*1 Adoption by Guardian ad re In of Morrison: Jones, litem, wife, Res Appellant, vs. Manesewitz pondents.*
October 1951. 11 November denied, costs, February on rehearing with 1952. $25 *Motion *4 Cn 4^
c_n ON *6 A. Frederickson there were briefs M. by
For the appellant Milwaukee, Ann and Walter A. Jones, by for Mary Milwaukee, litem, and oral ad argument guardian Backus Frederickson. Mr. by a brief & Licht- there was by
For respondents Affeldt counsel, all Eldred Dede of of Milwau- sinn, attorneys, A. kee, George and oral argument Affeldt. commence this can most fittingly opinion We
Currie, J. of the able trial court statement moving following with the memorandum opinion: appearing “This is one of the most difficult cases to decide that comes courts, to our it deals with the human love and affection of son, the natural mother for her that she has suffered the pain him of childbirth to side, into world—and on the other bring effort, it affects the love of the who their people, child, divide their some taken all love with have the legal know, to that child into their home as their steps they own, bring love, educate, and make it their heir. protect, legal No one has tried harder to follow the law of than for the petitioners, this child. . . . decided,
“No matter how this case is it must cause some- tears, case, one heartaches and but it be that out of may this *7 will come some law from our court that a will be to all guide future cases of and some other mothers adoption, will not have to this go and heartache.” through litigation
The trial court also stated in his that counsel had opinion him informed that decided, of how the case regardless was it court, would be to this and that it appealed should be ap- in order that the pealed law be on the clarified might questions presented.
This appeal presents following questions: Does a minor mother who has (1) her voluntarily given written consent to the of her adoption child have the to right her withdraw consent without cause to the prior hearing held on the being ? petition adoption Is the consent of the (2) father of an illegitimate child to the necessary where such father adoption, intermarried with the mother after the had been com- adoption proceedings menced and the court had assumed in jurisdiction such proceedings? Did the failure to with the of
(3) comply requirements sec. 322.04 Stats. which that the consent requires of a minor “shall be when concurred in parent only effective litem,” ad constitute a guardian defect jurisdictional which invalidates the of judgment adoption? invalid, If the of is does the court
(4) judgment adoption in this have the to of the proceeding custody right dispose on the basis of to in
of child what determined be interest of the best child ? trial
1. The court found the mother’s consent having after she had been voluntarily had been freely given fully her and the effect of such consent rights cannot apprised be disturbed on this because great weight appeal, therefore, There, such was evidence fully supports finding. of the mother’s cause for the withdrawal no good attempted litem consent, a ad unless it be the omission to have guardian consent, con- which latter issue is hereinafter concur sidered separately. as whether or not a mother who
The cases are conflict her child can later consent to the has her adoption given to the consent without cause prior entry withdraw such the decree adoption. on the annotation question
In the appearing thereof states: the author A. L. R. “While, in the earlier annotation out brought [138 for the view that a natural there is authority
A. L. R. 1038] child, of a duly consent to proposed parent’s a statute such consent as with requiring given compliance be withdrawn an may effectively prerequisite *8 the has the natural before adoption by parent or revoked court, the a few and decreed and by been finally approved consent is that the to withdraw right courts have indicated reason, it not upon any particular absolute and dependent said, in of the later cases it will be view (arising, must now noted, in other than those the represented be jurisdictions trend the more recent author- that the earlier annotation), of where a natural has parent the position is toward ity the adop- the consent to knowingly given requisite and freely child, her and the proposed adoptive parents his or tion of such consent by adoption proceed- have acted upon bringing the natural ordinarily upon parent the consent is binding ings, withdrawn so as to bar the court and cannot be arbitrarily where, in the reliance decreeing adoption, particularly from consent, taken such the have adoptive upon the child into their proposed parents care a substantial and for custody period time, affection, in the nature a of and bonds of of ‘vested them the have been between and child.” forged right,’ (Em- phasis ours.) for execution of the consent
The the by provisions parent or and before the that the juvenile judge, specifying the should not be for of the minority parent ground revoking consent, were not found in our statutes previously prior 218, the enactment of ch. Laws of 1947. Such com- chapter revised the statutes on and was pletely adoption adopted a the result of the of interim committee of the report special which considered the between legislature thoroughly problem the 1945 and 1947 sessions of the legislature. Stats., 78,
Sec. 322.04 was amended ch. Laws of 1949, so as to substitute “a of court judge of record” any in lieu of the or juvenile county judge judge.
The and consideration in primary paramount construing statutes is the welfare of the the child and the so- adoption of the natural in such called child are rights parents subordi- nate thereto. Children,
In Am. Jur., Adoption sec. it p. is said: is the
“The welfare of child primary consideration in anof for the determination application adoption. On this And it there is unanimous has agreement. been point stated that in a broadly proceeding adoption court may ig- parent nore the natural so rights if, doing, child’s The promoted. diversity occurs opinion when welfare notice, whether lack of or it is considered adoption without consent, a constitutes violation of vested on the right part has with parent. legislature ample power respect care, and maintenance to the borders, of children custody, within its it is admitted that a parent has no vested right child which requires protection his accorded to prop- constitutional, however, In order to be erty rights. adoption so as statutes must be construed to authorize the where a child cases by strangers only natural parents or where the consent to shows proof that the *9 been its child has abandoned natural parents or that it 60 to the interest the child it that be taken manifestly of from some judicial their which custody by proceeding had they of
notice.” ours.) (Emphasis 642, 645, In Jackson 201 231 Adoption Wis. (1930), of 158, in reference to this it is subject, N. W. said: law, the situation been at have common may “Whatever statute, 322.02, sec. there can under be no doubt that the consideration is and should be the welfare and controlling best interests of the child.”
Dean Roscoe Pound his The of the Common Law Spirit A. L. R. states: p. (1921), (156 1004) recent “Finally, legislation judicial decision have the old attitude of the law with changed respect dependent members of the household. Courts no make the nat- longer of with chief ural children the basis rights parents respect interest of their decisions. individual which parents used to be the one has come to be thing regarded almost with compared last the interest the child thing regarded words, and the interest In other society. here also social interests are now chiefly regarded.” (Emphasis supplied.) enacted a new statute for the Congress District of Columbia the recommendation of upon leading welfare and the committee stated organizations, report such statute was in accordance with modern based thought years on welfare workers in experience by child-placement statute, 16-202, This D. agencies. C. Code sec. con- (1940), tains the following provision:
“The consent of a who is a minor shall not be parent void- able because of that minority.” is identical in
Which with the meaning found provision sec. 322.04 Stats:
“The of a is not minority parent ground con- revoking sent.”
In the case of Re Adoption a Minor C. A. (C. 1944), 144 Fed. 156 A. L. R. (2d) United States court of for the District of appeals Columbia was called upon *10 situation similar to the a case with the fact very to decide one, mother an child had wherein the of illegitimate present thereafter, consent and before her written to adoption, given entered, to withdraw such consent on the decree was sought that the same was not and that the voluntarily given ground it of its Both the had been without knowledge consequences. litem and the trained social workers of the board ad guardian of the District of Columbia had recom- of welfare public mended against adoption. court its decision Re Adoption federal of
Minor, held that there was no merit to the mother’s supra, that the consent had not been and contention volun- freely or had been without of its given tarily given, knowledge The court also refused to follow the recom- consequences. ad litem and mendations of board of guardian public welfare for the that reason recommending against adoption that the same were made the natural upon assumption mother, law, her as a matter of withdrew consent. rightfully mother to On the of the of the withdraw her right question consent the court stated : 647) (p.
“In our intended consent of a congress opinion, par- not be ent and acted should withdrawn upon once given This intention is indicated clearly without cause. of the and statutory language quoted
final sentence italicized is a ‘The consent of a who minor shall not above: parent because that minority.’ be voidable of of the ahead to administration new law “Looking of mind; could see congress probability changes or the mother’s decision her keep give especially infant would up
be influenced by deep-seated biological urges It instincts and emotions. could and assume psychological intervention of kinsfolk and friends who would seek and of the natural mother mind change purpose according ideas and It to their could respective rightness propriety. vision the and bringing professional people experts— medicine, clerics, social lawyers, doctors workers —who scrutinize the law to determine and weak- strengths might nesses. ... also knew that the law has “But from time congress immemorial and with great leniency relieved minors omissions, acts and many order to responsibility pre- interests, of them their vent which exploitation might result their otherwise from It realized that inexperience. when all other methods failed and all other avenues of escape closed, a were mother fall back distraught this might upon Then, defense of all the minority. con- balancing conflicting *11 interest, siderations of and public policy private congress decided that the interests of the infant were of even greater than those of the mother. It her importance girl recognized of her child even under the privilege burden keeping harassing of but it that illegitimacy, once she had provided it and had relinquished consented to its voluntarily adop- tion, her consent could not be voided because of minority. “It is inconceivable that congress of such prevision —-with efforts to avoid consent parental and while forbidding, spe- a- cifically, method of avoidance favored in the law above
all time, others —could at the same have possibly, contem- unrestricted withdrawal consent plated without cause or of Instead, reason that, kind. it any in this apparent well as in those respect statute which provisions —as make the consent unnecessary who have aban- parents children, their absconded, doned or who have or have been or otherwise deprived custody, have revealed their unwill- to measure to ingness up parental responsibility congress — has with deliberation and finality closed door against of mind. It has instance, restored to the court in changes this as in others recent its old during years, power, parens patriae, to the case of the diagnose unfortunate infant and a course of future; treatment for prescribe its unhampered by winds of emotion which changing sub- alternately and restore attributes.” merge parental In 461, v. Wyness Crowley 292 Mass. (1935), 198 N. E. an the mother of child who illegitimate had her given consent to the petition adoption to attempted withdraw the same before was had on the any merits hearing of the The Massachusetts court held that petition. she had no withdraw, and in its decision said right : 464) (p. “To accede to the that such consent contention voluntary be withdrawn would be may equivalent saying parties court, a come to their assent to actions may deliberately give interests, the court matters their and after- by affecting wards, at their will and return to the court and pleasure, undo what did because a future did not on they day they like it.” mentioned,
While as hereinbefore are other author- there ities that such can consent be withdrawn holding minor mother of has child before the court illegitimate rule, entered the decree of we believe the better Wisconsin, and the one which should be is that followed Minor, stated in Re a v. Adoption Wyness supra, Crowley, supra.
2. The of whether the of the father of an question consent child is illegitimate to the where the father necessary married the mother after the been had adoption proceedings commenced has not been an for this court one to resolve. easy
Sec. 322.04 Stats. as follows: provided “The consent must be before the by parent signed *12 or the judge juvenile of the where the judge county parent born, resides or is or where the child was and after living the has to the the effect judge of the consent explained parent and has examined the and is is satisfied consent parent and is a is voluntary freely given. minority parent of not ground consent revoking for 78, ch. By Laws of the amended sec. legislature Stats., 322.04 so as to (1), substitute the board of county in of the state judges of welfare as place department public the which authority should the forms. prescribe 245.36, Stats.,
Sec. for has many years provided: “In and case any where the father mother every and anof child or children shall illegitimate lawfully intermarry, such child or children shall thereby become and legitimated all the enjoy and if rights of privileges legitimacy they had been born the wedlock of during their . . .” parents;
In this case when the Manesewitzes filed the petition the written with the court county accompanied by adoption 25, 1947, the mother and such consent of child’s on August the court on that date entered the order for and hearing further order that the division of the Milwaukee adoption court make the by investigation required should 322.02, Stats., sec. the but on child was illegitimate, 3, 1950 of the date of August (the judgment adoption), he was This in status occurred on legitimate. change May 1948, as a result of the of mother the father. the marriage Stats.,
Does the in sec. that the 322.04 provision consent of the father of an not child is illegitimate required, to the in the date the court first assumes apply jurisdiction or the of date the adoption proceedings judgment adoption is entered?
If the of the of the natural father were protection rights the factor to be considered we would only have no difficulty in that the date of is the deciding entry judgment date. The fact that case the father controlling present 28, 1948, did not become until March eighteen years age and could not have married child’s mother legally prior child, thereto for the his which purpose legitimatizing was months after the court had many jurisdiction assumed in the also makes adoption proceedings, strong appeal our this sympathies determining question.
However, as out the authorities pointed previously cited this the best interest child opinion, consideration which should controlling prevail construing our statutes. adoption
If the have instituted proposed adoptive parents adoption reliance written consent of proceedings upon an mother of to the court has illegitimate *13 assumed in jurisdiction such and taken proceedings, have the their child into home for a substantial of time so period thát affection bonds of have between the child developed and them, it could be maintained that it hardly would be the best interests of the child to all this force and the disrupt removal of the child from the foster home because of the of the mother the subsequent to natural father marriage and the failure of the father to then his consent. In give the case, a present three a period years, but few lacking between the days, date of the court elapsed assuming juris- diction of the and the adoption proceedings of the entry the In the judgment decreeing Massachusetts adoption. case v. Wyness Crowley, supra, between period the date of the mother’s written consent and the decree of adoption 6, 1933, was from to 1935. January Under June Stats., construction of sec. 322.04 favored (1), counsel mother, for the if the mother respondent and father inter- married the of the decree and he day preceding entry failed to his consent to the give court would adoption, such a case be without to decree the jurisdiction adoption. We cannot such a construction. accept do, as we that the
Construing, date of whether determining child, the consent of the father of an later who illegitimate mother, has married the is the date the court assumes juris- diction after re- all other with jurisdictional requirements met, to the not the consent of the mother have been and spect date of the final or of the decree entry hearing does not mean that not court should county give weight since to the fact that the father mother intermarried and have are a commencement of the position proceedings to a court would child home. The give good facts to these have to due consideration necessarily give child whether the best interests of the would determining that the of the prospective adoptive par- require application ents be or denied. granted the failure come of whether
3. We now question in the consent of the mother ad litem to concur guardian enter the the court of jurisdiction judgment deprives Stats. Sec. 322.04 adoption. provided: *14 66
“In the case of a minor or aor incompetent parent parent 51.13, who is on release under section a ad litem guardian shall be for the and the consent such appointed parent of parent shall be when concurred in only by effective ad guardian litem.”
The that the consent a requirement of minor should parent be effective if only concurred ad litem by guardian was not a new embraced the 1947 provision revision of 218, 1947, statutes adoption enacted ch. Laws of but was a which had requirement existed many years. The council legislative submitted on report adoption pro- cedures to the 1949 and recommended certain legislature statutes, in the changes which had first adoption changes been recommended to the council by committee advisory of county in sub. of judges. only change suggested (9) 322.04, sec. Stats., was the consent of the require minor be when parent effective concurred only by written litem, 78, consent of the ad ch. Laws guardian 1949, of made this recommended change.
The reason for this is to em- stating statutory history phasize the fact that such has been provision intentionally retained in our statutes after most careful adoption study committee, 1947 interim council legislative which on the reported to the 1949 adoption procedures legislature, and the committee of advisory who judges assisted council. legislative 33,
In Adoption Bearby 185 Wis. (1924), of N. W. this court stated: are and it is
“Adoption proceedings statutory, funda- mental that the statutory jurisdiction must prerequisites exist in order to authorize the court act. . . . While an there is on the increasing disposition courts to part fair and place reasonable construction statutes and upon to the of children so proceedings relating that mere not defeat the irregularities procedure may beneficent of the institution of purposes plain jurisdictional requirements must be observed.” This statement was cited with in Will approval 51, 65, Bresnehan 221 Wis. 265 N. In (1936), W. 93. 128, 132, Will Mathews 198 Wis. 223 N. W. 434, it was also stated that in this adoption proceedings *15 state are and that the statute must be statutory strictly followed.
The trial court was of the that reason of the opinion by fact that the mother of the had child the advice of her own mother and her consent, at the time attorney she the signed and that the consent was before signed Judge Sullivan who had effect, to her fully the contents explained and its the advice, counsel, minor had received all the and protection that a ad litem guardian could have and therefore supplied, there had'been substantial with the compliance requirements of the statutes without the adoption ad litem guardian having concurred in concur, such consent. With this we cannot because the statute must .be construed and the con- strictly currence in the consent of the ad litem is a guardian juris- dictional which requirement cannot be waived the court. by
The form of for printed the petition used adoption by court of county Milwaukee for county cases does adoption (as the uniform for petition the board of adoption adopted by 253.31, county judges to sec. pursuant Stats.) provides for an the allegation necessary parent (or parents) have her given written consent at the (or their) time of the of the signing petition by proposed adoptive parents. court county would have before it which nothing upon to base the of a appointment ad litem for a minor guardian mother until filed, petition was and adoption by that time the written consent of the mother would already have been obtained. This would indicate that the function of the ad litem in guardian cases is not to .counsel with the mother at the consent, time of her but signing rather that he is to make his own independent investigation thereafter as to the mother whether and freely voluntarily consent,
executed such also as and to whether the best inter- ests of the would be him child promoted by joining such consent. It would seem that such action guard- ian ad litem which is under the required provision sec. 322.04 should take after the (9) place promptly appoint- ment of the ad litem. guardian
The unfortunate which confronts us in this predicament case could be avoided future cases if the attorney repre- court, and the senting with adoptive parents filed, whom the would see to it that adoption petition ad litem guardian his duties in this performs respect either files his written consent to or reports thereto, court with adversely before the respect court assumes jurisdiction on the by setting hearing petition and ordering other investigation. than the (An attorney counsel who for the Manesewitzes on this appeared appeal *16 them in the initiation of represented the adoption pro- ceedings.)
In the of fact the trial court criticizes the findings present ad litem for not his consent guardian written having given to the but we believe that such criticism is adoption, unjusti- fied. The ad litem until was not present guardian appointed S, 1948, months after the mother had April nearly eight her written consent. At the he time was signed appointed the mother her had executed written withdrawal of consent and the order of his stated he was to take appointment in care of her interests the on her proceedings application to withdraw her consent the of the “during prosecution for the of her withdrawal the consent child.” adoption been he would have Such his order of being appointment, rule under the subject derelict his and to removal duty 1, N. 218 259 W. Jaeger announced Will Wis. (1935), 738, 842, if the course A. L. R. he had not followed 99 of his he did in this case. The wording of action which the duties inconsistent with order of was entirely appointment of sec. 322.04 the of him under provisions required Stats. to obtain defect failing
Because of jurisdictional mother’s in the minor of a ad litem the concurrence guardian is void decreeing adoption consent adoption, judgment must be set aside. and court, decreeing in addition to
4. The of the trial judgment and custody the care “That event any adoption, provided, child, Morrison, is awarded be and hereby of said George Manesewitz, to said Manesewitz and Carl petitioners, Jean mean that irrespective his wife.” We this to interpret nevertheless, valid, whether the decree of was adoption court awarded to the Manesewitzes. custody of Jones v. State
Counsel for case respondents .cites ex 247 N. rel Wis. W. Falligant (1933), con- the trial in this and authority sustaining judge respect court, that the trial that the best interests tend found having of the that it be retained in the Manesewitz child required home, had the to so award the custody. Adoption right statutes being purely statutory, adoption proceedings decree, confer the court the or not to only upon right decree, court to award no they give power if It to the denied. custody adoptive adoption parents should be out that the case of Jones v. State ex rel. pointed an in habeas is not but one Falligant proceeding corpus. reversed.
By Judgment Court.— outlined {dissenting). plan Fairchild, J. *17 mother, to the objects
natural who now the completion was made and carried originally contemplated, her forward her. The record shows to have willingness by this and it shows she was first advised as to accomplished, her the she was and it further discloses deliber- taking; steps a situation in which her ate acts have created attitude now controlled, to her assumed wishes due contrary present 69a mind, her the change requirements affecting
welfare of the child.
It conceded, seems to be stands, as the record now were this a habeas corpus the child would remain proceeding, in its present It seems to me that surroundings. the power vested court in a of this character proceeding is such as to warrant an affirmance of the of that judgment court. I am authorized to that Mr. Chief say Fritz Justice
concurs in this dissent.
The was filed following opinion February 1952: Curiam, motion In their (on rehearing). un- Per derstandable zeal and uneasiness of mind respecting welfare of the child involved counsel for seem respondents to have misconstrued our mandate. That from the appears conclusion of their brief in which ask that the trial they court’s order “continuing child’s custody respondents should be affirmed.”
Upon record and we pleadings concluded that there was but one issue presented: whether question taken for the proceedings adoption resulted or permitted an effective order of final disposing the child. custody We held that did not they and find nothing respondents’ brief on this motion to cause us to our change position.
areWe to treat this urged matter as it were a though habeas corpus We proceeding. could not do that if even inclined, we were so for the issues were made upon peti- tion which we consider as appellant no more than an for an order aside application setting the adoption pro- No ceedings. was counterpleading presented by respondents. If one had been made an issue presenting determinable as in a habeas corpus the trial court would proceeding have been
69b we, required answer would “You have custody have shown need for no an order it.” granting
We have not in this been asked to disturb the proceeding status of child nor present physical should our mandate be construed as it. is Until issue affecting properly was, instance, as it in Jones presented v. State ex rel. Falligant, Wis. N. W. court without remove child power from care of the respondents inor official to confirm their any way custody.
Motion for denied with costs. rehearing