Adoption of BGB, In re, 14529

• Decision Date: 13 September 1979
• Docket Number: No. 14529,14529
• Citation: 183 Mont. 347,36 St.Rep. 1638,599 P.2d 375
• Parties: In re the Matter of the ADOPTION OF BGB, a minor.
• Court: Montana Supreme Court

Page 375

599 P.2d 375

183 Mont. 347

In re the Matter of the ADOPTION OF BGB, a minor.

No. 14529.

Supreme Court of Montana.

Submitted March 19, 1979.

Decided Sept. 13, 1979.

Robert Tucker, Great Falls (argued), for appellant.

William R. Baldassin, Missoula (argued), Carroll C. Blend, Great Falls, for respondent.

SHEA, Justice.

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 voluntariness 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 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 prospective 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 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 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. Nonetheless, we conclude that venue under the Uniform Parentage Act was properly in Cascade County.

The child, the natural parents, and the natural grandparents all resided in Cascade...