In re Tom

• Decision Date: 03 June 1947
• Docket Number: NO. 2634.,2634.
• Parties: IN THE MATTER OF THE ADOPTION OF GEISON TOM, A MINOR.
• Court: Hawaii Supreme Court

37 Haw. 532

IN THE MATTER OF THE ADOPTION OF GEISON TOM, A MINOR.

NO. 2634.

Supreme Court of the Territory of Hawai‘i.

IN THE MATTER OF THE ADOPTION OF PATRICIA SHUH YI TOM, A MINOR.

NO. 2635.

Argued April 16, 1947.

Decided June 3, 1947.

APPEALS FROM CIRCUIT JUDGE FIRST CIRCUIT, HON. C. H. BUCK, JUDGE.

Syllabus by the Court

Under section 12271, Revised Laws of Hawaii 1945, a parent will be deemed to have abandoned his child so as to render his written consent to the adoption of the child unnecessary if, for the statutory period, he neglects to perform the natural and legal obligations of care and support. If a parent withholds his presence, his love, his care, the opportunity to display filial affection, and neglects to lend support and maintenance, such a parent relinquishes all parental claim and abandons the child.

When the father of a child is shown to have abandoned it within the meaning of the statute but nevertheless appears and contests a petition for its adoption on the ground that he has not given his written consent to the adoption, the welfare of the child becomes the paramount issue.

The statutory authorization for the appointment of a suitable person to act in adoption proceedings as the next friend of a child who has been abandoned and has no legal guardian is permissive, and where the record on appeal fails to show that the question of the necessity for such an appointment was raised below and fails to show that the adopted child has suffered for the want of a next friend, it is apparent that no prejudicial error has been committed.

H. Y. C. Choy ( Fong & Miho with him on the briefs) for appellant.

J. G. Anthony ( Robertson, Castle & Anthony on the briefs) for appellees.

KEMP, C. J., PETERS AND LE BARON, JJ.

OPINION OF THE COURT BY KEMP, C. J. (Peters, J., dissenting.)

On February 13, 1946, Samuel L. Yee and wife Doris Loo Yee (hereafter referred to as Dr. and Mrs. Yee) filed their petition in the circuit court, first circuit, at chambers in adoption, for leave to adopt Geison Tom, a minor, wherein it is alleged: That said minor was born March 24, 1939, of Patrick Wah Hoon Tom (hereafter referred to as the father or appellant) and Bernice Yun Yee Loo Tom (hereafter referred to as the mother), then husband and wife and who were divorced November 12, 1943; that the petitioner, Mrs. Yee, is a sister of the mother of said minor; that the father left Hawaii November 28, 1943, and has never returned and that petitioners are informed that he at one time resided at 58 La Salle Street, New York City, but petitioners have no knowledge of his present address; that the mother died September 24, 1945; that said child has been under the care, custody and control of petitioners since November 28, 1943; that the father has abandoned said child for a period in excess of six months and voluntarily surrendered the care and custody of said child to petitioners and others for a period of over two years; that petitioners are fit and proper persons and financially able to have the care, custody and control of said minor; that said child is physically, mentally and otherwise suitable for adoption by petitioners, who bear great love and affection toward him; and that such adoption will be for the best interest of said child.

On the same day, February 13, 1946, Louise Loo, an unmarried woman, filed her petition in the same court for leave to adopt Patricia Shuh Yi Tom, born September 7, 1940, of the same parents as Geison Tom. The petitioner is a sister of the mother of Patricia and her petition contains identical allegations with the petition of Dr. and Mrs. Yee.

The court ordered notice of hearing of the two petitions to be served on the father by publication in the Honolulu Advertiser, which was done, and in response thereto on August 27, 1946, the father answered each of the petitions, denying that he had either abandoned said child for a period in excess of six months or that he had voluntarily surrendered the care and custody of said child to petitioner and others for a period of two years, and denying that it is for the best interest of said child that said child be adopted by petitioner. There was no denial of other allegations in the petitions.

The two petitions were heard together and the circuit judge decreed the adoptions as prayed. In each decree there are findings that the father had abandoned the child for a period in excess of six months and had voluntarily surrendered the care and custody of the child to petitioner and others for a period over two years; that the petitioner is a fit and proper person to be and become the parent of said child and financially able to give the child a proper home and education; that the adoption will be for the best interest of the child.

From the decrees the father prosecutes these appeals, which have been briefed and argued together, and which will be disposed of by this opinion.

Our statute, section 12271, Revised Laws of Hawaii 1945, provides in part:

“Written consent must be given to the adoption of the child, if of the age of sixteen years; and in all cases of adoption written consent shall be given by each of the living legal parents who is not hopelessly insane, habitually intemperate, or has not abandoned the child for a period of six months, or who has not voluntarily surrendered the care and custody of the child to another for a period of two years or over * * *. If the parents are unknown or have so abandoned or surrendered the child, the consent to adoption shall be signed by the legal guardian of the child; or if there be no legal guardian, then the court may appoint some suitable person to act in the proceedings as the next friend of the child; provided, however, that no hearing upon a petition for adoption, where the written consent of each of the living parents has not been obtained, shall be had until such non–consenting parent shall have had due notice, actual or constructive, as hereinafter provided, of the time and place of hearing.”

The appellant specified errors which he condensed into two questions presented for decision, as follows:

“1. Did the lower Court err in finding that Mr. Tom had abandoned his children, PATRICIA AND GEISON, for a period in excess of six months, or had voluntarily surrendered the care and custody of said children to the Petitioners and others for a period of two years within the meaning of the Adoption Statute, so as to render unnecessary Mr. Tom's consent to the adoption of his children?

“2. If the findings of the lower Court that Mr. Tom had abandoned and surrendered his children within the meaning of the Adoption Statute be upheld on this Appeal, did the lower Court err in having failed to require that consent to the adoption of the children be signed by their legal guardian, or if there be no legal guardian, by the next friend of the children appointed by the lower Court, pursuant to the provisions of the Adoption Statute, before decreeing the adoption of the children?”

If either voluntary surrender or abandonment for the statutory period is supported by sufficient evidence the finding on the issue first stated must be upheld.

The evidence bearing upon the questions of abandonment and voluntary surrender of the children by the father is not in serious conflict and may be summarized as follows: Sometime within the first half of the year 1942 the mother of said children, as a result of illness, became unable to personally care for them. She and her husband and their two children then went to live with Dr. and Mrs. Yee. When an operation disclosed the nature of the mother's illness to be a malignant cancer of the breast her immediate relatives, including her sisters Mrs. Yee and Miss Loo, were anxious to have her go to New York where she could receive a character of treatment not available in Honolulu. The father opposed her going to New York for treatment for the alleged reason that her condition was such that treatment could not prevent her early death and it would be a waste of money to send her away for treatment. Her immediate family, however, including her brother–in–law, Dr. Yee, arranged for her trip to New York and Dr. Yee went with her and placed her in the hospital where the treatment was to be administered. The only evidence as to who paid the expense of her sojourn in New York for this treatment is that given by the father, who says that he sent her some six or seven thousand dollars while she was away. She left Honolulu for New York in September 1942 and left her children and her husband living with the family of her sister and brother–in–law, Dr. and Mrs. Yee. She returned to Honolulu in June of 1943, at which time she was still physically unable to look after and care for her two children, and she returned to the home of Dr. and Mrs. Yee, where she continued to reside until she again left Honolulu in September of 1943. Just prior to her departure in 1943 the question of what should be done with the children was discussed by Mrs. Yee, Miss Loo, the father and mother, and a sister of the father, at which time it was agreed that Miss Loo should take Patricia and that Geison should remain with Dr. and Mrs. Yee. When the mother left Honolulu in September 1943, the father remained at the home of Dr. and Mrs. Yee until Thanksgiving Day of that year, when he left the Territory. Before he left the Territory, Mrs. Yee attempted to have an understanding with him as to the care and possible adoption of his children, but was unable to reach one. When told that the then arrangement could not continue indefinitely, he insisted that he would not be gone from Honolulu more than two or three months. He proceeded directly to New York where he arrived in December 1943 and where he has resided ever since. From the time he left the Territory he has not at any time communicated with Dr. and Mrs. Yee or with Miss Loo or with his children, nor has he contributed or offered to contribute anything to the support of...