Soderman v. Martin

This is an appeal by Huida Martin from an order for the adoption of Janice Adele Martin, now aged five, by her maternal grandparents, John V. and Ottina P. Soderman. Janice is the daughter of Ottina P. Martin, who consents to the adoption, and Clyde Martin, now deceased. Ottina P. Martin, her husband and the child Janice lived in the home of Huida Martin and her husband, John Martin, and the Martins’ young son, then of the age of 16 years, from the time Janice was born until the accidental death of Clyde Martin November 22, 1942. Huida Martin and her husband are the paternal grandparents of Janice. When Clyde Martin died, Ottina removed from the Martin home to that of her parents, petitioners and respondents herein, but the child has since remained and now is with her paternal grandparents. John Y. Soderman was 68 years of age in September, 1945; his wife Ottina was then 62. They are purchasing a home, have $2,500 in bank, $700 worth of bonds, Mr. Soderman carries $3,000 in life insurance, and is steadily employed as foreman of a rigging outfit. In the Soderman home the child would be with her mother. It is claimed that this arrangement, which would ordinarily be a desirable one, would be so seriously detrimental to the welfare of the child as to render the order of adoption an abuse of discretion, this because the mother, since she was about six years of age, has been a chronic sufferer from epilepsy. This unfortunate condition was the principal reason for the residence of the .younger Martins in the home of Mr. Martin’s parents.

Ottina Martin testified that the condition of her health had improved greatly since she left the home of John and Huida Martin. Between March, 1943, and March, 1944, she had had 12 to 14 epileptic seizures, but she testified, “I am so improved that I don’t have those hard ones, so many.” The epileptic attacks would leave her unconscious, sometimes for a minute, usually longer, and upon one occasion she was unconscious for

There was medical testimony on each side, consisting of opposing opinions as to whether the child would suffer detriment by reason of her observation of her mother’s condition or through accidental physical injury that might be occasioned thereby. This testimony will be referred to briefly. The physicians were in substantial agreement that the mother’s affliction is a permanent one in the light of present medical knowledge. An osteopathic physician and surgeon, a cousin of the mother who had attended her since 1943, testified that under treatment her seizures had become mild ones, with no convulsions such as she formerly suffered. A psychiatrist who testified on behalf of the petitioners expressed the opinion that the injury to the child’s psychic development through observing the mother’s condition would be negligible, assuming that the child was not neurotically predisposed. He was further of the opinion that no harm would come from the child’s living in the house with her mother, provided she was not under the sole care of her mother. Another psychiatrist testified that he believed there would be a reasonable probability of psychic trauma to the child and that it would not be in the best interests of the child to be transferred from the home of John and Huida Martin to that of the Sodermans. Another physician who had attended the mother prior to and after the birth of the child testified that there would be danger to the child if the mother happened to be carrying her when she suffered an attack, and still another physician testified that the child living in the home with her mother would not be in the best of surroundings, due to the indelible impressions that might be received from observing the mother’s periodic attacks.

While the mother and child were living with the elder Martins, Janice was largely under the care of Huida Martin, and when Clyde died the elder Martins requested the mother and child to remain with them, but Ottina was not happy

The briefs on appeal contain a thorough discussion of the advantages and disadvantages to the child of living with her mother in the home of respondents. And yet such arguments are only a repetition of those which were made to the trial court and which, we are confident, received the court’s most careful consideration. It was the judgment of the court that the advantages which would accrue to the child through being reared in the home of respondents and in the society of her mother would outweigh the disadvantages. And implicit also in the order is a finding that the welfare of the child would be promoted by her removal from the home of the Martins to that of respondents, although this finding is by no means a reflection upon the paternal grandparents. It is not our province to place ourselves in the position of the trial judge and to weigh the evidence under the rules and by the processes which govern in the decision of questions of fact, nor is it our province, if we should chance to disagree with the conclusions of the trial judge, to substitute our discretionary judgment for his own. His decision is final, in the absence of a clear showing that the order of adoption was an abuse of judicial discretion. (In re Fahlman, 84 Cal.App. 248 [ 257 P. 893 ] ; Guardianship of Peterson, 64 Cal.App.2d 473 [ 149 P.2d 65 ].)

Appellant argues that the maternal grandparents are too old to adopt the child, and their age is, of course, one of the disadvantages to be considered. Another argument is that adoption of the child by respondents is being used as a means by which the mother will be able to have the child with her and that the proceeding therefore has been prosecuted principally for the benefit of the mother. Even if this be true, it would be purely incidental to the controlling fact, as found by the court, that adoption by respondents will best promote the welfare

The order is affirmed.

Desmond, P. J., and Wood, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied November 14,1946.