Swayne v. LDS Social Services, Civ. No. 87-C-0591G.

• Decision Date: 03 September 1987
• Docket Number: Civ. No. 87-C-0591G.
• Citation: 670 F. Supp. 1537
• Parties: Steven H. SWAYNE, Plaintiff, v. L.D.S. SOCIAL SERVICES, John Doe, Jane Doe and Leslie Doe, in his or her official capacity as a District Court Judge of the Third District Court of the State of Utah, Defendants.
• Court: U.S. District Court — District of Utah

670 F. Supp. 1537

Steven H. SWAYNE, Plaintiff, v. L.D.S. SOCIAL SERVICES, John Doe, Jane Doe and Leslie Doe, in his or her official capacity as a District Court Judge of the Third District Court of the State of Utah, Defendants.

Civ. No. 87-C-0591G.

United States District Court, D. Utah, C.D.

September 3, 1987.

M. David Eckersley, Billy L. Walker, Jr., Salt Lake City, Utah, for plaintiff.

David M. McConkie, B. Lloyd Poelman, Salt Lake City, Utah, for defendants.

MEMORANDUM DECISION AND ORDER

J. THOMAS GREENE, District Judge.

This matter came on for hearing on July 27, 1987 on defendants' motion to dismiss and plaintiff's motion for a preliminary injunction. Defendants were represented by David M. McConkie and B. Lloyd Poelman and plaintiff was represented by M. David Eckersley and Billy L. Walker, Jr. Plaintiff and defendants submitted memorandums of law and a stipulated statement of facts and the court heard oral argument, after which the matters were taken under advisement. The court is now fully advised and sets forth its Memorandum Decision and Order.

BACKGROUND

This suit is brought by plaintiff against L.D.S. Social Services, a non-profit private adoption agency affiliated with the Church of Jesus Christ of Latter-day Saints; John Doe and Jane Doe, who are prospective adoptive parents of the newborn child of which plaintiff is the biological father; and Leslie Doe, who is asserted to be a District Court Judge of the Third District Court of Utah who plaintiff believes has presently before him or her a petition for adoption. Plaintiff has brought suit under 42 U.S.C. § 1983 and requests that this court declare that he has the right of custody, care and control of the newborn child, that the provisions of Utah Code Ann. § 78-30-4 (1984) be declared violative of the United States Constitution, that Judge Doe be enjoined from entering any Decree of Adoption without plaintiff's consent, and that damages be awarded as against defendant L.D.S. Social Services. The immediate matter of a preliminary injunction involves a request by plaintiff that he be granted custody and that defendant L.D.S. Social Services be enjoined from continuing to exercise custody over the child.

Plaintiff and defendants have filed a statement containing the following stipulated facts:

1. Steven Swayne is the natural father of a baby girl born out of wedlock on June 4, 1987.

2. Penny Paxman is the mother of the child.

3. Both Steven Swayne and Penny Paxman are life-long residents of the State of Utah and resided in the State of Utah at all times pertinent to the facts and circumstances in this matter.

4. Steven Swayne first learned that Penny Paxman was pregnant in October, 1986.

5. Steven Swayne and Penny Paxman are not now married nor have they ever been married. At no time during Penny Paxman's pregnancy or prior to the relinquishment of the child to L.D.S. Social Services did Steven Swayne offer to marry Penny Paxman or offer to financially support Penny Paxman.

6. At no time during the pregnancy or prior to the relinquishment of the child did Steven Swayne and Penny Paxman have any plan or intention to live together in a family unit.

7. Steven Swayne was present in the hospital when the child was born on June 4, 1987, and visited the child and Penny Paxman while they were in the hospital. While in the hospital, Mr. Swayne was told that it was necessary for him to sign a document in order to have his name placed on the child's birth certificate. Mr. Swayne did not sign the necessary document or acknowledgment of paternity before the child was discharged from the hospital or before the child was relinquished to L.D.S. Social Services and therefore his name does not appear on the child's birth certificate.

8. Penny Paxman's mother discharged Penny and the baby from the hospital on June 6, 1987, and made financial arrangements for hospital expenses. Mr. Swayne has not paid any of the hospital expenses or paid any of the expenses for the baby's support.

9. Prior to the pregnancy and during the course of the pregnancy, Penny Paxman resided with her parents. After being released from the hospital, Penny Paxman and her child returned to her parent's home.

10. Steven Swayne offered to make arrangements for Penny Paxman to move in with his mother. However, Penny Paxman would have provided her own living expenses.

11. Penny Paxman signed an affidavit releasing the child to L.D.S. Social Services on June 8, 1987, and physically surrendered custody of the child the next day.

12. Steven Swayne did not register with the Registrar of Vital Statistics in the Department of Health 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 prior to the date the illegitimate child was relinquished or placed with L.D.S. Social Services for adoption.

13. Steven Swayne filed his acknowledgment of paternity on June 15, 1987, which was the first working day after he learned that the child had been placed for adoption.

14. During the course of the pregnancy, Steven Swayne and Penny Paxman discussed the fact that Penny Paxman's parents wanted her to place the baby for adoption. Penny Paxman did not inform Mr. Swayne that she did or did not intend to surrender the child for adoption.

15. L.D.S. Social Services placed the child for adoption with an adoptive family on June 12, 1987, in conformity with the requirements of Utah statutes.

16. In the event Steven Swayne is granted custody of the child, Mr. Swayne intends to place the child under the primary care of members of his family until such time as he can become more stable.

17. On June 15, 1987, Steven Swayne and Penny Paxman requested an amendment to the birth certificate of the child naming Steven Swayne as the father of the child.

18. During the course of the pregnancy and thereafter Mr. Swayne told his family and others that he was the father of the child.

19. Penny Paxman took the baby to Steven Swayne's apartment for a short visit once before the relinquishment to L.D.S. Social Services and once after the relinquishment.

20. Mr. Swayne was unaware of his duty to file an acknowledgment of paternity and willingness to support the child until after the child had been released by the mother for adoption.

21. On June 15, 1987, both Mr. Swayne and Penny Paxman appeared at the offices of L.D.S. Social Services and asked that custody be given to Mr. Swayne.

22. L.D.S. Social Services has testified that at the time of the relinquishment of the child to L.D.S. Social Services Penny Paxman did not disclose the identity of Steven Swayne and advised L.D.S. Social Services that he would not take responsibility for the child and that she did not want L.D.S. Social Services to contact him.

23. On February 9, 1986, Steven Swayne consented to the adoptive placement of another illegitimate child by a different woman. L.D.S. Social Services requested and obtained his consent.

Defendant L.D.S. Social Services urges this court to dismiss plaintiff's complaint for lack of jurisdiction because of failure to allege "state action," and on the further ground that this court should abstain from exercising jurisdiction in favor of resolution by the state courts of Utah. The defendants also urge dismissal of plaintiff's motion for preliminary injunction primarily because of lack of substantial likelihood of success on the merits.

LEGAL ANALYSIS

I. State Action

The Fourteenth Amendment to the United States Constitution provides in part: "No state shall make or enforce any law which shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (emphasis added). The protections of the Fourteenth Amendment thus apply only if the deprivation of life, liberty, or property is by governmental "state action" rather by than purely private action. The fundamental policies of the state action principle are to preserve an area of individual freedom to make choices without the constraints of the Constitution's prohibitions, to further the policy of federalism by reserving to the state discretion to deal with perceived private wrongs without the constraints of supreme federal law, and to further the policy of separation of powers by limiting the wrongs redressable by the federal judiciary absent congressional enactment granting such authority.¹

The "liberty" interest asserted by plaintiff in this case involves termination of all parental rights in connection with his newborn child, including visitation and custodial rights. Without delving deeply into the merits, this court recognizes that plaintiff has asserted a liberty interest that has been acknowledged by the Supreme Court to be worthy of constitutional protection.² The statute which plaintiff seeks to challenge under due process and equal protection provides that the father of an illegitimate child conclusively is presumed to have abandoned his child if he fails to file a claim of paternity and notice of willingness to support the child prior to the time the child is placed by the mother with a licensed adoption agency, or prior to the time a petition is filed by a person with whom the mother has placed the child for adoption.³ The state action question is whether termination of plaintiff's parental rights by operation of the above statute implicates the actors in a private adoption to the extent that they may be considered to be state actors for the purpose of testing whether plaintiff's parental rights were constitutionally terminated. This court is persuaded that the statute has such an effect. In Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) the Supreme Court delineated a two-step inquiry in resolving the issue of state action:

First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of

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