Petitions of Goldman

• Decision Date: 27 September 1954
• Citation: 331 Mass. 647,121 N.E.2d 843
• Parties: Petitions of GOLDMAN (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 843

121 N.E.2d 843

331 Mass. 647

Petitions of GOLDMAN (two cases).

Supreme Judicial Court of Massachusetts, Essex.

Argued April 5, 6, 1954.

Decided Sept. 27, 1954.

John F. Lombard, Boston, and Leo Pfeffer, New York City, for petitioners.

John M. Fogarty, Lynn, for respondent.

Shad Polier, Will Maslow, New York City, and Gerald A. Berlin, Boston, by leave of court, submitted a brief as amici curiae.

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

QUA, Chief Justice.

The petitioners, husband and wife, seek to adopt twin children, boy and girl, born at a hospital September 30, 1951. The cases were heard upon oral evidence and also upon reports filed by the department of public welfare, in accordance with G.L. (Ter.Ed.) c. 210, § 5A, as appearing in St. 1950, c. 737, § 2, and reports of a guardian ad litem, all of which reports were received without objection as evidence at the hearing. The judge made findings of fact, concluding that it would not be for the best interests of the twins to decree adoptions in these cases, and dismissed the petitions. The petitioners appeal. The evidence is reported.

General Laws (Ter.Ed.) c. 210, § 5B, inserted by St.1950, c. 737, § 3, is 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.'

The petitioners obtained the children when they were about two weeks old from the hospital where they were born and have had them ever since. All of the evidence bearing on the ability of the petitioners to care for the twins, including that contained in the reports mentioned above, tended to show that the petitioners have a good home and sufficient means, are fond of the twins, and are giving them adequate care. The judge found that the petitioners are well equipped financially and physically to bring up the twins, and that they have treated them as their own children and intend to care for them and educate them to the best of their ability. The judge further found that the mother and 'the natural father' of the twins are Catholics. There was ample evidence to support this finding. The mother did not cease to be a Catholic, even if she failed to live up to the ideals of her religion. If that were the test of belonging to a religious faith it is feared that few could qualify for any faith. The petitioners are of the Jewish faith and intend to bring up the twins in that faith. The mother has consented in writing on both petitions to the adoptions prayed for. She has never seen or spoken to the petitioners, but she has stated that she knew they were Jewish and was satisfied that the twins should be raised in the Jewish faith. The petitioners were informed by their attorney before they took the twins of the law relative to religion in adoptions, but they decided to take a chance that the petitions would be allowed. The petitioners have dark complexions and dark hair. The twins are blond, with large blue eyes and flaxen hair.

The judge further found that 'Some difficulty has been experienced in attempting to determine the manner in which the twins came to the home of the petitionrs, and the testimony of the petitioners in this matter was conflicting and wholly unreliable.' We cannot say there was no support for this finding. We have not seen the witnesses. Goldman testified at one point that he did not like to get the 'mutual friends,' through whom he and his wife heard of the twins, 'involved in any legal situation' by revealing their names. A similar reticence on the part of the mother of the twins appears from reports of the department. The judge may well have doubted whether all the circumstances had been revealed and whether the requirements of law, particularly of G.L. (Ter.Ed.) c. 210, § 11A, as appearing in St.1950, c. 737, § 6, had been fully observed. See now G.L. (Ter.Ed.) c. 119, § 40A, inserted by St. 1952, c. 596.

The judge also found that 'there are in and about the city of Lynn [which is near the residence of the petitioners] many Catholic couples of fine family life and excellent reputation who have filed applications with the Catholic Charities Bureau for the purpose of adopting Catholic children of the type of the twins, and are able to provide the twins with a material status equivalent to or better than that of the petitioners, and with whom the twins could be placed immediately.' This finding was in effect a finding that it was 'practicable,' within the meaning of that word in § 5B, to 'give custody only to persons' of the Catholic faith. The finding rests upon detailed evidence from persons connected with Catholic charities as to many applications to adopt Catholic children by Catholic couples who had been investigated and found in good financial condition with good homes, 'who are ready and willing to adopt these two children.' It is true that objection was made to the oral part of the evidence which follows that just quoted, and that it would have been desirable if more definite proof could have been had that suitable Catholic persons had actually seen these particular children and stood ready to adopt both of them at one time. Such more definite proof, however, would probably in the circumstances have been hard to obtain. The objection to the evidence was general 'to this entire line.' We think it was directed against the pertinency of evidence of the general character involved in the line of inquiry rather than to the technical competency of each separate question and answer. See Holbrook v. Jackson, 7 Cush. 136, 154; Bruyer v. P. S. Thorsen Co. of Massachusetts, 327 Mass. 684, 686-687, 100 N.E.2d 684; Ovington v. Racine, 330 Mass. 333, 337, 113 N.E.2d 833. Moreover, the state of mind or intent of a person, whenever material, may be shown by his declarations out of court. Commonwealth v. Trafethan, 157 Mass. 180, 185-195, 31 N.E. 961, 24 L.R.A. 235; Viles v. Waltham, 157 Mass. 542, 32 N.E. 901; Inness v. Boston, Revere Beach & Lynn Railroad Co., 168 Mass. 433, 47 N.E. 193; Aldrich v. Aldrich, 215 Mass. 164, 170, 102 N.E. 487; Partridge v. United Elastic Corp., 288 Mass. 138, 141, 192 N.E. 460; Wigmore on Evidence (3d ed.) ss. 1725, 1726. The 'line' of evidence was competent, and we cannot say that the evidence itself fell so far short as to fail to support the finding of the judge last above quoted. We...