Steffen v. Bunker

BERNSTEIN, Justice

(dissenting).

This court has been asked to decide two important questions: one, whether the father of a child born out of wedlock has any right to notice of litigation affecting custody of his offspring when the mother has voluntarily consented to the child’s adoption; and two, whether there has been sufficient showing of Jean Steffen’s unfitness to justify severing the legal relationship of parent and child.

In many jurisdictions, the father of a child born out of wedlock has been the forgotten figure in the illegitimacy triangle. The mother and child have been nurtured and protected by both courts and legislatures. The father, on the other hand, has been subjected to stringent obligations with very few corresponding rights.

Our legislature, cognizant of this inequity, provided some degree of protection to the out of wedlock father in custody and adoption proceedings. See A.R.S. § 8-103, subsec. A, par. 1(b). This court *32has also recognized the father’s legal interest in his natural child. See Caruso v. Superior Court etc., 100 Ariz. 167, 412 P.2d 463 (1966).

I am of the opinion that Jean Steffen should have been given notice of all proceedings affecting custody of his infant son. This conclusion has found support in the recent leading case of In Re Brennan, 270 Minn. 455, 134 N.W.2d 126 (1965). In that case an illegitimate girl was conceived as a result of the physical alliance of Mohummed Sadden, a Moslem, and Miss Linda Brennan, a Protestant. The father made several unsuccessful proposals of marriage. After the child was born, Miss Brennan voluntarily consented to the child’s adoption with a child placement agency. The natural mother, herself unable to raise the child, objected to the father raising the child on both religious and personal grounds. The agency and the child’s mother contended that the natural father had no legal interest in his daughter.

The Minnesota Supreme Court held that the father had a right to be heard, present ■evidence, and cross examine witnesses in any hearing affecting the custody of his child. The court stated:

“A sincere concern which springs from a sense of responsibility to his own flesh and blood is reason enough to permit him to be heard. Although this policy may present some risk for the adoption process, it should nevertheless be permitted where the claim is asserted promptly and under circumstances to minimize the risk of trauma to the child or to the adoptive parents which would accompany judicial acceptance of his assertion.” 134 N.W. 2d at 132.

The court held that the natural father could institute proceedings in the nature of an equitable action to establish his right to have notice of proceedings taken with reference to the adoption of his child.1

Mr. Steffen demanded custody of his child from the attorney handling the adoption shortly after his return to Arizona in June of 1965. At the time of his demand, the child had been in the Bunkers’ home less than one month. His demand antedated the Interlocutory hearing by almost two and one-half months. Despite these new and important circumstances, the Court was not advised of Mr. Steffen’s claim over his child and Mr. Steffen was not notified of the Interlocutory hearing. In my opinion, this lack of notice constituted sufficient error to set aside any adoption decree which originated out of this defective hearing. We feel that the subsequent hearing on the Steffens’ petition to set aside the interlocutory decree was insufficient to erase this earlier defect of notice.

There is another important reason for setting aside the adoption decree of the Superior Court. In Caruso v. Superior Court etc., 100 Ariz. 167, 412 P.2d 463 (1966) our Court was faced with a problem similar to the one posed in the instant case. In that case, the natural mother relinquished her child to the Catholic Social Service pursuant to A.R.S. § 8-512, subsec. B. The father desired to obtain custody of the child. The Society, upon learning of the father’s interest, sought a dependency hearing. A hearing was called, whereupon the juvenile court found that the infant in question was dependent. The Superior Court determined that a further hearing should be held to decide whether the fa*33ther’s rights should be severed so that the child could be placed for adoption. The father filed a writ of prohibition in this Court. In sustaining the father’s petition, we said:

“As a natural father, petitioner is entitled to the care, custody and control of his child against all others except the mother (citations omitted). She, of course, relinquished her rights. We will recognize petitioner’s right to his child until his unfitness clearly appears * * * ” (Emphasis added) 100 Ariz. 167 at 173, 412 P.2d 463 at 467.

There was no finding by the Superior Court that Jean Steffen was an unfit person. In my opinion, this specific finding was essential before the parental tie could be severed by the Court.

I concur with the majority opinion’s analysis of private placement. I believe that this entire case would have been avoided if the placement had been handled by an agency. In a study conducted by the Illinois Department of Children and Family Services, it was stated:

“In independent adoption, however, in addition to the lack of essential service for the unmarried mother, there often is also a violation of her rights. The attorney and the physician usually work for the adoptive parents and no one really represents the natural mother or the child. If the unmarried mother changes her mind in independent adoption, the attorney often pressures her rather than changing the plans. An agency, on the other hand, can help her make alternative plans * * * Whereas only one of the three parties involved is the attorney’s client, the agency serves all three.” Chaskel, The Unmarried Mother: Is She Different?, in ADOPTION OUTLOOK ILLINOIS—1966, at 55.

In proceedings of adoption, our courts have the obligation of determining the best interests of the child. We must therefore weigh the merits and demerits of both contestants before awarding custody. I believe that the Superior Court failed to attach sufficient weight to the blood tie which binds a child to his father. This bond normally promotes a child’s welfare in terms of love and security. The bond extends both vertically (between parent and child) and horizontally (between brother and sister). The decision today permanently severs this bond.

I am of the opinion that adoption is second best and a step which should be sanctioned only after the natural parental process has broken down, either by death or desertion of the parents or improper care of the child. Jean Steffen testified that he is ready and willing to provide a home for his child and that he loves his child. Without a finding that he is unfit, he should be given the custody for which he petitions.

I would therefore reverse the Court of Appeals and order that the decree of adoption be vacated.

McFarland, c. j., concurs.

. In 50 Minn.L.Rev. 1071 (1965-1966), an excellent law review note was recently published which discusses the question of whether a natural father has any legal interest in the disposition of his child subsequent to relinquishment by the natural mother. The author believes that

“ * * * the interests of the child, the natural mother, and the agencies and adoptive parents should not totally eliminate the father. -Any privilege granted to him for a hearing need not unduly interfere with the existing rights of others in the adoption process.” 50 Minn.L.Rev. at 1084. Several leading state courts have adopted the Brennan rationale. See In Re Guardianship of C., 98 N.J.Super. 474, 237 A.2d 652 (1967); Mixon v. Mize, 198 So.2d 373 (Fla.D.Ct.App. 1967); In the Matter of Mark T., 8 Mich.App. 122, 154 N.W.2d 27 (1967).

See also 37 A.L.R.2d 882.