{dissenting). I make bold to say that, on review here of habeas corpus proceedings instituted for the purpose of determining custody of children of tender years,* our first, act should be that of self-appointment of this Court as a sort of temporary guardian of the rights and interests of the diminutive and tragically interested party or parties for whom — as a rule and as here — no counsel appears. In this case the natural parents (formerly of Arkansas, late of Michigan, and now of Kansas) vie with the would-be adoptive and 6-year-continu-ous foster parents for immediate as well as final custody of 2 little children. In the shadowed valley between these grimly contentious forces walk the innocent and utterly defenseless sister and brother known in this record as Sally Ann and Doyle Almo Fritts. We may well liken their position to that of Hansel and Gretel in the forest. No guardian or counsel stood by their side in the courts below. None speaks to us now in their separate hehalf. Send well to this Court, in all good time, the courage and the wisdom with which to confess the error of today’s myopic majority, thus to attend the welfare and legal rights of the two. And grant that, before the inevitably ultimate right of this case comes to final if belated judgment, Sally and Doyle Fritts are still within reach of orderly process to be issued by the *135Berrien county probate court in accordance with such final judgment.
I fully agree with the reasoning of Mr. Justice Smith and join him in concluding that these writs of habeas corpus should be dismissed. There is more to be said, however, lest as the impending legal storm rages, as it surely will over today’s wholly indefensible decision of a bare foursome sitting here, these youngsters are spirited beyond our borders and beyond effective recall of that order of recant (however mincing and equivocal it may be) we are sure to enter when the impact of majority decision becomes known in Michigan probate courts and is fully realized in our conference room. This Court and our people will never be able to live with the incredible and blindly posted doctrines the undersigned do now reject, and the only question is one of time; time when 4 of our Brothers perceive — and act to correct — their grievous folly.
Cardozo tells us that judges “march at times to pitiless conclusions under the prod of a remorseless logic which is supposed to leave them no alternative that they “deplore the sacrificial rite” and perform it with averted gaze, “convinced as they plunge the knife that they obey the bidding of their office.” (The Growth Of The Law, p 66.) My Brothers surely march thus here, not fully realizing what they do. Would that the Constitution required each member of this Court to personally witness the heartsickening scene of execution of today’s majority sentence; that of tearing 2 fear-stricken little ones from the only homes of love and care they know or remember. We might in such case recall these writs on the spot, leaving a jury to determine that which óf right should be settled in Berrien county’s circuit court juryroom. ....
Aside from the impact of today’s sentence on these children, what is it that appalls us (we who have studied the partial record on which today’s majority *136has written pins the remaining record onr minority has seen fit, since submission of the case, to bring here from the Berrien county clerk’s office) 1 It is this precise and decidedly aberrant determination of the majority:
That a Michigan court of record concededly may have jurisdiction of the parties and subject matter brought before it in an entirely proper statutory proceeding (noncriminal in nature*) and yet, before the day of hearing is over and for want of what to our majority is a sufficient record of supporting proof, lose jurisdiction to proceed to judgment (the judgment whether tainted with error or otherwise being quite within scope and range of the statute under which court and parties have assumed to proceed) and, at the same time and by force of the same allegedly deficient record, lose jurisdiction over the subject matter (in this case the protection and welfare of infants who, in their own unrepresented right, are entitled to continued exercise of that jurisdiction to the point of final judgment or attainment by them of age 17).
Today’s error will spread its inescapable contagion beyond the confines of Berrien county to the outermost boundaries of Michigan. Until we proceed to inexorable self-correction, a menacing cloud of jurisdictional doubt will have been cast upon every order hitherto issued, in juvenile division of probate (bn strength of which supposedly final and happily concluded adoption proceedings may depend), where the record discloses a paucity of proof, or a dissatisfactory record of proof, or an absence of “real evidence of long-time neglect,” supporting such order. And this our majority proceeds to do in the face of an ignored section of the statute declaring that the *137hearing in question may he informal; that “stenographic notes or other transcript” need be taken or made only when requested by counsel or ordered by the court, and that “the general public may be excluded” from such hearing (section 17 of said chapter 12 A).* Ah, yes, we must find a way to unfetter-this habeas corpus proceeding from the hard-to-get-around and already firmly seated jurisdiction of the juvenile division over these children. The only way is the way of necessity, and we shall pursue it to sentence of the children even though necessity knows no law. Thus,
“Man, proud man,
-Drest in a little brief authority,
;Most ignorant of what he’s most assured * * *
Plays such fantastic tricks before high heaven As makes the angels weep.”
(Isabella’s denunciation of the sentencing judge in 'Measure For Measure, act 2, sc 2, lines 117-122.)
This case, will be known in future years as Michigan’s judicial wosbird of 1958 — the occasion when 4 members of the Supreme Court of Michigan sentenced 2 sinless little children to a strange and portentously darkened life in a faraway State without ipretense of providing them with thé fundamental •rights — to counsel and jury trial — we guarantee to the meanest of our adult citizens. Withal, the professed concern of my Brothers, for the welfare of the innocents they now condemn, is positively chilling. I turn to the record facts, including those — brought here since submission of the case — my Brothers would ignore.
Sally Ann Fritts was born at Little Bock, Arkansas, December 19,1949. Doyle Almo Fritts was born *138at Watervliet (in Berrien county), December 17, 1950. In July of 1952 — this my Brothers in majority concede — the Berrien county probate court, sitting in juvenile division, became vested with statutory jurisdiction over Sally and Doyle on account of the outright tragedy of the father’s neglect and desertion and the repeatedly presented plea of the mother that they receive care from the court she could not give, followed by the statutory steps my Brothers have related. They — the mother and children — had no food and the children needed milk. The little boy, then less than 2 years-old, was suffering from impetigo and was in need of immediate medical care. The distraught mother declared to the juvenile division that-she was unable to care for them and that she wanted “to put the children in an adoptive home where they will be well cared for.” On the third occasion, when she sought aid in the probate office, the mother left the children there, the latter crying their forlorn grief, saying “Well, I’m leaving them anyway.” This, to the undersigned, amounted to utter abandonment of forsaken waifs, yet it suggests no criticism of a desperate mother. She had little alternative and was quite destitute. The father— petitioner here for release of our gracious writs of habeas corpus — had deserted the whole family and had gone back to his original home at Bald Knob, Arkansas.
So the juvenile division proceeded to statutory hearing and entry of the orders my Brothers pronounce jurisdictionally defective. Such orders were entered under date of August 4,1952.* In form they *139duplicate the juvenile division order considered in In re Snyder, 328 Mich 277, which order was reversed on appeal to circuit, and confirmed as against such reversal on appeal to this Court, with no question raised by anyone — including any member of this Court — as to jurisdiction of the juvenile division to enter such “permanent” order.
The record of Mrs. Fritts’ troubles, since she rejoined her husband at Wichita, Kansas, is replete with more evidence upon which a constituted trier or triers of fact (distinguished from a court hearing jurisdictional questions in a habeas corpus proceeding) might well conclude that a return of custody to these parents is not yet in order.* On January 14, 1955, Mrs. Fritts filed her petition for divorce against Mr. Fritts in the district court of Sedgwick county, Kansas, alleging parentage of Sally Ann, Doyle Almo and Jimmy Dale (born since the probate hearing of 1952); alleging neglect of duty and cruelty on the part of Mr. Fritts, and alleging that her husband “should be restrained and enjoined from molesting or annoying the plaintiff at any time.” The district court thereupon issued its order restraining Mr. Fritts from molesting or annoying Mrs. Fritts, as in her bill prayed, and ordered him to pay a biweekly amount for “temporary child support and alimony” plus attorney fees. On June 24, 1955, Mrs. Fritts filed an amended petition, alleging birth of a fourth child (Ronald Leslie) and alleging further as follows:
“That on January 14,1955, plaintiff filed a petition for divorce against the defendant; that after defendant promised the plaintiff that he would discontinue his acts which constituted extreme mental cruelty *140and gross neglect of duty, plaintiff, relying upon these promises, took him hack and they again lived together as man and wife.”
In her amended petition Mrs. Fritts went on to allege:
“That plaintiff, since taking her husband back has performed each and every duty devolving upon her as the wife of the defendant but he, disregarding his duties, marriage vows and promises, has been guilty of gross neglect of duty and extreme mental cruelty toward the plaintiff.”
This record of continued marital discord, save only as testified later in relation to what obviously was a shaky reconciliation of the parents (see opinion of Mr.- Justice Edwards on this), is the only information this appellate Court has before it, in this year 1958, on strength of which we are asked to approve transfer of child custody — by habeas corpus thwarting direct and pending appeal — from excellent homes and foster parents within our jurisdiction to a troubled home beyond reach of our process. Convinced that the proper forum for enlightened and legally rightful determination of such critical issue has not as yet been utilized and that it stands open to all interested parties (in the Berrien county circuit court), I will have no part in any such abuse and misuse of our constitutional writ.
First: The question of jurisdictional validity of the probate court orders of August 4, 1952.
Mr. Justice Smith has considered this question at length. Fully agreeing with his views, I am moved to add this: So long as jurisdiction to enter a “supplemental order of disposition” continues (and such jurisdiction of the juvenile division remains intact to this day, so far as concerns Sally and Doyle Fritts, regardless of .validity of the orders of August 4th), no order — entered in juvenile division — may proper*141ly be termed as “severing all parental rights” (the quoted expression is that of Mr. Justice Edwards).* This I think was made plain, even to the legally unskilled, by the grant of continuing jurisdiction to issue supplemental orders “at any time while said child is under the jurisdiction of said court,” which grant the reader will find in dovetailed seriation as shown by sections 19, 20, 21 and 24 of said chapter 12A. Indeed, the very section my Brothers in majority rely upon echoes this necessary — when we consider the rather manifest need for continuity of jurisdiction in such cases — declaration of legislative intent. That section (section 20) concludes: “If the child is placed in the permanent custody of the court, all parental rights are terminated though such rights may be reinstated by a supplemental order of disposition” Perforce, there is no finality of any order when the order itself, by command of a self-incorporating statute, is made subject to the .retained and continuing power of the court to “affirm, modify, or set aside” any and all such orders. Witness the complementing and cooperative provisions ■ of sections 20 and 21 of the statute. The fate of a child in our courts is not — or at least should not be — a life or death single shot at the apple on the youngster’s head like, say, the one opportunity of driving home a mechanic’s lien. The statute, referring to said chapter 12A, says just that. So does even a soupcon of common sense.
Even an unanimous determination of this Court, of jurisdictional invalidity of the 2 orders of August 4th, would in no manner support these misguided *142writs of habeas corpus. The juvenile division admittedly was possessed of jurisdiction over Sally and Doyle when the hearing of August 4th commenced. If its orders of that day were void for any reason— and this I vigorously dispute — the conceded, jurisdiction over Sally and Doyle Fritts remained steadfast and became an appropriate subject of a new proceeding under the statute or continuation of the one rightfully commenced. Is this not clear? Well, these parents recognized and proceeded on strength of the conclusion just voiced when they filed (August 18, 1955) their statutory petition for restoration of custody and appealed to circuit from denial thereof.
This brings us to the discovered record fact of filing in probate of said petition of August 18th: denial thereof in probate; due appeal to circuit (by the parents) from denial thereof; motion in circuit (by Mr. and Mrs. Krugh and Mr. and Mrs. Graham) to dismiss appeal on ground that the orders of August 4, 1952, constituted an adjudication in bar of hearing and determination of the petition of August 18th; due submission of said motion to dismiss appeal; filing of the circuit judge’s opinion in which he held that the motion to dismiss should he denied, and entry of order in circuit “That the aforesaid petition (of August 18th) be tried on its merits de novo* The circuit judge’s opinion denying such motion to.dismiss is both enlightening and sound. I concur fully with his conclusion. He ruled (quoting from his unvacated and unchallenged opinion filed March 15, 1956):
*143■ “The question of whether or not the prohate court had jurisdiction, or whether any of its orders as actually entered were res judicata of that question, or of any issue as to the contents and effect of such orders, becomes immaterial as applied to the situation existing now, or at least at the time of the filing of the petition denied in probate court which is the basis of this appeal.
“The petition appears to raise the question of the current status of these children in fact and in law. It should be heard on its merits de novo so that this court may determine the status of the children, and if then required, based on the petition as filed determine the issue of custody thereby raised.
. “The motion to dismiss the appeal is denied without costs, and petitioners may prepare an order for signature accordingly.”*
All in all it is something more than remarkable to find an appeal pending in circuit, from denial of a statutory petition for supplemental order of disposition, held in abeyance by one judicial hand as the other proceeds by habeas corpus in the same court to question and deny the jurisdiction of the court from which such appeal has been taken. And such is the more unseemly when the same court has just certified, as against the asserted jurisdictional question, *144that the pending appeal should proceed to trial for the purpose of determining the statutory and real issue all parties, including the involved children, are entitled to have settled. That issue now is whether Mr. and Mrs. Fritts, on 1958 (not 1956) proofs to be taken, are- entitled by said petition (for restoration of custody) to a “supplemental order of disposition” in their favor.
Second: Should habeas corpus be interposed, and substituted for, the pending appeal from probate court?
The case must be a rarity where any court has permitted parties to utilize habeas corpus as a means to move aside, and thus impede or supersede, regular and pending litigation in -which the same issue — presented in the petition for habeas corpus — is due for settlement or overriding adjudication. Our rule, consonant with unanimous authority, is that habeas corpus cannot be substituted for appeal or error. We apply the rule — must apply it — in at least a score of cases each year when petitions for habeas corpus are brought before us to review appealed or appeal-able jail or prison sentences. Most surely, and in every case save this singular one involving these Berrien county children, we shall continue to apply it when it is shown that an appeal aimed at the relevant point of adjudication is pending and wailing trial.
In the recent and duplicating case of Harmsen v. Fizzell, 351 Mich 86, 106, Mr. Justice Edwards, supported by this writer and 2 other members of the Court, found occasion to consider the general rule to which I refer. After having treated “technical legal problems” brought here in Harmsen to test jurisdiction of the same juvenile division, our Brother went on to say:
*145“More needs, however, to he said, for this case does not involve a criminal proceeding where the right of a person to freedom from restraint is at issue. What is sought here is the use of the writ of. habeas corpus as a substitute for statutory appeal to review long past orders of the probate court or to gain a hearing de novo on the issues purportedly adjudicated therein.”
I rise to remark that Harmsen was a proceeding in habeás corpus, wherein 4 present members of our Court headed by Justice Edwards wrote to sustain Berrien county probate (juvenile division) jurisdiction — as against habeas corpus in Berrien circuit— on this sound premise (p 109): “Children are not chattels to which legal title may properly be determined by á technical writ.” Yet here our Brother writes to yield juvenile division jurisdiction over— as well as jurisdictional title to — these children, and to do so by issuance of “technical writs.” And this he does after having just extolled the superior virtues and advantages of the juvenile division, with its “special jurisdiction, special powers of disposition, and specialized staffing as to children’s problems in dependency and delinquency cases.”' (Sovereign v. Sovereign, 354 Mich 65, 95, handed down this day). Quid est? Or is there something “special” about the jurisdiction of the Berrien juvenile division which requires that its advantages be applied to Ruth and David Harmsen but not to the equally needful Sally and Doyle Fritts?
Third: The immediate welfare of these children.
Aside from the above we come to the always-controlling question of present welfare of these children. If, as this Court rightfully declares with reiterant monotony in child custody eases, our prime goal is the greatest good we can do by the child, then Sally and Doyle Fritts should remain in these foster homes pending orderly trial, preferably by jury, of the stat*146utory issue their parents have voluntarily submitted to the juvenile division and brought to the circuit court by appeal. We need not dwell upon the parlous and uncertain life into which these infants — judging from this not-up-to-date record — will be thrust should they be sent by these writs to Kansas. We need not describe the praiseworthy environment of Sally’s life since she was enabled — just 6 years ago— to enter and become part of the home of Mr. and Mrs. Graham. Neither must we write details of corresponding and quite undisputed facts disclosing that little Doyle mercifully knows and remembers only the home and care Mr. and Mrs. Krugh have bestowed on him since he was 20 months old. Probably, in all history of this Court, no better record of proper, loving and continuous care of little ones, by foster parents desiring their adoption, has been laid before us. Without assuming to decide the ultimate and properly triable issue- — -whether the natural parents are entitled to restoration of custody by a supplemental or new order, — our present course on these facts is accurately charted. The children should stay where they are until the mentioned issue is tried to verdict and judgment.
There is a special and separate reason for the determination I espouse. These children are now — and have been for 6 years— subject to the jurisdiction of the Berrien county probate court, juvenile division. Should they be sent away, by these writs to a distant State, effective jurisdiction will have been lost to Michigan and cast upon Kansas. And in Kansas there may be no Krughs or Grahams available to take over when and if the next — from past experience — abandonment of Sally and Doyle takes place.
Becognizing, as I do, judicial authority to send infants beyond our borders and beyond judicial recall (Lewis v. Lewis, 338 Mich 197, 200), we should in this .case announce the important qualification *147other courts in their wisdom have seen fit to plainly record. As was said in the annotated case of Pugh v. Pugh, 133 W Va 501, 509 (56 SE2d 901, 905, 15 ALR2d 424, 430):
“When the award of custody of an infant to a resident of another State, or the removal of the infant to another jurisdiction, will not serve, or is detrimental to, the welfare of the child, such award or such removal will not he permitted (citing numerous authorities). The power of the circuit court to award the custody of the child to the petitioner, who is not a resident of this State, and to permit her to remove the child from its jurisdiction and to the. State of California, is clear beyond question. It should not exercise that power, however, unless the award of custody to a person who is not a resident of this State and the permission to take the child out of this State promote the welfare of the child.”
The subject will be found thoroughly briefed in the above-cited annotation, starting on page 432, under the heading “Nonresidence as affecting one’s right to custody of child.” The entire annotation (15 ALR2d 432) may be summarized as a boresightedly accurate declaration of power and duty to release a child from the jurisdiction — to that of another State — when and only when it is found that the welfare of the child will best be promoted by an order for such release. Here there is no such finding, below or in our majority opinion, and none could be fashioned from this complete record without resort to transparent distortion.* In these circumstances (and entirely apart from other considerations pre*148sented in this opinion) I would resolve the doubt— there is none in my mind- — in favor of present retention, of Berrien county’s statutory probate jurisdiction, by and through dismissal of these writs. As was said in Butler v. Perry, 210 Md 332, 342 (123 A2d, 453, 458) :
“We do not suggest for an instant that if the best interests of a child required it that the child should not be sent out of the State. * * * We merely say that in a close case, such as the case before us, one consideration is that the court may exercise much more effective control when custody is kept in the State.”
The supreme court of Minnesota had recent occasion to consider the application of a mother, made under circumstances much like those shown here, for custody of her young son and for leave to take him from Minnesota to her place of residence in Ohio (State, ex rel. Jaroszewski, v. Prestidge, 249 Minn 80 [81 NW2d 705]). The court’s reasoning to denial of that application is, in my view, decisively good for the case at bar. The court said (p 90):
“It is always difficult for a court to decide that a natural mother shall be deprived of the custody of her child. However, under the facts and circumstances here, we feel that it will not be for the best interests of the child at his tender age to take him away from the home and environment, church and school connection, which he has known up to now, and place him in the custody of respondent.
“The record shows that he has been raised and cared for by appellants since he was a few months old; that they still desire to have him live with them ; and that the boy seems happy and contented with his present home and environment. We believe that a Serious emotional upset could result if a transfer of custody were made at this time. One of the considerations in our decisionis the fact that there has been *149no satisfactory showing of a stable home or proper environment if custody were given to the respondent, nor has there been any convincing showing that her type of work and life have changed sufficiently so that the child should now be placed in her custody.”
Summary
This case — one of review and approval of issuance of “technical writs” divesting the juvenile division of jurisdiction over 2 children whose right to exercise of such jurisdiction stands unquestioned by word or reason — goes, into our reports crying in vain for answer, by our quadriad majority, of 2 stark questions: Was the juvenile division possessed of no jurisdiction, under said chapter 12A, to hear and determine the yet pending and ready-to-be-tried statutory petition by the natural parents for restoration of custody? When and by what act or reasoning has the juvenile division lost its acquired jurisdiction over Sally and Doyle Fritts; the jurisdiction which eoneededly was vested in and with such division when the gavel announced the opening of court on August 4,1952?
From such want of answer sprouts our incredible mistake in this case; that of release of these writs when no one here knows — any more than do the probate and circuit judges below — what today’s fact-, picture in Kansas (distinguished from that of more than 2 years ago) is or may be. Writs of habeas corpus either issue, or they do not. Let us hope that these errantly signed writs are arrested — short of' the State line — before it is too late.
I vote to reverse with remand for dismissal of the writs and with instruction to proceed toward prompt trial of the pending appeal from probate court. Further, I would recommend to the circuit court that consideration be given to its discretion to order that such appeal be transferred to the jury *150calendar (See section 3 of Court Rule No 33 [19453' and author’s comment under section 2 of Court Rule No 74 [1945])* and to provide by order for the appointment of.a guardian and vigorous trial counsel for the real parties in interest, Sally and Doyle Fritts.
Smith and Voelker, JJ., concurred with Black, J. Kavanagh, J., took no part in the decision of this case.This ease concerns the jurisdiction of Michigan probate courts, sitting in juvenile division, under the aet of 1944, as amended (PA 1944 [1st Ex Sess], No 54). By the aet a new chapter, “to stand as chapter 12A thereof,” was added to the probate code of 1939. In this opinion I shall refer to the chapter by section numbers. The official chapter eitation is CL 1948 and CLS 1956, § 712A.1 et seq. (Stat Ann 1957 Cum Supp § 27.3178 [598.1] et seq.).
Section 1 of said chapter 12A specifically declares that “Proceedings under this chapter shall not be deemed to be criminal proceedings.”
In .this case, and certainly by permission of the statute, no stenographic record of the hearing on August 4, 1952, was taken or made. No wonder the “record” isn’t letter perfect.
August'18, 1952, the parents filed a petition (obviously authorized by section 21 of .said chapter 12A) to set aside the orders of August 4th. Sueh petition, after full hearing with the parents represented by counsel, was denied September 27, 1952. The parents thereupon filed certain papers in probate looking toward appeal'from the order of denial bdt aid not pursue sueh appeal further.' This abandoned appeal of 1952 . is the. one to' -whieh my' Brother Edwabds . refers {ante, p 117).
The point made here, and I shall come to it later, is that there as yet has been no trial of the merits of the pending statutory petition by which these parents ask restoration to them of custody of these children.
Such an order — finally “severing all parental rights” — may of course be entered with, the effect provided by seetion 9 of chapter 10 of the probate code (CLS 1956, § 710.9, Stat Ann 1957 Cum Supp § 27.3178 [549]), as last amended by PA 1957, ISTo 255, pertaining to adoption proceedings. ISTo such order has as yet been entered in the pending proceedings (in Berrien probate) looking toward adoption of Sally by Mr. and Mrs. Graham and adoption of Doyle by Mr. and Mrs. Krugh.
These record facts are taken from the original and separate Berrien county circuit court file entitled “In the Matter of the Estate of Sally Ann Britts and Doyie Almo Britts, Jr.” , Such file bears Berrien circuit court No B-1400. It now reposes, along with the record first certified here, in our clerk’s office.
It is suggested that we have no right to consider this additional file and that resort thereto may amount, so far as concerns the present litigant parties, to a denial of due process. To this view of due process — perforce through a small knothole — my answer is short. I am interested more in due process for these children than in misguided process for those who have brought here a curtailed and misleading record; a record which, but for the vigilance of our reporter during his customary check — against such curtailed record— of the foregoing opinions of Justices Edwards and Smith, doubtless would have eliminated from sight of this Court the crucial fact that habeas corpus to settle this issue of custody has indeed and in fact been substituted for a presently pending appeal from denial of a statutory petition for settlement of the same issue. Yes, I propose to provide due process for all, children and contenders alike. It is bad enough to innocently decide a ease the wrong way on account of an inadequate and error-causing record but infinitely worse to persist with such error after the decisive record facts are brought here and made known.
Under date of October 19, 1955 (the petition for order of restoration having been recently filed), the Berrien county juvenile officer filed his detailed report with recommendation. It concludes, and I believe it to be the right fact-conclusion we should reach, as follows:
“It would be a perversion of justice to tear these children away from their present homes and plaee them back in a home where there is continual strife and insecurity.”
Honigman, Michigan Court Rules Annotated, p 704.