Opinion
February 28, 1916.
Franklin Bien, for the appellant.
Samuel H. Evins [ Toney A. Hardy with him on the brief], for the respondent.
The mother who, in neglect of the parental duty to nurture her children, allows them to be improperly exposed or neglected, is subject to arrest and to be brought before a proper court or magistrate, who may commit the neglected children to an institution. (Penal Law, § 486, subd. 2.) In such case, the Legislature, subordinating a parent's custody to the infant's welfare, considers the "child in need of the care and protection of the State." (Laws of 1910, chap. 659, § 39.) The Children's Court in Kings county had jurisdiction of such a proceeding. (Penal Law, § 486; Laws of 1910, chap. 659, § 39.)
In February, 1915, an agent of the Society for the Prevention of Cruelty to Children filed in this Children's Court an information, alleging that these three children above named (two aged five, and one of three) were found without proper guardianship, neglected by parents and guardians, in violation of section 486 of the Penal Law; that the father was dead; charging dissolute conduct on the mother (this appellant), even that her intercourse with dissolute men had occurred in the children's presence; also, that she had then left the children, and had gone to Buffalo with a male person, with whom she had a meretricious relationship.
After full hearings, in which appellant was represented by counsel, the charges were amply proven; whereupon, with testimony as to the children's religion, the learned justice on March 10, 1915, committed these children to the Greek American Institute of New York. Appellant attempted to test this disposition by a writ of habeas corpus, which, on March 26, 1915, Justice CLARK, of the Supreme Court at Special Term, dismissed, upon the return showing such commitment. From this determination appellant did not appeal. The uncle then took proceedings to adopt these children, but not on notice to appellant, who was referred to in his petition as having been deprived of custody of the children. It set forth the action by the Children's Court, annexing a copy of Justice WILKIN'S opinion, showing that the mother had been judicially deprived of their custody and they had been committed to the Greek American Institute of New York. The consents of others interested were attached. The order of adoption by the surrogate was made on April 10, 1915.
Appellant thereafter took the proceeding, which her appeal brings here, to set aside this order. After hearing, and upon filing an opinion, this was denied.
Her appeal raises the single point that, because of omission of notice to her, the Surrogate's Court was without jurisdiction. Our statute makes it unnecessary to give notice to a parent who is "judicially deprived of the custody of the child on account of cruelty or neglect." (Dom. Rel. Law [Consol. Laws, chap. 14; Laws of 1909, chap. 19], § 111, subd. 3, as amd. by Laws of 1913, chap. 569; formerly Dom. Rel. Law [Gen. Laws, chap. 48; Laws of 1896, chap. 272], § 61, subd. 3; revised from Laws of 1873, chap. 830, § 6.) Here the grounds were more than mere neglect. When the dissolute mother was arrested in the Buffalo hotel, these children had been left in the hands of a rheumatic old woman too infirm to undress them, so that, when taken, they were found asleep in their clothes at ten o'clock at night. Other conditions were shown calling for interference. A full investigation resulted in a commitment actually depriving appellant of her custody.
Appellant's counsel urges that "judicially deprived" requires that appellant should have been convicted of the offense mentioned. But this is to lose sight of the purpose of the Children's Court, which is not to convict, or punish, but to protect. Starting with the innovation of hearings of juvenile cases in a separate room, a new court followed, wherein it was often found that the first step was to take the child from the corrupting influence of bad surroundings. Justification for such a power to take the child away from depraved parents was taken from the old Chancery jurisdiction, exercised as parens patriæ — in former times invoked chiefly for children with property, or in connection with matrimonial decrees. On behalf of infancy, suffering from poverty, vice and neglect, this ancient Chancery doctrine was now laid hold of and turned to wider service. The interest of the child, not the punishment of crimes, are the subjects of the jurisdiction of Children's Courts. ( Commonwealth v. Fisher, 213 Penn. St. 48.) When such investigation, conducted with care, as the present record shows, results in taking away the children from the control and influence of the delinquent parent and committing them to an institution, she has been "judicially deprived of the custody" within our adoption statute. Otherwise, the permanent effect of Children's Courts, now carrying on beneficent work in cities of over thirty American States, would be lost or imperiled.
Furthermore, the dismissal of the writ of habeas corpus, sued out by appellant, was res adjudicata. ( Mercein v. People, 25 Wend. 64.)
Hence on this appeal, minute criticisms of abbreviations in the information and in the form of the commitment are unavailing.
The order of the Surrogate's Court of Richmond county should, therefore, be affirmed, with costs.
JENKS, P.J., THOMAS, STAPLETON and MILLS, JJ., concurred.
Order of the Surrogate's Court of Richmond county affirmed, with ten dollars costs and disbursements.