Lacher v. Venus

• Decision Date: 06 June 1922
• Citation: 188 N.W. 613,177 Wis. 558
• Parties: LACHER ET AL. v. VENUS ET UX.
• Court: Wisconsin Supreme Court

177 Wis. 558

188 N.W. 613

LACHER ET AL.

v.VENUS ET UX.^a1

Supreme Court of Wisconsin.

May 9, 1922.

Dissenting Opinion June 6, 1922.

Appeal from Circuit Court, Monroe County; E. C. Higbee, Judge.

In the matter of proceedings for the adoption of Myrtle Lacher, a minor, by John C. Venus and wife. On motion by Frances House Lacher and husband to vacate an order of adoption previously entered without notice to them. Motion denied by the circuit court on appeal from the county court, and Frances House Lacher and husband appeal. Reversed and remanded, with directions to affirm the order of the county court vacating the adoption proceedings.

The appellants, husband and wife, were at the times herein mentioned the parents of eight children. Some years previous to the particular proceedings here involved, the children were committed to the State School at Sparta by certain proceedings in the juvenile court of Milwaukee county because of the inability of the parents to provide for them. Later they were returned to the parents, and the family moved to the city of Madison.

While the family were together in the city of Madison proceedings were had, the parents being notified thereof, present and testifying, in the juvenile court of Dane county then being held by the judge of the superior court of said county, and on November 15, 1917, six of such children, including a daughter Myrtle, born March 10, 1914, were committed to said State School for Children at Sparta, the order reciting and adjudging that they were then dependent children, and that said children were without care; the parents being unable to care for them.

Thereafter and while Myrtle was still an inmate of said school, the defendants John C. Venus and Wanda Venus, his wife, on August 24, 1918, petitioned the county court of Monroe county, wherein they resided and said school is located, for an order of adoption to make the said child to all legal intents and purposes the child of said petitioners and that its name be changed to Helen May Venus. At the foot of such verified petition the superintendent of said State School recited that he was fully acquainted with the facts and circumstances of the said application and was of the opinion that it would be advantageous to the child therein named that the prayer of the petitioners be granted, and certifying that said child is a ward of said school and in its legal charge and custody. There was a further indorsement by the then members of the State Board of Control consenting to the entry of an order of adoption in accordance with the prayer of the petition. On August 28, 1918, an order was made granting the prayer of said petition, and finding that the petitioners are fit and suitable persons to have the care of such child, and of sufficient ability to bring it up and furnish suitable nurture and education, having reference to the degree and condition of its parents, and that such adoption is proper. It was also ordered that the said petitioners, John C. and Wanda Venus, do stand in the place of parents of said child, and that she shall be deemed to all legal intents and purposes their child and her name be changed to Helen May Venus and that she shall become and be their heir at law, and that the guardianship of the State Board of Control of Wisconsin shall cease on the date of such order. It is a conceded fact that no notice of such adoption proceedings were in any manner served upon or given to the natural parents of said child, or either of them, and it appears that they did not know of the proceedings for some time.

On February 5, 1919, pursuant to an application made in January by the petitioner Mrs. Lacher, due notice whereof having been given to the State Board of Control and after hearing an order was made by the county court of Dane county finding and determining that Mr. Lacher was a fit and suitable person to have the care and custody of said six children, and he was appointed guardian of the said minors, and required to give a bond in the sum of $500 for such purpose and further directing that he and his wife were authorized to take and receive the said minors from the State School at Sparta, and requiring the said school and any person having custody of said minors or any of them to forthwith transfer and release said six children (including Myrtle) to Mr. Lacher. No appeal appears to have been taken by the State Board of Control or any one from such order so made.

In June, 1919, Mr. and Mrs. Lacher petitioned the county court for Monroe county, entitling such petition “In the Matter of the Adoption of Myrtle Lacher” for an order requiring the said Mr. and Mrs. Venus to show cause why the adoption proceedings of August 28, 1918, should not be set aside and vacated. Notice of such proceedings was served upon the superintendent of the State School at Sparta and upon Mr. and Mrs. Venus. Upon the hearing said order of adoption was declared void and of no effect and the custody and control of the said Myrtle directed to be given forthwith to its natural parents, and that her name be Myrtle Lacher as before. Mr. and Mrs. Venus appealed from such order to the circuit court for Monroe county. There judgment was entered March 24, 1921, reversing said order and remanding the record to the county court, with directions to confirm the prior order and judgment of adoption. From such order or judgment of the circuit court Mr. and Mrs. Lacher have appealed.

The substantial portions of the statutes as they stood at the time of the proceedings in 1917, and which we deem material for consideration in this matter are as follows:

Commitment Proceedings.

Under chapter 45g entitled “The State Public School”:

Section 573 defined the object of the State School to be to care for dependent or neglected children placed therein until such time as temporary homes can be procured for them in good families. Supervision thereof is vested in the State Board of Control. This is now found as section 48.19, Stats., with the words “or permanent” inserted between the words “temporary” and “homes,” by chapter 540, Laws of 1921.

Under the subheading “Juvenile Courts,” section 573--1 et seq., now section 48.01, Stats., defined dependent, neglected, and delinquent children, and provided for their care and disposition by the juvenile court.

By section 573--5, now section 48.06 (1), (2), (3), Stats., provision was made in case of dependent or neglected children for commitment by such court to the care, custody, and guardianship of some suitable state or county institution as provided for by law, and providing for the form of notice and persons, including parents, to whom notice of such proceedings should be given. By chapter 350 of the Laws of 1917 there was inserted that which was made subsection (2a) of section 573--5, now section 48.06 (4), Stats., providing that in case the summons or notice of hearing cannot be served upon and there shall be no appearance at the hearing of such proceeding by the parents, legal guardian or other person entitled to the custody of such child, no order shall be entered permanently depriving such person of the care and custody of such child, except upon hearing and publication of notice in the manner provided by section 4022, Stats., quoted infra; and providing further that such subsection shall not be construed as depriving the court of jurisdiction to make a temporary disposition of the case as hereinafter provided.

By section 573d, now section 48.22 (2), Stats., the said Board of Control was made the legal guardian of all children who shall become inmates of such school, and it was made its duty to use special diligence in providing suitable homes for them. It might make written contracts with responsible and suitable persons for the keep of such children during minority or until they attain the age of 18 years.

Section 573j, now section 48.22 (3), Stats., reads:

“The State Board of Control is hereby authorized to consent to the adoption of any child who is an inmate of the State Public School by any person or persons in the manner provided by law; and such consent given in writing shall have the same force and effect as if given by the parent or parents of such child. * * * On the consummation of such proceedings the guardianship of said board over the child adopted shall cease.” (This provision, in substance, has been continued since chapter 377, Laws of 1885, created the State Public School.)

These preceding statutes now appear in chapter 48, entitled “Child Protection and Reformation,” and including among other subheads, “Juvenile Courts” and “The State Public School.”

Adoption Proceedings.

Long prior to 1917, then, and now, adoption proceedings were under “Chapter 173” entitled “Adoption of Children,” no substantial change having been made therein.

Section 4021, Stats., provides as to the place of making, and the persons who might make petition for leave to adopt a child, and further provides that no such petition should be granted where the child, if 14 years or more of age, did not consent thereto in writing in the presence of the court.

Section 4022, Stats., reads:

“ No such adoption shall be made without the written consent of the living parents of such child unless the court shall find that one of the parents has abandoned the child or gone to parts unknown, when such consent may be given by the parent, if any, having the care of the child.”

It further provided for consent to be given by others where the parents are dead, unknown, or mentally incompetent, or have abandoned the child.

It further provided:

“That unless the living parent or parents of a minor consent to such adoption it shall be the duty of the court having jurisdiction of the proceedings, upon the filing of any petition for adoption, by order to appoint a time and place for hearing such petition and cause notice of such time and place to be given to such parent or parents, by personal service of said notice on...