersey City, of counsel), for prosecutor Patsy Petagno.

Archie Elkins, of Jersey City, for respondent Emillia Piazza.

VAN WINKLE, Advisory Master.

(1) The writ of habeas corpus issued in this custody proceeding is not to result merely in either a termination or a continuance of the alleged restraint which, usually, is the function of such a writ. The writ brought the infant born out of wedlock on July 12, 1944, to Helen Piazza, who was then nineteen years old, under the parens patriae jurisdiction of this court and an issue of custody was thus raised. The writ may not be regarded as authorized by the provision respecting habeas corpus in the Minors Act (R.S. 9:2-7, N.J.S.A.), for that relates to the bringing of ‘a child of the marriage’ of ‘parents' before the court for an award of custody and orders relating to ‘access of either parent’.

It does not matter how an infant is brought before this court for an award of custody. A writ of habeas corpus which brings an infant before this court is merely ancillary to the jurisdiction of this court as parens patriae to determine the custody of the infant. See Ex parte Hoines, N.J.Ch., 112 A. 613 (not reported in State Reports) which cites Baird v. Baird, 19 N.J.Eq. 481; Buckley v. Perrine, 54 N.J.Eq. 285, 293, 34 A. 1054, et seq.; Rossell v. Rossell, 64 N.J.Eq. 21, 53 A. 821; Hasselman v. Haas, 71 N.J.Eq. 689, 64 A. 165; Warnecke v. Lane, N.J.Ch., 75 A. 233 (note reported in State Reports); Palmer v. Palmer, 84 N.J.Eq. 550, 95 A. 241; In re Malley, 1942, 131 N.J.Eq. 404, 25 A.2d 630; Id., 132 N.J.Eq. 434, 439, 28 A.2d 518; Queen v. Nash, 1883, 10 Q.B.D. 454, 54 L.J.Q.B. 442, 13 Eng.Ruling Cases at p. 26.

2. The parens patriae jurisdiction of this court comprises illegitimate infants and such jurisdiction has been exercised without question. Simpson on Infants (1875) pp. 126, 127. The leading case on the subject seems to be Queen v. Nash, supra. The House of Lords confirmed the jurisdiction of custody over illegitimate infants in Barnado v. McHugh [1891] A. C. 388, 61 L.J., Q.B. 721, where Halsbury, L. C., noted and commented that ‘Sir George Jessell pointed out in Queen v. Nash that the court is now governed by equitable rules, and that in equity regard was always had to the mother, the putative father, and the relatives on the mother's side. Natural relationship was thus looked to with a view to the benefit of the child. There is in such a case a sort of blood relationship which, though not legal, gives to natural relatives a right to the custody of the child * * *.’

New Jersey cases: In Hasselman v. Haas, 1906, supra, upon jurisdiction being invoked respecting the custody of an illegitimate infant, jurisdiction was taken without question although Vice Chancellor Garrison expressly referred as his authority to Rossell v. Rossell, supra, which, however, was not a case involving an illegitimate infant. In Baker v. Baker, 1912, 81 N.J.Eq. 135, 85 A. 816, Vice Chancellor Howell in dealing with a habeas corpus proceeding for access to an illegitimate infant found the question to be one of new impression. But he noted that in the case of Queen v. Nash supra, that Sir George Jessell had said that the question of custody of an illegitimate infant did not depend upon the mere legal rights upon habeas corpus but upon equitable doctrines. In Re Malley supra, the jurisdiction of this court to settle the custody of an illegitimate infant was taken without question.

3. Patsy Petagno averred that he is the father of the infant, and entitled to custody as against the maternal grandmother, in whose physical custody the infant was left by Helen when she went away in August 1945; and the grandmother presently has physical custody. Helen has not been heard from since she left, and no witness on the hearing had heard from her or knew where she had gone or where she then was. So Helen was not available for the giving or compelling of direct testimony by her as to the paternity of the infant. However, Helen made declarations as to the paternity of the infant before and after its birth. The ‘Record of Birth’ filed July 21, 1944, with the Bureau of Vital Statistics of Hudson County, states that Helen Piazza, 19 years old, gave birth on July 12, 1944 to a female child at the Margaret Hague Maternity Hospital, Jersey City, ‘Donna Lee Piazza-father's full name O. W.’ (meaning out of wedlock).

On July 15, 1944 the hospital delivered ‘a Social Case History’ to the Bureau of Municipal Relief Jersey City which reported the birth and stated: ‘Problem, unmarried, putative father, Joseph Brantley, address, Merchant Marine’. The only source of the information contained in the birth certificate and the Social Case History was Helen herself.

The day after the birth a woman investigator connected with the Jersey City Poormaster's Office talked to Helen at the hospital because the child had been officially reported as born out of wedlock. It was this woman's official duty, acting for the community, to ascertain the name of the father; and it was with that purpose that she went to the hospital to interview Helen. Helen then told the investigator that the father of the infant was ‘Joseph Brantley, a seaman, Merchant Marine, stationed somewhere in New York’. She added that she did not have his address; that she had had illicit relations ‘with Joe around October 12, 1943, at a hotel at 44th Street, New York’; that about two months later she had met him and told him that she was pregnant, whereupon he offered her a hundred dollars for an abortion, which she refused. Helen did not mention Patsy Petagno at all to the investigator. This testimony of the investigator came in without objection.

One of Helen's sisters, a respectable married woman, to whom Helen was ‘the baby of the family’, paid Helen's rent and bought her food and cared for her during the time of her pregnancy while she was living in furnished rooms and very sick and this sister supported her after the birth. Patsy Petagno was never mentioned by Helen to the sister during this period that Helen was living away from home because of her actions and her condition, nor did he appear. Helen's sister testified that she said to Helen, ‘Helen, you ought to look the father up’, whereupon Helen told her that ‘the father was Joe Brantley’; and the sister testified that Helen added that ‘Joe was a nice follow, was wounded, ship was torpedoed, was in the water a few days * * *’ that he went to see her in the furnished room. The sister testified further that Helen said that she ‘was sorry for the fellow, it just happened’, and that she said that she didn't know where Joe lived, ‘all I know is he has got a mother and sister. He doesn't want to get married, wait until war is over’. And further the sister testified that after the birth of the infant Helen told her that Joe had sent her $50; and further, that after the birth Helen kept on writing to Joe; but she never gave anyone the address she wrote to. The sister's husband saw some of these letters of Helen to Joe. Apparently Helen was protecting Joe against prosecution. One of Helen's sisters testified that Helen gave Joe a snapshot of the baby and that Joe said the baby ‘looked like him’. After Helen disappeared her sisters made inquiries in New York for Joe Brantley but because they did not have enough information about him nothing was learned.

If these declarations that have been received were in fact made by Helen as narrated by the investigator and by Helen's sister, then apparently Joseph Brantley is the father of the infant. There is no reason whatever to doubt the testimony of the Poormaster's investigator or that of Helen's sister that Helen made the declarations. This hearsay testimony, to call it that, was given without any objection except once, however, there was an objection made by the counsel for Patsy Petagno, which, while indefinite, should in fairness be viewed I think as an objection that the testimony was hearsay. This objection related to what Helen had said to her sister about Joe Brantley being the father of the infant as hereinbefore recited. Counsel for Patsy Petagno after so objecting said something about ‘reserving’ his right to move to strike out testimony, and this ‘right’ was reserved to the extent that it could be legally reserved, but no such motion was made. I regarded the objection at the time it was made as being legally ineffective, and this for more than one reason. For one reason, Patsy Petagno, giving his testimony first in the order of proof, had himself given testimony of statements by Helen, which testimony had not been objected to. Moreover, in one view it is questionable I think whether Helen's declarations on paternity should be regarded as hearsay. In this child-custody proceeding should Helen, the mother of the infant, not be viewed as a party to the proceedings although not expressly so named by ...