State ex rel. J. D. S. v. Edwards

• Decision Date: 18 December 1978
• Docket Number: No. 60634,60634
• Parties: STATE of Missouri ex rel. J. D. S., a minor child by his guardian ad litem, and J. D. M., Relators, v. The Honorable Ninian M. EDWARDS, Judge of the Juvenile Court of St. Louis County, Missouri, Respondent.
• Court: Missouri Supreme Court

Page 405

574 S.W.2d 405

STATE of Missouri ex rel. J. D. S., a minor child by his guardian ad litem, and J. D. M., Relators, v. The Honorable Ninian M. EDWARDS, Judge of the Juvenile Court

of St. Louis County, Missouri, Respondent.

No. 60634.

Supreme Court of Missouri, En Banc.

Dec. 18, 1978.

Robert C. Dodson, Festus, for relator (Father).

Elizabeth R. Levine, Clayton, for relator (Atty. and Guardian).

Martin Schiff, Jr., Clayton, Michael Bastian, St. Louis (of counsel), for respondent.

RENDLEN, Judge.

Relators J.D.M., the putative father and J.D.S., his illegitimate son, sought prohibition in the Court of Appeals, St. Louis District, to prevent the Judge of the Juvenile Court of St. Louis County from transferring the guardianship and custody of the child to the State Division of Family Services after terminating the parental rights of only the child's unwed mother. The Court of Appeals issued its writ prohibiting respondent from making such custodial change. The cause was transferred here and though such transfer was ordered following opinion in the Court of Appeals, "we consider the case the same as one that had been commenced as an original proceeding in this court." State ex rel. Adrian Bank v. Luten, 488 S.W.2d 636, 637 (Mo. banc 1973).

The principal questions presented are (1) may the State constitutionally terminate parental rights without providing the putative father an opportunity to protect his status as a parent, and (2) if he is entitled to such opportunity, against what standard shall his substantive rights be measured in parental termination proceedings?

The relator-child was born out of wedlock on May 19, 1976, and almost immediately the mother K.L.S., then a minor, executed her consent to the termination of parental rights and a waiver of the necessity of consent to her son's future adoption. The Division of Family Services placed the child in a foster home about May 24, 1976, where he has remained under order of respondent throughout these proceedings.

The father states that since the birth of the child, he has repeatedly demanded custody and that "visits between the father and child have continuously been arranged through the Agency since the child's birth." Respondent in his brief concedes the correctness of these statements.

On March 22, 1977, the juvenile officer of St. Louis County, Missouri, petitioned the Juvenile Division of the Circuit Court of St. Louis County, naming K.L.S. as the mother and J.D.M. as the father, praying that the court terminate all Parental rights of the mother and transfer legal custody of the child to the Division of Family Services. Notified of the proceedings, the father filed a request for an admission that he was the natural father of the child, and the mother and juvenile officer admitted the relationship.

On April 6 a hearing was conducted, but before testimony was taken the father moved (1) to intervene under Rule 52.12(a) and (2) to dismiss for failure to state a cause of action, contending that termination of his parental rights without his consent constituted a denial of due process and equal protection in violation of the fifth and fourteenth amendments to the United States Constitution and art. I, §§ 2 and 10 of the Missouri Constitution. Respondent overruled both motions whereupon evidence was taken and at the close of the hearing, the father moved for a judgment against the juvenile officer for the same reasons he had previously advanced. Respondent also overruled this motion, stating that under §§ 211.441-.511, and particularly § 211.501, RSMo 1969, only the mother of an illegitimate child has parental rights and unless prohibited by a court of competent jurisdiction he would on June 1, 1977, enter a judgment terminating the parental rights of the mother, declaring as a matter of law that the natural father "does not have any parental rights in the child," and transferring custody of the child to the Division of Family Services, all pursuant to §§ 211.441-.511, RSMo 1969, and ch. 453, RSMo 1969 and Supp.1975.

The Court of Appeals, in the subsequent prohibition action, ruled that the termination of parental rights statute, §§ 211.441-.511, RSMo 1969, and the adoption code, ch. 453, RSMo 1969 and Supp.1975, are unconstitutional "insofar as they deny putative fathers parental rights" and accordingly prohibited respondent from entering the order placing the child with the Division of Family Services.

The then controlling statute on termination of parental rights ¹ established the following procedures: A petition for termination may be filed "as provided in other cases of children coming under the jurisdiction of the court, . . ." § 211.441. It shall include the reasons for seeking termination and, in the case of an illegitimate child, the name and address of the mother and of the father if he has been adjudged the father or has acknowledged his paternity in writing. § 211.451(3) and (5). A hearing by the juvenile court is required. § 211.461.1. Among the persons to be summoned and to receive a copy of the petition are the Parents of the child; also, summons shall issue to any persons whose presence the court deems necessary or whose presence is requested by the parent, guardian or petitioner. Id. In order to terminate parental rights, the court under § 211.501.1 must find that such termination is in the best interest of the child and that any one of several conditions prescribed in § 211.441 ² must exist.

The key statutory section here at issue is § 211.501.2, which provides:

If the court terminate(s) the parental rights of both parents, (or) Of the mother if the child is illegitimate, . . . it may transfer the guardianship and legal custody of the child to a suitable person, or the state division of welfare (now the Division of Family Services), or a licensed child welfare agency. (Emphasis added.)

Respondent construed this section as precluding the putative father from asserting any rights to his minor child in such proceedings. As noted above, § 211.451(3) requires that a petition for termination of parental rights shall name "the father of a child born out of wedlock who has acknowledged paternity in writing or has been adjudged the father . . . ." From this it could be argued that the father of an illegitimate child must be given notice and allowed to participate in any termination proceeding. Notwithstanding this seemingly inconsistent provision of the statute, we believe that respondent correctly construed the crucial statutory section, 211.501.2, as permitting severance of All parental rights in the case of an illegitimate child though rights of Only the mother had been terminated. For the reasons hereinafter discussed we hold that to the extent sections 211.441 to 211.511 so permit, they are unconstitutional.

In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the U.S. Supreme Court addressed the constitutionality of an Illinois statute automatically rendering minor illegitimate children wards of the State upon the death of their mother. The unmarried father in Stanley had lived with the mother intermittently for eighteen years and three children had been born to them. The Court determined that under the due process clause of the fourteenth amendment the father, having manifested a strong interest in the control and custody of his children, was entitled to a hearing on the issue of his fitness as a parent before the children could be taken from him. The Court pointed out that under the Illinois law,

the State, on showing that the father was not married to the mother, need not prove unfitness in fact, because it is presumed at law. Thus the unwed father's claim of parental qualification is avoided as 'irrelevant.'

405 U.S. at 650, 92 S.Ct. at 1212. The Court concluded, Id. at 657, 92 S.Ct. at 1215.

(W)hen, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand,

and declared the Illinois procedure a constitutionally impermissible denial of process due the putative father. It also ruled, because other Illinois parents were entitled to a hearing on their fitness before their children are removed from their custody, that "denying such a hearing to Stanley and those like him while granting it to other Illinois parents is inescapably contrary to the Equal Protection Clause." Id. at 658, 92 S.Ct. at 1216.

It is clear that §§ 211.441-.511, particularly § 211.501, to the extent they deny putative fathers any opportunity for a hearing on their rights in parental termination proceedings, are violative of the due process and equal protection guaranteed by the fourteenth amendment to the United States Constitution and thus void.

We now determine the proper standard for application in proceedings convened to determine the substantive rights of putative fathers relative to their children. Section 221.441 provides that Married fathers' parental rights may be terminated only (1) on a showing by "clear, cogent and convincing evidence" that one of the prescribed statutory conditions (E. g., abandonment or neglect) exists and (2) that termination "is in the best interest of the child." See also § 211.501. A legislative recognition of married fathers' presumption of fitness is manifest in the high level of proof required by the statute to support a finding of unfitness as to them. However, we believe that an unwed father initially has no such strong presumption of parental fitness. The State is not constitutionally required to accord such presumption. Instead the State is free to require an unwed father first to prove that he has seasonably demonstrated a meaningful intent and a continuing capacity to assume responsibility with respect to the supervision, protection and care of the child,...