In Re Perry , 83 Ind. App. 456 ( 1925 )

DISSENTING OPINION. I concur in so much of the opinion of the majority in this case as seems to hold that the custody of the little girl involved is with the guardian regardless of the proceedings for her adoption by appellant, but it appears by the record that both the appellant and the guardian have misapprehended their rights and the rights of the little girl in this regard, and such rights should be made plain to them.

As at the time of the appointment of the guardian, her father and mother had died and her adoptive father had no more interest in her welfare than to be willing thereafter to surrender his relation as such adoptive father for compensation, and as it appears by the record that the little girl had lived in the home of the guardian since his appointment as such, I assume that when he was appointed as such guardian such appointment was of both the person and the estate of his ward.

Section 3388 Burns 1926, § 3065 Burns 1914, in force since May 6, 1853, expressly provides that: "Every guardian so appointed shall have the custody and tuition of such minor and the management of such minor's estate during minority, unless sooner removed or discharged from such trust: provided, that the father of such minor (or if there be no father the mother, if suitable persons respectively) shall have the custody of the person and the control of the education of such minor." It is clear by this statute and under the circumstances of this case, there being no father or mother and only an adoptive father who has shown himself apparently without interest in the welfare of the child, the guardian ever after his appointment and at the time of the filing of the application for the adoption of the child was entitled to its custody as against any other person until, of course, it is made to appear that he is unfit to be entrusted with her custody. This has been the holding of the courts of this state from the earliest days of its jurisprudence.Bounell v. Berryhill (1851), 2 Ind. 613; John v. Emmert (1878), 62 Ind. 533; Grimes v.Butsch (1895), 142 Ind. 113, 41 N.E. 328; Palin v. Voliva (1902), 158 Ind. 380, 63 N.E. 760; and this is a right which the guardian can enforce by habeas corpus. Bounell v. Berryhill,supra.

Certainly it should be the law as against one who has surreptitiously come into court and by ex parte adoptive proceeding, and, in the absence of the guardian who was charged with the custody of the child, sought to deprive him thereof.

I assert that the welfare of the child should be the first consideration of the courts; Leonard v. Honisfager (1909),43 Ind. App. 607, 83 N.E. 91; and I contend that the court upon receiving information of the mistake that he had made, and of the fraud that had been perpetrated upon him, if we are to accept as facts the averments of the petition of the amicus curiae, and such information having come to him upon the last day of his term, or so near the close thereof that he could not hear the matter at that term, was justified in his discretion, in, not at once making a final order vacating the adoption but instead thereof, assigning the matter for hearing at the first day of the succeeding term notifying appellant accordingly, and that by so acting he did not lose jurisdiction to vacate the order of adoption. Suppose, as it seems to have been understood by appellant at the time, that the adoption proceedings gave her the absolute right to the custody of the child as against the guardian, will it be contended that the welfare of the child must yield to the technicalities of the law, and because of the fact that the guardian did not discover the step that had been taken until the custody of his ward was demanded of him by appellant, and so near the close of the term that he could not call the court's attention to its error in time for a hearing within that term, must such a situation thereafter preclude the court from correcting its error, and compel the guardian to surrender the custody of his ward? Truly, as Judge Kavanaugh says in his lecture before the St. Louis Bar Association, published in the April, 1925, number of the American Bar Association Journal: "The iron bands of reasonless precedents bind our higher courts and through them the trial tribunals." I commend the lecture to the careful thoughtful perusal of the bench and bar. While it was delivered specially with reference to criminal practice and procedure its reasoning applies with equal force to civil practice and procedure.

Nothing appears as to the character of the petitioner, let us hope that she is unblemished in this regard, and that she is prompted only by the highest regard for the little girl, but, so conceding, if she can by an ex parte adoption proceeding in which she asks also for the custody of the child accomplish her end as in this case, then any other stranger, though vile in character and wholly unfitted to be entrusted with the care of the child, can by deception accomplish the same end, and the court, not having discovered his error within the term is helpless, and the child is sacrificed to the technicalities of law.

I must be heard emphatically and affirmatively to oppose such a possible situation. Quoting again from the above mentioned lecture: "It is of first importance to realize * * * that statutes concerning practice and procedure generally prove as elastic as the courts will make them."

But if there is no rule of law that makes paramount the welfare of the child, then equity should come to the rescue, and I can think of no case that should appeal more to the chancery powers of the court. One of the well-established maxims of equity is that: "Equity will not suffer a wrong to be without a remedy," and it has been said that: "A court of equity need not search for precedents, nor worry about the technical rules of law."Merrihew v. Parrott (1915), 154 N.Y. Supp. 747, 168 App. Div. 704; and: "That justice may prevail, a court of equity will devise a remedy to meet every new emergency." Tarnow v.Carmichael (1908), 82 Neb. 1, 116 N.W. 1031.

However, it is my opinion that in this case we do not need to resort to equity, and that the law can be reasonably construed so as to protect the child, and that it should be so done. It has been many times decided by this court, the Supreme Court, and by the courts of other states that a motion to vacate a judgment made at the term at which the judgment was rendered keeps the proceedings in fieri so that the motion may be ruled on at a subsequent term of court. Wabash R. Co. v. City of Gary (1921), 191 Ind. 394, 132 N.E. 737; Vesey v. Day (1910),175 Ind. 406, 411, 94 N.E. 481; Sauer, Admx., v. Sauer (1921),77 Ind. App. 22, 133 N.E. 169; State, ex rel., v. McPike (1922), 243 S.W. (Mo. App.) 278; Stark Bros. v. Glaser (1907),19 Okla. 502, 91 P. 1040; Donaldson v. Copeland (1902), 101 Ill. App.? 252; Id. (1903), 201 Ill. 540, 66 N.E. 844.

It is true that no motion was filed in this case by any one a party to the proceeding, none could be filed by any one other than the petitioner herself, for the proceeding was wholly exparte. But one who, we may reasonably assume had a deep interest in the welfare of the little girl, her mother's brother, and her guardian, came to the court in the role of an amicus curiae with information which moved the court, and the court, on its own motion, with commendable discretion, waiting until it was further informed, set the matter for hearing at the earliest date to which a proper notice could be given, and caused the petitioner to be notified accordingly. As it seems to me, this was sufficient to keep the proceeding in fieri; certainly it should do so when it conduces to the welfare of a little girl. Our courts having held that the guardian of a child is not a proper party in proceedings such as here, we are certainly much in need of some legislation in this regard.