Doe v. Hancock County Bd. of Health

• Citation: 436 N.E.2d 791
• Decision Date: 01 July 1982
• Docket Number: No. 782S249,782S249
• Parties: John DOE, Jane Doe, and Jane Doe as Next Friend of Their Infant Child, Baby Doe, Appellants (Plaintiff below), v. The HANCOCK COUNTY BOARD OF HEALTH and Indiana State Board of Health, Appellees (Defendants below).
• Court: Indiana Supreme Court

Page 791

436 N.E.2d 791

John DOE, Jane Doe, and Jane Doe as Next Friend of Their Infant Child, Baby Doe, Appellants (Plaintiff below), v. The HANCOCK COUNTY BOARD OF HEALTH and Indiana State Board of Health, Appellees (Defendants below).

No. 782S249.

Supreme Court of Indiana.

July 1, 1982.

Appeal from Hancock Circuit Court, Hancock County; Ronald L. Gottschalk, Judge.

Ralph Ogden, M. Anne Wilcox, Wilcox & Ogden, Indianapolis, for appellants.

Linley E. Pearson, Atty. Gen., Rollin E. Thompson, Asst. Atty. Gen., Indianapolis, for appellees.

ORDER

Appellant's "Verified petition for Transfer" is Granted, without Opinion, and the Court hereby dismisses this cause, this 1st day of July, 1982. This Court sees no reason to interfere with the legislative policies in handling statistical data. This is especially true in the case at bar in view of the many legal methods available to provide a desired name for the child. The State's verified motion to Dismiss is Granted for the reasons stated therein.

HUNTER, J., dissents to the grant of petition to transfer and dismissal.

HUNTER, Justice, ^* dissenting to grant of petition to transfer and dismissal.

I dissent to the majority's dismissal of this case on a procedural technicality. The action of this Court in dismissing the matter on a technical basis effectively deprives the appellants of their constitutional rights of appellate review. This case involves a direct and substantial challenge to the constitutionality of an Indiana statute and involves a substantial issue of individual freedom. After an adverse decision in the trial court, appellants timely perfected their appeal to the Court of Appeals, First District, by the filing of the record of the proceedings and their brief. However, appellees filed their brief one day late and the Court of Appeals denied their verified petition to file a belated brief. This action resulted in the effective dismissal of the case under Ind.R.Ap.P. 8.1(A). The record shows that appellees' brief was delivered to the Clerk of the Court one day late due to an error in calculation of the deadline for filing. Appellants supported the appellees' petition to file a belated brief because of the need to have adequate briefs by both parties dealing with the constitutional issues raised in the case. Following the court's refusal to accept the belated filing of the appellees' brief, appellants filed their verified petition to transfer. I would grant this petition to transfer in order to consider the case on its merits.

It is well settled that the priority under our appellate rules is for the reviewing court to decide cases on their merits whenever possible. The courts have the discretion to excuse technical failures in certain circumstances where no one is unduly prejudiced thereby.

"Although our procedural rules are extremely important, it must be kept in mind that they are merely a means for achieving the ultimate end of orderly and speedy justice. We must examine our technical rules closely when it appears that invoking them would defeat justice; otherwise, we become slaves to the technicalities themselves and they acquire the position of being the ends instead of the means.

" 'Our function is to serve the truth and to decide legal issues, not clear our dockets by utilization of unnecessarily narrow technical interpretations.' " American States Insurance Company v. State of Indiana ex rel. Jennings, (1972) 258 Ind. 637, 640-1; 283 N.E.2d 529, 531 (citations omitted).

Furthermore, it is clear that the consideration of appellees' briefs which are not timely filed is entirely discretionary with the court under the authority of Ind.R.Ap.P. 8.1(C). State ex rel. American Reclamation v. Klatte, (1971) 256 Ind. 566, 270 N.E.2d 872. The matter under review in this case is of great public importance as it involves a consideration of the constitutionally protected common law right of parents to name their children. Equal protection issues are raised involving both a gender-based classification and a discrimination based upon the status of illegitimacy. For all of these reasons, justice will best be served if this case is considered upon its merits under our discretionary authority.

The statute under consideration here is Ind.Code § 16-1-16-15 (Burns 1974) which states:

"Illegitimate child-Name.-A child born illegitimate shall be recorded under the name of the mother."

Appellants in this case, who are living together but are not married, wanted to register their baby under the surname of the father on the birth certificate. The Hancock County Board of Health would not permit the baby to be registered under the father's name. The trial court granted summary judgment for the Board of Health, upholding the constitutionality of the statute. There is no comparable statute restricting the choice of name under which married parents may register their child on a birth certificate.

Appellants now contend that the statute, Ind.Code § 16-1-16-15, supra, which requires that a child born illegitimate be given the mother's surname, violates their constitutional rights to privacy and substantive due process, their right to participate freely in the selection of their child's name, and their right to equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution.

It is well settled by common law that a person may change his name at will, without resort to legal proceedings, by merely adopting another name, provided that this is done for an honest purpose. We have clearly held that our statutes dealing with a change of surname by court order are not a restriction on this common law principle but are merely in aid of the common law. In re Hauptly, (1974) 262 Ind. 150, 312 N.E.2d 857; D. R. S. v. R. S. H., (1980) Ind.App., 412 N.E.2d 1257. We have stated:

"(T)here is no legal requirement that any person go through the courts to establish a legal change of name. The statute merely provides for an orderly record of the change of name in order to avoid future confusion. * * * Indiana has no statute that would prevent the taking of an assumed name without judicial order." In re Hauptly, supra, 262 Ind. at 152, 312 N.E.2d at 857.

This common law principle of the right of any person to change his name at will has been consistently upheld in other jurisdictions. Thomas v. Thomas, (1981) 100 Ill.App.3d 1080, 56 Ill.Dec. 604, 427 N.E.2d 1009; Secretary of the Commonwealth v City Clerk of Lowell, (1977) 373 Mass. 178, 366 N.E.2d 717; Custer v. Bonadies, (1974) 30 Conn.Sup. 385, 318 A.2d 639; State ex rel. Krupa v. Green, (1961) 114 Ohio App. 497, 177 N.E.2d 616.

An individual's freedom of choice in the matter of names extends to the right of parents to give any name of their choice to their children. In Massachusetts, the appellate court cited cases dating back to 1896 which upheld the principle that the naming of a child is a right and a privilege belonging to the child's parents. D'Ambrosio v. Rizzo, (1981) --- Mass.App. ---, 425 N.E.2d 369; accord Doe v. Dunning, (1976) 87 Wash.2d 50, 549 P.2d 1. The parents, whether married or not, may change their own names at will and need not have the same surname. They are clearly free to give their child any surname they wish.

The principles of freedom of choice and parental control are not abrogated by the fact that a child is born to unmarried parents. We have consistently recognized that the mother of an illegitimate child has the primary right to the custody and control of her child and that both parents are usually under an obligation to such a child to provide for its necessary maintenance and support. Glansman v. Ledbetter, (1921) 190 Ind. 505, 130 N.E. 230; Dalton v. State, (1843) 6 Blackford 357; Sullivan v. O'Sullivan, (1959) 130 Ind.App. 142, 162 N.E.2d 315. It clearly follows that since unmarried parents have the same obligations and duties to their child as do married parents, they also have the same freedom of choice in determining their child's initial surname.

In this case, both parents of the child agree that they wish to give their child the father's surname. However, there is no legal reason which would prevent the mother of an illegitimate child from choosing any name she wishes for her child in the absence of any objection from the putative father or evidence of a dishonest purpose on her part, since she has the primary right to the custody and control of the child. Dalton v. State, supra.

The naming of one's own child is a matter of personal choice in the area of family life which the United States Supreme Court has long held must be accorded special protection. Specifically, that Court has held in a number of recent cases that freedom of personal choice in the matters of family life is one of the liberties protected by the due process clause of the Fourteenth Amendment, and that in the private realm of family life there is a right to make decisions free of the coercive power of government. Smith v. Organization of Foster Families for Equality and Reform, (1977) 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14, and cases cited.

While the specific issue of choice of a child's name has not come before the United States Supreme Court, other jurisdictions have found that the naming of one's own child is a constitutionally protected right. The Federal District Court in Hawaii found that the Hawaii statute restricting the choice of names a married couple could give their child was unconstitutional. Jech v. Burch, (D.Hawaii 1979) 466 F.Supp. 714. The court held:

"(A) proper interpretation of Anglo-American political and legal history and precedent leads to the conclusion that parents have a common law right to give their child any name they wish, and that the Fourteenth Amendment protects this right from arbitrary state action."

"What is the state interest in refusing to allow parents to give their child at birth a name which they may immediately confer by way of...