No. 14692
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
IN THE MATTER OF THE ADOPTION OF T.M.M.,
a Minor.
Appeal from: District Court of the Fourth Judicial District,
Honorable E. Gardner Brownlee, Judge presiding.
Counsel of Record:
For Appellant:
William Hutchison argued, Legal Services, Helena,
Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Christian, McCurdy, Ingraham and Wold, Polson, Montana
Clinton J. Fisher argued, Polson, Montana
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Submitted: September 24, 1979
Decided: 8% 2 !$@
Filed: .'i -. -
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Mr. J u s t i c e D a n i e l J. Shea d e l i v e r e d t h e Opinion o f t h e C o u r t .
The n a t u r a l mother o f a minor c h i l d a p p e a l s from a judgment
of t h e Lake County D i s t r i c t C o u r t d i s m i s s i n g h e r c h a l l e n g e t o
an a d o p t i o n p r o c e e d i n g .
She r a i s e s s e v e r a l i s s u e s i n t h i s a p p e a l , b u t o u r d e c i s i o n
t u r n s on o u r c o n c l u s i o n t h a t t h e p r o s p e c t i v e a d o p t i v e p a r e n t s
v i o l a t e d t h e I n t e r s t a t e Compact on Placement o f C h i l d r e n , which
t h e r e f o r e c o n s t i t u t e d an i l l e g a l placement of t h e c h i l d f o r
p u r p o s e s of a d o p t i o n . W e note, furthermore, t h a t t h e n a t u r a l
mother was d e n i e d a h e a r i n g on t h e q u e s t i o n of v o l u n t a r i n e s s a s
s e t f o r t h i n t h e c a s e o f I n Re Adoption of BGB ( 1 9 7 9 ) , - Mont.
, 599 P.2d 375, 36 St.Rep. 1638. Our d e c i s i o n h e r e , however,
o b v i a t e s t h e need f o r a h e a r i n g on t h e q u e s t i o n of v o l u n t a r i n e s s
of t h e p a r e n t a l consent.
TMM ( h e r e a f t e r r e f e r r e d t o a s c h i l d ) was born on J u l y 2 2 ,
1972, i n Boone County, M i s s o u r i . On J a n u a r y 9 , 1978, t h e n a t u r a l
mother e x e c u t e d a " p a r e n t ' s c o n s e n t " i n J a c k s o n , M i s s i s s i p p i ,
which was p r o v i d e d , w i t n e s s e d and n o t a r i z e d by Nancy L . S a n d e r s ,
a M i s s i s s i p p i r e s i d e n t and r e l a t i v e o f t h e p r o s p e c t i v e a d o p t i v e
parents. T h a t document r e l e a s e d a l l of t h e n a t u r a l m o t h e r ' s p a r e n t a l
r i g h t s i n t h e c h i l d and a l l o w e d f o r a d o p t i o n by t h e p r o s p e c t i v e
a d o p t i v e p a r e n t s , r e s i d e n t s o f Montana. The p r o s p e c t i v e a d o p t i v e
p a r e n t s t r a v e l e d from Montana t o M i s s i s s i p p i , p i c k e d up t h e c h i l d
from Nancy S a n d e r s , and f o l l o w i n g a b r i e f s t a y i n M i s s i s s i p p i ,
r e t u r n e d t o Montana w i t h t h e c h i l d .
Both Montana and M i s s i s s i p p i have a d o p t e d and e n a c t e d t h e
I n t e r s t a t e Compact on Placement of C h i l d r e n ( h e r e a f t e r r e f e r r e d
t o a s Compact), and a r e p a r t y s t a t e s t o t h e Compact. Section
41-4-101, e t seq., MCA; s e c t i o n 43-18-1, e t seq., M i s s . Code
Annot. The b a s i c p o l i c y b e h i n d t h e Compact i s p r o v i d e d i n A r t i c l e
I , which s t a t e s :
" I t i s t h e p u r p o s e and p o l i c y of t h e p a r t y s t a t e s
t o cooperate with each other i n t h e i n t e r s t a t e
placement of c h i l d r e n t o t h e end t h a t :
"(1) each child requiring placement shall receive
the maximum opportunity to be placed in a suitable
environment and with persons or institutions having
appropriate qualifications and facilities to provide
a necessary and desirable degree and type of care;
"(2) the appropriate authorities in a state where a
child is to be placed may have full opportunity to
ascertain the circumstances of the proposed placement,
thereby promoting full compliance with applicable
requirements for the protection of the child;
"(3) the proper authorities of the state from
which the placement is made may obtain the most
complete information on the basis of which to
evaluate a projected placement before it is made;
" (4) appropriate jurisdictional arrangements for
the care of children will be promoted."
On April 10, 1978, the prospective adoptive parents filed
a petition in Lake County District Court for adoption. On April
14, 1978, the trial court, upon a motion of the prospective
adoptive parents and their presentation of the "parent's consent"
pursuant to section 40-6-124(5), MCA, entered an order terminating
the parental rights of the natural mother. The order was entered
ex parte, without notice or an opportunity for a hearing being
given to the natural mother.
On May 10, 1978, the natural mother first appeared in Montana
in the instant action and filed a "withdrawal of document" with
the trial court, repudiating her previously executed "parent's
consent". On September 25, 1978, the prospective adoptive
parents moved to dismiss the natural mother from the adoption
proceeding due to lack of standing based upon the trial court's
order, entered April 14, 1978, terminating the parental rights
of the natural mother. On December 13, 1978, the District Court
issued an order granting the motion to dismiss the natural mother's
challenge to the adoption for lack of standing. The District
Court granted a stay in the adoption proceeding pending the
outcome of the natural mother's appeal of the order of dismissal.
The natural mother contends that the prospective adoptive
parents ignored, or failed to follow the express provisions of
the Compact, resulting in the illegal placement of the child in
Montana. The prospective adoptive parents argue, however, that
the Compact does not apply because no sending agency was involved
in the placement of the child and that they brought the child
into Montana by virtue of the parental consent signed by the
natural mother. The prospective adoptive parents further argue
that it is of no consequence that the technical procedures, as
set forth in the Compact, may not have been followed; but
rather it is important that they have acted in the best interests
of the child, and they have done so by seeking this state's
approval, supervision, and investigation concerning the adoption.
Article I1 of the Compact defining child, sending agency,
receiving state and placement clearly shows the applicability
of the Compact in the instant case. Of particular relevance in
the instant case, Article II(2) defines "sending agency" as ". . .
a person . . . which sends, brings, or causes to be sent or
brought any child to another party state;" and Article II(3)
defines "receiving state" as ". . . the state to which a child is
. . . brought . . . by . . . private persons . . . for placement
with . . . persons." It is undisputed that the prospective
adoptive parents brought the child, age 7, from Mississippi to
Montana for placement with themselves in furtherance of their
ultimate desire to adopt the child. The prospective adoptive
parents made arrangements for, and have cared for the child in
their family since January 1978.
Article I11 of the Compact contains requirements which must
be complied with in order to effectuate a legal placement.
Article I11 (1) provides:
"No sending agency shall send, bring, or cause
to be sent or brought into any other party state
any child for placement in foster care or as a
preliminary to a possible adoption unless the
sending agency shall comply with each and every
requirement set forth in this article and with
the applicable laws of the receiving state
governing the placement of children therein."
Article III(1) clearly mandates compliance with each and
every requirement of Article 111. Article III(2) provides that:
"Prior to sending, bringing, or causing any
child to be sent or brought into a receiving
state for placement in foster care or as a
preliminary to a possible adoption, the sending
agency shall furnish the appropriate public
authorities in the receiving state written
notice of the intention to send, bring, or place
the child in the receiving state. The notice
shall contain:
"(a) the name, date, and place of birth of the
child;
"(b) the identity and address or addresses of
the parents or legal guardian;
"(c) the name and address of the person, agency,
or institution to or with which the sending agency
proposes to send, bring, or place the child;
"(d) a full statement of the reasons for such
proposed action and evidence of the authority
pursuant to which the placement is proposed to
be made. "
The prior written notice requirement is designed to provide the
proper state authorities in both states with knowledge of, and
background information concerning the proposed relocation of a
minor child. Prior written notice provides the proper authorities
in both states with an opportunity to investigate the facts
surrounding the proposed placement in order to determine whether
the proposed placement is in the best interests of the child.
Under section 41-4-103, MCA, the Montana Department of
Social and Rehabilitation Services (hereafter referred to as SRS)
is deemed to be the "appropriate public authorities" for purposes
of the operation of Article I11 of the Compact. Under Article
III(2) of the Compact and section 41-4-103, the prospective
adoptive parents were required to furnish the SRS with written
notice of their intention to bring the child to Montana, as a
preliminary measure to adoption, prior to the time when they did
actually bring the child to Montana.
The prospective adoptive parents clearly violated the
requirements of Article III(2) of the Compact. The prospective
adoptive parents first notified the SRS after they had brought
the child to Montana. The prospective adoptive parents brought
the child to Montana in January 1978; and on April 10, 1978, they
f i r s t c o n t a c t e d t h e S R S and r e q u e s t e d a r e p o r t r e g a r d i n g t h e
adoption. The SRS waived a f u l l a d o p t i v e i n v e s t i g a t i o n i n t o
t h e a d o p t i o n o f t h e c h i l d , and f i l e d a r e p o r t w i t h t h e t r i a l
c o u r t on June 2 6 , 1978.
Under ~ r t i c l e I I ( 4 ) , t h e p r o s p e c t i v e a d o p t i v e p a r e n t s
I
c o u l d n o t l e g a l l y b r i n g t h e c h i l d i n t o Montana u n t i l t h e S R S
had n o t i f i e d them, i n w r i t i n g , t h a t t h e proposed placement d i d
n o t a p p e a r t o be c o n t r a r y t o t h e i n t e r e s t s o f t h e c h i l d . As
p r e v i o u s l y i n d i c a t e d , t h e SRS w a s n ' t n o t i f i e d u n t i l a f t e r t h e
fact. Therefore, t h e prospective adoptive p a r e n t s a l s o f a i l e d
t o comply w i t h A r t i c l e I I I ( 4 ) of t h e Compact, which p r o v i d e s
that:
"The c h i l d s h a l l n o t be s e n t , b r o u g h t , o r
c a u s e d t o be s e n t o r b r o u g h t i n t o t h e r e c e i v i n g
s t a t e u n t i l the appropriate public authorities
i n t h e receiving state s h a l l n o t i f y t h e sending
agency, i n w r i t i n g , t o t h e e f f e c t t h a t t h e proposed
placement d o e s n o t a p p e a r t o be c o n t r a r y t o t h e
i n t e r e s t s of t h e c h i l d . "
I n a f i n a l a t t e m p t t o a v o i d t h e o p e r a t i o n of t h e Compact,
t h e p r o s p e c t i v e a d o p t i v e p a r e n t s c o n t e n d t h a t t h e n a t u r a l mother
c a u s e d t h e c h i l d t o b e b r o u g h t t o Montana by t h e p r o s p e c t i v e
a d o p t i v e p a r e n t s ; and t h a t t h e n a t u r a l mother named and a p p o i n t e d
them a s nonagency g u a r d i a n s , t h u s p r e c l u d i n g t h e a p p l i c a t i o n o f
t h e Compact. A r t i c l e V I I I ( 1 ) of t h e Compact p r o v i d e s t h a t t h e
"compact s h a l l n o t a p p l y t o : (1) t h e s e n d i n g o r b r i n g i n g o f a
c h i l d i n t o a r e c e i v i n g s t a t e by h i s p a r e n t . . . and leaving
t h e c h i l d w i t h any s u c h r e l a t i v e o r nonagency g u a r d i a n i n
the receiving state."
A r t i c l e V I I I ( 1 ) d o e s n o t a p p l y , however, b e c a u s e t h e p r o s p e c t -
i v e a d o p t i v e p a r e n t s a r e n o t r e l a t i v e s o f t h e n a t u r a l mother, nor
a r e t h e y nonagency g u a r d i a n s . The p r o s p e c t i v e a d o p t i v e p a r e n t s
o b t a i n e d c u s t o d y o f t h e c h i l d by v i r t u e o f t h e n a t u r a l m o t h e r ' s
" p a r e n t ' s c o n s e n t " ; however, t h e y d i d n o t become "nonagency
guardians." The p r o s p e c t i v e a d o p t i v e p a r e n t s w e r e n e v e r a p p o i n t e d
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as the child's guardians through a judicial decree entered
prior to the time that they brought the child to Montana from
Mississippi, nor subsequently while in Montana. There is a major
distinction between custody and guardianship. In Montana, a
person is appointed the guardian of a minor child through judicial
decree following compliance with the statutory procedures. See
section 72-5-201, et seq., MCA; In Re Guardianship of P.J.D.
(1979), Mont . , 600 P.2d 1170, 36 St.Rep. 1670.
The natural mother contends that failure to comply with the
terms and requirements of the Compact constitutes an illegal
placement of the child, and further contends that Article IV
of the Compact provides sanctions for illegal placements.
She requests that this Court revoke her previously executed
"parent's consent" as an appropriate sanction for the illegal
placement of the child in the instant case. The prospective
adoptive parents contend,on the other hand, that the Compact
does not contemplate the dismissal of an adoption proceeding
for technical violations of procedures.
By virtue of the failure of the prospective adoptive
parents to comply with the Compact, the placement of the
child with the prospective adoptive parents in Montana
constituted an illegal placement under the provisions of the
Compact. Article IV of the Compact provides the penalty for
an illegal placement. Article IV provides that:
"The sending, bringing, or causing to be sent
or brought into any receiving state of a child
in violation of the terms of this compact shall
constitute a violation of the laws respecting the
placement of children of both the state in which
the sending agency is located or from which it
sends or brings the child and of the receiving
state. Such violation may be punished or subjected
to penalty in either jurisdiction in accordance
with its laws. In addition to liability for any
such punishment or penalty, any such violation shall
constitute full and sufficient grounds for the
suspension or revocation of any license, permit, or
other legal authorization held by the sending agency
which empowers or allows it to place or care for children."
The "parent's consent", executed by the natural mother,
is the "legal authorization" held by the prospective adoptive
parents. Thus the failure of the prospective adoptive
parents to comply with the terms and procedures of the
Compact constitutes full and sufficient grounds for the
revocation of the "parent's consent."
The order of the District Court, entered April 14,
1978, terminating the natural mother's parental rights is
vacated. The cause is remanded with instructions to dismiss
the adoption proceeding instituted by the prospective adoptive
parents, and to take appropriate measures for the end result
of placing custody with the natural mother.
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Justice
We Concur:
Chief Justice
Justices