No. 14529
I N THE SUPREME C O W O THE STATE O MINTANA
F F
1979
IN RF: THE MA?TER O THE ADOPTION O
F F
BGEi, a minor.
Appeal from: D i s t r i c t Court of the Eighth Judicial D i s t r i c t ,
Hon. Joel G. Roth, Judge presiding.
Counsel of Record:
For Appellant:
R o b e r t Tucker argued, Great Falls, Wntana
For Respondent:
William R. Baldassin argued, Missoula, Wntana
Carroll C. Blend, Great Falls, Wntana
Sutsnitted: March 19, 1979
Decided:
SEF 1 :? 1979
SEt -
, -, * , d
Filed: -
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
The natural mother appeals from an order of the
Cascade County District Court refusing to set aside a
parental release order entered under the Uniform Parentage
Act. This order approved a release of permanent custody
from the mother to the prospective adoptive parents, and
further permitted them to start adoption proceedings in
Missoula County, the county of their residence.
The issues raised in this appeal are made more
confusing by the fuzzy and incomplete state of the record
at the District Court level. Moreover, the parties rely
on broad factual statements in their appellate briefs,
many of which have no support in the record. Because this
case is not technically ripe for review on the merits, this
Court should remand for a factual determination as to the
voluntariness of the parental release before we decide
any of the issues raised. But the nature of this case
requires us, we believe, to decide those legal issues which
can be decided without a factual determination, and to
remand the case to the District Court for the sole purpose
of holding a hearing and entering a ruling on the voluntari-
ness of the parental release. It is conceivable at least,
that depending on the ruling of the District Court, an appeal
would not again be taken. On the other hand, if we fail
to rule on the legal issues raised here, another appeal would
be inevitable.
The essential questions raised involved the relationship
between the Uniform Parentage Act (sections 40-6-101 through
40-6-131, MCA) and the Uniform Adoption Act (sections
40-8-101 through 40-8-128, MCA). Original custody of the
child and an order allowing the prospective adoptive parents
to proceed with adoption, was obtained in Cascade County
under the Uniform Parentage Act, and adoption proceedings
were later started in Missoula County under the Uniform
Adoption Act. Before a final order of adoption was obtained
however, the natural mother filed a motion in the Cascade
County District Court to set aside the order releasing
permanent custody to the prospective adoptive parents and
permitting them to start adoption proceedings.
The main dispute is centered around section 40-6-124(7)
of the Uniform Parentage Act, which reads as follows:
"Upon petition of the person or persons who
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executed the release and of the agency of
the State of Montana, licensed adoption
agency, or person to whom the child was
released, the court with which the release
was filed may grant a hearing to consider
whether the release should be revoked. A
release may not be revoked if the child
has been placed for adoption. A verbatim
record of testimony related to a petition
to revoke a release shall be made." (Emphasis
added. )
The thrust of the mother's argument is that the statute
requires her before filing an action to set aside a
parental release, to first obtain the consent of the pro-
spective adoptive parents, and that such consent would
rarely, if ever, be given. She argues that she has by
this requirement, been deprived of due process of law
because the statute effectively precludes her from contesting
the validity of the parental releases. We note here that the
mother did not allege in her petition that the parental
release was involuntarily obtained. But this failure is
complicated by a subsequent stipulation entered into by
the parties as will be more fully explained as we set
forth the facts.
The child was born on May 18, 1978, and on the same
day the mother executed a document entitled a relinquishment
and consent by natural parents. In addition, the father
and his parents (being that he was a minor) executed similar
documents on the same day. The releases provided in
pertinent part:
"That she [the mother] intends hereby to,
and does, voluntarily and irrevocably relinquish
all of her parental rights in and to [the child]
to [the prospective adoptive parents], knowing
that [the prospective adoptive parents] intend
to and shall file a petition for adoption
relating to said child."
On the next day, May 19, 1978, the prospective adoptive
parents filed the releases in the Cascade County District
Court along with a petition asking that all parental rights
of the natural parents be terminated, and that the child
be committed to the care, custody and control of the prospective
adoptive parents. On the same day, the District Court entered
an order in accordance with the prayer of the petition. The
order also permitted the prospective adoptive parents to start
adoption proceedings in Missoula County, the county of their
residence, which was, of course, the proper county to bring
an adoption proceeding under the Uniform Adoption Act (section
40-8-107, MCA) .
Adoption proceedings were started in Missoula County
but were halted when the natural mother filed her petition
in the Cascade County District Court to set aside the parental
release and consent to adopt which she had signed. We note
here that the parental release and consent to adopt was
contained in one document, which is contrary to the requirements
stated in section 40-6-124, MCA. We do not consider
this defect, however, to be fatal in the context of this
case.
The mother's petition to set aside the release
alleged only that she had withdrawn her consent because she
had changed her mind and wanted to regain custody of the
child. This allegation was apparently based on the assumption
that she had an absolute right to revoke her parental release,
at least up to the time that the child was formally adopted.
She also alleged venue for court approval of the parental
releases and consent to adopt was based on the adoption
statutes rather than the Uniform Parentage Act, and therefore
that the parental termination petition should have been
filed in Missoula County.
Before the hearing on her petition, a stipulation
signed by lawyers for both sides was filed with the District
Court, which contained the legal issues on which they desired
a ruling. The stipulation also provided, however, that
"all factual issues, including those relating to duress,
fraud, undue influence and best interest, if any, shall be
reserved for hearing at a later date." We read this
provision to mean that the mother did not concede that the
parental releases had been voluntarily obtained. There
is nothing in the record to refute this.
Based upon this stipulation as to legal issues, the
District Court decided all legal issues against the mother,
but went an additional step and concluded that the mother
had "conceded" that the parental release and consent to
adopt was voluntary. Nowhere does the record before us
support this finding. For reasons unknown to this Court,
neither party brought this erroneous finding to the attention
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of the District Court, and the case was then appealed
by the mother with the issue of voluntariness left
dangling in mid-air. That is the reason we must remand
to the District Court for a hearing and ruling on the
issue of voluntariness of the parental release.
On the remaining issues, we agree with the essential
conclusions of law reached by the District Court in its
memorandum opinion and order. Venue was properly in Cascade
County under the Uniform Parentage Act for purposes of
obtaining an order terminating parental rights and obtaining
permission to start adoption proceedings; there is no absolute
right to revoke a parental release and section 40-6-124(7),
MCA, is constitutional on its face; and section 40-6-124(1),
in the context of the facts of this case, permits the release
of parental rights to a private "person."
Before proceeding to a discussion of the legal issue,
we emphasize that it should have been clear to the parties
that the District Court decided the issue of voluntariness
of the mother's parental release without a factual foundation
in the record. It is clear from the tenor of the memorandum
decision of the District Court, that it would have held a
hearing on the issue of voluntariness. Had either party
brought this erroneous finding to the attention of the District
Court all of the issues could now be before this Court for
decision. Because we must remand for a hearing on the issue
of voluntariness, there is, of course, a distinct possibility
that a second appeal will result. We do not encourage this
kind of issue splitting as it creates a needless waste of
judicial resources. Moreover, in the context of the welfare
of the child involved, it is clearly not in its best interest
to prolong this litigation.
The litigation has been unnecessarily prolonged by the
parties in this case. The cat and mouse game too frequently
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fostered by the adversary system has no place in proceedings
such as this. It is the duty of the District Court to
require the parties to proceedings of this nature to lay all
their cards on the table at the commencement of proceedings;
and it is further the duty of the opposing lawyers to lay
all their cards on the table, regardless of whether the District
Court orders them to do so.
We proceed to a discussion of the issues. Venue for
terminating parental rights under the Uniform Parentage
Act is not specifically provided for in the Act. Only one
statute provides guidance as to venue, section 40-6-109,
MCA. Read in its entirety, it is clear that it is directed
primarily at a proceeding to establish paternity, and not
to an action to obtain court approval of a parental release.
Thus, we cannot say that the legislature has provided any
significant guidance as to the issue before this Court.
Nontheless, we conclude that venue under the Uniform Parentage
Act was properly in Cascade County.
The child, the natural parents, and the natural grand-
parents all resided in Cascade County at the time the releases
were obtained and at the time the petition was filed under
the Uniform Parentage Act to obtain court approval of the
releases. We fail to see how the ends of justice would have
been better served by filing the petition in Missoula County,
the residence of the prospective adoptive parents. Had
this been done, a substantially larger burden would have
been placed on those who might wish to contest the validity
of the parental releases. Accordingly, we find no error in
filing the petition in Cascade County.
Concerning the constitutionality of section 40-6-124(7),
MCA, we do not read it as prohibiting an action to contest
the voluntariness of the parental releases unless the consent
of the person or entity to whom the child has been released
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is first obtained. The statute does not expressly
require this reading, and it would be an unreasonable
construction to read such requirement into the statute.
When read in its entirety, section 40-6-124, PICA, contemplates
that the procedure contained in subsection (7) is required
only when there is no issue of voluntariness of the parental
release. Subsection (1) provides:
"(1) Any parent or guardian who proposes
to relinquish custody of a child for purposes
of placing the child for adoption may do so
by formally executing a release whereby all
parental rights to the child are voluntarily
relinquished to an agency of the state of
Montana, a licensed adoption agency, or a
person." (Emphasis added.)
Clearly, a construction of this section along with
subsection (7) of the same statute requires a determination
that a strong public policy interest exists surrounding the
finality of parental releases, and one who voluntarily signs
a parental release cannot willy-nilly revoke that release.
The same policy considerations, however, are obviously not
operative in a situation involving an involuntary parental
release.
If for some reason one seeks to revoke a parental
release voluntarily executed, it is in the interest of all
concerned that consent to such revocation be obtained by
all those who are covered by the terms of the statute. We
note, however, that even though all the required consents
be obtained, the statute does not require an automatic revocation
\
of the release. It states only that "the district court may
grant a hearing to consider whether the releases should be
revoked . . ." Obviously, some degree of discretion is left
with the District Court to determine what is in the best
interests of the child. Assuming a parental release to be
voluntarily executed, sections 40-6-124(1) and 40-6-124(7),
MCA, assure that the status of a child who is the subject
of the parental release is not in a state of perpetual flux.
Sections 40-6-124 (1) and 40-6-124 (7), MCA do not
require a conclusion that a parental release allegedly in-
voluntarily executed, cannot be contested unless the consent
is first obtained of the person or agency to whom the child
has been released. Clearly, the consents are required only
when the parental release has been voluntarily executed. We
determine therefore, that subsection (7) is constitutional on
its face and that the statute reasonably applied, does not
require consent of the parties to whom the child has been
released before an action can be started alleging an in-
voluntary execution of a parental release.
It is clear that by implication, the District Court
reached the same conclusion that we reached. However, its
decision went the additional step of finding that the
release had been voluntarily executed because the mother
had so "conceded." The record before us does not reveal
such concession and for this reason, we must remand for a
hearing on the issue of voluntariness of the parental release.
A final issue raised by the mother is that section
40-6-124(1), MCA, does not permit the release of parental
custody to "a person" for purposes of adoption, and therefore
that the court had no authority to terminate parental custody
of the mother in favor of the prospective adoptive parents.
The mother relies on Montana Department of Social and Rehabilitation
Services v. Angel (1978), Mont . , 577 P.2d 1223,
35 St-Rep. 532. But she misreads this case as well as the
statute. Section 40-6-124(1), MCA, provides that the release
may be executed "to an agency of the state of Montana, a
licensed adoption agency, or - person."
a (Emphasis added.)
Here the parental releases were executed directly
to the prospective adoptive parents; they did not serve as
a conduit for placing the child with someone else for
permanent adoption. In the Angel case, the persons receiving
the child from the natural parent served only as a conduit
to later place the child with someone else for permanent
adoption. It was this practice that we condemned and held
to be in violation of the spirit of the statutes involved.
Those factors do not exist in this case.
Elsewhere in this opinion, we expressed our dissatisfaction
with the status of this case on appeal. Because of the stipulation
reserving the issue of voluntariness for a later determination,
this case was not ready for appellate review within the meaning
of Rule l(a), M0nt.R.App.Civ.P. Though the parties knew or
should have known the case was in this status, nonetheless, the
mother appealed with the complete acquiescence of the prospective
adoptive parents. Moreover, once the notice of appeal was
filed, neither party informed this Court that the issue of
voluntariness had been specifically reserved for a later hearing
and determination.
Implicit in the mother's argument in her brief is an
acknowledgement that only legal points were decided by the
District Court, and that factual determinations such as vol-
untariness, remained for decision. On the other hand, the
prospective adoptive parents assert that the District Court
decided, and properly so, the issue of voluntariness of the
parental release. Their positions compared with the precise
words of the stipulation are revealing.
The stipulation signed by counsel for both parties, read:
"That all factual issues, including those relating
to duress, fraud, undue influence and best
interest, if any, shall be reserved for hearing
at a later date."
By this stipulation, we have no doubt that the parties
realized the issue of voluntariness of the parental release
was not to be decided at the August 8 hearing.
Without quoting from this stipulation, or referring this
Court to the precise stipulation in the District Court file,
the mother states in her brief:
"Attorneys for both parties, prior to hearing,
had stipulated that the hearing be confined to
a discussion and determination of legal issues
only, and therefore no testimony or other evidence
was presented."
Clearly, by taking this position, counsel for the mother
should have recognized that the case was prematurely appealed,
and therefore should have moved to dismiss the appeal without
prejudice.
On the other hand, counsel for the prospective adoptive
parents states in his brief in reference to the stipulation:
"Prior to hearing, counsel for both parties,
determining that there was no factual issues
concerning fraud, duress, or undue influence
in connection with the execution of the
relinquishments and consents, stipulated
as to the legal issues to be argued and decided
at the August 8 hearing."
If there was an additional stipulation other than the one
we have quoted, counsel did not quote from it nor refer this
Court to it. Rather, he relies in his brief on the factual
determination by the District Court that the parental release
was voluntarily executed, without any evidentiary foundation
whatsoever. There is nothing in the record whereby the parties
stipulated to the nonexistence of factual issues concerning
fraud, duress, or undue influence in relation to the execution
of the parental release.
We recognize, of couse, that counsel representing the
mother in this appeal is not the same counsel who handled her
case at the trial court level, and that he entered this case
after the notice of appeal had been filed. But once he had
determined the status of the case and what had and had not
been decided at the District Court level, it was his duty
to determine if the case was then properly on appeal. If,
for example, he had concluded that the District Court had not
decided all issues necessary to a final resolution of this
case, it would have been a simple matter to move this Court
to dismiss this appeal without prejudice so that all issues
could first be decided at the District Court level.
Likewise, counsel for the prospective adoptive parents
could have filed an appropriate motion to dismiss because all
issues necessary to an appeal had not been decided by the
District Court. But he did not do so. Rather, without any
basis in the record before this Court, he repeatedly relied
on the District Court's determination that the parental release
had been voluntarily executed. But nowhere in his brief did he
establish a factual foundation for such a determination by
the District Court. Indeed, though the District Court decision
was based on the mother's "conceded" voluntary parental release,
not once did counsel refer this Court to any place in the
record where this concession appears.
It should have been clear to both parties that the
District Court decision basing the issue of voluntariness
on the mother's concession, had no basis in the record. (The
August 8 hearing on the legal issues was had without the
presence of a court reporter, and we find no concessions in
the District Court file.) Though counsel for the mother entered
this case after filing of the notice of appeal, and therefore
he could not have moved the District Court to reconsider the
basis of its opinion on the issue of voluntariness of the parental
release, this did not prevent him from moving this Court for a
motion to dismiss the appeal and to remand the case to the
District Court for a hearing on the issue of voluntariness.
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Too often this Court is confronted with cases that
are not ready for appellate review within the meaning of the
rules, but where the opposing parties do not bring this
crucial fact to our attention. We often do not discover this
until we are deeply into the process of review and indeed often
in the opinion-writing stage. We cannot and will not tolerate
this state of affairs.
If the case is not ready for review, it should not be
appealed. If for some reason it is appealed prematurely, it
is the duty of the parties to bring this to our attention by an
appropriate motion to dismiss so that it can be remanded to the
District Court. This Court does not have the time and the
resources to be compelled to independently search the record to
determine if all essential issues have first been decided at
the District Court level.
The exception to the normal rule is, of course, a question
that is certified to us under Rule 54(b), ~~lont.R.~iv.~.
But
we do not encourage use of this rule unless it is clearly
warranted by the nature of the case and the legal issues
presented. It should not be used as a method to sidestep
the normal appellate process except in extreme cases justifying
its use. If Rule 54b)isused as a vehicle to take an appeal
which would be otherwise premature, we expect, as part of that
process, a full explanation by the district judge who certifies
the case to us, and a full explanation by the parties to the
appeal.
For the foregoing reasons, the order of the District
Court is affirmed in part, but vacated and remanded for a
hearing and ruling on the issue of the voluntariness of the
parental release.
We Concur:
Chief Justice
Justices