No. 14529 

IN THE SUPREME COW OF THE STATE OF MINTANA 

1979 

IN RF: THE MA?TER OF THE ADOPTION OF 

BGEi, a minor. 

Appeal from: District Court of the Eighth Judicial District, 

Hon. Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Robert Tucker argued, Great Falls, Wntana 

For Respondent: 

William R. Baldassin argued, Missoula, Wntana 

Carroll C. Blend, Great Falls, Wntana 

Sutsnitted: March 19, 1979 

Decided: SEF 1 :? 1979 

SEt - , -, *,d 

Filed: - 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

The natural mother 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 

further permitted them to start adoption proceedings in 

Missoula County, the county of their residence. 

The issues raised in this appeal are made more 

confusing by 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 is not 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 

requires us, 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 Parentage Act (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 Parentage Act, 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 adoption proceedings. 

The main dispute is centered around section 40-6-124(7) 

of the Uniform Parentage Act, which reads as follows: 

"Upon petition 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 court with which the release 

was filed may grant a hearing to consider 

whether the release should be revoked. A 

release may 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 the mother's argument is that the statute 

requires her before filing an action to set aside a 

parental release, to first obtain the consent of the prospective adoptive parents, and that such consent would 

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 

release was involuntarily obtained. But this failure is 
complicated by a subsequent stipulation entered into by 

the parties as will be more fully explained as we set 

forth the facts. 

The child was born on May 18, 1978, and on the same 

day the mother executed a document entitled a relinquishment 

and consent by natural parents. In addition, the father 

and his parents (being that he was a minor) executed similar 

documents on the same day. The releases provided in 

pertinent part: 

"That she [the mother] intends hereby to, 

and does, voluntarily and irrevocably relinquish 

all of her parental rights in and to [the child] 

to [the prospective adoptive parents], knowing 

that [the prospective 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 

adoptive parents. On the same day, the District Court entered 

an order in accordance with 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, which was, of course, the proper county to bring 

an adoption proceeding under the Uniform Adoption Act (section 

40-8-107, MCA) . 

Adoption proceedings were started in Missoula County 

but were halted when the natural mother filed her petition 

in the Cascade County District Court to set aside the parental 

release and consent to adopt which she had signed. We note 

here that the parental release and consent to adopt was 

contained in one document, which is contrary to the requirements 
stated in section 40-6-124, MCA. We do not consider 

this defect, however, to be fatal in the context of this 

case. 

The mother'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 allegation was 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 

releases and consent to adopt was based on the adoption 

statutes rather than the Uniform Parentage Act, and therefore 

that the parental termination petition should have been 

filed in Missoula County. 

Before the hearing on her petition, a stipulation 

signed by lawyers for both sides was 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, shall be 

reserved for hearing at a later date." We read this 

provision to mean that the mother did not concede that the 

parental releases had been voluntarily obtained. There 

is nothing in the record to refute this. 

Based upon this stipulation as 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 

adopt was 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 

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of the District Court, and the case was then appealed 

by the mother with the issue of voluntariness left 

dangling in mid-air. That is the reason we 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 for purposes 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 the memorandum 

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. Because we must remand for a hearing on the issue 

of voluntariness, there is, of course, a distinct possibility 

that a second appeal will result. We do not encourage this 

kind of issue splitting as it creates a needless waste of 

judicial resources. Moreover, in the context of the welfare 

of the child involved, it is clearly not in its best interest 

to prolong this litigation. 

The litigation has been unnecessarily prolonged by the 

parties in this case. The cat and mouse game too frequently 

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fostered by the adversary system has 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 is not specifically provided for in the Act. Only one 

statute provides guidance as to venue, section 40-6-109, 

MCA. Read in its entirety, it is clear that it is directed 

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 petition was filed under 

the Uniform Parentage Act to obtain court approval of the 

releases. We fail to see how the ends of justice would 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 constitutionality of 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 

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is first obtained. The statute does not expressly 

require this reading, and it would 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 adoption may do so 

by formally executing a release whereby all 

parental rights to the child are voluntarily 

relinquished to an agency of the state of 

Montana, a licensed adoption agency, or a 

person." (Emphasis added.) 

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 one who voluntarily signs 

a parental release cannot willy-nilly revoke that release. 

The same policy 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 revocation be obtained by 

all those who 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 "the district court may 

grant a hearing to consider whether the releases should be 

revoked . . ." Obviously, some degree of discretion is left 

with the District Court to determine what is in the best 

interests of the child. Assuming a parental release to be 
voluntarily 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 is not 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, cannot be 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 constitutional on 

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 can be started alleging an involuntary execution of a parental release. 

It is clear that by implication, the District Court 

reached the same conclusion that we reached. However, its 

decision went the additional step of finding that the 

release had been voluntarily executed because the mother 

had so "conceded." The record before us does not reveal 

such concession and for this reason, we must remand for a 

hearing on the issue of voluntariness of the parental release. 

A final issue raised by the mother is that section 

40-6-124(1), MCA, does not permit the release of parental 

custody to "a person" for purposes of adoption, and therefore 

that the court had no authority to terminate parental custody 

of the mother in favor of the prospective adoptive parents. 

The mother relies on Montana Department of Social and Rehabilitation 

Services v. Angel (1978) , Mont . , 577 P.2d 1223, 

35 St-Rep. 532. But she misreads this case as well 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." (Emphasis added.) 
Here the parental releases were 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 the Angel case, the persons receiving 

the child from the natural parent served only as a conduit 

to later place the child with someone else for permanent 

adoption. It was this practice that we condemned and held 

to be in violation of the spirit of 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 case was not ready for appellate review within the meaning 

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 

adoptive parents. Moreover, once the notice of appeal was 

filed, neither party informed this Court that the issue of 

voluntariness had been specifically reserved for a later hearing 

and determination. 

Implicit in the mother's argument in her brief is an 

acknowledgement that only legal points were decided by the 

District Court, and that factual determinations 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, shall be reserved for hearing 

at a later date." 
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 8 hearing. 

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 case was 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 there was no factual issues 

concerning fraud, duress, or undue influence 

in connection with the execution of the 

relinquishments and consents, stipulated 

as to the legal issues to be argued and decided 

at the August 8 hearing." 

If there was 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 

determination by the District Court that the parental release 

was voluntarily executed, without any evidentiary foundation 

whatsoever. There is nothing in the record whereby 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 appeal had been filed. But once he had 
determined the status of the case and what had and had not 

been decided at the District Court level, it was his duty 

to determine if the case was then properly on appeal. If, 

for example, he had concluded that the District Court had not 

decided all issues necessary to a final resolution of this 

case, it would 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 dismiss because all 

issues necessary to an appeal had not been decided by the 

District Court. 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 District Court. Indeed, though the District Court decision 

was based on the mother's "conceded" voluntary parental release, 

not once did counsel refer this Court to any place in the 

record where 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 8 hearing on the legal issues was had without the 

presence of a court reporter, and we find no concessions in 

the District Court 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 from moving 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. 

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Too often this Court is confronted with cases that 

are not ready for appellate review within the meaning 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 attention by an 

appropriate motion to dismiss so that it can be 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 first been 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 a method 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 full explanation by the district judge who certifies 

the case to us, and a full explanation by 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