October 5 2010
IN THE SUPREME COURT OF THE STATE OF MONTANA
OP 10-0345
M.B.J. and J.P.J.,
Petitioners,
V.
ORDER
MONTANA FOURTH JUDICIAL DISTRICT
COURT, DEPARTMENT 2, The HONORABLE
ROBERT L. DESCHAMPS III,
Respondent. Oir o 5 2010
CI ERK Op THE Sinitjj
S TATE O fAfRT
Petitioners M.B.J. and J.P.J., by counsel (Petitioners), have filed a
Writ of Supervisory Control (Petition). Petitioners are prospective adoptive parents of an
infant child who was placed with them by her birth mother in February 2009. The birth
mother has filed a voluntary relinquishment of her parental rights and consent to
adoption. Relying upon the Montana Adoption Act, § 42-1-101 through 42-10-128,
MCA (Adoption Act), counsel for Petitioners represented in District Court that a birth
father who is not married to the child's mother has the primary responsibility to protect
his possible parental rights by complying with the requirements of the Putative Father
Registry (the Registry). Section 42-1-108(2)(f), MCA. Absent such registration, counsel
argued, an unmarried birth mother is under no statutory obligation to identify the birth
father and provide personal service of notice of termination and adoption proceedings
upon him. Petitioners complied with all provisions of the Adoption Act.
On November 6, 2009, following a hearing, the respondent District Court
(Respondent) entered an order refusing to proceed with the adoption proceedings until
such time as the birth mother provides the identity and location of the birth father to
counsel for Petitioners so that he might be served with notice of the adoption proceedings
and given the opportunity to be heard thereon. Respondent concluded that the Registry
fails to adequately safeguard the interests and due process rights of Montana's birth
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fathers who may be unaware of the birth mother's pregnancy and delivery of a child, and
is therefore unconstitutional. Respondent further indicated in its order that failure of the
birth mother to comply with the court's order may result in a contempt proceeding.
Subsequently, on November 18, 2009, counsel for Petitioners filed two documents
in the District Court: (1) Motion to Reconsider Ruling and Brief in Support, wherein
counsel argued that the putative father registry has been determined to be constitutional
by the United States Supreme Court in Lehr v. Robertson, 463 U.S. 248 (1983) and
sought reconsideration of the court's November 6 order; and (2) Motion for Order
Allowing Service by Publication. The latter document was supported by the affidavit of
counsel for Petitioners, in which counsel set forth his understanding via a conversation
with the birth mother, that the putative father could be either of 2 individuals, both of
whom she met and engaged in relations with while in an inebriated state, and neither of
whom she has had further contact with since leaving Havre (the birth mother now resides
out of state). Further, according to counsel's affidavit, the birth mother was unable to
identify either person with any more specificity and was unable to furnish last names or
other details sufficient to personally serve them with notice of these proceedings.
Finally, counsel stated his belief that any further orders regarding service would not yield
additional information from the birth mother sufficient to accomplish personal service.
Counsel therefore sought leave to accomplish service of notice of the proceedings on the
potential biological fathers by publication.
By order of December 1, 2010, Respondent denied both of the foregoing motions,
and reaffirmed its order of November 6, 2009.
Petitioners seek supervisory control, and ask that we uphold the provisions of the
Adoption Act and vacate the District Court's order so that the adoption may proceed.
Pursuant to Orders of this Court, the Respondent has filed an amended response to
the Petition. In addition, with leave of court, the National Coalition for Men (NCFM) has
filed an amicus curiae brief in support of Respondent's position, and Petitioners have
filed a response to the Brief of NCFM. Both Respondent and NCFM argue that the
Registry unconstitutionally denies putative fathers due process of law because these men
are deprived of notice that their fundamental parental rights are being terminated. The
Respondent further maintains that the best interests of the child mandate actual notice to
the birthfather. Respondent and NCFM therefore request that the Petition for Writ of
Supervisory control be denied and the Respondent's decision affirmed. Petitioners
oppose these requests and seek an order directing the Respondent court to finalize their
adoption.
For the reasons set forth below, we conclude that the exercise of supervisory
control is appropriate.
ANALYSIS
For over a hundred years, we have held fast to the proposition that, where it is
possible to resolve the merits of a case without resort to resolution of the constitutional
question presented, we will do so. Sunburst Sch. Dist. No. 2 v. Texaco, 2007 MT 183,
¶ 62, 338 Mont. 250, 165 P.3d 1079. We will not pass upon the constitutionality of an
act of the Legislature "unless it is absolutely necessary to a decision of the case." State v.
King, 28 Mont. 268, 72 P. 657 (1903). We should be especially mindful of this rule here,
as declaring the Registry provisions unconstitutional could cast into question hundreds of
adoptions finalized over the past 14 years in reliance upon the Act's provisions.
Because the Respondent declared the Registry provisions of the Adoption Act
unconstitutional, the parties and amicus focus their briefing on the constitutional
question. However, none address what will happen to the child or the petition for
adoption should we either uphold or reverse the Respondent's decision. We conclude
that a decision on the constitutional question is not necessary to a resolution of this case
in its present posture, and we therefore decline to resolve the constitutional issue.
As indicated above, under the Registry, the birth mother is not obligated to
identify the birth father or serve upon him personal notice of the termination and adoption
proceedings. While Petitioners insist these Registry provisions are constitutional, they
have nonetheless submitted the affidavit of their counsel in support of a motion for leave
to attempt service on the potential fathers by publication. See above. The affidavit sets
forth details of counsel's conversations with the birth mother. (Notably, the birth mother
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is not counsel's client and is thus not subject to his confidence or control). Petitioners
offered the prospect of service by publication, in lieu of the less restrictive compliance
with the Registry, in an effort to resolve the stalemate now existing in the District Court.
Were we to reach the constitutional issue and uphold the provisions of the
Registry and Adoption Act, then—given Petitioners' compliance with the Adoption
Act—this matter would be remanded with orders to proceed to finalize the adoption.
Were we to declare the Registry unconstitutional, then—as the Respondent noted in its
order of November 6, 2009—service of notice upon the potential fathers in accordance
with § 42-2-605, MCA, would be required. Thus, whether or not we resolve the
constitutional questions, there are only two alternatives: direct the court to immediately
finalize the adoption, or order service on the potential father(s) by some means. We can
therefore resolve the matter without reaching the constitutional question.
The question then becomes how service of notice would be accomplished.
The Court is mindful that the Respondent believes the birth mother knows the
identity and whereabouts of the birth father. Indeed, she told the court that she did know
who the father was. Transcript of Proceedings, September 29, 2009, page 12. Moreover,
the Catholic Social Services Report, attached as Exhibit 1 to the Voluntary
Relinquishment of Parental Rights and Consent to Adoption, reflects that the birth mother
has chosen not to reveal the name of the baby's father. As counsel for Petitioners has
stated in his affidavit, however, the birth mother insists that while she knows the
nicknames of the two possible fathers, she cannot provide last names or locations of these
men so as to accomplish service of notice upon them personally. These various
representations are not necessarily inconsistent, as the birth mother may well know who
the probable father is without knowing his last name or whereabouts. In any event, as
counsel for Petitioners asserts that a contempt order will not bring any additional
information from the birth mother, and the District Court has indicated that contempt
proceedings may result without more information, there is a stalemate in these
proceedings which will persist unless we exercise supervisory control.
Finally, we note that, under § 42-2-605(1), MCA, notice of hearing on a petition
for termination of parental rights "must be served in any manner appropriate under the
Montana Rules of Civil Procedure or in any manner that the court may direct on . . . a
putative father." Understandably, in light of the statutory Registry provisions, service by
publication upon an unidentified putative father is not provided for in M. R. Civ. P.
4(5)(D). However, § 42-2-605(1), MCA, does provide for alternative service "in any
matter that the court may direct."
DISPOSITION
Because the adoption is not final and may never be so given the stalemate here, the
normal appeal process is clearly inadequate. Moreover, unless the stalemate is resolved
in a manner provided by law, a gross injustice will result. We therefore deem it
appropriate to exercise supervisory control in this matter. Accordingly,
IT IS ORDERED:
1. The Petition for Supervisory control is GRANTED.
2. The District Court orders of November 6, 2009, and December 1, 2009, are
VACATED.
3. Pursuant to § 42-2-605(1), MCA, the District Court is directed to accept the
affidavit of counsel for Petitioners in support of motion for service by
publication, and is directed to order service of process by publication upon the
potential father(s), as proposed by counsel for Petitioners and as directed under
§ 42-2-605(2) and (3), MCA. Upon completion of service, the adoption shall
proceed as provided by law.
4. The Clerk of this Court shall serve a copy of this Order upon all counsel of
record and upon the Hon. Robert L. Deschamps III, District Judge, Montana
Fourth Judicial District Court, Department 2, under Cause No. DA-09-10.
DATED this of October, 2010. 9
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Justice Jim Nelson concurs and dissents.
I agree with the Court that we should accept supervisory control; I also agree that
we should not reach the constitutional issue and that the District Court orders of
November 6, 2009, and December 1, 2009, should be vacated. I am not convinced,
however, that the putative fathers in this case are entitled to any notice whatsoever, there
being no evidence that either complied with the putative father registration laws at Title
42, chapter 2, part 2, MCA. Inasmuch as this Court's Order will not have precedential
value, I am not going to take the time to develop this argument further. Suffice it to say
that I am not persuaded by the rationale of the District Judge or the amicus brief filed by
the National Coalition for Men. Rather, I am persuaded that putative father registry laws
recognize the importance and utility of facilitating infant adoptions. Under circumstances
in which the mother agrees that her infant child should be adopted, time is of the essence
in placing an infant with the adoptive parents. I am not satisfied that the best interests of
the infant or the adoptive parents here will be served by delaying the adoption in this case
indefinitely simply to attempt to give notice to two irresponsible males who chose to have
unprotected, casual sex with an intoxicated woman at a party.
JusticeTh