Krakow v. Department of Public Welfare

• Decision Date: 09 November 1950
• Citation: 95 N.E.2d 184,326 Mass. 452
• Parties: KRAKOW et al. v. DEPARTMENT OF PUBLIC WELFARE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

326 Mass. 452

95 N.E.2d 184

KRAKOW et al. v. DEPARTMENT OF PUBLIC WELFARE.

Supreme Judicial Court of Massachusetts, Essex.

November 9, 1950

Argued Oct. 4, 5 1950.

W P. Lombard, Boston, W. M. Olin, Boston, for petitioners.

F. E. Kelly, Atty Gen., G. J. Barry, Asst. Atty. Gen., for respondent.

RONAN, Justice.

This is a petition filed October 20, 1948, by the petitioners, husband and wife, residents of Brooklyn, New York, for the adoption of Stephen Walter Harrington of Gloucester, who, it was alleged, was born at Malden in this Commonwealth, the child of Clarence B. Harrington of parts unknown and of his wife, Annie M. Harrington. The judge of probate made no report of the facts. The decree dismissing the petition contained a recital that the court had no authority to grant the petition. The petitioners appealed.

The judge at the close of the evidence suggested, as shown by the transcript of the evidence, that there were questions presented concerning the domicil of the husband of the mother of the child, the rights of the petitioners to maintain the petition in this Commonwealth when they were prohibited by the law of New York from securing the adoption there, and the adequacy of the reports filed by the department of public welfare. We do not know precisely on what ground the petition was dismissed.

The mother married Harrington at Rockport in the county of Essex in this Commonwealth on December 20, 1944, and lived with him until January, 1945, when he went overseas. They have not since lived together. He subsequently returned to Texas where he still resides, and she continued to live at her parents' home in Gloucester in this Commonwealth. The child was born at Malden on August 28, 1948, and within a few weeks of his birth was taken by the petitioners, who were of a different religious faith from that of the child, to their home in New York and has since lived there with them. There was evidence tending to show that the mother was deserted by her husband and that the child was abandoned by him. There was also evidence tending to show that Harrington was not the father of the child. Whichever of these two views of the evidence is adopted--and no other view is possible--it is plain that the domicil of the child was in Gloucester either on the ground that he had been abandoned by his father or on the ground that he was an illegitimate child. Corkum v. Clark, 263 Mass. 378, 384, 161 N.E. 912; Rolfe v. Walsh, 318 Mass. 733, 64 N.E.2d 16; Lyons v. Egan, 110 Colo. 227, 132 P.2d 794; In re Adoption of Pratt, 219 Minn. 414, 18 N.W.2d 147; Rogers v. Commonwealth, 176 Va. 355, 11 S.E.2d 584; Beale, Conflict of Laws, §§ 10.17, 32.1, 34.1. Restatement: Conflict of Laws, §§ 33(1)(a), 34. See Stearns v. Allen, 183 Mass. 404, 409, 67 N.E. 349.

Furthermore, the temporary abode of the minor with the petitioners, pending the determination of the petition for adoption, did not change his residence, since the statute, G.L. (Ter.Ed.) c. 210, § 1, as amended, providing that petitions of noninhabitants shall be brought in the county where the minor is a resident, signifies domicil. See Restatement: Conflict of Laws, § 142. Residence is a term of flexible meaning, City of Marlborough v. Lynn, 275 Mass. 394, 176 N.E. 214, and frequently connotes domicil in statutes regulating certain matters entrusted to the Probate Courts. Levanosky v. Levanosky, 311 Mass. 638, 42 N.E.2d 561; In re Adoption of Susan, 37 A.2d 645, 22 N.J. Misc. 181; Greene v. Willis, 47 R.I. 375, 133 A. 651; Cribbs v. Floyd, 188 S.C. 443, 199 S.E. 677. Indeed, the Legislature could not have contemplated that any change in domicil should be effected by reason of the minor living with the petitioners, for no decree pranting the petition could have been entered unless the minor had lived with the petitioners for at least six months, G.L. (Ter.Ed.) c. 210, § 5A, now a year, St.1950, c. 737, § 2, unless this residence requirement was waived by the judge. This provision was intended to furnish the judge with a material piece of evidence in determining whether there were mutual ties of love and affection between the petitioners and the child during this experimental period of six months or a year so that he would better be able to decide whether the granting of the petition would be conducive to the child's welfare. Compliance with this residential requirement, if held to effect a change in the child's domicil, would bar all petitions by nonresident petitioners. That result could not have been intended by the Legislature.

The intimation of the judge, that the petitioners could not maintain the petition because the law of New York barred the maintenance of a similar petition there, is of no materiality. The jurisdiction of the Probate Court could not be affected by the laws of New York. Whatever view the judge had as to the laws of New York did not constitute reversible error, even if we assume that his ruling of lack of jurisdiction was based on that ground, because the court having jurisdiction over the subject matter and the parties could not grant the petition if the reports filed by the department did not comply with the statute. G.L.(Ter.Ed.) c. 210, § 5A, we now consider that question.

Our statutes 'relating to adoption are in alteration of the common law and must be strictly followed in all essential particulars.' Purinton v. Jamrock, 195 Mass. 187, 197, 80 N.E. 802; Beloin v. Bullett, 310 Mass. 206, 210-211, 37 N.E.2d 483; Zalis v. Ksyppa, 315 Mass. 479, 482, 53 N.E.2d 104; Broman v. Byrne, 322 Mass. 578, 78 N.E.2d 616; Hathaway v. Rickard, 323 Mass. 501, 502, 82 N.E.2d 881.

The statute, G.L. (Ter.Ed.) c. 210, § 5A, provides that, upon a filing of a petition for adoption of a child under fourteen years of age, notice shall be given to the department of public welfare, which shall make an appropriate inquiry whether the child is a proper subject for adoption and whether the petitioners and their home are suitable for the proper rearing of the child, due regard being given to the race and religion of the child and of the petitioners. The department shall furnish the court with such written report as will give full knowledge as to the desirability of the proposed adoption, and the court may require such further investigation and report as may be necessary. No decree shall be made until such report has been received, nor until the child shall have resided for not less than six months in the home of the petitioners although this requirement of residence may be waived by the court. See now St.1950, c. 737, § 2.

The Probate Court is charged with the responsibility of determining whether in the case of a minor child, especially one of tender years as in the instant case, the welfare of the child, which must be...