Opinion
No. 41523.
September 26, 1960.
1. Guardian and ward — Chancery Court in passing on accounting by father-guardian, who was otherwise qualified, had no power to control minor sons' education and religious training.
Chancery Court, in passing on accounting by father-guardian, who was not shown to be unfit to have custody of sons, had no power to direct that sons should be left in public school or be permitted to attend church of their own choice.
2. Parent and child — parental right of control — education — religious training.
Unless a parent has forfeited the right by misconduct or unfitness, he has right to control education and religious training of child.
3. Parent and child — presumption that natural parents will make the best decisions for their offspring.
The presumption is that natural parents will make the best decisions for their offspring.
4. Parents and child — parental right of control — religious education.
Parents have right, under common law and the state and federal constitutions, to control religious education of their children. Amend. XIV, U.S. Constitution; Sec. 14, Constitution 1890; Sec. 399, Code 1942.
5. Parent and child — parental right of control — religious views.
Religious views afford no ground for depriving a parent, who is otherwise qualified, of custody and control of children.
6. Guardian and ward — Chancery Court in guardianship proceedings could make no decree as to training of children in absence of pleadings raising such an issue.
Chancery Court in proceeding on guardian-father's account could make no decree as to training of children in absence of pleadings raising such an issue.
7. Guardian and ward — Chancery Court in guardianship proceedings not vested with right to invade parental prerogatives.
That father was appointed guardian of persons, as well as estates, of his children did not vest Chancery Court with right to invade parental prerogatives with respect to education and religious training of children.
8. Injunction — infants — process — decree could not be applied to minors where no process was served on them.
Decree which was entered in proceeding on father-guardian's account but which related to education and religious training of minor children and which enjoined all parties from its violation could not be applied to minors where no process was served on them.
9. Infants — process — minor children could not waive service of process.
Minor children could not waive service of process in proceeding in which their education and religious training were involved.
10. Parent and child — parental duties to children.
Parents have three principal duties to their children: to protect; to educate; and to maintain them.
11. Parent and children — parental duty to educate.
A parent's duty to educate his children comprehends intellectual and moral training.
Headnotes as approved by Ethridge, J.
APPEAL from the Chancery Court of Pike County; F.D. HEWITT, Chancellor.
Phillips Wiltshire, Magnolia, for appellant.
I. The right of a natural father to control and supervise the education of his child cannot be interfered with by anyone, including the Chancery Court, if such interference is based solely upon minority or guardianship of the minor. Bertels v. Iowa, 262 U.S. 404, 67 L.Ed. 1047, 43 S.Ct. 628; Bryant v. Brown, 151 Miss. 398, 118 So. 184, 60 A.L.R. 1325; Eggleston v. Landrum, 210 Miss. 645, 50 So.2d 364; Hendrix v. Hendrix, 226 Miss. 110, 83 So.2d 805; Hibbette v. Baines, 78 Miss. 695, 29 So. 80, 51 L.R.A. 839; Meyer v. Nebraska, 262 U.S. 390, 67 L.Ed. 1042, 43 S.Ct. 625, 29 A.L.R. 1446; Nickle v. Burnett, 122 Miss. 56, 84 So. 138; Pierce v. Society of Sisters, 268 U.S. 510, 69 L.Ed. 1070, 45 S.Ct. 571, 39 A.L.R. 468; Singuefield v. Valentine, 159 Miss. 144, 132 So. 81, 76 A.L.R. 238; 267 U.S. 400; Annos. 22 A.L.R. 2d 698, 66 A.L.R. 2d 1910; 39 Am. Jur., Parent and Child, p. 660.
II. The right of the natural father to control and supervise the religious education of his child and rear the child in the faith of the father, cannot be interfered with by anyone, including the Chancery Court, if such interference is based solely on minority or guardianship of the minor. Denton v. James, 107 Kan. 729, 193 P. 307, 12 A.L.R. 1146; Knowlton v. Baumhover, 182 Iowa 691, 116 N.W. 202, 5 A.L.R. 841; Lessard v. Great Falls Woolen Co. (N.H.), 145 A. 782, 63 A.L.R. 1142; Sisson v. Sisson, 271 N.Y. 285, 2 N.E.2d 660; Anno. 22 A.L.R. 2d 696; 39 Am. Jur. 611, 684.
III. In order that the Chancery Court decree matters affecting the education, religious training and religious faith of minor children, it must be properly before the Court by pleadings, by jurisdiction of the parties, by summons of the parents, and by testimony. Singuefield v. Valentine, 159 Miss. 144, 132 So. 81, 76 A.L.R. 238; 21 C.J.S. 42.
IV. The guardian of the estate of a minor is distinct from a general guardian, or a guardian over the person and does not have control and custody of the person of the minor, and therefore the Chancery Court through such a guardianship cannot dictate directly to the minor in the field of education and religious matters. McDowell v. Bonner, 62 Miss. 278; McKinnon v. First Nat. Bank (Fla.), 82 So. 748, 6 A.L.R. 111; Secs. 399, 401, Code 1942; Anno. 6 A.L.R. 115; 39 Am. Jur. 614.
J. Gordon Roach, McComb, amicus curiae.
I. Where there was no evidence taken down in the trial and no records thereof from the trial court, the record made in the lower court must prevail. Barber v. Sintes (Miss.), 28 So. 722; Carr v. Miller, 162 Miss. 760, 139 So. 851; Coglan v. Coglan, 196 Miss. 492, 18 So.2d 149; Favre v. Louisville N.R. Co., 180 Miss. 843, 178 So. 327; Gandy v. Kirkland, 224 Miss. 508, 80 So.2d 767; Harvey v. Dunaway Bros. (Miss.), 98 So.2d 143; Heards' Guardianship, 174 Miss. 37, 163 So. 685; I.B. Rowell Co. v. Sandifer, 129 Miss. 167, 91 So. 899; Jackson Opera House Co. v. Cox, 188 Miss. 237, 191 So. 665, 192 So. 293; Tate v. Colvard, 174 Miss. 624, 165 So. 433; Wilson v. Wilson, 215 Miss. 273, 60 So.2d 652; Secs. 634, 635, Code 1942.
II. The Chancery Courts of our state have jurisdiction and supervision over all minors' business, their welfare and their best interests. Elgin Nat. Watch Co. v. Illinois Watch Case Co., 179 U.S. 665, 45 L.Ed. 365, 21 S.Ct. 270; Hopkins v. Southern California Tel. Co., 275 U.S. 393, 72 L.Ed. 329, 48 S.Ct. 180; Lee v. Bickell, 292 U.S. 415, 78 L.Ed. 1337, 54 S.Ct. 727; Maskew v. Clark, 127 Miss. 160, 89 So. 909; Sessions v. Kell, 30 Miss. 458; Sheeby v. Sheeby, 88 N.H. 223, 186 A. 1, 107 A.L.R. 635; Secs. 404, 2743, Code 1942; Chap. 268, Laws 1960; 14 Am. Jur. 50; 27 Am. Jur., Sec. 101 pp. 822, 823.
III. Appellant was not denied due process of law. Ex parte White (Ala.), 16 So.2d 500; James v. James (Fla.), 64 So.2d 534.
IV. The lower court did not divest the appellant father of any vested legal rights concerning the wards' religion. Board of Education v. Minor, 23 Ohio St. 211, 13 Am. Rep. 233; Cline v. State, 9 Okla. Cr. 40, 130 P. 510, 45 L.R.A. (N.S.) 108; Knowlton v. Baumhover, 182 Iowa 691, 166 N.W. 202, 5 A.L.R. 841; Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244; State v. Bott, 31 La. Ann. 663, 33 Am. Rep. 224; State v. Mockus, 120 Maine 84, 113 A. 39, 14 A.L.R. 871; Vanhorne v. Darrance (Pa.), 2 Dall. 304, 1 L.Ed. 391, Fed. Cas. No. 16857.
This case raises issues pertaining to the parental right to control the education and religious training of minor children. We hold that here the chancery court, an agency of the State, acted beyond its powers in directing and restricting the father in his right to control their intellectual and religious education, where he was a fit person for their custody.
Appellant, N.M. Faust, is the father of Boyd Quin Faust and Nickolas L. Faust, who, at the time of the decree appealed from, were 15 and 14 years of age, respectively. Their mother died in 1953, and appellant was appointed guardian over their persons and estates, principally for the purpose of managing some real property owned by the boys.
In 1959 appellant, as guardian, filed his second accounting, which was approved by the Chancery Court of Pike County. No appeal is taken from that part of the decree approving the account. However, it contains other adjudications with which this appeal is concerned. They arose in this way: No process was served upon the minors, but the chancellor had appellant bring them before the court. No testimony was taken. The chancellor stated that the boys were in the ninth and tenth grades of the McComb High School, and he wanted them "to know what their rights were in open court." He told appellant he wanted them kept in the McComb High School, and stated that, since they had joined a church in McComb, they had the right to worship God as they desired and attend the church of their choice. The chancellor said that, although appellant could file a petition and obtain a hearing, he wanted these boys to attend the McComb High School, and to attend the church of their choice. Hence, the decree, in addition to approving the accounting, contained these provisions:
"It is further ordered, adjudged and decreed that Boyd Quin Faust, age 15 and Nickolas Lea Faust, age 13, attend the Public Schools of McComb, Mississippi, beginning with the 1959-1960 School Term, and continuing until the completion of High School. It is further ordered, adjudged and decreed that it would be to the best interest of said minors to attend the church of their own choosing and to have the right to worship God according to the dictates of their own conscience.
* * * *
"It is further ordered, adjudged and decreed that the Guardian and all other parties be enjoined from doing any acts contrary to this decree."
The briefs of counsel contain statements with reference to the religious affiliations and history of both parents and of the minors, before and after the mother's death, but none of this information is in the record, and we of course do not consider it.
In short, this appeal presents a case where there is no showing that the father of these two boys, appellant, is unfit to have their custody or has forfeited any right to it. On the contrary, the decree approving the second accounting in substance again recognizes the father's suitability for their custody, and negatives any assertion that he has forfeited that parental right. Nevertheless, the decree, without any evidence to support the adjudication, tells the father of these children, whose mother is deceased, that he must send them to a particular public school, until they have completed high school, and forbids him, in effect, from supervising their religious education. And it enjoins appellant "and all other parties . . . from doing any acts contrary to this decree."
(Hn 1) It is manifest that the decree in these respects and under this record is wholly beyond the powers of the chancery court. (Hn 2) Unless a parent has forfeited the right by misconduct or unfitness, he or she has the right to control the education and religious training of the child. The Federal and State constitutional guaranties of liberty include not only the right to establish a home and bring up children, "but also the right of the parent to educate his children in such manner as he deems best to secure their happiness and welfare, so long as such training or education does not result in, or tend to develop, tendencies or traits dangerous to society." 39 Am. Jur., Parent and Child, Sec. 49.
The kind and extent of education, moral and intellectual, to be given to a child and the mode of furnishing it are left largely to the discretion of the parents. Certainly judicial machinery is inadequate to the task of educating children, and should not interfere with a parent's right in this regard except to correct abuses or protect the minor. 39 Am. Jur., Parent and Child, Sec. 49; Bryant v. Brown, 151 Miss. 398, 414, 118 So. 184, 60 A.L.R. 1325 (1928); Nickle v. Burnett, 122 Miss. 56, 84 So. 138 (1920); Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81, 76 A.L.R. 238 (1931). (Hn 3) Unless shown to the contrary, the presumption is that natural parents will make the best decisions for their offspring. Hendrix v. Hendrix, 226 Miss. 110, 83 So.2d 805 (1955).
(Hn 4) Moreover, the right of parents to control the education of their children extends to religious education. Generally speaking, and apart from teachings subversive of morality and decency, the courts have no authority over that part of a child's training which consists in religious discipline. 39 Am. Jur., Parent and Child, Sec. 50; Friedman, The Parental Right to Control the Religious Education of a Child, 29 Harv. L. Rev. 485 (1916); Madden, Domestic Relations (1931), p. 394; 1 Schouler, Marriage, Divorce, Separation and Domestic Relations (6th Ed. 1921), Secs. 772-776; Cf. Anno., 66 A.L.R. 2d 1410-1422-1425 (1959).
As illustrated above, this important parental right is protected by common-law principles. It is also a right protected by the due process clauses of the Federal and State Constitutions. U.S. Const., 14th Amendment; Miss. Const. 1890, Sec. 14; 11 Am. Jur., Constitutional Law, Sec. 329. The right is substantially codified in a Mississippi statute. Miss. Code 1942, Recompiled, Sec. 399.
(Hn 5) In summary, the courts have no authority over that part of a child's training which consists of education and religious discipline. Religious views afford no ground for depriving a parent, who is otherwise qualified, of custody and control. See also Denton v. James, 107 Kan. 729, 193 P. 307, 12 A.L.R. 1146 (1920). Hence the quoted parts of the decree of the chancery court were not proper, and our judgment will amend the decree by striking them from it.
(Hn 6) Although this decision is based upon the above-stated grounds, it should be noted also that the decree as to the training of the minors was not correct, because there were no pleadings raising any such issues. (Hn 7) The mere fact that appellant was appointed guardian of the persons, as well as estates, of his children did not vest the chancery court with the right to invade parental prerogatives. (Hn 8) Moreover, the decree which enjoined all parties from its violation could not be applicable to the minors anyway, because no process was served on them, (Hn 9) and they could not waive it. Carter v. Graves, 230 Miss. 463, 93 So.2d 177, 180 (1957); Monk v. State, 116 So.2d 810 (Miss. 1960).
(Hn 10) Parents have three principal duties to their children: first, to protect; second, to educate; and third, to maintain them. (Hn 11) The duty to educate comprehends intellectual and moral training. We recently held that, where a minor child is qualified for a college education and the father is financially able, it is the father's duty to provide it. Pass v. Pass, 118 So.2d 769 (Miss. 1960). It would be anomalous indeed to place these duties upon a parent, but then deprive him of the right to control his child's educational and religious training.
The family is the basis of our society. Appellant, the only surviving parent of these two boys, has an interest in their education which lies on a different plane than that of mere property. Moreover, a child has no higher welfare than to be reared by a parent who loves him and who has not forfeited the right of custody. The agencies of our democratic government are obligated to preserve that right, which is not recognized in a totalitarian society.
For the foregoing reasons, the decree of the chancery court is reversed in all respects except as to the approval of the second accounting, and is affirmed as to the latter.
Reversed in part, and affirmed in part.
Hall, P.J., and Holmes, Gillespie and McElroy, JJ., concur.