IN THE SUPREME COURT OF THE STATE OF MONTANA

OP 10-0345

M.B.J. and J.P.J.,

Petitioners,

V.

MONTANA FOURTH JUDICIAL DISTRICT

COURT, DEPARTMENT 2, The HONORABLE

ROBERT L. DESCHAMPS III,

Respondent.

ORDER

Oir o 5 2010

CIERK Op THE Sinitjj

S TATE O

Petitioners M.B.J. and J.P.J., by counsel (Petitioners), have filed a fAfRT

Writ of Supervisory Control (Petition). Petitioners are prospective adoptive parents of an

infant child who was placed with them by her birth mother in February 2009. The birth

mother has filed a voluntary relinquishment of her parental rights and consent to

adoption. Relying upon the Montana Adoption Act, § 42-1-101 through 42-10-128,

MCA (Adoption Act), counsel for Petitioners represented in District Court that a birth

father who is not married to the child's mother has the primary responsibility to protect

his possible parental rights by complying with the requirements of the Putative Father

Registry (the Registry). Section 42-1-108(2)(f), MCA. Absent such registration, counsel

argued, an unmarried birth mother is under no statutory obligation to identify the birth

father and provide personal service of notice of termination and adoption proceedings

upon him. Petitioners complied with all provisions of the Adoption Act.

On November 6, 2009, following a hearing, the respondent District Court

(Respondent) entered an order refusing to proceed with the adoption proceedings until

such time as the birth mother provides the identity and location of the birth father to

counsel for Petitioners so that he might be served with notice of the adoption proceedings

and given the opportunity to be heard thereon. Respondent concluded that the Registry

fails to adequately safeguard the interests and due process rights of Montana's birth

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October 5 2010
fathers who may be unaware of the birth mother's pregnancy and delivery of a child, and

is therefore unconstitutional. Respondent further indicated in its order that failure of the

birth mother to comply with the court's order may result in a contempt proceeding.

Subsequently, on November 18, 2009, counsel for Petitioners filed two documents

in the District Court: (1) Motion to Reconsider Ruling and Brief in Support, wherein

counsel argued that the putative father registry has been determined to be constitutional

by the United States Supreme Court in Lehr v. Robertson, 463 U.S. 248 (1983) and

sought reconsideration of the court's November 6 order; and (2) Motion for Order

Allowing Service by Publication. The latter document was supported by the affidavit of

counsel for Petitioners, in which counsel set forth his understanding via a conversation

with the birth mother, that the putative father could be either of 2 individuals, both of

whom she met and engaged in relations with while in an inebriated state, and neither of

whom she has had further contact with since leaving Havre (the birth mother now resides

out of state). Further, according to counsel's affidavit, the birth mother was unable to

identify either person with any more specificity and was unable to furnish last names or

other details sufficient to personally serve them with notice of these proceedings.

Finally, counsel stated his belief that any further orders regarding service would not yield

additional information from the birth mother sufficient to accomplish personal service.

Counsel therefore sought leave to accomplish service of notice of the proceedings on the

potential biological fathers by publication.

By order of December 1, 2010, Respondent denied both of the foregoing motions,

and reaffirmed its order of November 6, 2009.

Petitioners seek supervisory control, and ask that we uphold the provisions of the

Adoption Act and vacate the District Court's order so that the adoption may proceed.

Pursuant to Orders of this Court, the Respondent has filed an amended response to

the Petition. In addition, with leave of court, the National Coalition for Men (NCFM) has

filed an amicus curiae brief in support of Respondent's position, and Petitioners have

filed a response to the Brief of NCFM. Both Respondent and NCFM argue that the

Registry unconstitutionally denies putative fathers due process of law because these men
are deprived of notice that their fundamental parental rights are being terminated. The

Respondent further maintains that the best interests of the child mandate actual notice to

the birthfather. Respondent and NCFM therefore request that the Petition for Writ of

Supervisory control be denied and the Respondent's decision affirmed. Petitioners

oppose these requests and seek an order directing the Respondent court to finalize their

adoption.

For the reasons set forth below, we conclude that the exercise of supervisory

control is appropriate.

ANALYSIS

For over a hundred years, we have held fast to the proposition that, where it is

possible to resolve the merits of a case without resort to resolution of the constitutional

question presented, we will do so. Sunburst Sch. Dist. No. 2 v. Texaco, 2007 MT 183,

¶ 62, 338 Mont. 250, 165 P.3d 1079. We will not pass upon the constitutionality of an

act of the Legislature "unless it is absolutely necessary to a decision of the case." State v.

King, 28 Mont. 268, 72 P. 657 (1903). We should be especially mindful of this rule here,

as declaring the Registry provisions unconstitutional could cast into question hundreds of

adoptions finalized over the past 14 years in reliance upon the Act's provisions.

Because the Respondent declared the Registry provisions of the Adoption Act

unconstitutional, the parties and amicus focus their briefing on the constitutional

question. However, none address what will happen to the child or the petition for

adoption should we either uphold or reverse the Respondent's decision. We conclude

that a decision on the constitutional question is not necessary to a resolution of this case

in its present posture, and we therefore decline to resolve the constitutional issue.

As indicated above, under the Registry, the birth mother is not obligated to

identify the birth father or serve upon him personal notice of the termination and adoption

proceedings. While Petitioners insist these Registry provisions are constitutional, they

have nonetheless submitted the affidavit of their counsel in support of a motion for leave

to attempt service on the potential fathers by publication. See above. The affidavit sets

forth details of counsel's conversations with the birth mother. (Notably, the birth mother

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is not counsel's client and is thus not subject to his confidence or control). Petitioners

offered the prospect of service by publication, in lieu of the less restrictive compliance

with the Registry, in an effort to resolve the stalemate now existing in the District Court.

Were we to reach the constitutional issue and uphold the provisions of the

Registry and Adoption Act, then—given Petitioners' compliance with the Adoption

Act—this matter would be remanded with orders to proceed to finalize the adoption.

Were we to declare the Registry unconstitutional, then—as the Respondent noted in its

order of November 6, 2009—service of notice upon the potential fathers in accordance

with § 42-2-605, MCA, would be required. Thus, whether or not we resolve the

constitutional questions, there are only two alternatives: direct the court to immediately

finalize the adoption, or order service on the potential father(s) by some means. We can

therefore resolve the matter without reaching the constitutional question.

The question then becomes how service of notice would be accomplished.

The Court is mindful that the Respondent believes the birth mother knows the

identity and whereabouts of the birth father. Indeed, she told the court that she did know

who the father was. Transcript of Proceedings, September 29, 2009, page 12. Moreover,

the Catholic Social Services Report, attached as Exhibit 1 to the Voluntary

Relinquishment of Parental Rights and Consent to Adoption, reflects that the birth mother

has chosen not to reveal the name of the baby's father. As counsel for Petitioners has

stated in his affidavit, however, the birth mother insists that while she knows the

nicknames of the two possible fathers, she cannot provide last names or locations of these

men so as to accomplish service of notice upon them personally. These various

representations are not necessarily inconsistent, as the birth mother may well know who

the probable father is without knowing his last name or whereabouts. In any event, as

counsel for Petitioners asserts that a contempt order will not bring any additional

information from the birth mother, and the District Court has indicated that contempt

proceedings may result without more information, there is a stalemate in these

proceedings which will persist unless we exercise supervisory control.
Finally, we note that, under § 42-2-605(1), MCA, notice of hearing on a petition

for termination of parental rights "must be served in any manner appropriate under the

Montana Rules of Civil Procedure or in any manner that the court may direct on . . . a

putative father." Understandably, in light of the statutory Registry provisions, service by

publication upon an unidentified putative father is not provided for in M. R. Civ. P.

4(5)(D). However, § 42-2-605(1), MCA, does provide for alternative service "in any

matter that the court may direct."

DISPOSITION

Because the adoption is not final and may never be so given the stalemate here, the

normal appeal process is clearly inadequate. Moreover, unless the stalemate is resolved

in a manner provided by law, a gross injustice will result. We therefore deem it

appropriate to exercise supervisory control in this matter. Accordingly,

IT IS ORDERED:

1. The Petition for Supervisory control is GRANTED.

2. The District Court orders of November 6, 2009, and December 1, 2009, are

VACATED.

3. Pursuant to § 42-2-605(1), MCA, the District Court is directed to accept the

affidavit of counsel for Petitioners in support of motion for service by

publication, and is directed to order service of process by publication upon the

potential father(s), as proposed by counsel for Petitioners and as directed under

§ 42-2-605(2) and (3), MCA. Upon completion of service, the adoption shall

proceed as provided by law.

4. The Clerk of this Court shall serve a copy of this Order upon all counsel of

record and upon the Hon. Robert L. Deschamps III, District Judge, Montana

Fourth Judicial District Court, Department 2, under Cause No. DA-09-10.

DATED this of October, 2010. / ,9

$uL (O4/

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Justice Jim Nelson concurs and dissents.

I agree with the Court that we should accept supervisory control; I also agree that

we should not reach the constitutional issue and that the District Court orders of

November 6, 2009, and December 1, 2009, should be vacated. I am not convinced,

however, that the putative fathers in this case are entitled to any notice whatsoever, there

being no evidence that either complied with the putative father registration laws at Title

42, chapter 2, part 2, MCA. Inasmuch as this Court's Order will not have precedential

value, I am not going to take the time to develop this argument further. Suffice it to say

that I am not persuaded by the rationale of the District Judge or the amicus brief filed by

the National Coalition for Men. Rather, I am persuaded that putative father registry laws

recognize the importance and utility of facilitating infant adoptions. Under circumstances

in which the mother agrees that her infant child should be adopted, time is of the essence

in placing an infant with the adoptive parents. I am not satisfied that the best interests of

the infant or the adoptive parents here will be served by delaying the adoption in this case

indefinitely simply to attempt to give notice to two irresponsible males who chose to have

unprotected, casual sex with an intoxicated woman at a party.

JusticeTh