In Re the Adoption of Tom

*533 OPINION OF THE COURT BY KEMP, C. J. (Peters, J., dissenting.) On February 13, 1946, Samuel L. Yee and wife Doris Loo Yee (hereafter referred to as Dr. and Mrs. Yee) filed their petition in the circuit court, first circuit, at chambers in adoption, for leave to adopt Geison Tom, a minor, wherein it is alleged: That said minor was born March 24,1939, of Patrick Wah Hoon Tom (hereafter referred to as the father or appellant) and Bernice Yun Yee Loo Tom (hereafter referred to as the mother), then husband and wife and who were divorced November 12, 1943; that the petitioner, Mrs. Yee, is a sister of the mother of said minor; that the father left Hawaii November 28, 1943, and has never returned and that petitioners are informed that he at one time resided at 58 La Salle Street, New York City, but petitioners have no knowledge of his present address; that the mother died September 24, 1945; that said child has been under the care, custody and control of petitioners since November 28, 1943; that the father has abandoned *534 said child for a period in excess of six months and voluntaxfilv surrendered the care and cxxstody of said child to petitioners and others for a period of over two years; that petitioners are fit and proper persons and financially able to have the care, cxxstody and control of said minor; that said child is physically, mentally and otherwise sxxitable for adoption by petitioners, who bear great love and affection toward him; and that sxxch adoption will be for the best interest of said child. On the saxxxe day, February 13, 1946, Louise Loo, an unmarried woixxan, filed her petition in the same court for leave to adopt Patricia Shxxh Yi Tom, born September 7, 1940, of the same parents as Geison Tom. The petitioner is a sister of the xnother of Patricia aixd her petitioix contains identical allegations with the petition of Dr. and Mrs. Yee. The court ordered notice of hearing of the two petitions to be served on the father by pxxblication in the Honolulu Advertisei', which was done, and in response thereto on August 27, 1946, the father answered each of the petitioixs, denying that lie had either abandoned said child for a period in excess of six months or that he had voluntarily surrendered the care and custody of said child to petitioner and others for a period of two years, and denying that it is for the best interest of said child that said child be adopted by petitioner. There was no denial of other allegations in the petitions. The two petitions were heard together and the circuit judge decreed the adoptions as prayed. In each decree there are findings that the father had abandoned the child for a period in excess of six months and had voluntarily surrendered the care and cxxstody of the child to petitioner and others for a period over two years; that the petitioxxer is a fit and proper person to be aixd become the parent of said child and financially able to give the child a proper *535 home and education; that the adoption will he for the best interest of the child. Prom the decrees the father prosecutes these appeals, which have been briefed and argued together, and which will be disposed of by this opinion. Our statute, section 12271, Revised Laws of Hawaii 1945, provides in part: “Written consent must be given to the adoption of the child, if of the age of sixteen years; and in all cases of adoption written consent shall be given by each of the living legal parents who is not hopelessly insane, habitually intemperate, or has not abandoned the child for a period of six months, or who has not voluntarily surrendered the care and custody of the child to another for a period of two years or over * * * . If the parents are unknown or have so abandoned or surrendered the child, the consent to adoption shall be signed by the legal guardian of the child; or if there be no legal guardian, then the court may appoint some suitable person to act in the proceedings as the next friend of the child; provided, however, that no hearing upon a petition for adoption, where the written consent of each of the living parents has not been obtained, shall be had until such non-consenting parent shall have had due notice, actual or constructive, as hereinafter provided, of the time and place of hearing.” The appellant specified errors which he condensed into two questions presented for decision, as follows: “1. Did the lower Court err in finding that Mr. Tom had abandoned his children, PATRICIA AND GEISON, for a period in excess of six months, or had voluntarily surrendered the care and custody of said children to the Petitioners and others for a pexfiod of two years within the meaning of the Adoption Statute, so as to render unxxecessai-y Mr. Toixx’s consent to the adoption of his children? “2. If the findings of the lower Court that Mr. Tom *536 liad abandoned and surrendered his children within the meaning of the Adoption Statute be upheld on this Appeal, did the lower Court err in having failed to require that consent to the adoption of the children be signed by their legal guardian, or if there be no legal guardian, by the next friend of the children appointed by the loAver Court, pursuant to the provisions of the Adoption Statute, before decreeing the adoption of the children?” If either voluntary surrender or abandonment for the statutory period is supported by sufficient evidence the finding on the issue first stated must be upheld. The evidence bearing upon the questions of abandonment and voluntary surrender of the children by the father is not in serious conflict and may be summarized as follows : Sometime within the first half of the year 1942 the mother of said children, as a result of illness, became unable to personally care for them. She and her husband and their two children then went to live with I)r. and Mrs. Yee. When an operation disclosed the nature of the mother’s illness to be a malignant cancer of the breast her immediate relatives, including her sisters Mrs. Yee and Miss Loo, were anxious to have her go to New York where she could receive a character of treatment not available in Honolulu. The father opposed her going to New York for treatment for the alleged reason that her condition was such that treatment could not prevent her early death and it would be a waste of money to send her away for treatment. Her immediate family, however, including her brother-in-law, Dr. Yee, arranged for her trip to New York and Dr. Yee went with her and placed her in the hospital where the treatment was to be administered. The only evidence as to who paid the expense of her sojourn in New York for this treatment is that given by the father, who says that he sent her some six or seven thousand dollars while she was away. She left Honolulu for New York in *537 September 1942 and left her children and her husband living with the family of her sister and brother-in-law, Dr. and Mrs. Yee. She returned to Honolulu in June of 1943, at which time she was still physically unable to look after and care for her two children, and she returned to the home of Dr. and Mrs. Yee, where she continued to reside until she again left Honolulu in September of 1943. Just prior to her departure in 1943 the question of what should be done with the children was discussed by Mrs. Yee, Miss Loo, the father and mother, and a sister of the father, at which time it was agreed that Miss Loo should take Patricia and that Geison should remain with Dr. and Mrs. Yee. When the mother left Honolulu in September 1943, the father remained at the home of Dr. and Mrs. Yee until Thanksgiving Day of that year, when he left the Territory. Before he left the Territory, Mrs. Yee attempted to have an understanding with him as to the care and possible adoption of his children, but Avas unable to reach one. When told that the then arrangement could not continue indefinitely, he insisted that he would not be gone from Honolulu more than two or three months. He proceeded directly to New York where he arrived in December 1943 and where he has resided ever since. From the time he left the Territory he has not at any time communicated Avith Dr. and Mrs. Yee or with Miss Loo or Avith his children, nor has he contributed or offered to contribute anything to the support of his children at any time since they have been in the custody of the petitioners. He never returned to Honolulu until August 1946, when he came solely for the purpose of attending the trial of these adoption proceedings. When the mother left Honolulu in September 1943 she first Avent to Reno, Nevada, where in November 1943 she obtained a divorce from her husband, and later went to New York for further treatment. She again returned to Honolulu and to the home of her sister, Mrs. *538 Yee, in June of 1945, where she resided until her death, September 24, 1945. The father’s evidence as to what he plans for his children if the adoptions are denied follows: “Q You feel that you can take care of the children? “A Yes. “Q Now, what arrangement have you got to take care of these children? “A Well, I have my sister in Sacramento. “Q And she is willing to take care of the children? “A Yes. “Q You will be there to supervise? “A I will be there to supervise. “Q You have at no time shown any intention of taking the children away from Louise and Doris here? “A No.” When questioned as to why he felt that it would not be better that the children be adopted he replied: “Because if they are adopted they have a stigma.” The subject was not further pursued. The only Hawaii case relied upon is Adoption, Virginia De Silva, 32 Haw. 443. There the mother upon procuring a divorce from her husband consented to the inclusion in the decree of divorce of a provision awarding the care, custody and control of the child to the husband and reserving to her the “right to visit said minor child once a week, on Sundays, wherever said minor child may then be residing, between the hours of one and 5 P. M.” Held, that such a qualified care and custody as Avas awarded to the father and consented to by the mother being subject to revocation by the judge upon the application of either party and upon proper showing, the surrender, in so far as it may be considered such, not being complete does not constitute a surrender of the care and custody of the child within the meaning of our statute on adoption, and that her written *539 consent to the adoption remained indispensable. No question of abandonment was raised or discussed in this case. We must therefore resort to decisions from other jurisdictions for guidance in deciding whether or not the evidence is sufficient to support the finding of abandonment. The consent of the natural parents or surviving parent to an adoption proceeding is quite uniformly required in the statutes of the various States unless the parent has deserted the child or failed to support it. (1 Am. Jur., Adoption of Children § 36.) “The right of a parent with respect to his child is not an absolute paramount proprietary right or interest in or to the custody of the infant, but is in the nature of a trust reposed in him, which imposes upon him the reciprocal obligation to maintain, care for, and protect the infant, and the law secures him in this right so long as he shall discharge the correlative duties and obligations, and no longer.” 1 Am. Jur., Adoption of Children § 41. There is a sharp conflict of authority as to what conduct amounts to an abandonment within the meaning of the statutes. In some jurisdictions the abandonment which will render parental consent to adoption unnecessary has been defined wholly or in part by statute. Decisions from those States are not helpful. In the States where the term has not been defined by statute the term is generally construed to mean no more than neglect or refusal to perform the natural and legal obligations of care and support which parents owe to their children. Our statute contains no definition. When once the abandonment is shown to have existed it becomes a judicial question whether it really has been terminated, or can be, consistently Avith the welfare of the child. Where a resumption of parental rights would not be for the best interests of the child, the court may laAvfully deem the abandonment irrevocable, so far as the claims of the parent are con *540 cerned. (2 C. J. S., Adoption of Children § 21 d [2].) It must be apparent that it would be difficult to frame a definition of abandonment which could reasonably be applied to all cases. The most successful attempt to frame such a definition coming to our attention is contained in In re MacLean, 179 N. Y. S. 182, where it is said that “The term ‘abandonment’ means neglect and refusal to perform the natural and legal obligations of care and support. If a parent withholds his presence, his love, his care, the opportunity to display filial affection, and neglects to lend support and maintenance, such a parent relinquishes all parental. claim, and abandons the child.” Citing Matter of Larson, 31 Hun, 539. In Winans v. Luppie, 47 N. J. Eq. 302, 20 Atl. 969, it is held that the statutory notion of abandonment does not necessarily imply that the parent has deserted the child or even ceased to feel any concern for its interests; that it may fairly and does import any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child; that when once the abandonment is shown to have existed, it becomes a judicial question whether it really has been terminated, or can be, consistently with the welfare of the child; that when, in pursuance perhaps of' the abandonment, new ties have been formed and a new station in life has been taken by the child it might be unjust that, solely because of the parent’s caprice, legal sanction should be refused to the new conditions and that under such circumstances a court might lawfully deem the abandonment irrevocable so far as the claims of the parent were concerned. In re Potter, 85 Wash. 617, 149 Pac. 23, holds that the mere filing of an objection to the adoption by a parent is not sufficient to show that there was no previous abandonment. The court, in holding that where an abandonment *541 has been shown the best interests of the child is the paramount issue, reasoned somewhat as follows: It cannot be said because a woman has given birth to a child that she has a mother love for it. Mother love does not depend upon the pains and perils of childbirth. It is not every child that is welcome. On the other hand, there is an affection that grows from care and association and the tender ministrations which are prompted by heartfelt sympathy for the Aveak and helpless. These beget a love as real as the love of a mother, and more, for the one who voluntarily assumes such a privilege must have far deeper maternal instincts than one Avho is an umvilling mother. A very recent well-reasoned case by'the supreme court of Pennsylvania is Davies Adoption Case, 353 Pa. 579, 46 A. (2d) 252, from which Ave quote the following: “Abandonment is not an ambulatory thing the legal effects of which a delinquent parent may dissipate at Avill by the expression of a desire for the return of the discarded child. We do not mean to say that the natural parental right to a child, which has been nullified by abandonment, may not later be retrieved. It may be. But, as the parent’s consent to an adoption is no longer necessary, once abandonment has been proven Avith required legal sufficiency, the welfare of the abandoned child is the primary and paramount concern of the court unaffected by the desire or caprice of the abandoning parent. * * * The emotional disturbance to a child that would threaten from its being removed summarily and permanently from familiar and agreeable surroundings and associations, incident to the only parental control and supervision it has ever known, could have a very harmful effect on the child’s whole life. Fortunately, the laAv’s regard for a child’s welfare does not admit of any such injury or harm being done it.” In Parsons v. Parsons, 101 Wis. 76, 77 N. W. 147, the applicable statute is quoted in the opinion as follows: “No *542 such adoption shall he made without the written consent of the living parents of such child, unless the court shall find that one of the parents has abandoned the child, or gone to parts unknown.” Said the court: “Thus it will be seen that, upon the fact being established that the living parent has abandoned his child, he is deemed by the statute to have relinquished all parental right to be consulted in respect to the child’s welfare, and his consent to the adoption is therefore dispensed with. The term ‘abandon’ 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..” There are cases cited and relied upon by the appellant which are in conflict with the rationale of the decisions to Avhich we have referred. In re Bistany, 239 N. Y. 19, 145 N. E. 70, is relied upon by appellant in opposition to the holding that he had abandoned his children within the meaning of the statute. That case was decided by a divided court. The majority "opinion was by Cardozo and the minority opinion by McLaughlin. The majority opinion cited no authority for its conclusion, Avhereas the minority opinion cited numerous authorities supporting its conclusion. We iioav have referred to us two additional New York cases more recent than the Bistany case, which hold with the minority opinion in that case. They are In re Willing’s Adoption, 43 N. Y. S. (2d) 834 (1943), and In re Munzel, 290 N. Y. S. 178 (1936). We concur in the strong dissent of Judge McLaughlin in the Bistany case, and in the opinion of the surrogate in the case of In re MacLean, supra. It can hardly be questioned that the evidence which Ave have summarized meets the test of sufficiency laid down in these opinions. What, then, is the effect of the abandonment upon the rights of the father of the abandoned child? His written consent to the adoption is no longer necessary but he still *543 must be given proper notice of the time and place of hearing and full opportunity to contest the adoption. However, under such circumstances the welfare of the abandoned child becomes the primary and paramount concern of the court, unaffected by the desire or caprice of the abandoning parent. (Davies Adoption Case, supra.) Although the appellant in his answer denied that it would be for the best interest of his children that they be adopted, Ave find the evidence to be amply sufficient to support the conclusion of the circuit judge. Appellant admitted in effect that he is not prepared to give his children a home in New York where he is domiciled. His home there consists of a studio apartment. The only alternative suggested Avas that his sister in Sacramento, California, is willing to take care of the children; but the record is silent as to the suitableness of the home of his sister or as to her financial ability to properly care for them. It is apparent that the appellant has no intention of establishing a home in which to rear his children and personally nurture and care for them, and that he Avould be content to leave them permanently where they are. The complaint occasioned by the failure of the circuit judge to appoint some suitable person to act in the proceedings as the next friend of the children deserves very little consideration. The statutory authority for the appointment is permissive instead of mandatory. In other words, it is not jurisdictional (Van Matre v. Sankey, 148 Ill. 536, 36 N. E. 628) and the record fails to show that the question of the necessity for such an appointment was raised below. It is not argued that the children, for whose benefit the statute was enacted, have suffered for the want of a next friend. Under such circumstances it is apparent that no prejudicial error Avas committed. The decrees appealed from are affirmed. *544 H. Y. G. Glioy (Fong & Miho with him on the briefs) for appellant. J. G. Anthony (Robertson, Gastle & Anthony on the briefs) for appellees.