556 So.2d 545 (La. 1990), 89-CA-2522, In re Adoption of B.G.S.

Docket Nº:89-CA-2522, 89-CD-2797.
Citation:556 So.2d 545
Party Name:In re ADOPTION OF B.G.S.
Case Date:February 05, 1990
Court:Supreme Court of Louisiana

Page 545

556 So.2d 545 (La. 1990)


Nos. 89-CA-2522, 89-CD-2797.

Supreme Court of Louisiana.

February 5, 1990

Page 546

Tracy R. Bishop, Guy W. Smith, Simon, Peragine, Smith & Redfearn, Mark McTernan, McTernan, Parr & Ramage, New Orleans, for appellant.

Evangeline G. Abriel, New Orleans, Catherine L. LaFleur, Loyola Law School Clinic, Robin Shulman, Attorney at Law, for appellee.

Guy W. Smith, Tracy Bishop, Simon, Peragine, Smith & Redfearn, New Orleans, for applicants.

Evangeline G. Abriel, Catherine L. LaFleur, Loyola Law School Clinic, Mark McTernan, McTernan, Parr & Ramage, New Orleans, Robin Shulman, for respondents.

DENNIS, Justice.

The question in this case is whether the State may, consistent with the constitutional guarantees of due process, empower the mother of an illegitimate child to terminate the parental rights of the unwed father of the child without notice and an opportunity to be heard.

  1. Facts

    R.S., an unwed sixteen-year-old girl, discovered that she was pregnant in June of 1989. She decided not to tell her parents, Mr. and Mrs. S., because of her strained relationship with them. R.S. informed V.L., her nineteen year-old boyfriend and father of the child, that she was pregnant, and he mentioned marriage. R.S. could not decide whether to marry V.L. Mr. and Mrs. S. soon became suspicious, and in July Mrs. S. took R.S. to see a gynecologist. The doctor confirmed that R.S. was approximately eight months pregnant. Several days later, Mr. and Mrs. S. met with V.L. and R.S. to discuss what should be done. Mr. and Mrs. S. suggested that the child be surrendered for adoption, and R.S. acquiesced. V.L. told them that while adoption sounded advisable, he wanted to think about it before making a final decision. Approximately one week later, V.L. informed R.S. and Mr. and Mrs. S. that he wanted to raise the child himself and was opposed to the adoption.

    Mrs. S. and R.S. informed R.S.'s doctor that they intended to surrender the baby for adoption. The doctor informed one of her infertile patients, who was interested in an adoption, that R.S.'s baby might be available. The infertile patient employed an attorney to petition for a private adoption.

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    Meanwhile, V.L. also consulted a lawyer, who informed him that he must have his name placed on the baby's birth certificate in order to prevent the adoption.

    When R.S. went into labor on August 8, 1989, she called V.L. He accompanied R.S. and her mother to the hospital. V.L. stayed with R.S. during her labor and visited with her after the birth. During labor, V.L. asked a hospital representative to place his name on the birth certificate and informed both the representative and Mrs. S. that he did not want to surrender the baby for adoption.

    R.S. testified that she did not know prior to September, 1989, that she could place V.L.'s name on the birth certificate. Her father had taken charge of filling out the birth certificate application. V.L. asked Mr. S. to put his name on the certificate at the hospital, but Mr. S. refused. V.L. was not able to see R.S. alone at the hospital and her parents prevented their visits and discouraged their communications for some time afterwards.

    R.S. gave birth to B.G.S., a baby girl, on August 8, 1989. The day after the baby's birth, August 9, V.L. filed an authentic act of acknowledgment with the clerks of court in both Orleans and Jefferson Parishes pursuant to La.R.S. 9:422.14. In the acknowledgment, he requested that his name be placed on B.G.S.'s birth certificate. During this time, V.L. was not allowed to see the baby because of the hospital's policy regarding babies that were scheduled to be adopted.

    On August 16, R.S. and her parents executed an authentic act of surrender, and surrendered the baby to the prospective adoptive parents. V.L. was not a party to the act of surrender. On the same day, he contacted the office of vital statistics to inquire about having his name placed on the birth certificate, and he was given a form that required R.S.'s signature. On August 31, V.L. filed a "Petition for Habeas Corpus and/or Request of Information Concerning Status of B.G.S." in district court in Jefferson Parish. A hearing was held on this petition on September 7, at which time it was established that B.G.S. had been given to the adoptive parents, who remained anonymous. V.L. then amended his petition to make Tracy Bishop, the attorney for the adoptive parents, and the adoptive parents themselves (as John and Jane Doe) defendants, and to seek custody, visitation and/or the identity of the adoptive parents. He also filed a notice of his intent to oppose the adoption, and had this notice served on Ms. Bishop.

    After R.S. left the hospital, despite Mr. and Mrs. S.'s interference, V.L. managed limited communications with her. V.L. repeated his requests to be named as father and renewed his vow to oppose the adoption and to raise the child himself. Finally, on September 21, R.S. executed the acknowledgment of paternity that V.L. had received from the office of vital statistics, and V.L. obtained a new birth certificate designating him as the father of B.G.S.

    On September 22, the adoptive parents filed a petition for adoption in the Jefferson Parish Juvenile Court. V.L. timely moved to intervene and dismiss the adoption on the basis that his name was placed on the birth certificate and that he had not consented to the adoption pursuant to La.R.S. 9:422.4(A). On September 28 a hearing was held on V.L.'s September 7 motion for custody, visitation and/or revelation of the identity of the adoptive parents. The case was taken under advisement, and the district court ultimately stayed the proceedings pending the outcome of the adoption proceedings.

    The juvenile court, following the provisions of the private adoption statute held that because the child was illegitimate and V.L.'s name did not appear on her birth certificate, V.L.'s right to veto the adoption terminated upon the surrender of the child by the mother, and that V.L.'s only recourse was to attempt to show that the adoption was not in the child's best interest in the adoption proceeding. After a further evidentiary hearing ordered by the court of appeal, however, the juvenile court declared unconstitutional the statute that prevented an unwed father from placing his name on his child's birth certificate without the mother's consent, held that the

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    surrender and adoption proceedings were invalid with respect to V.L. for lack of his consent, but upheld the mother's surrender of the child as terminating her parental rights.

    In the meantime, on October 4, 1989, R.S. and V.L. were married after having obtained a waiver of parental consent pursuant to La.R.S. 9:212.

    Pursuant to La. Const. art. V, Sec. 5(D)(1), the adoptive parents appealed to this court from the juvenile court's judgment declaring a law unconstitutional on October 31. On R.S.'s motion, the juvenile court consolidated her appeal from the judgment upholding her surrender with this proceeding. 1 On November 2, we ordered the juvenile court to hold a best interest hearing to determine who should have custody of the child pending our decision. We clarified our order on November 10 to allow R.S. to intervene and to participate in the best interest hearing. The hearing was held on November 15. On November 17, following the guidelines set forth in In re J.M.P., 528 So.2d 1002 (La.1988), the trial judge awarded temporary custody of the child to her natural father, V.L., after finding this disposition to be in the child's best interests. The adoptive parents applied for a writ from this court to review the best interest ruling. We granted a writ to review the temporary custody ruling on December 6 and consolidated the matter with the pending appeals. These consolidated matters have been submitted after oral and written arguments.

  2. Statutory Scheme Limiting Natural Rights of Parents

    In the absence of a statute, the natural right of a parent to his child requires that his consent must be obtained before his parental rights and duties may be terminated and reestablished in adoptive parents. Roy v. Speer, 249 La. 1034, 192 So.2d 554 (1966); Green v. Paul, 212 La. 337, 31 So.2d 819 (1947); State ex rel. Simpson v. Salter, 211 La. 918, 31 So.2d 163 (1947); Adoption of Edwards, 369 So.2d 210 (La.App. 3d Cir.1979); Comment, In re CDT: The Need For Greater Clarity in Private Adoption, 44 La.L.Rev. 845, 847 (1984). Consequently, unless parental rights have been severed by consent or lawful process, a parent has the right of withholding his consent to the adoption or the surrender of custody of his child to a third person. In re J.M.P., 528 So.2d 1002 (La.1988); State ex rel. Martin v. Garza, 217 La. 532, 46 So.2d 760 (1950); State ex rel. Birch v. Baker, 147 La. 319, 84 So. 796 (1920). The private adoption statutes purport to drastically limit this right by establishing a scheme whereby the mother of an illegitimate child may, without the consent of the natural father, terminate his right to withhold such consent by surrendering the child for adoption after refusing to put his name on the child's birth certificate.

    When the identity of the father of an illegitimate child is not indicated on the birth certificate, the mother's act of surrendering the child for adoption "terminates all parental rights whatsoever," except for his standing to oppose the adoption at the best interest hearing. La.R.S. 9:422.8. Moreover, the father may not place his name on the birth certificate without the mother's consent. La.R.S. 40:34(B)(1)(a)(iv) and (h).

    Consequently, the mother of an illegitimate child has the power to deprive the unwed father of his natural parental right to custody and to veto the adoption by withholding his consent...

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