Ellis v. Social Services Dept. of Church of Jesus Christ of Latter-Day Saints
| Decision Date | 28 July 1980 |
| Docket Number | No. 16881,LATTER-DAY,16881 |
| Citation | 615 P.2d 1250 |
| Parties | Ronald D. ELLIS, Plaintiff and Appellant, v. SOCIAL SERVICES DEPARTMENT OF the CHURCH OF JESUS CHRIST OFSAINTS, L.D.S. Social Services and C______ B______, Defendants and Respondents. |
| Court | Utah Supreme Court |
William A. Stegall, Jr. of Dart & Stegall, Salt Lake City, for plaintiff and appellant.
Allen M. Swan and J. Douglas Mitchell, Salt Lake City, for defendants and respondents.
Plaintiff appeals the dismissal of his amended complaint for writ of habeas corpus whereby he had sought a determination that his illegitimate child was being "illegally restrained" and that he, the putative father, be awarded custody. Inasmuch as no evidence was taken below, there is no evidentiary record before the Court and the allegations of the verified complaint must be considered true for purposes of this appeal. 1
Plaintiff is 23 years of age and C B (hereinafter referred to as "the child's mother") is 18 years of age. Both are residents of California and were engaged to be married on July 16, 1979. Approximately two weeks prior to the wedding, the child's mother terminated the engagement. At this time, both parties were aware that she was pregnant with plaintiff's child.
Several days prior to the birth of the child, the child's mother traveled from California to Utah without plaintiff's knowledge. Shortly after her arrival, she arranged to relinquish custody of the child, upon its birth, to either defendant Social Services Department of the Church of Jesus Christ of Latter-Day Saints or defendant L.D.S. Social Services (hereinafter collectively referred to as the "Agency"). The baby was born on December 15, 1979, and the child's mother advised the Bureau of Vital Statistics of the Division of Health, Utah Department of Social Services (hereinafter the "Bureau") that the father of the child was unknown. On December 19, 1979 she executed an "Affidavit and Release" whereby she relinquished physical custody of the child to the Agency and waived all parental rights thereto.
While still in California and upon learning of the birth of the child and the actions of the child's mother, plaintiff contacted his attorney concerning his parental rights. The attorney then apparently contacted the Agency by telephone on December 21, 1979, and informed it that plaintiff was the father of the child and that he intended to assert his parental rights. Nevertheless, the Agency refused to relinquish custody or to give plaintiff any information as to the child's whereabouts.
On January 2, 1980, plaintiff filed with the Bureau a notice of his claim of paternity and a statement of his willingness and intent to support the child. On January 4, 1980, plaintiff filed his "verified complaint for writ of habeas corpus" and a hearing thereon was scheduled for January 22, 1980. Defendants filed their motion to dismiss on January 14, and a hearing thereon was scheduled for January 21, 1980. Plaintiff filed an "amended complaint for writ of habeas corpus" on January 15. 2 At the January 21 hearing, the court granted defendant's motion to dismiss, from which ruling plaintiff now appeals.
Plaintiff makes three basic arguments on appeal: (1) by publicly acknowledging the child as his, plaintiff has legitimated and adopted the child pursuant to U.C.A., 1953, 78-30-12; (2) the notice of paternity was timely filed in this case; (3) the denial of his action denied plaintiff his constitutional rights of due process and equal protection.
Plaintiff first claims that by notifying the Agency of his paternity, by filing a notice of paternity with the Bureau, and by filing his complaint, plaintiff has publicly acknowledged and adopted the child as his. U.C.A., 1953, 78-30-12 provides as follows:
The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such with the consent of his wife, if he is married, into his family and otherwise treating it as if it were a legitimate child, thereby adopts it as such, and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such an adoption.
In State in Interest of M 3 this Court upheld the express provisions of the statute and ruled that the putative father's right to custody of his illegitimate child is superior to all others, except the child's mother. However, in 1975, the legislature enacted a statute which effectively limited the time in which the putative father may assert those rights where the mother has relinquished her rights to the child. U.C.A., 1953, 78-30-4(3) provides as follows:
(a) A person who is the father or claims to be the father of an illegitimate child may claim rights pertaining to his paternity of the child by registering with the bureau of vital statistics of the division of health, Utah department of social services, a notice of his claim of paternity of an illegitimate child and of his willingness and intent to support the child to the best of his ability. The bureau of vital statistics shall provide forms for the purpose of registering the notices, and the forms shall be made available through the bureau and in the office of the county clerk in every county in this state.
(b) The notice may be registered prior to the birth of the child but must be registered prior to the date the illegitimate child is relinquished or placed with an agency licensed to provide adoption services or prior to the filing of a petition by a person with whom the mother has placed the child for adoption. The notice shall be signed by the registrant and shall include his name and address, the name and last known address of the mother, and either the birthdate of the child or the probable month and year of the expected birth of the child. The bureau of vital statistics shall maintain a confidential registry for this purpose.
(c) Any father of such child who fails to file and register his notice of claim to paternity and his agreement to support the child shall be barred from thereafter bringing or maintaining any action to establish his paternity of the child. Such failure shall further constitute an abandonment of said child and a waiver and surrender of any right to notice of or to a hearing in any judicial proceeding for the adoption of said child, and the consent of such father to the adoption of such child shall not be required.
(d) In any adoption proceeding pertaining to an illegitimate child, if there is no showing that the father has consented to the proposed adoption, it shall be necessary to file with the court prior to the granting of a decree allowing the adoption a certificate from the bureau of vital statistics, signed by its director, which certificate shall state that a diligent search has been made of the registry of notices from fathers of illegitimate children and that no registration has been found pertaining to the father of the illegitimate child in question.
Therefore, whenever the natural mother relinquishes custody of the child either to an agency or to an individual for purposes of adoption, in order to protect his rights under U.C.A., 1953, 78-30-12, the putative father must file a notice of paternity with the Bureau. Where he fails timely to act, he "shall be barred from thereafter bringing or maintaining any action to establish his paternity of the child." 4 In the instant case, the child's mother has relinquished custody of the child for the purpose of adoption, and for plaintiff to avail himself of the provisions relating to "public acknowledgment" of the child, he must show that he has acted timely.
In his second contention on appeal, plaintiff claims that indeed he has timely filed his notice of paternity pursuant to U.C.A., 1953, 78-30-4(3). He urges that paragraph (b) thereof should be interpreted as follows: The putative father's notice must be filed either before the child is relinquished to an adoption agency, or in any event, prior to the filing of a petition for adoption. Such an interpretation is contrary to the express language of the statute. Paragraph (b) specifically provides that if the child is placed privately, the father has until the filing of the adoption petition in which to file his notice of paternity; on the other hand, if the child is placed through an agency, the father has only until the mother relinquishes custody of the child to the agency.
Plaintiff's reliance on paragraph (d) in support of his interpretation of paragraph (b) is misplaced. He asserts that paragraph (d) makes it clear that he has up until a petition for adoption is filed in which to file his notice; otherwise, where notice is filed with the Bureau after custody of the child has been relinquished to an agency, but before the adoption petition is filed, the illegitimate child may not be adopted by anyone. The primary flaw in this argument is that paragraph (d) does not address rights of putative fathers, but rather gives directions to the court in proceedings involving the adoption of illegitimate children. Before a petition for adoption may be granted, 5 the party seeking the adoption must file with the court a certification of the Bureau which indicates whether there is a father's notice of paternity on file pertaining to the illegitimate child in question. If there is no notice on file, the court may grant the petition for adoption. If there is a notice on file, the court must first decide whether it was timely filed pursuant to other provisions of the statute. 6 Indeed, as indicated supra, paragraph (c) bars the father from "maintaining any action to establish his paternity of the child" after the child is given up for adoption. (Emphasis added.)
As a final point on appeal, plaintiff challenges the constitutionality of U.C.A., 1953, 78-30-4(3), claiming it to be contrary to basic notions of equal protection and due process. 7
Plaintiff challenges the unequal treatment of...
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