September 9, 1958 —
November 7, 1958.
APPEAL from an order of the county court of Milwaukee county: RUDOLPH J. MUDROCH, Judge. Reversed.
For the appellant there were briefs by C. Stanley Perry, corporation counsel of Milwaukee county, and George E. Rice, assistant corporation counsel, and oral argument by Mr. Rice.
For the respondents there was a brief and oral argument by John W. Emmerling of Milwaukee.
On August 30, 1957, George and Angeline Peebles petitioned for adoption of Lois Ann Brown. They alleged that Lois' guardian was the Department of Public Welfare, Milwaukee county, that it had refused to consent to the adoption and that the refusal was arbitrary, capricious, and not based on substantial evidence. The department filed a summary of its reasons for withholding its consent. The reasons were stated in three paragraphs. In substance, the first states that Mr. and Mrs. Peebles were older than deemed advisable for adopting parents; the second states that there was a relationship and dispute between the natural mother and Mrs. Peebles over the placement of the child; and the third set forth various evaluations of personal attitudes and traits of Mr. and Mrs. Peebles. The proceeding at this stage was governed by sec. 48.85, Stats.
After extended hearings the court filed a decision on March 25, 1958. It found that the guardian's refusal to consent was arbitrary, capricious, and without substantial evidence and waived the requirement that the guardian consent. On July 1, 1958, the court entered an order of adoption as prayed for by petitioners. The department appealed.
On September 10, 1958, we heard arguments on a motion to dismiss this appeal, on the merits of the appeal, and on an alternative writ of prohibition. We denied the motion to dismiss and allowed time for the filing of briefs, first by appellant and later by respondents. Respondents' brief reached us October 29th.
The principal facts (most of which are not in dispute) are as follows: Lois was born August 21, 1955. Her mother, Mrs. Brown, was married but separated from her husband. Mrs. Brown had been going out with a nephew of Mrs. Peebles' first husband and had met the Peebles through the nephew, Kenneth. Lois was brought to the Peebles' home by Mrs. Brown and Kenneth on August 27, 1955, and remained there until the department recovered the child from the Peebles in a habeas corpus proceeding September 20, 1957.
In the summer of 1956, Mrs. Brown asked the Peebles to return the child, but the Peebles refused. Mrs. Brown started habeas corpus proceedings to recover the child, and a hearing was ultimately held in children's court on September 7, 1956. The Peebles claimed the child had been left with them for adoption; Mrs. Brown disputed the claim; and the children's court found that Mrs. Brown had abandoned Lois. At that time Judge KENNEY placed Lois temporarily in the custody of the department, but said that the department "may make arrangements, if they so see fit, to have the child temporarily with the Peebles." Judge KENNEY also stated:
"At this time I want to be perfectly fair to them and blunt, that there is no indication at this time from the court . . . I'm not stating that the child will be or will not ever be in a position so that you can adopt it. The longer it stays in your home, the more you are becoming attached to it. If, after due conference among yourselves, you come to the point . . . that you don't want to grow more attached to it, so inform the Department of Public Welfare and other temporary plan will be made until this matter can be adjudicated."
Mrs. Peebles and a worker for the department had a conversation about Lois' remaining with the Peebles for the time being. Afterward this worker made entries in the file listing, as "positives" in the home: Love and affection, the care given Lois, and that leaving the child would not involve an extra change, or perhaps any change to the child. As "negatives" she listed the Peebles' ages, particularly Mrs. Peebles' "who is older than her husband and close to fifty;" and Mrs. Peebles' nervousness.
In October a caseworker for the department, Miss Cathlina, who was later married and became Mrs. Pearson, was instructed to supervise Lois. She made two visits to the Peebles' home in November. The record suggests that about December, 1956, in the divorce action between Mr. and Mrs. Brown, it was determined that Lois was illegitimate. On December 5th Mrs. Brown's parental rights were terminated by the children's court and the department was appointed her guardian. Just after that hearing Mrs. Pearson, the Peebles, and their attorney spoke about the question of leaving Lois in the Peebles' home and Mrs. Pearson stated that she would have to obtain further direction from her supervisor. She and the supervisor decided to leave the child at least through Christmas and that the situation should be presented to the adoption committee of the department.
Within the department there is a division of child welfare and within this division are four units, each composed of several caseworkers. The supervisor of the division, together with the supervisors of each of the units, makes up the adoption committee. The caseworker assigned to a particular matter meets with the committee when that matter is discussed. Mrs. Pearson and her supervisor presented the situation of Lois Ann on January 22, 1957, and the adoption committee directed Mrs. Pearson to secure more information.
Mrs. Pearson visited in the Peebles' home February 13th, and March 21st. In June she was in the Peebles' home four times, and also interviewed Mr. Peebles in her office. She also reviewed a record of the State Department of Public Welfare concerning an application made by the Peebles for a child for adoption in 1952.
Mrs. Pearson made entries in the file summarizing her investigation. On August 1, 1957, she dictated a further summary in which she listed "positives" and "negatives." The positives were that the Peebles had given Lois excellent physical care; that Lois was the center of all the attention in the home; that the psychological report indicated she was developing at a normal rate of speed; that in their own way the Peebles appeared to be sincerely interested in the welfare of Lois; that there appears to be a harmonious marital relationship, although it appears that Mrs. Peebles is playing the mother role with her husband. The "negatives" were Mrs. Peebles' age of fifty, and Mr. Peebles' age of forty-two; the relationship which existed between the real mother and the Peebles, and the mother's knowledge of Lois' location in the Peebles' home; and several impressions of Mrs. Pearson concerning personal attitudes and traits of the Peebles. As a recommendation Mrs. Pearson and her unit supervisor stated that the negatives far outweighed the positives and that they felt that Lois would benefit from placement in another adoptive home. On August 6th the adoption committee discussed the matter and unanimously rejected the Peebles' application "on the basis of their age."
On August 13th Mrs. Pearson told Mrs. Peebles of the department's refusal to consent, telling her that the reason was their ages, and discussed with her the removal of the child from the Peebles' home.
The Peebles decided to petition for adoption and to seek. under sec. 48.85, Stats., a waiver of the requirement that the department consent. When the Peebles' attorney first informed the department of this intention, he spoke with the supervisor of the bureau of social services, the director of the department being then absent, and the bureau supervisor agreed that Lois would remain with the Peebles during the litigation. Later, after the matter had been brought to the attention of the director, the director decided otherwise and Lois was removed from the Peebles' home by habeas corpus proceedings in children's court on September 20, 1957. Since that date she has been in a foster home under the supervision of the department.
George Peebles was born May 17, 1915, and was forty years of age when Lois was born and forty-two at the time the petition for adoption was filed. He was married in 1943, but later obtained a divorce. Mrs. Peebles was born January 20, 1907, and was forty-eight years of age when Lois was born and fifty when the petition for adoption was filed. She was married in 1929. She has a son by the first marriage, born in 1930, and he is married and has a small child. Mrs. Peebles obtained a divorce from her first husband in 1944 and he died in 1946. Mr. and Mrs. Peebles were married in 1947 but there have been no children of that marriage. They own their home, subject to a small mortgage. Mr. Peebles is employed as a mechanic at the post-office garage. It appears to be agreed by all that their home is comfortable and that their care of Lois has been entirely adequate. Other facts will appear in the opinion.
The Peebles again urge that the department's appeal must be dismissed because it was not timely. Their argument is that the notice of appeal refers to an appeal both from the order of adoption dated July 1, 1958, and from the order of April 15, 1958. The order of April 15, 1958, was an order based upon the decision of March 25th which waived the requirement of consent. The Peebles point out that more than sixty days elapsed after April 15th and prior to service of notice of appeal.
If the appeal had been taken solely from the order of April 15th, we should have to dismiss it. The reason would not be that it was late, but that the order of April 15th was not appealable. The statute which limits the time for appeal from an order or judgment of the county court is sec. 324.04 (1), but it has been held that only an order of the county court which falls within one of the classifications set forth in sec. 274.33, Stats., is an appealable order. Will of Krause (1942), 240 Wis. 68, 2 N.W.2d 732. Sec. 274.33 (2) provides that a final order affecting a substantial right made in special proceedings is appealable. An adoption proceeding, for this purpose at least, falls within the category of a special proceeding and the order of adoption is made appealable by this sub. (2). We are of the opinion that no provision of sec. 274.33 makes an order of the county court, under sec. 48.85, waiving the requirement of the guardian's consent, an appealable order. The guardian's custody and its obligations with reference to the child continue until the order of adoption, even though the requirement of its consent be waived. We do not view an order waiving the requirement of a guardian's consent as a final order affecting a substantial right and are of the opinion that review of such waiver is properly had upon appeal from the order of adoption. This particular point was not raised in Adoption of Shields (1958), 4 Wis.2d 219, 89 N.W.2d 827, but it appears from the opinion that we there reviewed the waiver of the requirement of the guardian's consent upon an appeal from the order of adoption. Sec. 274.34 provides that upon an appeal from a judgment this court may review any intermediate order which involves the merits and necessarily affects the judgment. Respondents point out that this statute in form is limited to an appeal from a judgment, although substantially the same statute was relied upon in In re Baker (1888), 72 Wis. 395, 400, 39 N.W. 764, as authority for reviewing an intermediate order upon appeal from a final order in a proceeding upon an assignment for the benefit of creditors. Whether sec. 274.34 could apply to an order of adoption or not, we think that when there is a proper appeal from a final order in special proceedings at least those intermediate orders which were not in themselves appealable but which affected the merits of the final order must necessarily be reviewable.
Therefore we disregard the portion of the notice of appeal which suggests that an appeal was being taken from the order of April 15th and consider this as an appeal from the order of adoption in which we may review the waiver of consent under sec. 48.85, Stats. Without such waiver, of course, consent of the guardian would be a statutory requirement and the order of adoption could not stand.
Upon the merits of the appeal the question is whether the record made in the county court supports the conclusion that the department's refusal to consent was arbitrary, capricious, and without substantial evidence. Sec. 48.85, Stats.
"In the light of this legislative history, we construe sec. 48.85, Stats., as authorizing the county court to dispense with the guardian's consent to adoption only where the evidence taken at the required hearing discloses either (1) that the guardian's refusal to consent is not based on a bona fide belief that such refusal is for the best interests of the child, or (2) that the guardian has no reasonable basis in fact for believing that the proposed adoption would be contrary to the child s best interests. In either of those cases the refusal of consent would be arbitrary, capricious, or not based on substantial evidence. On the other hand, the court is not authorized to waive guardian's consent merely because it disagrees with the guardian's appraisal of the facts and substituting its judgment for that of the guardian, considers that the proposed adoption will best serve the interests of the child."
The decision to waive consent in the instant proceeding was made before our decision in Adoption of Shields. Our decision was called to the attention of the county court on a motion for reconsideration but the motion was denied without written opinion.
Applying the statutory provision, in the light of our construction of it in Adoption of Shields, to the record before us, we conclude that the county court erred in its decision and the order of adoption must be reversed because of the lack of the guardian's consent.
The three reasons given by the department and our comments thereon are as follows:
(1) The ages of petitioners. The facts are undisputed. The policy of the department on the age of applicants for adoption appears in mimeographed instructions:
"Wife under thirty-five, husband under forty, at time of first application. For older couples, consideration will be given for special children.
"The number of children available for adoption is small compared to the number of couples who want to adopt a child. The agencies feel very deeply their responsibility to protect the child's interest by selection of the home that seems best for him. Experience has shown that generally the placement of the child in the home of younger parents has been more satisfactory."
It appeared from the testimony that the "special" children referred to in the statement of policy are those for whom because of age, race, or handicap there would be few qualified applicants. There was testimony by a psychiatrist and psychologist giving reasons in support of the quoted policy. The reasons given were similar to those described in Adoption of Shields at page 226, although the age policy of the State Department of Public Welfare involved in that case was "generally that young children should not be placed with people who are more than forty years old." We gather from the testimony that age differentials, such as existed between Mrs. Peebles and Lois (forty-eight years) and Mr. Peebles and Lois (forty years), are facts which are entitled to great weight, although there can be circumstances where such differentials should not bar the adoption.
Indeed, the instant case was not like the great bulk of those handled by the department. In less than two per cent of the cases does the department become guardian of a child who has already been living in the home of the applicants. The department ordinarily places a child after it has been made responsible for the child and its most important decision about the qualifications of applicants for adoption is ordinarily made before the child is placed.
It is fair to say upon this record that in January, 1957, the department's adoption committee recognized the age problem, yet, because the Peebles had cared for the child for seventeen months, was interested in getting further information. The committee must have considered that after it had gathered further information, it might decide that the age differentials were not a bar. We do not view this action, however, as respondents seem to claim, as eliminating the age differentials from further consideration. They remained factors which were entitled to weight in the final decision.
(2) The dispute with the natural mother. If Lois were to remain with the Peebles, Mrs. Brown would know where she would be. As pointed out in Adoption of Shields, page 225, one of the purposes to be served in selecting an adoptive home is protection from interference from natural parents. Sec. 48.01 (2) (f), Stats. In addition to knowing where Lois was, Mrs. Brown disputed the claim that she had intended that Lois be adopted by the Peebles when she left her with them. Mrs. Brown attempted to regain custody by legal proceedings in 1956. Mrs. Pearson testified that Mrs. Peebles felt sure that Kenneth was the father of Lois (although Mrs. Brown testified in children's court to the contrary) and expressed hostility toward Kenneth and the problems he had presented for her and her family. Mr. Peebles testified that he didn't know for sure about the relationship between Kenneth and the child.
Since the department's refusal, Mrs. Brown has attempted to appear in this proceeding and to oppose the adoption. She has married the nephew, Kenneth.
In Adoption of Shields excessive age differentials plus the natural mother's knowledge of the child's location was considered sufficient to show that the refusal to consent was not arbitrary, capricious, or unfounded in fact. In the case now before us the danger of interference by the natural mother is, if anything, more imminent than in Adoption of Shields. In addition, if the Peebles were to adopt Lois, it appears that they would entertain at least a suspicion that she is Kenneth's child.
(3) Mrs. Pearson's evaluations. We do not consider it necessary to determine whether the personal evaluations, if they were the only elements unfavorable to the Peebles, would support refusal to consent. The county court made no finding of bad faith on the part of Mrs. Pearson or any member of the adoption committee and there is no evidence to support a finding of that sort. In part, Mrs. Pearson's evaluations were interpretations of what she observed in interviews with Mr. and Mrs. Peebles. As to the remainder they were conclusions she reached from facts which are not in material dispute. From the expert testimony we gather that a psychiatrist or psychologist would probably not have felt qualified to reach all the conclusions she did on the basis of the observations she made and the facts upon which she relied. Perhaps these evaluations could be given no weight except that they raised questions whether the Peebles had certain traits and attitudes but, in any event, the department's action was amply supported by the first two reasons mentioned and both of them were grounded upon undisputed facts.
The department's duty was to act in the best interests of Lois. The Peebles could provide a good home with good physical care and Lois was already accustomed to them. Viewed in terms of the present and near future those factors were highly favorable and, of course, entitled to weight, but the child's future welfare must also be considered. When she is ten, Mrs. Peebles will be fifty-eight. When she is sixteen, Mrs. Peebles will be sixty-four. These and other considerations based on the age differentials raise problems, principally in terms of the future. There is also the danger of interference by the natural mother. Exactly what may happen or when is unpredictable, but the possibility presents a problem in terms of the future. Mrs. Pearson's evaluations at least raised questions. The department's problem was to consider the matter and make a decision in the best interests of Lois as it saw them. The county court evidently considered that Lois' best interests would be served by adoption by the Peebles. That question w as not before him, for the law places the responsibility initially upon the guardian. The court cannot, as we said in Adoption of Shields, substitute its judgment for that of the guardian merely because it disagrees with the guardian's appraisal of the facts.
Respondents point to various acts of the department and its counsel during the course of this litigation as proof that the employees had no belief in good faith that the refusal was for Lois' best interests. We cannot agree with their interpretation. Two of the matters, however, call for comment.
Respondents were understandably disappointed at the decision to remove Lois from their home after they had been promised by a representative of the department that Lois would be left with them during the course of this litigation. We can sympathize with this disappointment, but arbitrariness at that point, even if it was such, does not prove arbitrariness on the part of the caseworker and the adoption committee in reaching the decision to refuse consent.
One can readily view this matter from the point of view of the Peebles. They have supported and cared for a child with hope that they might eventually be able to adopt. They have fought out this litigation, undoubtedly at great expense. On the face of it, the conflict is between their very natural hopes and the decision of professional employees of a governmental agency, but it must be remembered that the prime consideration must always be the best interests of the child and that there is good reason to believe that there are other adoptive homes available which do not present the problems and difficulties for the future which are, unfortunately, present in the Peebles' home.
Another instance where respondents' counsel claims that the record shows bad faith on the part of the department consists of language quoted from the department's brief critical of counsel for the respondents and of the trial judge. This language seems to us to have no relevancy to the good faith of the adoption committee at the time it decided to refuse consent, but it does cause us concern. In reading the record we have been disturbed by numerous instances in which Mr. Rice, as counsel for the department, has used ill-advised and intemperate language addressed to or concerning opposing counsel and the trial court. We take this occasion to warn him to exercise restraint in the future and to inform him that his clients' success on this appeal is due to the facts presented and not in any measure to the fancied eloquence referred to.
Counsel for the department has urged that it was error for the county court to compel the department to produce the files containing its information concerning Lois and the Peebles application. He points out that sec. 48.78, Stats., provides that information received by various agencies, including the department, regarding individuals in their care or legal custody, shall not be open to inspection or their contents disclosed except by order of the court. He correctly asserts that under sec. 48.02 (2) the word "court" in this portion of ch. 48, Stats., means the juvenile court. Sec. 48.85, under which this proceeding was carried on, is in the portion of ch. 48, Stats., relating to adoptions, under the jurisdiction of the county court. The present ch. 48, Stats., was enacted in 1955 as the Children's Code, and the two sections should be construed in the light of the common purpose. Some of the agencies referred to in sec. 48.78 may be guardians of minors. The guardian's refusal to consent is made subject to review by the county court by sec. 48.85. We conclude that in a proceeding under sec. 48.85 an order of the county court requiring disclosure and inspection of the records and information upon which an agency has based its refusal to consent is sufficient protection so that the agency cannot be considered to have violated sec. 48.78 in making disclosure for that purpose.
The alternative writ of prohibition issued in connection with the situation involved in this appeal has performed the function of a stay of proceedings while the appeal has been pending. Upon remittitur, there will be no further need for a stay, and the application for the writ of prohibition will then be dismissed and the alternative writ quashed.
By the Court. — The order of adoption is reversed, and the cause is remanded with directions to set aside the order waiving consent of the guardian and to deny the petition for adoption. No costs are allowed to either party.
MARTIN, C.J., and BROWN, J., took no part.