Petition — Knostman v. Hardy

ee

\ oo

Supreme Court, U. 8. |

F ILE D

JUL 1% 1975

| MICHAEL RODAK, JR..CLERK

L—

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 79 ol. 0 6

IN RE: PETITION OF

CHARLES FREDERICK HARDY.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF FLORIDA

JAMEs P. O’FLARITY and

Pui.ip J. Gouze of

LAW OFFICES OF JAMES P. O’FLARITY

230 Royal Palm Way

Palm Beach, Florida 33480

Attorneys for Petitioner

FE. LL. Mennennarr, Ive., 996 Cherry Street, Kansas Citv, Mo. 64106, 421-8080

TABLE OF CONTENTS

RNS SII sisecitcsnisnsidisicaesicnectiiheaiieenimitenibibdiacbciaai ait 1

PUNT sistcloklnceiaesieticieciki oleate aides i aaa 2

I a a 2

Constitutional Provision Involved ...........cccccccccseecesseeeseeees 2

SO 2

Reasons for Granting the Wit ....................:csssessssssessseesenees 5

EAS Ae es mes ae PADS LES SEIS iy en 28

Appendix—

Final Judgment of Adoption (Circuit Court of the

Seventeenth Judicial Circuit, Broward County) Al

Judgment Affirmed (District Court of Appeal of

PS ST SII TEUIIE -weisiscessesniticivteusennaiellbiessbpnnitiontenns A4

Certiorari Denied (Supreme Court of Florida, 312

5 REINS aL OR pee ee eT ee = A4

Table of Authorities

CASES

Adoption of Lord, 28 A.D.2d 1203, 288 N.Y.Supp.2d

rn ne 27

Barnes v. Paanakker, 111 F.2d 193, C.A. D.C., 1940 ....

seelunseinitceniaandeiieh annie aaisncdidiiaaaisiaaadanénadinmanniitenisiienentsa 25, 26, 27

Barth v. Barth, 225 N.E.2d 866, Ct.C.P. Ohio, 1967 ....19, 27

Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780,

ECR i a 10, 11

Carle v. Carle, 503 P.2d 1050, Alaska, 1972 .........0.......... 19

Clements v. Banks, 159 So.2d 892, 3 D.C.A., Fla. 1964 7

Dees v. Dees, 41 Wis.2d 435, 164 N.W.2d 282, 1969 ........ 15

Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 1962 ................ 11

Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518,

a ae 6

II

Gochenauer v. Gochenauer, 45 Wis.2d 8, 172 N.W.2d 6,

RIP RE renre ove eee stents ee ere ayes ITEP vo POR Ton nr NTE ee 16

Hamilton v. Rose, 99 So.2d 234, Fla. 1957 ..........00.cccee 7

Heryford v. Parker, 396 F.2d 393, 1968 ...........ccsessseseeees 9

Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719 ............ 5

In Re: Adoption of Children, 96 N.J. Super. 415, 233

A Te I, Ge, Te etc cccerntnccesecteneseenntantersteceriond 8, 26

In Re: Adoption of Shaw, Fla. App. 1967, 198 So.2d 87 7

In Re: G, 389 S.W.2d 63, Mo. App., 1965 ........0.00.00..... 24, 25

In Re: Gault, 387 U.S. 1, 87 S.Ct. 428 ......................... 5, 6, 12

In Re: Winship, 397 U.S. 358, 90 S.Ct. 1068 ................ 6,7

Johnson v. U. S., 318 U.S. 189, 63 S.Ct. 549 ........00000... 5

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

SPR aL a cre PE RT EO aD cl RII Pe 11-12

LaFollette v. Van Weelden, Fla. App. 1975, 309 So.2d

BES ERE AMEN eerIO eT aoe DEM ok Lok ARM I o a 7

Mawhinney v. Mawhinney, 66 Wis.2d 679, 225 N.W.2d

May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 1952 ........ 9

Meyers v. Shifrin, 146 So.2d 779, 3 D.C.A., Fla. 1962... 7

Modacsi v. Taylor, 104 So.2d 664, 1 D.C.A., Fla. 1958 7

Molloy v. Molloy, 46 Wis.2d 682, 176 N.W.2d 292, 1970 17

Pfiefer v. Pfiefer, 52 Wis.2d 417, 215 N.W.2d 419,

REN LS IA mea al ean STD AEE RN Te Sees ere 17

Roy v. Holmes, Fla. App. 1959, 111 So.2d 468 ................ 7

Screws v. U. S., 325 U.S. 91, 55 S.Ct. 1081 ........................ 5

Silber v. U. S., 370 U.S. 717, 82 S.Ct. 1287 .......0000000...... 5

Stanley vy. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 1972 ....9, 10

Stapleton v. Dauphin County Child Care Service, 228

Pa. Super. 371, 324 A.2d 562, Super. Ct. Pa., 1974... 18

Steadman y. Duff, 302 F.Supp. 313 (D.C. Fla., 1969) 24

Steets v. Gammarino, 59 So.2d 520, Fla. 1952 .......... 7

Ill

Torres v. Van Eepoel, Fla. 1957, 98 So.2d 738 ................ 7

U. S. v. Atkinson, 297 U.S. 157, 56 S.Ct. 391 ................ 5

Wendland v. Wendland, 29 Wis.2d 145, 138 N.W.2d 185,

EIST ES FEES ena ae oe eI A TOT TE 15, 27

Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.

SE cl aaa 11

CONSTITUTIONAL PROVISIONS

AND STATUTES

Conn. Gen. Stat. Ann., Sec. 17-66 b, c (Supp. 1974) ........ 6

Fourteenth Amendment, Section 1, United States Con-

TI seein ne binenapebenetipaseemnsi@nnaaieuiins 2

Ill. Ann. Stat., Chap. 37, Sec. 701-20 (Supp. 1974) ........ 6

Kan, Stat. Ann., Sec. 38-821 (1973) ..................ccccccssseees 6

Minn. Stat. Ann., Sec. 260.155 (1971)... eee 6

N.D. Cent. Code, Sec. 27-20-26 (1974) 0.0.0... 6

N.Y. Family Ct. Act, Sec. 249 (McKinney 1974) ........ 6

Ohio Rev. Code Ann., Sec. 2151.352 (Supp. 1973) ........ 6

Okla. Stat. Ann., Title 10, Sec. 1109 (Supp. 1973) ........ 6

Uniform Juvenile Court Act, Sec. 26 (1968) 000000... 6

a a saaseneeineeeetemnsebienniiinntl 2

8 8 RS 16-17

Vernon’s Ann. Mo. Stat., Sec. 453.020, 1959 .......00000...... 24

TREATISES

Anderson, Safeguarding Children of Divorce in a Uni-

fied Court System (in Newman 59, 60, 61) ................ 22, 23

Coyne, Who Will Speak for the Child?, 383 Annals of

the American Academy of Political and Social

Science 34, 1969 ................ ieaendaaeilenaloatapinamniicaumneniiabdbiaidabiens 28

Declaration of the Rights of the Child, UntTrEp NATIONS

Review, December 1959, page 88 ..................ccesceeeeeee 21, 22

Drinan, The Rights of Children Whose Parents Are

Divorced, 1962 University oF ILL. L.F. 618 ................ 21

IV

Foster and Freed, A BILL or RIGHTS FOR CHILDREN, 6

ABA Family Law Quarterly 343, 1972 (also appear-

ing in N.Y.L.J., July 28, August 25, September 22,

1972, and Katz, The Youngest Minority; Lawyers in

Defense of Children, 1974 American Bar Association

PPUGEB) occxececssvesesesnenisisunesesiininiteteauannasiammmmiantaanna 12, 13, 14

Foster, A Britt or RIGHTS FOR CHILDREN (American

Lectures in Behavioral Sciences and Law, Charles

C. Tresmas, Publicar, BGGG) ccccececemensmueee 14, 15

Hansen, Guardian Ad Litem in Divorce and Custody

Cases: Protection of a Child’s Interests, 4 JourRNAL

oF FAMILY LAw 181, 1964

Hansen, The Role and Rights of Children in Divorce

Actions, 6 JOURNAL OF FAMILy Law 1, 1966

Hawke, Divorce Today: Fraud on Family and Society,

TRIAL MAGAZINE, June-July, 1969 ooo ce ccccceceeeeeeees 20

Inker and Perretta, A Child’s Right to Counsel in Cus-

tody Cases, 55 Mass. L.Q. 229, 1970, 5 ABA FamiILy

Kleinfield and Moss, A Divorce Reform Act, 5 HARVARD

JOURNAL ON LEGISLATION 563, 1968 ..000000...cccccccccceeee 19, 20

Newman, Children in the Courts—The Question of

Representation. INSTITUTE OF CONTINUING LEGAL

EpucaTion, Ann Arbor 74, 1967 .0............cccccccceccoccececeees 21

Podell. The “Why” Behind Appointing Guardians Ad

Litem for Children in Divorce Proceedings, 57 Marg.

L.Rev. 103, 1973

Speca and Wehrman, Protecting the Rights of Chil-

dren in Divorce Cases in Missouri, 38 U.M.K.C.

L.Rev. 1, 1969 23

TAO ERE EHH EEE HEE ESHEETS EOEEEEEES SES EEEEEEEE SESE ESE ESESES

THe Ricut to Counset 1n Civix Litication, 66 Colum.

L.Rev. 1322, 1966

Watson, The Children of Armageddon: Problems of

Custody Following Divorce, 21 Syc. L.Rev. 55, 1969... 21

In the Supreme Court of the United States

OCTOBER TERM, 1975

IN RE: PETITION OF

CHARLES FREDERICK HARDY.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF FLORIDA

Petitioner, GARY JAMES KNOSTMAN, respectfully

prays that a Writ of Certiorari issue to review the judg-

ment of the Supreme Court of Florida entered on April 18,

1975 denying Petitioner’s petition for Writ of Certiorari

to the Fourth District Court of Appeal of Florida. The

decision of the Fourth District Court of Appeal of Florida

dated August 2, 1974 affirmed the trial court’s order of

adoption. Rehearing was denied by the Fourth District

Court of Appeal of Florida on September 12, 1974.

OPINIONS BELOW

The Supreme Court of Florida’s denial of a Writ of

Certiorari to the Fourth District Court of Appeal of Florida

is reported at 312 So.2d 751 and is reproduced in the Ap-

pendix to the Petition. The decision of the District Court

of Appeal of Florida, Fourth District, affirming the trial

court’s judgment is reported at 299 So.2d 172, and re-

produced in the Appendix to the Petition.

2

JURISDICTION

The jurisdiction of this Court is invoked under Sec-

tion 1257 (3), Title 28, United States Code.

QUESTION PRESENTED

Whether in a bitterly contested, stepparent adoption

proceeding wherein a child’s rights and relationship to his

natural parent may be permanently severed, Fourteenth

Amendment due process of law requires that the Court

appoint a law guardian ad litem to represent the best in-

terests of the child independently of the interests of other

parties to the adoption.

CONSTITUTIONAL PROVISION INVOLVED

This case presents a question concerning the applica-

tion of the due process clause of the Fourteenth Amend-

ment to the United States Constitution. Section 1 of the

Fourteenth Amendment provides in part:

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.”

STATEMENT OF THE CASE

This case involves an adoption by a stepfather which is

vigorously contested by the Petitioner who is the natural

father of the children who are the subjects of this adop-

tion proceeding. Petitioner was divorced from the natural

mother in October, 1970, and the mother remarried in De-

cember of 1970. The mother’s new husband, CHARLES

FREDERICK HARDY, filed a petition in the Circuit Court

3

for Broward County, Florida to adopt the two natural

children of this Petitioner, GARY JAMES KNOSTMAN.

At the time of the trial, the children were ages six (6)

and three (3).

The case went to trial on June 4, 1973 and resulted in

the trial court entering a final judgment of adoption on a

finding that the adoption would be in the best interests of

the minor children.

At this final hearing, the natural mother’s new hus-

band, CHARLES FREDERICK HARDY, respondent here-

in, was represented by competent counsel. Petitioner

appeared without counsel and represented himself. The

minor children, though clearly the subject of the litigation,

did not appear before the Court nor were they repre-

sented by counsel. The children did not testify, and their

interests were not made known to the Court except

through the testimony of Petitioner’s ex-wife and her new

husband. No social investigation of any kind was made or

ordered by the Court in an effort to determine where the

best interests of the minor children might lie. The only

testimony before the Court was that of the respondent,

CHARLES HARDY, his wife, who is the ex-wife of the

Petitioner, his mother-in-law and the Petitioner. Neither

Petitioner nor Respondent moved the Court to protect

the children’s best interests by appointing a law guardian

ad litem to represent the minor children. The trial judge

himself did not on his own motion, appoint a law guardian

ad litem to independently represent the children’s best

interests. Although counsel for Respondent Hardy sug-

gested that the Court might wish to order a social investi-

gation to which no one objected, no such investigation into

the circumstances of the parties and the best interests of

the children was had, although the Court observed at the

close of testimony, “This is not a good and clear-cut case

for a judge.”

4

Thus, at the trial level, the record reflects that no one

raised the issue of protecting the children’s best interests

by appointment of a law guardian ad litem. These young

children, the subjects of the litigation, were certainly in no

position to raise the issue of appointment of a law guardian

ad litem. The testimony at trial was clear to the effect

that granting or denying the petition for adoption would

not change the custody of the children which was with

Mrs. Hardy, but granting it would only terminate the

parental relationship of the children with their father.

Copy of “Final Judgment of Adoption” is reproduced in

the Appendix to the Petition.

The Petitioner, through a Texas lawyer, sought re-

view of the final judgment of adoption in the Fourth Dis-

trict Court of Appeal of Florida challenging the trial court’s

judgment ordering the adoption. The Fourth District Court

of Appeal of Florida affirmed on August 2, 1974. Petition

for rehearing was denied September 12, 1974. Petitioner,

through other counsel, then petitioned the Supreme Court

of Florida for Writ of Certiorari which was denied on

April 18, 1975.

The Petitioner herein, in his appeal to the Fourth Dis-

trict Court of Appeal of Florida, properly assigned as error

the trial court’s failure to clearly find that the adoption

was in the children’s best interests. Again, on petition

for rehearing before the Fourth District Court of Appeal

of Florida, the Petitioner argued that the children’s inter-

ests were not protected as the trial court never appointed

a guardian ad litem in the adoption matter nor in any way

sought to protect and represent the children’s best inter-

ests.

This petition will show that such an omission by the

trial judge amounted to plain or fundamental error and

resulted in the deprivation of the children’s Fourteenth

Amendment rights to life, liberty and property without

due process of law.

—*<

REASONS FOR GRANTING THE WRIT

The issue of appointment of a law guardian ad litem

was raised for the first time before the Fourth District

Court of Appeal at which time Petitioner was first repre-

sented by counsel. The issue of independent counsel for

the children who were the subjects of the adoption pro-

ceeding could not have been raised by these children of

such tender years, ages six (6) and three (3). It was the

duty of the trial judge, by his own motion, to protect the

children’s best interests by appointment of a law guardian

ad litem. In any event, the deprivation of these children’s

constitutional right to representation may be considered

by the court under the doctrine of plain or fundamental

error. U.S. v. Atkinson, 297 U.S. 157, 56 S.Ct. 391; John-

son v. U. S., 318 U.S. 189, 63 S.Ct 549; Screws v. U. S., 325

U.S. 91, 55 S.Ct. 1031; Silber v. U. S., 370 US. 717, 82

S.Ct. 1287; and Hormel v. Helvering, 312 U.S. 552, 61 S.Ct.

719.

In the case of In Re: Gault, 387 U.S. 1, 87 S.Ct. 428,

this Honorable Court recognized that children have con-

stitutional rights in juvenile proceedings. The Court held:

“We conclude that the Due Process Clause of the

Fourteenth Amendment requires that in respect of

proceedings to determine delinquency which may re-

sult in commitment to an institution in which the

juvenile’s freedom is curtailed, the child and its par-

ents must be notified of the child’s right to be repre-

sented by counsel retained by them, or if they are un-

able to afford counsel, that counsel will be appointed

to represent the child.” 387 US. at 41, 87 S.Ct. at

451.

In addition, Gault rejected the former distinction be-

tween due process rights in civil proceedings and due pro-

cess rights in criminal proceedings. Although traditionally

6

juvenile proceedings were labelled “civil” in nature, such

a label did not operate to foreclose the application of basic

due process safeguards in Gault. Rather than interpret

and analyze labels, this Court chose to look toward the

nature and seriousness of the proceedings and resulting

deprivation.

In the aftermath of Gault, supra, many states have

enacted legislation expanding the holding of Gault to pro-

vide counsel for children in proceedings involving delin-

quency, neglect, and termination of parental rights.’

In Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518,

1966, this Court disregarded the fact that a Pennsylvania

Statute declared that the Statute was of a “civil character”

rather than a penal-type statute. In looking to the effect

of the statute, this Court, speaking through Mr. Justice

Black, stated:

“Both liberty and property are specifically protected

by the Fourteenth Amendment against any State dep-

rivation which does not meet the standards of due

process, and this protection is not to be avoided by

the simple label the State chooses to fasten upon its

conduct or its statute.” 382 U.S. at 401, 86 S.Ct. at 520.

In In Re: Winship, 397 U.S. 358, 90 S.Ct. 1068, this

Court, in approving Gault, again recognized the importance

of disregarding ‘“‘criminal-civil” labels when the issue is

the application of basic due process requirements. This

Court stated:

1. Conn, Gen. Stat. Ann., Sec. 17-66 b, c (Supp. 1974); Ill.

Ann. Stat., Chap. 37, Sec. 701-20 (Supp. 1974); Kan. Stat. Ann.,

Sec. 38-821 (1973); Minn. Stat. Ann., Sec. 260.155 (1971); N.Y.

Family Ct. Act, Sec. 249 (McKinney 1974); N.D. Cent. Code, Sec.

27-20-26 (1974); Ohio Rev. Code Ann., Sec. 2151.352 (Supp. 1973):

Okla. Stat. Ann., Title 10, Sec. 1109 (Supp. ; ,

nile Court Act, Sec. 26 (1968). ae See ee ee

7

“We made clear in that decision (Gault, supra) that

civil labeis and good intentions do not themselves

obviate the need for criminal due process safeguards

in juvenile courts...” 397 U.S. at 365-366, 90 S.Ct.

at 1073.

This Court also stated:

“The same considerations that demand extreme cau-

tion in fact finding to protect the innocent adult apply

as well to the innocent child.” (Emphasis added.)

397 U.S. at 365, 90 S.Ct. at 1073.

Fact finding is indeed the crux of this Petition.

Florida law is clear to the effect that the best interests of

the child are of paramount consideration in adoption pro-

ceedings. Steets v. Gammarino, 59 So.2d 520, Fla. 1952;

Modacsi v. Taylor, 104 So.2d 664, 1 D.C.A., Fla. 1958;

Meyers v. Shifrin, 146 So.2d 770, 3 D.C.A., Fla. 1962;

Clements v. Banks, 159 So.2d 892, 3 D.C.A., Fla. 1964. The

rights of a parent have to yield to the welfare and best

interests of the minor child. Hamilton v. Rose, 99 So.2d

234, Fla. 1957.

“A natural parent may submit to an adoption by giv-

ing consent. He may so conduct himself as to show

a complete abandonment. But, absent the two criteria

cited supra, it takes a mighty clear and convincing set

of facts before the privileges and responsibilities of

the father can be taken away from him.” LaFollette

v. Van Weelden, Fla. App. 1975, 309 So.2d 197; Torres

v. Van Eepoel, Fla. 1957, 98 So.2d 735; Roy v. Holmes,

Fla. App. 1959, 111 So.2d 468; In Re: Adoption of

Shaw, Fla. App. 1967, 198 So.2d 87.

This being the State of Florida Jurisprudence in the area

of adoption proceedings, the Court, in the interest of justice,

must then determine what indeed are the child’s best

interests.

8

In protecting the child’s interests, the Court must look

to the seriousness of the adoption proceedings. Adoption,

unlike custody, results in the total and final extinguishment

of the right of a natural parent to his child and the right

of the child to his relationship with his natural parent.

As stated by the Court in In Re: Adoption of Children,

96 N.J.Super. 415, 233 A.2d 188 at 192, Super. Ct. 1967:

“The distinction between custody and adoption has

had universal acceptance throughout the literature and

law of filial relations. When custody is at issue the

court is much more likely to make the temporary

grant, always subject to reconsideration, on the basis

of the best welfare of the child in light of the ad-

vantages and opportunities offered by the competing

parties. Deeper and broader considerations, however,

are commanded in adoption proceedings where the

parent-child relationship is sought to be permanently

severed. (Citations omitted.) As stated by the Su-

preme Court of New Mexico, adoption should be under-

taken only with ‘the most adequate safeguards against

abuse’. Barwin v. Reidy, 62 N.M. 183, 307 P.2d 175,

180 (1957).”

The Court continued:

“The name of an adopted child and his right of inheri-

tance are changed and the biological ties with his par-

ents are forever foreclosed by a judgment of adoption.

Such an action is of the first magnitude and should

be sanctioned only after serious consideration of the

consequences. Note, 16 Rurcers L. REv., op. cit., at

pp. 390-391. The child’s relationship with a parent

is of such significance that all doubt should be resolved

against its destruction. (Citations omitted.) A child,

however, is not a chattel, and the parent-offspring

relationship is a status, not a contract, which status

9

may be altered or abrogated by the State as parens

patriae in furtherance of a societal concern for the

protection of the child’s best interests—the dominant

objective to be achieved.” 233 A.2d at 193.

It has been suggested that a “gravity of consequences”

standard be used as a guide in making the aid of counsel

a constitutional requirement in so-called “civil” cases. See

note, THE RicHtT To CouNSEL IN Crviu LITIGATION, 66 Colum.

L.Rev., 1322, 1332, 1966. Indeed there is merit in a stan-

dard that examines the severity of a potential penalty or

deprivation. Certainly the child who forever loses his right

to his relationship with his natural parent may well suffer

a more crippling blow than a criminal who serves a jail

sentence.

The United States Court of Appeals, Tenth Circuit,

in light of Gault, has seen fit to disregard the civil-crim-

inal distinction. See Heryford v. Parker, 396 F.2d 393,

1968. Instead, the court chose to look to the gravity of

the rights at stake in deciding to observe the constitutional

safeguards of due process.

In May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840,

843, 1952, this Court described a mother’s right to the

custody of her children as being “far more precious

.. . than property rights.” In May, the Court held that

an ex parte divorce proceeding in Wisconsin awarding cus-

tody to the father did not deserve full faith and credit

in Ohio. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208,

1972, also required a fair due process hearing before the

father of an illegitimate child is deprived of parental rights

upon the death of the mother, overruling a law presuming

the father’s unfitness for custody. Due process attaches

when litigation threatens a parent’s right to child custody,

whether the litigation is commenced by the State, as in

Stanley, or by a private party, as in May.

10

In Stanley, this Court recognized the natural father’s

keen interest in the children he had sired and raised.

The Court stated:

“It is plain that the interest of a parent in the com-

panionship, care, custody, and management of his or

her children comes to this court with a momentum

for respect lacking when appeal is made to liberties

which derive merely from shifting economic arrange-

ments.” (Citations omitted.) 405 U.S. at 651, 92 S.Ct.

at 1212.

In Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780,

1971, this Court, recognizing the basic position of the mar-

riage relationship in society, held that due process of

law prohibits a State from denying access to its courts

to indigents seeking dissolution of marriage solely because

of their inability to pay court fees. This Honorable Court

speaking through Mr. Justice Harlan stated:

“No less than these rights, the right to a meaningful

opportunity to be heard within the limits of practical-

ity, must be protected against denial by particular

laws that operate to jeopardize it for particular individ-

uals.” (Citations omitted.) 401 U.S. at 379-380, 91 S.Ct.

at 787.

The Court continued:

“Just as a generally valid notice procedure may fail

to satisfy due process because of the circumstances

of the defendant, so too a cost requirement, valid

on its face, may offend due process because it oper-

ates to foreclose a particular party’s opportunity to

be heard. The State’s obligations under the Four-

teenth Amendment are not simply generalized ones;

rather, the State owes to each individual that process

which, in light of the values of a free society, can

11

be characterized as due.” (Emphasis added.) 401 U.S.

at 380, 91 S.Ct. at 787.

In Wisconsin Vv. Yoder, 406 U.S. 205, 92 S.Ct. 1526,

32 L.Ed.2d 15, 1972, this Court held, through Mr. Chief

Justice Burger, that the First and Fourteenth Amendments

prevent a State from compelling Amish parents to cause

their children to attend high school to age sixteen. In dis-

cussing the child’s rights, the Court stated:

“As the child has no other effective forum, it is in

this litigation that his rights should be considered.”

406 U.S. at 240, 92 S.Ct. at 1546.

Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 1962 involved

a contested custody proceeding. In recognizing the diffi-

culty of presenting to the court the children’s best in-

terests, the Supreme Court stated per Mr. Justice Black:

“Unfortunately, experience has shown that the ques-

tion of custody, so vital to a child’s happiness and

well-being, frequently cannot be left to the discretion

of parents. This is particularly true where, as here,

the estrangement of husband and wife beclouds paren-

tal judgment with emotion and prejudice.” 371 US.

at 218, 83 S.Ct. at 277.

There is a substantial and widespread trend across

the United States advocating independent counsel to rep-

resent the minor child’s best interests in custody proceed-

ings. Numerous books have been written and articles have

appeared in legal periodicals by the leading family law

scholars and practitioners explaining the need for an in-

dependent advocate to present a true and accurate picture

of the child’s best interests to the court.

The basic premise revolves around the fact that “chil-

dren in divorce are always disadvantaged parties” Kritzik

12

v. Kritzik, 21 Wis.2d 442, 448, 124 N.W.2d 581, 585, 1963,

whether in an adoption or custody proceeding. Of course

in the former, the gravity of the judicial determination

is forever lasting and by far results in the most serious

deprivation. In line with the growing trend, either through

legislation or judicial decisions, a number of States have

followed the procedure of appointing a law guardian ad

litem in custody and adoption cases to protect a child’s

interests.

The two leading authorities and authors in the area

of family law, Professor Henry H. Foster, Jr. and Dr.

Doris Jonas Freed, have written extensively on the subject

of recognition of the legal rights of children. In their

article, A Britt or RIGHTS FoR CHILDREN, 6 ABA Family Law

Quarterly, 343, 1972 (Also appearing in the N.Y.L.J., July

28, August 25, and September 22, 1972 and in Katz, The

Youngest Minority; Lawyers in Defense of Children, 1974

American Bar Association Press), the authors begin with

the proposition:

“Children are persons and the law should recognize

that fact, although it will take some d ng. The status

of minority is the last legal relic of feudalism and

the arguments for and against perpetuation of that

status have a familiar ring. In good measure they

are the same arguments that were advanced over the

issues of slavery and the emancipation of married

women.” 6 ABA Family L.Q. at 343.

Foster and Freed then acknowledge that the decision

o In Re: Gault, supra, was indeed the most significant

court decision relevant to their philosophical base that

a child “should not be treated as an object or a thing”

but “should receive legal protection and representation”.

6 ABA Family L.Q. at 345. The authors state:

13

“It took Gault to dispel hypocrisy about juvenile jus-

tice. The decision forces us to look at what is being

done. In addition to Gault and its implications there

is Loving v. Virginia, (388 U.S. 1, 1967). If the matter

of the relationship is constitutionally protected from

unreasonable state regulation, the parent-child rela-

tionship may enjoy similar, albeit more limited, ad-

vantage.” 6 ABA Family L.Q. at 346.

Finally, Foster and Freed propose a “Bill of Rights

for Children” to insure to children that they will be treated

as human beings and will receive the constitutional rights

and protection that adults enjoy.2, The premise behind

the principles is “that children are people; they are en-

titled to assert individual interests in their own right,

2. A Br. or RIGHTS FOR CHILDREN A child has a moral right

and should have a legal right:

1. To receive parental love and affection, discipline and

guidance, and to grow to maturity in a home environment which

enables him to develop into a mature and responsible adult;

2. To be supported, maintained, and educated to the best

of parental ability, in return for which he has the moral duty to

honor his father and mother;

3. To be regarded as a person, within the family, at school,

and before the law;

4. To receive fair treatment from all in authority;

5. To be heard and listened to;

6. To earn and keep his own earnings;

7. To seek and obtain medical care and treatment and coun-

selling;

8. To emancipation from the parent-child relationship when

that relationship has broken down and the child has left home

due to abuse, neglect, serious family conflict, or other sufficient

cause, and his best interests would be served by the termination

of parental authority;

9. To be free of legal disabilities or incapacities save where

such are convincingly shown to be necessary and protective of

the actual best interests of the child; and

10. To receive special care, consideration, and protection in

the administration of law or justice so that his best interests al-

ways are a paramount factor.

14

to have a fair consideration given to their claims, and

to have their best interests judged in terms of pragmatic

consequences.” 6 ABA Family L.Q. at 346.

Professor Foster in his book entitled A BILL or RIGHTs

FOR CHILDREN (American Lectures in Behavioral Sciences

and Law, Charles C. Thomas, publisher, 1974) extensively

discussed children’s rights. In recognizing their need for

independent representation by counsel, Foster states:

“Assuming that the American adversary system is

likely to survive, this matter of independent represen-

tation by counsel, so that children have their own

lawyer when their placement or welfare is at stake,

may be the most significant and practical device for

the presentation of their point of view. Proponents

of the adversary process should not object to making

the system functional so that all interests may be

heard.

Children have individual interests apart from and

sometimes in conflict with parental or societal in-

terests. Their interests are entitled to be heard and

that can be done only through independent represen-

tation. Counsel for either parent owes a paramount

duty to his client and cannot and should not be re-

lied upon to promote the best interests of children

unless they coincide with those of his client. More-

over, busy courts faced with a backload of cases do

not have the time or usually the inclination to sort

out the evidence and the issues from the child’s point

of view.

Placement of the child, whether the issue arises

in a custody, adoption, or neglect proceeding, is a

a matter of crucial importance to him. Quite literally,

his life and future are at stake. The consequences

of an ill-advised placement may be as traumatic or

15

dire as commitment to an institution. The same rea-

sons that justify the extension of due process principles

to delinquency proceedings also apply to the placement

issue and in truth the need for independent counsel

may be even greater because only about twenty per-

cent of juveniles found to be delinquents are institu-

tionalized.” Foster, A BrLt or RIGHTS FOR CHILDREN at

44-45.

The State of Wisconsin has been a forerunner in the

development of a right to counsel for children in its divorce

cases. By court decision, a guardian ad litem may be

appointed to represent minor children when their parents

seek a divorce. In Wendland v. Wendland, 29 Wis.2d

145, 138 N.W.2d 185, 1965, the Supreme Court of Wisconsin

faced the issue of representation of a guardian ad litem

for children in a fight over custody in a divorce proceed-

ing. The Court in recognizing that children in a divorce

are always disadvantaged parties stated:

“.. a guardian ad litem for the children, as an advo-

cate for their interests, may well be in a position

to conduct a further investigation and present evidence

to the court that will help it reach its custody deter-

mination. . . Where there is a hotly contested dispute,

and the court is satisfied that the procedure of relying

on the two parties and the investigation of a welfare

agency may not produce all the important evidence

that the court should consider in looking after the

best interests of the children, a guardian ad litem

should be appointed.” 138 N.W.2d at 191.

In Dees v. Dees, 41 Wis.2d 435, 164 N.W.2d 282, 1969,

the Supreme Court of Wisconsin in another custody case

reaffirmed the importance of appointing a guardian ad

litem to determine what disposition and what conditions

would best serve the interests of the children. The case

16

was reversed and remanded for a new hearing with the

direction that a guardian ad litem be appointed to represent

and speak for the best interests of the child; the costs

of the guardian to be borne by the parents on an equitable

division.

In the case of Gochenaur v. Gochenaur, 45 Wis.2d

8, 172 N.W.2d 6, 1969, the Supreme Court of Wisconsin,

in another custody proceeding, reversed and remanded

the cause with directions to the trial court to appoint

a guardian ad litem to represent and speak for the best

interests of the three children involved. The Court stated:

“We deem the appointment of a guardian ad litem

especially appropriate in a case such as this where

the parties may not fully present the factors which

will best serve the children’s present and future well-

being.” 45 Wis.2d 8, 172 N.W.2d at 12.

Prior to 1971, a number of bills were presented to

the Wisconsin legislature which would have mandated the

appointment of a guardian ad litem for children in divorce

proceedings, but none of these bills were adopted. The

Supreme Court, therefore, invoked its rule-making power

and, effective July 1, 1971, it created a statutory section

which provides as follows:

“In any action for an annulment, divorce, legal separa-

tion, or otherwise affecting marriage, when the court

has reason for special concern as to the future welfare

of the minor children, the court shall appoint a guard-

ian ad litem to represent such children. If a guardian

ad litem is appointed, the court shall direct either

or both parties to pay the fee of the guardian ad

litem, the amount of which fee shall be approved

by the court. In the event of indigency on the part

of both parties the court, in its discretion, may di-

—— *

17

rect that the fee of the guardian ad litem be paid

by the county of venue.” (Emphasis added.) W1s.

Strat. Sec. 247.045, 1971.

Since this enactment the Supreme Court of Wisconsin

has repeatedly and consistently endorsed the procedure

of appointing a guardian ad litem to represent children

in custody matters. See Molloy v. Molloy, 46 Wis.2d 682,

176 N.W.2d 292, 1970; Pfiefer v. Pfiefer, 52 Wis.2d 417,

215 N.W.2d 419, 1974; and Mawhinney v. Mawhinney, 66

Wis.2d 679, 225 N.W.2d 501, 1975.

Judge Robert W. Hansen, Family Court Judge in Mil-

waukee, Wisconsin has instituted in his court a procedure

for appointment of guardians ad litem in all cases where

child custody is in dispute. (See Hansen, Guardians Ad

Litem in Divorce and Custody Cases: Protection of a

Child’s Interests, 4 JOURNAL OF FAMILY Law, 181, 1964, and

Hansen, The Role and Rights of Children in Divorce Ac-

tions, 6 JOURNAL OF Famity Law 1, 1966). The Judge

writes:

“When two terriers fight over a bone, the bone does

not join the fighting. But a child is not a thing or

an object to go as a prize to the winner of a contest.

It is a precious, unique, individually human being.

The whole future life of the child will be affected

by the court’s decision in the matter of custody . . . If

a child’s rights to damages for injuries sustained in

an accident are to come before a court, a guardian

ad litem must be appointed before a trial can be had

or a settlement approved by the court. If it appears

that children, known or unknown, may have an in-

terest in the estate of a deceased person, the probate

court appoints a guardian ad litem to represent the

interests of such possible heirs. Is not a minor and

dependent child whose parents are involved in a di-

18

vorce case entitled to similar representation, at least

in those cases in which custody becomes a matter

of dispute between the parties or concern to the

court?” Hansen, supra at 181-182.

In Milwaukee, the child’s due process rights are pro-

tected by the guardia. ad litem representing the child.

The guardian ad litem participates in a hearing with the

same rights and opportunities as counsel for the parties.

He may subpoena, present testimony of witnesses and

cross-examine the parties or witnesses testifying on behalf

of either party. Finally, he is requested to make a state-

ment or recommendation on behalf of the children at the

conclusion of the taking of testimony.

In an action involving custody of a foster child, the

Pennsylvania Appellate Court was particularly concerned

over the trial court’s stance that evidence regarding the

child’s best interests was not relevant. Stapleton v.

Dauphin County Child Care Service, 228 Pa. Super. 371,

324 A.2d 562, Super Ct. Pa. 1974. The Court stated:

“To say that a child is merely the subject of the

proceeding, not a ‘party’ to it, would be to return

to the child-as-chattel mentality. (Part II, supra.)

Brent is just as much a party to this case, which

will determine his future, as he would be if he were

seventeen years old and charged with shoplifting and

the proceeding were a delinquency proceeding.

Nor can anyone waive Brent’s right to counsel.

The purpose of the hearing will be to determine what

is in his best interest. To confer power to waive

counsel, whether on the Lietzels, the Stapletons, or

the Child Care Service would be to prejudge the case,

since it would amount to a determination that that

party’s interests were in accord with Brent’s best inter-

ests.” 324 A.2d at 573.

19

In Barth v. Barth, 225 N.E.2d 866, Ct.C.P. Ohio, 1967,

the Court stated that the appointment of a guardian ad

litem to represent minor children in a divorce action was

a novel concept in the State of Ohio. The Court acknowl-

edged the progress in this area by the State of Wisconsin

in stating that the interests of the minor children may

be substantially different from either or both parents. The

Court stated:

“A child, by definition, is inherently unequal in a

contest based upon a system of law—the adversary

process—that contemplates a contest of reasonably

equal parties.” 225 N.E.2d at 867.

In finding that the Barth case was one wherein the children

needed protection beyond that which could be given by

either or both parents, the Court stated:

“It is precisely for this purpose that the procedure

of Guardian Ad Litem was conceived and is to be

executed.” 225 N.E.2d at 867.

The State of Alaska in Carle v. Carle, 503 P.2d 1050,

1972, has recognized the need for independent protection

of the child’s best interests by appointment of a guardian

ad litem in custody determinations.

Two authors state that when spouses obtain a divorce,

important interests of the children may suffer harm. See

Kleinfield and Moss, A Divorce Reform Act, 5 Harvarp

JOURNAL ON LEGISLATION, 563, 1968. In noting that these

interests are usually not represented at the divorce, they

state:

“. .. the legal principles and policies for parties who

intervene as of right and for necessary or indispensible

parties should be applied to children whose parents

seek divorce.” Kleinfield and Moss, supra, at 574.

20

The authors continue:

“Th considerations discussed above warrant the prop-

osition that children ought to be parties, separately

represented to assert their interests, when their par-

ents seek divorces. .. . Neither parent’s interests coin-

cide with the child’s, and both may have interests

at odds with the child’s; therefore, representation of

the child cannot safely be left to the parents.” Klein-

field and Moss, supra, at 577.

In concluding that the “palisade between children and

the divorce court is inconsistent, not only with general

principles of law regarding representation of third parties,

but also with rules on representation of children and rules

on representation of third parties in divorce,” (p. 578)

the authors propose a Divorce Reform Act that would

give children representation. The proposed Act would

require the court to appoint lawyers for all minor children

of the spouses to a divorce. See Kleinfield and Moss,

supra, at 582-583.

In an article appearing in the June-July, 1969 issue

of TrraL Macazine, Divorce Today: Fraud on Family and

Society by Lee Allen Hawke, the author observes that

our system of justice allows either or both spouses to

have his or her interests protected by a trained attorney

in a divorce action. Hawke notes:

“If all interests are weighed, it is probable that the

children have a greater interest and yet less protection

in the divorce courts than the husband, wife or

society.” Hawke, supra, at 36.

In suggesting a plan that would give children representa-

tion, the author proposes a plan that would allow guardians

ad litem to be appointed for the children. Hawke, supra,

at 37.

A professor of law and professor of psychiatry at

the University of Michigan suggests:

21

“A procedure must be established which assures that

the child’s interests are effectively advocated during

the divorce proceedings. Because of this author’s skep-

ticism regarding the ethical commitments of the par-

ties’ counsel, it must be secured by appointing, for

the child, counsel who will skillfully and tactfully

represent his interests.” See Watson, The Children

of Armageddon: Problems of Custody Following Di-

vorce, 21 Syc. L. Rev. 55, 77, 1969.

Father Robert F. Drinan, former dean of Boston Col-

lege of Law School and currently United States Congress-

man, in analyzing whether children are third-party bene-

ficiaries of marriage contracts, advocates the protection

of children’s interests in divorce proceedings. Father

Drinan states:

“Basic due process means that the rights which are

vested in a child by his birth, by the type and quality

of the family into which he is born, and by a thousand

other factors cannot in justice be disregarded because

of the mistakes, selfishness, or even by the exercise

of the best judgment of one or both of his parents.

If a concept of pre-existing rights means anything,

it means that there are certain fixed moral and legal

relationships which give rise to inherent expectations,

the frustration of which is shocking to everyone’s sense

of justice.” See Drinan, The Rights of Children Whose

Parents are Divorced, 1962 University or Ix. L.F. 618,

also appearing in Newman, Children in the Courts—

The Question of Representation, INSTITUTE oF Con-

TINUING LEGAL Epucation, Ann Arbor, 74, 85, 1967.

The United Nations in its Declaration of the Rights

of the Child has established the right to appropriate legal

protection for the child before as well as after birth. See

Declaration of the Rights of the Child, Untrep NATIons

REview, December 1959, page 88.

22

The preamble includes:

“Whereas the child, by reason of his physical and

mental immaturity, needs special safeguards and care,

including appropriate legal protection, before as well

as after birth,”

and Principle 2 provides:

“The child shall enjoy special protection, and shall

be given opportunities and facilities, by law and by

other means, to enable him to develop physically,

mentally, morally, spiritually and socially in a healthy

and normal manner and in conditions of freedom and

dignity. In the enactment of laws for this purpose

the best interests of the child shall be the paramount

consideration.”

Principle 6 includes the sentence:

“(The child) shall, wherever possible, grow up in the

care and under the responsibility of his parents, and

in any case in an atmosphere of affection and of moral

and material security; a child of tender years shall

not, save in exceptional circumstances, be separated

from his mother.”

Another author, former probate and juvenile court

judge, Donald T. Anderson, observes:

“There is much to be said for the right afforded in

the adversary system for every interested party to

present and argue his case, and this right must be

preserved. The problems arise when there are ac-

tually parties in interest who cannot in reality exercise

this right. Children of divorce are classic examples.”

Anderson, Safeguarding Children of Divorce in a Uni-

fied Court System, in Newman, supra, 59, 60.

Anderson continues:

“Lacking an advocate, the child loses by default in

a system effectively operative for resolving disputes

23

between essentially equal adversaries.”” Anderson, su-

pra, in Newman, supra, at 61.

For further discussion of a child’s right to counsel in

divorce proceedings, see: Podell, The “Why” Behind Ap-

pointing Guardians Ad Litem for Children in Divorce Pro-

ceedings, 57 Mara. L.REv. 103, 1973; Speca ai.d Wehrman,

Protecting the Rights of Children in Divorce Cases in

Missouri, 38 U.M.K.C. L.Rev. 1, 1969; and Inker and Per-

retta, A Child’s Rigitt to Counsel in Custody Cases, 55

Mass. L.Q. 229, 1970, also appearing in 5 ABA Famity

L.Q. 108, 1971.

The distinction between custody and adoption proceed-

ings is of extreme significance. What is involved in the

instant petition is more than a mere temporary change

in custody with the court always retaining jurisdiction

to change custody in the future upon showing of the natural

parent’s changed circumstances. Much deeper and broader

considerations are commanded in adoption proceedings.

An adoption proceeding is no less than a final one-shot

determination of whether a permanent and irreversible

severance of the parent-child relationship will occur. In-

deed such a proceeding bears tne greatest consequences

for the child as well as its natural parent.

It is respectfully submitted that basic due process

safeguards must be applied in contested adoption proceed-

ings so that the best interests of the child which are

of paramount consideration, are adequately and properly

presented to the court independent of the other parties

to the adoption. The serious nature of the adoption pro-

ceedings with the substantial deprivations which follow

necessitate the appointment of independent counsel in the

form of a law guardian ad litem to adequately represent

the child’s interests before the court. More than any other

right guaranteed by the Bill of Rights regarding the func-

24

tion of justice, right to counsel is paramount, for it is

the medium through which all of the guarantees are made

reality. Steadman v. Duff, 302 F.Supp. 313 (D.C. Fla.

1969).

A number of jurisdictions have seen fit to protect

the child’s constitutional due process rights to representa-

tion by independent counsel. The State of Missouri, by

Statute, provides for the appointment of guardians ad litem

for all children involved in adoption proceedings. The

statute provides in pertinent part:

“The court shall, in all cases where the person sought

to be adopted is under the age of twenty-one years,

appoint a guardian ad litem to represent in said pro-

ceedings the person sought to be adopted... .”

Vernon’s Ann. Mo. Stat., Sec. 453.020, 1959.

In In Re: G, 389 S.W.2d 63, Mo. App., 1965, involving

a contested adoption, the Court analyzed the duties of

a guardian ad litem. The Court stated:

“The appointment and service of a guardian ad litem

is not a mere technical formality. The person so ap-

pointed is not a mere ‘figurehead’. It is his duty

to protect the interests of the child. He should not

waive or give up anything which affects the interest

of his ward.” 389 S.W.2d at 66.

The Court continued:

“In an adoption proceeding both the child and the

state are interested parties. 2 C.J.S. Adoption of Chil-

dren, Sec. 36, note 59 PP.; See State ex rel. Earnest

v. Meriwether, Mo., 270 S.W.2d 20, 22. And it is ob-

vious that the appointment of an attorney represent-

ing a party who seeks to terminate the child’s physical

and legal relationship with a parent is improper. The

person so appointed should be in a position to repre-

sent the best interests of the child and to fairly advise

25

the court. If he has an axe to grind in that he is

employed to represent the petitioner for adoption, he

should not be appointed. See Sargeant v. Rowsey,

89 Mo. 617, 1 S.W. 823, 824.” 389 S.W.2d at 66.

The United States Court of Appeals for the District of

Columbia, in Barnes v. Paanakker, 111 F.2d 193, 1940,

was, as in the instant case, faced with an attempted step-

father’s adoption contested by the natural father. In rec-

ognizing the gravity of the final judicial determination

Judge Vinson stated:

“When the adoption of a child is sought, a decision

ordering or denying the same affects the lives of the

child, his natural parent, and his prospective adoptive

parents. Rights of custody, control, and inheritance

are affected. To say that a decision ordering or deny-

ing an adoption is fraught with deep and serious social

significance is but to state the obvious. Despite its

significance, older adoption statutes provided few pro-

cedural safeguards for the interests of the child whose

adoption was sought.” 111 F.2d at 196.

The Court then went on to consider whether the adoptee’s

best interests were fully before the court. The Court

stated:

“Neither failure of counsel to raise the point on appeal,

nor the fact that no decree of adoption was entered,

relieves us of this responsibility, for decision on a

petition for adoption may properly be made by the

District Court only after it has brought the interests

of the adoptee fully before it.” 111 F.2d at 196.

The Court continued:

“For that full measure of representation and protection

envisaged by the act, one legally capable of represent-

ing their interests must appear in the proceedings.”

111 F.2d at 197.

26

The Court found that the natural father failed to ade-

quately protect the prospective adoptee’s interests. As

no one legally capable of representing the interests of

the prospective adoptees was before the court, the court

concluded:

“The interests of these adoptees were not, therefore,

brought fully before the court.” 111 F.2d at 198.

Therefore, the court of appeals reversed and remanded

to the trial court with instructions to appoint a guardian

ad litem for the prospective adoptees to bring their in-

terests fully before the Court.

In In Re: Adoption of Children, 96 N.J.Super. 415,

233 A.2d 188, 1967, supra, the Court, as in Barnes, supra,

faced another situation factually similar to the instant

case. The stepfather of two children, ages seven (7) and

three (3), sought to adopt and the natural father contested

the proceedings.

In exercising restraint in cutting off the natural link

between parent and child, the court noted:

“The right of a natural parent to its child must be

included with the bundle of rights associated with

marriage, establishing a home and rearing children;

as such, it should be viewed as ‘so rooted in the tradi-

tion and conscience of our people as to be ranked

as f idamental.’ Snyder v. Massachusetts, 291 U.S.

97, 1u5, 54 S.Ct. 330, 332, 78 L.Ed. 674, 677, 90 A.L.R.

575, 579, 1934, approvingly quoted in Griswold v. Com-

monwealth of Connecticut, 381 U.S. 479, 487, 85 S.Ct.

1678, 14 L.Ed.2d 510, 517 (1965) (Goldberg, J., con-

curring). Note also, id, 381 U.S. at pp. 495-496, 85 S.Ct.

at pp. 1687-1688, 14 L.Ed.2d at p. 522. The Fourteenth

Amendment’s concept of substantive due process pro-

tects the parent-child relationship from unwarranted

27

governmental intrusion. See Meyer v. State of

Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed.

1042, 1045 (1923); Pierce v. Society of the Sisters,

268 US. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070,

1078 (1925); Prince v. Commonwealth of Massachu-

setts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645,

652, rehearing denied 321 U.S. 804, 64 S.Ct. 784, 88

L.Ed. 1090 (1944); Lacher v. Venus, 177 Wis. 558,

188 N.W. 613, 617, 24 A.L.R. 403, 408-410 (S.Ct. 1922).

The amendment is also construed to protect the right

of a natural parent to procedural due process when

the custody or adoption of its child is being litigated.

See May v. Anderson, 345 U.S. 528, 533-534, 73 S.Ct.

840, 97 L.Ed. 1221, 1226-1227 (1953); Armstrong v.

Manzo, 380 U.S. 545, 550-551, 85 S.Ct. 1187, 14 L.Ed.2d

62, 66 (1965).”

In reversing and remanding the trial court’s final judg-

ment of adoption for its failure to clearly find that the

adoption was in the children’s best interests, the court

recognized the need for a guardian ad litem, citing Barnes,

supra, Barth, supra, and Wendland, supra.

Adoption of Lord, 28 A.D.2d 1203, 288 N.Y.Supp.2d

25 (App. Div. 1967), recognized the seriousness of matters

of evasion, withholding information from the court and

failure to disclose in an open and fair manner all material

facts in an adoption proceeding. The Court stated:

“In a proceeding of this type full and complete dis-

closure of all material facts is required.” 288 N.Y.

Supp.2d at 26.

In reversing and remanding, the court concluded:

. in all matters relating to the future adoption

proceedings, there should be a guardian ad litem ap-

pointed to protect the interests of the infant.” 288

N.Y.Supp.2d at 26.

28

Professor Coyne in his article, Who Will Speak For

the Child?, 383 Annals of the American Academy of Po-

litical and Social Science 34, 46-47, 1969, summarized the

matter well:

“Legal change typically lags far behind social change.

Our legal machinery in custody proceedings is not

functioning as it should. The innovation of the ju-

venile court was doubtless an improvement. It al-

lowed the law to treat children differently from adults.

Recognition was given to the vulnerability of youth.

But the broad grant of discretion to judges prevented

the proceedings from being truly adversary.

Although the law is aware that a child needs

his own special forum, the law has not as yet been

able to see that a child really is a person in custody

matters, that he has rights of his own, and that he

needs his own advocate.”

During the last two decades, great progress has been

made in the recognition, protection and equalization of

the rights of racial minorities and of women. Is it not

now time for the courts to recognize that the youngest

minority should receive equal treatment and protection

before the law, even before the age of majority?

CONCLUSION

For the foregoing reasons, we respectfully petition

this Court to issue its Writ of Certiorari to the Supreme

Court of Florida.

Respectfully submitted,

JAMES P. O’FLARITY

Pui.ip J. GouzeE of

Law OFFICES OF JAMES P. O’FLARITY

230 Royal Palm Way

Palm Beach, Florida 33480

Attorneys for Petitioner

Al

APPENDIX

IN THE

CIRCUIT COURT OF THE SEVENTEENTH

JUDICIAL CIRCUIT

IN AND FOR BROWARD COUNTY,

FLORIDA

NO. 73-2006 “J” Seay

IN RE: PETITION OF

CHARLES FREDERICK HARDY

Final Judgment of Adoption

This cause came on to be heard upon the verified

Petition for Adoption of CHARLES FREDERICK HARDY

and the consent of his wife, JANINE S. HARDY, the

natural mother of the minor children sought to be adopted

and the Court having heard testimony from the Petitioner

and his witnesses and having heard testimony from the

Respondent, GARY JAMES KNOSTMAN, the natural fa-

ther of the children sought to be adopted and having

heard argument of counsel for the Petitioner and being

otherwise duly advised the Court finds and decides as

follows:

1. That the testimony has clearly indicated that the

adoption would be in the best interests of the minor chil-

dren, STEPHANIE SNYDER KNOSTMAN and JACK AL-

LAN KNOSTMAN.

2. That the course of conduct of the Respondent,

GARY JAMES KNOSTMAN, has indicated his intent to

forego his parental duties as shown by his actions in failure

to provide support for the minor children sought to be

A2

adopted as well as his failing to exercise any visitation

privileges since August of 1971, and despite, the Respon-

dent’s verbally professing otherwise, his actions constitute

a disinterest in the minor children amounting to construc-

tive abandonment.

3. The Petitioner, CHARLES FREDERICK HARDY,

has shown to the Court that he is a fit and proper person

to adopt the minor children and that he enjoys a good

marital relationship with the natural mother of the minor

children, has provided a wholesome home and the Court

feels that the emotional, social and financial security that

the Petitioner has provided and will in the future provide

for the minor children is excellent and the best interests

of the children would be served by granting the Petition.

THEREFORE, it is

ORDERED AND ADJUDGED

A. That the minor child known as STEPHANIE

SNYDER KNOSTMAN and the minor child known as

JACK ALLAN KNOSTMAN are declared to be the legal

children of the Petitioner, CHARLES FREDERICK

HARDY.

B. That the child known as STEPHANIE SNYDER

KNOSTMAN is given the name of STEPHANIE SNYDER

HARDY, and the child known as JACK ALLAN KNOST-

MAN is given the name of JACK ALLAN HARDY, by

which names the minor children shall hereafter be known.

C. That the said children shall be the children and

legal heirs of the Petitioner, CHARLES FREDERICK

HARDY, entitled to all of the rights and privileges, and

subject to all obligations of children born to Petitioner,

CHARLES FREDERICK HARDY, in lawful wedlock.

A3

DONE AND ORDERED in Chambers Broward County

Courthouse, Fort Lauderdale, Florida, this 8 day of June,

1973.

Russell E. Seay, Jr.

Circuit Judge

copies furnished

JOHN E. AURELIUS

Attorney for Petitioner

1776 East Sunrise Boulevard

Fort Lauderdale, Florida 33304

GARY JAMES KNOSTMAN

5408 Pine

Bellaire, Texas 77401

A4

299 So.2d 172

PETITION OF CHARLES FREDERICK HARDY.

No. 73-811.

District Court of Appeal of Florida,

Fourth District.

Aug. 2, 1974.

Rehearing Denied Sept. 12, 1974.

Appeal from Circuit Court, Broward County; Russell

E. Seay, Jr., Judge.

PER CURIAM.

Affirmed.

312 So.2d 751

PETITION OF CHARLES FREDERICK HARDY.

No. 46337.

Supreme Court of Florida.

April 18, 1975.

Certiorari denied. 299 So.2d 172.

ADKINS, C. J., and ROBERTS, McCAIN, OVERTON

and ENGLAND, JJ., concur.