Matter of Bewly , 167 Cal. 8 ( 1914 )

This is an appeal by Sylvester H. Thompson and Lillie Thompson, his wife, from an order denying their petition for the adoption of Myrtle Alice Bewley, a minor.

The facts which are undisputed are as follows: The mother of the child was married to Bewley in November, 1911, after they had known each other for five weeks. The child was born January 2, 1912. When the baby was born Bewley was out of work and penniless and believing that he was not her father he was unwilling to assume the care of the infant. Mrs. Bewley, on January 18, 1912, took the child to Mr. Lewis, the superintendent of the Children's Home Society, and after she had explained her circumstances and her husband's unwillingness to support the child, Mr. Lewis accepted Myrtle Alice Bewley, on behalf of the society, first, however, having secured from the mother a writing, signed and acknowledged, by which the latter relinquished to the society all claim to the custody, services, and earnings of the minor, to the end that a home might be obtained for her. Such a home was soon secured and the child was placed with the petitioners who, a short time thereafter, filed their petition for the adoption of the baby. Thereafter the matter was duly heard, and among the witnesses examined were Mr. and Mrs. Bewley, whose circumstances had greatly improved. Both of the latter were ready and willing to undertake the custody and nurture of the child. The court, while expressing the opinion that it would be for the best interest of the child to let the mother have the custody of her, made no order with respect to the custody, but denied the petition of the Thompsons. This is the order which the appellants attack.

Appellants insist that it was error to allow any opposition to the petition on the part of the Bewleys because Mr. and Mrs. Bewley did not appear as parties contestant on the record and because Mr. Bewley, who was admittedly not the father, was without parental rights, while the mother had assigned all of her lawful interest in her daughter to the society. It is to be remembered, however, that this is not a contest between the society and the mother or between the society and her husband. It was the court's duty in considering the petition for adoption to examine witnesses who were familiar with the circumstances of the child's birth and previous custody. The contract between the mother and the Children's Home Society is not directly involved here. The principal question was whether or not the court would grant letters to the petitioners and the all important factor in that determination was, as always in such a proceeding, the welfare of the child. In the petition itself, the Thompsons asked that "all persons concerned in the subject matter be permitted to attend and be heard." In pursuing its inquiries the court, as we have said, examined the Bewleys as witnesses. There was no necessity for a formal contest of the petition on their part as a prerequisite to the taking of the testimony. The matter of adoption rests in the sound discretion of the court and in the exercise of that discretion information from all proper sources should be sought by the one who must determine the matters so momentous to the infant — the future home and the influences which shall surround the minority of the child. No higher discretion than this is vested in a court. After all of the formalities prescribed by the statutes have been complied with, the court must make the order that the child shall thenceforth be treated as the child of the adopting petitioners only "if satisfied that the interests of the child will be promoted by the adoption." (Civ. Code, sec. 227) As the matter of adoption rests so strongly in the sound discretion of the court, a denial of a petition to adopt will not be disturbed on appeal without the showing of a very grave abuse of discretion by the court. (In reWells, 60 Wn. 520, [111 P. 778].) The court below carefully considered all of the claims presented. The judge had no doubt that the officers of the society and the petitioners were acting with the best of motives and that the Thompsons were well qualified to be the adoptive parents of the little girl, but he declined to place her irrevocably where the young mother could never hope to possess and to care for her. He therefore denied the petition, and in this we find no abuse of discretion. In one of the briefs we are informed that the final custody of the infant was adjudged upon the hearing of a proceeding on habeas corpus, but with that fact we are not concerned here.

Finding no abuse of discretion by the court in denying the prayer of the petition, we hold that the order from which this appeal is taken must be and accordingly is affirmed.

Henshaw, J., and Lorigan, J., concurred.