Opinion
No. 33751
Decided June 9, 1954.
Parent and child — Minor unwed mother — Possession of child surrendered to relatives shortly after birth — Mother's conduct after reaching majority an affirmance of agreement — Abandonment of child — Mother cannot later regain possession, when — Blood relatives in temporary legal possession — Not in violation of Section 1352-14, General Code — Appeal on questions of law — Court of Appeals — May not substitute its judgment for that of trial court.
1. Where an unwed mother immediately after the birth of a child surrenders possession of the child to blood relatives and thereafter her conduct with respect to said child is such as to amount to abandonment of the child, such mother can not after a period of approximately seven years regain possession of such child through a habeas corpus proceeding instituted against the relatives to whom possession of the child was so relinquished, where in the judgment of the trial court it will serve the child's best welfare for the child to remain in the possession of those relatives.
2. Where blood relatives of an unwed mother of a child come into legal temporary possession of such child while under two years of age and such child is thereafter abandoned by its mother, the relatives so having possession of the child can not be said to knowingly be a party to the separation of the child from its parent so that their retaining possession of the child can be considered in violation of any of the provisions of Section 1352-14, General Code (Section 5103.17, Revised Code).
3. Where an 18-year old mother of an illegitimate child shortly after the birth of such child executes a written instrument surrendering possession of the child to blood relatives and takes no steps to disaffirm such agreement for a period of four years after reaching majority, such conduct on the part of the mother may be found by the court to constitute affirmance of the agreement.
4. In an appeal on questions of law, the Court of Appeals can not substitute its judgment for the judgment of the trial court. (See Trickey v. Trickey, 158 Ohio St. 9, and cases therein cited at page 14.)
APPEAL from the Court of Appeals for Portage county.
This is an action in habeas corpus instituted in August 1952 in the Court of Common Pleas of Portage County, Ohio, by the petitioner, as the mother of Sheila Tilton who was born August 14, 1945. The respondents, who are husband and wife, are the brother and sister-in-law of the petitioner.
Because of its completeness we here set out in full the finding of facts made by the trial court. It is as follows:
"1. On August 14th 1945 the petitioner was delivered of the infant whose custody is here in question, out of wedlock, and while petitioner was of the age of 18 years.
"2. Petitioner and child three days after birth of child, were brought to the home of respondents who are the brother and sister-in-law of petitioner where child has continuously ever since resided and, by the respondents, been cared for, maintained and educated.
"3. While petitioner was still bedfast at respondents' home petitioner declared she did not want child, and waived all parental rights, and that respondent June Tilton was to have her child. Petitioner at or about this time wrote and signed a declaration to same effect which was afterwards burned when respondents' home was destroyed by fire (testimony of June Tilton, George Miller, Mrs. Harvey Miller, Dorothy Rhinehart, Genevieve Scott and Shirley Monroe).
"4. Petitioner was fearful that her father would learn of her illegitimate child and would disinherit her and place her, the petitioner, in some institution.
"5. At petitioner's instance petitioner was declared to be and was known as her child's aunt, and respondents as child's mother and father, and child was brought up without knowing otherwise until about a year ago.
"6. About April 1946 petitioner was married to John Love her present husband and has established ever since a home with him.
"7. A short time after child's birth petitioner bought certain clothing and equipment incident to its care approximating $42 in price, and paid to respondents at the rate of $5 to $10 per week intermittently until petitioner's marriage in April 1946. It is not clear whether these payments aggregated more than $25 in all, nor whether they were for child's support or were reimbursement for lying-in expense to respondents. Thereafter except for occasional Christmas and birthday presents nothing was contributed by petitioner.
"8. In March 1946 at P. J. Restaurant husband of petitioner suggested to respondent June Tilton that he would not contribute to child's support but would take child. Also in early 1947 some conversation was had between petitioner's husband and June Tilton about expense of milk (testimony of John Love). After the beginning of 1948 desultory talk of petitioner concerning resuming the duties of parenthood ceased (testimony of petitioner).
"9. On August 8, 1952 Shirley Monroe advised petitioner's father of the illegitimate birth of this child to his daughter the petitioner, and on August 12th this proceeding was filed in this court.
"10. During the seven years from the child's birth until the filing of this proceeding, with the possible exception of the first seven months, the petitioner literally did nothing for this child; assumed no responsibility for its care in sickness or in health, contributed nothing to its training or education; displayed no affection for it; was unwilling to have it known as her child; was content to have it pass as petitioner's niece; was careless of its security and supinely willing to impose upon respondents every duty and every responsibility of parenthood."
Based upon that finding of facts, the trial court refused to award possession of the child to the petitioner.
Appeal was prosecuted on questions of law only to the Court of Appeals where the judgment of the trial court was reversed and final judgment rendered for the petitioner.
The cause is in this court upon the allowance of a motion of the respondents to certify the record.
Messrs. Campbell Morrison, for appellee.
Messrs. Loomis Jones, for appellants.
The petitioner seriously urged in the Court of Appeals that the trial court erred in admitting testimony concerning the alleged writing executed by her, shortly after the child was born, waiving petitioner's parental rights. The Court of Appeals considered this alleged error but did not pass upon it. That court said:
"Assuming, but not determining, that the trial judge properly admitted secondary evidence of an alleged destroyed written agreement between the parties there is no evidence that petitioner could legally execute such an instrument, on the contrary there is evidence that she was but eighteen years old at the time of the alleged execution of such alleged agreement; nor is there any evidence that she abandoned, or intended to abandon, such child."
This court is content to accept the finding of the trial court that such instrument was executed by the petitioner within a few days after the child was born, and that prejudicial error was not committed in the submission of the evidence with respect to the execution of that instrument. We also agree with the position taken by the member of the Court of Appeals who dissented that the mother, although a minor at the time of the making of the contract, was content to enjoy its benefits without disaffirmance for approximately four years after attaining her majority and that such conduct amounted to affirmance of the contract if any were necessary.
The one serious question raised is whether under present Ohio statutes the Common Pleas Court could enter an order against the petitioner in a habeas corpus proceeding and thus, for practical purposes, deny the mother the custody of her child.
In determining all questions of possession or custody of children it has long been the law of Ohio and the general law that it is the welfare of the child that is first to be considered. As early as 1855 this court held in Gishwiler v. Dodez, 4 Ohio St. 615, that, in a controversy between parents for the custody of a child incapable of electing for itself, the order of the court should be made with a single reference to the child's best interests and that neither of the parents has any rights that can be made to conflict with the welfare of the child.
Again in Clark v. Bayer, 32 Ohio St. 299, 30 Am. Rep., 593, this court held that "in all cases of controverted right to custody the welfare of the minor child is first to be considered."
This guiding principle has been consistently followed by the trial courts of this state to the present time. In recent years commendable legislation has been passed dealing with the care and custody of infants but in so legislating the General Assembly can not be said to have disregarded the fundamental principle above stated.
The court's attention has been directed particularly to the following sections of the General Code:
Section 1352-12 (Section 5103.15, Revised Code) provides that a parent may enter into an agreement with a certified child-caring institution or association for temporary care of a child or make an agreement with such certified institution or association for the surrendering of the child into the permanent custody of such institution or association. We view that section as permissive. It authorizes the making of such an agreement but it is not exclusive.
Section 1352-13 (Section 5103.16, Revised Code) provides:
"No child under two years of age shall be given into the temporary or permanent custody of any person, association or institution which is not certified by the Division of Charities, Department of Public Welfare, as provided in Sections 1352-1 and 1352-6 of the General Code, without the written consent of the Division of Charities or by a commitment of a Juvenile Court. Provided such child may be placed temporarily without such written consent or court commitment with persons related by blood or marriage * * *." (Emphasis supplied.)
Section 1352-14 (Section 5103.17, Revised Code) provides:
"It shall be unlawful for any persons, organizations, hospitals or associations which have not been approved and certified by the Division of Charities, Department of Public Welfare, to advertise that they will adopt children or place them in foster homes, or hold out inducements to parents to part with their offspring, or in any manner knowingly become a party to the separation of a child from its parent, parents or guardians, except through a Juvenile Court commitment."
It is obvious that this section of the Code is designed to prevent the advertising of children for adoption or placement in foster homes, and the last clause of the section must be read in connection with the provisions contained in Section 1352-13, which permit the temporary placement of a child with blood relatives.
Other sections of the Code deal with adoption but adoption is not here involved.
It is the judgment of this court that the child in question immediately after its birth was lawfully placed in the home of the respondents and that the respondents legally came into possession of the child under the provisions of Section 1352-13, General Code.
It has long been the law of this state that the right to custody of a child may be forfeited through abandonment. Such was the decision of this court in Clark v. Bayer, supra. We do not believe that the law in that respect was changed by present statutory provisions. In this instance the trial court found, and we believe correctly, that the conduct of the mother amounted to abandonment of the child. Consequently, the mother's right to regain possession of the child through a habeas corpus proceeding may be found to be forfeited. We agree with the decision and judgment of the trial court that in a habeas corpus proceeding possession of the child should not be awarded to the petitioner.
This being an appeal on questions of law and not on questions of law and fact, the Court of Appeals is bound by the finding of facts of the trial court if those findings are supported by any substantial evidence. We have no difficulty in determining that the trial court's finding of facts is amply supported by substantial evidence. The Court of Appeals, therefore, had no power to reverse the judgment and render final judgment contrary to that of the trial court. The most the Court of Appeals could have done was to reverse on the weight of the evidence and remand to the trial court.
The judgment of the Court of Appeals is reversed and the cause is remanded for further proceedings in accordance herewith.
Judgment reversed.
WEYGANDT, C.J., TAFT, HART, ZIMMERMAN and STEWART, JJ., concur.
LAMNECK, J., concurs in paragraphs one, two and four of the syllabus and in the judgment.