Richards v. Forrest

• Decision Date: 31 March 1932
• Citation: 278 Mass. 547,180 N.E. 508
• Parties: RICHARDS et al. v. FORREST et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 547

180 N.E. 508

RICHARDS et al.

v.FORREST et al.

Supreme Judicial Court of Massachusetts, Worcester.

March 31, 1932.

Appeal from Probate Court, Worcester County; Chamberlain, Judge.

Petition by Rose Richards and another, for the appointment as guardian and for the custody of a minor child, opposed by Louida M. Forrest and another. From a decree appointing petitioners guardians and awarding them custody of the child, defendants appeal.

Reversed.

G. C. Sweeney, of Gardner, for petitioners.

E. W. Baker, of Fitchburg, for respondents.

RUGG, C. J.

The petitioners seek appointment as guardians of Arlene E. Forrest, born in November, 1925, minor child of the respondents, and pray to be awarded the custody of her person, it being alleged that the respondents, as parents, are unfit to have such custody, and that the minor has no property. The petition was filed in April, 1931. After reciting that the ‘minor when four months old was by her parents voluntarily placed in the home and custody of the petitioners and has ever since been cared for and supported by them in their home,’ and that ‘because of this continual care and custody, the relationship and affection usually existing between parents and children now exists between said minor and the petitioners and does not exist between the minor and her parents,’ the final decree ordered that the parents, ‘because of the above-mentioned facts are unfitted to have the present custody of said minor and that said petitioners be appointed guardians and have the custody of the person and estate of said minor,’ first giving bond, with the further provision that the petitioners allow the minor to visit and receive visits from her parents at all reasonable times. The respondents appealed.

The trial judge filed a report of facts wherein, in addition to the recitals of the decree, it was found that Mrs. Richards is the aunt of the minor and a sister of her mother. When the child was placed with the petitioners her mother was ill and required hospital treatment and consequently was unable to care for her family of young children. During the five years that the minor has been with the petitioners she has been supported entirely by them, her parents not having paid or offered to pay anything toward her support and never having been asked to contribute anything. Apparently a frail child, the minor has required more than ordinary care and the petitioners have paid considerable sums for medical and hospital services. One chief contention at the trial was whether or not the respondents had consented to the minor's staying with the petitioners during the five years. It appeared in that connection that the petitioners and respondents had had at intervals conferences and arguments concerning the child. After a summary narration of the evidence, the trial judge found ‘that there was an understanding or agreement between the parties that Arlene was to stay with the petitioners and that no claim for her support was to be made upon the respondents.’ He further found that the petitioners in July, 1928, sent to the male respondent a statement in writing relative to the care and support of the minor wherein it was stated: ‘In accordance with our understanding I am setting down in writing our agreement relative to the care and support of your daughter Arline Forrest. It is understood that I shall charge you nothing for the support and care of Arline, provided you do not take her away from us. It is also understood that you shall allow her to remain with us'; that, by receipt of this statement and from oral statements previously made, the respondents had notice that the petitioners claimed a right to keep the minor; and that if no such understanding existed and the respondents desired the return of their minor child ‘it is difficult to understand the delay of nearly five years in enforcing their rights.’ He also found that when the minor was taken from her parents at the age of four months she could not have acquired any deep affection for them; that since that time she had been away from them and lived nearly five years with her aunt under the same close care and attention which parents give to children during that portion of their lives, no contention to the contrary being made; that the natural and inevitable result followed that the minor now looks upon them as her parents; that the same degree of love and affection which usually exists between parents and children now exists between the minor and her foster parents, and so far as the minor is concerned does not exist between the minor and her natural parents. She wishes to remain with the petitioners. ‘In my opinion it would be harmful to Arlene and unfair to the Richards to take her from them at present.’ The respondents have beside the said minor seven children, the eldest being sixteen years of age. The petitioners have one child nineteen years of age. ‘Mr. Richards and Mr. Forrest receive about the same amount is wages-twenty-five to thirty dollars weekly. It would seem, therefore, that financially, the Richards can do more for Arlene than can the Forrests. Whether with or without the express consent of the respondents, the outstanding fact appears to be that a status has been created concerning Arlene, a status' of the creation of which the respondents must have been aware and which they could have terminated and prevented had they so desired. It was found that the character and reputation of both the petitioners and the respondents are good, and that both have comfortable homes. ‘As to these matters no ‘unfitness' was shown.’ His conclusion is stated in the following words: ‘From the foregoing facts and circumstances and because of them, I find that the parents are in a legal sense unfitted to have the custody of Arlene and that her welfare requires that she be allowed to remain with the petitioners. However, she should be allowed freely to visit and receive visits from her parents and become better acquainted with them and with her brothers and sisters. At some later period when she becomes more mature and competent to choose her guardian, the matter can be reopened.’ It did not appear whether the trial judge saw the child.

The stated conclusion was reached upon rulings to the effect that the burden of proving the parents unfit to have the custody of the minor was upon the petitioners; that in determining that issue the welfare of the minor was the most important consideration; and that the petitioners were not confined to evidence showing moral or physical unfitness but could give evidence bearing upon the present and future welfare of the minor. There was no error of law in these rulings.

The evidence is not reported except as embodied in the report of facts filed by the trial judge. His findings of fact must be accepted as true. Meyerovitz v. Jacobovitz, 263 Mass. 47, 48, 160 N. E. 331;Knowles v. Perkins, 274 Mass. 27, 174 N. E. 221.

There was no error in admitting in evidence the letter signed by the petitioners addressed to the male respondent and already quoted, stating the terms of the agreement between them and the respondents. It was not signed by the respondents. It is not in the form of an agreement to be signed by all parties. Compare Cyprinski v. Phoenix Ins. Co. (Mass.) 179 N. E. 236. It constituted a part of a series of transactions and conferences between the parties concerning the child and was entitled to consideration. Noble v. Mead-Morrison Manuf. Co., 237 Mass. 5, 18, 129 N. E. 669. The rule as to exclusion of mere self-serving statements or disconnected letters to the adverse party, illustrated by Huntress v. Hanley, 195 Mass. 236, 241, 80 N. E. 946;Wilson v. Davison, 242 Mass. 237, 241, 136 N. E. 354, and Leach & Co., Inc., v. Peirson, 275 U. S. 120, 128, 48 S. Ct. 57, 72 L. Ed. 194, 55 A. L. R. 457, is not applicable to evidence of this nature.

This petition is brought under G. L. c. 201, § 5. So far as here material, that section confers jurisdiction upon probate courts to order that the guardian shall have custody and care of the person of a minor if, upon a hearing, the parents are found ‘unfit to have such custody.’ This is a valid exercise of legislative power. Chambers' Case, 221 Mass. 178, 180, 108 N. E. 1070. A strong word thus is used in the statute to describe parents from whom may be taken by order of the court the right to custody and care of their child. That word governs the power of the court to award the custody of the child to some one other than her parents. There is no statutory definition of the word ‘unfit.’ It therefore must be given its ordinary significance, having due regard to the context. In general, the word means unsuitable, incompetent, or not adapted for a particular use or service. As applied to the relation of rational parents to their child, the word usually although not necessarily imports something of moral delinquency. Violence of temper, indifference or vacillation of feeling toward the child, or inability or indisposition to control unparental traits of character or conduct, might constitute unfitness. So, also, incapacity to appreciate and perform the obligations resting upon parents might render them unfit, apart from other moral defects. Parents are the natural guardians of their children. They are under the legal as well as the moral obligation to support and educate them and to bring them up to be healthy, intelligent and virtuous, to the end that they become good citizens and leave the world better for having lived in it. In civilized...