Boslund v. Rice

Crownhart, J. Adoption proceedings are provided by statute. It is provided that no adoption shall be 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, when such con [534] sent may be given by the parent, if any, having the care of the child. In case of abandonment consent may be given by the court or next of kin. The issue turns in this case solely on the question of abandonment. The county judge found that the mother had abandoned her child, and the question is, Did the evidence justify the finding? On the hearing the written opinion of the county court, its findings of fact and conclusions of law, together with its judgment, in the habeas corpus proceeding wherein the mother sought to secure the custody of her child from the respondents herein, were introduced in evidence. We think the opinion of the court, its findings of fact, and conclusions of law were not admissible in the adoption proceedings. 22 Corp. Jur. p. 801, § 913; 10 Ruling Case Law, p. 1116, § 323; State ex rel. Shea v. Evenson, 159 Wis. 623, 150 N. W. 984. On this question the county court was in doubt, but found that if such evidence was excluded, still there was sufficient evidence in the record upon which to make, and upon which it did make, a finding to the effect /that the appellant had abandoned her. child. In an adoption proceeding the burden of proof is upon the petitioners to establish the facts justifying the adoption. Not having the consent of the mother to adopt the child, it was necessary for the petitioners to show that the child had been abandoned by its mother. This court has strongly expressed itself as favoring the natural rights of the parents to the control and custody of their children. Lacher v. Venus, 177 Wis. 558, 188 N. W. 613. These rights will not be taken from them except upon clear and satisfactory evidence. Under the California Code, providing that the consent of a parent to adoption is unnecessary in case of an abandoned child, the supreme court held in In re Kelly, 25 Cal. App. 651, 145 Pac. 156: “Mere failure of the parents of a minor child, in the custody and under the care of a third party, to contribute, [535] while it is in such custody and care, to the support and maintenance of such child for a period of one year, does not itself constitute an abandonment. . . . “To constitute an abandonment under said section of the Code, it must appear by clear and indubitable evidence that there has been by the parents a giving up or total desertion of the minor. In other words, there must be shown an absolute relinquishment of the custody and control of the minor, and thus the laying aside by the parents all care for it.” We have gone over the evidence in this case very carefully and we cannot find sufficient evidence in the case to justify the court in finding that the mother had abandoned the child. True, she did not give the child the parental care she might have given it under other circumstances, but there is no evidence to show that she ever intended to wil-fully abandon the little girl. The little girl was left with the appellant’s mother, and there is no evidence to show that the arrangements between the daughter and the mother were not mutually satisfactory. The custody of the child was thereafter transferred to an aunt, who it might well be presumed had a kindly interest not only in the little child but in the mother, of the child. The mother returned to visit her child on several occasions, and it would seem that she always found the child being prqperly cared for. The respondents here made no complaint to the mother that she did not furnish money for the support of the child. It might well be that they recognized her inability to do much along that line. That the mother showed affection for the child and a desire to reclaim it as soon as she was in a position to give it a home is-admitted. We think the evidence falls far short of that convincing quality necessary to permanently deprive the parent of her offspring. By the Court. — The order of adoption herein is reversed, with directions to dismiss the petition for adoption.