Fritts v. Krugh

Smith, J.

{dissenting). We would do well to take a hard second look at what is proposed here.

It is proposed that we hold to be “void” the order made by the probate court respecting these unfortunate children who, in their short lives, have known so much of what some of us would describe as neglect. It is proposed, let us stress, not that we find the determination of the probate judge to be merely erroneous, but to be utterly void. We are to hold that it is a complete nullity. A “void” judgment, as we all know, grounds no rights, forms no defense to actions taken thereunder, and is vulnerable to any manner of collateral attack (thus here, by habeas corpus). No statute of limitations or repose runs on its holdings, the matters thought to be settled thereby are not res judicata, and years *124 later, when the memories may have grown, dim and rights long been regarded as vested, any disgruntled litigant may reopen the old wound and once more probe its depths. And it is then as though trial and adjudication had never been. It is no answer to say that such things cannot happen in a modern society, particularly where the security of children’s lives is involved. This case speaks for itself. Sally Fritts, one of the children before us, was 2-1/2 years of age when her mother petitioned to put her children “in an adoptive home where they will be well cared for.” The situation at that time may be gleaned, in part, from the report of the investigation for adoption, made by the assistant county agent. It states, in part, as follows:

“The father was a drinker and left his family more than once. The mother tried several times to give her children away. At last she just left them crying in the office of the juvenile division of the probate court. She said that she would not keep them if she had money.”

At this writing Sally is almost 9 years of age. Most of her life has been spent in the home she now knows and but few years of childhood remain. The plight of the mother at the time of giving up her children was tragic beyond words. But is it within our power to salve those wounds after these many years? Are we now to re-create her tragedy in the lives of the children? And what of the situation of those who have cared for these children through the long years of infancy?

This, then, is our problem. Mr. Justice Edwards holds that the order of the probate court taking permanent jurisdiction of these children was entered without “jurisdiction” and therefore “void.” It would be well to keep constantly before us that this is the one situation above possibly all others *125 in the law in which the orders of a court should be vested with every security and finality at our command, namely, that involving the care and custody of children. Yet it is to this very situation that it is proposed to apply the most devastating weapon in the entire legal armory, the doctrine of lack of jurisdiction, of complete invalidity, of nullity. We cannot agree. Not only are we satisfied as to the evidentiary showing made in this particular case, but we are keenly aware of the force of precedent and have no wish to jeopardize the security of past and present custodial orders by the holding that a subsequent disagreement, on our part, with the probate court, on the sufficiency of the proofs of neglect (or like question) means that the probate court had no jurisdiction, and that its order was void, and is subject to collateral attack at any time. This is not to say that errors made by the courts of original jurisdiction may not be corrected. There is an orderly process of appeal provided for these matters and it should be timely utilized. We are not confronted, then, with the situation in which the only practicable avenue of redress was the great historic writ of habeas corpus. What is sought here is simply the substitution of the writ of habeas corpus for the right of appeal under the statute, or, at the election of these parents, for the right enjoyed by them to apply at any time in probate court for a new or supplemental order of disposition. It is proposed, simply, that we approve the habeas corpus because, it is said, the evidence upon which the probate court acted was so weak that it had no jurisdiction to enter the order and, hence, it was “void.” The cost of what is here proposed, in terms of human interests involved, is staggering. How many other custodial orders may likewise be called “void” after many years have passed without appeal we have no way of knowing. Much would de *126 pend upon the strictness with which we might view the showing made. We are now, however, disposed to undertake that experiment.

Just what is this error so all-pervading that its commission makes a nullity of the court’s process? The circuit judge pointed to irregularities in the procedures employed by the probate judge. These, however, were not jurisdictional. On this phase of the case I agree with the careful analysis of Mr. Justice Edwards. The probate court did, in spite of such, obtain jurisdiction over the persons and over the subject matter. Where, then, lies the error so pernicious as to make the probate order a nullity? According to Mr. Justice Edwards there is a “glaring defect” in the evidence “presented at the hearing upon which the probate judge based his order.” And what is this glaring defect? There was, we are told, insufficient evidence of neglect,

So, just at this point, we reach the crux of the case: There is a difference of opinion between some of our Court and the probate court on the sufficiency of the evidence of neglect. We will assume, arguendo, that there was such a deficiency, that our brethren so believing are right, although we are keenly aware that we are the Supreme Court not because we are always right but that we are always right because we are the Supreme Court. At any rate, the probate court, we will assume, was in error. Mr. Justice Edwards holds that this makes its order “void,” that the court lost jurisdiction, that its order was a nullity, in short, that all that was done amounted to no more than a pompous, cruel travesty of make believe. Not merely are we to hold the order erroneous, we emphasize, subject to correction as all other errors in the law are corrected, but void. And this with respect to a matter (i.e., was there “neglect”?) with respect to which wide differences of opinion may honestly exist., among reasonable and sincere men, *127 and with respect to a branch of the law (the welfare of children) in which the most pressing need for security of adjudication exists.

The case before us well illustrates the pitfalls lurking in every step of the path proposed. At the time of the hearing on August 4th, the probate court had before it a sworn petition by the mother that the father did not want his children, that “he drinks continually and beats me up, which frightens the children,” that the father had left them and that she had found it necessary to go to the public authorities for aid. He had also the report of the assistant county agent that “this is not the first break-up which the Fritts family has undergone. It appears that there has been trouble during most of their married life. The pattern of constant discord is there. On the information which has been gathered, it would appear that if the parents do live together, the discord would be a most pernicious influence on their children. If the parents do not live together, the children would have no security.”

But not only did the probate judge have before him at this hearing these instruments, with their authors, but he had the parents themselves, and while we do not know precisely what transpired, since no stenographic notes were taken, we do have transcribed a hearing dated September 16th, at which the hearing of August 4th was explored in detail. At no time upon this date (September 16th) did Mr. Fritts see fit to refute the charges made against him, a course of action which would seem to suggest itself to any normal person who had been slandered thereby. As to the marital discord, which my Brother would confine to isolated instances, we find in the record of September 16th the following (the assistant county agent is on the stand):

*128 “Q: Do your records disclose, that Mr. Fritts told you prior to the hearing he wanted his children back Í

“A. Yes, he called me. I made an appointment with him; he came over and said he wanted to get the children back. They admitted their family life had been a history of discord but they planned to do better.”

The fruition of their plans to do better may be judged, in part, by the fact that Mrs. Fritts, while in Kansas, and less than a year before the habeas corpus hearing, petitioned for divorce on the grounds of. “gross neglect of duty and extreme mental cruelty,” and obtained a court order restraining Mr. Fritts from molesting her. This was on January 13, 1955. On June 25th, she was back in court, asserting that she, relying on his promises, “took him back and they again lived together as man and wife” but that, subsequent thereto, he was again guilty of “gross neglect of duty and extreme mental cruelty toward the plaintiff,” and again she obtained a restraining order. We observe, also, that in the hearing on September 16th, Mrs. Fritts confirmed the truth of the matters alleged in her petition, coupling this, however, with the assertion that she wanted the children returned to her. Finally, with respect to this hearing, in view of the fact that the judgment of the probate judge is assailed as being so utterly lacking in foundation as to render his order void, we think, in all fairness to him that his statement made at the close of the hearing should be made a part of our opinion:

“This mother has, with substantial cross-examination, brought out what happened and I want her to know this, that we followed her wishes all the way through in placing those children in identically the kind of home she wanted after trying to dissuade her from this action on 3 different occasions. The point *129 I want her to know is that the children would suffer greatly if they were moved at this time. I don’t want to give an opinion now.” • ,

If in all of these charges, repeated and nndenied, before the probate judge on August 4th, and' the reports then available to him, there is not sufficient evidence of “neglect” the word has a poverty of meaning heretofore unknown to us. In this respect, Mr. Justice Edwards holds that “at the time of the hearing, the probate judge had before him no evidence of neglect, either of long duration "in the past, or from which any reasonable prediction of future neglect of permanent duration could be made.” The emphasis here is apparently upon time, upon the elements of “long” duration and “permanent” duration. The difficulty with the distinction sought to be drawn, emphasized as it is with respect, to temporary and permanent orders, is that we cannot define how long long is. How many times must the mother be required to appeal to the public authorities? How many times must the children go hungry? How often must the children witness the mother’s beatings? The criterion, in our opinion, depends not upon the clock or calendar but upon all of the surrounding circumstances, the nature of the act or acts, the conditions under which committed, the provocations or lack thereof, and all of the many-colored hues going to make up the spectrum of life.

This determination I would leave in the trier or triers of the facts to whom jurisdiction is confided by statute. But when all is said and done (and here lies the point of .my difference with Mr. Justice Edwards), the decision of the probate judge upon the issue of neglect remains a matter to be corrected if in error, but not of jurisdiction. If he is wrong, if he makes a mistake, indeed, if he blunders, it is only that and nothing more. If he has jurisdiction of the *130 parties and of the subject matter he does not lose it by making a mistake, for he has jurisdiction to make mistakes. (Buczkowski v. Buczkowski, 351 Mich 216 .)

We need not, we assume, protest our jealousy of the rights of natural parents to their children. But these rights are not indestructible by the parents themselves. The parents may, by their own acts of cruelty or degradation, forfeit rights that we, under other circumstances, would protect and implement by every resource at our command. The beatings administered the mother by the father of the children may be suffered by the mother with whatever philosophy and fortitude she can muster. But we are not prepared to say that exposure to the spectacle, in addition to the balance of the matters shown, cannot constitute neglect of the moral welfare of the children. The persistence of reprehensible home conditions to a period only shortly antedating the hearing in habeas corpus is more than suggested by exhibits A, B, C and D, the instruments from the district court for the county of Sedgwick, Kansas, in which Mr. and Mrs. Fritts were then residing, petitioning for divorce and for an order restraining her husband from molesting her.

The question here under examination, whether an erroneous (even conceding it to be such) finding of neglect results in a “void” order, on the theory that . the court thus lost “jurisdiction” because of its error, had recent examination by one of the distinguished courts of the nation, the court of appeals for the .District of Columbia, then comprising Justices Edgerton, Stephens, and Rutledge. This court, in the case of In re Stuart, 72 App DC 389 (114 F2d 825), had under consideration an appeal from a judgment (of the juvenile-court of the. District of Columbia) that a child “was without'adequate parental care and support and that she should be placed under the *131 guardianship of a certain person.” ■ The. court, after reviewing the proceedings and the evidence, concluded that the findings of inadequate parental care and the order transferring the child’s custody were without warrant in the evidence. With respect to the issue before us, that of jurisdiction, the court held as follows (pp 833, 834) :

“By way of further clarification of the meaning of the act we comment upon an argument of the appellant : It is said in the appellant’s brief: ‘Jurisdiction of the juvenile court under the act * * * is dependent upon the evidence and in this case the evidence shows no such lack of parental care and support as would give the juvenile court jurisdiction to make appellant a ward of the court.’ And throughout the oral argument of the appellant it was insisted that the juvenile court was without ‘jurisdiction’ to make the order appealed from.

“While it is sometimes loosely said that a court has no ‘jurisdiction’ to make an order not supported by the evidence necessary to prove the cause of action set forth in the complaint which invokes the action of the court, it is important to point out, for the sake of clarity in respect of the power of the juvenile court, that in the proper sense of the word jurisdiction a court has jurisdiction, in the sense that its erroneous action is voidable only and not void, when the parties are properly before it, the proceeding is of a kind or class which the court is authorized to adjudicate, and the claim set forth in the complaint is not obviously frivolous. Binderup v. Pathe Exchange (1923), 263 US 291, 305, 306 ( 44 S Ct 96 , 68 L ed 308); and see Howat v. Kansas (1922), 258 US 181, 189 ( 42 S Ct 277 , 66 L ed 550); Cooper v. Reynolds (1870), 10 Wall (77 US) 308, 316 (19 L ed 931); Brougham v. Oceanic Steam Navigation Co. (CCA 1913), 205 F 857, 859; Hughes v. Cuming (1900), 165 NY 91, 95 ( 58 NE 794 ). In this proper sense of the word jurisdiction the juvenile court in the instant case had jurisdiction to make- the order *132 appealed from. The parties were before it, the ease described in the petition was within the class of cases which the act gives the court power to deal with — to-wit, a case involving a question of adequate parental care of a person under the age of 18 — and the petition on its face stated a cause of action. That the evidence failed to support the petition did not affect the jurisdiction of the court, in the proper sense of the term, to hear the cause and to make the order. But it did, as we have pointed out above, make the action of the court erroneous and subject to reversal on appeal.”

The decision is eminently sound. The loose use of the word “jurisdiction” as synonymous with “error” can only serve to introduce untold confusion in the law. Buczkowski v. Buczkowski, supra. Thus, as we write, we find in the record of an automobile-accident case now before us the assertion made to the trial court (upon objections made to jury charges) that such court “was without jurisdiction in the matter, after having denied defendant’s motion for a directed verdict • * * * to charge the jury that, as a matter of law, Mr.-was guilty of negligence.”

If by this it is meant that the trial court, having jurisdiction of the parties and the subject matter, lost such jurisdiction because of the allegedly erroneous charge, it is complete and utter nonsense. A court, having jurisdiction, does not lose it by erroneously charging, by erroneously directing a verdict, or as here by (allegedly) erroneously entering an order respecting custody.

We have not, in the above, weighed the merits of the respective parents. We have not matched, as in the prize ring, the claims of the distraught natural mother, whose feelings as she abandoned her children are probably beyond our full understanding, against those of the foster mothers, as they embrace, awaiting our decision, those children who, as has been said, grew in their hearts rather than under *133 them. We have not done these things because, although their tragedies are not remote from us, our primary concern is the welfare of the children.

Let there be no misunderstanding in anyone’s mind about the lack of justification for what the majority is here doing. Wé are not acting under the whip of an inexorable statute which we have neither the will nor the wit to interpret, for there is no statute commanding this result. The common law does not demand it. Apt precedent denies it. Why, then ? Simply and solely because of our majority’s stumbling over one of the most basic concepts known to the law, that of “jurisdiction” to hear and decide. This concept, if misapplied, is so perilous to the stability of the judicial process, to the principles of res judicata, that we recently in a unanimous opinion warned the profession against its loose use. We cautioned not to confuse a court’s reaching the “correct” result with its jurisdiction to hear and decide. We pointed out that a court having jurisdiction of the parties and the subject matter has also the jurisdiction to err. Having said all of this in Bucekowslci, supra, a few scant weeks ago, we now plunge into the very pit over which we posted the warning and we drag the Fritts children in with us.

We will climb out, of course. The sun will not set on this day before we will be forced to devise ways first to distinguish, then to repudiate, then to bury, this case as authority. No court can live with the proposition that jurisdiction to hear and decide depends upon evidence sufficient to- justify the remedy prayed, for we do not reach the question of remedy in the matter before -us until we have crossed the bridge of jurisdiction. But what, in the meantime, of these children? Are they never to know surcease from sorrow? Were their cups not filled to overflowing 6 years'ago? Are we now to add the hemlock?

*134 .' The circuit judge was in error in deciding that the probate court did not have jurisdiction of the matter before it. The writs issued in circuit should therefore be dismissed, without costs.

Black and Voelker, JJ., concurred with Smith, J.