Adoption of Tschudy, In re
| Decision Date | 08 June 1954 |
| Citation | 267 Wis. 272,65 N.W.2d 17 |
| Parties | In re Adoption of TSCHUDY. WISCONSIN STATE DEPT. OF PUBLIC WELFARE, v. TSCHUDY. |
| Court | Wisconsin Supreme Court |
The judgment in this cause was rendered in the county court of Green county on February 23, 1954, in a proceeding based upon petition of the respondent, Dorothy Tschudy, filed December 14, 1953, for the adoption of a male child, which was an infant ward of the appellant, State Department of Public Welfare of Wisconsin (for brevity hereinafter referred to as the department).
The child was born on June 6, 1951. It was permanently committed to the care and custody of the department on September 14, 1951, pursuant to provision of sec. 48.07(7), Stats., and the department became its legal guardian.
When filing the adoption petition, Dorothy Tschudy was a widow, 29 years of age, residing at Monroe in Green county. The child had been placed in the home of the petitioner, Dorothy Tschudy, and her husband Vernon, by the department on March 17, 1952, under agreement between the parties as set forth in written instruments. The husband of petitioner died on April 11, 1953.
The agreement between the parties provided that the child was to be taken into the Tschudy home on a free home basis with a view to adoption; that the department as legal guardian was permitted to remove the child from the home in the event that it deemed such removal necessary; that no adoption proceedings were to be commenced unless such action was first approved by the department; that the Tschudys left to the department the making and carrying out of plans for the child pertaining to adoption, transfer to other homes etc.; that the Tschudys agreed to follow the department's decision to remove the child in the event that the department believed that such removal was indicated. By agreement, a foster home permit under sec. 48.38, Stats., was issued to the Tschudys for one year subject to earlier revocation. Detailed requirements concerning the care of the child were outlined in the agreement.
While in the Tschudy home the child was supervised by Miss Shirley Maxfield, a social welfare worker employed by the department's division for children and youth. With the department's approval the child was baptized on April 13, 1952, at the Evangelical and Reformed Church of Albany in Green county and named Jeffrey Vernon Tschudy. Shortly before April 3, 1953, the Tschudys requested the department to arrange final steps in the matter of the adoption. About that time they also sought permission to take the child with them on a vacation trip to Florida. Consent to take the child on the trip was given and the Tschudys were lead to believe that the adoption of the child would be perfected shortly after their return. On April 11, 1953, while they were enroute back to Wisconsin, the husband Vernon, died suddenly in Alabama. Thereafter the petitioner indicated to the department her desire to keep the child and to adopt it. There is conflict in the evidence as to whether after the husband's death Miss Maxfield had not advised Mrs. Tschudy that in view of the changed circumstances a continuation of adoption plans would have to abide the department's future consideration and decision. Thereafter, Mrs. Tschudy lived at times with relatives, friends, and strangers. She became employed, and while at work left the child in care of various people. On August 31, 1953, the department advised the petitioner that it had concluded to remove the child from her custody, and she was instructed to deliver it to the department on the following day. However, she removed the child from Madison (where she had been living) to New Glarus in Green county and indicated that she did not intend to give him up. On September 5, 1953, the department secured an order for writ of habeas corpus in the circuit court branch of the county court of Green county. At a hearing, presided over by Judge Harold J. Lamboley, the court determined that the department as guardian was entitled to the custody of the child and that such action was for the child's best interests. Mrs. Tschudy was requested to deliver the child to the department. The formal order of Judge Lamboley in the habeas corpus proceeding was entered on November 13, 1953, after an application to amend the decision had been heard and denied by the court. Agents of the department had arranged to receive the child from her on November 14, 1953. Mrs. Tschudy concealed herself and the child and the court issued a writ of attachment for her arrest. On November 19, 1953, she surrendered the child to the department. Thereafter, Judge Lamboley disqualified himself from further participation in the proceedings and requested county Judge Elton J. Morrison to preside in the cause.
In the adoption proceedings here a motion for summary judgment addressed to the court on behalf of the partment was heard and denied. A hearing on the petition for the adoption was held. Findings of fact, conclusions of law, and judgment were rendered on February 23, 1954.
The evidence presented at the adoption hearing was conflicting in various material particulars. The trial court found that the petitioner, Dorothy Tschudy, was a person of good moral character and of reputable standing in the communities in which she had lived; that during the time that the child was in her custody, the care extended to it had been satisfactory and that the child had made normal progress, that the surrender of the child to the department was made by her under protest; that the mother and present husband of the mother of the petitioner had offered a written agreement (adequately secured by a mortgage on a farm) that they would contribute $100 to $150 per month for the support, education and general welfare of the child until he became 17 years of age; that the petitioner and her husband had contracted for life insurance to assist in financing the child's education; that petitioner planned to devote practically full time to the care of the child until he started grade school; that after March 17, 1953, and before April 3, 1953 the petitioner and her husband had been assured by the department that the adoption would be completed after their return from the vacation trip to Florida; that following the death of petitioner's husband, the child was left in the care of responsible people, and that he suffered no ill effects during Dorothy Tschudy's absence while she was engaged in employment; that the bond of love and affection between the child and the petitioner was close, normal and satisfactory; that the best interest and general welfare of the child will be promoted through the prompt return of the child to the petitioner. That such return will tend to avoid injury to his mental health; that placing him in a foster home and into another home on a year's trial basis before adoption will not be for the child's welfare; that while a father for an adoptive family is desirable, it is not essential that there be such father for the bringing up of a boy. That the department had placed the child in the home of the petitioner and her husband after a thorough investigation of home surroundings, the adoptive father, mother, family background, type of child and suitability of child to parents, and had found the conditions satisfactory for adoption; that the petitioner and her husband had provided board and room and in addition had spent over $700 for his support, maintenance and comfort without charge to the department; that for nearly 17 months the department had permitted the child-parent relationship to continue and had made no complaint to the petitioner of her care of the child; that the child is normal and healthy and suitable for adoption; that the education, religious training and health of the petitioner are favorable to the adoption of the child; that the department gave notice prior to trial that it withdrew any consent to adoption that might have become implied; that all legal requirements relative to adoption had been complied with except as to the written consent to adoption from the department; that the department's consent to the adoption was refused; that the refusal to consent was predicated on the department's policy or rule that there must be an adoptive father and mother living at the time the written consent is given and the order for adoption is entered.
The trial court concluded that the department may use its discretion in administering provisions of the adoption statutes, ch. 322, in so far as entrusted to it, provided it remain within the limitations prescribed; that in the event the department exceeds its authority and legislates instead of administers, the court has jurisdiction to review; that in attempting to enforce a policy that it will not consent to an unmarried petitioner for adoption the department exceeds its authority; that such required policy not only adds to several requisites prescribed by the statutes in adoption cases but is in direct contravention of the power conferred by statute on any adult person to petition, including a single person; that the department has no control over any adoption cases except such where the court has permanently committed the child to its custody, and that hence, the policy that there must be an adoptive father and mother in every case, cannot be arbitrarily applied to all adoption cases alike; that while such a policy may be considered with other factors, the absence of the father figure alone is insufficient to deny a single person or widow the right to adopt an infant child; that the application and enforcement of such policy in the instant case is an attempt at legislation and is unreasonable and arbitrary and contravenes sec. 322.01, Stats., and the withholding of the department's consent is arbitrary and ureasonable, thus waiving and dispensing with such consent and permitting consideration of the petition on its merits; that the petitioner is a proper...
To continue reading
Request your trial
-
Guardianship of Eberhardy, Matter of
...was adopted. However, the courts of law and equity did not exercise power over all legal relationships. In Adoption of Tschudy, 267 Wis. 272, 65 N.W.2d 17 (1954), the court "Although adoption is a practice of very great antiquity, it was not known in the common law of England and it exists ......
-
Custody of H.S.H.-K., In re
... ... , allowing certain relatives who have maintained a relationship with a child similar to a parent-child relationship to seek visitation on adoption of a child by a stepparent or relative. 19 Had the legislature intended [193 Wis.2d 674] the ch. 767 visitation statute to apply to circumstances ... See Adoption of Tschudy, 267 Wis. 272, 281, 65 N.W.2d 17 (1954) (stating that "[i]n Wisconsin, adoption proceedings are statutory"); In re Cheaney's Estate, 266 Wis. 620, ... ...
-
Pollock v. Pollock
... ... Pointed out also to the trial court [273 Wis. 246] by appellant's counsel was the view of some experts referred to in In re Adoption of Tschudy, 1954, 267 Wis. 272, 65 N.W.2d 17, that in adoption situations it is well for the child to have two adoptive parents. By certain remarks ... ...
-
Adoption of Tachick, In re, 301
... ... 48.85(2) that it formerly had. At one time the trial court in an adoption proceeding could not grant the petition over the objection of the guardian ad litem. This restriction found its origin in sec. 322.04(1), Stats.1953. It was held in Adoption of Tschudy [60 Wis.2d 545] (1954), 267 Wis. 272, 65 N.W.2d 17, in construing this statute that the court was without jurisdiction to review the guardian's refusal to consent and could not grant an adoption petition over the objection of the guardian. However, in 1955 the legislature adopted sec. 48.85 which ... ...