Opinion
04-17-1920
Ex parte HOINES.
Edward Stover, of Hoboken, for petitioner. Thomas McCran, Atty. Gen., and Francis H. McGee, Asst. Atty. Gen., for respondents.
In the matter of the application on habeas corpus of Elizabeth Hoines, Sr., for the custody of her children, Elizabeth and Mary, twins. Heard on petition, return, traverse, answer, and replication, and proofs taken in open court. Custody of children awarded to petitioner.
See, also, Ex parte Kirschner, 111 Atl. 737. Edward Stover, of Hoboken, for petitioner.
Thomas McCran, Atty. Gen., and Francis H. McGee, Asst. Atty. Gen., for respondents.
STEVENSON, V. C. The writ of habeas corpus was employed in this case not to liberate the infant children from imprisonment or restraint of any kind. The writ was merely ancillary to the exercise of the jurisdiction of the Court of Chancery of New Jersey as parens patriae to determine the custody of infants who are brought within the control of the court by the writ. Baird v. Baird and Torrey, 19 N. J. Eq. 481; Buckley v. Perrine, 54 N. J. Eq. 285, 293, 34 Atl. 1054 et seq.
1. The important facts are as follows: The petitioner is living in a state of separation from her husband, who is not made a party to this proceeding. The evidence indicates that the husband is an irresponsible man of bad habits, who has deserted his wife and children at various times and for various periods. In 1915 the wife was caring for these two children, who are twins, then nine months old, but was unable by reason of illness or other adverse conditions to work for their support and her own; her husband having deserted her. Accordingly she appliedfor relief to the poormaster of Jersey City and was by him committed to the almshouse. The infant children were also in form committed to that institution.
The regularity and legality of the commitment of these two children is one of the questions raised in this case. The papers appear to have been altogether irregular, inasmuch as they recite that application for relief had been made by the children themselves to the poormaster. It is contended that such infants cannot be committed by the poormaster to an almshouse upon the application of any one on their behalf; that if the poormaster takes cognizance of the situation of abandoned pauper children he must proceed before a magistrate under the "Act concerning the welfare of children." L. 1915, p. 441, amended L. 1918, p. 217.
The State Board of Children's Guardians, having received notice that these children had in fact "become public charges," proceeded to assume the "care and general supervision over" them (2 Comp. St. p. 2820, § 64), and subsequently placed them in care of a family selected by the Board. Later the Board, in the exercise of its discretion, returned the children to their parents, who had become reunited, and who remained living together for a time.
There seems to be room to argue that this action of the Board was a surrender of its right of custody pursuant to the statute. 2 Comp. St. p. 2821, § 69. I received the impression from the testimony that the agents of the Board undertook only temporarily or experimentally to surrender or return the children to their parents; but I think it is very questionable whether by giving up the children in fact to their parents the Board did not terminate its right of custody as "the legal guardian" of the children which the statute (section 69) vests in the Board as against the parents. I think, however, that we may leave this question undetermined.
After a time the parents separated again, and the petitioner and the two children with whose custody we are dealing, and a third child, which the petitioner had born subsequently, became public charges in Boston, and were returned by the poor authorities of Boston to the poor authorities of Jersey City. The mother was again committed to the almshouse and the Board reassumed the custody of the children and placed them with another family, with whom they have since resided. The persons with whom the children are living, Mr. and Mrs. Grayson, have no children of their own, and appear to be in every way qualified to give, and they have given, the children a plain but comfortable home.
The mother having permanently separated from her worthless husband and having recovered her health has, for about a year past, been employed as forewoman in a candy factory in Hoboken, where she was employed before her marriage. She earns $20 a week. She is living with a man and wife named Penzig, in Hoboken. This couple appear to be respectable and worthy people, having no children of their own, and they are desirous of having the petitioner's children live with her and with them. The undisputed evidence in the case shows that the mother is an entirely responsible, sober, industrious woman, whose character is vouched for by her employer and others. The home to which she desires to take her children is a four-room flat, where Mr. and Mrs. Penzig reside, on a business street in Hoboken, and she and her children have the opportunity of occupying at present a good-sized comfortable room. They will be lodged and hoarded at an expense of $10 per week, so that the mother will have about $500 per annum to provide herself and her children with clothing and to pay other expenses of their living, besides the expense of board and lodging.
A comparison of the situation of the children where they now are with Mr. and Mrs. Grayson and their situation if they are taken to reside with their mother, leaving the personal equation out of view, may be conceded to favor somewhat the home of the Graysons.
The Board has refused the application of the mother for the children, and the evidence seems to show, as the superintendent, Miss Day, distinctly indicated, that its refusal is largely founded upon a consideration of the condition of the home which these children formerly had when the petitioner was dependent for support upon her worthless husband, and also upon a comparison of the two possible homes which the children may now have. There can be no doubt that throughout this affair the officers of the Board have been governed by a sincere desire to do their duty as they understood it, and to serve the best interests of these little girls. It is possible, however, that they take somewhat of a departmental view of the case and overlook considerations affecting the welfare of these children which are connected with a mother's care and love.
If these infant children were living with their mother, as now it is possible for them to do, and were supported by her as children of an industrious, employed woman, there can be no doubt that there is no lawful power in the state of New Jersey through any court, board, or other agency, to take them from the petitioner and give them to somebody else, merely because that somebody else could provide them with a better home with perhaps somewhat larger opportunities for getting from day to day exercise and fresh air. The Graysons live in a flat in a two-family house in the outskirts of the city of Paterson.
2. Counsel for respondents argues that the jurisdiction of the Chancellor of New Jersey as parens patriae in controlling the custody of infants is vested in the state as the successor to the King, and that originally in Englandsuch control was exercised by the Chancellor as the agent and representative of the King. It follows therefore, it is argued, that the Legislature can control the whole subject of the custody of infants without regard to the Jurisdiction of the Chancellor as parens patriae; that in the case of abandoned and pauper infants the state control is in the exercise of its police power, and that the exercise of such power involves no infringement of any constitutional jurisdiction of the Court of Chancery.
I incline to regard this argument as inconclusive, and to consider that in New Jersey the control of the Court of Chancery over infants is a part of its original, general jurisdiction, and that, while of course laws in regard to infants may be made and changed from time to time, the jurisdiction of the Court of Chancery to enforce those laws cannot be impaired by legislative enactment. I do not think, however, that it is necessary to decide this important question. I should hesitate to assume to decide it unless it were necessary to do so, and certainly not without a careful study of the subject, including an examination of all the authorities.
3. Assuming that the Legislature has power to displace the control of the Chancellor over the custody of infants, and transfer that control to the State Board of Children's Guardians, my conclusion is that the Legislature has not undertaken to make any such transfer.
The object of this legislation is not to establish a tribunal for the determination of disputes over the custody of infant children, or to displace parental care where better care in the judgment of the statutory tribunal can be provided. This legislation is based upon necessity, and is intended to provide as far as possible a substitute for parental care where such care is wanting. When a mother who has been rightfully deprived of the custody of her infant children, whom it was impossible for her properly to care for, comes out of the poorhouse and provides a home suitable for them according to her station in life, I do not think that it accords with any policy of the state of New Jersey, or any legislation of the state, to permit the State Board of Children's Guardians, or any board, or bureau, or commission to say to the mother:
"We have lawfully heretofore obtained custody of your children under the statutes of New Jersey, and have become the guardian of your children, and in the exercise of our absolute, unreviewable discretion we have determined that while you can take care of your children as well as thousands of persons of your class take care of their children, nevertheless your children will he better off and have a better start in life if they remain under our guardianship, and are not restored to you: therefore, in the exercise of our discretion, we refuse to surrender your children to you, although we must admit if you now had the custody of them there is no power in the state of New Jersey to take such custody from you."
There is a very important distinction between the right of a parent to the custody of an infant child and the duty of the parent to support and maintain that child. Wright v. Leupp, 70 N. J. Eq. 130, 134, 62 Atl. 464 (Pitney V. C. 1905). I had occasion to discuss this subject somewhat at length in the case of Ousset v. Euvrard (Ch.) 52 Atl. 1110, 1112, et seq. (1902), holding that a parent could make a "valid transfer of his rights, in reference to the custody of his child, to a person competent to take" such custody, but that the duty of the parent to support his child was not transferable.
The State Board of Children's Guardians conies forward in cases of necessity affecting the interests of infant children, and also the interests of the state, and affords care and protection to children of tender years who are practically deprived of all proper care and protection from their parents, their natural guardians, and, in order to empower the Board to act efficiently, it is made the guardian of the persons of such infant children. The statute indicates that this right of guardianship displaces all parental right, and the object and intention I think is to continue such displacement only as long as the exigencies of the case may require. Whenever the parent by a radical change of mode of life, with perhaps an access of fortune, becomes able once more to support his children, his untransferable duty to render such support manifests itself and can be enforced. These statutes do not clothe the State Board of Children's Guardians with any power to enforce this duty by compelling a parent who has become able properly to support his child to accept the surrender thereof, or furnish such support.
In this case, if the mother were not here in court exhibiting her intense affection for her children and pleading for their return, she might be compelled to provide for her offspring under the provisions of the statute which imposes upon her that duty and provides the means for its enforcement. Laws of 1904, p. 309; 3 Comp. Stat. p. 4023, § 30. If we assume that the Court of Chancery in a case like this has no power to compel a parent to support an infant child (Ailing v. Ailing, 52 N. J. Eq. 92, 96, 27 Atl. 655), it does not follow that the court has no power upon a habeas corpus to award the custody of an infant child to a parent who is able and willing to support it, and asks the court to give him an opportunity of doing so.
It is, I think, unnecessary to consider the fact that the father of these children, who has been grossly derelict in his duty toward them and toward their mother, has rendered some compensation to the State Board for the support which his children have received, and goes upon the stand to testify that he desiresthat the children be left under the guardianship of the State Board until they reach the age of 16 years. He makes no attempt to defend himself, and does not suggest that his wife, whom he has deserted, is not abundantly able to provide the children with a proper home. Aside from all legal duties, the moral duty of the mother to take back her children and give them the advantages of a mother's affection and care would stand, I think, as a potent factor in this case.
The State Board of Children's Guardians concerns itself only with the care of infant children who are without any suitable home the Court of Chancery acts in a far wider field, and not only recognizes rights but also duties with respect to the care of infant children, even where there does not exist a single element of the jurisdiction of the State Board.
If the extreme claim on behalf of the respondents in this case should be recognized, it would seem that, if a child of wealthy parents had been kidnapped and finally became a public charge and passed into the guardianship of this State Board, the parents, upon discovery of their child, would have no right through the Court of Chancery or otherwise to get back their child, but would be obliged to await the exercise of a purely discretionary power on the part of the Board to surrender their lost child to them.
If a mistaken or improvident exercise of discretion by the Board could be reviewed by a writ of certiorari, the result would be that the delicate duty of determining the custody of an infant child, which appropriately is vested in the Chancellor as parens patriae, would he transferred to the Supreme Court, a result which seems to me would be incongruous with our judicial system.
We have not undertaken in New Jersey to establish the policy that the state is to take care of children; that boards, however efficient, and however well able to provide homes for children, can displace and disregard parental authority and parental love. The institution of the family in New Jersey is still regarded as sacred—the family of the poor man as well as the family of the rich man.
The statutes creating the State Board of Children's Guardians, and any other legislation in pari materia, are directed solely toward securing the care and education of pauper children, children whose parents are unable to provide for them in respectable and moral conditions according to the condition in life of such parents. When the elements of poverty, abandonment, in brief, of necessity for the public welfare as well as for the welfare of the child, disappear, the function of the State Board of Children's Guardians, generally speaking, should cease.
I know of no reason why these little girls under five years of age, before this court, should not be placed in the custody of their natural guardian, this industrious, capable woman, whose tender affection for her children and ability and bona fide desire and intention to bring them up properly in the station in life which they naturally occupy have not been called in question.
An order will be advised awarding the custody of the children to the petitioner.