No. 91-476
and 91-508
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
JAMES LEWIS AND THERESA SATHER,
Relators, Petitioners
and Appellants,
CATHOLIC SOCIAL SERVICES FOR MONTANA,
Respondents and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Relators/Appellants:
Linda J. Garofola and David K.W. Wilson, Jr.;
Reynolds, Motl, Sherwood & Wright, Helena, Montana
For Respondents:
William P. Driscoll and Michael S. Lattier; Gough,
nahan, Johnson & Waterman, Helena, Montana
Submitted on Briefs: December 19, 1991
Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal from an order of the First Judicial
District, Lewis and Clark County, denying petitioners1 request for
a preliminary injunction. Inasmuch as the issues are the same in
relators' petition for supervisory control, the petition for
supervisory control is hereby dismissed.
we frame the issue as follows: Whether the District Court
erred in determining § 40-8-108, MCA (1991), barred the foster
parents from contesting the placement for adoption decision of the
agency having custody and barred the foster parents1 petition for
adoption.
On March 29, 1989, the custody of Baby Girl W. was granted t o
Catholic Social Services for Montana (CSS) for placement and
ultimate adoption. The birth mother had informed CSS that she
wished to keep the child away from the birth father out of fear fox
herself and the child. She related that in the past the birth
father had been abusive t o her and an older child. The birth
mother did not want the father to know the whereabouts of the
child. CSS assured the birth mother the child would be placed in
a safe home where the father would not find her. On March 30,
1989, CSS placed Baby Girl W. with the relators, James Lewis and
Theresa Sather, as foster parents. This was the first foster child
for the Lewises. The Lewises signed an agreement stating they
would not attempt to adopt the child placed in their care. The
Lewises were also told of the assurances given to the birth mother
that the child would be placed out of state away from t h e father.
2
This was reiterated to the Lewises from time to time.
Initially, CSS told the ~ewisesthat Baby Girl W. would be in
their care only a short while. Having previously obtained a
consent for termination of parental rights from the birth mother,
the District Court in a lengthy contested action by the birth
father, terminated the parental rights of the birth mother and the
birth father, granted legal custody to CSS and granted it the right
to consent to Baby Girl W.'s adoption. The birth father appealed
this decision to this Court. We affirmed the District Court's
decision on July 2, 1991. In the Matter of the Parental Rights of
Baby Girl W. (1991), 249 Mont. 206, 814 P.2d 976. Because of the
delay in making a final termination of parental rights, Baby Girl
W. remained with the Lewises for 27 months. During this time the
Lewises began to regard Baby Girl W. as their own and vocalized
their wish to adopt the child.
CSS1splan had always been to place Baby Girl W. for adoption
with a family other than the foster family. CSS did not in any way
raise the expectations of the Lewises that they would be able to
adopt the child. Subsequent to this Court's decision on July 15,
1991, a meeting occurred between Marilyn McKibben, director of CSS,
and the Lewises to discuss Baby Girl W. ' s future. Although the
Lewises requested CSS's attorney to set up a meeting to discuss
their adoption of Baby Girl W., Marilyn McKibben indicated she was
not interested in meeting with the attorneys.
At the July 15, 1991 meeting, CSS indicated they would be
removing Baby Girl W. from the Lewises' home in the next day or so.
The Lewises cooperated with CSS in order not to hurt their chances
of adopting Baby Girl W. and immediately took steps to retain legal
counsel for that end. On July 17, 1991, Baby Girl W. was removed
from the Lewises' home. On August 2, 1991, CSS placed Baby Girl W.
out of state with a potential adoptive family.
There is no dispute that the Lewises provided a safe, stable
and nurturing home for Baby Girl W. and that, under normal
circumstances, they would be eligible adoptive parents. This is an
emotionally difficult case for all involved. The District Court in
its ruling found that under 5 40-8-108, MCA, only the parties
designated could place the child for adoption. The court reasoned
that since CSS did not consent to the Lewisesl request for
adoption, and had not placed the child for adoption in Montana, the
Lewises could not adopt Baby Girl W.
The District Court found that there was evidence in the record
that the father was a danger to the birth mother and the child, and
that such evidence would be of reasonable concern on the part of
CSS. The District Court further found that CSS is an experienced
adoption agency and the court gave deference as to its view of the
seriousness of any threat that might be posed by the birth father.
Based on the above, the court further found that it would then be
unable to say that the actions of CSS in placing the child out of
state were unreasonable or that refusal by CSS to give consent to
the petitioners was unreasonable.
The District Court was also of the view that granting relief
to the petitioners could have a broader policy impact on the entire
adoption process in Montana. Adoption agencies would be fearful of
placing children in foster homes if they were not reasonably
certain that they could place a child with the family of their
choice. Primarily the court, as stated above, based its decision
on the wording of 5 40-8-108, MCA, and denied the preliminary
injunction, dismissed the case and entered judgment accordingly.
The District Court found that 5 40-8-108, MCA, was a bar to
the Lewises' petition for adoption of Baby Girl W. The statute
provides:
A child may be placed for adoption only by: (1) the
department; (2) a licensed child placing agency; or (3)
the child's parents.
Placement is defined in 5 40-8-103 (11), MCA (1991) as: ". . .the
transfer of physical custody of a child with respect to whom all
parental rights have been terminated and who is otherwise legally
free for adoption to a person who intends to adopt the child."
There is no case law interpreting these sections of our statute.
We agree with the District Court that in the instant case
procedurally, under 5 40-8-108, MCA, only CSS may place Baby Girl
W. for adoption.
Section 40-8-108, MCA restricts who may place a child for
adoption and does not include courts in its list of who may place
a child for adoption. Therefore it is clear that the courts could
not place Baby Girl W. with the Lewises. No dispute exists that
CSS has placed Baby Girl W. for adoption.
The wording of the Montana act itself and the public policy of
discouraging black market adoptions and private adoptions argue
against judicial review of placement decisions. Montana, along
with five other states, adopted the Uniform Adoption Act (UAA).
According to Ado~tionLaw and Practice, Joan H. Hollinger, the act
attempts to discourage black market adoptions and private
adoptions. See, pp. 4A-3 (1989). Neither 5 s 40-8-103 (11) nor 40-
8-108, MCA, are part of the UAA. However, legislative minutes to
the 1981 revision of Montana's adoption law indicate that S 40-8-
108, MCA, was enacted out of concern for the black market problem.
Additionally, legislative minutes to the 1989 amendment of 5 40-8-
121, MCA, which designates the steps in filing a petition for
adoption, suggest the amendment was enacted due to perceived
problems with private placement. An example of Montana's concern
with private placements would be the elaborate framework set forth
in 5 40-8-109, MCA (1991), regulating private placements. Under
the statute parents who wish to have their child adopted by non-
relatives must give notice to the authorities of their intent and
must follow the numerous requirements of the statute prior to
private placement.
Cases exist from other jurisdictions which address an agency's
refusal to consent to adoption of a child that has already been
placed in a prospective adoptive home; the usual standard of review
in such cases is arbitrary and capricious. That is not the exact
question here. Homer H. Clark, Jr., in his treatise, The Law of
Domestic Relations in the United States, 2nd ed. vol. 2, 615, 651,
(1988), suggests that theoretically, an agency's refusal to place
a child with prospective adoptive parents may be reviewable under
the same standard as the denial of a consent to an adoption. Even
if we considered whether or not the placement by CSS was subject to
review because of arbitrariness or capriciousness under the facts
of this case, it would not change the result. The District Court
in its findings, after viewing all the evidence, did not find the
actions of CSS in placing the child out of state as unreasonable or
refusal by CSS to give consent to the petitioners as unreasonable.
In view of the District Court's findings and conclusions that
based on the evidence and record, it was unable to say that the
actions of CSS in placing the child out of state was unreasonable
or that CSS1s refusal to give consent to adoption by the Lewises
was unreasonable, the District Court could not in any case
determine the actions of CSS to be arbitrary and capricious. We
cannot say the court was erroneous or abused its discretion in
making such findings, conclusions, and final decision. We
therefore affirm the District Court.
We Concur:
Justices
Justice Terry N. Trieweiler dissenting.
I dissent from the opinion of the majority. The issue in this
case is not who may place Baby Girl W for adoption. Catholic
Social Services for Montana (hereinafter CSSM) clearly has that
authority and intends to exercise it. The issue is whether, in the
exercise of its placement authority, CSSM can arbitrarily refuse to
consider the foster parents, even if to do so would be contrary to
Baby Girl W's best interests. I believe this situation is
analogous to statutes which require agency consent to adoption.
There is considerable authority that such consent cannot be
arbitrarily withheld.
In IizreMcKerzzie (Minn. 1936), 266 N.W. 746, a juvenile located
in Minnesota had been placed by court order under the care of the
Minnesota Board of Control. That board placed the same child with
foster parents where the child remained for over three years.
After the child was removed from the foster parents' home to an
orphanage, they petitioned for adoption. The board refused based
on a religious difference between the child and the proposed
adoptive parents.
Minnesota had a statute which prohibited adoption without the
consent of the parents, the guardian, or the State Board of
Control. The Minnesota Supreme Court was called upon to decide
whether consent could be unreasonably withheld when an adoption
appeared to be in the child's best interests. It concluded that it
could not. In discussing the board's rule on religious
compatibility, the Minnesota Supreme Court stated:
In so far as the operation of the rule is not
inimical to the best interests of the child, the board
may be justified in not consenting to the placing of the
children with adoptive parents of a different faith, but
to blindly follow such a rule after placing the child for
support with a well-qualified family for a period so
protracted that a strong affection for the child is
permitted to develop is, in our view, unreasonable. The
affection of foster or adoptive parents is the child's
greatest asset in life. It usually means a good
education and a start in life. Where, as here found by
the trial court, it is accompanied by character building
surroundings and complete religious tolerance, and the
chances of matching the surroundings and affection
elsewhere are slight, the board's action becomes so
unreasonable as to fall within the definition of caprice.
McKenzie, 266 N.W. at 748.
In the case of In re Adoption of Daughtridge (N. .
C. 1975) , 212 s E . 2d
519, the Court of Appeals of North Carolina was called upon to
decide whether a county department of social services could
withhold consent to adoption under similar circumstances. That
court held:
We agree with the Minnesota court that that consent may
not be unreasonably and unjustly withheld. If the court
shall find that a failure to grant the petition for
adoption would be inimical to the best interests and
welfare of the child, it may proceed as if the consent
which it finds ought to have been given has been given.
Other courts have arrived at similar conclusions. SeeStateexrel.
Social and Relznbilirative Services v. Gnffk (Okla. 1975), 545 P. 2d
Dept. of Institz~tions
763 ; Oxendine v. Catawba County Depanment of Social Sewices (N.C. 1981) , 2 81
This Court has previously indicated that it is in accord with
those decisions. Frederick v. DismmctCourt (1946), 119 Mont. 143, 173
P.2d 626.
The effect of 5 40-8-108, MCA, which limits who may place a
child for adoption, is no different than the effect of the statutes
referred to in these cases which limit who could consent to the
adoption of a child. By deciding in these cases that consent could
not be arbitrarily and unreasonably withheld, these courts did not
substitute themselves for the consenting agency anymore than this
Court would by concluding that placement for adoption could not be
arbitrarily or unreasonably denied. Therefore, based on precedent
and logic, the majority opinion makes no sense to me when it
concludes that:
Section 40-8-108, MCA restricts who may place a
child for adoption and does not include courts in its
list of who may place a child for adoption. Therefore it
is clear that the courts could not place Baby Girl W.
with the Lewises. No dispute exists that CSS has placed
Baby Girl W. for adoption.
The majority concedes that an agency's refusal to place a
child with prospective adoptive parents may be reviewable to
determine if that refusal was arbitrary and capricious. However,
the majority then goes on to conclude that even if that standard is
adopted, the District Court must be affirmed because it found that
CSSM's refusal was not unreasonable. The problem with the
majority's reasoning and the District Courtf decision is that a
s
finding of reasonableness cannot be made without a determination of
Baby Girl W t s best interests, and no such determination was made in
this case because of the District Court's erroneous conclusion that
5 40-8-108, MCA, prevented it from granting the relatorst petition.
The petitioners in this case received custody of the child
(hereinafter referred to as Natasha) from CSSM on March 30, 1989.
They signed the written contract referred to in the majority
opinion based upon CSSMtsrepresentation that Natasha would remain
with the parties for three months. However, by the time she was
removed from their home, she had lived with them for 27 months; she
had become, for all practical purposes, a member of their family;
and she had developed a close personal bond and relationship with
all members of the family.
According to the District Court's findings:
There is no dispute that Petitioners are very attached to
Natasha, and that she has become attached to Petitioners
and their three children. Further, it is absolutely
clear to this Court that Petitioners provided a safe and
nurturing home for Natasha. It is clear that Petitioners
would be excellent adoptive parents.
The only qualified psychologist to testify on behalf of either
party in the District Court was Dr. Mark Mozer, a clinical
psychologist from Helena. His testimony was summarized by the
District Court as follows:
Dr. Mozer indicated that Petitioners are wonderful
parents and were closely bonded with Natasha. He
testified that, in his view, the risk of harming Natasha
by moving her to California at this stage of the
proceedings is great. He feels that the bond between
Petitioners and Natasha is great and that moving her to
California can cause that bond to be broken and cause
severe problems with her in the future.
Section 40-8-114, MCA, sets forth the paramount public policy
consideration of the Uniform Adoption Act. It provides in relevant
part that:
(1) It is the policy of the state of Montana to ensure
that the best interests of the child are met by adoption
proceedings.
(2) The primary purpose of adoption is to help a
child become a permanent member of a nurturing family
that can give him the care, protection, and opportunities
essential fox his healthy personal growth and
development.
(3) The well-being of the adopted child is the main
objective in the placement of children for adoption. The
needs of the child must be the primary focus of adoption
proceedings, with full recognition of the interdependent
needs and interests of birth parents and adoptive
parents.
It is clear that the District Court did not get to the point
of making the necessary findings in this case because it misapplied
5 40-8-108, MCA. The District Court concluded:
In the first place, Section 40-8-108, PICA, provides
as follows: ''A child may be placed for adoption only by:
the department; a licensed child placing agency; or the
child's parents. This provision is unique to Montana
law. This Court has not found any cases interpreting
this section but it seems to say that an adoption
proceeding cannot begin until one of the parties
designated in Section 40-8-108 (here CSSM) places the
child for adoption. Since CSSM has not placed Natasha
for adoption in Montana, it appears that Petitionerst
argument must fail.
Primarily, however, this Court relies on
Section 40-8-108, MCA. This section provides that a
child can only be placed for adoption by an agency.
Thus, since Natasha has not been placed for adoption in
the State of Montana by CSSM, Petitioners must fail.
Why it made any difference to the District Court where Natasha
was placed for adoption by CSSM is not clear. However, it is clear
that she has been placed for adoption. It is equally clear that
the provision relied on by the District Court was, as pointed out
by the majority, merely for the purpose of limiting black market
placement of children for adoption and does not divest this Court
of authority to review placement decisions to assure that they are
made in the child's best interest.
Without deciding what was in Natasha's best interest, the
District Court could not decide whether the adoption agency's
consent was withheld arbitrarily and capriciously. I would
conclude that any actions taken by CSSM which were for its own
benefit or based on a contract with the foster parents which was
entered into under these circumstances, rather than solely for the
best interests of Natasha, was unreasonable, arbitrary, and
capricious.
I would reverse the District Court and remand this case for
further findings regarding the child's best interests and placement
for adoption that will serve those interests.