Summary
In Shoecraft, the putative father was aware of the pregnancy at least 7 months before the birth of the child and was aware of the possibility of adoption some 3 1/2 to 4 months before birth.
Summary of this case from Friehe v. SchaadOpinion
No. 85-657.
Filed April 25, 1986.
1. Parental Rights: Constitutional Law: Minors. The relationship between parent and child is constitutionally protected. 2. Parental Rights. The status of an unwed father is readily distinguishable from that of a separated or divorced father. 3. Parental Rights: Adoption: Minors. Disparate treatment of an unwed father and of an unwed mother in child adoption proceedings is a suspect classification. 4. Parental Rights: Minors. The state has a compelling interest in the well-being of all children whether born in or out of wedlock. 5. Parental Rights: Adoption: Minors. The transfer of children by relinquishment from unwed mothers and the adoption of those children are compelling state interests. 6. Parental Rights: Child Custody. Custody cannot be taken from an unwed mother absent evidence of unfitness and that the removal is in the best interests of the child. 7. ___: ___. The unwed father has no automatic right to custody.
Appeal from the District Court for Lancaster County: JEFFRE CHEUVRONT, Judge. Reversed and remanded with directions to dismiss.
James M. Kelley, and Patrick W. Healey of Healey, Brown, Wieland, Kluender, Atwood Jacobs, for appellants.
Roger C. Lott, for appellee Shoecraft.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
This is an appeal from an order of the district court for Lancaster County holding that Neb. Rev. Stat. § 43-104.02 et seq. (Reissue 1984) are void as violative of the U.S. and Nebraska constitutional guarantees of due process and equal protection. Section 43-104.02 provides in part:
(1) Relinquishment or consent for the purpose of adoption given only by a mother of a child born out of wedlock pursuant to section 43-104 shall be sufficient to place the child for adoption and the rights of any alleged father shall not be recognized thereafter in any court unless the person claiming to be the father of the child has filed with the Department of Social Services on forms provided by the department, within five days after the birth of such child, a notice of intent to claim paternity.
Section 43-104.04 provides:
If a notice of paternity is not filed within five days, the mother of a child born out of wedlock or an agent specifically designated in writing by the mother may request, and the Department of Social Services shall supply, a certificate that no notice of intent to claim paternity has been filed with the department and the filing of such certificate pursuant to section 43-102 shall eliminate the need or necessity of a consent or relinquishment for adoption by the natural father of such child.
Petitioner, the father of a baby boy born out of wedlock on February 19, 1985, filed a notice acknowledging paternity of the child on February 28, 1985, nine days after the birth. The child was relinquished by the mother to appellant Catholic Social Services Bureau, Incorporated, thereafter, and custody was placed with the prospective adoptive parents, designated as John and Mary Doe.
The action was cast in the form of an application for writ of habeas corpus alleging paternity, acknowledgment, and subsequent relinquishment by the mother. Habeas corpus is an appropriate action to test the legality of custody and best interests of a minor, including the rights of fathers of children born out of wedlock. In re Application of Schwartzkopf, 149 Neb. 460, 31 N.W.2d 294 (1948); Christopherson v. Christopherson, 177 Neb. 414, 129 N.W.2d 113 (1964).
The parties were students at the University of Nebraska at the time the mother became pregnant. The fact of the pregnancy was communicated to the appellee father as soon as it was verified by the mother. Appellee suggested a second examination, and the pregnancy was confirmed and communicated to appellee, "[p]ositively [in] June" 1984.
During the period of the pregnancy, the parties remained in contact with one another. Extended discussions were had concerning the prospective birth and the fate of the child. As long as 3 1/2 to 4 months prior to the birth, the appellee father knew that arrangements were made by an agency to place the mother in a home outstate and of the mother's possible plans to relinquish the child at the hospital.
The appellee father did not pay any of the expenses connected with the residence of the mother before the birth nor any of the costs of the hospital and physician. During the period before the birth, medical questionnaires were submitted and presumably sent to the appellee father by the mother. Appellee did not complete the questionnaires, nor did he return them to the mother.
The appellee father was notified of the birth on the date of the birth and visited the mother shortly after the birth. Appellee points out that he executed no consent to an adoption or relinquishment. He also asserts that he was under the impression that he had no right to object to the relinquishment by the mother.
In the analysis of the claims to equal protection, we first must ascertain the nature of the right asserted to be entitled to the protection of the U.S. and Nebraska Constitutions. We note that "the relationship between parent and child is constitutionally protected." (Citations omitted.) Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978). However, the status of an unwed father is "readily distinguishable from [that] of a separated or divorced father, and [we] accordingly believe that the State could permissibly give appellant less veto authority than it provides to a married father." Quilloin, supra at 256.
We observe that while the language in Quilloin and other cases does not use the exact terms which comport with the "strict scrutiny" required of a "fundamental right," we nevertheless apply that test. Obviously, the legislation is not primarily economic or social in nature. State v. Michalski, 221 Neb. 380, 377 N.W.2d 510 (1985). However, we also observe that disparate treatment of an unwed father and of an unwed mother in child adoption proceedings is a suspect classification. Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed. 2d 297 (1979).
In State v. Michalski, supra at 385, 377 N.W.2d at 515, we observed:
If the legislative classification involves either a suspect class, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L. Ed. 2d 1010 (1967) (race), or a fundamental right, Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (voting), courts will analyze the statute with strict scrutiny. Under this test, strict congruence must exist between the classification and the statute's purpose. The end the legislature seeks to effectuate must be a compelling state interest, and the means employed in the statute must be such that no less restrictive alternative exists.
That the state has a compelling interest in the well-being of all children, whether born in or out of wedlock, and of their proper nurture and care, is accepted. Further, that the transfer of children by relinquishment from unwed mothers and the adoption of those children are also compelling state interests is clear. Given these compelling state interests, what means has the Legislature adopted to effectuate these interests?
The statutory scheme here requires the father of a child born out of wedlock to declare himself as such within 5 days after the birth of the child and to assume the financial obligations of that status. The Nebraska statutory scheme does not provide for notification to the father of the birth of the child.
That omission might well, in a particular case, render constitutionally suspect as violative of due process the termination of the father's rights. See Caban v. Mohammed, supra. However, the facts in this case clearly demonstrate that the appellee father knew of the pregnancy as soon as the condition could be medically verified. He knew the whereabouts of the mother and was advised of the birth on the date of occurrence. Except for conversations relating to the disposition of the child, no manifestation of his intention to assert rights was made known. The record is completely devoid of any financial contribution to the expenses of maintenance during pregnancy or of other medical expenses. The lack of a provision for notice in the statutes does not render the scheme unconstitutional as to the appellee father.
We will therefore discuss only the other asserted deficiency, that of requiring an unwed father to acknowledge paternity within 5 days of the birth.
Fairly obviously, a considerable difference in the treatment of an unwed father and an unwed mother exists in 43-104.02. The unwed mother is entitled to custody of the child, and, indeed, custody cannot be taken from her absent evidence of unfitness and that the removal is in the best interests of the child. The custody is automatic unless terminated after notice and fair hearing.
The unwed father, on the other hand, has no automatic right to custody: he must acknowledge the paternity within 5 days after birth and must establish paternity in a judicial proceeding. In the event of a proposed relinquishment by the mother, the unwed father must establish that he "is a fit person, is able to properly care for the child, and that the child's best interests will be served by granting custody" in order to successfully contest the proposed relinquishment. 43-104.06(1).
The section appears to apply only where there is an adoption proceeding after relinquishment by the mother and does not limit the rights of a custodial unwed mother to seek support for the child at any time during the minority of the child.
The Legislature, in the passage of 43-104.02 et seq., was concerned about the problems facing an unwed mother as to the retention of custody of the child or the relinquishment of the child to an agency for placement in an appropriate home. The 5-day period after birth was selected, in the words of the introducer, "primarily because this is pretty much a standard length of time that a child and the mother might be kept in the hospital anyway." Judiciary Committee Hearing, L.B. 224, 84th Leg., 1st Sess. 2 (Jan. 29, 1975) (statement of Sen. Anderson). An unwed mother would then know at the time she is likely to be released from the hospital whether the father will step forward, claim his own flesh and blood, and assume the responsibilities he biologically created. If not, the mother may then make the painful decision alone and not be left in the terrible limbo of growing attachment and love for the child, awaiting either the outcome of a judicial proceeding with its attendant notoriety or the decision of the amorous Hamlet in the wings, pondering whether he should assume his responsibility.
It is further obvious that the Legislature exercised a judgment favoring adoption of children of unwed couples as soon as possible after birth, concluding that the placement of the child in a home with persons anxious to have, love, and rear the child is to be preferred over a battleground where the mother must either depend on social agency support or on the outcome of a judicial support proceeding to compel the father to assume his responsibility.
The Legislature also considered (in view of the extended testimony) the views of the licensed child placement agencies that rapid determination of the rights, if any, of an unwed father to object to a relinquishment and subsequent adoption is in the best interests of the child, the relinquishing mother, and of the prospective adoptive parents. That prospective adoptive parents would assume custody of a newborn with the prospect of later having to surrender the child is questionable. That the Legislature accomplished those goals with the passage of the act is clear. It is further clear that the problems of unwed births and adoptions are legitimate concerns of the Legislature.
In consideration of the countervailing claims of this appellee father, we must note that, until after the birth, he exhibited (at least financially) no responsibility for the child or the mother. This is not a case where he lived with the child and nurtured and supported it and the mother. Thus, his rights, as Justice Marshall observed in Quilloin v. Walcott, 434 U.S. 246, 256, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), "are readily distinguishable from those of a separated or divorced father, and [we] accordingly believe that the State could permissibly give appellant less veto authority than it provides to a married father."
We are not impressed with the excuse that the appellee father did not know of the 5-day limitation. In this matter he is presumed, as are all citizens, to know the law. Statutes of limitation bar evenly the claims of the wary and the unwary and the just and the unjust.
As we have concluded that the statute as applied is not unconstitutional, the cause is remanded with directions to dismiss the application for writ of habeas corpus.
REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS