Bailey v. Mars
Bailey v. Mars
Opinion of the Court
This is an appeal by the defendants from a judgment of the Superior Court in Hartford County setting aside an interlocutory decree of the Probate Court for the district of Hartford. The decree approved a valid written agreement between the defendants and the plaintiff whereby the latter as natural parent gave to the former her minor illegitimate child in adoption. The question for determination is whether the plaintiff, who, pursuant to § 6866 of the General Statutes, had voluntarily joined in the agreement, had the legal right, at any time prior to a decree of adoption entered upon an application under § 6867, to withdraw her consent and thereby deprive the Probate Court of jurisdiction.
These pertinent facts found by the trial court are undisputed: In January, 1949, the plaintiff, an unmarried woman residing in Plartford, became concerned and emotionally upset upon learning that she was pregnant and that there was no possibility of assistance from the father upon the birth of the child. Pursuant to the suggestion and persuasion of the physician attending her, she later conferred with an attorney representing the defendants concerning the giving of
On June 26, 1949, the defendants, with the plaintiff’s approval and consent, took the baby from the hospital and have cared for her ever since. They have provided a suitable home for her and are in a position to give her a proper upbringing in a normal home atmosphere. Besides the probate expenses, they paid bills totaling $650 for the doctor, the attorney and the hospital. They have paid nothing to the plaintiff. The court concluded (1) that although the plaintiff’s original consent to the adoption was valid and freely given she had the legal right to withdraw it at any time before the Probate Court made a decree of adoption, and (2) that when she withdrew her consent, before any hearing or decree by the Probate Court, that court was
“Adoption is the establishment of the legal relationship of parent and child between persons not so related by nature.” 2 Locke & Kohn, Conn. Probate Practice, § 685. It results in a status that was unknown to the common law. Woodward's Appeal, 81 Conn. 152, 165, 70 A. 453. “Being of purely statutory origin, a legal adoption results if the statutory procedure is followed, but fails if any essential requirement of the statute is not complied with.” Goshkarians Appeal, 110 Conn. 463, 465, 148 A. 379.
The statutes directly involved in this appeal are § § 6866 and 6867. Section 6866 provides that, among other persons specified, the mother of any child born out of wedlock may, by written agreement, subject to the approval of the Court of Probate as provided, give in adoption to any person any minor child in her charge. Section 6867, so far as it is material in this case, prescribes the following procedure: Each adoption matter must be instituted by filing an application, together with the written agreement of adoption, in duplicate in the Probate Court for the district where the natural parent resides. The application must be signed by at least one of the parties to the agreement, who may waive notice of any hearing thereon. One of the duplicates must be sent to the commissioner of welfare for an investigation and report within ninety days. This report “shall indicate the physical and mental status of the child and shall contain such facts as may be relevant to determine whether the proposed adoption will be for the welfare of the child, including the physical, mental, social and financial condition of the parties to the agreement.” After receipt of the report, the court must set a day for a hearing upon the agreement and
Section 6867 contains no express provision permitting one who has joined in an agreement to give her child in adoption to withdraw her consent after the filing of the application in the Probate Court. Whether such a right of withdrawal exists by implication depends upon the interpretation and construction properly to be accorded the statute. The question for the court “is never what did the legislature actually intend . . . but what intention has it expressed.” Lee Bros. Furniture Co. v. Cram, 63 Conn. 433, 438, 28 A. 540; Finoia v. Winchester Repeating Arms Co., 130 Conn. 381, 385, 34 A. 2d 636; Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 301, 57 A. 2d 128; Mad River Co. v. Wolcott, 137 Conn. 680, 686, 81 A. 2d 119. The court may not, by construction, supply omissions in a statute or add exceptions or qualifications, merely because it opines that good reason exists for so doing. State ex rel. Heimov v. Thomson, 131 Conn. 8, 12, 37 A. 2d 689. This is especially so where it appears that the omission was intentional. State v. Nelson, 126 Conn. 412, 416, 11 A. 2d 856. In such a situation, the remedy lies not with the court but with the General Assembly. Davis v. Margolis, 108 Conn. 645, 649, 144 A. 665.
The statutory provisions prescribe an adoption procedure which, though simple, is stated with precision.
Under the original statute, enacted in 1864, approval of an adoption agreement by the Probate Court was made dependent upon its finding that this would “be for the welfare” of the child. Public Acts, 1864, c. 85, § 2. Similar phraseology has appeared in every subsequent revision of the General Statutes, including that of 1949 above quoted. The further provision for an investigation and a report to the Probate Court of the revelant facts concerning whether the adoption would be “for the welfare of the child,” first enacted in 1943, was designed to guarantee this result. Sup. 1943, § 649g. The same is true of § 650g, now § 6870 of the General Statutes, establishing the confidential status of probate court records in adoption cases, and of § 580, which safeguards the birth and adoption in
Section 6867 must be construed to effectuate this primary purpose in so far as its language permits. Its terms make clear that at the hearing in the Probate Court it is neither benefit to nor desire of the parties who have joined in the adoption agreement which is to control, but rather the court’s decision as to what is best for the child. The procedure prescribed is designed to afford the court the fullest opportunity to ascertain all of the facts and to enable it, after fully and deliberately considering them, to arrive at its decision. In the present case, it is undisputed that the plaintiff was a resident of the probate district, that she and the defendants signed the agreement and the application and that she also signed a waiver of notice of the hearing. From the instant the application and agreement were filed with the court, it had jurisdiction. To hold that the withdrawal of consent thereafter by a party to the agreement was effective to terminate that jurisdiction might well defeat the primary purpose of the
The fact that a plaintiff mother is without power to terminate the Probate Court’s jurisdiction by withdrawing her consent does not mean that the change of heart, or mind, so indicated by her can be ignored. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute. Terry’s Appeal, 67 Conn. 181, 185, 34 A. 1032; see E. M. Loew’s Enterprises, Inc. v. International Alliance, 127 Conn. 415, 420, 17 A. 2d 525. In the absence of fraud, coercion or other cause rendering the mother’s consent inoperative, the fact that after signing an adoption agreement she has changed her mind and attempted to withdraw her consent would not relieve her of her agreement. This would, however, become a very vital fact for the consideration of the Probate Court in determining whether under all of the circumstances the adoption would be for the best interest of the child and so should be approved. As the trial court’s memorandum of decision suggests, the determination of this
The question decided has never before been considered by this court. Many decisions in other jurisdictions have ruled on the question whether parents’ consent to adoption, once given, can be withdrawn and, if so, when and under what circumstances. Most of these are predicated upon varied statutory provisions, and none upon statutes identical with our own. To review these cases would unduly prolong this opinion without compensating benefit. It is sufficient to observe that the cases are in conflict. The majority of the earlier decisions held that consent could be revoked. More recently *the trend of authority seems to be the other way. For reference to the earlier authorities, see note, 138 A. L. R. 1038, and 2 C. J. S. 386; for reference to more recent decisions, see note, 156 A. L. R. 1011, and 2 C. J. S. 386 (Ann. Cum. Part 1951, n. 11-15.1). In comparing statutes of other states with ours, the distinction between a unilateral consent and an agreement, resulting in a contract, such as is required by the Connecticut statute is to be borne in mind.
Ry virtue of the plaintiff’s appeal from the decree of the Probate Court and her reasons of appeal, the trial before the Superior Court was a trial de novo. This potentially involved questions of fact as well as ques
There is error, the judgment is set aside and the case is remanded for further proceedings not inconsistent with this opinion.
In this opinion Jennings, Baldwin and Inglis, Js., concurred.
Concurring in Part
(dissenting in part). In the paragraph just before the rescript, the opinion appears to indicate that an appeal from a probate decree upon an adoption matter requires the Superior Court to hold a trial de novo in the broadest sense in which that expression is used. If the paragraph is intended to give approval to that procedure, I must register a dissent, although I am in accord with the opinion as it determines the substantive law of the case.
The statute gives to the Court of Probate exclusive jurisdiction over proposed adoptions. General Statutes § 6866. Jurisdiction is acquired through the action of one or both of the parties in filing an appli
Since the primary jurisdiction over adoption has been reposed in the Court of Probate, it cannot be usurped by the Superior Court. Home Trust Co. v. Beard, 116 Conn. 396, 400, 165 A. 208. Nor can the latter exercise a discretion vested in the former. Reiley v. Healey, 122 Conn. 64, 79, 187 A. 661. The Superior Court can go no further than to review the action of the Court of Probate in an effort to determine whether its discretion has been reasonably and legally exercised. Gwynn v. Tierney, 138 Conn. 425, 428, 85 A. 2d 250.
The remand in the case at bar goes too far. It should impose upon the Superior Court the limitation of determining no more than whether the Court of Probate acted illegally, or arbitrarily, or so unreasonably as to have abused its discretion.
Reference
- Full Case Name
- Mary E. Bailey v. Harry Mars Et Al.
- Cited By
- 58 cases
- Status
- Published