Before MARIS, MCLAUGHLIN and FREEDMAN, Circuit Judges.
MCLAUGHLIN, Circuit Judge.
In this adoption proceeding the petitioner is Heinz P. Schenker. The infant sought to be adopted is Lance D. Blumenthal, a male child, ten years old when the petition was filed. He is the son of Harvey J. Blumenthal and the present Mrs. Schenker who obtained a divorce from her husband, Mr. Blumenthal, on May 12, 1958. All of those people are residents of the Virgin Islands. The petition was filed under Title 16, Chap. 5, Section 141 et seq. of the Virgin Islands Code. It is of necessity allegedly based on Section 142(b) of the same Title of the Code. This reads:
"(b) If either parent is insane or imprisoned in a penitentiary under sentence for a term not less than two years, or has willfully deserted and neglected to provide proper care and maintenance for the child for one year next preceding the time of filing the petition, or is an unfit person to have the care and custody of the child, the court may proceed as if such parent was dead, and, in its discretion, may appoint some suitable person to act in the proceeding as guardian ad litem of the child and give or withhold the consent required by subsection (a) of this section. In all cases, however, notice to the parent not laboring under such disabilities of insanity or imprisonment mentioned in this subsection, shall be required."
The only language of the petition urged as presenting a cause of action here is paragraph 7 thereof which states:
"7. The said, HARVEY J. BULMENTHAL, father of the said LANCE D. BLUMENTHAL has neglected to provide proper care and for maintenance for the said child since the divorce, and all payments for the maintenance, care and education of the said infant, LANCE D. BLUMENTHAL, have been made by his mother, HELENE P. SCHENKER."
The answer to the petition which is titled "Objection of Parent to Adoption" is short and we quote it in full:
"COMES NOW, HARVEY J. BLUMENTHAL, by his attorneys, Bailey and Wood, Esqs., and respectfully shows to the Court:
"1. That he is the parent of the infant LANCE DRESDNER BLUMENTHAL;
"2. That he does not consent, and has not consented, in writing or otherwise, to the adoption prayed for in the Petition filed February 21, 1963;
"3. That he is a parent not laboring under a disability of insanity or imprisonment;
"4. That he has not neglected to provide proper care and maintenance for the said child since he and the child's mother were divorced;
"5. That he has not wilfully deserted and neglected to provide proper care and maintenance for the child for one year next preceding the filing of the said Petition, and is not an unfit person to have the care and custody of the child.
"WHEREFORE, he prays this Court for an order dismissing the Petition herein."
The facts are clear from the record. Mrs. Blumenthal was the plaintiff in the 1958 divorce. The husband filed a formal answer, did not appear in person and consented to an ex parte hearing. The district court commissioner made findings of fact and conclusions of law from the evidence. The sitting judge reviewed and approved these and granted a divorce. In the decree, dated May 12, 1958, it was ordered that Mrs. Blumenthal "continue to have custody of the child Lance Dresdner Blumenthal." With reference to support the court said:
"The plaintiff having made no demand for support, either for herself or for the child, due to the present financial circumstances of the defendant, the said question hereby is reserved for future determination by this Court."
There have been no other or further proceedings whatsoever in the divorce suit.
Petitioner's evidence was directed to the year immediately prior to the filing of the petition. It should be stressed in this connection that the above quoted statute reads: "If either parent * * * has willfully deserted and neglected to provide proper care and maintenance for the child for one year next preceding the time of the filing the petition * * *." (Emphasis supplied). During that year Mrs. Schenker said she received three ...