In re Livingston

It would seem, from the foregoing statement of fact and law, that the order of the county judge recites all of the jurisdictional facts necessary to a valid order of adoption; and the Supreme Court has held that the consent of the parents of a child to its adoption is not requisite where the parents had “abandoned” the child. Von Beck v. Thomsen, 44 App. Div. 373 , 377, 60 N. Y. Supp. 1094 , 1098. The case cited is also an authority for the proposition that where the judge making an order of adoption, pursuant to statute, certifies to the essential jurisdictional facts, his jurisdiction and the validity of his order will be upheld. And, in view of the jurisdictional steps essential to the order and the rights of such a child under the statute to inherit from its foster parents, there can be no question whatever of the judicial finality and competency of an order of adoption where the statute has been followed. See Matter of Trimm, 30 Misc. Rep. 493 , 496, 63 N. Y. Supp. 952 .

Such being the nature and character of the order, the question then is: Can such an order be challenged on habeas corpus? It would seem not. Code of Civil Procedure, § 2032, provides that, whenever it appears on habeas corpus that a person is in custody by virtue of a final judgment or decree of a competent court of civil or criminal jurisdiction, the court or judge before whom he is brought must forthwith make a final order remanding him to his custodian. Code Civ. Proc. § 2032. The writ of habeas corpus is not a writ of review, the only proper inquiry being whether the subject of the writ is detained by virtue of legal authority; and a final determination of a competent tribunal cannot be set aside on habeas corpus on averments or proof that the facts proved before that tribunal on which its judgment or order depended were not true. People ex rel. Danziger v. Protestant Episcopal House of Mercy, 128 N. Y. 180 , 184, 28 N. E. 473 ; People ex rel. Van Riper v. New York Catholic Protectory, 106 N. Y. 604 , 13 N. E. 435 . See, also, People ex rel. Bungart v. Wells, 57 App. Div. 140 , 145, 68 N. Y. Supp. 59 ; People ex rel. Patrick v. Frost, 133 App. Div. 179 , 185, 117 N. Y. Supp. 524 .

The petitioner urges that the Supreme Court, in its power over the custody of a child, should, award such custody to its mother. This undoubtedly pathetic appeal ought not ordinarily to go unheeded. But the difficulty here is that nothing is shown that would justify the court in taking this child from its foster parents. No charge whatever is made against them. They are not accused of cruelty, misusage, or violation of any parental duty toward the child, any of which acts might furnish a ground for the abrogation of the adoption order (Adoption Law, § 117, supra), nor is the question of the “best interests” of the child in issue. The sole and only attack is upon the jurisdiction of the County Court to make the order, and that attack on this application must fail, in my opinion. The conclusion is arrived at that the order of adoption is a complete and conclusive answer to the writ, and requires the dismissal of the latter, and, but for one other contention of the petitioner, nothing more need to have-been said.

It is claimed that, as the traverse assails the jurisdiction of the County Court, this court is required to take proof as to the validity

of that court’s action. The ruling made that the order of the County Court was based upon the necessary jurisdictional fact of the mother’s abandonment of the child, and that the order itself is final and conclusive, fully answers this contention. But, if it were otherwise, and the matter were open to inquiry on habeas corpus, the traverse does not create an issue on the fact of abandonment. It simply alleges that the proceeding was without notice to the mother. The statute says that the consent of the parents is unnecessary where they have abandoned the child. A return to a writ of habeas corpus “is to be assumed to be true, except in so far as its material allegations are controverted by the traverse.” Danziger Case, supra, 128 N. Y. 187 , 28 N. E. 476 . It requires no argument to establish the proposition that the allegation in the traverse that the mother had no notice of the adoption proceedings is quite consistent with, and does not" deny, the finding of the county judge that she had abandoned her child, where the statute dispenses with notice in case of such abandonment. So that, even though the proceedings upon which the order of the county judge was based could be retried on habeas corpus, it is plain that no issue is presented on this application.

I may add that this is the second writ sued out before the justices of this court, seeking the custody of this child, and that the former determination of one of my associates was the same as that now arrived at, but without formal opinion by him. Application might well be made to the county judge for a rehearing upon the contention of the petitioner that his finding of abandonment was without sufficient evidence for its support; but, while his order stands, with all the rights under a legal adoption accruing to the child therefrom, it may not be impeached on habeas corpus.

Writ dismissed.