State v. Wheeler

• Citation: 43 Wash. 183,86 P. 394
• Court: United States State Supreme Court of Washington
• Decision Date: 23 July 1906
• Parties: STATE ex rel. LE BROOK v. WHEELER et al.

86 P. 394

43 Wash. 183

STATE ex rel. LE BROOK v. WHEELER et al.

Supreme Court of Washington

July 23, 1906

Appeal from Superior Court, Lewis County; A. E. Rice, Judge.

Habeas corpus by the state, on relation of Stanley C. Le Brook against Perry Wheeler and another. From a judgment in favor of defendants, relator appeals. Reversed.

Maurice A. Langhorne, for appellant.

J. R Buxton, for respondents.

CROW J.

In January, 1902, the relator Stanley C. Le Brook married one Florence E. Thornton. As issue of said marriage one daughter Sherley May Le Brook, was born in December, 1902. In January, 1904, Stanley C. Le Brook discovered that his wife was sustaining criminal relations with one Peter St. Louis; whereupon he left her, and, taking said child, placed her with relator's mother, one Mattie Passig, at Everett, Wash. The relator and his child continued to live with Mrs. Passig until July 10, 1904, when, leaving said child with his mother to be cared for, he went to Granite Falls to seek employment. The record fails to show that from the time relator took possession of said child in January, 1904, until he left Everett, his wife, Florence Le Brook, ever sought the possession of said child, or evinced any interest in its welfare. About three weeks after the departure of relator, Florence Le Brook took possession of said child during the illness of Mrs. Passig, and, on August 1, 1905, filed in the superior court of Snohomish county a complaint, purporting to be drawn under section 2 of chapter 49, page 60 of the Laws of 1903, wherein she alleged that said child, Sherley May Le Brook, was without proper parental care; that her father, Stanley C. Le Brook, had failed to support his wife and family; that his then present residence was unknown; that she, as the mother of said child was unable to provide it with proper support; that said child had no permanent home, nor had it any legal guardian except herself; that the whereabouts of its next of kin was unknown, and that the welfare of said child required that legal steps be taken to forthwith provide for its care and custody. The petition prayed that five days' notice be given to the next of kin, and that the child be committed to the custody of the Washington Children's Home Society, a benevolent and charitable society incorporated under the laws of Washington. Upon the filling of this complaint, the judge of said court ordered that it be heard on said August 1, 1904; that notice of the time and place of such hearing be personally served upon said Mrs. Florence E. Le Brook, or the next of kin of said child, if personal service could be made; and that, if personal service could not be made, then the county commissioners cause notice to be published to the next of kin at least five days before said hearing. Immediately upon the signing of said order said Florence E. Le Brook, mother of said child, indorsed thereon an admission of service, and consented to said hearing. The record fails to show any service or attempt at service on the relator, Stanley C. Le Brook, as father of said child, or on his mother Mattie Passig, as next of kin. Immediately thereafter, upon August 1, 1904, said court made the following order: 'This cause having come on to be heard August 1, 1904, upon the complaint of Mrs. F. E. Le Brook, it appearing that notice of time and place of the hearing of said complaint was duly given to the person legally entitled to the same, as prescribed by law, said person appearing, said cause having been duly heard and the court being fully advised in the premises: It is hereby ordered that said minor child, Sherley May Le Brook, be and she hereby is committed to the care and custody of the Washington Children's Home Society to care for and educate such child, or place her temporarily or permanently in a suitable private home, in such manner as shall best secure her welfare, and that said society be, and the same here is, authorized otherwise to care for and control said child as is provided by law.'

Afterwards, on August 9, 1904, said Florence E. Le Brook, as mother of said child, attempted to surrender it to said Washington Children's Home Society, under the provisions of subdivision 'b,' § 1, c. 49, p. 59, Laws 1903; but the instrument executed by her failed to recite the death or incapacity of the father of said child, or that he had abandoned or neglected to provide for his family. Said Washington Children's Home Society took charge of said child, and shortly thereafter placed it in the care of one Mrs. Topper, in Lewis county, who, two or three weeks later, placed it in the custody and control of Perry Wheeler and Jennie Wheeler, his wife, the respondents herein, who retained it for some 18 months prior to the adoption proceedings hereinafter mentioned. The relator, Stanley C. Le Brook, remained away from Everett for some five or six months without communicating with his mother, who, in the meantime, had unsuccessfully endeavored to learn the whereabouts of said child. On the relator's return he endeavored to find said child, but was unable to do so. In 1905 the relator commenced in the superior court of Lewis county an action to secure a divorce from his wife, Florence E. Le Brook, and upon personal service and her default, obtained a decree on November 16, 1905. In his complaint he alleged that his wife Florence E. Le Brook had concealed said child somewhere in the state of Washington; he being unable to state where, and asked for its custody. The decree of divorce provided that, as between the parties to said action, the custody and control of said child be awarded to said Stanley C. Le Brook. Afterwards, on December 28, 1905, respondents Perry Wheeler and Jennie Wheeler, his wife, filed in the superior court of Lewis county a petition for the adoption of said child, then about three years of age, and asked that her name be changed to Sherley Ruth Wheeler. On the same day H. D. Brown, as state superintendent of the Washington Children's Home Society, filed in said adoption proceedings the written consent of said society to such adoption, and relinquished all claims of said society to said child. On the same day the judge of said superior court made findings that the Washington Children's Home Society had had the legal custody and possession of said Sherley May Le Brook, for more than one year; that it had consented in writing to its adoption by said petitioners; that its mother had surrendered it to said society on August 9, 1904; that the petitioners were proper persons to adopt, rear, and educate said child, and thereupon ordered that it should become to all intents and purposes the child of said Perry Wheeler and Jennie Wheeler, and that its name be changed to Sherley Ruth Wheeler. No finding was made that any written consent was given to such adoption by the parents of said child, nor that either of its parents was hopelessly insane or a confirmed drunkard, or that they had abandoned said child, nor was any suitable guardian appointed for said child in such proceeding. Immediately after said adoption proceedings the relator heard of the same, and thereby learned of the location of his child. He immediately demanded its surrender, which being refused, he thereupon instituted this proceeding, asking for a writ of habeas corpus. Respondents pleaded the order of the superior court of Snohomish county, the surrender of said child by its mother, and said adoption proceedings. To this answer a reply was made by the relator, in which he affirmatively alleges that all of said proceedings surrendering said child to the Washington Children's Home Society are absolutely void, for the reason that no citation or notice or process of any kind whatever had been served or attempted to be served on him, either personally or by publication, or otherwise; that said adoption proceedings are also void, and that he had not abandoned said child, but had provided a suitable home for it with his mother. On trial findings of fact were made as requested by respondents, and findings submitted by the relator were refused. The evidence, however, shows the facts as above stated. The trial court entered a judgment in favor of respondents, awarding to them the custody of said child, and the relator has appealed.

Numerous assignments of error have been discussed, but they are all involved in two questions: (1) Were the proceedings by which said child was surrendered to the Washington Children's Home Society sufficient in law to deprive the relator of his rights as father? (2) Were the adoption proceedings valid and sufficient in law to confer upon respondents the right to the possession of said child, to the exclusion of its natural father? As between Stanley C. Le Brook and Florence E. Le Brook, his former wife, the relator is entitled to the exclusive custody and control of said child by virtue of the decree in the divorce proceedings above mentioned, which was entered prior to the alleged adoption of said child. Respondents contend that the...