Warren E. Burger: We will hear arguments next in Lehr against Robertson. Mr. Freeman, you may proceed whenever you're ready.
David L. Freeman: Mr. Chief Justice and may it please the Court: With the Court's permission, I will first have a brief opening statement, then address myself to the question of jurisdiction, and then proceed with the balance of my argument. On March 7th, 1979, Jonathan Lehr was deprived of the most basic and precious of all human rights, the right to maintain his status as a parent. For on that date Jessica, whom Mr. Lehr had always openly acknowledged to be his daughter, both before and after birth, was adopted by the Appellee, Richard Robertson, the husband of the natural mother. According to New York law, as a result of that adoption Mr. Lehr's rights as a parent were forever and irrevocably extinguished. There would be no more contacts of any nature with Jessica, no visitations, no rights of inheritance. Mr. Lehr was deprived of this child without being given the opportunity of notice and the opportunity to be heard, for according to the New York statutory scheme then in force and effect Mr. Lehr was precluded from receiving notice as those statutes were construed and applied to him. What makes this lack of notice even more emphatic was the fact that at the very time that Mr. Lehr's rights were being stripped in the adoption proceeding in Ulster County, he had commenced a paternity petition in Westchester County, unbeknown to him that the adoption proceedings were pending. In Westchester County he asserted his rights as a parent. He asked that the child be adjudicated and that he be made the father, that he be given visitation rights and that he be given the right to support Jessica. The family court judge in Ulster County knew of this petition. Mr. Lehr had to assert his rights in this manner because he was prevented from asserting them after Jessica's birth, for after Mr. Lehr's last visit at the hospital during father's visiting hours to see Jessica, Lorraine, the natural mother, withheld the whereabouts of Jessica for approximately six months, after which Mr. Lehr had an opportunity to see Jessica on a couple of weekends, and thereafter for approximately 14 months before Mr. Lehr instituted these paternity proceedings Lorraine Robertson withheld the whereabouts of Jessica from Mr. Lehr. Mr. Lehr tried desperately to find Jessica. However, he was unsuccessful until right before he started the paternity proceedings, at which time he sought counsel and then asserted his rights as a father in the paternity proceeding in Westchester County. This Court has raised the question of jurisdiction as to whether or not it has the right to hear this appeal. Mr. Lehr claims and has claimed in all three courts below that he was denied of his constitutional rights of due process and equal protection by virtue of the fact that the New York statutory scheme as construed and applied to him denied him notice and the opportunity to be heard. In particular, I'm referring to Sections 111(a) and 111 of the New York domestic relations law. By the terms and provisions of that law, in particular Section 111(a), only seven categories of unwed fathers were entitled to receive notice. According to the record, Mr. Lehr was not one of these, although there is a question as to whether or not he might have fit into one of these categories, as to whether or not Lorraine, the natural mother, had filed a written sworn statement indicating that Mr. Lehr was the father.
William J. Brennan, Jr.: Was one of those categories those who register in that registry?
David L. Freeman: One of the categories is a father who registers by filing a notice of intent to claim paternity.
William J. Brennan, Jr.: And he never did that?
David L. Freeman: No, Mr. Lehr never did.
William J. Brennan, Jr.: He could have.
David L. Freeman: Mr. Lehr could have, theoretically, if he knew of the registry.
William J. Brennan, Jr.: Why theoretically?
David L. Freeman: Theoretically because, number one, if he knew of the registry he could have registered in it. Mr. Lehr indicates that he did not know of the registry.
William J. Brennan, Jr.: Did he have counsel?
David L. Freeman: He had counsel at the time. Starting in December he had counsel.
William J. Brennan, Jr.: And counsel didn't advise him he might register?
David L. Freeman: No, counsel did not advise him to file in the putative father registry.
William J. Brennan, Jr.: Does the record show why not?
David L. Freeman: No, the record does not show why not. When it came time for Mr. Lehr to assert his rights, the putative father registry did not have what Mr. Lehr sought. The putative father registry is a mere notice, an irrevocable notice by one intending to claim paternity. Mr. Lehr--
William J. Brennan, Jr.: Had he been registered, would he not have had notice of the adoption proceeding?
David L. Freeman: --Had he been registered, he would have been entitled to notice of the adoption proceedings. But we do not look to the state law as the source of our liberty interest here. The state law has construed the fact that in order to obtain a liberty interest worthy of protection of the due process clause of the Fourteenth Amendment, that one must be the biological father and in addition that one must perform one of the seven acts enumerated in Section 111(a). Mr. Lehr looks at the federal Constitution for the source of his liberty interest and for his protection under the Constitution. It's submitted that--
William H. Rehnquist: Do you suggest by that the state has no power to place some orderly procedures in the area?
David L. Freeman: --No, the creation of a liberty interest has two sources, the federal Constitution and the state. But the state has minimum constitutional standards that we felt were not met by Section 111(a). If the state establishes--
William H. Rehnquist: I'm speaking of the statutory process. Let's assume the constitutional right that you choose to oppose, for a moment. Can the state put procedural requirements in the exercise of that right?
David L. Freeman: --The state can set up its own procedural requirements, as long as they meet the requirements of the Fourteenth Amendment, the due process safeguards that have been established by the Fourteenth Amendment. The state cannot go below those minimum due process safeguards. It is our contention here that the state has gone far below.
William H. Rehnquist: Are you suggesting that the registry requirement is in conflict with the constitutional right that you claim?
David L. Freeman: I'm suggesting that the registry right is not necessary for us to have that constitutional right. What we have here is a liberty interest to maintain a status as a parent.
William J. Brennan, Jr.: Yes, but one of... as I understand it, one of his grievances is that he never got notice.
David L. Freeman: That's correct.
William J. Brennan, Jr.: And yet, apparently New York had a procedure by which, had he registered, he would have had notice of the adoption proceeding. That's true, isn't it?
David L. Freeman: Pardon me?
William J. Brennan, Jr.: He might have had notice of the adoption proceeding merely by registering in the putative father registry. Is that true?
David L. Freeman: Yes. We've indicated that that's true.
William J. Brennan, Jr.: Well then, why... how is--
David L. Freeman: Because what New York State has said is that before Mr. Lehr was entitled to due process safeguards that he had to file in the putative father registry or perform one of the other acts, and that he had to be a biological father. They have two elements that they require before he has a liberty interest. It's suggested that Mr. Lehr's right as a biological father, the fact that he's one, claiming to be the biological father entitles him to due process procedures. We then look to due process procedures to see what process was due him, and it's contended that notice and the opportunity to be heard are required before Mr. Lehr's liberty interest was terminated here.
John Paul Stevens: --Mr. Freeman, does that mean, if you rely on the biological relationship as a sufficient justification for the liberty interest... say there are no statutes at all... does that mean there could never be a valid adoption carried out where a mother places a child for adoption without giving notice to the parent, to the father?
David L. Freeman: It's our contention, although we don't fit within that category--
John Paul Stevens: I know you don't.
David L. Freeman: --It's our contention that notice and the opportunity to be heard must be given. A biological father is enough to bring in--
John Paul Stevens: Is always entitled to notice and an opportunity to be heard?
David L. Freeman: --No, not necessarily entitled to... what I'm trying to indicate is that once a father is a biological father, he is entitled to the protection of the due process clause.
John Paul Stevens: Well, what does that mean with respect to a mother with a newborn infant who wishes to place the baby for adoption in the most expeditious manner possible? Does your view of the Constitution require that she give notice to the father?
David L. Freeman: Absolutely.
John Paul Stevens: And the state must make sure that they--
David L. Freeman: The state must make reasonable efforts to notify the father in accordance with due process. As this Court has indicated on a number of occasions where identity cannot be found and notice by publication is the only means of notifying somebody, then the court... the court's permitted to notify somebody and cut off the constitutional rights.
William J. Brennan, Jr.: --All right, even if the girl doesn't identify who the father is and no one knows who the father is, what... it should be notice by publication?
David L. Freeman: There should be notice by publication.
William J. Brennan, Jr.: To an unknown biological father?
David L. Freeman: Pardon? An unknown biological father. If the mother has not identified the father, then there should be some form of notice, either notice by publication, to whom it may concern--
John Paul Stevens: And that would include identification of the mother, of course, and her predicament?
David L. Freeman: --Not necessarily the identification of the mother.
John Paul Stevens: How would the notice... how would a publication be meaningful unless you knew who the person was?
David L. Freeman: You could identify the child. You could possibly, if the father knew the child--
John Paul Stevens: Well, give me an example of a sufficient notice by publication. Child X, born on such and such a date?
David L. Freeman: --We're not saying that notice by publication has to be sufficient. We're saying that you give what due process requires in the circumstances.
John Paul Stevens: Well, what does it require if you don't know the father?
David L. Freeman: It requires notice by... some form of notice by publication.
John Paul Stevens: And what would the publication say? Would it not have to identify the mother to have any meaning at all?
David L. Freeman: Yes, but nobody says that it has to have meaning. If a father has not done enough acts so that he is in communication with the mother--
John Paul Stevens: You're saying a meaningless notice is sufficient?
David L. Freeman: --Pardon me?
John Paul Stevens: You're saying a meaningless notice is sufficient?
David L. Freeman: In some aspects, meaningless... no, we're giving him notice. The very fact... if the Court's referring to the case of Mullane, where the Court indicated there you may have to give meaningless notice, notice that may oftentimes be futile, knowing that you're not going to get to the party with whom the notice is directed. But if that's the only thing that's available, then that's what's given.
Warren E. Burger: Well now, the state here--
David L. Freeman: But that's not--
Warren E. Burger: --Excuse me. The state here in effect, perhaps for the reason that published notice is usually generally pretty meaningless, but in this setting would be particularly so, as Justice Stevens has pointed out, and to identify the mother and the child would cause an embarrassment that would haunt them the rest of their lives, so the state said, now, all you men who want to make claims on your illegitimate children, file in this registry and then you'll have all the notices.
David L. Freeman: --Once again, it's our position that the state cannot do... we're not looking... the state has not met its due process requirements. The due process--
Warren E. Burger: Well, has he met... has he met... has he given support to his claim by his failure to register?
David L. Freeman: --Mr. Lehr did much more than register. Mr. Lehr's identity was known to all concerned at this particular time. The state knew of Mr. Lehr's concern.
Warren E. Burger: The state didn't know. The state had this statute for the purpose of identifying the claimant, did it not, the putative father registry?
David L. Freeman: For the purpose of readily identifiable fathers.
Byron R. White: Well, is there something about the registry that would foreclose an argument something like this: Well, the state has given the putative father a method of assuring that he's gotten... that he will get notice, but that doesn't mean the state shouldn't give notice if they know of the identity and location of the putative father by some other means. Is there something about the registry that prevents that argument?
David L. Freeman: No, there's nothing about the registry. The registry, as a matter of fact--
Byron R. White: Because here he certainly made his presence known. By the time the adoption proceeding was final, the adoption was finalized, the court, the adoption court, knew about him. They had actually given him some show cause order.
David L. Freeman: --No. Well, that was not meaningful notice. Notice--
Byron R. White: Well, I know, but it wasn't... I know it wasn't meaningful notice about the adoption, but they knew who he was--
David L. Freeman: --Oh, definitely.
Byron R. White: --and what his claims were.
David L. Freeman: Absolutely. The judge knew about that well before he signed the order of adoption.
Byron R. White: Is there something about the registry that would say that the only way the state can be given notice is through the registry?
David L. Freeman: No. It's our contention that the state could be given notice in any number of ways. The state--
Byron R. White: Well then, that's a much easier argument for you to make than the one you're trying to make. To follow up on that, Mr. Freeman, you certainly do not have to urge this Court to require that notice be given to every putative father, by publication or otherwise, to win your case, do you?
David L. Freeman: --I indicated that that was not our case. I said we had done much more than that. We were a readily identifiable father who had shown concern for his child.
Byron R. White: You should just argue that case.
David L. Freeman: Well, that's what I'm trying to argue--
Speaker: Good.
David L. Freeman: --Mr. Justice Stevens.
Harry A. Blackmun: Tell me about these registries. Are they county registries?
David L. Freeman: No. This is a central registry in the state.
Harry A. Blackmun: Where, at Albany?
David L. Freeman: In Albany. And at the last count, since the registry was instituted in 1977 there have been 600-some odd fathers who have filed in the putative father registry, despite the fact that there have been maybe approximately 200,000 out of wedlock births during that same period of time.
Warren E. Burger: Well, is it... could we take judicial notice of the fact that such fathers are ordinarily not anxious to advertise their relationship?
David L. Freeman: There's a number of reasons why the fathers aren't willing to advertise their relationship. Our contention is that most fathers don't know about the putative father registries, and those fathers that are concerned for their children--
Warren E. Burger: No, I'm not talking about whether they know about the registry. Assume they know about it. Is it not a fact of human nature and common human experience that most such fathers do not want to advertise their parenthood?
David L. Freeman: --In our case it was no reason--
Warren E. Burger: Well, I'm not talking about your case. I'm talking about the generality. And it's the generality that I'm addressing.
David L. Freeman: --Well, first of all, the notice is a revocable notice, so that if he can file it he can take it back, number one. Number two, those fathers that are concerned and caring for their children would have no need to file in the putative father registry. They may be openly living with the mother, or they may be visiting with the child on a regular basis, or they may have established some sort of contact with the child. They would have no reason to file in the putative father registry. And that was the case with Mr. Lehr. Even had he known about the putative father registry, he would have had no reason to file because both... as the record indicates, the natural mother knew and acknowledged to others that Lehr was the father here. There was no secret here. There was no right of privacy involved here. Everybody knew that Mr. Lehr was the natural father. The Fourteenth Amendment in determining what procedural safeguards must be given when a liberty interest is terminated or created looks to a number of factors. The first factor is the type of risk that's involved, that if notice and the opportunity is not given what type of risk is there that there will be an erroneous termination of these parental rights? What did we have in Ulster County? We had an ex parte hearing. We had parties present who were interested in one side of the coin. They wanted the adoption of Jessica. There was nobody present to cross... examine, a basic tenet of our society, that when facts are relevant to the determination of an action that that party have the right of cross examination. Here there was a secret one sided determination of the child's best interests.
Harry A. Blackmun: Well, I don't think you can condemn procedures of that kind. Most adoptions are carried out that way. But here, of course, your position is that his parenthood was known and the court knew it.
David L. Freeman: In addition, Mr. Lehr, had he been made a party to these adoption proceedings, would have assisted the judge in making a determination as to the child's best interests. Mr. Lehr's input here would have been substantial.
Sandra Day O'Connor: Mr. Freeman, you're not claiming on behalf of Mr. Lehr that as a matter of substantive due process he's entitled to veto the adoption, are you?
David L. Freeman: We've made that contention, and we believe that Mr. Lehr does have the substantive right of veto to... the substantive right to veto the adoption, in addition to other substantive rights that he does have: the right to have a hearing as to the child's best interests, the right to prove that he is fit or unfit to exercise that very right to veto. We cannot presume, nobody can presume, that Mr. Lehr did not have a substantial relationship with that child, say one that may have been similar to Stanley. We don't know about what type of relationship Mr. Lehr has until he's put in that courtroom and given the opportunity to be heard. Without being given this right, the court has no way of knowing of the type of relationship which Mr. Lehr had established and the type of relationship which he intended to establish in the future.
William J. Brennan, Jr.: Well, all that Mr. Lehr asks here, though, is visitation rights, wasn't it?
David L. Freeman: Mr. Lehr brought on a petition for visitation rights. Mr. Lehr was denied--
William J. Brennan, Jr.: There's no issue of whether or not he might have a veto of the adoption?
David L. Freeman: --We don't know. There was no hearing.
William J. Brennan, Jr.: Well, but there isn't any such issue in this case. You've certainly presented that in the lower courts.
David L. Freeman: Pardon me?
Byron R. White: You certainly made that claim in the lower courts, didn't you?
David L. Freeman: What claim is that, Mr. Justice?
Byron R. White: The veto, that they must have his consent.
David L. Freeman: Oh. We do claim, we do claim that he has the right to veto.
Byron R. White: Sure. And that it's a denial of equal protection if you don't get it.
David L. Freeman: That's correct, that's correct.
William H. Rehnquist: Certainly there must be some substantive right that you contend for your client, because otherwise to afford him this hearing, if he doesn't have any claims that would have to be taken into consideration at the hearing, doesn't make much sense.
David L. Freeman: Well, as I've indicated, he has the right to be heard on the best interests of his child. New York already provides for that. Section 111 (a) provides that those unwed fathers who receive notice of the adoption proceeding have the right to be heard on the child's best interests. In addition, Mr. Lehr would have been heard as to whether or not the new adoptive parents were fit to have an adoption. There have been New York cases which have indicated that because of the history of the natural mother, the emotional history of the natural mother, an adoption was not permitted, irrespective of the fitness of the adoptive father. Mr. Lehr had substantial... Mr. Lehr lived with the natural mother here for a period of almost approximately two years prior to the birth of Jessica.
William H. Rehnquist: So you say once you establish your procedural claim New York statutes give you substantive interests which you can assert at the hearing?
David L. Freeman: And New York statutes... that's correct, Mr. Justice. New York statutes provide that you do have a right of hearing, to be heard as to the child's best interests. Now, this Court has held that where these deprivations are so substantial as they are here there is a need for heightened procedural due process safeguards. We're basically talking about the most rudimentary of all procedural due process safeguards. We're not talking about a higher evidentiary burden, such as clear and convincing evidence. We're talking about the basic right to be heard, the basic right for a citizen to have his day in court before he's deprived. This Court has held on a number of occasions that this basic right to be heard is given where there is a loss of mere property, a mere driver's license, where wages are garnished, where there's a repossession of a car. Courts have given those people the right to be heard. Here we have something much greater to lose. We have a child to lose, and even the risk of one loss is too great here, so that notice is mandatory in these type of situations.
Byron R. White: Well, what was the answer of the lower courts to your claim under Caban?
David L. Freeman: The lower courts... the family court gave Caban retroactivity, but indicated that because the father here hadn't established a sufficient relationship with the child that Caban was distinguishable. The Appellate Division denied retroactivity of Caban, and the Court of Appeals affirmed that view. It is our claim that Caban should be applied retroactively to this case, although that is not our main point nor does our case rest or fall on that point. Our case is basically one of notice, one of procedural due process, and it is that where... it is on that issue where the case falls.
John Paul Stevens: May I ask you on that, because some of the other questions have indicated that your case is particularly appealing because the judge knew about your client before the final order of adoption was entered. Would you think the case would be different if only the adoptive parents knew about your client, that the judge didn't know? Would that make any difference?
David L. Freeman: I think he still would have been entitled to notice.
John Paul Stevens: And so any time... your position really is that any time the mother knows the identity of the father the father's entitled to notice?
David L. Freeman: That's correct, and that's something, say, something like the Uniform Parentage Act has indicated that when the mother puts the child up for adoption that she... one of the questions asked of her is to identify the father. This goes to encouraging the state's interest of finality. Perhaps the most important state interest that we have here is having an adoption proceeding that is final. The very fact that the state did not give Jonathan Lehr notice here is adversely... affects that state interest. We all know that to obtain finality in any proceeding the idea is to get as many parties to the proceeding as possible, especially where those parties' rights are being adversely affected.
John Paul Stevens: Does the record tell us why he didn't get his name put on the birth certificate?
David L. Freeman: The record merely indicates that he had assumed that his name was on the birth certificate. There was no reason... according to New York--
John Paul Stevens: He really had two pretty simple opportunities, one to get his name on the birth certificate and the other to file with this registry.
David L. Freeman: --Well, we don't claim that due process requires that we first know of a putative father registry or that we know of Public Health Law 4135, which says that you have to file an affidavit.
John Paul Stevens: Do you think there's any... do you think there's any way in which a putative father could waive all these rights? Supposing he just had not been there at the birth or had gone to Alaska or someplace?
David L. Freeman: He would not appear at the proceedings. As was indicated in a prior case of this Court, Stanley versus Illinois, those fathers that do not wish to appear will not appear, and their rights will be constitutionally foreclosed provided that some form of notice was attempted to be given to them. Those are the fathers that aren't going to come forward.
John Paul Stevens: What I'm trying to ask is, would this case be different if he had gone away? Say he knew the girl was pregnant and he left right away, came back two years later and decided he now wanted to assert an interest in becoming, you know, the father of the child before the adoption was final? Would he have the same rights?
David L. Freeman: Absolutely. He has the right to be heard. We don't know... how do we know as to whether or not Mr. Lehr is going to be similarly situated to a mother? What do we know his relationship was? This Court has held that an unwed father can be similarly situated to an unwed mother. They held that in Stanley and they held that in Caban. We don't know. That's the very point of this case. Mr. Lehr's rights as a parent were foreclosed without the court knowing anything. In fact, what the court did know was that there was a very concerned father out there who wanted to visit with the child and wanted to support the child. That's what the court did know. Yet it didn't act on this. And the New York court below, the New York Court of Appeals, indicated that the family court judge was precluded from giving notice to Mr. Lehr, despite this knowledge, because of the provisions of Section 111 and Section 111 (a).
Warren E. Burger: Has he furnished support for the child since its birth?
David L. Freeman: No, he hasn't, Your Honor.
Warren E. Burger: Well, that doesn't suggest any great anxiety to assume that--
David L. Freeman: Once again, Mr. Lehr when the child was born paid for the... had had his mother pay for the child's birth, afterwards had requested that he be given the right to support, was denied by the natural mother. Mr. Lehr then went to court and asked the court to impose support obligations upon him. Mr. Lehr made every effort to give this child support.
Warren E. Burger: --Well, does he need a court order to send a check every month or periodically?
David L. Freeman: The natural mother indicated that she would not accept it. But we can't go into the nature or extent of this relationship based on conflicting affidavits here.
Warren E. Burger: Well, we can if we want to.
Warren E. Burger: Yes, Mr. Chief Justice, you can. But what I am saying is that in every case that's been decided by this Court where they've dealt with what type of relationship... in the Quilloin case the Court indicated that support was irregular, but they only indicated that after there was a full evidentiary hearing at which the father had the right to give any and all evidence concerning his individualized interests in that child, despite the fact that maybe he didn't have the substantive right to veto that adoption or... and continue his visitation. The very mere fact that a person doesn't have custody of a child doesn't mean his parental rights can be terminated. I mean, he can show the court where it would be in the best interests of a child to have visitations and his parental rights continued beyond the time that the adoption takes place. And it is Appellant's contention that he was not given any opportunity to advise the court as to what these best interests were, and certainly the best interests of Jessica could not have been fostered by the court not taking these factors into consideration. With the Court's permission, I'd like to use the remainder of my time for rebuttal. Very well. Mr. Samoff.
Jay L. Samoff: Mr. Chief Justice and may it please the Court: Throughout this argument, I respectfully request that the Court bear three things in mind: One is that we do not and have not conceded that the Appellant is in fact the father of the child. Secondly, that this is a Quilloin type adoption, a stepfather adoption, a stepfather who was adopting his wife's child. And since there-- And the third point is that the Appellant never had and never sought custody of the child, which meant that regardless of what the Appellant said in any court anywhere that child was going to continue to live in the mother's household and was going to continue to be the de facto child of the stepfather. And this is what Judge Elwyn was faced with in family court. I wish to point out a factual inaccuracy in Appellant's argument--
Byron R. White: Well, what would happen if he had been on the register?
Jay L. Samoff: --He would have gotten notice.
Byron R. White: What for?
Jay L. Samoff: To provide testimony regarding the child's best interests.
Byron R. White: Well, that's a... I thought you've been arguing that it wouldn't have made much difference, that the adoption would have had to go through anyway because it was a stepfather adoption.
Jay L. Samoff: I didn't say it had to go through anyway. What I did say--
Byron R. White: Well--
Jay L. Samoff: --No, I think the sequence of events is extremely important here. What we have is an adoption hearing that was held, conducted and finalized, finalized with the exception of the ministerial act of signing the order, on January the 15th, 1979. The Appellant did not commence his paternity petition... he did not file it in the Westchester County family court until January 31st, and it gave no notice to anybody until the Westchester County family court served by mail a summons with the petition in late February. So that it is not correct to say--
Byron R. White: --Well, why did the judge issue an order to show cause?
Jay L. Samoff: --That happened in late February.
Byron R. White: Yes, after all... after the proceeding was all over, you say.
Jay L. Samoff: That order to show cause was requested by myself, and it was strictly a motion to change the venue of the Westchester County proceeding to Ulster County.
Byron R. White: Why did you want it over there--
Jay L. Samoff: I didn't want to play in his ballpark, Your Honor.
Byron R. White: --if it was irrelevant?
Jay L. Samoff: I did not move to have the proceedings--
Byron R. White: Well, what if it had been transferred? What would you have done with it?
Jay L. Samoff: --I would have moved... I would have done the same thing that I in fact did in Westchester.
Byron R. White: And what you're doing now, ignore him.
Jay L. Samoff: I didn't ignore him, Your Honor. I moved to dismiss his petition, and in fact it was--
Byron R. White: Well, what if it had been transferred?
Jay L. Samoff: --I would have done the same thing. It was merely a motion to change venue, not to consolidate the proceedings.
Byron R. White: But would he have then had an opportunity to be heard?
Jay L. Samoff: No. That would be discretionary. That's the safety valve here.
William H. Rehnquist: Mr. Samoff, what's the distance between Kingston and White Plains?
Jay L. Samoff: Hour and a half, hour and 45 minutes. It was merely a convenience motion for myself and for any witnesses I might have to bring.
Thurgood Marshall: Why didn't you give notice to the father?
Jay L. Samoff: The statute didn't provide for it. Bear in mind--
Thurgood Marshall: That's the answer?
Jay L. Samoff: --We don't--
Thurgood Marshall: Is that your only answer?
Jay L. Samoff: --Yes, Your Honor. Well, we don't admit that he's the father. That's the first thing. And to give notice to somebody who had not asserted rights under the statute would be to give rights to somebody who is not necessarily entitled to them.
Warren E. Burger: He might sue you for libel.
Jay L. Samoff: We did not state one way or another whether he is the father. We did not say he's not the father. As a matter of fact, there is a statutory protection in the paternity proceeding where--
Thurgood Marshall: Is it true that he lived with your client for two and a half years?
Jay L. Samoff: --Intermittently, yes, that's true.
Thurgood Marshall: You knew that?
Jay L. Samoff: Yes.
Thurgood Marshall: And you knew the child was born--
Jay L. Samoff: We certainly--
Thurgood Marshall: --while they were living together?
Jay L. Samoff: --The child... they did not live together from the time she went to the hospital to have the child and thereafter.
Thurgood Marshall: Well, I don't see how they could. He couldn't live with her in the hospital.
Jay L. Samoff: They did not resume living together thereafter.
Thurgood Marshall: But they lived... they were living together when the child was conceived, and you knew it.
Jay L. Samoff: I don't know it, and the reason, Your Honor, I don't know--
Thurgood Marshall: And you knew it.
Jay L. Samoff: --The reason I don't know precisely, Your Honor, is it is true that they lived together over a two or two and a half year period prior to the birth of the child, but it was not continuous. There were breaks in this living arrangement where one would move out and move back. What we had was a situation where this is a claimant to paternity who never provided support, who never visited except on a few occasions in 1977, and then he states in the joint appendix on page 30 and 31, he admits that he knew precisely where they were as early as August 1978... it's right there in his own affidavit... and that he took no steps, did absolutely nothing to exhibit an interest until his attorney writes a letter, I think in December, saying we want visitation with your child. He doesn't even claim that it's his own child. He then does not put his name on the putative father registry, despite the fact that he is represented by counsel. He did nothing at this point, and in January, at the very end of January for the very first time, after we have conducted the hearing he files his petition in Westchester. Thereafter, a full month later goes by before we even have notice about it. And as an officer of the court I immediately went to Judge Elwyn and told him. I also told Westchester. And the situation at this point was, what was Judge Elwyn faced with? Now, bear in mind Caban had not been determined at this point, which meant that, assuming arguendo he was the father, the sole interest that this man had was to provide evidence as to what's in the best interest of the child. Now, Judge Elwyn had: one, conducted a hearing in which he took testimony; two, he had had a social services report which indicated that certainly it was in the child's best interests; and three and most damningly is, in the Westchester County paternity petition he specifically stated that he only wanted visitation. He was virtually conceding the propriety of the mother's home. Well, Judge Elwyn had a discretionary right to reopen the whole thing. By the way, there was no application to do so at this point. It was all vague and up in the air.
Thurgood Marshall: It was all one sided, too, wasn't it? It was you and the judge.
Jay L. Samoff: No, Your Honor, I don't think so, because--
Thurgood Marshall: Well, that's what you just said.
Jay L. Samoff: --Well, I think that the judge... that there was at least a four or five day hiatus where action could have been taken, where a telephone call at that point might have been made. But in any and all events, Judge Elwyn determined, and looking at Quilloin and the quote in Quilloin: "We have little doubt that the due process clause would be offended if a state were to attempt to force the breakup of a natural family over the objections of the parents and their children, without some showing of unfitness, for the sole reason that to do so was thought to be in the child's best interest. " "But this is not a case in which the unwed father at any time had or sought actual or legal custody of his child. " "Nor is this a case in which the proposed adoption would place the child with a new set of parents with whom the child had never before lived. " "Rather, the result of the adoption in this case is to give full recognition to a family unit already in existence, a result desired by all concerned except appellant. " "Whatever might be required in other situations, we cannot say that the state was required in this situation to find anything more than that the adoption, and denial of legitimation, were in the best interest of the child. " Now, there was a safety valve here. This wasn't necessarily the end of it. There were two safety valves: One, New York law provides that he could have moved to intervene even after the signing of the order. No motion was made. He filed a notice of appeal and abandoned the appeal. It was dismissed by operation of law. If he's contending that that is an intervention, then it's res judicata; the case is decided. Now, what is the other safety valve? And this is what the Court of Appeals noted. There is a Section 114 of the domestic relations law, which says that for good cause shown an application can be made to the court showing why the adoption should not be set aside. This was there. This was known to Judge Elwyn. He said, if this man wants to participate he can make his application in a timely and orderly fashion. He had nothing before him. The hearing had already been conducted before Judge Elwyn knew of his existence. A 114 application in fact was made, and at that time he had an opportunity to lay bare his soul. He didn't have to prove his case. All he had to do is make his allegations, lay out a prima facie case as to why he thought the adoption should not go through and why it was not in the child's best interests. Bear in mind that the scope of his participation prior to Caban was strictly what is in the best interest of the child. And he in fact does lay bare his soul, and every court below found that he had not even touched on the subject of best interests, that in fact if every single solitary thing he said was true there was nothing to suggest that it was not in the child's best interests. So not having even made out a prima facie case, there was no point even for a hearing at that point.
William H. Rehnquist: Well, could you summarize what his allegations were in the 114 proceeding?
Jay L. Samoff: Yes. He goes through the entire history of how the Appellee mother allegedly wronged him, going through her psychological distress years earlier, postpartum depression and things with a miscarriage that she had had. But he doesn't talk about the child in any way, shape or form. All he talked about was how he had been wronged at the hands of this woman. But what he did do is he put all his eggs in one constitutional basket. Seven weeks or six weeks after this court... after the family court signed the order of adoption, this Court announced Caban. He seizes in his 114 application on Caban, saying it is retroactive and therefore he has the right to veto, and that's where his rights spring from. And this is what the Court of Appeals seized on. The Court of Appeals said, we are not going to hold Caban retroactive and as a result we don't even reach his constitutional arguments. Now, whether or not one may imply that they upheld the constitutionality of the New York statute, I suppose it may be implied, but for the fact that the Court of Appeals itself specifically stated in no uncertain terms that it wasn't addressing that issue. Accordingly, I suggest that this Court should not and does not have jurisdiction over this case, because the Court of Appeals, rightly or wrongly, said because Caban is not retroactive we are not reaching his constitutional arguments. And that in effect is what they said.
Byron R. White: Well, you can't avoid jurisdiction here just by saying, we don't want to deal with the constitutional claims, if they're properly presented.
Jay L. Samoff: I think that under 1257, subdivision (2), there are a couple of elements: one, the highest court of the state... the constitutional argument must be raised in the first instance. Secondly, the highest court of the state must in fact affirm the constitutionality of the statute. That affirmance can be done expressly or impliedly, and it is argued here that it's done impliedly. Well, as I said, the implication might be drawn, but for the fact that the court expressly said it wasn't ruling on that issue. And if the highest court of the state has not ruled on the issue, then that's not--
Byron R. White: How could it avoid it if it's properly presented and might be determinative of the case?
Jay L. Samoff: --Because they found another means out.
Byron R. White: Well, so do you think it's an independent state ground, is that it?
Jay L. Samoff: There's an independent grounds. I don't know whether it's a state grounds. It's Caban. They addressed it in terms of Caban. They said, whatever rights he has, because that's all he raised in his... that's all the real substance that he raised in his 114--
Byron R. White: Well, I know, but if you reject the claim, if you reject the Caban claim, you have rejected the federal issue. It may be, it may have rejected it correctly, but that doesn't mean there's no jurisdiction.
Jay L. Samoff: --I picked up my cue, Your Honor, from the Court of Appeals. When they tell me they're not addressing the issue, who am I to argue with the Court of Appeals when they tell me that? That's for this Court to do.
Thurgood Marshall: I was getting ready to say, you don't mind us arguing a little bit?
Jay L. Samoff: Not at all, Your Honor. Now, I think a major point that was raised in Quilloin is that this stepfather adoption is a very different kind of adoption. This is not a situation where the child is going to be placed in a strange home--
Byron R. White: Could I ask you, is it, in New York is it inconsistent with the adoption to give visitation rights?
Jay L. Samoff: --There is no law, there is no statute prohibiting it. However, New York has--
Byron R. White: It's never done, though, is it?
Jay L. Samoff: --No. The case law has said the only instance where it has been done is with the consent of the adoptive parents. As a matter of fact, that issue came up in this case in the Westchester County paternity proceeding, where he argued in that case, the Appellant in this case argued in that case, that the Westchester County family court should permit the paternity proceeding to go ahead despite the fact that there had been an adoption, because it would give him visitation... it might give him visitation rights, and that the court had the authority to permit visitation. In the argument in that case... it was all submitted. There was no oral argument.
Byron R. White: Does a mother always have the power to veto an adoption in New York?
Jay L. Samoff: Yes. Yes, and it's--
Byron R. White: So if the child is living with the father and always has, and the mother has departed and remarries, and the father remarries and the new mother wants to adopt the child, the mother can nevertheless veto it?
Jay L. Samoff: --That is an inequity that this Court I think cleared up in Caban. But this is pre Caban.
Byron R. White: Well, if this were post Caban what would you say then?
Jay L. Samoff: If this were post Caban, we'd have to assume for the sake of argument that he is the father.
Byron R. White: Yes, yes.
Jay L. Samoff: But that's strictly just for the sake of argument. If he in fact is the father and if he in fact did not waive his paternal rights through abandonment or lack of support or whatever--
Byron R. White: You're getting there, you're getting there.
Jay L. Samoff: --then under those circumstances he now could also veto the adoption. That's a lot of if's.
Byron R. White: After Caban, yes.
Jay L. Samoff: After Caban.
Byron R. White: Well, why shouldn't... this is a civil case. Why shouldn't we apply the law as it is in an appellate court the way the law is then?
Jay L. Samoff: First of all, this is not a direct... this case was was not in the appellate process at the time Caban came down.
Byron R. White: This is a motion to reconsider or a--
Jay L. Samoff: This is a separate proceeding.
Byron R. White: --To what?
Jay L. Samoff: To set aside the order of adoption.
Byron R. White: Well, has it got a different number?
Jay L. Samoff: I don't think there was a number.
Byron R. White: You made a... the motion is made in this case, the same case. There's a procedure whereby you can attempt to reopen the same case.
Jay L. Samoff: The Court of Appeals ruled on this directly and determined that it is in fact a separate case, that the order... that the first case ended with the filing of the order of adoption, and that no appeal taken... actually, there was an appeal taken from it, which was dismissed by operation of law. So that that case was over and done with. This is a separate application to set it aside, which is also permitted. But it is a separate case. It is a post judgment attack.
Byron R. White: Of course, he had no way of appealing the adoption.
Jay L. Samoff: Yes, he did. He could have moved to intervene. Even post order, he is permitted in a timely fashion... and there is no rule on it that says what the timely fashion is... he could have moved--
Byron R. White: And that would have a different consequence than this procedure he did use?
Jay L. Samoff: --Yes, because what would happen is, after Judge Elwyn signs the order he then could move to intervene.
Byron R. White: Well, it's sort of a way of avoiding intervention, having to intervene. You make this motion and if you have some standing you make it, and the court rules on your questions on the merits. You for all practical purposes are in the case.
Jay L. Samoff: The right to appeal and the right to perpetuate--
Byron R. White: What if the court had taken his Caban claim and said, yes, it's retroactive? What would they have done with it? You would have said, well, I guess Caban is retroactive. Then what would have happened in this case?
Jay L. Samoff: --I could have appealed.
Byron R. White: Well, let's assume the Court of Appeals of New York said Caban is retroactive and denying him the power to veto the adoption is unconstitutional. What would have happened then?
Jay L. Samoff: I'm not sure I completely understand the question, because if--
Byron R. White: Well, what if the Court of Appeals had ruled the other way on the Caban claim, namely that it is retroactive. What would the court have done, said, sorry, but this is a separate proceeding?
Jay L. Samoff: --I think in order to come to that conclusion they have to come to a threshold conclusion, that this is in fact the same case. There's another argument also, and that is that the rights given under Caban, if they did exist, are substantive rights. It's substantive rights that lead to procedural due process rights, which gets us back to the procedure of 111(a), and the procedure of 111(a) does in fact provide a mechanism whereby he could have received notice. The interesting thing is that even the dissenters throughout have never said Caban is retroactive, have never found that the statute is infirm. What they did find was that... I'm talking about the dissenters now. The dissenters said, at most there is an abuse of discretion. And I suggest to this Court that there's no abuse of discretion if one considers the situation Judge Elwyn was faced with and the fact that there were alternatives, that this fellow could have intervened and he could have appealed from a denial of the intervention. If the intervention had been granted it would have given him status as a party, which would have given him a direct appeal in the case. Plus, on top of all that he still had a 114 application.
Thurgood Marshall: Is this motion to intervene limited to people who didn't have notice?
Jay L. Samoff: I don't think it's... I don't think it's limited in any way. I think any person claiming an interest in the action could move to intervene. It may not be granted.
Thurgood Marshall: Well, do you think somebody who was a party could, he couldn't intervene?
Jay L. Samoff: I'm sorry, I didn't hear.
Thurgood Marshall: A party couldn't intervene?
Jay L. Samoff: If he's already a party he has no need to intervene, that's correct.
Thurgood Marshall: That's right. So it looks to me like it's for those who didn't have notice.
Jay L. Samoff: Either did not have notice or whose interest is--
Thurgood Marshall: You keep mentioning it. I don't see where it helps you. I think it hurts you. Is there a period of time specified under New York law in which intervention may be considered?
Jay L. Samoff: --No. No, I believe it just has to be timely and reasonable time. It's... it mostly appears in Weinstein, Corn and Miller, under 2 New York Civil Practice, and that's where the discussion takes place. There are no time limits set in the statute regarding intervention.
John Paul Stevens: May I ask this question. Forgetting a moment all the possible proceedings that might have taken place, supposing the Court now thinks that there should have been notice to the father and they set aside the decree, and so you have to start all over. Is it not clear that if that happens then Caban will apply and then there is no way in the world you can adopt without his consent?
Jay L. Samoff: Given the assumptions that we gave before, that he is in fact the father, can establish it, and that he did not otherwise abandon the child--
John Paul Stevens: Right.
Jay L. Samoff: --that's right, this adoption is dead, finished.
John Paul Stevens: So that actually, although we're addressing a procedural point, we may actually also decide the merits inevitably?
Jay L. Samoff: Oh, yes. That is a very major... it is a very major point of our argument, is that we now have a... we have a child who has always lived in one family, we have a person who is a claimant who has never sought custody, never had custody, never supported the child, never done anything with respect to this child, and who concedes the propriety of the mother's home. If this case is reversed, then there's a very real potential that if he can establish he's the father and hasn't abandoned, that he can veto the adoption. And that is the question that Judge Elwyn was faced with when this came up to him.
Harry A. Blackmun: Well, under your state law is that an absolute veto?
Jay L. Samoff: Yes. His consent... it's not called veto. His consent to adoption is necessary.
Byron R. White: Just like the mother's is?
Jay L. Samoff: Yes, yes. And there's no question about it. This Court has determined that in the Caban case. By the way--
Warren E. Burger: You have just said that he had never done anything for the child. I understood your friend to say that the Appellant here had persuaded his mother to pay for the hospital bills.
Jay L. Samoff: --That's a bit misleading. To understand this fully--
Warren E. Burger: Not the mother of the child, but the mother of the--
Jay L. Samoff: --Right.
Warren E. Burger: --of--
Jay L. Samoff: His mother, Appellant's mother. My client, at a time when she was in great personal distress, became the ward in fact, if not in law, of Mr. Lehr's mother. She acted as her guardian, and in fact that was how the Appellant and Appellee met. So that she was acting as a grandmother figure regardless, and that is what happened. I point out that he states in one of his papers that he had offered to set up a trust fund for the child and that this was refused. But I point out that the approval of the mother was irrelevant. He could have set up a Totten trust regardless. He didn't need her permission. He claims that she hid from him and therefore he was deprived of taking advantage of the statute, the 111(a) statute, the putative father registry. But he didn't even have to know where she was. We of course deny that she hid from him. But he didn't have to know where she was. That putative father registry is open to anyone and everyone. It is so broadly stated that a woman claiming to be the father can be guaranteed of notice. It's not even gender based. Anybody can put their name on that registry.
Harry A. Blackmun: --I'm still bothered by your absolute veto provisions. Surely in New York a child can be taken away from a parent under certain circumstances.
Jay L. Samoff: Oh, yes, abandonment.
Harry A. Blackmun: Well then, it isn't an absolute veto.
Jay L. Samoff: What I was responding to, I believe, was Mr. Justice Stevens' question, that given the givens that we had before, that he is in fact the father and had not abandoned, then it is an absolute veto. It is a veto to the adoption. A veto to the adoption.
William H. Rehnquist: And it's only an absolute veto because the New York statute gives the mother an absolute veto right.
Jay L. Samoff: The statute--
William H. Rehnquist: Caban was an equal protection case. It wasn't a substantive due process.
Jay L. Samoff: --That's correct. The statute has been revised.
Harry A. Blackmun: Yes, but a child can even be taken away from a mother.
Jay L. Samoff: Oh, certainly.
Harry A. Blackmun: Lassiter.
Jay L. Samoff: Yes.
Harry A. Blackmun: Some of the other things are examples of that.
Jay L. Samoff: Sure. In abuse cases, permanent neglect cases like Santosky--
Byron R. White: Vetoing the adoption or refusing to consent to the adoption doesn't have anything to do with custody. The child would continue to live with the mother.
Jay L. Samoff: --That is correct, that is correct. But this Court has recognized in Quilloin that there is a very compelling state interest and public interest in legitimizing... legitimatizing existing family units--
Byron R. White: If there wasn't an adoption, but just custody by the mother, unless the father was somehow disqualified he could have visitation rights and could maintain some kind of a relationship with his child.
Jay L. Samoff: --That's true in every adoption case there is.
William J. Brennan, Jr.: Well, in this case, as I understand it, all he wants is visitation, isn't that right?
Jay L. Samoff: Yes.
William J. Brennan, Jr.: Well, that is all-- --And if this decree is reversed, even though there may not be an adoption, I gather the mother continues, and the stepfather, with custody of the child, and all that he gets are visitation rights; is that right?
Jay L. Samoff: If he is not otherwise disqualified, yes. He would still have to establish his paternity and--
William J. Brennan, Jr.: I appreciate that. But all... the bottom line for him if he wins on his present application is only visitation rights, isn't it?
Jay L. Samoff: --That was the status at the time he filed his paternity petition.
William J. Brennan, Jr.: Well, what is it now?
Jay L. Samoff: He could change his tune now. Oh, he could change his tune. He could now seek custody if he wants.
William J. Brennan, Jr.: With a new petition?
Jay L. Samoff: Sure, with a new petition. That other petition was dismissed.
Byron R. White: But he wouldn't win unless he shows the mother is unfit to have custody.
Jay L. Samoff: But we contend that that is precisely the kind of thing that he could have shown in his 114 petition and failed to do.
William H. Rehnquist: Mr. Samoff, are you saying or conceding that as a matter of federal constitutional law that if the natural father does not abandon the child and doesn't consent to an adoption he can veto any adoption until the child reaches majority? Perhaps this Court has held that; I just hadn't realized it.
Jay L. Samoff: No, I didn't contend that. I contend under the statute, under New York statutory scheme, that could happen.
Byron R. White: Well, all you have to do is to change the law about the necessity for the mother's consent, put them on an equal basis, and Caban is out the window.
Jay L. Samoff: Well, fortunately or unfortunately, New York has changed its law in response to Caban and has not dispensed with the consent. It adds a new category of persons whose consent is required.
Byron R. White: Which is the fathers.
Jay L. Samoff: Which is the father. But that is a substantive right that one must establish through procedural methods--
Byron R. White: Yes.
Jay L. Samoff: --to establish that he is the father. And we're saying he had the procedure available to him and failed to take advantage of it. He would argue that what he did was even more. I suggest that what he did was something other than what the statute required, but not more, because if he had timely filed on the putative father registry we would have known of his existence in advance. This putative father registry was checked three times. I checked it before filing the petition, the court checked it at the time of filing the petition, and right up to the day we walked into the court for a hearing on January 15th the court again checked it and got a certificate that there was nobody on the list. At this point he still hadn't even started his paternity petition.
Sandra Day O'Connor: Mr. Samoff, I thought under the amended New York law that the consent of the father would only be required if the father had maintained a substantial and continuous or repeated contact with the child.
Jay L. Samoff: Yes. There are two other provisions, also, that follow that.
Sandra Day O'Connor: Or the payment of support, or other things that I would think under the facts of this case would be very unlikely to be established.
Jay L. Samoff: If this Court is going to reverse and send it back, one, we hold this child in limbo through several more legal proceedings; and, based upon what Your Honor has just stated, upon the face of it he is disqualified, then what are we doing here?
Sandra Day O'Connor: On the face of it, would you not agree that under the amended statute even if it were to go back it is certainly not a foregone conclusion that the father would have a so called veto power or would have to consent to the adoption?
Jay L. Samoff: Certainly, certainly. Starting with the premise that we don't even concede he's the father, there's the possibility--
Sandra Day O'Connor: All right, but assuming he establishes that, it's not quite the picture you were painting, is it?
Jay L. Samoff: --No, because I do believe that in any and all events he would not be entitled to notice... I mean, not be entitled to notice and withhold his consent, I should say, even under the new statute. I see my time is up. Thank you.
Warren E. Burger: Do you have anything further?
David L. Freeman: Briefly, Mr. Chief Justice. There's two points I'd like to point out here. I'm glad that Caban point was cleared up. The very fact that this case goes back does not necessarily mean that this adoption will not remain or that the parents will be broken up or that custody will be changed. New York has a continuous relationship statute, as Justice O'Connor has indicated. Great mention here has been made of the fact that Mr. Lehr has not shown in his affidavit sufficient facts which would warrant the belief that he would have any input into the best interest hearing here. Due process does not say that because one... once one is entitled to notice under due process, you must wipe the slate clean, as this Court has said in Armstrong versus Manzo, go back to the position where he would have been had he been given notice. The fact that... the facts that show that he might not be entitled to the substantive relief that he may be requesting does not have anything to do with his right to notice. Much also has been made about this intervention motion here. In substance, probably, the intervention motion was made by the motion to vacate. It's in fact the same type of motion, asking to be a party in the proceedings.
Warren E. Burger: Are you telling us there will not be a reopening of the adoption hearing?
David L. Freeman: Pardon me?
Warren E. Burger: Are you telling us that the adoption proceedings will not be reopened if we reverse here?
David L. Freeman: No, there will be a reopening of the adoption proceedings.
Warren E. Burger: Then they'll start de novo, won't they?
David L. Freeman: There should be a starting of de novo, or possibly, there is the other possibility, where a hearing would be held as if the adoption had not taken place, giving the Appellant all the rights that he would have had had he been given notice originally. All we're asking for is to be heard on whatever substantive rights we may have. We don't know what substantive rights we're going to have. They're going to depend on our contacts with the child. The New York statute now provides that one of the factors that's taken into consideration is whether or not the father was prevented from seeing the child by the mother. And in addition, the New York statute provides that the amount of support which he is required to give is dependent upon his financial circumstances. Getting back to the intervention motion for a second--
John Paul Stevens: Could I just ask one question. You do object to the adoption, don't you?
David L. Freeman: --Pardon me?
John Paul Stevens: Does your client--
David L. Freeman: Yes, we object to the adoption because it terminates our parental rights forever, and we cannot see Jessica any more unless--
John Paul Stevens: --You do object. That's all I asked.
David L. Freeman: --Okay. With respect to the intervention motion, what the Appellees are contending is that in order to get due process one must file a notice to intervene, and that of course does not follow from what our Constitution says. Thank you, Mr. Chief Justice.
Warren E. Burger: Thank you, gentlemen. The case is submitted.