Schenck v. Knight/Dissent Byrd

Court Documents
Case Syllabus
Opinion of the Court
Dissenting Opinion

CONLEY BYRD, Justice, dissenting. Sometime ago I employed a contractor to do some clearing for me with a bulldozer. The hire of the machine together with an operator was approximately fifty cents per minute. During the clearing operation a mother hen, of the bantam variety, attacked the bulldozer with such ferociousness that it attracted not only my attention but that of my dogs and a horse in the vicinity. I still remember how my heart leaped with joy when the operator, with a kindly smile, stopped the dozer for three or four minutes to let the hen remove her day-old brood from the path of the dozer. It was such a graphic demonstration of the unselfish devotion of motherhood to its offspring that it reminded me of the incident before King Solomon where the real mother quickly consented that her child be given to an impostor rather than have it split between the mother and the other claimant of the child. I'm sure that my brethren in the majority have all had as many graphic demonstrations as I of the response of motherhood and that in reaching their conclusions they have done as much soul searching in arriving at their conclusions. Having heard their discussions in this matter, I must admit that there is some practicality to their approach. I probably would have acquiesced in their considered judgment had the majority opinion given visitation rights to Donna Marie.

However, in my conscience, the Child Welfare Department's protestations of benevolence and goodness cause me to wake up at night. I keep thinking to myself that if a thief had secretly taken Donna Marie's baby from the hospital without her knowledge, every lawman, judge and householder in this state would have looked far and wide for Donna Marie's baby, and, when it was found, each and every citizen would have expected and wanted the baby to be returned to Donna Marie. Yet, when the Child Welfare Department, an arm of the State of Arkansas, without notice or due process obtains a spurious probate order and just as silently takes Donna Marie's baby, we as judges, instead of seeing that Donna Marie's baby is returned to her, stop to see if Donna Marie is a fit and proper mother and whether she can properly care for the child. It may be that Donna Marie appears too immature to properly care for her baby, but the record amply illustrates that she has that something which, despite her poverty and immaturity, has pulled together some friends and a capable lawyer to give their time to try to help her get her baby that was silently taken from her by a prestigious agency bespeaking goodness and benevolence. In making this appraisal I hope that I'm not overlooking the practical effects of life for the sympathy that I find in my heart and conscience.

One other reason impels me to register a dissent to the procedures here approved—i.e., there will just as surely be other Donna Maries but now the Child Welfare Department will have one more lever to coerce the next Donna Marie to sign a "consent to adoption." The Department can now authoritatively point to this decision and tell all future Donna Maries that they may as well sign the "consent to adoption" because if they don't, the Department can take the baby anyway.

Perhaps I am too sympathetic toward motherhood, however, as between the mother and one who takes her baby away without her consent and without notice it appears that some law of nature ought to favor the mother and discourage those who unlawfully take a baby whether the latter be a common thief or a prestigious state agency—at least until such time as the mother has had an opportunity to demonstrate her fitness or unfitness.

For the reasons herein stated, I respectfully dissent.