Lacher v. Venus

188 N.W. 613, 177 Wis. 558, 24 A.L.R. 403, 1922 Wisc. LEXIS 285

• Court: Wisconsin Supreme Court
• Decided: July 8, 1922
• Status: Published

Opinions

The following opinion was filed May 9, 1922:

Eschweiler, J.

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 a home, and the state, entering also in its eminently proper and beneficent capacity as a guardian and conservator of the life, liberty, and happiness of its citizens, takes the children and supplies for the time that which the natural home cannot furnish them.

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 delinquent, needs the supervision and control of the state. Such proceedings, therefore, reach out into at least three separate and distinct fields. The exercise of this broad and generous function of the state has been expressly declared to be based upon the quality of mercy rather than upon the idea of punishment. Milwaukee Ind. School v. Milwaukee Co. 40 Wis. 328, 337. Notice to the natural parents is not a jurisdictional essential for the court to proceed in any one of these several fields. All this has been repeatedly declared by this court. Milwaukee Ind. School v. Milwaukee Co. 40 Wis. 328; Wis. Ind. School v. Clark Co. 103 Wis. 651, 664, 79 N. W. 422; Guardianship of Knoll, 167 Wis. 461, 167 N. W. 744; State v. Scholl, 167 Wis. 504, 509, 167 N. W. 830; State v. Zirbel, 171 Wis. 498, 499, 177 N. W. 601; In re Johnson, 173 Wis. 571, 573, 181 N. W. 741; In re Alley, 174 Wis. 85, 90, 182 N. W. 360.

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. They can obtain no> rights as to the child except through the surrender by or deprivation of substantially the same rights then existing in the living natural parents. Neither statute nor judicial decree attempts to or could give to the new parent anything that is not surrendered by or taken from the natural parent.

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 subsequent in enactment to the statutes found in ch. 173, the later shall control and override the earlier.

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 of the rights of the individual to life, liberty, and the pursuit of happiness, our government is formed. We trust that it will never become the established doctrine that the state shall say to the parents, and particularly to the mother, she who doth travail, and in great pain bring forth her child and after labor doth rejoice that the child is born, that there is but a mere privilege and not a right to the subsequent affection,-comfort, and pride of and in such child.'

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 petitioners here, humbly assert them as against the seeming legislative declaration to the contrary, and even against the good Samaritan, the state, which entered the home for the benign purpose of relieving the then present want by necessary, immediate, and temporary separation of the family, and as against the assertion by that same good Samaritan of its claim to have thereby acquired the right to thereafter say, as though it were the parent, that the natural blood ties of the family shall be absolutely dissolved and new relationships established.

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. , 142 N. W. 595; State ex rel. Milwaukee Med. Coll. v. Chittenden, 127 Wis. 468, 506, 107 N. W. 500), and under that provision of the federal constitution as well, rights shall not be taken from one and conferred upon another except by due process of law.

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.