In re Knowack

• Decision Date: 18 April 1899
• Citation: 158 N.Y. 482,53 N.E. 676
• Parties: In re KNOWACK et al.
• Court: New York Court of Appeals Court of Appeals

158 N.Y. 482

53 N.E. 676

In re KNOWACK et al.

Court of Appeals of New York.

April 18, 1899.

Appeal from supreme court, appellate division, Fourth department.

Petition by Charles Knowack and another for the restoration of their children in the custody of the Children's Aid Society of Rochester. From an order of the appellate division affirming an order granting the petition (52 N. Y. Supp. 1144), defendant appeals. Affirmed.

John H. Hopkins, for appellant.

Delbert C. Hebbard, for respondents.

BARTLETT, J.

This is a proceeding based upon a petition addressed to the supreme court of the state of New York by Charles Knowack and Johanna, his wife, praying that their four children, now in the custody of the Children's Aid Society of Rochester, be restored to their care and control. At the time this petition was verified, on the 22d of December, 1897, the four children of the petitioners-the only issue of the marriage-were aged, respectively, Frank, 12 years; Gustave, 11 years; Emil, 8 years; and Freddie, 6 years. It appears that some two years before the present application was made, and on the 5th day of June, 1895, these children were committed by a police justice of the city of Rochester to the care of the Children's Aid Society, under section 291 of the Penal Code, on the ground of the intemperance and neglect of their parents. Each child was committed by a separate commitment, which was headed ‘Destitution Commitment,’ and recited that the child ‘was found not having any home or other place of abode, or proper guardianship, being in a state of want and suffering, and destitute of means of support, in violation of statute,’ etc. The child was to remain in charge of the society ‘until therefrom discharged in manner prescribed by law, not to exceed the period of its minority.’ Section 291 of the Penal Code is contained in chapter 3, entitled ‘Abandonment and Other Acts of Cruelty to Children.’ This section is somewhat lengthy, and provides that any child, actually or apparently under the age of 16 years, who is found under certain circumstances, may be duly committed. Subdivision 2 states: ‘Not having any home or other place of abode or proper guardianship; or who has been abandoned or improperly exposed or neglected, by its parents or other person or persons having it in charge, or being in a state of want or suffering; or (subdivision 3) destitute of means of support,’ etc. So far as this record discloses the facts, the petitioners do not dispute the regularity of the original commitments, nor does the Children's Aid Society controvert the allegations in the petition and accompanying affidavits. The petitioners aver that whatever ground might have existed on the 5th day of June, 1895, for the removing of the children from their care and custody has been fully and absolutely removed; and that since the last-named day they have been sober, industrious, and have tried by all means possible to live honorable and respectable lives. It further appears that the father and mother are both earning good weekly wages for persons in their position; that they are in comfortable financial circumstances, and have a substantial bank account with the Rochester Savings Bank of the city of Rochester, and own good and valuable chattels and securities; that they are free from all debts, and are in comparatively independent circumstances for persons in their station in life. The petitioners further aver that they are in every way able, willing, and desirous of caring for their four children, who are now a charge upon the poor fund of the city of Rochester for their food, clothing, and care, and that all the facts touching their willingness, ability, and desire are more fully set forth and confirmed by the affidavits attached to the petition. The petitioners further show that they have made frequent demands of the president and other officers of the Children's Aid Society for the return of their children, and that they even offered that the children be returned to them on trial, to be taken away again without resort to law, whenever the petitioners' conduct might seem to the officers of the society to justify such proceeding, but the officers have at all times refused to comply with these demands and requests. It further appears that the children are all anxious and desirous of returning to the home of their parents. Annexed to the petition are a number of affidavits of third parties, corroborating, in detail, the allegations that the petitioners are sober, industrious, and for a long time have been living honorable and respectable lives. The truth of the allegations of the petition and affidavits is admitted; the Children's Aid Society, in substance, demurring to these facts. It is claimed by the learned counsel for the society that persons committed by a final judgment of a court or magistrate of competent jurisdiction in a criminal proceeding cannot be discharged by the supreme court in the exercise of its general equitable powers. Counsel further states that when a child is finally committed to a charitable institution, under section 291 of the Penal Code, there is no way by which the institution can be deprived of its custody, except by the consent or in consequence of the misconduct of the institution itself, unless the commitment is directly and successfully attacked by appeal, under section 749 of the Code of Criminal Procedure, or by a habeas corpus proceeding.

The main position of the society is based upon an erroneous conception of the situation now presented. This is not a criminal proceeding; there is no prisoner and no crime has been committed. We have already called attention to the fact that the section of the Penal Code (291) under which these commitments were made is contained in the chapter (3) entitled ‘Abandonment and Other Acts of Cruelty to Children.’ The state, as parens patriae, by this legislation seeks to protect children who are destitute and abandoned by those whose duty it is to care for and support them. To regard proceedings under this benign statute as criminal in their nature, and hedged about with all of those consequences that follow a judgment of conviction for crime, is to confound remedies. The law relating to the commitment of minors to penal and charitable institutions is largely of American origin, and rests upon statutory provisions. These commitments are naturally relegated into three classes,-commitments as a punishment for crime, commitments where the proceeding is quasi criminal, and commitments for care and guardianship. 30 Cent. Law J. 53. In the first class are cases of actual crime, where the proceeding often results in the commitment of the defendant to a reformatory by reason of his minority, rather than to send him to a penitentiary or state prison, where he would be thrown in contact with hardened criminals. Notwithstanding this consideration extended to the defendant, he stands in the attitude of a criminal duly convicted of crime. The second, or quasi criminal, class may be illustrated by the case of a parent or guardian who makes application and complaint to a magistrate, asking the commitment of a minor child to some reformatory or charitable institution on the ground that he is incorrigible or beyond domestic control. The main object of such a proceeding is to reform a child, if possible, and this commitment is governed by different rules than either of the other classes. The third class, where the state intervenes to care for and protect the homeless and destitute child, is far more numerous, and is the one that embraces the case at bar.

The single question presented by this appeal is whether the supreme court of the state of New York, having general jurisdiction in law and equity, and being vested with all the jurisdiction which was possessed and exercised by the court of chancery in England at the time of our separation from the mother country, except as modified by the constitution and statutory provisions (section 217, Code Civ. Proc.), has power to intervene in this case, and restore these children to the custody and care of their parents. It certainly is a most startling doctrine that a child, who is a public charge and has been committed for such reasons as are disclosed in this case, cannot be restored to parental care and control, where conditions have changed and are such that neither in law nor morals the separation of parent and child should be continued. We are not now called upon to decide what effect legal adoption in good faith by third parties would have on an application like this. The Children's Aid Society stands in this proceeding upon the bald proposition of law already stated, that without its consent to their release these children are to remain in the custody of this institution during their minorities. As the...