IN THE SUPREME COURT OF MISSISSIPPI

NO. 92-CA-01177-SCT

JOE W. SMITH, JR., JOE W. SMITH, AND CLOVIS

SMITH

v.

NATALIE CASH MALOUF, ALEX J. MALOUF, JR.,

AND PATRICIA MALOUF

DATE OF JUDGMENT: 10/21/92

TRIAL JUDGE: HON. EUGENE M. BOGEN

COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: J. BRAD PIGOTT

MARY MARVEL FYKE

ATTORNEYS FOR APPELLEES: JAMES W. BURGOON, JR.

JAMES E. UPSHAW

F. EWIN HENSON, III

NATURE OF THE CASE: CIVIL - TORTS (OTHER THAN PERSONAL

INJURY AND PROPERTY DAMAGE)

DISPOSITION: REVERSED AND REMANDED - 9/24/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 10/15/98

EN BANC.

BANKS, JUSTICE, FOR THE COURT:

¶1. Here we are confronted with a challenge to the propriety of the lower court's dismissal of a suit,

which alleged intentional infliction of emotional distress, conspiring to prevent the appellant-father

from exercising his parental rights and conspiring to effect an illegal adoption of a child born out of

wedlock. Because they have no standing, we affirm the dismissal of the appellant-grandparents' claim.

The appellant-father, on the other hand, should have been afforded his day in court on his claims of

intentional infliction of emotional distress and conspiracy to deprive him of his parental rights.

Accordingly, we reverse and remand this matter to the trial court for further proceedings.

I.

¶2. In May 1989, teenagers Joey Smith and Natalie Malouf began dating, and in August 1991,
Natalie discovered that she was pregnant. She told Joey about the pregnancy on August 16. The

following day Joey asked Natalie to marry him, and they discussed their options regarding the baby

although no decision was made at that time. Joey and Natalie told her parents (hereinafter "the

Maloufs") about the pregnancy. The Maloufs told Joey the child would be put up for adoption and

the pregnancy would be kept private until then.

¶3. The next day, August 18, Joey returned to the Maloufs' home in an attempt to change their minds

about the adoption. Their minds were set. On August 19 Joey confided in his pastor about the

pregnancy. Together, they told his parents (hereinafter "the Smiths") that Joey would soon be a

father. After finding out about the baby, the Smiths went to the Maloufs and told them that they did

not want the child to be placed for adoption and that they were willing to take full responsibility for

the child. The Maloufs remained firm in their decision regarding the child's adoption.

¶4. The record is not clear, but it would appear that Natalie and Joey's romance went sour soon after

she discovered she was pregnant. When he called her on September 7, Natalie asked him not to call

again. At some point in that month, Joey consulted an attorney about the situation, but he did not

take any formal action at that time. A few months later in December, the Smiths visited Natalie at

school in Indiana. According to the Maloufs, the Smiths kidnapped and badgered Natalie regarding

the child's adoption.

¶5. In January 1992, Joey went to the Maloufs' home and was told that Natalie was gone and that she

would not be back until the child was born. On January 14, 1992, Joey initiated legal proceedings

against Natalie in the Leflore County Chancery Court, seeking a declaration of paternity, order for

custody of the child and injunctive relief to stop adoption proceedings within and outside Mississippi.

Because Natalie could not be reached for service of process, she was served by publication on three

separate dates -- February 21 and 28 and March 6. On March 9, one of Natalie and Joey's mutual

friends called Joey and asked him to drop the suit against Natalie, informing him Natalie said she

would not put the child up for adoption if he dropped the suit.

¶6. Joey applied for a temporary restraining order enjoining the commencement of adoption

proceedings on March 12. The TRO was served on Natalie via her father. On March 27, the

chancellor issued a permanent injunction in the form of a final judgment, enjoining Natalie and "all

who might assist her" from proceeding with an adoption. Joey and his parents mailed the chancellor's

order to all Vital Statistics offices in the State of Mississippi. He also hired investigators to trace

Natalie's whereabouts. On April 18, Natalie called Joey and told him the birth of their child was

imminent and that she was healthy. She asked him to sign the adoption papers, and she also

mentioned private adoption.

¶7. The baby was born on April 21, 1992 in Marietta, Georgia. After discovering her whereabouts,

Joey went to Georgia and retained an attorney to assist in getting custody of the child. However, his

attempts were too late. Natalie and her parents traveled to California where the baby was adopted to

Canadian parents.

¶8. Joey and his parents sued Natalie and her parents in circuit court, alleging civil conspiracy and

intentional infliction of emotional distress. In September 1992, Natalie and her parents filed motions

to dismiss the complaint. The chancellor stayed all proceedings in chancery court and suspended all

prior orders except the declaration of Joey's paternity. On October 2, 1992, Joey's California attorney
learned that the child had been adopted by parents in Alberta, Canada. The Canadian adoption was

put on hold pending the resolution of the Mississippi action. On October 22, the circuit court granted

the 12(b)(6) motions to dismiss filed by the Maloufs and Natalie. Joey filed notice of appeal from that

order on November 13, 1992.

¶9. Joey and the Smiths assign as error the following:

ISSUE I

THE COURT ERRED IN RULING THAT BECAUSE JOEY SMITH IS AN UNWED

FATHER (RATHER THAN AN UNWED MOTHER), HE HAS NO PARENTAL

RIGHTS TO RECEIVE NOTICE OF ANY ADOPTION OF, OR TO OBJECT TO ANY

ADOPTION OF, OR TO SEEK LEGAL CUSTODY UPON THE BIRTH OF, HIS

BIOLOGICAL CHILD.

ISSUE II

THE CIRCUIT COURT'S RULING THAT MR. AND MRS. JOE SMITH LACKED

STANDING TO CLAIM DAMAGE, FLOWING EITHER FROM THE DEFENDANTS'

UNLAWFUL CONSPIRACY OR FROM THE DEFENDANTS' INFLICTION OF

EMOTIONAL DISTRESS UPON THEM, WAS ERRONEOUS.

ISSUE III

PLAINTIFFS ESTABLISHED ALL ELEMENTS OF THEIR CLAIMS FOR

PURPOSES OF RULE 12.

ISSUE IV

THE CHANCERY ORDER ENTERED IN A SEPARATE JUDICIAL PROCEEDING,

THAT DEFENDANTS SEEK TO INSERT INTO THE RECORD IN THE INSTANT

CAUSE, IN NO WAY ADVERSELY AFFECTS PLAINTIFFS' CLAIMS FOR RULE 12

PURPOSES.

ISSUE V

THE DISTRICT COURT ERRED IN HOLDING THAT JOEY SMITH WAS LIMITED

TO SEEKING REDRESS FOR THE TORTIOUS ACTIONS OF THE MALOUFS BY

RESORT TO CONTEMPT PROCEEDINGS IN THE CHANCERY COURT.

ISSUE VI

THE DISTRICT COURT ERRED IN HOLDING THAT BECAUSE THE

DEFENDANTS WERE EXERCISING UNSPECIFIED "RIGHTS TO TRAVEL
FREELY THROUGHOUT THE UNITED STATES AND TO BE LEFT ALONE,"

THEY WERE SHIELDED FROM LIABILITY FOR DAMAGES CAUSED BY THEIR

INTENTIONAL TORTS.

II.

a.

¶10. This Court, in adjudicating Rule 12(b)(6) motions, has held that upon a motion for dismissal

pursuant to M.R.C.P. 12(b)(6) for failure to state a claim upon which relief can be granted, the

pleaded allegations of the complaint must be taken as true, and a dismissal should not be granted

unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of

his claim which entitles him to relief. Overstreet v. Merlos, 570 So. 2d 1196, 1197 (Miss. 1990).

¶11. "A motion to dismiss under MRCP 12(b)(6) tests the legal sufficiency of the complaint . . . . [T]

o grant this motion there must appear to a certainty that the plaintiff is entitled to no relief under any

set of facts that could be proved in support of the claim." Busching v. Griffin, 465 So. 2d 1037,

1039 (Miss. 1985). In Carpenter v. Haggard, 538 So. 2d 776, 777 (Miss. 1989), this Court further

explained that "[u]nder the MRCP it is only necessary for the complaint to show that the plaintiff is

entitled to some relief in court in order to survive a Rule 12(b)(6) motion." The dismissal of a

complaint on a 12(b)(6) motion is reviewed de novo. Tucker v. Hinds County, 558 So. 2d 869, 872

(Miss. 1990); UHS-Qualicare, Inc. v. Gulf Coast Community Hosp., Inc., 525 So. 2d 746, 754

(Miss. 1987).

b.

¶12. We first examine whether Joey had a right to notice of the adoption of his child or a right to

object to that adoption under state or federal law. If under current law Joey was so entitled but was

prevented from achieving such by and through the actions of Natalie and her parents, the Maloufs,

then he is indeed entitled to a trial on his conspiracy and tort claims. With that issue in mind, we

begin by looking at the pertinent Mississippi statutes and case law governing this issue.

¶13. Miss. Code Ann. § 93-17-5 (1994) provides in relevant part:

In the case of a child born out of wedlock, the father shall not be deemed to be a parent for the

purpose of this chapter, and no reference shall be made to the illegitimacy of such child [during

the adoption process].

The effect of this provision is that the putative father of a child does not have to be notified of an

adoption proceeding because he is not considered a parent under the statute and parents are the only

parties statutorily required to be made parties to the adoption proceeding. Thus, § 93-17-5 expressly

indicates that Joey was not entitled to notice of the adoption of his child nor was his consent to the

adoption necessary.(1) Thus under the statutory law of this state, Joey has no right to complain about

the adoption of the child. See Humphrey v. Pannell, 710 So. 2d 392, 395 (Miss. 1998).

¶14. Despite the conclusiveness of § 93-17-5, several United States Supreme Court decisions

demonstrate the unconstitutionality of our statute. In fact, the constitutionally suspect nature of § 93-

17-5 was recognized recently by this Court in Humphrey v. Pannell. There we stated that:
Although Miss. Code Ann. § 93-17-5 and applicable decisions of this Court do not require

notification of the natural unwed father of an illegitimate child, applicable United States

Supreme Court decisions nevertheless make it clear that this Mississippi statute [§ 93-17-5]

would be unconstitutional in its application in certain cases, particularly in cases in which the

natural unwed father has attempted to establish a substantial relationship with the child.

Id. at 396 (citing N. Shelton Hand, Mississippi Divorce, Alimony, and Child Custody, § 21-5 (3rd.

ed. 1992)).

¶15. Beginning with Stanley v. Illinois, 405 U.S. 645, 651-63 (1972), the United States Supreme

Court for the first time stated that under certain circumstances the Constitution protected the parental

rights of an unwed father. These circumstances included instances in which the putative father had

participated in the "companionship, care, custody, and management" of his child. Under those

circumstances, his custodial rights to the child could not be revoked without a hearing to determine

his parental fitness.

¶16. Since this seminal case, the Supreme Court has clarified and in many ways expanded the rights

of unwed fathers. Six years after Stanley, the Supreme Court in Quilloin v. Walcott, 434 U.S. 246

(1978) rejected a putative father's quest to veto the adoption of his eleven-year-old child. The Court

found that the father wholly failed to have or seek custody of the child nor had he ever shouldered

any significant responsibility with respect to the daily supervision, education, protection and care of

the child. Thus, that case established the requirement of a meaningful relationship with the child and

not simply proof of biology.

¶17. Then there was Caban v. Mohammed, 441 U.S. 380 (1979) where the unwed father had

custody of his children for several years. Under the applicable New York law, the putative father was

merely entitled to notice of the proposed adoption of his children following the mother's death and an

opportunity to present evidence on the children's best interest. A sharply divided Supreme Court

struck down the New York statute on equal protection grounds, concluding that the undifferentiated

distinction between unwed mothers and unwed fathers did not bear a substantial relationship to the

State's asserted interests. The Court further found that the father and children had lived together for

many years, thereby having established and maintained a significant, supportive relationship. The

Court therefore concluded the father should have the privilege of vetoing the adoption of his children.

Once again, the Supreme Court was greatly influenced by the fact that the putative father had

initiated and carried out a substantial relationship with the children.

¶18. Lehr v. Robertson, 463 U.S. 248, 261-62 (1983) dealt with an unwed father's attempt to block

the adoption of his child by the stepfather. The Supreme Court noted that putative father had never

lived with the child or mom, nor had he provided any type of financial support. In short, the father

had never "grasped the opportunity to form a relationship" with his child even though the pertinent

statute provided him ample procedural protection to do so. As such, the Supreme Court rejected his

equal protection claims, likening the father to Quilloin, who also had never even attempted to

establish a substantial relationship with the child.

¶19. While the preceding cases provided much needed protection to the rights of those unwed fathers

who had "grasped the opportunity" to establish a relationship with their children, they failed to
address the issue before us -- what, if any, constitutional protections should be given to a putative

father whose child was adopted immediately after birth, thereby prohibiting him from establishing any

type of substantial relationship with the child. This very situation has been addressed by the New

York County Surrogate Court in In re Adoption of Baby Girl S, 535 N.Y.S.2d 676 (1988).

¶20. There, the child was born on April 24, 1988. Id. at 677. The adoption proceedings commenced

on May 4. On March 2 -- fifty-three days before the child was born -- the unwed father filed a

petition to establish his paternity and obtain custody of the unborn child. Id. After several failed

attempts, the mother was served with an order on May 6 to show cause that restrained her "from

removing or causing the removal" of the child from the county.

¶21. On May 13, counsel for the mother and father appeared in Family Court. The mother's attorney

failed to inform the court that she had given birth on April 24 and that the child had been placed for

adoption in New York County. The restraining order was continued and the matter was adjourned

until June 9. In the interim, the mother appeared in the Surrogate Court to place her consent to the

adoption on the record. On June 9, the mother told the trial judge and the putative father that she had

given birth. The judge ordered the mother to appear in court with the baby on June 14. On that date,

she came to court and informed the judge that she had surrendered the baby for adoption. That same

day, the father filed with the Putative Father Registry. The next day his attorney informed the

Surrogate Court about the paternity and custody proceedings initiated by the father.

¶22. The Surrogate Court appointed a guardian ad litem for the child, and a trial on the issue of

paternity was scheduled for July 18. On the morning of trial, the mother admitted she lied about her

husband being the father of the child and that the attorney for the adoptive parents had advised her to

give the "mistaken" responses. The putative father was determined to be the father of the child, and a

hearing was scheduled to determine his rights in the adoption proceeding.

¶23. At this hearing, the mother announced that she wished to revoke her consent to the adoption

and to either take custody of the child or give her to the father. The mother also corroborated the

father's testimony from the paternity hearing. Specifically, she confirmed that he told her upon finding

out that she missed her menstrual period, "I love you and want to marry you." The mother further

admitted that at one point she told the father she was not pregnant and then terminated their

relationship. Also she disclosed that the attorney advised her to say she found out about the adoptive

parents via an advertisement in the paper because the attorney was not supposed to be the gobetween for an adoption. Id. at 678. When the father learned (from a friend) about the pregnancy, he

asked the mother to give the child to him. At one point, he even went to see her and offered her $8,

000 to help pay for her expenses. The mother continued to tell him the baby was not his. The

mother's testimony established that she and the adoptive parents worked in concert to "mastermind

something" to deal with "the latest Gus [the putative father] issue," knowing that the mother's

estranged husband -- whose consent to the adoption they submitted -- was not in fact the child's

father.

¶24. The Surrogate Court found that the adoptive parents (both attorneys) and their counsel

orchestrated the whole proceeding so that the court would not discover the omission of Gustavo

from the adoption petition. The petition was, in the Surrogate Court's words, "a blatant attempt to

make an end run around the Family Court proceedings." Id. at 680. The Court further concluded that
when the mother consented to the adoption in Surrogate Court she violated the lower court's

restraining order. In short, the Court determined that the adoption proceeding was "permeated with

fraud and misrepresentation" and dismissed it accordingly. Id.

¶25. Despite this ruling, the Court went on to state that Gustavo had "grasped the opportunity" to

develop a relationship with his daughter and accepted responsibility for her future. Furthermore, the

Court noted to hold that no unwed father has a right to prevent an unwed mother from placing their

child for adoption immediately at birth would create an invidious gender-based distinction between

the rights of unwed fathers and unwed mothers. Id. at 684.

¶26. Baby Girl S was affirmed by the New York Court of Appeals in the consolidated case of In re

Raquel Marie X., 559 N.E. 2d 428 (N.Y. 1990). Addressing whether "the full measure of

constitutional protection -- the right to a continued parental relationship absent a finding of unfitness

-- [is] ever required where a child is placed for adoption before any real relationship can exist, and if

so, what actions on the unwed father's part would demonstrate his willingness to take parental

responsibility sufficient to give rise such rights," that court of appeals concluded that such an interest

must be recognized in appropriate circumstances as a matter of federal constitutional law. Id. at 424.

In order to fall within this constitutional protection, however, the unwed father must come forward

to immediately assume parental responsibilities and he must do so in a prompt and substantial

manner, including public acknowledgment of paternity, payment of pregnancy and birth expenses,

steps taken to establish legal responsibility for the child, and other factors evincing a commitment to

the child. Id. at 428. Any unfitness, waiver or abandonment on the part of the father works to his

detriment. Id. All of these requirements had been met by the father in Baby Girl S, where the

evidence indicated the father had sought full custodial responsibility virtually from the time he learned

of the mother's pregnancy and that he had done everything possible to manifest and establish his

parental responsibility. Id.

¶27. The instant matter is very analogous to Baby Girl S. Taking the allegations in the complaint as

true, from the moment he learned of her pregnancy Joey asked Natalie to marry him. Upon being

rejected, he told her that he wanted to keep the child and that he would provide her with financial and

any other type of support necessary. When it was disclosed that Natalie and the Maloufs did not want

the child, Joey and the Smiths appealed to them to give the child to Joey on more than one occasion.

Their pleas were disregarded. Joey sought legal advice, but did not institute legal proceedings until

Natalie and her parents orchestrated a scheme whereby Natalie and her mother traveled across the

United States and the continent to avoid Joey until the child was born and adopted.

¶28. While they were moving from state to state and country to country, Joey -- like the father in

Baby Girl S -- was "grasping every opportunity" to manifest and establish a relationship with his

child. He filed a declaration of paternity, obtained a permanent injunction against Natalie and all

others working with her to prohibit an adoption of the child, hired private investigators to locate

Natalie and mailed the permanent injunction to every Vital Statistics office in Mississippi as well as

other states. In sum, he did all he could have done under the circumstances. Unfortunately as the

Court realized in Baby Girl S, the unwed father who attempts to establish a parental relationship can

be thwarted by the unwed mother's interference. Such was the case here.

¶29. Though our state's common law and statutory law did not vest Joey with any protections
regarding his right to receive notice of the adoption of his child or to object or veto said adoption, he

was entitled to greater constitutional protections under the federal constitution and the dismissal of

his suit was therefore improper. As noted in Humphrey v. Pannell, here we are presented with a

situation in which the natural unwed father attempted in every way possible to establish a substantial

relationship with the child. He was unable to do so because of the mother and her parents.

¶30. As the United States Supreme Court has established, Joey had a constitutional right to be

notified of or to withhold his consent to the adoption of his child in light of his substantial and prompt

attempts to establish a relationship with his child. Section 93-17-5, as a bar to the instant action, then

cannot stand up to constitutional scrutiny. See also Nale v. Robertson, 871 S.W.2d 674 (Tenn.

1994) (ruling that a Tennessee statute, which allowed adoption to occur before an unwed father's

parental rights had been determined, was unconstitutional).

c.

¶31. Joey -- faced with the certainty of never gaining custody of his son -- has sued Natalie and her

parents for intentional infliction of emotional distress and conspiracy. This state recognizes recovery

for both negligently and intentionally inflicted emotional distress:

Where there is something about the defendant's conduct which evokes outrage or revulsion,

done intentionally -- or even unintentionally yet the results being reasonably foreseeable --

Courts can in certain circumstances comfortably assess damages for mental and emotional

stress, even though there has been no physical injury. In such instances, it is the nature of the

act itself -- as opposed to the seriousness of the consequences -- which gives impetus to legal

redress.

Leaf River Forest Prods., Inc. v. Ferguson, 662 So. 2d 648, 658 (Miss. 1995) (quoting Sears

Roebuck & Co. v. Devers, 405 So. 2d 898, 900 (Miss. 1981)).

¶32. We have, on a number of occasions, considered the tort of intentional infliction of emotional

distress. See Fuselier, Ott & McKee, P.A. v. Moeller, 507 So. 2d 63 (Miss. 1987) (firing of attorney,

including changing of door locks to office not sufficient conduct); T.G. Blackwell Chevrolet Co. v.

Eshee, 261 So. 2d 481 (Miss. 1972) (forging of car buyer's name on finance contract, sufficient

conduct); Lyons v. Zale Jewelry Co., 246 Miss. 139, 150 So. 2d 154 (1963) (abusive bill collection

tactics amounted to sufficient conduct). The standard is whether the defendant's behavior is

malicious, intentional, willful, wanton, grossly careless, indifferent or reckless. Leaf River Forest

Prods., Inc. v. Ferguson, 662 So. 2d 648, 659 (Miss. 1995).

¶33. If there is outrageous conduct, no injury is required for recovery for intentional infliction of

emotional distress or mental anguish. Id. at 658. One who claims emotional distress need only show

that the emotional trauma claimed was a reasonably foreseeable consequence of the negligent or

intentional act of another. First National Bank v. Langley, 314 So. 2d 324 (Miss. 1975) If the

conduct is not malicious, intentional or outrageous, there must be some sort of demonstrative harm,

and said harm must have been reasonably foreseeable by the defendant. Strickland v. Rossini, 589

So. 2d 1268, 1275 (Miss. 1991).

¶34. The first aspect we must consider is what type of conduct occurred between Joey and Natalie
and the Maloufs. Natalie argues she was entitled to put the child up for adoption, just like she would

have been entitled to have an abortion had she been so inclined. Thus it is her position that she cannot

be held liable for infringing upon Joey's rights when in fact she was only exercising her own right to

place the child for adoption.

¶35. Natalie is correct insofar as she acknowledges that this Court is faced with two individuals'

diametrically opposed legal rights -- her right to place the child for adoption and Joey's constitutional

right to establish and maintain a relationship with his child. However her reliance on her

constitutionally protected right to an abortion is of no moment since she was not hiding in order to

effectuate an abortion. In other words, had Natalie been seeking an abortion there would have been

little Joey could have done to prohibit her or to assert an interest that would have outweighed her

right to abort the child. See Doe v. Smith, 486 U.S. 1308 (1988) (denying an application for an

injunction, seeking to enjoin a mother from aborting the child on grounds that the mother's interests

in aborting the child outweighed the father's interests notwithstanding Planned Parenthood of

Central Missouri v. Danforth, 428 U.S. 52 (1976)). This is not an abortion case however. Once

Natalie decided to carry the child full-term and place the child for adoption, Joey's constitutionally

protected rights became viable.

¶36. Hence, the pivotal question here is whether Natalie and her parents owe damages to Joey for

interfering with his right to attempt to gain custody of the child by exercising her own right to

terminate her relationship with the child. Stated otherwise, the issue is whether Joey has a viable

claim for intentional infliction of emotional distress, thereby rendering the circuit court judge's

dismissal of his claim improper. Taking the well-pled allegations in the complaint as true, we

conclude that he does.

¶37. It is irrefutable that appellees' behavior was intentional and that the foreseeable result of their

actions was that the child would be adopted by strangers, thereby depriving Joey of an opportunity to

veto the adoption and vie for custody. It is also axiomatic that any father -- especially a father who

has gone that "extra mile" to gain custody of his child -- would suffer severe emotional distress due

to the child he wanted being secretly placed for adoption. Thus, this Court concludes that Joey has

presented a viable claim for intentional infliction of emotional distress. See Kessel v. Leavitt, 1998

WL 407096 (W. Va.) (affirming a verdict for damages in similar circumstances).

III.

¶38. Joey also sued Natalie and the Maloufs for effectuating a conspiracy to prevent him from

establishing a relationship with his child. A conspiracy is "a combination of persons for the purpose of

accomplishing an unlawful purpose or a lawful purpose unlawfully." Shaw v. Burchfield, 481 So. 2d

247, 255 (Miss. 1985). Civil conspiracy, which results in damage, may give rise to a right of

recovery. Id. (citing Bailey v. Richards, 236 Miss. 523, 537-38, 111 So. 2d 402, 407-08 (1959)).

¶39. The instant claim is that the defendants conspired to unlawfully violate the outstanding

injunction and to deprive Joey of his lawful rights as natural parent of the child. These allegations are

sufficient to pass Rule 12(b)(6) muster, and Joey should have been afforded the opportunity to

present the merits of this claim.

IV.
¶40. We turn now to the propriety of the suit initiated by the Smiths, Joey's parents, against Natalie

and her parents, the Maloufs. In the circuit court proceedings, Natalie and the Maloufs argued that as

grandparents the Smiths had no legal standing to assert rights involving a grandchild. The circuit

court agreed with this contention and therefore ruled that the Smiths could not maintain an action for

unlawful conspiracy to violate the chancery court injunction, prohibiting Natalie and anyone else

working with her in going forward with the adoption.

¶41. The Smiths presently argue that they did, in fact have standing to assert a claim against Natalie

and the Maloufs. In particular, they assert -- even though they were not parties to the chancery

injunction and their own parental rights were not violated -- they have standing because they were

damaged by the Maloufs' unlawful conspiracy which deprived their son of his parental rights and

which resulted in the illegal adoption of their only grandchild. They further posit that they suffered

"mental and emotional distress" and that they have "expended a great deal of resources" because of

Natalie and her parents' conduct. In short, they contend these damages provided them with a

colorable interest in the subject matter of this litigation and the circuit court's finding of no standing

was clearly erroneous.

¶42. The Maloufs respond that the Smiths are not parents, nor were they parties to the chancery

court injunction. The Smiths therefore cannot complain that the injunction was violated. Natalie

likewise counters that only she and Joey were parties to the injunction, thereby making it impossible

for the Smiths to sue her or her parents (who were not parties to the injunction).

¶43. We conclude that in order to prevail on these claims it must be established that the plaintiffs had

some legal interest at stake. We find no such legal interest on the part of the Smiths. We therefore

affirm so much of the judgment as dismisses their claim for failure to state a cause of action upon

which relief could be granted.

V.

¶44. Finally, it is asserted that Joey's only remedy is to institute contempt proceedings in the chancery

court. We reject that contention. Conduct may be at once tortious and violative of a court order. The

victim is not thereby deprived of a tort remedy simply because the conduct complained of also

violated a court order. See Mitchell v. Stevenson, 677 N.E.2d 551, 563 (Ind. Ct. App. 1997)

(holding that defendant's actions constituted contempt and evidence supported finding of intentional

infliction of emotional distress). It is also asserted that to hold Natalie liable violates her

constitutional right to travel. We also reject that claim. Parties may exercise constitutional rights in a

manner which unlawfully damages others. When they do so, they can be held accountable. See

Kathleen K. v. Robert B., 198 Cal. Rptr. 273 (Cal. Ct. App. 1984) (constitutional right to privacy

did not protect respondent from a suit for damages based upon severe injury to the appellant's body

resulting from the contraction of genital herpes after respondent misrepresented that he was diseasefree); see also Doe v. Roe, 267 Cal. Rptr. 564 (Cal. Ct. App. 1990) (holding same).

¶45. For the foregoing reasons, the judgment of the circuit court is hereby reversed, except as herein

provided, and this matter is remanded to that court for further proceedings.

¶46. REVERSED AND REMANDED.
PRATHER, C.J., SULLIVAN, P.J., McRAE AND ROBERTS, JJ., CONCUR. PITTMAN,

P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE AND

ROBERTS, JJ. SMITH, J., CONCURS IN PART AND DISSENTS IN PART WITH

SEPARATE WRITTEN OPINION JOINED BY MILLS, J. MILLS, J., CONCURS IN PART

AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, J.

WALLER, J., NOT PARTICIPATING.

PITTMAN, PRESIDING JUSTICE, SPECIALLY CONCURRING:

¶47. I write separately to emphasize that this is a suit for the tort claims of intentional infliction of

emotional distress and conspiracy to deprive Mr. Smith of his parental rights against Ms. Malouf and

her parents. This is not an abortion case. I concur with Justice Banks' assessment that under

precedents of the United States Supreme Court, Mississippi Code Ann. § 93-17-5 does not meet the

test of the United States Constitution. Stanley v. Illinois, 405 U.S. 645 (1972), Lehr v. Robertson,

463 U.S. 248 (1983), Caban v. Mohammed, 441 U.S. 380 (1979), Quilloin v. Walcott, 434 U.S. 246

(1978).

¶48. The legislature might consider revisiting this unconstitutional statute and allowing the biological

father's rights (in regard to a child born out of wedlock) to be born at the precise moment of the birth

of the child. The father would have no say during the pregnancy but his interest can be born literally

out of the child's birth.

¶49. The interest of the biological father must be demonstrated and he would be subject to all the

requirements of establishing that he can be a good father, but he should not be prohibited by state

statutes from having a voice in the child's well-being and indeed cannot be denied his interest without

notice according to rulings of the United States Supreme Court before cited.

¶50. If parties conspire to deny the Father his constitutionally protected interest in fatherhood, after

he has made known his desire of custody or his desire to be considered, such act or acts rise to the

level of tort. To hold otherwise in this case leaves Smith with constitutional rights that were

wronged, but no remedy. The remedy we impose pales when compared with Smith's loss, but it is the

only remedy available to Smith or this Court.

¶51. To deny Smith the opportunity of fatherhood after birth because it may cause a wrongful

abortion is to do wrong to prohibit wrong.

¶52. The United States Supreme Court in Stanley v. Illinois, 405 U.S. 645, 649 (1972) determined

that a biological father, under the due process clause of the United States Constitution, was:

entitled to a hearing on his fitness as a parent before his children were taken from him and that,

by denying him a hearing and extending it to all other parents whose custody of their children is
challenged, the State denied Stanley [unwed biological father] the equal protection of the laws

guaranteed by the Fourteenth Amendment.

The United States Supreme Court found it repugnant that under the Illinois law, "Stanley [unwed

biological father] [was] treated not as a parent but as a stranger to his children . . . ." Id. at 648.

¶53. Similarly, under Mississippi's statute regarding parental consent to adoption, Miss. Code Ann.

§ 93-17-5 (1994) states in relevant part:

In the case of a child born out of wedlock, the father shall not be deemed to be a parent for the

purpose of this chapter, and no reference shall be made to the illegitimacy of such child.

Under Mississippi's statute, the unwed biological father is treated as a legal stranger to his child.

That, under Stanley v. Illinois, is unconstitutional.

¶54. In Lehr v. Robertson, 463 U.S. 248, 262 (1983), the United States Supreme Court, while

finding in favor of granting the adoption to the husband of the biological mother over the objection of

the biological father, did recognize the significance of the biological connection between the child and

the biological father.

The significance of the biological connection is that it offers the natural father an opportunity

that no other male possesses to develop a relationship with his offspring. If he grasps that

opportunity and accepts some measure of responsibility for the child's future, he may enjoy the

blessings of the parent-child relationship and make uniquely valuable contributions to the child's

development. If he fails to do so, the Federal Constitution will not automatically compel a State

to listen to his opinion of where the child's best interests lie.

Id. at 262.

¶55. In the present case, Joey [biological father] made every effort to be a part of the child's life, to

the extent of repeatedly offering to adopt and raise the child himself. All of his efforts were rebuffed

by Natalie [biological mother] and her parents who insisted on forever severing Joey's child from him.

This, under Lehr v. Robertson, is unconstitutional.

¶56. The United States Supreme Court in Quilloin v. Walcott, 434 U.S. 246, 255 (1978) again

recognized "the relationship between parent and child is constitutionally protected." The State was

required in that case to find nothing more "than that the adoption, and denial of legitimation, were in

the 'best interests of the child.'" Id. In the present case, Natalie is not trying to prevent Joey from

establishing his parental rights because she wants custody of the child herself. Rather, Natalie wanted

a family from Canada to adopt the child. It is a very difficult argument for Natalie and the Maloufs to

make that removing the child to Canada, to be adopted by a family which is of no relation to the

child, would be in the child's best interest, when the child's biological father (who has not been proven

unfit) desperately desires to raise and nurture his child. For Natalie and her parents to succeed

without notice to the biological father was unconstitutional under Quilloin v. Walcott.

¶57. Finally, in Caban v. Mohammed, 441 U.S. 380, 382 (1979), the United States Supreme Court

held a New York statute unconstitutional which allowed a man's children to be adopted by their

biological mother and her husband without the biological father's consent on equal protection
grounds. The Court reasoned that "[g]ender-based distinctions 'must serve important governmental

objectives and must be substantially related to achievement of those objectives' in order to withstand

judicial scrutiny under the Equal Protection Clause." Id. at 388 (citation omitted).

¶58. The Mississippi statute in the present case allows the biological mother to put a child up for

adoption without obtaining the biological father's consent and in this instance without notice to the

father. Where, as here, the biological father has made every effort to establish both a relationship with

the child and his rights in relation to the child, to allow the mother to circumvent all of his efforts and

agree to the adoption over his vehement objections is unconstitutional under the reasoning of the

United States Supreme Court in Caban v. Mohammed.

¶59. The majority holding of this present case will bring Mississippi into the ranks of a growing

number of jurisdictions which have, pursuant to the above mentioned United States Supreme Court

decisions, recognized the importance of the natural father's relationship with his offspring. See In re

Adoption of B.G.S, 556 So. 2d 545, 558-59 (La. 1990); Appeal of H.R., 581 A.2d 1141, 1162-63

(D.C. 1990)(separate opinion of Ferren, Assoc. J.); In re Petition of Kirchner, 649 N.E.2d 324 (Ill.

1995).

¶60. It is surprising that some, who for fear of increasing the likelihood of abortions in the state,

would trample the rights of biological fathers who are trying to love, care for, and provide for their

children; and do so in the name of family values. No one wishes to see abortions increase, but cutting

off rights of fathers to be fathers to their children is certainly not the proper means to that end. I

concur with the majority opinion.

McRAE AND ROBERTS, JJ., JOIN THIS OPINION.

SMITH, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶61. I agree with the majority that Joe W. Smith and Clovis Smith have no legal standing to assert

rights regarding this child. Their intentions and actions were indications of care and love towards

their son and his child. Unfortunately, the law affords them no remedy.

¶62. However, the majority's far reaching decision allowing Joe Jr. to proceed in his tort claims of

intentional infliction of emotional distress and conspiracy to deprive him of his parental rights against

Natalie Malouf and her parents, Alex J. Malouf, Jr. and Patricia Malouf will have an extremely

significant impact upon a woman's decision whether to place a child for adoption.

¶63. The majority by recognizing such a tenuous tort of emotional distress and conspiracy in these

type situations, indirectly encourages women to flock to abortion clinics and terminate their

pregnancies in order to escape civil penalties possibly attached to making a decision to carry the child

to full term.

¶64. It is hard to fathom that a woman wanting to exercise her right to terminate her pregnancy could

travel to an abortion clinic unfettered by the State, her lover or for that matter even her husband, but

once she decides to continue the pregnancy, she is no longer free to travel and go on about her

business. It is because of this ironical injustice, that I respectfully dissent.

¶65. The United States Supreme Court for decades through the Due Process Clause of the
Fourteenth Amendment has recognized the right of individuals to be free from State interference in

private decision making involving the family, such as marriage, procreation, contraception, family

relationships, child rearing, and education. Loving v. Virginia, 388 U.S. 1 (1967) (interracial

marriages); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (procreation); Pierce v.

Society of Sisters, 268 U.S. 510 (1925) (the right to educate one's child as one chooses); Meyer v.

Nebraska, 262 U.S. 390 (1923) (the right of private schools to teach as they see fit); Griswold v.

Connecticut, 381 U.S. 479 (1965 ) (use of contraception between married couples); Eisenstadt v.

Baird, 405 U.S. 438 (1972) (use of contraception between unmarried couples). This very general

liberty was later extended to encompass the right of a woman to control her own destiny according

the dictates of her conscience in regard to child bearing. Roe v. Wade, 410 U.S. 113 (1973) (right to

terminate a pregnancy); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833

(1992) (modified the right to terminate a pregnancy).

¶66. In Roe v. Wade, 410 U.S. 113 (1973), the United States Supreme Court held that a woman's

decision to abort a fetus is a "fundamental right." Implicit in such a holding is the converse -- i.e., that

if a woman made a decision not to abort a fetus, such decision deserves equal treatment under the

law, as an equally fundamental right. In Planned Parenthood of Southeaster Pennsylvania v. Casey,

the Court modified its holding in Roe and concluded that reproductive rights were not "fundamental,"

and that the State had an interest in the life of the fetus and that a State may regulate abortion

procedures in ways rationally related to that legitimate state interest, so long as the State regulation

did not pose an "undue burden." Nonetheless, Casey still "retained" and "reaffirmed" the "essential

holding" of Roe. Casey, 505 U.S. at 846.

¶67. Because a woman has a "liberty" interest in making reproductive decisions, a substantive

component of that liberty is to allow the woman to make these decisions without State interference

or State enforcement of family and friend interference. See Bray v. Alexandria Women's Health

Clinic, 506 U.S. 263 (1993) (reproductive decisions not only warrant State non-interference, but also

protection from interference by protestors).

¶68. "It is a promise of the Constitution that there is a realm of personal liberty which the government

may not enter. We have vindicated this principle before." Casey 505 U.S. at 847. "Neither the Bill of

Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment

marks the out limits of the substantive sphere of liberty which the Fourteenth Amendment protects."

Casey 505 U.S. at 848. Our cases recognize "the right of the individual, married or single, to be free

from unwarranted governmental intrusion into matters so fundamentally affecting a person as the

decision whether to bear or beget a child." Eisenstadt, 405 U.S. at 453. "These matters, involving the

most intimate and personal choices a person may make in a lifetime, choices central to personal

dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart

of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the

mystery of human life. Beliefs about these matters could not define attributes of personhood were

they formed under compulsion of the State." Casey, 505 U.S. at 851.

¶69. The Casey Court recognized that there were two ways to perceive Roe. One was as an exemplar

of Griswold type liberty. The other was a rule of personal autonomy and bodily integrity. The present

case involves both of these aspects in that Joey has attempted to use the law to hold Natalie hostage

to Greenwood, Mississippi, and he has also sought to use the law to divest Natalie of the exercise of
her full reproductive rights. Because the Constitution recognizes and promotes a woman's decision to

carry her child to full term, this right would indeed be a hollow right if she were not also allowed to

decide the fate of her child once she gave birth.

¶70. Having given a general overview of reproductive rights, this case also deals with the question of

whether a nonmarital biological father (a putative father) has any rights when he has sired a child out

of wedlock. A simple answer to this question would be yes, as it has been addressed by the United

States Supreme Court in many different contexts. However, the primary question in the case sub

judice is whether those rights of a putative father would override the rights of a woman to control

her reproductive rights. Having already discussed the concept of reproductive rights, we now look at

what the United States Supreme Court has said in regards to the rights of nonmarital biological

fathers, in order to weigh and balance the two interests.

¶71. In Stanley v. Illinois, 405 U.S. 645, 655 (1972), the United States Supreme Court held

unconstitutional an Illinois statute which conclusively presumed every father of a child born out of

wedlock to be an unfit person to have custody of his children. Stanley had lived with the children all

their lives and had lived with their mother for 18 years. There was nothing in the record to indicate

that Stanley was a neglectful father. The Court held that the Due Process Clause was violated by the

automatic destruction of the custodial relationship without giving the father any opportunity to

present evidence regarding his fitness as a parent.

¶72. In Quilloin v. Walcott, 434 U.S. 246 (1978), the United States Supreme Court upheld the

constitutionality of a Georgia statute requiring putative fathers to legitimate the child in order to be

able to exercise veto power over the child's adoption. There, the natural father, Quilloin, never

legitimated the child, and sought visitation rights and filed a petition for legitimation only after the

mother had remarried and her new husband had filed an adoption petition.

¶73. In Caban v. Mohammed, 441 U.S. 380 (1979), the United States Supreme Court considered a

New York statute which gave an unwed mother the authority to block an adoption simply by

withholding her consent, but which only gave an unwed father the right to block the adoption by

showing that the best interests of the child would "not permit the child's adoption." Caban involved

the claims of two natural parents who had maintained joint custody of their children from the time of

their birth until they were respectively two and four years old. Relying on both the Equal Protection

Clause and the Due Process Clause, the father challenged the validity of an order authorizing the

mother's new husband to adopt the children. Applying intermediate scrutiny, the United States

Supreme Court found that where the putative father had established a "substantial relationship" with

the child, the Equal Protection Clause would prohibit the double standard. While the Court did not

really address the Due Process claim, it did comment that where an unwed father demonstrates a full

commitment to the responsibilities of parenthood by "com[ing] forward to participate in the rearing

of his child," his interest in personal contact with the child acquires substantial protection. Caban,

441 U.S. at 392.

¶74. More interesting is the dissent in Caban, for it addresses some of the issues present in the case

sub judice. But before we display Justice Stevens' remarks, it must be borne in mind that the mother

in Caban was not asserting her reproductive rights as the children involved were two and four years

old and had already established a relationship with their natural father.
[Caban] concerns the validity of rules affecting the status of the thousands of children who are

born out of wedlock every day. All of these children have an interest in acquiring the status of

legitimacy; a great many of them have an interest in being adopted by parents who can give

them opportunities that would otherwise be denied; for some [of] the basic necessities of life are

at stake. . . .

Nevertheless, it is also true that [the statute] gives rights to natural mothers that it withholds

from natural fathers. Because it draws this gender-based distinction between two classes of

citizens who have an equal right to fair and impartial treatment by their government, it is

necessary to determine whether there are differences between the members of the two classes

that provide a justification for treating them differently. . . . But it also requires analysis that

goes beyond a merely reflexive rejection of gender-based distinctions.

Men and women are different, and the difference is relevant to the question whether the mother

may be given the exclusive right to consent to the adoption of a child born out of wedlock.

Because most adoptions involve newborn infants or very young children, it is appropriate at the

outset to focus on the significance of the difference in such cases.

Both parents are equally responsible for the conception of the child out of wedlock. But from

that point on through pregnancy and infancy, the differences between the male and the female

have an important impact on the child's destiny. Only the mother carries the child; it is she who

has the constitutional right to decide whether to bear it or not. In many cases, only the mother

knows who sired the child, and it will often be within her power to withhold that fact, and even

the fact of her pregnancy, from that person. If during pregnancy the mother should marry a

different partner, the child will be legitimate when born, and the natural father may never even

know that his "rights" have been affected. On the other hand, only if the natural mother agrees

to marry the natural father during that period can the latter's actions have a positive impact on

the status of the child; if he instead should marry a different partner during that time, the only

effect on the child is negative, for the likelihood of legitimacy will be lessened.

These differences continue at birth and immediately thereafter. During that period, the mother

and child are together; the mother's identity is known with certainty. The father, on the other

hand, may or may not be present; his identity may be unknown to the world and may even be

uncertain to the mother. These natural differences between unmarried fathers and mothers make

it probable that the mother, and not the father or both parents, will have custody of the newborn

infant.

In short, it is virtually inevitable that from conception through infancy the mother will

constantly be faced with decisions about how best to care for the child, whereas it is much less

certain that the father will be confronted with comparable problems. There no doubt are cases

in which the relationship of the parties at birth makes it appropriate for the State to give the

father a voice of some sort in the adoption decision. But as a matter of equal protection

analysis, it is perfectly obvious that at the time and immediately after a child is born out of

wedlock, differences between men and women justify some differential treatment of the mother

and father in the adoption process.

Most particularly, these differences justify a rule that gives the mother of the newborn infant the
exclusive right to consent to its adoption. Such a rule gives the mother, in whose sole charge

the infant is often placed anyway, the maximum flexibility in deciding how best to care for the

child. . . . Finally, it facilitates the interests of the adoptive parents, the child, and the public at

large by streamlining the often traumatic adoption process and allowing the prompt, complete,

reliable integration of the child into a satisfactory new home at as young an age as is feasible.

Put most simply, it permits the maximum participation of interested natural parents without so

burdening the adoption process that its attractiveness to potential adoptive parents is destroyed.

This conclusion is borne out by considering the alternative rule proposed by appellant. If the

State were to require the consent of both parents, or some kind of hearing to explain why

either's consent is unnecessary or unobtainable, it would unquestionably complicate and delay

the adoption process. Most importantly, such a rule would remove the mother's freedom of

choice in her own and the child's behalf without also relieving her of the unshakable

responsibility for the care of the child. Furthermore, questions relating to the adequacy of notice

to absent fathers could invade the mother's privacy, cause the adopting parents to doubt the

reliability of the new relationship, and add to the expense and time required to conclude what is

now usually a simple and certain process. While it might not be irrational for a State to

conclude that these costs should be incurred to protect the interest of natural fathers, it is

nevertheless plain that those costs, which are largely the result of differences between the

mother and the father, establish an imposing justification for some differential treatment of the

two sexes in this type of situation.

With this much the Court does not disagree; it confines its holding to cases such as the

one at hand involving the adoption of an older child against the wishes of a natural father

who previously has participated in the rearing of the child and who admits paternity.

Ante, at 392-393. The Court does conclude, however, that the gender basis for the classification

drawn by [the statute] makes differential treatment so suspect that the State has the burden of

showing not only that the rule is generally justified but also that the justification holds equally

true for all persons disadvantaged by the rule. In its view, since the justification is not as strong

for some indeterminately small part of the disadvantaged class as it is for the class as a whole,

see ante, at 393, the rule is invalid under the Equal Protection Clause insofar as it applies to that

sub-class. With this conclusion I disagree.

. . .

The mere fact that an otherwise valid general classification appears arbitrary in an isolated case

is not a sufficient reason for invalidating the entire rule. Nor, indeed, is it a sufficient reason for

concluding that the application of a valid rule in a hard case constitutes a violation of equal

protection principles.

Caban, at 441 U.S. at 402 - 412 (Stevens, J., dissenting) (footnotes omitted) (emphasis added). This

passage is long, and it speaks volumes as to what the majority actually decided. The only reason that

Caban was resolved in the manner in which it was, was due to the fact that there were older children

involved, and children who arguably had some relationship with their father. Caban did not involve a

newborn. Moreover, the dissent makes clear that this case could have turned out very differently had

the mother been asserting her "freedom of choice" or her "privacy" rights. While Justice Stevens'
view of the matter was not endorsed or adopted by the majority at that time, neither was it rejected;

the majority just chose to answer the question at hand. Subsequently, three years later, the Supreme

Court did adopt Justice Stevens' view. While Justice Stevens could have limited his opinion to the

fact that he was unwilling to trash a statute because it may have been unconstitutional only as applied

to a small subset, he took license to make some extremely important observations. In his dissent,

Justice Stevens predicted that there would be clash between a woman asserting her reproductive

rights in regard to a newborn and a putative father asserting his rights, and since that was not the

question in Caban, the majority did not touch upon it. That very question is now haunting this Court,

which it should answer with the greatest of delicacy. Unfortunately, that has not occurred.

¶75. Shortly after Caban, in Lehr v. Robertson, 463 U.S. 248 (1983), the United States Supreme

Court upheld the adoption of a child where the putative father had not been notified since the State of

New York had a registry in which putative fathers could enroll so as to guarantee notification to

them should their illegitimate child be placed on the adoption block. Lehr attempted to block his

child's adoption by the unwed mother's new husband. The child's mother married the new husband

eight months after her birth, and the new husband sought to adopt the child when she was two years

old. Lehr had neither offered to marry the mother, nor had he supported the child custodially,

personally, or financially. The Court found that if the natural father fails to grasp the opportunity to

develop a relationship with his child, the Constitution will not automatically compel a State to listen

to his opinion of where the child's best interests lie. Lehr, 463 U.S. at 256-263.

¶76. Finally, in Michael H. v. Gerald D., 491 U.S. 110 (1989), the Court tackled a California statute

which provided the child of a married woman cohabitating with her husband is presumed to be a child

of the marriage, as long as the husband is not impotent or sterile. The statute provided that the

presumption could not be rebutted by a putative father, but only by the husband or wife, and only

within the first two years of the child's birth. Five justices found that the putative father, Michael H.,

was not deprived of any protected liberty interest, holding that a statute giving categorical preference

to a husband over an adulterous lover is not unconstitutional.

¶77. From a general overview, a distinction can be drawn between "developed parent-child

relationship" that was implicated in Stanley and Caban, and the "potential relationship" involved in

Quilloin and Lehr. Lehr, 463 U.S. at 261. At first, the most simplistic assessment of these cases

would be "if and when one [a father] develops [a] relationship [with] his natural child, [then only] is

[he] entitled to protection against arbitrary state action as a matter of due process." Lehr , 463 U.S.

at 260 (quoting Caban, 441 U.S. at 414). However, factoring in Michael H., that understanding of

the putative father's rights is debatable, as Michael H. did not receive any favored status even after

maintaining a substantial relationship with his child, since the Court found his rights must succumb to

the rights of the marital family.

¶78. In view of the United States Supreme Court cases of Stanley, Quilloin, Caban, Lehr, and

Michael H., it would be uncertain whether Joey has any rights as a putative father, as the case at bar

has a very different fact pattern in comparison to the putative fathers cases. First, not one of those

cases dealt with the issue sub judice, where the natural mother is asserting her reproductive rights

against the rights of the putative father. Second, Stanley and Caban , which in my view were correct,

involved a situation where the father had already established a relationship. Here, since Joey cannot

claim to have had a "substantial relationship" with his child, the holdings in those two cases are not
applicable. Third, even though Lehr and Quilloin might appear applicable, as those appellants, like

Joey, argued that they had the "potential" to hold a relationship with their child, Joey's claim is

different in that he "intended" to have a substantial relationship with the child and desired to raise the

child, and only missed out on his "opportunity" because of Natalie's actions, and not his own

inactions. In that sense, the outcome of all of these putative fathers cases may be inapplicable to

Joey's situation. However, Natalie refused to marry Joey and in spite of all his claims of good

intention, there is not proof that Joey provided any support whatsoever which was one of the Lehr

court's main concerns.

¶79. Nonetheless, it is indeed helpful to look for certain truths that run in those cases, which would

be applicable in the present context, regardless of the fact differences. As a base concept, it can be

said that "the mere existence of a biological link does not merit equivalent constitutional protection."

Lehr, 463 U.S. at 261. In fact, at the onset, the Court noted that it "disagree[d]" with appellant

Lehr's assertion that Stanley and Caban "g[a]ve him an absolute right to notice and an opportunity to

be heard before the child may be adopted." Lehr , 463 U.S. at 250. Lehr made clear that there are no

absolute rights for putative fathers, when it cited with approval Justice Stevens' dissent in Caban,

which observed:

"Even if it be assumed that each married parent after divorce has some substantive due process

right to maintain his or her parental relationship, . . . it by no means follows that each unwed

parent has any such right. Parental rights do not spring full-blown from the biological

connection between parent and child. They require relationships more enduring." 441 U.S., at

397. . . .

Lehr, 463 U.S. at 260. The Court touted the same mentality when Michael H. argued that Stanley

and progeny established that "a liberty interest [wa]s created by biological fatherhood plus an

established parental relationship." Michael H., 491 U.S. at 123. The Court found that line of

reasoning "distort[ed] the rationale of those cases." Michael H. at 123. The Court concluded that the

putative fathers cases all recognized a "historic respect-- indeed, sanctity would not be too strong a

term-- traditionally accorded to the relationships that develop within the unitary family." Michael H.,

491 U.S. at 123. The court also concluded "that the Constitution protects the sanctity of the family

precisely because the institution of the family is deeply rooted in this Nation's history and tradition."

Michael H., 491 U.S. at 124. Because Michael H. and his daughter Victoria D.'s quasi-family

relationship was not one which had been treated as a "protected family unit" under our society's

"historic practices" or on any "special protection" basis, it was constitutional to have a statute which

gave a categorical preference to the marital family. Michael H., 491 U.S. at 124, 129. Thus, the

essence of Justice Scalia's opinion in Michael H. was that persons in the position of Michael H. have

never been accorded historical protections, but since traditional family units have, the family's rights

to maintain its integrity and to be free from assault would supersede the rights of a putative father

claiming his interests. When "the child is born into an extant marital family, the natural father's unique

opportunity conflicts with the similarly unique opportunity of the husband of the marriage; and it is

not unconstitutional for the State to give categorical preference to the latter." Michael H., 491 U.S.

at 129.

¶80. At first glance, one might wonder if Michael H. applies sub judice, as Natalie was unmarried at

the time of the child's birth, thus, not really having a "family unit" which could claim these protections
afforded by our traditions and history. The concern of Michael H.-- that the family unit can be

assailed by outsiders-- really is not present in this case. However, just the fact that there were

competing interests in Michael H. proves it to be the most instructive for deliberations in this case.

¶81. In Michael H. v. Gerald D., the competing interests between a natural putative father and a

marital father was the crux of the issue. The plurality observed that "to provideprotection to an

adulterous natural father is to deny protection to a marital father, and vice versa. . . . One of them

will pay a price. . . ." Michael H. 491 U.S. at 130 (emphasis in original). Likewise, assuming

arguendo that Joey had any liberty interests in this situation, then his interests are in competition with

that of Natalie's interests to make her reproductive choices unhampered. To provide protection to

Joey's alleged interests would be to deny Natalie the free exercise of her constitutionally protected

options. In my view, under our state laws and the federal laws, it is Joey who must "pay the price"

here, for we find that his interests in putative fatherhood are neither sufficiently realized nor

protected, while it is well established that her liberty interests in reproductive choice are both

recognized and vigilantly guarded.

¶82. Joey maintains that he should not be faulted for not being able to come within the purview of the

cases that do give putative fathers certain rights if they had established a substantial relationship with

the child. Stanley, Caban, supra. Joey asserts that but for the fact that Natalie chose to have this

baby out-of-state, and then chose to place the child for adoption in a foreign country, he was denied

the opportunity to follow through on his intention to raise and support this child. Therefore, I pose

the question whether Joey has gained an interest based on his mere "intentions" to raise his child,

after all, his intentions may alter significantly in the future! First, the fact that a putative father

maintained a substantial relationship with the child is of little consequence, as indicated by the

Supreme Court's last pronouncement in Michael H.. Second, in thoroughly reviewing the case law

on putative fathers, not one of them stands for the proposition that a putative father has rights based

on his "potential" or his "intentions" to rear the child. Stanley, Quilloin, Caban, Lehr, Michael H.,

supra. Lastly, as previously stated, the ultimate question before this Court is whether Joey's alleged

rights would supersede Natalie's reproductive rights.

¶83. In exercise of her rights, the first question Natalie must answer for herself is whether or not to

have the child. Under the current interpretation of the Constitution, either choice is protected. Roe,

Casey, supra. Once that decision has been made, she must make other decisions which are the

necessary corollary to her first decision. It is well established that "[w]ithout . . . peripheral rights the

specific rights would be less secure." Griswold, 381 U.S. at 482-83.

¶84. For example, had Natalie decided to have an abortion, she would then have the right to decide

which abortion doctor to visit, which women's clinic to use, and where and how to conduct herself

both before and after the exercise of this choice. Roe, Casey, Bray, supra. Similarly, since Natalie

decided not to have an abortion, she then had to decide from which obstetrician to seek medical care,

in which hospital she wanted to deliver her child, and where and how she wanted to keep herself both

pre- and post- delivery.(2) Roe, Casey, Bray, supra.

¶85. "[W]hile [these rights are] not expressly included in [the respective Amendment, their] existence

is necessary in making the express guarantees fully meaningful." Griswold, 381 U.S. at 483. There

are "specific guarantees in the Bill of Rights [which] have penumbras, formed by emanations from
those guarantees that help give them life and substance." Griswold, 381 U.S. at 484.

¶86. Because the Constitution recognizes and promotes a woman's decision to carry her child to full

term, this right would indeed be a hollow right if she were not also allowed to decide the fate of her

child once she gave birth. "Her suffering is too intimate and personal for the State to insist, without

more, upon its own vision of the woman's role, however dominant that vision has been in the course

of our history and our culture." Casey at 852.

¶87. Here, the record establishes that Natalie chose to carry the child to full term not only because of

religious conviction, but because she wished for her child to be reared in a two parent home, far and

away from her own backyard, and to avoid any confusion that a child might experience living in the

same small community as the mother who chose to give the child away. "At the heart of liberty is the

right to define one's own concept of existence. . . . ." Casey 505 U.S. at 851. It is clear that the

reproductive choice she made was due in part to her belief that she could put the child up for

adoption to a stable two-parent family, out of sight out of mind from her own domain, and no longer

be subject to any financial responsibilities or ties with her child.(3)Because Natalie wished for this

outcome for her baby and herself, she "chose" to carry it to full term. "The destiny of the woman

must be shaped to a large extent on her own conception of her spiritual imperative and her place in

society." Casey 505 U.S. at 852. Therefore, any limitations on the legal choices she makes for herself

or her child, in-utero or post-delivery, is a limitation on her initial reproductive right of choice. There

are "specific guarantees in the Bill of Rights [which] have penumbras, formed by emanations from

those guarantees that help give them life and substance." Griswold, 381 U.S. at 484. Thus, Natalie

not only has a Fourteenth Amendment Due Process liberty interest in carrying her child to full term,

she has a correlating penumbra-like liberty interest in seeking to insure the destiny of her child, once

born, as it relates to her, even to the detriment of that child's natural (putative) father.

¶88. What would the freedom of speech mean if persons were told that they could print anything they

wanted, but the government would be responsible for the delivery, dissemination, and placing of the

products. What would the freedom of association mean if persons were told that they could

congregate with whomever they wanted, but once they left the congregation, they must associate

with others they did not want to? Similarly, what would Natalie's reproductive rights mean if she

were allowed all the freedom she wanted during pregnancy, but the moment her child was brought

into this world, she would either have to turn it over to Joey or have to face the prospect of

associating with it? Natalie's right to place her unborn child for adoption, to the exclusion of the

child's natural father, is but a natural extension of her reproductive rights. That right has always been

there, this dissenting opinion merely fleshes it out.

¶89. All this to say, that men who are as haphazard and careless as this, do not have substantive due

process rights in regard to offspring of their seed. These type of "putative fathers" rights claims are

reeking havoc for adoptions. While one might sympathize with the father and his current desire to

help raise this child, it must be remembered that there are no guarantees that his interest in the child

will continue. Months or even years from now, if the father's conduct does not measure up, it will be

the mother who will be left holding the baby and picking up the pieces. Today, many men are reaping

a supposed benefit of premarital and extramarital sex, without any of the consequences. Men are not

only creating these illegitimate children, but are then demanding notice about said child's adoption in

the process of making less than half-hearted attempts to support their issue, and essentially holding
the lives of child's mother in abeyance for months and sometimes years to come, all under the

pretense of procedural and substantive due process. Consistent with Stanley and Caban, this Court

should hold that when men who father children out of wedlock incur substantive legal obligations,

either voluntarily or through court order, then and only then, do certain rights attach. "[T]he

Constitution protects the sanctity of the family precisely because the institution of the family is deeply

rooted in this Nation's history and tradition." Michael H., 491 U.S. at 124. While our society has

reached the point where we can no longer look to the law to engender responsible behavior, we can

interpret the law to preserve the remaining vestiges of a concept called "family."

¶90. A sub-issue has arisen by our consideration of this issue, and should be answered in order not to

appear inconsistent to our citizenry. The question is why should the mother of the child have such

greater rights than the father. In other words, why does she get to pick and choose whether or not

she wants to hold the putative father responsible, but the putative father on the other hand has no

such correlating right? While this question looks as if it might pose some sort of impermissible gender

distinction, in actuality, it does not. Again, some one will have to "pay a price." As has already been

thoroughly discussed in this opinion, by insisting on the putative father's rights to be equal to that of

the mother, we cast a dark shadow on her ability to make an unfettered reproductive choice.

However, by giving the initial right of self-determination for the baby to the mother, there is no

similar weight placed on the father. If the mother of the child holds the putative father legally

responsible for his offspring, then he is only paying the just consequences of his conduct. However, if

the mother of the child places the child for adoption, then the putative father will either feel that he

lucked out or feel a sense of loss, depending on his mind set.

¶91. When the outcome is like the one at bar, the putative father seems to emotionally tug at this

Court's heart by asking us to sympathize with his sense of loss-- with his feelings of knowing that he

has a child out there somewhere that he can't even know. Again, the putative father will have two

sets of emotions depending on the reproductive choice the mother of the child has made. Either he

can feel sadness at the prospect of his lover's decision to abort the child, or he can unfortunately feel

joy and relief knowing that he has narrowly managed to escape his responsibilities. Either he can feel

sadness over the mother's decision to have the child and place it for adoption, or joy over her

decision to place the child for adoption and again allow him the privilege of foregoing his legal

responsibilities. Whatever choice she makes, the putative father will be affected with some sort of

emotion; either he will know he has a dead baby or he will know he has a live baby. The law does not

require this Court to curb the rights of women just because the man may experience one of these

emotions in regard to the life status of the baby. Casey, 505 U.S. at 898. (holding that husband's

notification or consent not required for an abortion).

¶92. Against this backdrop, we must now address the propriety of the lower court's decision to grant

a Rule 12 (b)(6) motion on both the conspiracy claim and the intentional infliction of emotional

distress claim. The court found that Joey had no legally cognizable right under Mississippi law to

notice of his child's adoption, so in essence, he had no paternal rights that were capable of violation,

and further found that Mr. and Mrs. Smith lacked standing to assert a conspiracy claim against the

Maloufs. The court also found that the Maloufs had merely been enjoying their constitutionally

protected rights to travel freely throughout the United States and the world and to be left alone,

therefore, the defendants could not have entered a conspiracy by exercising that which they had a

legal right to do. The emotional distress claim was also dismissed on the ground that it was not
wrong to exercise a constitutionally protected right, regardless of the consequence to others.

¶93. The facts are undisputed. Natalie became pregnant by Joey. Natalie chose to have the baby and

desired to give it up for adoption as a result of that choice. The Smiths brought an injunction against

her in the Chancery Court of LeFlore County to stop her from putting the baby up for adoption to

anyone but Joey. She left LeFlore County and traveled to various parts of the United States and

Europe. The Maloufs assisted her in her travels. The Smiths expended great effort to locate her. She

had the baby in Georgia and placed the child for adoption in California to a Canadian couple. Hence,

this action was brought for emotional distress and conspiracy in the Circuit Court of LeFlore County.

¶94. A civil conspiracy is a combination of two or more persons to accomplish an unlawful purpose

or to accomplish a lawful purpose by unlawful means. Shaw v. Burchfield, 481 So. 2d 247, 255

(Miss. 1985). In this case, adoption of an illegitimate child is a lawful end. Traveling in the United

States is a lawful purpose. Traveling in Europe is lawful also. The Maloufs (who were not even a part

of the injunction) giving money to their own daughter Natalie in order to help support and maintain

her is likewise as lawful as any other parent giving money to a child to vacation and travel. Surely the

plaintiffs are not asserting that just because of Natalie's reproductive state, she must forego her

constitutional rights and no longer receive travel allowances from her parents; after all, if one were

free to vacation in Europe when one was not carrying a child, should that freedom be dissolved

because one was pregnant? California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 280, 284

(1987) (it is wrong to discriminate against women on the basis of pregnancy). Thus, not only was the

end not an unlawful purpose, neither was the method for achieving it.

¶95. Now, it is obvious that Natalie's travel was in an effort to maintain privacy avoiding Joey and to

have the baby placed for adoption with a family. Again, even that is not an unlawful purpose in that

she was exercising her own privacy rights, reproductive rights, right to associate (or not associate),

and right to travel. The record does not establish that Natalie's actions were all a part of a grand

scheme to hurt Joey. She simply did what she needed to do for her own life, and in her opinion, the

baby's best interest. Desiring a certain outcome and tranquility for one's life is not an unlawful end,

and traveling long distances so as to avoid others and have that peace is not an unlawful means. If

anything, Natalie could just as easily counterclaimed on a conspiracy against Joey and the Smith's for

doggedly pursuing, harassing, and infringing upon her privacy rights. She did not do so. Why?

Possibly, pursuit of money was not her concern, but rather, only her own peace of mind, desire to be

left alone, and to provide a proper two parent loving home for her child somewhere well away from

Greenwood, Mississippi. In this regard, the Smiths claim for conspiracy is deficient, as a matter of

law.

¶96. I respectfully dissent.

MILLS, J., JOINS THIS OPINION.

MILLS, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶97. I join with Justice Smith in his concurrence in part and dissent in part and write separately only

to express my views in this matter.
¶98. Few cases before this Court have engendered such strong feelings as the matters presently

before us. While none of the parties to this proceeding are blameless, each should also be commended

to a degree. First, the daughter, Natalie Malouf, and her parents, should be commended for opting to

birth the child and placing it for adoption. Ironically, the majority opinion will encourage women to

seek abortions rather than birth in order to avoid a potential hassle with putative fathers.

¶99. The efforts of Joe Jr. to have a voice in the rearing of the child are also commendable. However,

the briar thicket he is in was created by his own actions. I find it hard to countenance his claims of

intentional infliction of emotional distress when he was an acting participant in the questionable

behavior precipitating the pregnancy and resulting litigation. I would not allow these tort claims to

continue. The broad language in the majority opinion expanding claims for intentional infliction of

emotional distress absent other damages is unnecessary to the development of tort law in this state.

¶100. Finally, the true heartbreak and distress suffered by Joe W. Smith and Clovis Smith are

apparent. It is tragic that this undoubtedly caring and loving family must live with the cold impact of

the law in this case. Though their intentions are undoubtedly without fault, they simply have no rights

under the law to pursue this matter. The law is incapable of fashioning a remedy for every perceived

wrong in society.

¶101. I join the majority opinion only to the extent that it holds that Joe W. Smith and Clovis Smith

have no legal standing to assert any rights in this cause. I would affirm the lower court on all other

matters.

SMITH, J., JOINS THIS OPINION.

1. The Mississippi Legislature amended § 93-17-5 during the 1998 legislative session. Subsection (3)

was rewritten to allow the father to have a right to object to an adoption if he has demonstrated a full

commitment to the responsibilities of parenthood within 30 days after the birth of the child. The

amendment was effective beginning July 1, 1998 and is effective until July 1999. From and after July

1999, subsection 3 of 93-17-5 reverts to the language existing before the amendment.

2. "The right of freedom of speech and press includes not only the right to utter or to print, but the

right to distribute, the right to receive, the right to read, . . . and freedom of inquiry, freedom of

thought, and freedom to teach . . . -- indeed the freedom of the entire university community."

Griswold 381 U.S. at 482 (citations omitted). Similarly, freedom of association is more than just the

right to peacefully attend a meeting; a penumbra of this right would entail the right of a group not to

disclose one's membership list. Griswold, 381 U.S. at 483. "Without those peripheral rights the

specific rights would be less secure." Griswold, 381 U.S. at 482-83.

3. The Smiths never offered to adopt the child, which would have left Natalie without any legal

responsibilities or ties. They only offered to help support Joey's decision and aid financially whenever

possible. Obviously, Joey cannot adopt his own child, thus, if he raised the child, he would have had

legal recourse to force financial support from Natalie, and have had the capacity to forever embroil

her in a situation from which she wanted to separate herself.