Petition of Gally

• Decision Date: 23 June 1952
• Citation: 329 Mass. 143,107 N.E.2d 21
• Parties: Petition of GALLY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 21

107 N.E.2d 21

329 Mass. 143

Petition of GALLY et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Jan. 11, 1952.

Decided June 23, 1952.

J. F. Lombard, Boston, for petitioners.

S. Polier and L. Pfeffer, New York City, and G. A. Berlin, Boston, amici curiae.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

QUA, Chief Justice.

This is a petition filed in the Probate Court for the adoption of Dana Lee Morgan, otherwise known as Dana Lee Rocci, a girl now about two years old. The petitioners are Henry Gally, Junior, and his wife. The mother of the child has signed the petition, consenting 'to the adoption, as above prayed for,' and her consent has been attested before a notary public. G.L.(Ter.Ed.) c. 210, § 2, as appearing in St. 1950, c. 737, § 1. There was no appearance in opposition to the petition. The trial judge, although he found that the child was 'a proper subject for adoption'; that 'the petitioners and their home are suitable for the proper rearing of the child'; and that they are 'of sufficient ability to bring up the child and provide suitable support and education for it,' nevertheless denied the petition for the reason, as appears in the decree, 'that the petitioners are of a religious faith other than that of the mother of the child.' The decree further indicates that he came to this conclusion 'in view of the provisions of' G.L. (Ter.Ed.) c. 210, § 5B, inserted by St.1950, c. 737, § 3, hereinafter quoted in full. The petitioners appeal.

The petitioners requested a report of material facts in accordance with G.L. (Ter.Ed.) c. 215, § 11, as amended by St. 1947, c. 365, § 3. The judge made a report in which he recited certain facts as to the nature of the proceeding, apparently taken from the files or docket, made certain findings of facts, and then incorporated in his report several photographs of the petitioners' home and the report from the department of public welfare required to be submitted to the Probate Court by G.L. (Ter.Ed.) c. 210, § 5A, as appearing in St.1950, c. 737, § 2, and stated that no evidence other than the photographs and the department's report was submitted for the consideration of the court.

The report of the judge is in an unusual form. A request for a report of material facts under the statute does not call for a report of any evidence, documentary or otherwise. Sidlow v. Gosselin, 310 Mass. 395, 396-397, 38 N.E.2d 665. Matter of Santosuosso, 318 Mass. 489, 495, 62 N.E.2d 105, 161 A.L.R. 892. But the judge states that he has reported all the evidence. The situation is that we actually have before us all the evidence submitted to the court below. The appellants, who presumably have paid for the printing of this evidence, are not objecting to its inclusion by the judge in his report and are using it in their brief. No other party has ever appeared in the case. The requirement by statute and rule of a request for a report of evidence applies only to testimony taken orally. G.L.(Ter.Ed.) c. 215, § 12; c. 214, § 24, as amended by St.1947, c. 365, § 1. Rule 17 of the Probate Courts (1934). In these circumstances it would seem a barren technicality to say that we could not consider the evidence because it was irregularly included in a statutory report of material facts. Granger v. Bassett, 98 Mass. 462; Curley v. Boston, 312 Mass. 58, 61-62, 43 N.E.2d 377. We treat the case as before us on the evidence. Moreover, since the evidence was wholly documentary, we are in as favorable a position to make original findings of fact as the trial judge was and must therefore exercise our own judgment as to both facts and law. Brockton Olympia Realty Co. v. Lee, 266 Mass. 550, 562-563, 165 N.E. 873; Paloeian v. Day, 299 Mass. 586, 587-588, 13 N.E.2d 398; Veazie v. Staples, 309 Mass. 123, 127, 33 N.E.2d 262; Fiduciary Trust Co. v. Mishou, 321 Mass. 615, 631, 75 N.E.2d 3; Attorney General v. 'Forever Amber,' 323 Mass. 302, 309, 81 N.E.2d 663.

The case therefore comes to us in a peculiar way and is in a different position from that of the ordinary appeal from a decree founded upon oral evidence.

Except for the photographs hereinbefore mentioned, the only source for any findings of fact in the case is the report by the department of public welfare to the Probate Court, which was admitted in evidence. From that report these facts appear: The mother of the child is of English ancestry. She is between twenty-four and twenty-five years of age. The child to be adopted is the mother's third child by her mother's husband, her own stepfather, with whom she has been living. He is also her adoptive father. He is of Italian ancestry. He has a considerable criminal record, the details of which need not be stated. His education did not extend beyond the sixth grade. He deserted from the army in 1926. The report says that his 'occupation is unknown but is officially listed as 'importer." The petitioner Henry Gally, Junior, is about forty years of age. He is of 'English-Austrian' ancestry. He is a graduate of Cornell University in civil engineering. He served for several years in the 'Engineer's Corps' of the army, from which he was discharged in 1946, with the rank of major. At the time the report was made he was employed by a construction company as superintendent at a salary of $10,000 a year. His wife, the other petitioner, is of 'German-Scotch-Irish' ancestry. She is a graduate of a junior college. She is about thirty-four years of age. Both petitioners are in good health. They have been married since 1941 and have no children. The petitioners own the six room house in which they live in 'a quiet residential section' of Wellesley Hills. They paid $17,700 for it. There is a mortgage upon it of $6,500. It is 'beautifully furnished and immaculately kept.' The photographs show a comfortable home, with large yard space and many trees scattered about. 'Financial assets include life insurance with a total [value] of $30,000 in principal sum, and government bonds with maturity value of $1,500. References are excellent.' The child was placed with the petitioners when she was about three weeks old 'after a brief placement in a boarding home.' At that time she was ill 'because of feeding difficulties' and was 'troubled by colic' until three months of age. 'Since then she has been well and is certainly receiving the best of care including routine checks by a pediatrician.' She has her own nursery. The petitioners are of a religious faith different from that of the child's mother. The department's report, however, says that the mother 'stated that she has no objection to the change in religion.'

The statute, G.L. (Ter.Ed.) c. 210, § 5B, inserted by St.1950, c. 737, § 3, by reason of which the trial judge apparently felt himself bound to deny the petition, reads as follows:

'In making orders for adoption, the judge when practicable must give custody only to persons of the same religious faith as that of the child. In the event that there is a dispute as to the religion of said child, its religion shall be deemed to be that of its mother.

'If the court, with due regard for the religion of the child, shall nevertheless grant the petition for adoption of a child proffered by a person or persons of a religious faith or persuasion other than that of the child, the court shall state the facts which impelled it to make such a disposition and such statement shall be made part of the minutes of the proceedings.'

Before the insertion of this section the guiding star in cases of adoption of a young child, as well as in other cases involving child custody, was the welfare of the child. 'The first and paramount duty is to consult the welfare of the child.' Purinton v. Jamrock, 195 Mass. 187, 199, 80 N.E. 802, 805, 18 L.R.A.,N.S., 926; Commonwealth v. Ball, 259 Mass. 148, 151, 156 N.E. 21; Hersey v. Hersey, 271 Mass. 545, 555, 171 N.E. 815, 70 A.L.R. 518; Richards v. Forrest, 278 Mass. 547, 553-554, 180 N.E. 508; Merrill v. Berlin, 316 Mass. 87, 89, 54 N.E.2d 674; Grandell v. Short, 317 Mass. 605, 608, 59 N.E.2d 274; Erickson v. Raspperry, 320 Mass. 333, 335, 69 N.E.2d 474; Wilkins v. Wilkins, 324 Mass. 261, 262, 85 N.E.2d 768; Allen v. Allen, 326 Mass. 214, 216, 93 N.E.2d 554; Krakow v. Department of Public Welfare, 326 Mass. 452, 455-456, 95 N.E.2d 184. Nevertheless, it was held to be 'the general policy of the commonwealth to secure to those of its wards who are children of tender years the right to be brought up, where this is reasonably practicable, on the religion of their parents. * * * The wishes of the parent as to the religious education and surroundings of the child are entitled to weight; if there is nothing to put in the balance against them, ordinarily they will be decisive. If, however, those wishes cannot be carried into effect without sacrificing what the court sees to be for the welfare of the child, they must so far be disregarded. The court will not itself prefer one church to another, but will act without bias for the welfare of the child under the circumstances of each case.' Purinton v. Jamrock, 195 Mass. 187, 199-200, 80 N.E. 802, 804. See also, G.L. (Ter.Ed.) c. 210, § 5A, as appearing in St. 1950, c. 737, § 2.

It does not seem to us that when the Legislature inserted section 5B it intended to cast aside the familiar and obviously pertinent criteria which had been so long employed in determining questions of child custody, not only here but in other jurisdictions as well. See cases cited in 2 C.J.S., Adoption of Children, § 40, p. 425. It was not intended that identity of religion should be the sole or necessarily the principal consideration. There is, however, a certain element of compulsion upon the judge indicated by the word 'must.' But the compulsion operates only 'when practicable.' The similarity of this expression to the expression 'where this is reasonably practicable' used in the leading case of Purinton v. Jamrock, from which we have...