Wallacewallace v. Blanchard

• Decision Date: 24 February 1920
• Docket Number: No. 2452.,2452.
• Citation: 190 P. 1020,26 N.M. 181
• Parties: EX PARTE WALLACE.WALLACEv.BLANCHARD ET AL.
• Court: New Mexico Supreme Court

26 N.M. 181

190 P. 1020

EX PARTE WALLACE.WALLACE

v.BLANCHARD ET AL.

No. 2452.

Supreme Court of New Mexico.

Feb. 24, 1920.On Motion for Rehearing, May 22, 1920.

Syllabus by the Court.

Under section 17, Code 1915, only the consent of the mother of an illegitimate child is required for its adoption. The consent of the putative father of a bastard child is not required for its adoption, nor is it essential that notice should be given to such father of the petition for adoption.

As the parents have no property right in a child, its custody may be given to others, even without the consent of the parents and without notice to them.

While the putative father of a bastard child might be entitled to its custody as against strangers, he would not be entitled to its custody as against adopting parents, upon whom rests a legal duty to support, educate, and care for such child.

At common law a bastard was looked upon as a son of nobody, and sometimes was called “filius nullius,” and sometimes “filius populi,” a child of the people, having no father and being incapable of inheriting, nor could he have heirs but of his own body.

Additional Syllabus by Editorial Staff.

Code 1915, § 1850, as amended by Laws 1915, c. 69, entitling illegitimate to inherit, the other statutory conditions appearing, although there were legitimate children, deals only with the right of inheritance, and does not cast upon the putative father the duty to support, care for, and educate such children during their minority, or change the rights of custody as between the putative father and those claiming the custody of such children under an attempted adoption.

The poor laws of England, under which the putative father was required to support his illegitimate child, did not, by the adoption of the common law, become a part of the law of the state.

Appeal from District Court, Chaves County; Bratton, Judge.

Habeas corpus by James Day Wallace, on behalf of Hazel May Wallace and Pauline Minta Wallace, minors, and James Day Wallace, against W. E. and Francis L. Blanchard, to obtain the custody of the two minors. Custody awarded to petitioner, and respondents appeal. Reversed, with instructions to set aside judgment and to restore the custody of the minors to respondents.

As the parents have no property right in a child, its custody may be given to others, even without the consent of the parents and without notice to them, in view of Code 1915, c. 2, § 21.

H. B. Hamilton, of Carrizozo, and Gibbany & Epstein, of Roswell, for appellants.

L. O. Fullen, of Roswell, for appellee.

ROBERTS, J.

Petitioner was awarded the custody of two minor children by habeas corpus proceedings. This appeal is from final judgment therein.

The facts, briefly stated, upon which the case must be decided, are as follows:

Respondents are brothers, and in the year 1918 they were living on the same ranch in Lincoln county, this state. It is conceded by counsel for petitioner that respondents are morally and financially qualified and able to have the care and custody of the infants herein named. In 1918, Mrs. Kaiser, a sister of petitioner, got in communication with the respondents by advertising that she had in her possession two girls, aged 10 and 12 years, for whom she desired to find a suitable home. As a result of the advertisement and subsequent correspondence, the children were delivered to respondents herein, and afterwards the respondents attempted to adopt them under the provisions of chapter 2, Code 1915, in the probate court of Lincoln county.

The children were the illegitimate children of one Effie May Searles, a married woman, now deceased, and petitioner claims to be the putative father of such children. That he is the father is conceded by respondents. Petitioner bases his right to the custody of the children upon the fact that he is the putative father; that under the statutes of New Mexico he was entitled to notice of the adoption proceedings; and that not having consented thereto, nor receiving notice of the proceeding, the order of adoption as to him was null and void.

The trial court evidently agreed with petitioner, because judgment was entered giving him the custody of the children. At the time the children were adopted the sister of petitioner, Mrs. Kaiser, informed respondents that the father of the girls was dead, and it appeared upon the hearing that at the time she delivered the girls to respondents she had not heard from her brother for about three years. He had left the children with his sister, with the agreement that she was to keep them together and return them to him when he should return home and reclaim them.

The trial court made no specific findings of fact, but generally found the issues in favor of the petitioner. We understand from the record that the moral fitness of the parties to the case and custody of the children was not considered by the trial court, and this question did not enter into the determination of the case. No opportunity was given the respondents to produce evidence as to the moral fitness of petitioner. The petitioner has resided at Ft. Scott, Kan., or Kansas City, Mo., practically all his life; and while affidavits were presented to the court attached to the return, showing the moral unfitness of petitioner, these were stricken upon motion of petitioner, and the court refused to postpone the hearing until witnesses could be produced or depositions taken to prove the same facts. The court refused the postponement, we assume, upon the theory that such a question was not involved in the case, if in fact the putative father had received no notice of the proceedings. Nor do we believe that the question of abandonment influenced the determination of the question by the trial court. It is somewhat difficult to determine the exact theory upon which the case was tried in the court below because of the pleadings in the case and the failure of the court to make specific findings of fact.

In petitioner's brief, after discussing the point raised by respondents to the effect that, as the children were born in wedlock--that is, the mother Effie May Searles, had a living husband, and it was not shown that they did not have access to each other--petitioner could not bastardize the children by the assertion that he was their father, because the question was not raised in the trial court. He proceeds:

“So, going directly to the point of the right of a putative father to have the possession, control, and care of his children, and to the necessity of his consent for any proceedings against them, appellee says:

‘The rule is well settled that the mother of an illegitimate or bastard child has a legal right to its custody, superior to the right of the father or any other person, but there is another rule of law which is equally well settled, and that is this: That while the legal right of the mother of a bastard is superior to that of the father, and although the right of the father to the custody of his bastard child is inferior to the right of the mother, his right is superior to the right of any other person, and, on the death of the mother, he becomes entitled, as against the world, to the care and custody of the child.’ ”

Thus we conceive the determinative question in this case to be: (a) Is the putative father of a bastard child required to consent to its adoption? and, (b) if not required to consent, is it essential that notice should be given to him of the adoption proceedings? This requires a consideration of the law of adoption and the right of a putative father to the care and custody of his children, independent of statute.

[1] The adoption of children is governed by chapter 2, Code 1915, §§ 13 to 25, inclusive. Section 13 provides that any minor child may be adopted by any adult person in the cases and subject to the rules prescribed in said chapter. Section 15 requires the consent of the husband and wife if living together and the child is legitimate. Section 17 provides that an illegitimate child cannot be adopted without the consent of its mother, if known and capable of consent. Section 19 requires the filing of a petition in the probate court by the party seeking to adopt, in which he is required to set forth the facts entitling him to adopt the child, and provides for the appearance before the probate judge of the party whose consent is required, if resident within the state, and the filing with the probate judge of the consent, if the parties who are required to consent are nonresidents of the state, which consent must be acknowledged as required by the statute.

Sections 21 and 22 read as follows:

“Sec. 21. Upon satisfactory proof that a child is abandoned and unprovided for by its parents or relatives, the probate judge shall permit such child to be adopted without the consent of its parents or relatives, upon the execution of the agreement hereinbefore required of the applicant.”

“Sec. 22. The probate judge must examine all persons appearing before him pursuant to the provisions of this chapter, and if satisfied that the interests of the child or children to be adopted will be promoted by the adoption by applicant, he must make an order declaring the child to be adopted by the applicant and thenceforth to be regarded and treated in all respects as the child of the person adopting; or if the applicant be such an association or corporation as mentioned in this chapter, the probate judge must make an order declaring such child or children to be adopted by such association or corporation, and thenceforth such association or corporation to be considered as having the custody and control of such child or children, in place of its natural guardians.”

From other sections of the statute it will be seen that it is the policy of the Legislature of this state to place the supervision of children of indigent parents, or who have been abandoned, under the control of the probate courts of the various counties....