People ex rel. Riesner v. New York Nursery & Child's Hospital

• Decision Date: 07 December 1920
• Citation: 230 N.Y. 119,129 N.E. 341
• Parties: PEOPLE ex rel. RIESNER v. NEW YORK NURSERY AND CHILD'S HOSPITAL.
• Court: New York Court of Appeals Court of Appeals

230 N.Y. 119

129 N.E. 341

PEOPLE ex rel. RIESNER

v.NEW YORK NURSERY AND CHILD'S HOSPITAL.

Court of Appeals of New York.

Dec. 7, 1920.

Habeas corpus proceedings by the People of the State of New York, on relation of Gustave Riesner, against the New York Nursery and Child's Hospital. An order of the Special Term sustaining the writ of habeas corpus was affirmed by the Appellate Division (190 App. Div. 562,180 N. Y. Supp. 372), and defendant appeals by permission.

Affirmed.

See, also, 180 N. Y. Supp. 949.

Appeal from Supreme Court, Appellate Division, Second department.

Jackson A. Dykman, of Brooklyn, for appellant.

Charles L. Meckenberg, of Brooklyn, for respondent.

CARDOZO, J.

Complaint was made to the Children's Court of the City of New York that two infants, Irving and Lillian Riesner, of the age of three years and one year, respectively, were ‘without proper guardianship,’ and that both were likely to suffer in ‘life, health and morals.’ Penal Law, § 486 (Consol. Laws, c. 40). The children were arrested, and on April 25, 1919, were brought before the court. The justice there presiding entered in his minutes an adjudication that they were without proper guardianship, disposition,' first to May 2, 1919, then to disposition,' first to May 2, 1919, then to May 9, and then to May 16. Custody of the children was awarded in the meantime to the New York Nursery and Child's Hospital, but there is no recital in the commitment of notice to either parent, or to any guardian or custodian. Before the last of the adjourned dates, the father, to obtain the custody of his children, sued out a writ of habeas corpus directed to the nursery. He alleged in his petition that the Children's Court was without jurisdiction, and that the commitment was void. The nursery by its return set up the proceedings in that court and the warrant of commitment under which the children were detained. The father, traversing the return, alleged that he was able and ready to support the children, that he had made arrangements to place them in the custody of their grandmother, and that their discharge from a public institution would promote their health and welfare. On the hearing at Special Term, evidence in support of these allegations was received without objection. The Special Term held that the welfare of the children would be promoted by their discharge, and placed them, with the father's consent, in the custody of the grandmother. The Appellate Division held that the only question before the Special Term was the jurisdiction of the inferior court, but affirmed the order on the ground that the commitment was void upon its face.

We are unable to concur in the conclusion that there was defect of jurisdiction. The defect asscrted is the failure of the commitment to disclose notice to either parent.

‘Whenever any child shall be committed to an institution under this chapter, and the warrant or commitment shall so state, and it shall appear therefrom that either parent, or any guardian or custodian of such child, was present at the examination before such court or magistrate, or had such notice thereof as was by such court or magistrate deemed and adjudged sufficient, no further or other notice required by any local or special statute, in regard to the committal of children to such institution, shall be necessary, and such commitment shall in all respects be sufficient to authorize such institutions to receive and retain such child in its custody as therein directed.’ Penal Law, § 486.

[1] This statute does not nullify the process under which these children were detained. It assumes that diligent effort to give notice will be made. It does not mean that in the interval an infant shall be cast adrift. Helpless or abandoned children or those exposed to stated perils are to be arrested and arraigned in court. Penal Law, §§ 485, 486. From the time of their arrest they are in the custody of the law. The power to adjudicate the disposition to be made of them involves by implication the power to commit them to some guardianship appropriate to their age and needs while adjudication is suspended. Cf. Inferior Criminal Courts Act (Laws 1915, c. 531), § 34-R; Greater N. Y. Charter (Laws 1901, c. 466), § 665; Code Crim. Proc. § 888; Code Civ. Proc. § 2037. Until notice to a parent or custodian, the judgment, with any commitment based upon it, is not final, but provisional. People ex rel. Van Riper v. N. Y. Catholic Protectory, 106 N. Y. 604, 613,13 N. E. 435. It remains subject until then to the parents' right to appear in any court of competent jurisdiction and demand the custody for themselves. Farnham v. Pierce, 141 Mass. 203, 205, 206, 6 N. E. 830,55 Am. Rep. 452;Milwaukee Industrial School v. Supervisors, 40 Wis. 328, 22 Am. Rep. 702;House of Refuge v. Ryan, 37 Ohio St. 197; Petition of Ferrier, 103 Ill. 367, 43 Am. Rep. to revision upon proof of changed conditions. Atl. 964, 15 L. R. A. 593.

[2] Even after notice, the award is subject to revision upon proof of changed conditions. Matter of Knowack, 158 N. Y. 482, 53 N. E. 676,44 L. R. A. 699. Nothing to the contrary was held in People ex rel. Kuhn v. P. E. House of Mercy, 133 N. Y. 207, 30 N. E. 853, and People ex rel. Danziger v. P. E. House of Mercy, 128 N. Y. 180, 28 N. E. 473; for no question was there involved of a disposition of infants, themselves innocent of wrongdoing, without notice to a parent entitled to a hearing. To say, however, that process is provisional is not to say that it is void. It protects the institution that acts under it until some one in appropriate proceedings makes out a better right.

[3] There is no denial of due process in the award of a custody thus temporary and conditional. Farnham v. Pierce; Milwaukee Ind. School v. Supervisors; House of Refuge v. Ryan, supra. The state, in confiding helpless or abandoned children to the care of public institutions, is not punishing the parents, much less the children themselves. It is acting as parens patriae to promote the welfare of its wards. Farnham v. Pierce, supra. The parents, when found, may be heard in the original proceeding. If a hearing, or the opportunity for one, has not been given to them there, they may still be heard in the Supreme Court upon a writ of habeas corpus, and may then contest the necessity for the disturbance of their custody. In the meantime the warrant of commitment remains a lawful exercise of jurisdiction. Its restraint is not illegal because subject, on a proper showing, to be modified or ended. Farnham v. Pierce, supra.

The commitment now in question was not made in departure from these rules. It shows upon its face that it was intended to be provisional and temporary. Dated May 9, 1919, it recites that...