No. 91-476 

and 91-508 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

JAMES LEWIS AND THERESA SATHER, 

Relators, Petitioners 

and Appellants, 

CATHOLIC SOCIAL SERVICES FOR MONTANA, 

Respondents and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Jeffrey Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Relators/Appellants: 

Linda J. Garofola and David K.W. Wilson, Jr.; 

Reynolds, Motl, Sherwood & Wright, Helena, Montana 

For Respondents: 

William P. Driscoll and Michael S. Lattier; Gough, 

nahan, Johnson & Waterman, Helena, Montana 

Submitted on Briefs: December 19, 1991 
Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal from an order of the First Judicial 

District, Lewis and Clark County, denying petitioners1 request for 

a preliminary injunction. Inasmuch as the issues are the same in 

relators' petition for supervisory control, the petition for 

supervisory control is hereby dismissed. 

we frame the issue as follows: Whether the District Court 

erred in determining § 40-8-108, MCA (1991), barred the foster 

parents from contesting the placement for adoption decision of the 

agency having custody and barred the foster parents1 petition for 

adoption. 

On March 29, 1989, the custody of Baby Girl W. was granted to 

Catholic Social Services for Montana (CSS) for placement and 

ultimate adoption. The birth mother had informed CSS that she 

wished to keep the child away from the birth father out of fear fox 

herself and the child. She related that in the past the birth 

father had been abusive to her and an older child. The birth 

mother did not want the father to know the whereabouts of the 

child. CSS assured the birth mother the child would be placed in 

a safe home where the father would not find her. On March 30, 

1989, CSS placed Baby Girl W. with the relators, James Lewis and 

Theresa Sather, as foster parents. This was the first foster child 

for the Lewises. The Lewises signed an agreement stating they 

would not attempt to adopt the child placed in their care. The 

Lewises were also told of the assurances given to the birth mother 

that the child would be placed out of state away from the father. 

2 
This was reiterated to the Lewises from time to time. 

Initially, CSS told the ~ewises that Baby Girl W. would be in 

their care only a short while. Having previously obtained a 

consent for termination of parental rights from the birth mother, 

the District Court in a lengthy contested action by the birth 

father, terminated the parental rights of the birth mother and the 

birth father, granted legal custody to CSS and granted it the right 

to consent to Baby Girl W.'s adoption. The birth father appealed 

this decision to this Court. We affirmed the District Court's 

decision on July 2, 1991. In the Matter of the Parental Rights of 

Baby Girl W. (1991), 249 Mont. 206, 814 P.2d 976. Because of the 

delay in making a final termination of parental rights, Baby Girl 

W. remained with the Lewises for 27 months. During this time the 

Lewises began to regard Baby Girl W. as their own and vocalized 

their wish to adopt the child. 

CSS1s plan had always been to place Baby Girl W. for adoption 

with a family other than the foster family. CSS did not in any way 

raise the expectations of the Lewises that they would be able to 

adopt the child. Subsequent to this Court's decision on July 15, 

1991, a meeting occurred between Marilyn McKibben, director of CSS, 

and the Lewises to discuss Baby Girl W. ' s future. Although the 

Lewises requested CSS's attorney to set up a meeting to discuss 

their adoption of Baby Girl W., Marilyn McKibben indicated she was 

not interested in meeting with the attorneys. 

At the July 15, 1991 meeting, CSS indicated they would be 

removing Baby Girl W. from the Lewises' home in the next day or so. 
The Lewises cooperated with CSS in order not to hurt their chances 

of adopting Baby Girl W. and immediately took steps to retain legal 

counsel for that end. On July 17, 1991, Baby Girl W. was removed 

from the Lewises' home. On August 2, 1991, CSS placed Baby Girl W. 

out of state with a potential adoptive family. 

There is no dispute that the Lewises provided a safe, stable 

and nurturing home for Baby Girl W. and that, under normal 

circumstances, they would be eligible adoptive parents. This is an 

emotionally difficult case for all involved. The District Court in 

its ruling found that under 5 40-8-108, MCA, only the parties 

designated could place the child for adoption. The court reasoned 

that since CSS did not consent to the Lewisesl request for 

adoption, and had not placed the child for adoption in Montana, the 

Lewises could not adopt Baby Girl W. 

The District Court found that there was evidence in the record 

that the father was a danger to the birth mother and the child, and 

that such evidence would be of reasonable concern on the part of 

CSS. The District Court further found that CSS is an experienced 

adoption agency and the court gave deference as to its view of the 

seriousness of any threat that might be posed by the birth father. 

Based on the above, the court further found that it would then be 

unable to say that the actions of CSS in placing the child out of 

state were unreasonable or that refusal by CSS to give consent to 

the petitioners was unreasonable. 

The District Court was also of the view that granting relief 

to the petitioners could have a broader policy impact on the entire 
adoption process in Montana. Adoption agencies would be fearful of 

placing children in foster homes if they were not reasonably 

certain that they could place a child with the family of their 

choice. Primarily the court, as stated above, based its decision 

on the wording of 5 40-8-108, MCA, and denied the preliminary 

injunction, dismissed the case and entered judgment accordingly. 

The District Court found that 5 40-8-108, MCA, was a bar to 

the Lewises' petition for adoption of Baby Girl W. The statute 

provides: 

A child may be placed for adoption only by: (1) the 

department; (2) a licensed child placing agency; or (3) 

the child's parents. 

Placement is defined in 5 40-8-103 (11) , MCA (1991) as: ". . .the 

transfer of physical custody of a child with respect to whom all 

parental rights have been terminated and who is otherwise legally 

free for adoption to a person who intends to adopt the child." 

There is no case law interpreting these sections of our statute. 

We agree with the District Court that in the instant case 

procedurally, under 5 40-8-108, MCA, only CSS may place Baby Girl 

W. for adoption. 

Section 40-8-108, MCA restricts who may place a child for 

adoption and does not include courts in its list of who may place 

a child for adoption. Therefore it is clear that the courts could 

not place Baby Girl W. with the Lewises. No dispute exists that 

CSS has placed Baby Girl W. for adoption. 

The wording of the Montana act itself and the public policy of 

discouraging black market adoptions and private adoptions argue 
against judicial review of placement decisions. Montana, along 

with five other states, adopted the Uniform Adoption Act (UAA). 

According to Ado~tion Law and Practice, Joan H. Hollinger, the act 

attempts to discourage black market adoptions and private 

adoptions. See, pp. 4A-3 (1989). Neither 5s 40-8-103 (11) nor 40- 

8-108, MCA, are part of the UAA. However, legislative minutes to 

the 1981 revision of Montana's adoption law indicate that S 40-8- 

108, MCA, was enacted out of concern for the black market problem. 

Additionally, legislative minutes to the 1989 amendment of 5 40-8- 

121, MCA, which designates the steps in filing a petition for 

adoption, suggest the amendment was enacted due to perceived 

problems with private placement. An example of Montana's concern 

with private placements would be the elaborate framework set forth 

in 5 40-8-109, MCA (1991), regulating private placements. Under 

the statute parents who wish to have their child adopted by nonrelatives must give notice to the authorities of their intent and 

must follow the numerous requirements of the statute prior to 

private placement. 

Cases exist from other jurisdictions which address an agency's 

refusal to consent to adoption of a child that has already been 

placed in a prospective adoptive home; the usual standard of review 

in such cases is arbitrary and capricious. That is not the exact 

question here. Homer H. Clark, Jr., in his treatise, The Law of 

Domestic Relations in the United States, 2nd ed. vol. 2, 615, 651, 

(1988), suggests that theoretically, an agency's refusal to place 

a child with prospective adoptive parents may be reviewable under 
the same standard as the denial of a consent to an adoption. Even 

if we considered whether or not the placement by CSS was subject to 

review because of arbitrariness or capriciousness under the facts 

of this case, it would not change the result. The District Court 

in its findings, after viewing all the evidence, did not find the 

actions of CSS in placing the child out of state as unreasonable or 

refusal by CSS to give consent to the petitioners as unreasonable. 

In view of the District Court's findings and conclusions that 

based on the evidence and record, it was unable to say that the 

actions of CSS in placing the child out of state was unreasonable 

or that CSS1s refusal to give consent to adoption by the Lewises 

was unreasonable, the District Court could not in any case 

determine the actions of CSS to be arbitrary and capricious. We 

cannot say the court was erroneous or abused its discretion in 

making such findings, conclusions, and final decision. We 

therefore affirm the District Court. 

We Concur: 

Justices 
Justice Terry N. Trieweiler dissenting. 

I dissent from the opinion of the majority. The issue in this 

case is not who may place Baby Girl W for adoption. Catholic 

Social Services for Montana (hereinafter CSSM) clearly has that 

authority and intends to exercise it. The issue is whether, in the 

exercise of its placement authority, CSSM can arbitrarily refuse to 

consider the foster parents, even if to do so would be contrary to 

Baby Girl W's best interests. I believe this situation is 

analogous to statutes which require agency consent to adoption. 

There is considerable authority that such consent cannot be 

arbitrarily withheld. 

In IizreMcKerzzie (Minn. 1936), 266 N.W. 746, a juvenile located 

in Minnesota had been placed by court order under the care of the 

Minnesota Board of Control. That board placed the same child with 

foster parents where the child remained for over three years. 

After the child was removed from the foster parents' home to an 

orphanage, they petitioned for adoption. The board refused based 

on a religious difference between the child and the proposed 

adoptive parents. 

Minnesota had a statute which prohibited adoption without the 

consent of the parents, the guardian, or the State Board of 

Control. The Minnesota Supreme Court was called upon to decide 

whether consent could be unreasonably withheld when an adoption 

appeared to be in the child's best interests. It concluded that it 
could not. In discussing the board's rule on religious 

compatibility, the Minnesota Supreme Court stated: 

In so far as the operation of the rule is not 

inimical to the best interests of the child, the board 

may be justified in not consenting to the placing of the 

children with adoptive parents of a different faith, but 

to blindly follow such a rule after placing the child for 

support with a well-qualified family for a period so 

protracted that a strong affection for the child is 

permitted to develop is, in our view, unreasonable. The 

affection of foster or adoptive parents is the child's 

greatest asset in life. It usually means a good 

education and a start in life. Where, as here found by 

the trial court, it is accompanied by character building 

surroundings and complete religious tolerance, and the 

chances of matching the surroundings and affection 

elsewhere are slight, the board's action becomes so 

unreasonable as to fall within the definition of caprice. 

McKenzie, 266 N.W. at 748. 

In the case of In re Adoption of Daughtridge (N. C. 1975) , 212 s . E. 2d 

519, the Court of Appeals of North Carolina was called upon to 

decide whether a county department of social services could 

withhold consent to adoption under similar circumstances. That 

court held: 

We agree with the Minnesota court that that consent may 

not be unreasonably and unjustly withheld. If the court 

shall find that a failure to grant the petition for 

adoption would be inimical to the best interests and 

welfare of the child, it may proceed as if the consent 

which it finds ought to have been given has been given. 

Other courts have arrived at similar conclusions. SeeStateexrel. 

Dept. of Institz~tions Social and Relznbilirative Services v. Gnffk (Okla. 1975) , 54 5 P. 2d 
7 63 ; Oxendine v. Catawba County Depanment of Social Sewices (N. C. 19 8 1) , 2 8 1 

This Court has previously indicated that it is in accord with 

those decisions. Frederick v. Dismmct Court (1946) , 119 Mont. 143, 173 

P.2d 626. 

The effect of 5 40-8-108, MCA, which limits who may place a 

child for adoption, is no different than the effect of the statutes 

referred to in these cases which limit who could consent to the 

adoption of a child. By deciding in these cases that consent could 

not be arbitrarily and unreasonably withheld, these courts did not 

substitute themselves for the consenting agency anymore than this 

Court would by concluding that placement for adoption could not be 

arbitrarily or unreasonably denied. Therefore, based on precedent 

and logic, the majority opinion makes no sense to me when it 

concludes that: 

Section 40-8-108, MCA restricts who may place a 

child for adoption and does not include courts in its 

list of who may place a child for adoption. Therefore it 

is clear that the courts could not place Baby Girl W. 

with the Lewises. No dispute exists that CSS has placed 

Baby Girl W. for adoption. 

The majority concedes that an agency's refusal to place a 

child with prospective adoptive parents may be reviewable to 

determine if that refusal was arbitrary and capricious. However, 

the majority then goes on to conclude that even if that standard is 

adopted, the District Court must be affirmed because it found that 

CSSM's refusal was not unreasonable. The problem with the 
majority's reasoning and the District Courtf s decision is that a 

finding of reasonableness cannot be made without a determination of 

Baby Girl Wts best interests, and no such determination was made in 

this case because of the District Court's erroneous conclusion that 

5 40-8-108, MCA, prevented it from granting the relatorst petition. 

The petitioners in this case received custody of the child 

(hereinafter referred to as Natasha) from CSSM on March 30, 1989. 

They signed the written contract referred to in the majority 

opinion based upon CSSMts representation that Natasha would remain 

with the parties for three months. However, by the time she was 

removed from their home, she had lived with them for 27 months; she 

had become, for all practical purposes, a member of their family; 

and she had developed a close personal bond and relationship with 

all members of the family. 

According to the District Court's findings: 

There is no dispute that Petitioners are very attached to 

Natasha, and that she has become attached to Petitioners 

and their three children. Further, it is absolutely 

clear to this Court that Petitioners provided a safe and 

nurturing home for Natasha. It is clear that Petitioners 

would be excellent adoptive parents. 

The only qualified psychologist to testify on behalf of either 

party in the District Court was Dr. Mark Mozer, a clinical 

psychologist from Helena. His testimony was summarized by the 

District Court as follows: 

Dr. Mozer indicated that Petitioners are wonderful 

parents and were closely bonded with Natasha. He 

testified that, in his view, the risk of harming Natasha 

by moving her to California at this stage of the 
proceedings is great. He feels that the bond between 

Petitioners and Natasha is great and that moving her to 

California can cause that bond to be broken and cause 

severe problems with her in the future. 

Section 40-8-114, MCA, sets forth the paramount public policy 

consideration of the Uniform Adoption Act. It provides in relevant 

part that: 

(1) It is the policy of the state of Montana to ensure 

that the best interests of the child are met by adoption 

proceedings. 

(2) The primary purpose of adoption is to help a 

child become a permanent member of a nurturing family 

that can give him the care, protection, and opportunities 

essential fox his healthy personal growth and 

development. 

(3) The well-being of the adopted child is the main 

objective in the placement of children for adoption. The 

needs of the child must be the primary focus of adoption 

proceedings, with full recognition of the interdependent 

needs and interests of birth parents and adoptive 

parents. 

It is clear that the District Court did not get to the point 

of making the necessary findings in this case because it misapplied 

5 40-8-108, MCA. The District Court concluded: 

In the first place, Section 40-8-108, PICA, provides 

as follows: ''A child may be placed for adoption only by: 

the department; a licensed child placing agency; or the 

child's parents. This provision is unique to Montana 

law. This Court has not found any cases interpreting 

this section but it seems to say that an adoption 

proceeding cannot begin until one of the parties 

designated in Section 40-8-108 (here CSSM) places the 

child for adoption. Since CSSM has not placed Natasha 

for adoption in Montana, it appears that Petitionerst 

argument must fail. 
Primarily, however, this Court relies on 

Section 40-8-108, MCA. This section provides that a 

child can only be placed for adoption by an agency. 

Thus, since Natasha has not been placed for adoption in 

the State of Montana by CSSM, Petitioners must fail. 

Why it made any difference to the District Court where Natasha 

was placed for adoption by CSSM is not clear. However, it is clear 

that she has been placed for adoption. It is equally clear that 

the provision relied on by the District Court was, as pointed out 

by the majority, merely for the purpose of limiting black market 

placement of children for adoption and does not divest this Court 

of authority to review placement decisions to assure that they are 

made in the child's best interest. 

Without deciding what was in Natasha's best interest, the 

District Court could not decide whether the adoption agency's 

consent was withheld arbitrarily and capriciously. I would 

conclude that any actions taken by CSSM which were for its own 

benefit or based on a contract with the foster parents which was 

entered into under these circumstances, rather than solely for the 

best interests of Natasha, was unreasonable, arbitrary, and 

capricious. 

I would reverse the District Court and remand this case for 

further findings regarding the child's best interests and placement 

for adoption that will serve those interests.