State ex rel. Lewis v. Lutheran Social Services of Wisconsin and Upper Michigan, S

• Citation: 47 Wis.2d 420,178 N.W.2d 56
• Decision Date: 01 July 1970
• Docket Number: No. S,S
• Parties: STATE ex rel. John Thomas LEWIS et al., Petitioners, v. LUTHERAN SOCIAL SERVICES OF WISCONSIN AND UPPER MICHIGAN, Respondent. tate 12.
• Court: United States State Supreme Court of Wisconsin

Page 56

178 N.W.2d 56

47 Wis.2d 420

STATE ex rel. John Thomas LEWIS et al., Petitioners, v. LUTHERAN SOCIAL SERVICES OF WISCONSIN AND UPPER MICHIGAN, Respondent.

No. State 12.

Supreme Court of Wisconsin.

July 1, 1970.

Jerry D. Rothstein petitioned this court for a writ of habeas corpus, entered March 10, 1970, to determine who has the right to legal custody of John Thomas Lewis, a minor.

On March 10, 1970, this court issued an order to the Lutheran Social Services of Wisconsin and Upper Michigan (hereinafter the respondent) to show cause why a writ of habeas corpus should not be issued determining the custody of the minor. On March 17, 1970, a hearing was held by this court; and on April 1, 1970, this court ordered the parties to submit briefs on the following questions:

(1) Whether the father of a child born out of wedlock has any parental rights; and, if so,

(2) Whether such rights under present statutory law can be terminated upon the consent of the child's mother.

Although this case has not been submitted on stipulated facts, the following alleged facts are set forth in order to provide a background for the legal questions now before this court:

John Thomas Lewis was born to Karen Anne Lewis on July 31, 1968, at La Crosse, Wisconsin. Parental rights of Karen Anne Lewis, the mother, were terminated by the county court of La Crosse county, Wisconsin, on August 7, 1968. Shortly thereafter, on August 14, 1968, the child was placed in the home of the prospective adoptive parents where he has resided and continues to reside to this date. Petitioner claims to be the natural father of John Thomas Lewis.

The petitioner had not been given notice of the hearing before the La Crosse county court and, therefore, had consented neither to the termination of his parental rights nor the appointment of the respondent as the child's guardian. On December 5, 1968, the petitioner petitioned the La Crosse county court, the HON. EUGENE A. TOEPEL, presiding, for an order vacating the court's previous order of August 7, 1968, and granting him a hearing concerning his right to the care, custody and control of the child. As part of such petition he swore to his paternity of the child.

On December 11, 1968, the court held a hearing on this petition but refused to receive any evidence concerning petitioner's fitness to have custody of the child. On August 29, 1969, after a delay of eight months, the court rendered its decision, denying the petition. The court ruled that illegitimate fathers have no right to the custody of their illegitimate children. On November 11, 1969, the court entered a judgment denying the petition. No appeal from the order or judgment was taken.

William G. Rice, Madison, for Jerry D. Rothstein.

Bruce C. O'Neill, Milwaukee, gdn. ad litem for John Thomas Lewis.

Hamilton & Mueller, Dodgeville, Ralph von Briesen, Milwaukee, for respondent.

Robert W. Warren, Atty. Gen., Donald P. Johns, Asst. Atty. Gen., amicus curiae, State of Wis.

Charne, Glassner, Tehan, Clancy & Taitelman, Milwaukee, amicus curiae on behalf of Children's Service Society of Wisconsin.

HANLEY, Justice.

The answer to the first question presented has its roots in English common law which, in its earliest form, held that illegitimate children were nullius filius--the children of no one. They thus came within the doctrine of filius populi, which provided that their custody was in the hands of the parish.

All jurisdictions now recognize that the mother, if a suitable person, is the natural guardian of her illegitimate child and, therefore, has a legal right to its custody, care and control superior to that of the father or any other person, unless it is otherwise provided by statute. ¹ The need for maternal care is stressed as one of the primary reasons for this general rule.

It has always been recognized that the parents of legitimate, as well as illegitimate, children have no vested rights in their children requiring protection accorded to prove rights. ²

'It is generally recognized that although parents have the natural right to the control and custody of their children, such rights are not absolute, but are subject to the power of the state as parens patriae, and may be restricted and regulated by its appropriate action.' ³

The rights of a putative father in this jurisdiction have not been clearly delineated by statute or by case law. Several significant cases pertaining to this question, however, have come before this court.

The first such case was Adoption of Morrison. ⁴ There the mother and father of an illegitimate child were minors seventeen years of age. At the time the child was born neither had reached majority. Shortly, after the child's birth the mother signed a written consent to an adoption; and arrangements were made for such adoption. Less than one year following the signing of such consent, the young couple turned eighteen and were married. The natural mother then attempted to withdraw her consent and have the adoption proceedings terminated.

One of the questions thus presented to this court was whether the consent of an illegitimate father was necessary where the father had married the child's mother after the adoption proceedings had begun, but prior to the judgment of adoption. By sec. 322.04(1), Stats.1947, the legislature had provided that consent of an illegitimate father was not necessary to the adoption of the illegitimate child. Since the child had been with the prospective parents for over three years between the date on which the trial court had taken jurisdiction of the adoption proceedings and the date on which judgment was entered, this court determined that, in the best interest of the child, the statute should be construed so as to eliminate his consent, even though he was the legitimate father prior to the entry of the judgment.

In the second appeal involving the same litigation, Adoption of Morrison, ⁵ this court again held that the consent of the father of an illegitimate child was not required and further observed that adoption proceedings are purely statutory with the requirements being determined solely by the legislature.

Another significant case concerning illegitimate children to come before this court was In re Aronson ⁶ wherein a social worker petitioned the county court to have custody of an eight year old minor transferred to a state agency and the rights of his parents terminated. At the time of the proceedings the child was living with Donald Finley (his natural father) and the mother of Donald Finley. The child's natural mother was married to someone other than Donald Finley. This court, after determining that Donald Finley was in fact the child's natural father, was required to determine whether the father of an illegitimate child has a statutory right to appeal from an order of the juvenile court. Before deciding that such illegitimate father could appeal, the court recognized the common law rule that:

'* * * a putative father of an illegitimate child has, in general, the right to custody of such child against all but the mother. * * *' ⁷

The court then concluded that due to:

'* * * the common-law right of a putative father to custody, we believe that the demands of justice would best be served by our holding that a putative father, who voluntarily appears in the juvenile court proceedings, is a proper party thereto possessing a right of appeal, even though the proceedings are not jurisdictionally defective if he has not been notified thereof either by personal service or publication.' ⁸

The court also stated:

'We concur in the opinion of the attorney general that no summons or notice is required to be given to a putative father not having custody of the child under either sec. 48.06(2) or sec. 48.07(7) (am), Stats., because to require such notice might in some instances be inimical to the best interests of the child, and the child's rights are paramount. * * *' ⁹

However, when the first Aronson Case returned to this court in In re Aronson, ¹⁰ this court again exhibited its reluctance to recognize any rights of putative fathers when it denied the need to give notice of any proceedings in which their common law right could be lost.

Later, on the second appeal, this court went on to limit its holding in the first Aronson Case by stating at pages 467 and 468, 69 N.W.2d at page 474:

'In our former opinion (263 Wis. 604, 616, 58 N.W.2d 553) we held that the best interests of the child are paramount in a situation where the same conflict with the rights of a putative father, and because of this no notice is required to be served upon the putative father of the institution of the statutory proceedings to have an infant adjudged a 'neglected child' and for termination of parental rights. We further held, however, that where the putative father appeared in the proceedings and acknowledged that he was the father of the child, the best interests of the child did not require that the putative father be denied the right to appeal to circuit court from the determination made by the juvenile court. However, we regret that we did not go one step further in our former opinion and state therein that if in either juvenile court, or in the appeal proceedings in circuit court, it should be found that the infant was a neglected child and that parental rights should be terminated, it would not be necessary to recognize the claimed rights of the putative father as 'parental rights' within the meaning of sec. 48.07(7), Stats., so as to require the termination thereof in the order or judgment. We do now hold the foregoing to be the proper construction to be placed upon such statute.'

Thus, the court refused to recognize the claimed rights of the putative father as 'parental rights' so as to require the termination thereof in the trial court's order or judgment.

In the instant case, the La Crosse county court terminated the parental rights of the child's mother pursuant to sec....