Matter of Bistany

Cardozo, J. In September, 1923, Joseph K. Bistany and Katherine, his wife, submitted to a judge a petition that Ellen Matejka, then about six years of age, be adopted as their child. The parents are alive, and have refused to consent to the adoption. The county judge held that they had abandoned the child, and that because of such abandonment their consent was unnecessary. Section 111 of the Domestic Relations Law (Consol. Láws, ch. 14, as amended by L. 1922, ch. 628), though providing for consent in general, establishes an exception in the" case of “ a parent who has abandoned the child, or is deprived of civil rights, or divorced because of his or her adultery or cruelty, or adjudged to be insane, or to be an habitual drunkard, or judicially deprived of the *21 custody of the child on account of cruelty or neglect.” The Appellate Division, to which the parents appealed, made a new finding that there had been no abandonment, and reversed the order of adoption on the law and the facts. From the order of reversal, the petitioners appeal to this court. To prevail they 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, the following facts may be found to be established: In June, 1920, Joseph and Susan Matejka were living at 415 East Seventy-first street in the city of New York. With them were four children, two sons by a former marriage, and a son and a daughter by this marriage. The daughter, Ellen, was then about two and a half years old. Joseph Matejka, the father, was employed as foreman in an automobile factory, and at the time of the hearing was earning sixty-five dollars a week. Susan Matejka, the mother, kept a small grocery store in front of the apartment, which consisted of a living and dining room, two bedrooms, a kitchen and a bathroom. Mrs. Matejka had a sister, Mary Feriancik, who was then serving as housekeeper in the home of the Bistanys at Cheektowaga, near Buffalo. This sister came to New York city in June, 1920, to visit the Matejkas, and, upon leaving, took the child Ellen with her. The child had been ill, and it was thought the chango would do her good. Nothing was said about a permanent separation. On the contrary, the statement was that she was to be away about two months,-which, it was then thought, would be sufficient to permit her health to be restored. The aunt, Mary Feriancik, does indeed, testify that she was told even then to give the child to the Bistanys and have them keep it as their own. This seems improbable since there is no pretense that the new parents had been consulted about an enlarge *22 ment of their household. The triers of the facts have accepted the parents’ version. After Ellen’s departure, Mrs. Matejka was ill for many weeks, suffering from rheumatism and other ailments. In November, 1920, she also went to Cheektowaga, where she stayed for some weeks as a guest under the petitioners’ roof. She says that while she was there, she was asked by Mrs. Bistany to consent that Ellen be adopted, and in-answer she refused. True, the testimony for the petitioners presents another picture. Again we must assume the acceptance of the parents’ version. Mrs. Matejka, upon leaving, was about to take the child away with her, but was dissuaded by her sister. The sister urged that Ellen be left there for the present till the mother became stronger. Moved by these entreaties, Mrs. Matejka came back alone. She was still in poor. health, and soon afterwards became with child. A baby was born to her in 1921, and another in the summer of 1923, a few months before the hearing. She wrote some letters to her sister, though infrequently, inquiring about Ellen, and was informed that all was well. Finally, she became restless, and wished the child to be returned. About Christmas, 1922, she wrote to her sister, and proposed to go again to Cheektowaga and take the child away. The sister answered that the Bistanys had other company, and that a visit, would be inconvenient then, but that she would come to New York in the spring and bring the child with her. Again there is a denial by the sister, but again we must act on the assumption that the denial has been discredited. The spring came, but not the promised visit. Mrs. Matejka then sent another sister, Anna, to Cheektowaga with instructions to bring the child home. This was in May, 1923. Anna reported on her return that the Bistanys took the ground that they would keep Ellen for themselves. About the same time the parents employed a lawyer who wrote a letter of demand, but still without avail. The birth of the *23 youngest child made it impossible for the mother to go to Buffalo at once. She went there on September 7, 1923, and made demand in person that Ellen be returned. A few weeks later this proceeding was begun. 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. The mother refused in the latter part of 1920 to consent to the adoption of her child. The refusal was warning to the petitioners that there was no intention to abandon, and that custody, if retained, was subject to the parental right. The significance of the events that followed was for the triers of the facts, to be viewed, however, in the light of the events that had- gone before. The child was left where she was for more than two years longer without request that she be sent home. Conceivably this might mean that the parents had changed their mind, and were willing to give her up. At least as reasonably it might mean that their position had been declared, and that sufferance could no longer be misinterpreted as surrender. We see little, if any, significance in the failure to send money. A different case would be here if there had been the slightest reason to believe that contributions of money were either needed or expected. The child was with kind friends under the same roof as her aunt. The parents knew full well that the childless couple who had taken the little one into their home were moved by interest and affection, and were not looking for pay. We can hardly doubt that money, if tendered, would have been scornfully returned. Unwise the parents may have been in the acceptance of favors so unusual. They did not forfeit their parenthood in becoming the recipients of bounty. We have no thought to understate the case for the petitioners or the equities of their position. Undoubtedly, *24 the inference is permissible and even necessary that father and mother were willing for the time being to leave the child with generous folk of ample means who were anxious to have her with them and to care for her as their own. More than that must be shown before this order may be disturbed. After the finding by the Appellate Division adverse to the petitioners, the order under review must stand unless we are prepared to hold that by acts so unequivocal as to bear one interpretation and one only the parents manifested an intention to abandon the child forever. They may have weakly hesitated. They may have foolishly delayed. They may have drifted into a situation in which their desires and expectations were open to misconception. They may even have experimented a little, to test their own feelings. All that is not enough. They must be found to have renounced. The petitioners would have us hold that what began, so to speak, as a loan, was thereafter transformed into a gift, and this though a readiness to give had been explicitly disclaimed. We cannot say that silence and inaction were prolonged to such a point that an intention to surrender becomes an inference of law. Stress has been laid in argument upon the welfare of the child, her prosperity and happiness. We do not dwell upon such considerations, for they are foreign to the issue. We digress merely to state that nothing in this record gives color to a suspicion that the parents are actuated by any sinister design. If the proceeding were habeas corpus, to determine custody alone, there would be need to consider whether the welfare of the child might be held to be controlling. The petitioners ask for more than custody. They seek to make the child their own. The order must be affirmed with costs.