Whalen v. Olmstead

• Decision Date: 05 December 1891
• Citation: 61 Conn. 263,23 A. 964
• Court: Connecticut Supreme Court
• Parties: WHALEN v. OLMSTEAD et al.

23 A. 964

61 Conn. 263

WHALEN

v. OLMSTEAD et al.

Supreme Court of Errors of Connecticut.

Dec. 5, 1891.

Case reserved from superior court, Fairfield county.

Application by Margaret Whalen for a writ of habeas corpus. Case reserved. Writ denied.

L. N. Middlebrook and J. J. Phelan, for plaintiff.

D. B. Lockwood and A. B. Beers, for defendants.

FENN, J. This case comes before us upon a reservation. The action is habeas corpus, brought by the plaintiff as mother and lawful guardian of Josie Barry, a girl aged 11 years, against the defendants, who are the board of management of the temporary home for dependent and neglected children in Fairfield county. The facts found by the court below upon the issue properly presented by the pleadings are, in substance, as follows: The child was duly committed to the defendants September 6, 1888, by order of a mittimus of the city court of the city of Bridgeport, at the request of the plaintiff, who, in making such request, which she did in account of poverty, being in some degree chargeable to the town of Bridgeport, where she resides, supposed the child, when so committed, would be brought up a Protestant. In August, 1889, application was made by Rev. James B. Nihill, a Catholic clergyman, in behalf of the mother, to the board, to place the child in the home of the mother, subject to the supervision of the board. This request was not granted, the child having in fact, before that time, been placed in the family of Mrs. Almira Wooster, in Naugatuck, where she still remains, and is most kindly and well cared for. The child had been christened in the Catholic faith, and the mother preferred that it should be brought up in that faith, being that of its father, then dead, as well as her own. Finding that Rev. Father Nihill was willing, if he could obtain the child, to place it in the St. Francis Orphan Asylum, in New Haven, a Catholic institution of high character, and to support it there at the expense of the parish, she said to him that she would give him the whole charge of the child, and did give him full authority, so far as she was able, for such purpose. He thereupon went to the board, and de sired the surrender of the child to him for that purpose, which was refused. In fact, Mrs. Wooster is a Protestant, and has attended the Methodist church with the child. The child itself has never expressed any wish upon the matter, and until the spring of 1890 Mrs. Wooster did not know that the child was of Catholic parentage. Since knowing that the child was of such parentage, Mrs. Wooster has said that while Josie remained with her she should prefer that she should attend church with her; that is, at the Methodist church. The board has never interfered with the religious training of the child, and has no intention of doing so. A previous action of habeas corpus, upon the trial of which the foregoing facts appeared, having been dismissed in June, 1890, on the 28th of that month Father Nihill addressed to the defendants a letter, containing a power of attorney from the plaintiff, by authority of which he made demand for the full release of Josie Barry, adding: "The purpose of this application and demand being that said Margaret Whalen desires to resume her parental obligations, and through me, and I for myself, giving full assurance and security to you that said Josie Barry will hereafter be provided for, maintained, and educated in a suitable and proper manner at the St. Francis Orphan Asylum at New Haven, Conn." This was the beginning of a somewhat voluminous correspondence of a formal nature, extending until December 3, 1890, in which, on the part of Father Nihill and of Mrs. Whalen, successive requests were made upon the defendant board for the surrender of the child, to be placed, as aforesaid, in the St. Francis Orphan Asylum; to know the whereabouts of the child; to appoint certain reasonable dates upon which the plaintiff, Father Nihill in her behalf, or her duly-authorized agent, might have permission and opportunity to visit the child; and that she be caused "to be permitted and allowed to practice and exercise, and directed to practice and exercise, the teachings, discipline, and observances of the Catholic church ;" that the Catholic pastor of the parish in which the child resides be permitted to visit her at reasonable times each Sunday, and at other times to be designated by the board, to administer spiritual consolation and instruction, and that the child be placed in the private family home of Father Nihill. On the part of the defendants these requests were met by stating the whereabouts of the child, and by the promise "to appoint reasonable times at which Mrs. Whalen may visit her daughter, of which we will give Mrs. Whalen notice." To the other requests they declined to accede. The court below further found that the board has never in fact appointed times at which Mrs. Whalen might visit her daughter, and given her notice thereof as promised, but that such failure has been through no intentional disregard; that the board has at all times since said promise been ready at any reasonable time to bring the child to Bridgeport, and to give the mother lull opportunity to visit it at their office, and offered at the time of the hearing to fix such times for the future if desired. It is also found that Father Nihill, "a person of good repute, and of ample means and responsibility, is ready either to afford assistance to Mrs. Whalen to enable her (if not herself able) to support and care for the child in her own home, to take the child into his own home, (his household consisting of a female relative, who is his housekeeper, and himself,) or to place her in the St. Francis Orphan Asylum in New Haven, and in either place to provide for and insure a suitable support and education for the child." On these facts the plaintiff contends that the object and intent of the statutes relating to "Homes for Dependent and Neglected Children" (Gen. St. c. 228) is to retain children in custody only until the...