Adoption of Tom Minors , 37 Haw. 532 ( 1947 )

I respectfully dissent. In my opinion, the evidence negatives a voluntary surrender of the care and custody of these children and is insufficient to sustain a finding of abandonment.

The terms "abandonment" and "voluntary surrender" as employed in Revised Laws of Hawaii 1945, section 12271, are not synonymous. Both have to do with the relinquishment by natural parents of the care and custody of their minor children to others but while the effect is the same, that is, relinquishment is complete, the means of its accomplishment are different. The majority of the adoption statutes of other States to which recourse has been had do not include voluntary surrender as a cause of disqualification to refusal of parental consent. The term "abandonment" alone is used and voluntary surrender has been construed as an abandonment.¹ Of the four statutory causes of disqualification to refusal of parental consent contained in section 12271, two are "abandonment" and "voluntary surrender of care and custody" to another. The effect of the association of both terms in the same section as separate grounds for dispensing with parental consent is to restrict their definitions and connotations. The term "abandoned" as used in the statute does not therefore include "voluntary surrender" but refers to the inference of law that arises from the unilateral acts of the parent or parents having the care and custody of their children, while the term "voluntary surrender" has reference to the bilateral acts of the parent or parents having the care and custody of their children and the person or persons to whom that care and custody is relinquished. Moreover, the term "abandoned" as employed in the statute does not mean mere neglect or negligent failure to observe parental duty.² The abandonment must be willful³ and with the settled purpose "to forego all parental duties."⁴

The severance of the legal relation existing between a natural parent and his or her child without the consent of the former is in derogation of a substantial natural right⁵ and where consent is dispensed with only under certain statutory conditions adoption without the consent of the parent must come clearly within the statutory exceptions. Hence it is that in adoption by judicial proceedings the provisions of the statute dispensing with consent are strictly construed. This strict construction is implemented by imposing upon those seeking the adoption of children a degree of proof not ordinarily required in civil actions. Differently from the usual rule that he who has the affirmative must sustain his position probatively by a preponderance of the evidence, in adoption cases before it may be said that a parent has abandoned or voluntarily surrendered the care and custody of his or her child to another, the evidence in support of the alleged abandonment or surrender must be "clear and satisfactory,"⁶ "clear and indubitable,"⁷ "every intendment is in favor of the claim of the parent,"⁸ and "parents are entitled to the benefit of every controverted fact."⁹ The realism of the rule is reflected in the following language of the late Mr. Justice Cardozo in Matter of Bistany, supra. "To prevail they [the petitioners] must be able to show that even though the parents be given the benefit of every controverted fact, a finding of abandonment follows as an inference of law.

"Controversy, where there is any, being resolved in favor of the parents * * *.

"We are unable to yield to the petitioners' contention that the facts above recited point so decisively to an abandonment that every other inference must be held to be excluded."

In his dissent McLaughlin, J., adopted the thesis of the majority in the following language: "All disputed facts have been resolved in favor of the respondents [parents] and are binding upon this court." The MacLean case was decided before theBistany case and neither the Willing nor Munzel case cites the Bistany case or discusses the rule of degree of proof there adopted.

To properly evaluate the evidence we should appreciate its background. These were not normal times. The period involved is from the middle of the year 1942 to February, 1946, when the petitions for adoption were filed. To war's alarms were added domestic misfortune, a wife and mother afflicted with an incurable disease, a sudden separation of the parents, disrupted family life, temporary residence of the children with relatives, importunities by these same relatives for their adoption actively encouraged by the wife, proceedings for divorce instituted by the wife accompanied by a controversy over the disposition of the children, the departure of the father from Honolulu to be with his divorced wife in New York, the return and death of the wife, and the husband apparently stunned and unable to adjust himself to the realities. From this father under these conditions normal reactions are not to be expected.

There was no voluntary surrender of these children to the care and custody of their aunts. Keeping in mind the legal incidents of "voluntary surrender" as that term is used in the statute, one need only consider the evidence of Mrs. Yee to the effect that she told Mr. Tom prior to his departure for the mainland in November, 1943, and after he had refused to permit the adoption of the children, that conditions could not continue as they were. This evidence absolutely negatives any bilateral arrangement from which it may be said that Mr. Tom surrendered the care and custody of the boy to Mrs. Yee and the girl to her sister Louise.

Nor can it be said that "a finding of abandonment follows as an inference of law" from the conduct of the father. Neither the petitions for adoption, the decision of the trial judge, nor the briefs of appellee in this court attempt to define any period as the specific period of abandonment of which the father was guilty. The evidence below covers a wide field — from the middle of the year 1942 to the date of the trial in August, 1946. It is a fielder's choice. No claim is made, however, that an abandonment occurred prior to departure of the father to the mainland on November 28, 1943. And I assume that petitioners rely upon some period of six months within the period from November 28, 1943, to February 13, 1946, when the petitions were filed.

The bases of petitioners' claims of the father's abandonment are (1) failure of the father to communicate with the children or the persons who had their custody; (2) long disinterested absence; and (3) failure and neglect on the part of the father to make provision for the maintenance and education of his children.

Grounds (1) and (2) are considered together. Assuming, but not deciding, that the decree of divorce of November 12, 1943, is entitled to full faith and credit, the father's action must be judged by his legal status in relation to his children as fixed by the laws of Hawaii except as modified by the divorce decree. Under the laws of Hawaii the care and custody of minor children are committed to their natural parents jointly, that is, each of the parents has an equal voice in the matter. Reciprocally, the law imposes the duty upon the natural parents to support and maintain their children during the period of their minority. The right of care and custody was modified by the foreign divorce decree but not the obligation to maintain and support so that upon and after November 12, 1943, the care and custody of the two children were vested in the father with the right of visitation in the mother and their maintenance and support were imposed upon both.

It is undisputed that in September, 1943, upon the first return of Mrs. Tom from the mainland, both Mrs. Yee and her sister Louise importuned Mr. Tom for his consent to their adoption of the children, that Mrs. Tom urged and encouraged their adoption by her sisters and that Mr. Tom was adamant in his refusal, especially to the adoption of the little girl Patricia by Louise Loo. Under the circumstances it is understandable why the father did not write. Obviously the children were too young to write to personally. On the other hand, Mr. Tom testified that he did not write to his sisters-in-law because he did not want to renew the controversial question of adoption. Nor was it necessary to write to the aunts concerning their welfare. Mrs. Tom was in New York until July, 1945, and she retailed to her ex-husband the news which she received from her sisters about the children. Parental love and devotion are not to be measured by articulation.

Nor are any adverse inferences to be drawn from Mr. Tom's long absence on the mainland. Whether his apparent lack of interest was the fact has already been pointed out. Mr. Tom left Honolulu in November, 1943, due to his wife's illness. Despite the divorce, she had his affectionate concern. The evidence is open to the inference that the divorce proceedings were instituted by the wife at the instance of her sisters for the specific purpose of her securing the sole custody of the children and thereby dispensing with the necessity of the father's consent to their adoption. The father circumvented this design by insisting that he would contest the divorce unless the custody of the children was awarded to him. Moreover, despite the divorce it appears that Mrs. Tom was in communication with her husband after she left for the mainland in September, that he awaited her establishment of a domiciliary residence in Nevada and upon receipt from her of a cable he left for the mainland. His evidence, quoted in the margin, is illuminating.¹⁰

Finally, as to the father's failure to make provision for the support of his children. It is undisputed that due to the circumstances that precipitated its occasion, the arrangement by which the children originally became members of Dr. Yee's household was purely temporary and its duration was conditional upon the success of the medical treatment which Mrs. Tom sought abroad. Nor is it disputed that the terms or duration of the children's residence, at first jointly at Dr. Yee's home, and later, after September, 1943, separately, the boy with Dr. Yee and the girl with her aunt Louise Loo, were never defined. This evidence is fairly open to the inference that Dr. and Mrs. Yee took the children into their home and undertook their care gratuitously and not in consideration of any promise on the part of Mr. or Mrs. Tom, either express or implied, to pay any specific amount therefor or the reasonable value thereof. Both Dr. Yee and his wife were financially able to care for the children without contribution from their parents and the same may be said of Louise Loo in respect to her custody of the child Patricia. There is no question in my mind that had the father or the mother suggested payment for the care of the two children it would have been considered by the aunts as a gratuitous insult. The mere failure to contribute to the support of the minor children under the circumstances does not impress me. No demand was ever made by either Dr. or Mrs. Yee or by Louise Loo for contribution to their support and it was not expected.

Apparently his wife was this man's first concern and he remained in New York indefinitely on her account. Nothing occurred to occasion any concern about the children. They were enjoying the best of care. The same considerations that counseled placing them in the custody of his wife's sisters still obtained. His original intention to remain away from Honolulu for only three months, expressed to Mrs. Yee before he left, was submerged in his consideration for his wife. Under the circumstances it is understandable that he allowed the care and custody of his children to remain in status quo. It is conceivable that despite the divorce, Mr. Tom paid his wife's expenses while the latter was in New York from November, 1943, to July, 1945, or at least contributed in a large measure thereto and welcomed the assistance afforded by the aunts' gratuitous maintenance of his children. Where the legal duty of a natural parent to support a minor child is gratuitously assumed by another to whom the care and custody of the child is temporarily transferred and such other performs such duty it certainly cannot be said that the acceptance by the parent of such performance by such other constitutes a failure on his or her part to perform his or her legal duty. No more so does it constitute willful abandonment. The father was no more guilty of abandonment than the mother. No one would have the hardihood to declare that upon and after November 12, 1943 (the date of the decree of divorce), the mother abandoned her children, or had she lived that she had forfeited her right to refuse consent to the adoptions. Of course, when his wife returned to Honolulu in July, 1945, and passed away the following September, he should have made an effort to adjust himself to realities, including provision for the personal care and custody of his children. But the worst term that can be reasonably applied to his actions is "neglect." His conduct, in my opinion, cannot be characterized as a willful abandonment. His excuses for his failure to return to Hawaii earlier, judged by hindsight, are obviously inadequate, but however inadequate they are not sufficient to sustain a finding of willful abandonment.

¹ In Re Cohen's Adoption, 279 N.Y. Supp. 427.

² In Re Guardianship of Baldwin, 130 Ore. 206, 278 P. 1078, 1079.

³ Lacher v. Venus, 177 Wis. 558, 188 N.W. 613; Truelove v. Parker, 191 N.C. 430, 132 S.E. 295, 299.

⁴ State Ex Rel. Le Brook v. Wheeler, 43 Wash. 183, 86 P. 394, 396, cited with approval In Re Walker, 170 Wash. 454,17 P.2d 15.

⁵ Meyer v. Nebraska, 262 U.S. 390, 399; Pierce v. Society of Sisters, 268 U.S. 510, 535; Sinquefield v. Valentine, 159 Miss. 144,132 So. 81, 83; In re Knott, 138 Tenn. 349, 197 S.W. 1097, 1098; Jackson Et Ux. v. Spellman, 55 Nev. 174, 28 P.2d 125; Lacher v. Venus, 177 Wis. 558, 188 N.W. 613; Gilmore v. Kitson,165 Ind. 402, 74 N.E. 1083.

⁶ Matter of Cozza, 163 Cal. 514, 126 P. 161, 165; Petition of Rice, 179 Wis. 531, 534, 192 N.W. 56.

⁷ Matter of Petition of Kelly, 25 Cal. App. 651, 658,145 P. 156.

⁸ Matter of Petition of Kelly, supra.

⁹ Matter of Bistany, 239 N.Y. 19, 145 N.E. 70.

¹⁰ "Q Why did you go to the mainland? A On account of my wife leaving me. She has that serious operation. She had to have the breast removed. So I thought it was very serious." (tr. p. 40.) "Q Where did your wife live when she went up there to get her divorce, she lived in Reno? A She lived in Reno. Q Did you ever see her after she got a divorce? A Yes. Q In Reno? A No. In fact, she went to New York, where I left the same day. She left Reno, and I left [for] New York the same day. Q Now, just a minute. She was in Reno in November, 1943, when she got a divorce? A Yes. She left for New York, I think, in a few days or a week after. Then I left there about two days." (tr. p. 48.) "Q How long did your wife stay in New York? A A year and a half or two years. Q How often did you see her after your divorce? A Sometimes I see her often, sometimes I didn't. Q Once a month? A Sometimes; sometimes longer." (tr. p. 51.)