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

• Decision Date: 05 June 1973
• Docket Number: No. S,S
• Citation: 59 Wis.2d 1,207 N.W.2d 826
• Parties: STATE ex rel. John Thomas LEWIS et al., Petitioners, v. LUTHERAN SOCIAL SERVICES OF WISCONSIN AND UPPER MICHIGAN, Respondent. tate 12.
• Court: Wisconsin Supreme Court

Page 826

207 N.W.2d 826

59 Wis.2d 1

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.

June 5, 1973.

Petition for Rehearing Denied Aug 28, 1973.

William G. Rice, Madison, Robert C. Burrell, Milwaukee, for petitioners.

Frank D. Hamilton, Dodgeville, Ralph von Briesen, Bruce C. O'Neill, guardian ad litem, Milwaukee, for respondent.

HALLOWS, Chief Justice.

Perhaps the most important determination to be made is the effect of Stanley v. Illinois upon this case. In Stanley, the supreme court struck down an Illinois law which made children of unwed fathers wards of the state. Mr. Stanley had lived with a woman not his wife intermittently for some eighteen years, during which time they had three children. ² Upon the woman's death, these children were placed with guardians. Mr. Stanley fought this placement, claiming a denial of equal protection. In Stanley, the supreme court decided two things: (1) That the denial of a natural father's parental rights to a child born out of wedlock based on mere illegitimacy violated his constitutional right to equal protection of the laws, and (2) that the termination of a natural father's parental rights to a child born out of wedlock without actual notice to him, if he was known, or constructive notice, if unknown, and without giving him the right to be heard on the termination of his rights denied him due process of law.

It is urged that Stanley v. Illinois should not be applied to this case, that its ruling should have only prospective effect; we disagree. The very mandate of the United States Supreme Court, which vacated our judgment holding that the petitioner Jerry D. Rothstein had no parental rights, tells us to reconsider the problem of custody in light of Stanley. Certainly we cannot validate an adoption when the very holding of Stanley was that the denial of the existence of parental rights in unwed fathers is unconstitutional. If custody is to be left with the 'adoptive parents,' it must rest on grounds other than the adoption decree. There can be no valid adoption without a valid termination of parental rights. Armstrong v. Manzo (1965), 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62. See also Selman v. Phillips (1966), 384 U.S. 210, 86 S.Ct. 1468, 16 L.Ed.2d 482.

A distinction must be made between the termination of parental rights and the granting of custody without the termination of parental rights. While it is possible to grant custody in divorce cases without terminating parental rights and perhaps in other cases, it is not possible to give custody based upon adoption without a termination of parental rights. Whether the present persons having custody of John Thomas Lewis would accept custody without adoption is a question not before us; their position is adoption, not custody. We point out it has been held that where an adoption proceeding is void, the 'adoptive parents' could be allowed to retain custody where it would be in the best interests of the child. Fielding v. Highsmith (1943), 152 Fla. 837, 13 So.2d 208; Ex parte Vancuren (1929), 135 Okla. 91, 274 P. 469; Mathews v. Grant (1958, Okla.), 326 P.2d 1043. However, other courts have awarded custody to the natural parent upon a successful challenge to the validity of an adoption decree. Thus in McClary v. Follett (1961), 226 Md. 436, 174 A.2d 66, where the adoption decree was set aside because the natural father had received no notice due to the mother's false representation of herself as unwed, the child was taken from its 'adoptive parents' and awarded to the father. See also Hatgimisios v. Smith (1972), 229 Ga. 475, 192 S.E.2d 270; Pole v. Bowen (1972, Fla.App.), 269 So.2d 707.

An adoption proceeding is the legal method of creating a new relationship of parent and child; it does not merely determine custody. Sec. 48.92, Stats. In our opinion of October 31, 1972, we stated the parental rights of the petitioner had not been terminaed. In some states, adoption proceedings terminate parental rights. Wisconsin takes two independent steps: (1) Termination of parental rights, with temporary custody generally given to a social agency, as here; and (2) adoption. What the mandate of the United States Supreme Court can only mean in view of Wisconsin law is that this court must determine whether the petitioner is entitled to custody which would have been his as a natural father unless his parental rights had been terminated. We point out that there was an injunction against the adoption of John Thomas Lewis while the matter was under consideration of this court, and the child was secretly adopted without notice to this court, the guardian ad litem, or the petitioner during the period in which a rehearing motion might have been made to this court. Consequently, when this matter reached the United States Supreme Court on appeal the child had been adopted with full knowledge of the pending litigation and the alleged legal infirmities involved. Under these circumstances, we cannot hold that the adoption was valid or that Stanley is only of academic concern and not applicable.

We do not hold that Stanley or the reversal of our decision in Rothstein is to be applied retroactively and undercut the basis of other prior adoption proceedings. In this case, the petitioner made his claim known prior to the birth of the child, was kept from knowledge of its birth and its whereabouts, made an application to the court to assert his rights as soon as he learned of the termination-of-parental-rights proceeding, and was denied a hearing. There are few cases pending with facts raising such an issue. Stanley applied retroactively only to these facts and to any pending cases where the natural father has been denied rights which he asserted as the petitioner did in this case.

The treatment of Stanley as retroactively applicable to this case is in accordance with what at least one other state has done with this same problem. In People ex rel. Slawek v. Covenant Children's Home (1972), 52 Ill.2d 20, 284 N.E.2d 291, a child born out of wedlock was placed for adoption upon consent of the mother alone and without notice to the putative father. The father challenged the Illinois statutes which precluded fathers of illegitimate children from asserting any rights in adoption proceedings. The Illinois court applied the rule of Stanley that putative fathers have a constitutional right to a hearing on their fitness for custody to this pre-Stanley adoption and declared the Illinois adoption and paternity acts unconstitutional 'insofar as they are in conflict with Stanley, Rothstein, and Vanderlaan v. Vanderlaan, 126 Ill.App.2d 410, 262 N.E.2d 717, vacated 405 U.S. 1051, 92 S.Ct. 1488, 31 L.Ed.2d 787.'

In Vanderlaan, the Illinois supreme court held that a divorced father had no right to custody of his children born subsequent to the divorce. On the same day that it decided Rothstein, the United States Supreme Court vacated the Illinois judgment, but the reports do not show what the Illinois court has done with this case on remand. Other cases citing Stanley do not address themselves authoritatively to the question of retroactivity. See Gomez v. Perez (1973), 40. U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56. ³

Our present statutes on termination of parental rights are unconstitutional only insofar as they are in conflict with Stanley, Rothstein, and Vanderlaan. The saving of so much of the statutes as possible is desirable and compatible with the method recognized in Huebner v. State (1967), 33 Wis.2d 505, 147 N.W.2d 646. To comply with constitutional dictates and until the legislature provides a more adequate procedure, ⁴ notice for the termination of the natural parental rights of unwed fathers shall be the same as that required to be given to married parents or unwed mothers under sec. 48.42, Stats., upon petition of the state. Petitions made by either unwed parent will now require either personal or constructive notice, as provided in sec. 48.42, Stats., to terminate the rights of either or both of the unwed parents. With respect to adoption by consent without formal termination of parental rights, neither sec. 48.84(1)(b), Stats., ⁵ nor sec. 48.84(3), Stats., ⁶ can be given legal effect. Consent of both the unwed mother and the unwed father, or consent of one parent with proper termination of the parental rights of the other, is necessary.

It is urged by the petitioner, relying on Ponsford v. Crute (1972), 56 Wis.2d 407, 202 N.W.2d 5, that he is entitled to custody as a matter of law over all other persons because he has been found to be the father and to be fit. A great portion of the briefs submitted in this case deal with the apparent conflict in decisions of this court involving the natural rights of parents in contrast to the so-called 'best-interests-of-the-child' test. Of course, in custody cases, as distinguished from parental termination cases, the 'best interests of the child' constitutes an important factor, but in Ponsford we stated it is not the controlling factor.

The phrase, 'best interests of the child,' means all things to all people: it means one thing to a juvenile judge, another thing to adoptive parents, something else to natural parents, and still something different to disinterested observers. If judges were endowed with omniscience, the problem would not be difficult; but the tendency in man is to apply intuition in deciding that a child would be 'better' with one set of parents than with another, and then to express this intuitive feeling in terms of the legal standard of being 'in the best interests of the child.' Courts have not laid down any definite guidelines which can be followed in every case to insure protection of what the average person means by 'best interests.' The term, 'powerful counterveiling interests,' as used in Stanley, may mean nothing other than the 'best interests of...