Matter of Bistany , 239 N.Y. 19 ( 1924 )

This proceeding was instituted for the adoption of Ellen Matejka, an infant about six years of age, without the consent of her father and mother, upon the ground that she had been abandoned by them within the meaning of article 7, section 111, subdivision 3 of the Domestic Relations Law (Cons. Laws, ch. 14). The provision of the statute, so far as material, provides: "* * * but the consent of a parent who has abandoned the child, * * * is unnecessary * * *."

The county judge found that the father and mother had abandoned the child and made an order of adoption. The Appellate Division found that the father and mother had not abandoned the child, reversed the order, and dismissed the petition.

The sole question which the appeal brings before this court is whether the undisputed facts establish the abandonment as matter of law. All disputed facts have been resolved in favor of the respondents and are binding upon this court. What I consider the material facts, as bearing on the question of abandonment, are not in dispute.

Joseph and Susan Matejka were married on the 19th of June, 1913, and there was born to them, on the 23d of November, 1917, the child Ellen, whose adoption is here in question. Joseph Matejka, at the time of his marriage, had two sons by a former marriage, then about six and four years of age. Ellen is the eldest child of the present marriage. She has three younger brothers, who, at the time of the hearing, were four years, two years, and ten months of age.

In March, 1920, the father and mother lived (and still live) at 415 East Seventy-first street, New York city, in a tenement consisting of two bedrooms, a dining room, kitchen and bathroom, on the ground floor of a building with a grocery store in front, kept by the mother. The father was then, and since has been, earning from thirty to sixty-five dollars a week. The family then consisted of his wife and himself, the two children by his former marriage, Ellen, and a little baby boy.

Joseph K. Bistany and Katherine Bistany, his wife, the petitioners, live a short distance from Buffalo, N.Y., in the town of Cheektowaga, where they have a residence and three acres of ground. He has a profitable business in the city of Buffalo, from which he draws $5,000 a year, the balance of the profits made being left in the business.

Mary Feriancik, a sister of Mrs. Matejka, aunt of the child Ellen, was, at the time of the trial and for some fifteen years prior thereto had been, a housekeeper in the Bistany household. Another sister, Anna, had also worked for Mrs. Bistany, as had Mrs. Matejka.

In March, 1920, the sister Mary visited Mrs. Matejka in New York, and the child Ellen was then about two and a half years of age. She was just recovering from an attack of measles, was emaciated and undernourished, and her parents decided to send her to the Bistanys with her aunt, where she has since remained and been cared for by them exactly as if she were their own child.

The fact is not disputed that the father of Ellen never saw her from the time she was taken by her Aunt Mary, in March, 1920, until he saw her at the hearing of the present proceeding; that he had never written to or communicated with the petitioners during that time with reference to Ellen; that he had never contributed one cent during such time for her support or maintenance; nor is the fact disputed that during that time the mother had seen Ellen but once, and that was in the latter part of 1920, when she visited the home of the petitioners for a period of something like three weeks. She never inquired or made any effort to ascertain the condition of Ellen or how she was being cared for or treated, except possible reference to her in at most three letters which passed between her and her sister Mary, until shortly before the institution of this proceeding. She never contributed anything to her maintenance and support, and Ellen, during all that time, was never shown any affection or regard by her, except she did send her a little box as a Christmas present in 1921 and a belt as a birthday present in 1922.

It is true there is a dispute between the Matejkas and the Aunt Mary as to just what was said when the child Ellen was taken by the latter to the petitioners' home, and also what was said when Mrs. Matejka visited the petitioners in the latter part of the year 1920. The aunt testified that both Mr. and Mrs. Matejka insisted that she should take Ellen to the petitioners to keep and Mr. Matejka told her to take her and give her to the petitioners. Mrs. Matejka said that the talk was that Mary was to take the child to Mrs. Bistany's house "for a few weeks or a few months, but no longer," and the father testified she was to take the child to Buffalo "for a couple of weeks, or a couple of months." The fact, however, is undisputed that on the occasion of Mrs. Matejka's visit to the petitioners' home in the latter part of 1920, there was talk of a legal adoption of Ellen by the petitioners. The Aunt Mary testified that on that occasion Mrs. Matejka promised when she returned to New York to send adoption papers, while Mrs. Bistany testified Mrs. Matejka said: "She would never take the baby under any circumstances" and that the father "would never take it; * * * that the baby was ours." Mrs. Bistany testified she had already made a will, giving her property to Ellen, but she wanted to have a legal adoption. Mrs. Matejka admits she told Mrs. Bistany that she would will the child to her, but she denied promising to send the consent to the adoption papers, or that she said "the baby was ours."

The fact is undenied that on the occasion of that visit Ellen did not know her mother and the mother did not tell her anything about her parentage.

The conflict in the evidence as to these conversations I pass over as unimportant, since action, not words, must necessarily determine whether or not the child was abandoned. This must be determined from the conduct of the parties. An abandonment, in some respects, is analogous to desertion of a wife by a husband, and in order to ascertain that fact, the court always looks, not to what the parties say, but to their conduct. (Pulford v.Pulford, Law Rep. 1923, Prob. Div. 18, 21.)

The learned Appellate Division, as appears from the opinion, considered Mrs. Matejka's conduct while visiting the petitioners near the close of the year 1920, "reprehensible" and "if she alone were concerned, it might be sufficient to warrant a holding of abandonment. But the father's rights are also involved." If her conduct were reprehensible and might be a justification for an abandonment, what can be said of the father's conduct? He never indicated the slightest interest in his daughter from the day she left his house until she was produced on the hearing herein. He knew she had been taken into a family, strangers to his blood, who were caring for and maintaining her, but in what way, he had no personal knowledge, and, so far as appears, never sought to obtain any, or indicated the slightest interest in her existence.

In view of the decision of the Appellate Division, this court must assume that the parents gave the aunt permission to take Ellen to the petitioners' home to keep for only a couple of weeks or a couple of months, and at the time of the mother's visit a few months later she refused to consent to the adoption of Ellen by the petitioners. But, notwithstanding such assumption, the undisputed facts establish, as it seems to me, abandonment under the statute as matter of law. This court has never defined, so far as I am able to discover, the correct meaning of the word "abandon" as used in the statute. The purpose of the statute in determining the meaning of the word "abandon" must be considered. Its obvious purpose is to provide a way or means for the changing of parental rights and duties from natural to foster parents. The natural parents must consent to the adoption, unless they have abandoned the child, that is, have failed, neglected or refused to perform their parental duties toward the child. Here, they did not consent to the adoption. They did neglect, refuse and fail to perform the duties of natural parents. For three and a half years they wholly neglected to perform such duties, but permitted the child to be cared for and supported by the petitioners, upon whom neither the ties of relationship nor moral responsibilities imposed any duties whatever.

The term "abandon" means, it seems to me, neglect and refusal to perform the natural and legal obligations of care and support. If a parent withholds his presence, his care, the opportunity to display filial affection, and neglects to lend support and maintenance, such parent thereby relinquishes all parental claims and abandons the child. This meaning has been accorded to the word by some of the other courts of this State, and also in other jurisdictions under statutes quite similar to our own. (Matterof Larson, 31 Hun, 539; People ex rel. Lentino v. Feser,195 App. Div. 90; Winans v. Luppie, 47 N.J. Eq. 302; Wood v.Wood, 77 id. 593; Parsons v. Parsons, 101 Wis. 76;Children's Aid Soc. v. Davis, 100 So. Rep., 325. See, also,Allison v. Bryan, 30 L.R.A. [N.S.] 150, note.)

In Parsons v. Parsons (supra) the court, speaking of abandonment, said: "The term ``abandonment' obviously means no more than neglect or refusal to perform the natural and legal obligations of care and support which parents owe to their children."

Winans v. Luppie (supra) is in some respects quite like the instant case. There, the Orphans' Court made an order of adoption, against the objection of the natural mother. On appeal the order was reversed on the ground that the mother had not abandoned the child, but on appeal therefrom to the Court of Errors and Appeals, such order was reversed and the order of the Orphans' Court affirmed, on the ground that the facts established an abandonment as matter of law within the meaning of the New Jersey statute, which provided that the consent of a parent who had abandoned the child was unnecessary. In that case the mother, who was poor, had permitted the child to be "nurtured, maintained and educated" both secularly and religiously, as a daughter of the foster parents in a station of life far above that of the natural mother. That course of conduct was held to constitute an abandonment within the statutory sense, the court emphasizing the fact that the mother had allowed the daughter to acquire "habits, tastes and affections" conformable to the circumstances in which she was permitted to live, and that to break up such relations would seriously interfere with and endanger her happiness.

So, in the case now before us, if it be true, as contended by the respondents, that the father and mother of Ellen only allowed the Aunt Mary to take the child to the home of the petitioners for a couple of months and no longer, nevertheless, at the end of that time they permitted her to remain in the household of people upon whom she had no natural claim and to acquire habits and tastes conformable to a station in life much above their own. And if it be true, as testified to by the mother, that on her visit to the petitioners, near the close of the year 1920, she refused to consent to the adoption, she then knew, if she did not before, that the child had lost all memory of her mother and father, that she was being treated in every way by the petitioners as their own daughter, and she did not even then let the child know she was her mother. If it also be true that she expected the child to be shortly returned to her own home, she certainly gave no evidence of such expectation for nearly three years thereafter.

The undisguised fact is that both the parents of the child permitted her, for three and a half years, when she was of such tender years that she would retain no memory of her natural parents, or former home, to be taken into a family much above their own station in life, to be instructed and cared for by others as their own and to acquire a taste for material comforts and luxuries which they could not possibly give her. Now, at the age of six and a half years, they wish to break up those pleasant relations by taking her into an eastside tenement, consisting of a dining room, kitchen, two bedrooms and bathroom, already overcrowded by the parents and five boys. This, the court ought not to sanction. It is not for the interest of the child and her interest must certainly be considered. The statute clearly contemplates that. It says, if the judge be "satisfied that the moral and temporal interests of the person to be adopted will be promoted thereby" he "must make an order allowing and confirming such adoption, * * *." (Section 113.)

It seems to me there cannot be the slightest doubt in the mind of any one, upon the uncontradicted facts set out in this record, that "the moral and temporal interests" of this child will be promoted by the adoption.

The truth undoubtedly is that for some reason undisclosed the parents of the child have now changed their minds — whether on account of suggestions made by others or the existence of some sentiment, real or imaginary, we cannot say; but we can say, however, that they have neglected, for three and a half years, to perform their parental duties. They have permitted the child, during that time, to become accustomed to a manner of life, to make attachments and associations of which she cannot, without material injury to her, be deprived, without seriously endangering her happiness and well-being.

In view of that fact, I think we should hold that the parents abandoned this child, and, therefore, the petitioners can adopt her without their consent.

I am of the opinion that the order of the Appellate Division should be reversed and the order of the county judge affirmed.

HISCOCK, Ch. J., ANDREWS and LEHMAN, JJ., concur with CARDOZO, J.; McLAUGHLIN, J., reads dissenting opinion, with whom CRANE, J., concurs; POUND, J., not voting.

Order affirmed.