New York Foundling Hospital v. Norton

79 P. 231, 9 Ariz. 105, 1905 Ariz. LEXIS 83

• Court: Arizona Supreme Court
• Decided: January 21, 1905
• Docket: Criminal No. 209
• Status: Published

Opinion

KENT, C. J.

(after-stating the facts as above). — This proceeding, though not presenting questions difficult of determination, or points of law that are novel, is unusual in many of its features, and is important as determinative of the disposition and welfare of a number of little children, ignorant of the contest that is being carried on in regard to them. Our decision will determine the question of their environment, the circumstances under which they shall be brought up, the foster parents and homes they are to have, and will affect their future probably to a greater degree than any one circumstance that can now come into their lives. The importance to them of a proper determination of this proceeding has caused us. to adopt the unusual procedure of hearing the evidence orally before the full bench, and we deem it proper, although the ease has only in the past few days been closed, to determine the matter now, while all the parties concerned are before the court, and to state the facts as wé find them and our conclusions somewhat at length, although opportunity has not been given to formulate them other than hastily.

The question presented for our determination primarily is, What disposition of these children will be for their best interests? They are brought before us by the petitioner, claiming its legal right to their custody. The respondents appear and claim their custody, alleging also a legal right. Whether a legal right exists, either on the one side or the other, such right is not conclusive upon us; and while it is properly a factor to be taken into consideration in determining the welfare of the children, such welfare is the controlling, vital determinative fact.

The supreme court of Massachusetts with that clearness of diction so frequently characteristic of its opinions, has, in the case of Woodworth v. Spring, 4 Allen, 321, — the parent case, often cited and followed, — so fully covered the law upon this subject that we deem it desirable to quote here the greater portion of that opinion. Speaking through Mr. Chief Justice Bigelow, the court in that ease said: “The child whose custody is in controversy in this ease is legally domiciled in the state of Illinois. That was his domicile of origin, and as he has had hitherto no legal capacity to acquire a new one, and as the guardian appointed in the place of his origin has never intended to change the domicile of his ward, that of his birth still continues. Story on Conflict of Laws, par. 46. In determining the question of his legal custody in this commonwealth, he is therefore to be regarded as a foreign child who is lawfully within the jurisdiction of this state, having been brought within its limits not forcibly or clandestinely, but with his own consent and with that of the petitioner, his duly appointed guardian under the laws of Illinois, who had the lawful custody of his person in that state. So much seems to be clear, and, if the right to the possession and control of the person of the child depended on his domicile, the right of the petitioner to claim the custody of his person would be indisputable. But we are unable to see that the facts that the child was bom in another state, and that he has never by an act or election of his own or of his guardian obtained a new home here, have a decisive bearing on the question at issue in the present case. He is now lawfully within the territory and under the jurisdiction of this commonwealth, and has a fight to claim the protection and security which our laws afford to all persons coming within its limits, irrespective of their origin or of the place where they may be legally domiciled. Every sovereignty exercises the right of determining the status or condition of persons found within its jurisdiction. The laws of a foreign state cannot be permitted to intervene to affect the personal rights or privileges even of their own citizens while they are residing in the territory and within the jurisdiction of an independent government. Effect may be given by way of comity to such laws by the judicial tribunals of other states and countries, but ex proprio vigore they cannot have any extraterritorial force or operation. The question whether a person within the jurisdiction of a state can be removed therefrom depends not on the laws of the place whence he came or in which he may have his legal domicile, but on his rights and obligations as they are fixed and determined by the laws of the state or country in which he is found. . . . The comity of a state will give no effect to foreign laws which are inconsistent with or repugnant to its own policy, or prejudicial to the rights and interests of those who are within its jurisdiction. Even the parental relation, which is everywhere recognized, will not be deemed to carry with it any authority or control beyond that which is conferred by the laws of the country where it is exerted. The patria potestas of a foreign parent over his child is not that which is vested in him by the laws of the place of his domicile, but that which exists by virtue of the parental relation in the country where the father seeks to enforce his authority. These well-settled principles are founded on the necessity of securing and preserving to every state the exclusive sovereignty and jurisdiction within its own territory, and avoiding the confusion and conflict of rights and remedies which would ensue from attempting to give extraterritorial effect to the varying laws of different countries. ‘Statuta suo cluduntur territorio, nee ultra territorium disponnnt.’ Every nation has an exclusive right to regulate persons and property within its jurisdiction according to its own laws and the principles of public policy on which its own government is founded. It results from these principles that persons exercising offices and trusts with which they are clothed by virtue of the laws of a particular state or country cannot undertake to transfer their power or capacity to act, so as to control persons or property situated beyond the limits of the jurisdiction of the government or sovereignty from which their authority is derived. An administrator appointed under the laws of a foreign state cannot act as such in this commonwealth. Nor, for like reasons, can a guardian appointed by virtue of the statutes of another state exercise any authority here over the person or property of his ward. His rights and powers are strictly local, and circumscribed by the jurisdiction of the government which clothed him with the office. Story on Conflict of Laws, par. 499. ... So far, therefore, as the claim of the petitioner to the custody of the child in the present case rests on a supposed rightful authority to control his person in this commonwealth by virtue of Ms appointment as guardian in the state of Illinois, it is not supported either on principle or authority. He cannot assert his tutorial power de jure in our courts or within our territory. But it by no means follows that Ms claim to the care of the child and the control of his person, and to the privilege of removing him from this commonwealth, is to be absolutely denied. On the contrary, it is the duty of the courts of this state, in the exercise of that comity which recognizes the laws of other states when they are consistent with and in harmony with our own, to consider the status of guardian which the petitioner holds under the laws of another state as an important element in determining with whom the custody of the child is to continue. It would not do to say that a foreign guardian has no claim to the care or control of the person of his ward in this commonwealth. If such were the rule, a child domiciled out of the state, who was sent hither for purposes of education, or came within the state by stealth, or was brought here by force or fraud, might be emancipated from the control of his rightful guardian, duly appointed in the place of his domicile, and thus escape or be taken out of all legitimate care and custody. But in such cases the foreign guardian would not be regarded here as a stranger or intruder. His appointment in another state as guardian of an infant, with powers and duties similar to those which are by our laws vested in guardians over the persons of their wards, would entitle him to ask that the comity of friendly states having similar laws and usages should be so far recognized and exerted as to surrender to him the infant, so that he might be again restored to his full rights and powers over him, by removing him to the place of his domicile. And if it should appear that such surrender and restoration would not debar the infant from any personal rights or privileges to which he might be entitled under our laws, and would be conducive to his welfare and promote his interests, it would be the duty of the court to award to the foreign guardian the custody of the person. Nor can we see that the appointment of a guardian over the minor by the probate court in this commonwealth operates to bar any decree by this court in favor of the foreign guardian, awarding to him the custody of his ward. Such an appointment might be expedient and proper for the purpose of clothing some one in this commonwealth with authority over the person of an infant for his protection and' security against any unauthorized interference or control. But it certainly would not conclusively settle his permanent status or condition, so long as he remained an infant, or prevent his being removed from the commonwealth by the guardian appointed in the place of his domicile, if the interests and welfare of the ward rendered such removal expedient or necessary. No doubt, so long as the child continues within this jurisdiction, the guardian appointed in the courts of this state would have the exclusive right to the custody of his person. But the decree of the probate court does not deprive this court of the power to adjudicate and determine the question of the proper custody of the child as between a domestic guardian and one appointed in the place of the domicile of the infant. The jurisdiction of this court to decide, on hatean corpus or other proper process, concerning the care and custody of infants, is paramount, and cannot be taken away by any decree of an inferior tribunal. . . . The result is that neither of the parties to the present proceeding can assert or maintain an absolute right to the permanent care and custody of the infant who is now before the court. But it is for this court to determine, in the exercise of a sound judicial discretion, having regard to the welfare and permanent good of the child, as a predominant consideration, to whose custody he shall be committed.”

It will be noted that the case from which we have quoted differs from the proceeding before us, in that in the Massachusetts case the child was in that jurisdiction without the intent of its guardian to change its domicile to that state, while here the still stronger reason exists for following the doctrine enunciated, in that the petitioner, in the exercise of its custody and control over the children, voluntarily brought them to this jurisdiction, with the conceded intention of changing their domicile by placing them in the homes in this territory it then believed to be suitable ones. Following the law as we find it — and with it we are in full accord — we do not deem it important to the main issue to be decided to pass upon the contention of the respondents that the charter of the petitioner gives it no right either to place these children in homes, or to reclaim them for any cause after they have been so placed; that the petitioner has no rights of guardianship; that whatever rights the petitioner has have no extraterritorial force, and can avail such institution nothing outside the state of New York; that if the petitioner has a right to place such children in homes, then admittedly it is a part, of its business, and, in placing these children in the homes here, it has been carrying on such business in this territory, and, having done so without complying with the territorial laws respecting the filing of its articles and the appointment of an agent, it cannot now, under our law, maintain this proceeding, founded on such business so done here. If the subject-matter of this proceeding were other than that of the custody of children, the legal propositions advanced by the respondents would merit careful attention; but in this proceeding it is sufficient to say that we do not recognize any of them as a bar to the proceeding brought by the petitioner, and that we recognize its right to present this application, and the power of the court under this application to award the petitioner the relief it seeks, if it he for the best interests of the children so to do. Similarly, it is not necessary for us to determine whether the petitioner is correct in its position that the letters of guardianship issued to the respondents by the probate court of Graham County give the respondents no legal right to the custody of the children, for the reason that, an appeal having been taken to the district court, where a trial de novo must be had, such appeal vacates the order of appointment and the letters issued thereunder, for, if the letters be valid, and the respondents the appointed guardians thereunder, such fact is in no way controlling upon us, and is but one of the surrounding circumstances at. which we should look in the interests of the children.

¥e hold, therefore, that, under the facts as we find them, neither the petitioner nor the respondents have any such legal claim as authorizes us for that reason to award to either of the parties the care and custody of these children. We have, then, to decide what disposition must be made of the children, to subserve best their welfare. The petitioner has frankly conceded that a great blunder was committed in the consignment and delivery of the children to these degraded halfbreed Indians. The evidence satisfies us that it was an unintentional blunder on the part of the institution, and was. caused by the misleading and inaccurate report of the local priest, who was not connected with the institution, and was a foreigner and unacquainted with existing conditions; that such blunder was not remedied at the time because of the tactless stubbornness of the agent, and the feeling of the sister in charge that she must bow to the authority of the priest, who-insisted upon such disposition. We recognize the desire of the institution to right now, and to right itself, the wrong done these children, and to secure for them now suitable homes to-be chosen by it, and, with the record of its great service to humanity in the past, we have no doubt of its purpose and ability to do so; but as, in the full light of the history of this transaction, shown by the evidence adduced at the-trial, of which the institution so far away can hitherto have-had but partial knowledge, it appears that the mistake, as originally made, was made by one not connected with the-petitioner, and that the ultimate purpose of the institution— that of finding suitable homes for their children — has in this; instance already been accomplished, we do not believe that the best interests of these children will be promoted by allowing the petitioner to adopt the course which it desires.

The counsel for petitioner has eloquently argued to us that tlie interests of these children will best be subserved by allowing this institution to take them to the Bast, and there place them in homes far removed from the knowledge of their antecedents, which by reason of the recent events has become so general where the respondents live. This argument would have great weight if we could be led to believe that a mere change of foster parentage would insure a condition of ignorance of the circumstances of their birth and desertion, either in the children when they come to years of discretion, or in the friends and families of their adoption. There can be, at most, but a chance that such would be the result. As it is, these present foster parents — persons of some means and education —from the day when with humanitarian impulse, and actuated by motives of sympathy for their pitiful condition, they assisted in the rescue of these little children from the evil into which they had fallen, down to the time of their attendance at this trial, at cost of much time and money, in their loving care and attention, have shown that more than ordinary ties of affection bind them to these children, and that in no other homes that can be found for them are they so likely to fare as well. We feel that it is for their best' interests that no change be made in their custody, and that, if anywhere, here in the changing West, the land of opportunity and hope, these children, as they grow to manhood and womanhood, will have the fullest opportunity that it is possible for them to have to be judged, not upon the unfortunate condition of birth, but upon the record they themselves shall make, and the character they shall develop.

The writ will be dismissed in this and the other cases.

SLOAN, J., DOAN, J., and DAVIS, J., concur.