No. 14529 INTHE SUPREMECOWOFTHE STATEOFMINTANA 1979

INRF:THEMA?TER OFTHEADOPTIONOF BGEi, aminor.

Appeal from: DistrictCourtof theEighthJudicialDistrict, Hon. Joel G. Roth, Judgepresiding. Counsel of Record: ForAppellant: RobertTuckerargued, GreatFalls, Wntana For Respondent: William R. Baldassin argued, Missoula, Wntana CarrollC. Blend, GreatFalls, Wntana

Sutsnitted: March 19, 1979 Decided: 

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## -, *,d Filed: -Mr. JusticeDaniel J. Shea delivered the Opinion of the Court.

The naturalmother 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 furtherpermitted them to start adoption proceedings in Missoula County, the county of their residence. The issues raised in this appeal are made more confusingby 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 isnot 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 requiresus,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 ParentageAct (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 ParentageAct, 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 adoptionproceedings. Themain dispute is centered around section 40-6-124(7) of the Uniform ParentageAct, which reads as follows: "Uponpetition 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 courtwith which the release was filedmay grant a hearing to consider whether the release should be revoked. A releasemay 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 themother's argument is that the statute requires her before filing an action to set aside a parental release,to firstobtain the consent of the prospective adoptive parents, and that such consentwould 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 releasewas involuntarily obtained. But this failure iscomplicated by a subsequent stipulationentered into by the parties aswill be more fully explained as we set forth the facts. The childwas born on May 18, 1978, and on the same day themother executed a document entitled a relinquishment and consent by natural parents. In addition, the father and his parents (beingthat he was aminor) executed similar documents on the same day. The releasesprovided in pertinent part: "That she [themother] intends hereby to, and does, voluntarily and irrevocably relinquish all of her parental rights in and to [the child] to [theprospective adoptiveparents], knowing that [theprospective 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 adoptiveparents. On the same day, the District Court entered an order in accordancewith 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, whichwas, of course, the proper county to bring an adoption proceeding under the Uniform Adoption Act (section 40-8-107,MCA)

# . Adoption proceedingswere started in Missoula County but were halted when the natural mother filed her petition in the Cascade County DistrictCourt to set aside the parental release and consent to adoptwhich she had signed. We note here that the parental release and consent to adoptwas contained in one document,which is contrary to the requirementsstated in section 40-6-124,MCA. We do not consider this defect,however, to be fatal in the context of this

case.Themother'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 allegationwas 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 releasesand consent to adoptwas based on the adoption statutes rather than the Uniform ParentageAct, and therefore that the parental terminationpetition should have been filed in Missoula County. Before the hearing on her petition, a stipulation signed by lawyers forboth sideswas 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, shallbe reserved forhearing at a later date." We read this provision tomean that the mother did not concede that the parental releaseshad been voluntarily obtained. There isnothing in the record to refute this. Based upon this stipulationas 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 adoptwas 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 -5-of the District Court, and the casewas then appealed by themother with the issue of voluntariness left dangling inmid-air. That is the reasonwe 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 forpurposes 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 thememorandum 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. Becausewemust remand for a hearing on the issue of voluntariness, there is, of course, a distinct possibility that a second appealwill result. We do not encourage this kind of issue splitting as it creates a needless waste of judicial resources. Moreover, in the context of thewelfare of the child involved, it is clearly not in its best interest to prolong this litigation. The litigationhas been unnecessarily prolonged by the parties in this case. The cat and mouse game too frequently -6-fostered by the adversary systemhas 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 isnot specifically provided for in theAct. Only one statute provides guidance as to venue, section 40-6-109, MCA. Read in its entirety, it is clear that it isdirected 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. Nontheless, 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 County at the time the releases

were obtained and at the time the petitionwas filed under the Uniform ParentageAct to obtain court approvalof the releases. We fail to seehow the ends of justicewould have been better served by filing the petition in Missoula County, the residence of the prospective adoptive parents. Had this been done, a substantially larger burden would have been placed on those who might wish to contest the validity of the parental releases. Accordingly, we find no error in filing the petition in Cascade County. Concerning the constitutionalityof section 40-6-124(7), MCA, we do not read it as prohibiting an action to contest the voluntariness of the parental releases unless the consent of the person or entity to whom the child has been released -7-is first obtained. The statute does not expressly require this reading,and itwould be an unreasonable construction to read such requirement into the statute. When read in its entirety, section 40-6-124, PICA, contemplates that the procedure contained in subsection (7)is required only when there is no issue of voluntariness of the parental release. Subsection (1)provides: "(1) Any parent or guardian who proposes to relinquish custody of a child for purposes of placing the child for adoptionmay do so by formally executing a releasewhereby all parental rights to the child are voluntarily relinquished to an agency of the state of Montana, a licensed adoption agency,or a person." (Emphasisadded.) Clearly, a construction of this section along with subsection (7)of the same statute requires a determination that a strong public policy interest exists surrounding the finality of parental releases,and onewho voluntarily signs

a parental release cannotwilly-nilly revoke that release. The samepolicy considerations, however, are obviously not operative in a situation involving an involuntary parental release. If for some reason one seeks to revoke a parental release voluntarily executed, it is in the interest of all concerned that consent to such revocationbe obtained by all thosewho are covered by the terms of the statute. We note, however, that even though all the required consents be obtained, the statute does not require an automatic revocation \of the release. It states only that "thedistrict courtmay

grant a hearing to consider whether the releases should be revoked 

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# . ." Obviously, somedegree of discretion is left with the District Court to determinewhat is in the best interests of the child. Assuming a parental release to bevoluntarily executed, sections 40-6-124(1) and 40-6-124(7), MCA, assure that the status of a child who is the subject of the parental release isnot in a state of perpetual flux. Sections 40-6-124 (1)and 40-6-124(7),MCA do not require a conclusion that a parental release allegedly involuntarily executed, cannotbe contested unless the consent is first obtained of the person or agency to whom the child has been released. Clearly, the consents are required only when the parental release has been voluntarily executed. We determine therefore, that subsection (7)is constitutionalon its face and that the statute reasonably applied,does not require consent of the parties to whom the child has been released before an action canbe started alleging an involuntary execution of a parental release. It is clear that by implication, the District Court reached the same conclusion thatwe reached. However, its decisionwent the additional step of finding that the releasehad been voluntarily executed because the mother had so "conceded." The record before us does not reveal such concession and for this reason,wemust remand for a hearing on the issue of voluntariness of the parental release. A final issue raised by themother is that section 40-6-124(1),MCA, does not permit the release of parental custody to "aperson" forpurposes of adoption, and therefore that the court had no authority to terminate parental custody of the mother in favor of theprospective adoptiveparents. Themother relies on Montana Department of Social and Rehabilitation Servicesv. Angel (1978)

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# . , 577 P.2d 1223, 35 St-Rep. 532. But shemisreads this case aswell as the statute. Section 40-6-124(1), MCA, provides that the release may be executed "to an agency of the state of Montana, a licensed adoption agency, or - a person." (Emphasisadded.)Here the parental releaseswere executed directly to the prospective adoptive parents; they did not serve as

a conduit for placing the child with someone else for permanent adoption. In theAngel case, the persons receiving the child from the natural parent served only as a conduit to later place the child with someone else forpermanent adoption. Itwas thispractice that we condemned and held to be inviolation of the spiritof the statutes involved. Those factors do not exist in this case. Elsewhere in this opinion,we expressed our dissatisfaction with the status of this case on appeal. Because of the stipulation reserving the issue of voluntariness for a later determination, this casewas not ready for appellate reviewwithin themeaning of Rule l(a), M0nt.R.App.Civ.P. Though the parties knew or should have known the case was in this status, nonetheless,the mother appealed with the complete acquiescence of the prospective adoptiveparents. Moreover, once the notice of appealwas filed,neither party informed this Court that the issue of voluntariness had been specifically reserved for a later hearing and determination. Implicit in themother's argument in her brief is an acknowledgement that only legal points were decided by the DistrictCourt,and that factualdeterminations such as voluntariness, remained for decision. On the other hand, the prospective adoptive parents assert that the District Court decided, and properly so, the issue of voluntariness of the parental release. Their positions compared with the precise words of the stipulation are revealing. The stipulation signed by counsel for both parties, read: "That all factual issues, including those relating to duress, fraud,undue influence and best interest, if any, shallbe reserved for hearing at a laterdate."By this stipulation,we have no doubt that the parties realized the issue of voluntariness of the parental release was not to be decided at the August 8hearing. Without quoting from this stipulation,or referring this Court to the precise stipulation in the District Court file, the mother states in her brief: "Attorneys for both parties, prior to hearing, had stipulated that the hearing be confined to a discussion and determination of legal issues only, and therefore no testimony or other evidence was presented." Clearly,by taking this position, counsel for the mother should have recognized that the casewas prematurely appealed, and therefore should have moved to dismiss the appeal without prejudice. On the other hand, counsel for the prospective adoptive parents states in his brief in reference to the stipulation: "Prior to hearing, counsel for both parties, determining that therewas no factual issues concerning fraud,duress,or undue influence in connection with the execution of the relinquishmentsand consents, stipulated as to the legal issues to be argued and decided at theAugust 8hearing." If therewas an additional stipulation other than the one

we have quoted, counsel did not quote from it nor refer this Court to it. Rather, he relies in his brief on the factual determinationby the District Court that the parental release

was voluntarily executed,without any evidentiary foundation whatsoever. There is nothing in the recordwhereby the parties stipulated to the nonexistence of factual issues concerning fraud, duress, or undue influence in relation to the execution of the parental release. We recognize,of couse, that counsel representing the mother in this appeal is not the same counsel who handled her

case at the trial court level,and that he entered this case after the notice of appealhad been filed. But once he haddetermined the status of the case and what had and had not been decided at the District Court level, itwas his duty to determine if the casewas then properly on appeal. If, for example,he had concluded that the DistrictCourt had not decided all issues necessary to a final resolution of this case, itwould have been a simple matter to move this Court to dismiss this appeal without prejudice so that all issues could first be decided at the District Court level. Likewise, counsel for the prospective adoptive parents could have filed an appropriate motion to dismissbecause all issues necessary to an appeal had not been decided by the DistrictCourt. But he did not do so. Rather,without any basis in the record before this Court,he repeatedly relied

on the District Court's determination that the parental release had been voluntarily executed. But nowhere in his brief did he establish a factual foundation for such a determination by the DistrictCourt. Indeed, though the District Court decision

was based on themother's "conceded"voluntary parental release, not once did counsel refer this Court to any place in the recordwhere this concession appears. It should have been clear to both parties that the District Court decision basing the issue of voluntariness

on the mother's concession,had no basis in the record. (The August 8hearing on the legal issueswas had without the presence of a court reporter,and we find no concessions in the DistrictCourt file.) Though counsel for the mother entered this case after filing of the notice of appeal, and therefore he could not have moved the District Court to reconsider the basis of its opinion on the issue of voluntariness of the parental release,this did not prevent him frommoving this Court for a motion to dismiss the appeal and to remand the case to the District Court for a hearing on the issue of voluntariness. -12-Too often this Court is confrontedwith cases that

are not ready for appellate review within themeaning of the rules,but where the opposing parties do not bring this crucial fact to our attention. We often do not discover this until we are deeply into the process of review and indeed often in the opinion-writing stage. We cannot and will not tolerate this state of affairs. If the case is not ready for review, it should not be appealed. If for some reason it is appealed prematurely, it is the duty of the parties to bring this to our attentionby an appropriate motion to dismiss so that it canbe remanded to the District Court. This Court does not have the time and the

resources to be compelled to independently search the record to determine if all essential issues have firstbeen decided at the District Court level. The exception to the normal rule is, of course,a question that is certified to us under Rule 54(b), ~~lont.R.~iv.~. But we do not encourage use of this rule unless it is clearly warranted by the nature of the case and the legal issues presented. It should not be used as amethod to sidestep the normal appellate process except in extreme cases justifying its use. If Rule 54b)isused as a vehicle to take an appeal which would be otherwise premature,we expect, as part of that process, a fullexplanationby the district judgewho certifies the case to us, and a full explanationby the parties to the appeal. For the foregoing reasons, the order of the District Court is affirmed in part, but vacated and remanded for a hearing and ruling on the issue of the voluntariness of the parental release.We Concur:

Chief Justice

Justices