Summary
holding a woman could not adopt her unmarried same-sex partner's child because under the state's adoption statutes, the second parent was not a step-parent since the parties were not, and could not be, married
Summary of this case from Waters v. RickettsOpinion
No. S-01-053.
Filed March 8, 2002.
1. Adoption: Appeal and Error. Appeals in adoption proceedings are reviewed by an appellate court for error appearing on the record.
2. Adoption: Statutes. The matter of adoption is statutory, and the manner of procedure and terms are all specifically prescribed and must be followed.
3. Statutes: Appeal and Error. Interpretation of a statute presents questions of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the lower court.
4. Appeal and Error. When an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition.
5. Adoption. For an adoption to be valid under Nebraska's adoption statutes, the record must show the following factors: (1) the existence of an adult person or persons entitled to adopt, (2) the existence of a child eligible for adoption, (3) compliance with statutory procedures providing for adoption, and (4) evidence that the proposed adoption is in the child's best interests.
6. Adoption: Parental Rights. Reading the adoption statutes in their entirety, it is clear that aside from the stepparent adoption scenario, the parents' parental rights must be terminated or the existing nonterminated parent or parents must relinquish in order for the child to be eligible for adoption by any adult person or persons under Neb. Rev. Stat. § 43-101 (Cum. Supp. 2000).
Appeal from the County Court for Lancaster County: JAMES L. FOSTER, Judge. Affirmed.
Amy A. Miller, of American Civil Liberties Union Foundation of Nebraska, for appellants.
Don Stenberg, Attorney General, and L. Steven Grasz for appellee.
David S. Buckel, Adam L. Aronson, Patricia M. Logue, and Susan Sommer, of Lambda Legal Defense and Education Fund, Inc., Robert F. Bartle, of Bartle Geier, and G. Michael Fenner for amicus curiae Lambda Legal Defense and Education Fund.
Siegfried H. Brauer, of Brauer Law Office, for amicus curiae Family Research Institute.
James D. McFarland, of McFarland Law Office, for amicus curiae Nonpartisan Family Coalition.
W. Craig Howell, of Domina Law, and Nory Miller and Nichole G. Berner, of Jenner Block, L.L.C., for amici curiae American Psychological Association et al.
Susan Ann Koenig, of Law Office of Susan Ann Koenig, P.C., L.L.O., for amici curiae The Alliance for Children's Rights et al.
David T. Bydalek for amicus curiae Family First.
Rocky C. Weber, of Crosby Guenzel, L.L.P., and Robert J. Muise, of Thomas More Law Center, for amicus curiae The Nebraska Catholic Conference.
HENDRY, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ., and INBODY, Judge.
NATURE OF CASE
B.P. and A.E. (collectively appellants) appeal from the order of the Lancaster County Court which denied the adoption petition jointly filed by appellants, two nonmarried persons, in which A.E. sought to adopt Luke, the minor biological son of B.P. The outcome of this appeal is controlled by the provisions of the Nebraska adoption statutes, Neb. Rev. Stat. § 43-101 et seq. (Reissue 1998 Cum. Supp. 2000). The county court correctly concluded that on the record made in this case, Luke was not eligible for adoption due to the absence of a valid relinquishment by B.P. Accordingly, we affirm.
STATEMENT OF FACTS
B.P. is the biological mother of Luke, a minor child born on December 20, 1997. Luke was conceived by artificial insemination using semen from an anonymous donor from the University of Nebraska Medical Center's genetic semen bank. Accordingly, Luke's biological father is unknown and is not a party to this action. For purposes of the Nebraska adoption statutes, Luke was born "out of wedlock."
On October 2, 2000, appellants jointly filed a verified petition in which A.E. sought to adopt Luke. B.P. indicated her "consent" in the petition and in other supporting documents. B.P. did not file a relinquishment of her parental rights to Luke. To the contrary, she indicated on an affidavit attached to the petition that she did not intend to relinquish Luke. The only relief sought in this proceeding was the adoption of Luke by A.E.
A home study of appellants' household was conducted by an adoption specialist. The specialist recommended A.E.'s adoption of Luke be approved by the court.
On November 14, 2000, trial was held on the adoption petition. Appellants testified in support of the petition. A file, consisting of several documents including the home study, was admitted into evidence. No one entered an appearance, and no evidence was offered in opposition to the petition.
In an order filed December 1, 2000, the county court denied the petition for adoption. The county court concluded that Nebraska's adoption statutes do not provide for "two non-married persons to adopt a minor child, no matter how qualified they are." The county court also concluded that "the statu[t]es permit a single adult person to adopt a child after all necessary consents and relinquishments have been filed." Appellants timely appeal the county court's order denying the adoption petition.
ASSIGNMENT OF ERROR
On appeal, appellants have assigned three errors, which we consolidate and restate as one: The county court erred in denying the adoption petition jointly filed by appellants in which A.E. sought to adopt Luke.
STANDARD OF REVIEW
[1-3] Appeals in adoption proceedings are reviewed by an appellate court for error appearing on the record. In re Guardianship of T.C.W., 235 Neb. 716, 457 N.W.2d 282 (1990); In re Adoption of Leslie P., 8 Neb. App. 954, 604 N.W.2d 853 (2000). The matter of adoption is statutory, and the manner of procedure and terms are all specifically prescribed and must be followed. In re Adoption of Hemmer, 260 Neb. 827, 619 N.W.2d 848 (2000); In re Adoption of Kassandra B. Nicholas B., 248 Neb. 912, 540 N.W.2d 554 (1995). Interpretation of a statute presents questions of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the lower court. Foote v. O'Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001).
ANALYSIS CONSTITUTIONAL CLAIMS NOT AT ISSUE
Appellants and the State devote considerable analyses in their briefs to the potential federal and state constitutional issues which may be implicated in this case. The constitutional issues addressed by appellants and the State on appeal were neither presented nor ruled on in the county court. We have stated that when an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition. V.C. v. Casady, 262 Neb. 714, 634 N.W.2d 798 (2001); Maxwell v. Montey, 262 Neb. 160, 631 N.W.2d 455 (2001). Accordingly, we do not consider the constitutional claims of appellants and the State and our analysis is limited to application of the Nebraska adoption statutes to this case.
POSITIONS OF APPELLANTS AND STATE
Contending that the county court erred, appellants argue that the plain language of the adoption statute at § 43-101(1), which provides that "any minor child may be adopted by any adult person or persons," permits adoption of the minor child, Luke, by A.E.; the biological parent B.P. need not relinquish her parental rights in order for A.E. to adopt Luke; and the proposed adoption is in Luke's best interests. Appellants advance various constitutional arguments not considered here for the reasons outlined above.
Contending that the county court was correct, the State argues that the adoption statutes read as a whole do not provide that two nonmarried persons may jointly adopt a minor child and that the adoption statutes only provide for adoption of a child without the relinquishment of a biological parent's rights in the case of a stepparent where a spouse is the adopting party. The State advances various constitutional arguments not considered here for the reasons outlined above.
ADOPTION IS STATUTORY
We have long recognized that "statutes providing for adoption are of civil and not common law origin. . . . Adoption proceedings were unknown to the common law." (Citations omitted.) In re Petition of Ritchie, 155 Neb. 824, 827-28, 53 N.W.2d 753, 755 (1952). The adoption laws were first codified in 1897 and have been amended in 1943, 1984, 1985, and 1999. See, § 43-101 et seq.; Neil v. Masterson, 187 Neb. 364, 191 N.W.2d 448 (1971). We have stated that "the matter of adoption is statutory, and the manner of procedure and terms are all specifically prescribed and must be followed." In re Adoption of Kassandra B. Nicholas B., 248 Neb. 912, 918, 540 N.W.2d 554, 558 (1995). We have recently noted that it is inappropriate for this court to "`extend the rights of adoption beyond the plain terms of the statutes.'" In re Adoption of Hemmer, 260 Neb. 827, 830, 619 N.W.2d 848, 851 (2000) (quoting In re Petition of Ritchie, supra). Although the numerous amendments to the adoption statutes could have been crafted with greater precision, the adoption statutes as a whole are cogent and workable. Accordingly, in the instant case, the plain terms and manner of procedure of the Nebraska adoption statutes must be followed.
APPLICATION OF STATUTES TO THIS CASE
For an adoption to be valid under Nebraska's adoption statutes, the record must show the following factors: (1) the existence of an adult person or persons entitled to adopt, (2) the existence of a child eligible for adoption, (3) compliance with statutory procedures providing for adoption, and (4) evidence that the proposed adoption is in the child's best interests. Neb. Rev. Stat. § 43-101 et seq. See In re Adoption of Kassandra B. Nicholas B., supra. The absence of any one of the necessary factors will preclude the adoption. In this case, Luke was not eligible for adoption, the county court determined that his adoption by A.E. was precluded on this basis, and we affirm on this basis.
The county court stated that "the statu[t]es permit a single adult person to adopt a child after all necessary consents and relinquishments have been filed." On this record, B.P. did not relinquish her parental rights to Luke, and therefore, he was not eligible for adoption by A.E. The county court's denial of the petition due to an absence of a relinquishment was correct. The county court also stated that Nebraska's adoption statutes do not provide for "two non-married persons to adopt a minor child, no matter how qualified they are." Because A.E. alone sought to adopt Luke, the issue of whether two nonmarried persons are entitled to adopt was not presented to the county court in this case. Thus, that issue is not before this court on appeal, and we do not consider it.
Appellants argue that the county court erred in concluding that it could not grant the adoption of Luke by A.E. as an additional parent without a relinquishment of the parental rights of B.P. Appellants contend that "consent is an alternative to a relinquishment," brief for appellant at 12, and that where B.P. intended to preserve her parental rights upon the adoption of Luke by A.E., only B.P.'s consent, which was given, was required. Appellants refer the court to various cases in other states which concluded under the language of their adoption statutes that the biological parent need not relinquish parental rights in order to facilitate the adoption by a second adult to whom the biological parent was not married. See, e.g., In re M.M.D., 662 A.2d 837 (D.C. 1995); In re Petition of K.M., 274 Ill. App.3d 189, 653 N.E.2d 888, 210 Ill. Dec. 693 (1995); Adoption of Tammy, 416 Mass. 205, 619 N.E.2d 315 (1993); Matter of Adoption of Child by J.M.G., 267 N.J. Super. 622, 632 A.2d 550 (1993); Matter of Adoption of Evan, 153 Misc.2d 844, 583 N.Y.S.2d 997 (1992); Adoption of B.L.V.B., 160 Vt. 368, 628 A.2d 1271 (1993).
The State responds that the Nebraska adoption statutory scheme does not provide for adoption without relinquishment except in the case of a stepparent where "an adult husband or wife" seeks to "adopt a child of the other spouse." § 43-101(1). See, also, § 43-104(3). The State contends that stepparent adoption is the only explicit adoption scenario outlined in the Nebraska adoption statutes and that it is implicit in this statutorily permitted scenario that the existing parent intends to continue parenting and, therefore, need not relinquish his or her parental rights to the child in question. The State refers the court to various cases in other states which concluded under the language of their adoption statutes that the biological parent's parental rights would terminate upon adoption of the child by the nonmarried partner of the biological parent or that an adoption was precluded because the biological parent had not relinquished parental rights. See, e.g., Sharon S. v. Superior Court of San Diego County, 93 Cal.App.4th 218, 113 Cal.Rptr.2d 107 (2001) (modified on denial of rehearing), review granted 116 Cal.Rptr.2d 49, 39 P.3d 512 (2002); Adoption of T.K.J., 931 P.2d 488 (Colo.App. 1996); In re Baby Z., 247 Conn. 474, 724 A.2d 1035 (1999); In re Adoption of Doe, 130 Ohio App.3d 288, 719 N.E.2d 1071 (1998); In re Adoption of R.B.F., 762 A.2d 739 (Pa.Super. 2000); In Interest of Angel Lace M., 184 Wis.2d 492, 516 N.W.2d 678 (1994).
Section 43-101 is entitled "Children eligible for adoption." Section 43-101(1) provides as follows:
Except as otherwise provided in the Nebraska Indian Child Welfare Act, any minor child may be adopted by any adult person or persons and any adult child may be adopted by the spouse of such child's parent in the cases and subject to sections 43-101 to 43-115, except that no person having a husband or wife may adopt a minor child unless the husband or wife joins in the petition therefor. If the husband or wife so joins in the petition therefor, the adoption shall be by them jointly, except that an adult husband or wife may adopt a child of the other spouse whether born in or out of wedlock.
With respect to the non-Indian minor child, Luke, who is the subject of this case, § 43-101 provides that "any minor child may be adopted." Elsewhere in chapter 43, however, numerous statutory substantive and procedural provisions are set forth which must be read together with § 43-101 and met before "any minor child," § 43-101, is in fact eligible for adoption and a decree of adoption may be properly entered. The statutes which provide for the consequences of adoption also bear on the issue of Luke's eligibility. Reading the various provisions of chapter 43 in pari materia, Foote v. O'Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001), we conclude that with the exception of the stepparent adoption, the parent or parents possessing existing parental rights must relinquish the child before "any minor child may be adopted by any adult person or persons." Under Nebraska's statutory adoption scheme, the minor child, Luke, was not eligible for adoption by A.E. because B.P. had not relinquished him and the county court's reading of the statute was correct.
In In re Adoption of Kassandra B. Nicholas B., 248 Neb. 912, 918, 540 N.W.2d 554, 558 (1995), we observed that as to the biological parent, "termination of his or her parental rights is the foundation of our adoption statutes." This pronouncement is reflected in the adoption statutes, which require relinquishment or termination prior to adoption, except when a stepparent adopts, and is further reflected in case law interpreting the adoption statutes.
Appellants argue that B.P.'s consent was the equivalent of relinquishment for purposes of the present case. We do not agree. Section § 43-104 provides that "no adoption shall be decreed unless written consents thereto are filed in the court of the county in which the person or persons desiring to adopt reside." Under § 43-104, such consent must be executed by
(1) the minor child, if over fourteen years of age, or the adult child, (2) any district court, county court, or separate juvenile court in the State of Nebraska having jurisdiction of the custody of a minor child by virtue of divorce proceedings had in any district court, county court, or separate juvenile court in the State of Nebraska or by virtue of section 43-1203, and (3) both parents of a child born in lawful wedlock if living, the surviving parent of a child born in lawful wedlock, the mother of a child born out of wedlock, or both the mother and father of a child born out of wedlock as determined pursuant to sections 43-104.08 to 43-104.24, except that consent shall not be required of any parent who (a) has relinquished the child for adoption by a written instrument, (b) has abandoned the child for at least six months next preceding the filing of the adoption petition, (c) has been deprived of his or her parental rights to such child by the order of any court of competent jurisdiction, or (d) is incapable of consenting.
A consent to the proceedings by a parent or parents under § 43-104 is not required when a relinquishment has been executed. § 43-104(3)(a). A relinquishment would preclude the necessity of a consent. B.P. did not sign a relinquishment in this case, and her "consent" is not the equivalent of relinquishment.
We have stated that the consent granted by a court under § 43-104 does nothing more than permit the trial court to entertain the adoption proceedings. Klein v. Klein, 230 Neb. 385, 431 N.W.2d 646 (1988). We read "consent" in § 43-104 to mean that the person, persons, or entity authorized to consent to the proceedings has agreed that the proposed adoption should be entertained by the trial court. See, also, In re adoption of Kassandra B. Nicholas B., supra. In the instant case, B.P. "consented" to the proceedings and Luke is not ineligible for adoption due to a lack of such consent; however, B.P.'s consent to the proceedings was not tantamount to a relinquishment of parental rights.
The importance of "relinquishment" in the adoption statutes is apparent in § 43-109, which provides in relevant part:
If, upon the hearing, the court finds that such adoption is for the best interests of such minor child or such adult child, a decree of adoption shall be entered. No decree of adoption shall be entered unless (a) it appears that the child has resided with the person or persons petitioning for such adoption for at least six months next preceding the entering of the decree of adoption, except that such residency requirement shall not apply in an adoption of an adult child, (b) the medical histories required by subsection (2) of section 43-107 have been made a part of the court record, and (c) the court record includes an affidavit or affidavits signed by the relinquishing biological parent, or parents if both are available, in which it is affirmed that, pursuant to section 43-106.02, prior to the relinquishment of the child for adoption, the relinquishing parent was, or parents if both are available were, (i) presented a copy or copies of the nonconsent form provided for in section 43-146.06 and (ii) given an explanation of the effects of filing or not filing the nonconsent form.
(Emphasis supplied.) The affidavit noted in § 43-109(c) refers to the form completed by the relinquishing parent or parents which indicates whether the parent or parents agree to the release of information about the relinquishing parent or parents to the adopted child.
Under § 43-109, "[n]o decree of adoption shall be entered unless . . . (c) the court record includes an affidavit [pertaining to whether or not information regarding the relinquishing biological parent should be released to the adopted person] signed by the relinquishing biological parent." (Emphasis supplied.) Thus, under § 43-109, an adoption is not authorized unless the biological parent relinquishes the child and files the particular affidavit identified in the statute. Although the effect of a relinquishment in terms of finality is not the same in private adoptions as in agency adoptions, see Gray v. Maxwell, 206 Neb. 385, 293 N.W.2d 90 (1980), and, notwithstanding that a relinquishment of parental rights in a private adoption is not totally extinguished until the child is adopted, Yopp v. Batt, 237 Neb. 779, 467 N.W.2d 868 (1991), a relinquishment is nevertheless required.
We have held that in a private adoption case where the prospective adoptive parent was not a spouse of the biological parent, there must be a relinquishment by the biological parent and the relinquishment must be valid in order for the child to become eligible for adoption. See Gray v. Maxwell, supra (stating that where biological mother was paid sum of money in excess of legitimate expenses of confinement and birth in consideration for executing relinquishment, such relinquishment was against public policy and was invalid). In the instant case, B.P. swore in the affidavit required under § 43-109 that "I do not intend to relinquish [Luke] for the ultimate purpose of adoption." Having refused to relinquish Luke, B.P. is not a "relinquishing biological parent." The affidavit B.P. signed did not meet the requirements of § 43-109. Therefore, Luke was not eligible for adoption and "[n]o decree of adoption shall be entered."
The provisions contained in the adoption statutes found at §§ 43-110 and 43-111, pertaining to the consequences of adoption, further buttress our conclusion that "termination" of existing parental rights is the foundation of our adoption statutes. See In re Adoption of Kassandra B. Nicholas B., 248 Neb. 912, 540 N.W.2d 554 (1995). Section 43-110, entitled "Decree; effect as between parties," provides as follows:
After a decree of adoption is entered, the usual relation of parent and child and all the rights, duties and other legal consequences of the natural relation of child and parent shall thereafter exist between such adopted child and the person or persons adopting such child and his, her or their kindred.
We have stated that the "purpose of § 43-110 is to terminate any relationship which existed between the natural parent and the child and to create a new relationship between the adoptive parent and the child." In re Estate of Luckey. Bailey v. Luckey, 206 Neb. 53, 56, 291 N.W.2d 235, 237-38 (1980).
Section 43-111, entitled "Decree; effect as to natural parents," provides:
Except as provided in section 43-106.01 and the Nebraska Indian Child Welfare Act, after a decree of adoption has been entered, the natural parents of the adopted child shall be relieved of all parental duties toward and all responsibilities for such child and have no rights over such adopted child or to his or her property by descent and distribution.
We have read this section as requiring a relinquishment prior to a private placement adoption. Gray v. Maxwell, supra.
Thus, under Nebraska's adoption statutes, the legal consequence of an adoption is that "the natural relation of child and parent shall thereafter exist between such adopted child and the person or persons adopting such child," § 43-110, and the adoption serves to relieve the natural parents of "all parental duties toward and all responsibilities for such child and have no rights over such adopted child," § 43-111. The pleadings in this case indicate that only A.E. sought to adopt Luke. Had the county court permitted the adoption of Luke by A.E., a new relationship between A.E. and Luke would have been created pursuant to § 43-110, and, as an unintended consequence, B.P. would have been relieved of her natural rights to Luke pursuant to § 43-111. In the instant case, B.P. manifestly did not want the consequences ordained by § 43-111 to attach had the county court granted the petition for adoption of Luke by A.E.
In order for A.E. to adopt Luke, he must be eligible for adoption. With the exception of stepparent adoptions, which are statutorily permitted, the Nebraska adoption statutes provide that an eligible child is one over whom parental rights have been relinquished or terminated and with respect to whom, upon entry of the adoption decree, a new relationship between the child and adoptive parent is created and the natural parents are relieved of all parental duties. In the instant case, Luke was not eligible for adoption by A.E. because B.P. had not relinquished her parental rights, and the county court's determination that the absence of such relinquishment precluded adoption of Luke by A.E. is not error.
Appellants urge this court to ignore the language of § 43-111 and to interpret the adoption statutes as permitting the adoption of Luke by A.E. as a parent in addition to the existing parent, B.P., without consequence to the parental rights of B.P. Appellants acknowledge that the exception providing for a stepparent adoption under § 43-101 permits the addition of a stepparent without relieving the natural parent of rights which would otherwise result under § 43-111. Appellants urge this court to read into the adoption statutes an additional exception for second-parent adoptions and to disregard the fact that the adoption statutes explicitly provide for stepparent adoptions and do not explicitly provide for second-parent adoptions.
The adoption statutes permit only the paradigms which are explicit. With the exception of the statutory stepparent adoption scenario outlined in § 43-101, the adoption statutes neither provide for nor expressly designate who may adopt. When construing a statute, appellate courts are guided by the presumption that the Legislature intended a sensible, rather than an absurd, result in enacting a statute. Fay v. Dowding, Dowding, 261 Neb. 216, 623 N.W.2d 287 (2001). Because the Nebraska adoption statutes explicitly provide for a stepparent adoption following which the existing parent will inherently continue raising the child, we conclude it would be an absurd result under the statutes as written to require relinquishment by the existing parent in the explicit statutorily permitted case of a stepparent adoption. As compared to a stepparent adoption, however, it is not inherent in § 43-101 that the "person or persons" seeking to adopt will necessarily be in addition to the existing parent who will continue to raise the child. Reading the adoption statutes in their entirety, it is clear that aside from the stepparent adoption scenario, the parents' parental rights must be terminated or the child must be relinquished in order for the child to be eligible for adoption by "any adult person or persons" under § 43-101.
For the reasons given above, we conclude that the county court did not err when it concluded on this record that A.E. could not adopt Luke for the reason that Luke was not eligible for adoption because B.P. had not relinquished her parental rights to him.
CONCLUSION
Adoption is statutory in Nebraska, and the outcome of this case is controlled by the Nebraska adoption statutes, § 43-101 et seq. The constitutional issues which may be implicated in this case were neither presented to nor ruled upon at trial and are not considered for the first time on appeal.
For an adoption to be properly decreed, the following factors must be met: There must be a person or persons entitled to adopt, a child must be eligible for adoption, the procedures and terms of the Nebraska adoption statutes must be followed, and the adoption must be in the child's best interests. In this case, because Luke was not eligible for adoption, a decree could not be properly entered, the denial of the petition on this basis was correct, and we need not consider the existence of the other factors.
According to the record, appellants, two nonmarried adults, jointly petitioned the county court of Lancaster County. The only relief sought in the proceeding was the adoption of Luke, B.P.'s biological minor son, by A.E. B.P. did not sign a relinquishment of Luke.
The county court ruled that Nebraska's adoption statutes do not provide for "two non-married persons to adopt a minor child, no matter how qualified they are." The issue of whether two nonmarried persons are entitled to adopt was not before the county court nor before this court on appeal.
The county court also concluded that a single adult person could adopt only when the child had been relinquished and that therefore, since B.P. had not relinquished Luke, A.E. could not adopt Luke because he was not eligible for adoption. With the exception of a stepparent adoption which is explicitly provided for in the Nebraska adoption statutes and for which no relinquishment is required, when the parent or parents' rights have not been terminated, a child must be relinquished by the existing parent or parents to be eligible for adoption "by any adult person or persons." § 43-101(1). Because B.P. had not relinquished her parental rights to Luke, he was not eligible for adoption by A.E. Because Luke was not eligible for adoption due to the absence of a relinquishment, on the record in this case, the county court did not err in denying the petition for adoption.
AFFIRMED.
WRIGHT, J., NOT PARTICIPATING.