177 Wis. 558 | Wis. | 1922
Lead Opinion
The following opinion was filed May 9, 1922:
The question presented for decision may be stated thus: Can a county court acquire jurisdiction so as to' make a valid order of adoption as to an infant under fourteen years of age, then in the custody of the state board of control, where no written consent thereto has been given by the living natural parents of such child or due notice of such hearing served upon them? — the commitment of such child to the state school at Sparta having been made by a juvenile court on findings that the child was dependent and the parents unable then to care for the same, there being no finding to the effect that there has been an abandonment of the child by the natural parents.
We are constrained to answer this question as thus stated No, fully appreciating the possible far-reaching effect of such ruling.
We do not deal with or determine the questions that may arise where a record discloses or determines that there had been an actual and wilful abandonment by the natural parents of their offspring or such a condition of moral depravity on their part as warrants and requires a judicial determination that there is a moral abandonment thereof. We are here only concerned with a situation where sickness, poverty, untoward circumstances, or ill fortune enters
We base our conclusion in this case upon the following propositions:
First, the judicial proceedings for the commitment of dependent children to. the care of the state under ch. 48, Stats., and the judicial proceedings for adoption under ch. 173 are entirely distinct, separate, and independent.
Second, that except there be an abandonment by the natural parents of the child and such fact of abandonment be found, the written consent of or actual notice to the living natural parents is an essential to jurisdiction of the county court to make a lawful order of adoption for such child.
Third, that notice of and participation in the commitment proceedings by the natural parents cannot be substituted for their required written consent to or notice of subsequently proposed adoption proceedings.
Fourth, that the written consent of the state board of control, or any guardian, cannot be declared to be a legal and sufficient substitute for the written consent of the living natural parents where required in such adoption proceedings. ,
In the proceedings in juvenile court for the commitment of children to the state school at Sparta or elsewhere under ch. 48, the state itself is the principal and moving actor, the immediate welfare of the child the paramount, if not the sole and controlling, consideration. Its fundamental purpose is the conservation of the child as a member of the state, and it extends alike to the child who is then not properly cared for. by reason of the misfortune of its parents; is abandoned or neglected by reason of their wilful neglect to perform their parental responsibilities; or, being itself
Any judgment or order in such proceeding, whether the parent has notice or knowledge thereof or not, is not conclusive or binding upon the parent. Milwaukee Ind. School v. Milwaukee Co. 40 Wis. 328, 339; Guardianship of Knoll, 167 Wis. 461, 467, 167 N. W. 744. It is so held elsewhere. In re Kelley, 152 Mass. 432, 25 N. E. 615; Farnham v. Pierce, 141 Mass. 203, 204, 6 N. E. 830; In re Sharp, 15 Idaho, 120, 96 Pac. 563, 18 L. R. A. n. s. 886 and note.
On the other hand, the proceedings for the adoption of children are purely statutory, and, affecting as they do substantial rights, there must be substantial compliance with their provisions. Davis v. McGraw, 206 Mass. 294, 298, 92 N. E. 332, from which state our statute was taken. Wis. anno, to sec. 4021, Stats., 1 Ruling Case Law, 593, 595; 1 Corp. Jur. 1371, 1373.
They in a measure involve a human triangle: the child at the apex, the living natural parents and the prospective adoptive parents completing the figure. The moving party here is not the state but the prospective adoptive parents.
Before such extinguishment of the rights of the natural parents and creation of rights in the adoptive parents there must be an abandonment thereof by the natural parents by conduct or written consent, or else due notice to them of the- proceedings wherein such transformation is to take place. Such are the clear and explicit directions of the statutes, secs. 4022 et seq., quoted above. Such would be the result in the absence of statutory provisions. Such are the repeated rulings of this court, from which we have no desire to recede, nor to the vigor with which they are expressed could we add. Schiltz v. Roenitz, 86 Wis. 31, 40, 56 N. W. 194; Estate of McCormick, 108 Wis. 234, 238, 84 N. W. 148; Guardianship of Knoll, 167 Wis. 461, 467, 167 N. W. 744. It is so held elsewhere, and almost everywhere. Bell v. Krauss, 169 Cal. 387, 391, 146 Pac. 874; Sullivan v. People, 224 Ill. 468, 476, 79 N. E. 695; Taber v. Douglass, 101 Me. 363, 64 Atl. 653; People ex rel. Riesner v. New York N. & C. Hosp. 230 N. Y. 119, 122, 129 N. E. 341; In re Knott, 138 Tenn. 349, 354, 197 S. W. 1097; 1 Ruling Case Law, 603; 1 Corp. Jur. 1384.
That such is a right of substance though based on sentiment is the recognized doctrine of this state. Markwell v. Pereles, 95 Wis. 406, 416, 69 N. W. 798; Guardianship of Bare, 170 Wis. 543, 548, 174 N. W. 906.
It is suggested that the provision of ch. 48 (now sub. (3), sec. 48.22) that the consent of the state board of control shall have the same force and effect as if given by the parents of such child proposed to be adopted, shall be considered as in effect amending the provision found in ch. 173, sec. 4022, Stats., supra, or if not, that, such provision being
We cannot adopt that view. If such construction is to be regarded as an expression of the legislative intent to do away with the necessity of the consent or notice to the parents of children who have been committed from the juvenile court to the state institutions as dependents as prerequisites to valid adoption proceedings, then we must declare such attempted legislative declaration as a violation of the constitutional rights secured to the individual in his family relationship.
There is no element of consent by the mere appearance of the parents in the commitment proceedings to the possible instituting at some other time, place, and in some other court of adoption proceedings whereby the status of the family relationship may be permanently and entirely changed. There is no element of waiver on their part of subsequent need of due process of law as to such adoption proceedings. If such statutory regulation is valid they are powerless to say nay. They have no choice or other alternative.
The unit of the state is the individual, its foundation the family. To protect the unit in his constitutionally guaranteed right to form and preserve the family is one of the basic principles for which organized government is established. 1 Cooley, Torts (3d ed.) 27.
That natural parenthood implies both substantial responsibilities and gives substantial rights needs no discussion. That wilful neglect to perform the one may properly result in the forfeiture of the other is also not open to debate and not here for consideration.
A natural affection between the parents and offspring, though it may be naught but a refined animal instinct and stronger from the parent down than from the child up, has always been recognized as an inherent, natural right, for the protection of which, just as much as for the protection
We have not overlooked those features in connection with the family relationship that savor of financial or property rights; the right to service, to earnings, to actions for damages against those who destroy or impair, the ability to serve, the natural as well as the statutory right to support from the child even after its majority; the right to inheritance, all of which are certainly as much entitled to the protection of the constitutional provision as to due process of law as are those which merely affect the pocketbook. A money judgment entered against one without due notice is void. Western P. & M. Co. v. American M. S. Co. 175 Wis. 493, 185 N. W. 535.
If a man’s money shall not be legally taken away from him save by due process of law, much less shall his child.
We do not deem it necessary to base this decision upon or dwell at any length upon such possible sordid, because material, grounds for our conclusion, but rest it upon the natural right of parenthood, a far finer, and higher quality, and for that reason more sacredly to be upheld.
The normal man and woman who. have exercised their inherent right to form the family relationship and have brought children into this world and who have not by wilful omission or. commission on their part renunciated that relationship cannot and ought not to have such relationship destroyed, even by attempted action in the name of the state, save and except through due process of law.
Though these statements may perhaps seem trite, yet they are of vital importance to those who, like the petition
Undoubtedly many children would be better cared for were the state to shift them to other homes than those nature gave them, and to what extent the state can lawfully go in that field we need not now and do not now venture to suggest; but to transform a temporary separation of the family, incurred by reason of misfortune, into an absolute severance of those ties so interwoven with human hearts, should, and can, be done only under due process of law.
It is suggested that to require notice to be given to the natural parents of any subsequently proposed adoption proceedings after a child has been committed to a state institution will seriously interfere with the obtaining of homes By adoption for such children, and that such or similar considerations based upon the idea of an absolutely primary and paramount interest in the welfare of the child should be sufficient to require the natural parents to forego their rights to be heard on the question of whether such child is to have a new permanent home and as to what the new home shall be. However well founded, as an abstract question, such view may be, we cannot permit it to override constitutional guarantees.
Under sec. 1, art. I, Wis. Const., which in its broad language includes the guarantee of due process of law in attempted judicial proceedings as much so as does the more specific language of the Fourteenth amendment to the United States constitution (Ekern v. McGovern, 154 Wis.
Notice that some particular judicial proceedings are already instituted or proposed to be instituted; notice of the time and place where such hearings are to be had; reasonable opportunity to be heard, are the essentials of due process of law; anything short of this is absence thereof. Seifert v. Brooks, 34 Wis. 443, 448; State ex rel. Milwaukee Med. Coll. v. Chittenden, 127 Wis. 468, 506, 107 N. W. 500; Ekern v. McGovern, 154 Wis. 157, 240, 142 N. W. 595; Truax v. Corrigan (U. S.) 42 Sup. Ct. 124; 12 Corp. Jur. 1192; 6 Ruling Case Law, 446.
There having been a lack of due process of law, the attempted adoption proceedings in the county court of Monroe county in August, 1918, were void. The circuit court erred in reversing the order and judgment of the county court in these proceedings so holding.
By the Court. — Judgment reversed, and cause remanded with directions to affirm the order of the county court vacating the adoption proceedings and directing that the child Myrtle Lacher be forthwith restored to her natural parents, the petitioners.
Dissenting Opinion
(dissenting). Sec. 573 — 1, Stats. 1917, defined a dependent child and neglected child to include one that is “dependent upon the public for support.” Sec. 573 — 4 provided that any reputable person, being a resident in the county, having knowledge of a child in his county who appears to be either neglected, dependent, or delinquent, may file with the clerk of the court having jurisdiction of the matter, a petition in writing, setting forth the facts, verified by affidavit. Sec. 573 — 5 provided that upon the filing of such petition a summons should issue from the court
Acting under these statutory provisions, the juvenile court of Dane county, upon a proper petition and notice to the parents, adjudged that Myrtle Lacher was a dependent child, the parents being unable to care for her. The parents not only had notice of this proceeding, but, pursuant to the summons, produced said Myrtle Lacher in . court and were present at and participated in the proceedings resulting in such adjudication. Upon such adjudication, and pursuant to the statutory authority referred to, said juvenile court committed said Myrtle to the state public school at Sparta. Thereafter, as set forth in the majority opinion, certain adoption proceedings were had in the county court of Monroe county, resulting in the adoption of said Myrtle by the defendants, consent to such adoption being given by the state board of control pursuant sec. 573/, Stats. 1917, authorizing said board "to consent to the adoption of any child who is an inmate of the state public school by any person or persons in the manner provided by law; and such consent given in writing shall have the samé force and effect as if given by the parent or parents of such child.”
These adoption proceedings are held invalid by this court
The right of the parents to the care, custody, and control of the child was effectually extinguished by the proceedings in the juvenile court, wherein it was determined that Myrtle was a neglected and dependent child, and as a result of which she was committed to the state public school at Sparta. Of these proceedings the parents had due notice and they were present at and participated therein. As a result of those proceedings the care, custody, and control of the child was taken from them and- the state thereupon asSúmed such care, custody, and control as parens patrice. This, according to my understanding, was well within the power of the state, which thereafter stood in the relation of loco parentis to the child. Its care, custody, control, and destiny was thereafter in the care and keeping of the state until such relation should be terminated in the manner prescribed by the statutes. But before 'any effort was made to have the care and custody of Myrtle restored to the parents, the state board of control, acting under and pursuant to the power conferred by sec. 573/, consented to her adoption by the defendants herein. It is held by the court that this consent is not sufficient, and that, in addition thereto, • the consent of theparents is essential to the validity of such adoption proceedings, by reason of secs. 4021 and 4022, Stats.,, set forth in the statement of facts.
These sections were introduced into our statutory law in 1853. , Sec. 573/ was enacted in 1885 as a part of the law
In my opinion, the consent of Myrtle’s parents was not necessary to her legal adoption by the defendants. In my opinion, this does not result in depriving them of their parental rights without due process of law. They were accorded due process of law in the original proceeding, which resulted in the commitment of Myrtle to- the state public school and to the care and custody of the state as parens patria.
I feel most deeply that the opinion, of the court is a step in the wrong direction. I appreciate fully that it is prompted by the highest motives, and I am in full sympathy with the
In the majority, opinion it is declared:
“Before such extinguishment of the rights of the natural parents, and creation of rights in the adoptive parents there must be an abandonment thereof by the natural parents by conduct or written consent, or else due notice to them of the proceedings wherein such transformation is to take place., Such are the clear and explicit directions of the statutes, sec. 4022 et seq., quoted above. Such would be the result in the absence of statutory provisions. Such are the repeated rulings of this court, from which we have no desire to recede, nor to the vigor with which they are expressed could we add. Schiltz v. Roenitz, 86 Wis. 31, 40,
These cases merely hold, as I freely concede, that the parental right cannot be extinguished without due process of law. But in none of these cases was the court dealing with a situation where the state had assumed custody and control of the child upon due notice to the parents. It has not been held in any prior decision of this court that proceedings of which the parents had due notice resulting.in the state assúming the care, control, and custody of a child was a notice to the parents necessary to constitute valid adoption proceedings.
In Guardianship of Knoll, 167 Wis. 461, 167 N. W. 744, the child was committed to the state public school in proceedings under a law which did not provide for any notice to the parents. The court there very properly held that the parents had never had due process of law. In the other cases cited the child was not a ward of the state at all, and consent on the part of the state board of control was not involved.
It is said in the opinion, as I understand it, that to construe sec. 573/ according to this contention would be to render it unconstitutional. If by this it is intended to chair lenge the power of the state to assume control and custody of dependent children and make such disposition of them as may promote their best interests, then I think the position of this court is out' of harmony with that of any court that has spoken upon the subject. While the right of the parents to the care, nurture, and custody of their child is conceded, this right is attended with the concomitant duty to nourish, support, and educate the child, and when the parents are unable to perform this duty they forfeit their right to the care and custody of the child. The state would, indeed, be most recreant did it fail to provide for the nourishment and maintenance of children of parents who are unable to nourish and maintain them. This is a duty devolving upon
So far. as my investigation has gone, the paramount right of the state in this respect has never been challenged. It was said by Mr. Justice Story, as early as 1816, in U. S. v. Bainbridge, 1 Mason, 71, 79, 80, that
“Be the right of parents, in relation to the custody and services of their children, whatever they may, they are rights depending upon the mere municipal rules of the state,', and may be enlarged, restrained, and limited as the wisdom or policy of the times may dictate, unless the legislative power be controlled by some constitutional prohibition.” “Can there be a doubt that the state legislature can, by a new statute, declare a minor to be of full age, and capable of acting for himself at fourteen, instead of twenty-one years of age? Can it not emancipate the child altogether from the control of its parents? It has already, in the case of paupers, taken the custody from the parents, and enabled the overseers of the poor to bind out the children as apprentices or servants, during their minority, without consulting the wishes of the parents.”
In Bennet v. Bennet, 13 N. J. Eq. 114, 118,it is said:“The relative rights of parent and child are all under the control and regulation of municipal laws. They may and must declare how far the rights and control of the parent shall
In Whalen v. Olmstead, 61 Conn. 263, 267, 23 Atl. 964, the mother brought a writ of habeas corpus to secure possession of her child committed to a state home because of her inability to care for the child, upon the ground that she was then able to do so. It seems that under the statute the board having control of the institution was empowered to .release the child in its discretion. During the course of the opinion the court uses this language:
“It is indeed true, as the plaintiff further says, that the homes provided by the statute are not penal or reformatory institutions, and are not intended for the detention of children for the purposes of punishment or moral reformation. Such homes, are provided in the exercise of a guardianship and protection assumed by the state as parens patrice, taking to its bosom its infants, deserted, neglected, cruelly treated, or,dependent, and giving to these homeless ones a home. Under the conditions contemplated by the statute it would be absurd to. deny that the right of the parent to the control, custody, maintenance, and education of his ot her minor children must yield to the state, and that the welfare and best interests of the child, in questions relating to custody, is paramount to all other considerations.”
In State v. Clottu, 33 Ind. 409, 411, the court says:
“The duties and authority pertaining to the relation of parent and child have their foundations in nature, it is true. Nevertheless, all civilized governments have regarded this relation as falling within the legitimate scope of legislative control. Except in countries which lie in barbarism, the authority of the parent over the child is nowhere left absolutely without municipal definition and regulation. The period of minority is fixed by positive law, when parental control shall cease. Within this, the age when the child may . marry at its own will is in like manner defined. The matter of education is deemed a legitimate function of the state, and with us is imposed upon the legislature as a duty by imperative provisions of the constitution. The right of cus*580 tody, even, is sometimes made to depend upon considerations of moral fitness in the parent to be intrusted with the formation of the character of his own offspring. In some countries, and even in some of our American states, education has for more than a century been made compulsory upon the parent, by the infliction of direct penalties for its neglect. The right of the parent to ruin his child either morally or' physically has no existence in nature. The subject has always been regarded as within the purview of legislative authority. How far this interference should extend is a question, not of constitutional power for the courts, but of expediency and propriety, which it is the sole province of the legislature to determine. The judiciary has nó authority to interfere with this exercise of legislative judgment; and to do so would be to invade the province which by the constitution is assigned exclusively to the lawmaking power.”
In Stearns v. Allen, 183 Mass. 404, 408, 67 N. E. 349, the court says:
“Adoption involves a change of status. So far as the adopting parents are concerned, the change cannot be made without their consent. So far as an infant child is concerned, the state, as his protector, may make the change for him. The natural parents of the child should be considered and their natural rights should be carefully guarded, but their rights are subject to regulation by the state, and if these come into conflict with the paramount interests of the child, it is in the power of the state, by legislation, to separate children from their parents when their interests and the welfare of the community require it.”
Indeed, this principle has been declared by our own court in scarcely less emphatic language in Schiltz v. Roenitz, 86 Wis. 31, 56 N. W. 194, where it is said:
“It is not disputed but that a father has dominion, by right, over his minor children, nor that such primary right may be lost or forfeited by him by abandonment, neglect, or abuse. The right of the parent is not absolute and unconditional. The necessities and well-being of the social state enter so largely into the question of the dominion and*581 control of the parent over his child that, in the interest of society and the physical and mo^al necessities of the child, the entire subject is one of appropriate legislation, providing in what manner the parent may be deprived or restrained in the exercise of his natural rights by reason of neglect, abandonment, or abuse.”
I have no doubt of the power of the state to assume custody and control of minor children who are dependent and neglected even though it be by reason of the misfortune and inability of well-meaning parents to provide for them, and to control and direct their future destiny, disposing of them in such manner as may appear to those charged with the duty and responsibility of acting on behalf of the state in that respect- to be for the best interests of the child and the public. In my opinion, when the child Myrtle was committed to the state public school by the juvenile court the parental right of control was extinguished until returned by the state in the manner provided by law; that the state had the power, and that the statutes authorized the state board, of control to fully and adequately consent to-the adoption proceedings, and that by virtue thereof she became the ' legally adopted child of the defendants in this case, and that the judgment of the circuit court should be affirmed.
I am authorized to state that Mr. Justice Rosenberry and Mr. Justice Jones concur in the foregoing dissenting opinion.
A motion for a rehearing was denied, without costs, on July 8, 1922.