State Ex Rel. Lewis v. Lutheran Social Services of Wisconsin & Upper Michigan

Robert W. Hansen, J.

(dissenting). The United States Supreme Court has remanded this case to this court with a threefold mandate:

(1) “. . . for further consideration in the light of Stanley v. Illinois,” ¹

(2) “. . . with due consideration for the completion of the adoption proceedings,”

(3) . . with due consideration for . . . the fact that the child has apparently lived with the adoptive family for the intervening period of time.”

As to these three mandated areas for court review, the opinion of the majority of this court gives two of them no consideration at all. The majority opinion states: “. . . the completion of the adoption proceedings, and the welfare of the child are not pertinent to the issues decided by the majority.” Obviously, what is considered “not pertinent” by the majority of this court was considered relevant and pertinent by the United States Supreme Court. We are directed to give consideration to three aspects of this case, and so we do just that.

(1) Impact of Stanley decision.

In Stanley v. Illinois,² the nation’s highest court struck down an Illinois statute under which the children of unwed fathers became wards of the state upon the death of the mother.³ It rejected a state court holding that an unwed father could properly be separated from his children “. . . upon proof of the single fact that he and the dead mother had not been married. ...” ⁴ Insisting upon “individualized determination” rather than “procedure by presumption,” it concluded that putative fathers are entitled to a “. . . hearing on their fitness before their children are removed from their custody. . . .” ⁵ (Emphasis supplied.)

Is the petitioner here in the position of Peter Stanley, so that it can be said that a “. . . single fact that he and the . . . mother had not been married . ...” ⁶ was relied upon to warrant termination of his parental rights by court proceedings ? We think not.

In Stanley, the high court started its opinion by noting that “Joan Stanley lived with Peter Stanley intermittently for eighteen years, during which time they had three children. When Joan Stanley died, Peter Stanley lost not only her but also his children. ...” ⁷ In Stanley, the three children lived with their father and mother for eighteen years in what some states would recognize as an entirely legal common-law marriage.⁸ Their home was the only home the three children ever knew, and their father never denied the fact of his paternity and never refused to accept the responsibilities of his fatherhood.

That cannot be said of the petitioner here. When the mother (of the child that he now claims to be his) first informed him of the fact that she was pregnant, he did not admit that he was the father of the child. Instead, he stated that the mother could have been with other men and he would have no way of knowing it. He not only then, but subsequently, denied paternity, and accused the mother of having had illicit sexual relations with other men. Implicit in such denials of paternity was a refusal to assure financial support for the child as its father. At the hearing before the referee, the mother testified that the petitioner, when informed by her that she was bearing his child, stated: “He told me he was going to see the doctor to make sure I couldn’t use his name as the father on the birth certificate.” ⁹

Clearly, such denial of paternity would be a powerful motivating influence upon the mother to seek court termination of parental rights as a prelude to having the child “put out” for adoption. Nonetheless, under Stanley, the petitioner claims that he was entitled to notice as to the proceedings for termination of parental rights, at least after he changed his mind and decided that he was the father of the child.

A court proceeding for the termination of parental rights is a proceeding in equity.¹⁰ And the law of equity applies to attacks upon such proceedings, as well as to the conducting of them. As to antagonists as well as protagonists, one who seeks equity must do equity. It is the rule in equity that a litigant may be denied relief by a court of equity on the ground that his conduct has been inequitable ... as to the controversy in issue. . .” ‘¹¹ and affirmative relief is to be denied because of such conduct “. . . even though it thereby leaves undisturbed, and in ostensibly full legal effect, acts or proceedings which it would otherwise set aside.” ¹²

It has been said that the “no polluted hand shall touch” maxim ¹³ is “. . . most applicable when a party seeks to take advantage of an act or omission which he has himself induced . ...” ¹⁴ That exactly describes the situation here. When the defendant denied paternity, accused the mother of intercourse with others, and stated he would take steps to see that his name did not appear on the birth, certificate as the father, he placed himself in a position where he could not in equity attack the lack of notice to him that would otherwise have been required in the termination of parental rights proceedings in court. All requirements of estoppel being present,¹⁵ he was, by his conduct, equitably estopped from attacking the validity of the termination of parental rights judgment on the ground of lack of notice.

(2) Completion of adoption proceedings.

We are directed by the United States Supreme Court to act with “due consideration for the completion of the adoption proceedings.” This could be read as a high court mandate for a balancing of rights approach which would take into consideration the fact that the adoptive parents have provided love, care, affection and support to the child they took into their family circle. The completion of the proceedings gave to the adoptive parents a legal status and interests countervailing to those of the petitioner. In Stanley, after the death of the mother, there was no one, except the father, who had ever stood in the role of parent to the three children involved. The high court stated that “[t]he private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. . . .” ¹⁶ (Emphasis supplied.) Here the fact of adoption and time spent with the adoptive parents certainly constitutes a “powerful countervailing interest” which is to be given consideration.

However, we see the high court’s reference to “completion of the adoption proceedings” as referring primarily to the proceedings rather than to consequential rights of the adoptive parents. Subject to statutory rights of appeal, finality is a goal to be sought in all legal proceedings. It is particularly so in cases involving adoption of infants. The reason goes beyond encouraging those able and willing to do so to provide adoptive homes for waifs and foundlings. It goes beyond the trauma to child and adoptive parents of upsetting adoption proceedings after the time for statutory appeal has expired. It goes to the very real danger of predictable blackmail if belated challenges to adoptions are permitted. Some putative fathers, determining somehow the identity of adoptive parents, would show up to suggest the possibility of their challenging the validity of the adoption proceedings. One needs no crystal ball to anticipate that some such fathers would suggest that, for a fee, they might forego such belated challenge. Those who had learned to love and cherish the child they brought into their family circle would be easy prey for those who showed up to claim a fee for their earlier services.

Statutorily prescribed time limits for appeal are to be complied with in all cases. Particularly in cases involving termination of parental rights and adoption proceedings, such time limits on appeals ought to be rigidly adhered to. In the case before us, the petitioner failed to timely appeal the denial of his challenge to the court order terminating his parental rights. He did challenge . — by motion, to vacate — the validity of the termination of parental rights judgment. A hearing was held, and the petitioner’s challenge to the judgment was rejected by order of the county court that had earlier entered the judgment. Under the statute, the petitioner had forty days within which to appeal this adverse county court ruling on his challenge.¹⁷ Instead, he elected to abandon any such appeal. When the time expired for appeal, he lost his only right to successfully attack the termination of his rights by the county court judgment. The plain fact is that he asked for a court ruling on his challenge to the termination of rights judgment. He got it. He was then required to appeal such ruling, adverse to his claim, within the statutory time provided for such appeal. When he did not do so, he closed his only avenue of legal appeal.¹⁸ There are many legitimate purposes served by extraordinary writs, but restoring a right to appeal lost by failure to appeal within a statutorily prescribed time limit is not one of them.¹⁹ By failing to appeal within the required period of time, the petitioner not only closed the door — he locked it.

(3) Welfare of adopted child.

We are directed by the United States Supreme Court to give “due consideration for . . . the fact that the child has apparently lived with the adoptive family for the intervening period of time.” That intervening period of time is now four years. Clearly this portion of the high court remand makes relevant court inquiry into the present well-being and best interests of the child involved. If this were solely a matter of the propriety of earlier legal proceedings, whether the child had been with its adoptive parents for five weeks, five months or five years would make no conceivable difference.

The introduction of the need of court concern as to the welfare of the child involved should come as no jarring note in this state. This court has said, “the polestar remains the welfare of the child.” ²⁰ This court, of custody disputes in divorce cases, has observed, “. . . [C] hildren involved in a divorce are always disadvantaged parties and . . . the law must take affirmative steps to protect their welfare.” ²¹ (Emphasis supplied.) What the italicized reference meant was made clear when this court subsequently stated that children, in disputes as to their custody, “. . . are not to be buffeted around as mere chattels . . . but rather are to be treated as interested and affected parties whose welfare should be the prime concern of the court in its custody determinations.” ²² (Emphasis supplied.) What the nation’s highest court has made clear is that the child here involved is not to be treated as a pawn in a chess game. He is an interested and affected party whose welfare is to be given consideration by this court in this case.

In this case, following remand from the high court, our court appointed a referee to determine, among other issues, whether the best interests of the child would be served by its custody being awarded to the putative father. The referee, a county judge with years of experience and national stature in the fields of juvenile and family law, found that it would be in the best interests of the child to remain with its adoptive parents. On this record, it is difficult to see how the finding and recommendation could be otherwise. A theologian once suggested, “Give me the child until it is three. . . .” Here the child has spent not three, but four important formative years with its adoptive parents. Aside from the trauma involved in the uprooting, the child’s roots are anchored in this only home environment and family setting it has ever known. We see no basis for challenging, and every reason for concurring in, the referee’s finding of fact that this child’s best interests would best be served by its remaining with its adoptive parents.

Giving due consideration to the three areas of proper court concern, as mandated by the United States Supreme Court, we conclude:

(1) By denying paternity and refusing to assure support for the child, the petitioner equitably estopped himself from challenging the termination of parental rights judgment.

(2) By electing not to appeal within statutory time limits the county court order rejecting his challenge to the termination of parental rights judgment, the petitioner abandoned and lost his right to challenge such judgment.

(3) Giving consideration to the four years during which the child has lived with its adoptive parents, it is clear that the best interests and welfare of such child would be served by permitting it to remain with the only parents and in the only home that it has ever known.

For these reasons, the writer, joined by Mr. Justice Leo B. Hanley and Mr. Justice Connor T. Hansen, would deny the writ requested.

1 Stanley v. Illinois (1972), 405 U. S. 645, 92 Sup. Ct. 1208, 31 L. Ed. 2d 551.

2 . Id.

3 Id. at page 646.

4 Id. at pages 646, 647.

5 Id. at pages 656, 658.

6 Id. at pages 646, 647.

7 Id. at page 648.

8 52 Am. Jur. 2d, Marriage, p. 908, see. 58, Annot. (1925), 39 A. L. R. 538; Annot. (1929), 60 A. L. R. 541; Annot. (1935), 94 A. L. R. 1000; Annot. (1941), 133 A. L. R. 768.

9 Prom the transcript, page 89.

10 See: 43 C. J. S., Infants, p. 51, sec. 5; 42 Am. Jur. 2d, Infants, pp. 27-29, secs. 22 and 29.

11 27 Am. Jur. 2d, Equity, p. 667, secs. 136 et seq.

12 Id. at page 667.

13 Id. at page 670.

14 Id. at page 670.

15 Gabriel v. Gabriel (1973), 67 Wis. 2d 424, 429, 204 N. W. 2d 494, stating, “The tests for applicability of equitable estoppel as a defense derive from the definition by this court of such estoppel to be: . . action or nonaction on the part of the one against whom the estoppel is asserted which induces reliance thereon by another, either in the form of action or nonaction, to his detriment. . . .’ Three facts or factors must be present: (1) Action or nonaction which induces (2) reliance by another (3) to his detriment.” Quoting City of Milwaukee v. Milwaukee County (1965), 27 Wis. 2d 63, 66, 133 N. W. 2d 393.

16 Stanley v. Illinois, supra, at page 651.

17 Sec. 48.47, Stats., providing: “Any person aggrieved by an adjudication of the county court under this chapter and directly affected thereby has the right to appeal to the circuit court of the same county within 40 days of the entry of the order . . . .”

18 Bublitz v. Matulis (1967), 34 Wis. 2d 23, 148 N. W. 2d 64; United States v. Burczyk (1972), 54 Wis. 2d 67, 194 N. W. 2d 608.

19 State ex rel. Doxtater v. Murphy (1946), 248 Wis. 598, 602, 22 N. W. 2d 685.

20 Welker v. Welker (1964), 24 Wis. 2d 570, 578, 129 N. W. 2d 134.

21 Kritzik v. Kritzik (1963), 21 Wis. 2d 442, 448, 124 N. W. 2d 581.

22 Wendland v. Wendland (1965), 29 Wis. 2d 145, 157, 138 N. W. 2d 185.