Fischer v. Meader

• Decision Date: 26 October 1920
• Parties: FISCHER et al. v. MEADER et al.
• Court: New Jersey Supreme Court

111 A. 503

FISCHER et al.

v. MEADER et al.

Supreme Court of New Jersey.

Oct. 26, 1920.

Habeas corpus proceedings by Barbara Fischer and husband against John R. Meader and others to recover custody of a minor child. Writ dismissed.

Argued before Justice MINTURN sitting alone pursuant to the statute.

Weinberger & Weinberger, of Passaic, for petitioners.

Francis H. McGee, of Trenton, representing the Attorney General for the State Board.

Ranzenhofer & Ranzenhofer, of Passaic, for the other defendants.

MINTURN, J. After Barbara Fischer, one of these petitioners, the natural mother of the child in controversy, had been committed to the county jail of Passaic county, by a police magistrate of the city of Passaic, on the 16th of March, 1916, for the offense of cruel and inhuman treatment of her child, the latter, an infant five years of age, was thereafter on April 1, 1916, legally committed by the same magistrate on the application of the overseer of the poor, as an abandoned child, to the care and custody of the state board of children's guardians. Upon an application for that purpose, the orphans' court thereafter on August 9, 1917, upon notice to the state board, but without notice to the mother, made an order allowing these defendants, Mr. and Mrs. Meader, to adopt the child, and as a result thereof the child has assumed the family name of the Meaders and has ever since remained the only child of their household. The mother for some time had been an enforced habitue of the police court, and the child so far as her paternity has concerned was filius nullius.

Whatever legal status John Fischer, the putative father and the other petitioner herein, may have enjoyed under the civil law by reason of his recent marriage to the mother, he occupied no recognized legal paternal status at common law or under our statute. 2 Kent's Com. 218; L. 1913, c. 331.

Over four years have elapsed since the child became by the act of its mother and the declaration of the police court a practical derelict and a waif. In the language of the civil law she was filius populi, and in the terms of our statute she was an abandoned child. During that interim and until shortly prior to this application, the maternal instinct never asserted itself sufficiently to manifest the least concern, interest, or feeling of responsibility in or for the welfare of its progeny. That fact upon this application is important only to emphasize the fact and the completeness of the abandonment. That the child was abandoned was held to be the fact by the police court, and by the proceedings of the overseer as a result of which proceedings she was surrendered into the custody of the state board. An inspection of those proceedings satisfies me of their legal correctness. But aside from that aspect of the situation this petitioner cannot in this proceediug attack a collateral adjudication of a tribunal of competent jurisdiction, which determined the legal status of the infant as that of an abandoned child, and the specific and continued dereliction of the mother as evidence of that abandonment. In legal effect therefore the child became a public charge, and a ward of the state as parens patriae. In re Marlow, 75 N. J. Law, 400, 68 Atl. 171; Clifford v. Heller, 63 N. J. Law, 105, 42 Atl. 155; Miles v. Wescott, 25 Atl. 190; 15 Am. & Eng. Encyc. 144, and cases.

The fundamental contention is that, the mother not having received notice of the proceedings in the orphans' court for the adoption of the child, those proceedings are without legal warrant. The proceedings are statutory, and the adoption act requires notice to the parents or to one of them under certain circumstances. That legislation was supplemented by what is popularly known as the "Child's Welfare Act," by which the state exercising its undoubted power as parens patriae created what is known as a "State Board of Children's Guardians." P. L. 1899, p. 362; 2 C. S. p. 2819. The title of the act is sufficiently comprehensive to indicate its purpose, for it expressly creates the board to exercise "maintenance, care and general supervision over indigent, helpless, dependent abandoned, friendless and poor children, now or hereafter to become public charges of this state."

The eighth section provides that upon commitment of a child as a "public charge" by the overseer of the poor of any municipality, and upon notice thereof to the state board, "such child or children shall immediately become the ward or wards of the state board of children's guardians; and said state board of children's guardians shall thereupon, for all intents and purposes, become and be declared the legal guardian of such child and entitled to its custody, and which right of guardianship shall supersede any right of the parents of said child, so far as its custody is concerned."

The final section of the act provides that it shall be liberally construed "for the benefit of any child or children so becoming ward or wards of such board of children's guardians as aforesaid." The status of the board having been thus expressly fixed "for all intents and purposes" as the "legal guardian" of the child in question, and it being conceded that the board received notice of the application for adoption, the legal conclusion follows that the orphans' court was possessed of the necessary jurisdiction to make the order in question.

The more radical attack, however, is made upon the act itself, in that as alleged it deprives the mother of the constitutional right of possessing her child, thus contravening the inhibition of the fourteenth amendment to the federal Constitution, requiring "due process" as a condition precedent to the deprivation of a vested right. It may be said in limine that it is difficult to apprehend an existing legal right where such right has been abandoned by the party possessing it. The assertion of the right assumes its existence when in fact the decree of the court is proof of its abandonment. When this petitioner abandoned her child it became a public charge, and it became the duty of the state as parens patriæ to claim it, not only in the interest of the child, but also in the interest of the state itself, representing the people whose future morals and prosperity depend essentially upon the...