|
(Cite
as: 231 Kan. 199, 643 P.2d 168)
Supreme
Court of Kansas.
In
the Matter of the ADOPTION OF BABY BOY L.
No.
53592.
April
3, 1982.
Indian
Child Welfare Act of 1978 was enacted by Congress to
protect the best interests of Indian children, and to promote
stability and security of Indian Tribes and families, by establishment
of minimum federal standards for removal of Indian children from
their families and placement of such children in foster or
adoptive homes which will reflect unique values of Indian culture,
and by providing
for assistance to Indian tribes in operation of child and
family service programs. Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Overriding
concern of Congress and proponents of Indian Child Welfare Act
was maintenance of family and tribal relationships existing in Indian
homes and the setting of minimum standards for removal of
Indian children from existing Indian environment. Indian Child Welfare Act
of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
In
adopting Indian Child Welfare Act, it was not intent of
Congress to dictate that illegitimate child who has never been
a member of an Indian home or culture, and probably
never would be, should be removed from its primary cultural
heritage and placed in an Indian environment over express objections
of non-Indian mother. Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Underlying
thread that runs throughout entire Indian Child Welfare Act is
that Act is concerned with removal of Indian children from
an existing Indian family unit and resultant breakup of Indian
family. Indian Child Welfare Act of 1978, §§ 2
et seq., 106(b), 110, 112, 25 U.S.C.A. §§ 1901
et seq., 1916(b),
1920,
1922.
Indian
Child Welfare Act of 1978 principally applies to cases where
a state court or agency attempts to remove an Indian
child from his or her Indian home on grounds of
alleged incompetence or brutality of parents. Indian Child Welfare Act
of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Indian
Child Welfare Act of 1978, by its own terms, did
not apply to adoption proceeding involving non-Indian mother's illegitimate child,
who had never been in care or custody of putative
father, a five-eighths Kiowa Indian, in that issue of preservation
of Indian family was not involved as child had never
been a part of any Indian family relationship. Indian Child
Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Any
error which might have occurred by refusal of Kiowa Tribe's
petition to intervene in adoption proceeding was harmless in review
of non-Indian mother's clear intention to revoke her consent to
adoption and again take custody of her illegitimate child if
adoption for benefit of adoptive couple was denied for any
reason or if an attempt was made to place child
for adoption under terms of Indian Child Welfare Act of
1978, since any attempt to effect preferential placement contemplated by
Act would necessarily result in removal of child from custody
of adoptive couple and thereupon, there being no consent by
mother to any such action, child would be returned to
her. Indian Child
Welfare
Act of 1978, §§ 2
et seq., 101(a), 103(c), 25 U.S.C.A. §§ 1901
et seq., 1911(a), 1913(c).
Irrevocability
of a consent to adoption applies to disputes between a
natural parent or parents and prospective adoptive parents and consent,
when withdrawn, is not binding on consenting parent in a
custody dispute between natural parents.
K.S.A. 59-2102.
In
construing statutes, courts assume that legislature or Congress intended to
enact an effective law, and do not presume that legislature
or Congress did a vain thing in enacting a statute.
Statutory
construction should be avoided which would render impracticable application of
statute, or render statute's application inconvenient, or which would require
performance of vain, idle, or futile thing, or try to
require performance of an impossible act.
Where
non-Indian mother of illegitimate child objected to transfer of proceeding
for adoption of child to court of Indian offenses and,
as specifically provided by Indian Child Welfare Act of 1978,
such a transfer could not be made over her objection,
petition to transfer jurisdiction to court of Indian offenses was
properly denied. Indian Child Welfare Act of
1978,
§§ 2
et seq., 101(b), 25 U.S.C.A. §§ 1901
et seq., 1911(b).
In
adoption proceeding involving adoption of non-Indian mother's illegitimate child, a
five-sixteenths Kiowa Indian by blood, by a non-Indian adoptive couple,
trial court did not abuse its discretion under Indian Child
Welfare Act of 1978 by denying petition of putative father,
father's parents, and Kiowa Tribe for a change of temporary
custody. Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
In
adoption proceeding, evidence as to putative father's attitude and conduct
was
sufficient to support finding that putative father was unfit to
assume parental duties based upon any known community standards or
degree of proof.
In
examining constitutionality of any statute, constitutionality is presumed, all doubts
must be resolved in favor of statute's validity, and before
statute may be stricken, it must clearly appear that statute
violates Constitution; it is court's duty to uphold statute under
attack, if possible, rather than defeat it.
If
there is any reasonable way a statute may be construed
as constitutionally permissible, that should be done.
A
statute apparently valid upon its face may be unconstitutional in
its application to a particular set of facts, circumstances or
classifications.
A
statute apparently void on its face may be constitutional when
construed and limited in such a way as to uphold
its constitutionality by reading necessary judicial requirements into statute.
Application
of statute which does not require consent of father to
adoption of his illegitimate child would be unconstitutional as infringement
upon father's due process and equal protection guarantees under the
Fourteenth Amendment when applied to situation where child was several
years old, father had established a closeknit familial relationship with
child and child's mother, and had supported and nurtured them.
U.S.C.A.Const.Amend. 14; K.S.A. 59- 2102(2).
When
father of an illegitimate child had been found to be
unfit after proper notice and hearing, granting of an adoption
of child over father's objections and without his consent was
constitutional and did not constitute a violation of due process
and equal protection guarantees of Fourteenth Amendment. U.S.C.A.Const.Amend.
14; K.S.A. 59-2102(2).
*199
**171
Syllabus by the Court
1. The Indian Child Welfare Act of 1978, 25 U.S.C.
s 1901 et seq. (Supp. III 1979), was enacted by
Congress to protect the best interests of Indian children, and
to promote the stability and security of Indian tribes and
families, by the establishment of minimum Federal standards for the
removal of Indian children from their families and the placement
of such children in foster or adoptive homes which will
reflect the unique values of Indian culture, and by providing
for assistance to Indian tribes in the operation of child
and family service programs.
2. The overriding concern of Congress and the proponents of
the Indian Child Welfare Act was the maintenance of the
family and tribal relationships existing in Indian homes and to
set minimum standards for the removal of Indian children from
their existing Indian environment.
3. In adopting the Indian Child Welfare Act, it was
not the intent of Congress to dictate that an illegitimate
child who has never been a member of an Indian
home or culture, and probably never would be, should be
removed from its primary cultural heritage and placed in an
Indian environment over the express objections of its non-Indian mother.
4. The underlying thread that runs throughout the entire Indian
Child Welfare Act is that the Act is concerned with
the removal of Indian children from an existing
Indian family unit and the resultant breakup of the Indian
family.
5. The Indian Child Welfare Act principally applies to cases
where a state court or agency attempts to remove an
Indian child from his or her Indian home on grounds
of the alleged incompetence or brutality of the parents.
6. It is elementary that the law and the courts
do not require citizens and litigants to perform useless acts
and be subjected to useless court proceedings when there is
no possibility of any positive result for anyone.
7. In the construction of statutes, the courts start with
the assumption that the legislature or the Congress intended to
enact an effective law, and the legislature or Congress is
not to be presumed to have done a vain thing
in the enactment of a statute. Hence, it is a
general principle that the courts should, if reasonably possible to
do so, interpret the statute, or the provision being construed,
so as to give it efficient operation and effect as
a whole.
8. *200
A construction of a statute should be avoided which would
render the application of the statute impracticable, or inconvenient, or
which would require the performance of a vain, idle, or
futile thing, or attempt to require the performance of an
impossible act.
9. Based upon the facts of this case, as set
forth in the opinion, the trial court did not commit
error in determining that the Indian Child Welfare Act of
1978, 25 U.S.C. s 1901 et seq., did not apply
to the adoption proceedings in this
action.
10. The irrevocability of a consent under K.S.A. 59-2102 applies
to disputes between a natural parent or parents and the
prospective adoptive parents and the consent, when withdrawn, is not
binding on the consenting parent in a custody dispute between
the natural parents. Following Treiber v. Stong, 5 Kan.App.2d 392,
Syl. P 3, 618 P.2d 114 (1980).
11. In examining the constitutionality of any statute we start
with the proposition that the constitutionality of a statute is
presumed; that all doubts must be resolved in favor of
its validity, and before the statute may be stricken, it
must clearly appear the statute violates the Constitution. It is
the court's duty to uphold the statute under **172
attack, if possible, rather than defeat it. If there is
any reasonable way a statute may be construed constitutionally permissible,
that should be done. Following Board of Greenwood County Comm'rs
v. Nadel, 228 Kan. 469, Syl. P 1, 618 P.2d
778 (1980).
12. A statute, apparently valid upon its face, may be
unconstitutional in its application to a particular set of facts,
circumstances or classifications. Following Flax v. Kansas Turnpike Authority, 226
Kan. 1, Syl. P 6, 596 P.2d 446 (1979).
13. A statute apparently void on its face may be
constitutional when construed and limited in such a way as
to uphold its constitutionality by reading the necessary
judicial requirements into the statute.
14. The application of K.S.A. 59-2102(2) in not requiring the
consent of the father to the adoption of his illegitimate
child under factual situations comparable to those in Caban v.
Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297
(1979), would under the pronouncements of the United States Supreme
Court, be unconstitutional as an infringement upon the father's due
process and equal protection guarantees under the Fourteenth Amendment.
15. When the father of an illegitimate child has been
found to be unfit after proper notice and hearing, the
granting of an adoption of the child over the father's
objections and without his consent, pursuant to K.S.A. 59-2102(2), is
constitutional and does not constitute a violation of the due
process and equal protection guarantees of the Fourteenth Amendment.
*201
16. K.S.A. 59-2102(2), when limited as more fully set forth
in the opinion and as applied to the facts of
this case, is constitutional and is not violative of the
appellant Perciado's due process and equal protection guarantees under the
Fourteenth Amendment to the United States Constitution.
Pamela S. Fahey, of Native American Law Project, Legal Services
of Northeast Kansas, Horton, and Bertram E. Hirsch, Floral Park,
N. Y., argued the cause, and Susan Ellis, Legal Aid
Society of Wichita, Inc., and Ross A. Hollander, Wichita, were
with them on the brief for appellants.
Randall H. Elam, Wichita, argued the cause, and Vincent L.
Bogart, of Vincent L.
Bogart, Chartered, Wichita, argued the cause and was on the
brief for appellees.
Jan Goslin, was on the brief in pro. per. for
the amicus curiae, Four Tribes Children's Program.
HOLMES, Justice:
This is an appeal from sundry trial court rulings and
findings and from a decree of adoption entered by the
Sedgwick County District Court. Carmon Perciado (Perciado), the putative father
of Baby Boy L., an infant born out of wedlock,
Quelin and Ernestine Perciado, the baby's paternal grandparents, and the
Kiowa Tribe of Oklahoma, are the appellants. The adoptive parents
are the appellees. The baby is the illegitimate son of
Miss L., a non-Indian and the appellant, Carmon Perciado, a
five-eighths by blood relationship Kiowa Indian duly enrolled as a
member of the Kiowa Tribe. The appellants contend that the
trial court erred in determining that the provisions of the
Indian Child Welfare Act of 1978 (ICWA or the Act),
25 U.S.C. s 1901 et seq. (Supp. III 1979), were
not applicable to the adoption proceeding and in the alternative
assert that if the Act does not apply then the
adoption is invalid under state law.
Due to the involved procedural aspects of this case, it
is necessary that we set
forth the facts in some detail. Baby Boy L. was
born at Wichita, January 29, 1981. On the same date
his natural mother, an unmarried non-Indian woman, executed a consent
to the adoption specifically directed and limited to the adoptive
parents named in the consent. The appellees filed their petition
for adoption along with the mother's consent the same day
and the court entered an order granting them the temporary
*202
care and custody of the child. It is not disputed
that the appellant Perciado is the father of the child.
Notice of the adoption proceedings and time of hearing was
personally served on Perciado at the Kansas State Industrial Reformatory
where he was incarcerated **173
and upon the State Department of Social and Rehabilitation Services
(SRS).
On March 6, 1981, Perciado filed an affidavit of indigency
and the court appointed representatives of the Legal Aid Society
of Wichita, Inc., to represent him. On March 9, 1981,
appellees filed an amendment to their adoption petition alleging Perciado
was "an unfit person to have or assume or be
given parental responsibilities" and asked that his parental rights be
terminated and severed. On March 11, 1981, SRS filed its
report recommending the granting of the adoption. On March 25,
1981, Perciado filed an answer to the amended petition asking
that the adoption be denied, that he be found a
fit and proper person, that his parental rights not be
severed and that he be given permanent custody of his
son.
On March 30, 1981, the matter was called for trial
and the court ruled that it would bifurcate the proceedings
and proceed first with the determination of the fitness of
the father and whether his parental rights should be severed,
and second, with the adoption itself. No objection to this
procedure was made by Perciado, who was present in person
(having been transported from the Kansas State Industrial Reformatory), or
by his counsel, and evidence was introduced on behalf of
appellees and by Perciado. Eight witnesses testified on behalf of
the appellees and Perciado presented one witness at which time
the trial was recessed until April 1, 1981. On April
1, 1981, it was brought to the court's attention that
Perciado was an enrolled member of the Kiowa Tribe and
that the federal Indian Child Welfare Act of 1978 might
apply, and therefore the case was continued for thirty days
to allow proper notice to be given to the Kiowa
Tribe. Thereafter, notice was given to the Kiowa Business Committee
at Anadarko, Oklahoma. On April 14, 1981, an amended or
supplemental consent to the adoption was filed by the baby's
mother. This consent was also limited strictly to the named
appellees. On May 7, 1981, Perciado, through the Legal Aid
Society, filed an amended answer in which he alleged that
the ICWA applied to the proceedings and asked, among other
things, that the child be *203
placed with a member of its extended family, or other
members of the Kiowa Tribe, or with other Indian families
as defined by the Act. On May 8, 1981, the
Kiowa Tribe filed a petition to intervene in the proceedings
and on May
29, 1981, a notice of appearance was filed by Bertram
E. Hirsch, an attorney from New York, on behalf of
the Kiowa Tribe and the paternal grandparents. Mr. Hirsch associated
with local counsel in Wichita as required by our rules.
On May 16, 1981, the Business Committee of the Kiowa
Indian Tribe, over the objections of the baby's mother, enrolled
Baby Boy L. as a member of the Tribe with
a Kiowa blood degree of 5/16ths. On June 15, 1981,
Perciado and the Kiowa Tribe filed a petition to change
temporary custody and a petition to transfer jurisdiction of the
case to the Court of Indian Offenses at Anadarko, Oklahoma.
Appellees filed answers to the various petitions filed by the
appellants and the matter again came before the court on
June 24, 1981. The applicability of the Indian Child Welfare
Act had been submitted by all parties on briefs filed
with the court and the court found that the Act
did not apply to the proceedings and therefore denied the
petition of the Kiowa Tribe to intervene and then held
that the petition for temporary custody and the petition to
transfer jurisdiction to the Court of Indian Offenses were moot.
The court then proceeded to hear additional evidence from Perciado
on the question of his fitness and whether his consent
to the adoption was required. Mr. Hirsch was denied the
right to participate in the proceedings on behalf of his
clients, as their petition to intervene had been denied, but
was allowed to sit with, counsel and advise the attorneys
for the father. After the completion of the evidence, the
court determined that Perciado was an unfit person
to have the care, custody or control of the minor
child. Having determined that the father, Perciado, was an unfit
person to have the care or custody of Baby Boy
L., the court then proceeded to hear evidence on the
advisability of the adoption itself, the second portion of the
bifurcated proceedings. **174
After hearing this additional evidence, the court found that the
appellees were suitable persons to adopt the child, that it
was in the best interests of the child to grant
the adoption and the adoption of Baby Boy L. by
the appellees was granted.
Appellants have appealed, raising numerous issues. The first three points
asserted by the appellants will be considered together *204
as they all involve the applicability of the ICWA. Those
points are:
1.
The ICWA is applicable to adoption proceedings under state law
where the child to be adopted is a member of
an Indian tribe and is illegitimate, and the acknowledged putative
father is a member of an Indian tribe.
2.
The Kiowa Tribe of Oklahoma has a right to intervene
in this proceeding.
3.
The appellants have a right to petition the trial court
to transfer jurisdiction and to change temporary custody in these
proceedings.
At the outset, we are faced with the interpretation of
complex federal legislation which is not only confusing but, if
applied as requested by the appellants, would also be inconsistent,
contradictory, and would accomplish no worthwhile or useful purpose. As
stated by one author:
"Enacted
in 1978, the Indian Child Welfare Act (Act) is the
result of an attempt by Congress to promote the stability
of Indian families and tribes. Responding to a demonstrated risk
of unwarranted removal of Indian children from their homes by
state and private child welfare agencies, the Act was intended
to impose strict procedural limitations on these agencies' activities. Unfortunately,
the Act falls far short of achieving the goals set
by Congress. (Emphasis added.)
....
"Although
these provisions (of the Act) are well intentioned, their effectiveness
is limited by inconsistencies and ambiguities in the drafting of
the Act. Consequently, the Act may confuse and even exacerbate
the problems which prompted its passage." Barsh, The Indian Child
Welfare Act of 1978: A Critical Analysis, 31 Hastings L.J.
1287-88.
In overruling the Kiowa Tribe's motion to intervene on the
grounds that the ICWA did not apply to these proceedings,
the trial court made, inter alia, the following findings and
conclusions:
"3.
That the application to intervene was not filed within twenty
(20) days as required by the Indian Child Welfare Act,
25 U.S.C. s 1911, nor was the application verified as
required by K.S.A. 59-2202.
"4.
That the Indian Child Welfare Act of 1978, 25 U.S.C.
s Section 1901, et seq. has no application to the
factual situation before the Court in that:
(a)
The adoption Petition concerns the illegitimate child of a non-Indian
mother.
(b)
The child involved herein was born on January 29, 1981,
and on the same day, (Miss L.) the natural mother
of said child, voluntarily consented and released said child into
the care of the Petitioners, who are non-Indian.
*205
(c) That the attorney for the Petitioners herein notified the
Kiowa Indian Tribe of Oklahoma of the proceedings herein by
notice which was received by the Kiowa Indian Tribe on
the 14th day of April, 1981.
(d)
The child has never been in the care or custody
of the putative father who is five-eighths Kiowa Indian.
(e)
The issue of the preservation of the Indian family is
not involved as the child has never been a part
of any Indian family relationship.
(f)
The subject matter of this litigation, Baby Boy L., is
not a member of an Indian family.
(g)
The child appears to have been enrolled as a member
of the Kiowa Tribe of Oklahoma subsequent to the initiation
of these proceedings and contrary to the expressed wishes of
the natural mother, a non-Indian.
(h)
The controversy does not involve a situation where a State
or Federal agency is attempting to unilaterally remove an Indian
child from his home and thereby break up an Indian
family.
**175
(i) Absent the consent of the natural mother to the
adoption, it appears
that the child would not have been in an Indian
home, nor part of an Indian family.
"5.
The minor child's home has at all times been exclusively
with (appellees), non-Indians, and this is the total extent of
his family relationship to date.
"6.
The Act is concerned with establishing proper definitions and safeguards
in the situation where Indian children are being removed from
their families by reason of child neglect, abuse, or similar
grounds. These issues are not present in an adoption proceeding
instituted on the voluntary consent of a non-Indian unwed mother
of an illegitimate child, where that child's care and custody
has, with the natural mother's permission, been with non-Indian proposed
adoptive parents since the child's birth."
The Indian Child Welfare Act,
25 U.S.C. s 1901 et seq., was enacted by Congress in 1978 and in s 1902
the policy behind the adoption of the Act was expressed as:
"The
Congress hereby declares that it is the policy of this
Nation to protect the best interests of Indian children and
to promote the stability and security of Indian tribes and
families by the establishment of minimum Federal standards for the
removal of Indian children from their families and the placement
of such children in foster or adoptive homes which will
reflect the unique values of Indian culture, and by providing
for assistance to Indian tribes in the operation
of child and family service programs." (Emphasis added.)
A
careful study of the legislative history behind the Act and the Act itself
discloses that the overriding concern of Congress and the proponents of
the Act was the maintenance of the family and tribal relationships existing
in Indian homes and to set minimum *206
standards for the removal of Indian children from their existing Indian
environment. It was not to dictate that an illegitimate infant who
has never been a member of an Indian home or culture, and probably never
would be, should be removed from its primary cultural heritage and placed
in an Indian environment over the express objections of its non-Indian
mother. Section 1902 of the Act makes it clear that it is the declared
policy of Congress that the Act is to adopt minimum federal standards
"for the removal of Indian children from their (Indian) families."
Numerous provisions of the Act support our conclusion that it was
never the intent of Congress that the Act would apply to a factual situation
such as is before the court.
Included
in the congressional findings to support the Act is s 1901(4) to the effect
"that an alarmingly high percentage of Indian families are broken
up by the removal, often unwarranted, of their children from them...."
Section 1911(a) provides exclusive jurisdiction in the Indian tribe
"over any child custody proceeding involving an Indian child who
resides or is domiciled within the reservation...." Section
1912(d) provides that efforts
should be made to prevent the breakup of the Indian family while subsections
(e) and (f) refer to "the continued custody of the child by the parent
or Indian custodian" and the potential for emotional or physical
damage to the child. Section 1914 again refers to the removal of
the child from the parent or Indian custodian. Sections 1916(b),
1920 and 1922 also reflect the underlying thread that runs throughout
the entire Act to the effect that the Act is concerned with the removal
of Indian children from an existing Indian family unit and the resultant
breakup of the Indian family. In this case Baby Boy L. is only 5/16ths
Kiowa Indian, has never been removed from an Indian family and so long
as the mother is alive to object, would probably never become a part of
the Perciado or any other Indian family. While it is true that this
Act could have been more clearly and precisely drawn, we are of the opinion
that to apply the Act to a factual situation such as the one before us
would be to violate the policy and intent of Congress rather than uphold
them. Professor Barsh states in his article cited earlier:
**176
"Under the Act, a child custody proceeding may be either
a foster care placement, a preadoptive placement, an adoption, or
a termination of parental rights. In all four categories, the
common element is the parents' loss of control over the
child. Involuntary investigations and home interventions by social welfare agencies
implicitly are excluded.
*207
"Expressly excluded from the definition of child custody proceeding are
placements based on acts of a child that are essentially
criminal in nature, such as the institutionalization of a minor
for theft or joyriding. Also expressly excluded are custody awards
in divorce proceedings. Thus, the Indian Child Welfare Act does
not disturb the power of states to intervene in Indian
homes as a preventive measure, to remove or institutionalize Indian
children on grounds of juvenile delinquency, or to determine the
custody of Indian children when their parents seek a divorce.
The Act principally applies to cases where a state court
attempts to remove an Indian child from his or her
home on grounds of the alleged incompetence or brutality of
the parents." p. 1305
We conclude the trial court was
correct in its determination that the ICWA, by its own terms, does not
apply to these proceedings and therefore its rulings on the various petitions
filed by appellants were correct.
Appellants, of course, along with some legal writers, do not
agree with our interpretation of the Act. However, for the
sake of argument, if we were to hold that the
ICWA applied to these proceedings then we still fail to
see where any reversible error could exist. It has been
stated that only two prerequisites exist for the application of
the Act: (1) a "child custody proceeding" (2) involving an
"Indian child", as those terms are defined in the Act.
(Wamser, Child Welfare Under the Indian Child Welfare Act of
1978: A New Mexico Focus, 10 N.M.L.Rev. 413, 419-22 (1980).)
Section 1903, the definitional section of the Act, provides in
part:
"(T)he
term (1) 'child custody proceeding' shall mean and include
....
(ii)
'termination of parental rights' which shall mean any action resulting
in the termination of the parent-child relationship.
....
(iv)
'adoptive placement' which shall mean the permanent placement of an
Indian child for adoption, including any action resulting in a
final decree of adoption.
....
"(4)
'Indian child' means any unmarried person who is under age
eighteen and is either (a) a member of an Indian
tribe or (b) is eligible for membership in an Indian
tribe and is the biological child of a member of
an Indian tribe."
It is undisputed that Baby Boy L. is the biological
child of Perciado, who is 5/8ths Kiowa Indian and a
member of the Kiowa Tribe. It is also undisputed that
the Kiowa Tribe requires that for a person to be
eligible for enrollment in the tribe, such person must be
at least one-fourth Kiowa Indian by degree of blood *208
relationship. Baby Boy L. is five-sixteenths Kiowa Indian by degree
of blood relationship and therefore meets the tribal requirements. Thus,
as defined by the Act, Baby Boy L. must be
considered an "Indian child" within the definitions of the Act.
Appellees make much of the fact that the child's
mother objected to his enrollment in the tribe but we
find nothing in the record or in the Act that
precludes the enrollment of an otherwise qualified child into an
Indian tribe because of the opposition of one of its
parents.
Continuing
with the assumption that the Act does apply to these proceedings we will
briefly address appellants' second and third points. Appellants contend
it was error to refuse to allow the Kiowa Tribe to intervene. If
the Act were applicable we would agree. Section 1911(c) provides:
"In
any State court proceeding for the foster care placement of,
or termination of parental rights to, an Indian child, the
**177
Indian custodian of the child and the Indian child's tribe
shall have a right to intervene at any point in
the proceeding."
Thus, it is obvious that if the Act were applicable
the trial court was in error in refusing to allow
intervention by the Kiowa Tribe. However, even if such were
the case, the error would have been harmless at best.
The
mother of Baby Boy L. gave a consent to the appellees to adopt her child.
The consent was limited to the two named appellees and was for their
benefit only. She has made it clear that if this adoption was denied
for any reason, or if an attempt was made to place the child for adoption
under the terms of the Act, she would revoke her consent and again take
custody of her
child, and never consent to his placement with his father or with the
father's extended Indian family, the Kiowa Tribe, the grandparents or
anyone else. Section 1913(c) of the Act provides:
"(c)
In any voluntary proceeding for termination of parental rights to,
or adoptive placement of, an Indian child, the consent of
the parent may be withdrawn for any reason at any
time prior to the entry of a final decree of
termination or adoption, as the case may be, and the
child shall be returned to the parent." (Emphasis added.)
In Treiber v. Stong, 5 Kan.App.2d 392, 617 P.2d 114
(1980), the Court of Appeals held:
"The
irrevocability of a consent under K.S.A. 59-2102 applies to disputes
between a natural parent or parents and the prospective adoptive
parents and the consent, when withdrawn, is not binding on
the consenting parent in a custody dispute between the natural
parents." Syl. P 3.
*209
Under either the Act or Kansas law, any proceedings which
the Kiowa Tribe might have undertaken if allowed to intervene
would have been useless. Any attempt to effect the preferential
placement contemplated by the Act would necessarily result in the
removal of the baby from the custody of appellees and
thereupon there being no consent by the mother to any
such action, the child would be returned to her. We
do not believe that the Congress intended such ridiculous results
nor do we believe that the Kiowa Tribe could in
good faith recommend
such a procedure. Any error which might have occurred by
refusal of the Kiowa Tribe's petition to intervene would be
harmless. It is elementary that the law, including the ICWA,
and the courts do not require citizens and litigants to
perform useless acts and be subjected to useless court proceedings
when there is no possibility of any positive result for
anyone.
In 73 Am.Jur.2d, Statutes, we find:
"s
249. Generally. In the construction of statutes, the courts start
with the assumption that the legislature intended to enact an
effective law, and the legislature is not to be presumed
to have done a vain thing in the enactment of
a statute. Hence, it is a general principle that the
courts should, if reasonably possible to do so interpret the
statute, or the provision being construed, so as to give
it efficient operation and effect as a whole." p. 422.
"s
251. Although the courts can only interpret a statute as
framed, notwithstanding difficulties in its application, a construction of an
ambiguous statute should be avoided which would render the application
of the statute impracticable, or inconvenient, or which would require
the performance of a vain, idle, or futile thing, or
attempt to require the performance of an impossible act." p.
424.
"s
265. A statute subject to interpretation is presumed not to
have been intended to produce absurd consequences, but to have
the most reasonable operation
that its language permits. If possible, doubtful provisions should be
given a reasonable, rational, sensible, and intelligent construction. These rules
prevail where they are not restrained by the clear language
of the statute. Under this rule, general terms in a
statute should be so limited in their application as not
to lead to absurd consequences." p. 434.
Next
the appellants assert error in the failure of the court to consider their
**178
petition to transfer jurisdiction to the Court of Indian Offenses at Anadarko,
Oklahoma. Section 1911(b) of the Act provides:
"In
any State court proceeding for the foster care placement of,
or termination of parental rights to, an Indian child not
domiciled or residing within the reservation of the Indian child's
tribe, the court, in the absence of good cause to
the contrary, shall transfer such proceeding to the jurisdiction of
the tribe, absent objection by either parent, upon the petition
of either parent or the Indian *210
custodian or the Indian child's tribe: Provided, That such transfer
shall be subject to declination by the tribal court of
such tribe." (Emphasis added.)
In the instant case, it is clear that the mother
of Baby Boy L. objected to the transfer of the
adoption proceeding to the Court of Indian Offenses and as
specifically provided by the statute such a transfer could not
be made over her objection. In addition, there would certainly
appear to be good cause not to transfer such proceedings.
All of the parties involved, the child, the adoptive
parents, the biological parents and necessary witnesses were located in
Sedgwick County and there was no showing that any of
the parties had any contact or connection with the Indian
court at Anadarko, Oklahoma. Assuming the mother had not objected
to a transfer of jurisdiction, the court would still have
been justified in refusing transfer on the basis of "good
cause to the contrary."
Finally
it is asserted the appellants had the right to petition for a change of
temporary custody. Assuming the Act applied they would have the
right to file such a petition. However, under the Act, the granting
of such a petition is discretionary with the court and a denial under
the facts in this case would not constitute an abuse of discretion.
Therefore, we conclude, first, that the ICWA by its own
terms and intent was not applicable to this action and,
second, assuming arguendo the Act did apply, the trial court
did not commit reversible error in denying the petition of
the Kiowa Tribe to intervene or in finding the petition
to change jurisdiction and petition for change of temporary custody
were moot. Appellants' first three points on appeal lack merit.
For those interested in further authorities on the ICWA, see
Note, The Indian Child Welfare Act of 1978: Provisions and
Policy, 25 S.D.L.Rev. 98 (1980); Notes, Indian Child Welfare: A
Jurisdictional Approach, 21 Ariz.L.Rev. 1123 (1979); Guerrero, Indian Child Welfare
Act of 1978: A Response to
the Threat to Indian Culture Caused by Foster and Adoptive
Placements of Indian Children, 7 Amer. Indian L.Rev. 51 (1979);
Note, In re D.L.L. & C.L.L., Minors: Ruling on the
Constitutionality of the Indian Child Welfare Act, 26 S.D.L.Rev. 67
(1981).
We will now turn to appellants' attack upon the adoption
proceedings and the decree granted by the trial court. Appellants
contend that there was insufficient evidence to show that Perciado
was unfit to assume parental duties and in the alternative
*211
that the question of his fitness is not an issue
in this case. For reasons which will hereafter become clear,
we are of the opinion that the fitness of Perciado
was a relevant issue in these proceedings.
The
trial court, in ruling that Perciado was unfit and that his consent to
the adoption was not required, made the following statement:
"THE
COURT: All right. Having examined the file, heard the evidence
over a period of several months and through several hearings,
I make the following findings of fact and conclusions of
law:
"I
find that the subject matter of this adoption, baby boy
L, is the child of an unmarried, non-Indian woman, that
was born on January 29th, 1981, at Wichita, Kansas. That
the natural mother .... executed her consent to the adoption
of this child by the Petitioners .... That the natural
mother informed, at least, the Petitioners' attorney that the father
of the child was one Carmon E. Perciado, who was,
at the time the petition was **179
filed in January
of 1981, was incarcerated at the Kansas State Penitentiary-Industrial Reformatory,
I guess K.S.I.R., in Hutchinson, Kansas. That notice was served
upon the natural father whom I shall refer to herein
as Respondent or hereafter. That the Respondent filed his pleading
in which he acknowledged paternity, objected to the adoption by
the Petitioners and requested the Court to appoint an attorney
for him, and that he be present for the hearings
on the petition. The Court, in response to his pleading,
appointed Legal Aid Society of Wichita, Inc., to represent the
Respondent which organization, through Ms. Susan Ellis, has represented the
Respondent throughout these proceedings. That the Respondent has been present
in court each time the matter has been before the
Court.
"That
the matter proceeded to trial on March 30th, 1981. The
Court took judicial notice of certain of its own court
files: 79 CR 1298, 79 CR 619, 80 CR 1672,
all of which are felony convictions, the last of which
the Respondent was serving time at the reformatory at Hutchinson
as a result of a plea of guilty.
"The
Court heard further testimony as to the Respondent's attitude and
conduct and with respect to his position in society. I
find that the Defendant, on numerous occasions, prior to his
incarceration at Hutchinson, was either drinking alcoholic beverages or was
drunk, was taking drugs, was engaged in fighting, picking fights
with people, other persons. That the Respondent either
pled guilty or was tried and found guilty in Municipal
Court of numerous offenses consisting of battery of police officers,
resisting arrest, battery, inciting a riot and spent, it would
appear to be, several months incarcerated, certainly, as a result
of these convictions.
"I
find that probably the Respondent has had contact with small
children, specifically his nieces and nephews and another child of
the natural mother of baby boy L. He has had
no experience in taking care of children in providing for
their needs, hasn't been concerned with children, to speak of.
"I
find that the Respondent has admitted to numerous crimes, including
armed robbery, that apparently has never been charged with. I
find that while he was on probation to this Court
that he violated the conditions of his probation. I find
that the Respondent not only uses drugs, but uses toluol;
that he has spent some several months at Larned Hospital,
the reason for which is not clear. But I *212
think the Court can take judicial notice that Larned State
Hospital is a hospital for the mentally ill or the
criminally insane. The Court is of the opinion that, at
least prior to his incarceration, if he didn't have a
complete disregard for the law, he had, at least, a
substantial disregard for the law and the rights of other
people, and for that reason would not be a fit
and proper person to have the care, custody and control
of his child. I don't think under the law that
he's entitled to a chance to demonstrate his fitness. He's
had his chance. He didn't take advantage of it.
The law that's applied is that as a putative father
or a father of an illegitimate child he's entitled to
notice of the hearing and a right to be heard
as to the fitness. He's not entitled to any trial
period, so to speak, to demonstrate that he now can
or will in the future be able to take care
of the child. I think that the Court has to
go on what his conduct was in the past. The
evidence is that he has been recommended to meet the
parole board, but there is no indication that he's going
to be granted a parole. It appears to me that
the Respondent's main interest in seeking to obtain the custody
of the child is for the benefit of his mother
and father which, I think, is a noble gesture but
I am not able to come to the conclusion that
it's because he wants the child because he's the father
of the child.
"The
Court concludes that the Respondent is unfit within the meanings
of In Re Vallimont, Finney v. Finney and the other
case law applicable to these type of situations in Kansas.
"The
Court, therefore, concludes that the consent of the natural father
is not **180
necessary to confer jurisdiction on the Court for the adoption."
The court thereafter made "a further finding that the Respondent
called the natural mother during the time that she was
pregnant and advised her that he had the money for
her to have an abortion."
Later, at the conclusion of the evidence on the adoption,
the court found that the petitioners were suitable persons to
be granted the adoption of Baby Boy L. and
that it was in the best interests of the child
that the adoption be granted.
In addition to the findings of the court, which were
all based upon substantial evidence, there was evidence that Perciado
was violent toward members of his own family, that he
beat and abused the child's mother, before and during the
time she was pregnant, and that he broke into her
house and stole personal property from her. The evidence in
this case is overwhelming that Perciado is unfit to assume
parental duties based upon any known community standards or degree
of proof. See Finney v. Finney, 201 Kan. 263, 440
P.2d 608 (1968), and In re Vallimont, 182 Kan. 334,
321 P.2d 190 (1958). Appellant argues that no one knows
whether he would be a fit parent because he has
never had the opportunity to have the child. We know
of no law anywhere that would require this court or
any other court to submit a helpless infant to an
environment and standard of conduct displayed by *213
this father. To do so could very well endanger the
physical well-being and perhaps even the life of this child.
We find no error in the trial court's finding that
Perciado is unfit to assume his parental duties, even if
he were in a position to do so.
Finally, appellants contend that the adoption must be set aside
because there was no showing that the father had failed
to support the child for two years (K.S.A. 59-2102(3)) and
that our statute which requires only the consent of the
mother of an illegitimate child (K.S.A. 59-2102(2)) is unconstitutional as
a violation of the equal protection clause of the Fourteenth
Amendment as interpreted in Caban v. Mohammed, 441 U.S. 380,
99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). While this argument
was not presented to the trial court and ordinarily would
not be considered for the first time on appeal, we
deem the issue raised under Caban of such significance that
we will address the issue. It is appellant's argument that
the consent of both parents to an adoption is necessary
unless it falls under K.S.A. 59-2102(3), (4) or (5).
K.S.A. 59-2102 provides in part:
"Before
any minor child is adopted, consent must be given to
such adoption:
(1)
by the living parents of a legitimate child or
(2)
by the mother of an illegitimate child or
(3)
by one of the parents if the other has failed
or refused to assume the duties of a parent for
two (2) consecutive years or is incapable of giving such
consent or
...."
The United States Supreme Court has recognized in a trilogy
of cases the constitutional rights of the father of an
illegitimate child when the father-child relationship may be affected. In
Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31
L.Ed.2d 551 (1972), the court reviewed proceedings from the State
of Illinois in which the state, upon the death of
the mother of certain illegitimate children, instituted proceedings to declare
the children wards of the
state and to place them with court-appointed guardians. The proceedings
were conducted pursuant to Illinois statutes under which an unwed
father is subject to being deprived of the custody of
his illegitimate children in dependency proceedings without any hearing as
to his fitness as a parent whereas married or divorced
parents or unwed mothers raising their children can be deprived
of custody only through proceedings in which the parent is
entitled to a hearing on fitness. The court held that
the Illinois procedure violated the due process and equal protection
*214
rights of Stanley, who had lived with and supported the
children's mother and the children for years.
"The
State of Illinois assumes custody of the children of married
parents, divorced **181
parents, and unmarried mothers only after a hearing and proof
of neglect. The children of unmarried fathers, however, are declared
dependent children without a hearing on parental fitness and without
proof of neglect. Stanley's claim in the state courts and
here is that failure to afford him a hearing on
his parental qualifications while extending it to other parents denied
him equal protection of the laws. We have concluded that
all Illinois parents are constitutionally entitled to a hearing on
their fitness before their children are removed from their custody.
It follows that denying such a hearing to Stanley and
those like him while granting it to other Illinois parents
is inescapably contrary to the Equal Protection Clause." Stanley v.
Illinois, 405 U.S. at 658, 92 S.Ct. at 1216.
Certainly the safeguards prescribed in Stanley were met in the
instant case. Perciado was furnished counsel and personally participated in
the hotly contested hearings in which testimony was received from
at least thirteen witnesses.
In Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549,
54 L.Ed.2d 511 (1978), the court was faced with a
controversy from the State of Georgia between a stepfather and
the biological father of an illegitimate eleven-year-old child. The stepfather,
who had been married to the child's mother for approximately
nine years, desired to adopt the child and under Georgia
law, the consent of the father of an illegitimate child
was not required. Mr. Justice Marshall, writing for a unanimous
court, stated the issue and facts as:
"The
issue in this case is the constitutionality of Georgia's adoption
laws as applied to deny an unwed father authority to
prevent adoption of his illegitimate child. The child was born
in December 1964 and has been in the custody and
control of his mother, appellee Ardell Williams Walcott, for his
entire life. The mother and the child's natural father, appellant
Leon Webster Quilloin, never married each other or established a
home together, and in September 1967 the mother married appellee
Randall Walcott. In March 1976, she consented to adoption of
the child by her husband, who immediately filed a petition
for adoption. Appellant attempted to block the adoption and to
secure visitation rights, but he did not seek custody or
object to the child's continuing
to live with appellees. Although appellant was not found to
be an unfit parent, the adoption was granted over his
objection.
"In
Stanley v. Illinois, 405 U.S. 645 (92 S.Ct. 1208, 31
L.Ed.2d 551) (1972), this Court held that the State of
Illinois was barred, as a matter of both due process
and equal protection, from taking custody of the children of
an unwed father, absent a hearing and a particularized finding
that the father was an unfit parent. The Court concluded,
on the one hand, that a father's interest in the
'companionship, care, custody, and management' of his children is 'cognizable
and substantial,' id., at 651-652 (92 S.Ct. at 1212-1213) and,
*215
on the other hand, that the State's interest in caring
for the children is 'de minimis ' if the father
is in fact a fit parent, id., at 657-658 (92
S.Ct. at 1215-1216). Stanley left unresolved the degree of protection
a State must afford to the rights of an unwed
father in a situation, such as that presented here, in
which the countervailing interests are more substantial.
"Generally
speaking, under Georgia law a child born in wedlock cannot
be adopted without the consent of each living parent who
has not voluntarily surrendered rights in the child or been
adjudicated an unfit parent. Even where the child's parents are
divorced or separated at the time of the adoption proceedings,
either parent may veto the adoption. In contrast, only the
consent of the mother is required for adoption of an
illegitimate child." pp. 247-248,
98 S.Ct. 550-551.
Thus it may be seen that the essential part of
the Georgia statute was similar to K.S.A. 59-2102(2). Quilloin, the
biological father, attempted to block the proposed adoption of his
illegitimate child by seeking to have the child legitimized under
existing Georgia **182
statutes, by seeking visitation rights and by objecting to the
adoption. After a full evidentiary hearing on all of Quilloin's
contentions the court found that it was in the best
interests of the child to grant the adoption and that
to grant the father's request for legitimation and visitation rights
would not be in the best interests of the child
and both requests were denied. The trial court was affirmed
by the Georgia Supreme Court and an appeal was taken
to the Supreme Court where Quilloin alleged his due process
and equal protection rights were violated. The due process argument
was based upon a failure of the trial court to
find him unfit and the equal protection argument was based
upon the disparate treatment between fathers of illegitimate children and
those of legitimate children. The court found that under the
facts of the case, the "best interests of the child"
standard was sufficient to satisfy the due process attack.
Insofar as the equal protection argument was concerned, the court
stated:
"We
think appellant's interests are readily distinguishable from those of a
separated or divorced father, and accordingly believe that the State
could permissibly
give appellant less veto authority than it provides to a
married father." p. 256, 98 S.Ct. 555.
The court found that the difference in the extent of
the commitment to the welfare of the child that obviously
exists between fathers of illegitimate children and those of children
born in wedlock, was sufficient to satisfy the state's interest
in the welfare of its children in setting different veto
authority to an adoption *216
and that such a different standard or requirement did not
violate Quilloin's equal protection rights.
Finally, only a year later, Caban v. Mohammed, 441 U.S.
380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), was decided
by the court. Under a New York statute similar to
ours, the court held that the statute which granted an
unwed mother the authority to block the adoption of her
child simply by withholding consent but did not give an
unwed father a similar right was unconstitutional as a violation
of the gender-based prohibition against denial of equal protection of
the laws. Caban and Maria Mohammed had lived together out-of-wedlock
for several years in New York City during which time
two children were born. Caban was the acknowledged father and
contributed to their support over the years. After he and
Maria separated, and she married Mohammed, Caban continued to maintain
contact with the children and throughout the years maintained a
close personal and familial relationship with them. Maria's new husband
desired to adopt the two Caban children. Section 111 of
the New York Domestic Relations
Law (McKinney, 1977) provided in part:
"Subject
to the limitations hereinafter set forth, consent to adoption shall
be required as follows:
1.
Of the adoptive child, if over fourteen years of age,
unless the judge or surrogate in his discretion dispenses with
such consent;
2.
Of the parents or surviving parent, whether adult or infant,
of a child born in wedlock;
3.
Of the mother, whether adult or infant, of a child
born out of wedlock;
4.
...."
Certain exceptions and limitations were contained within the statute which
are not relevant to our decision here.
As is obvious, the New York statute as it applies
to the father of an illegitimate child is essentially identical
to our own statute now before this court for examination.
A sharply divided court (5 to 4), held in Caban
that the New York statute when applied under the specific
facts of the case as an absolute bar to the
rights of the father to object to the adoption of
his illegitimate child was unconstitutional as a gender-based violation of
the equal protection clause. The New York court in approving
the adoption had relied exclusively on Section 111(3) of their
statute and not upon possible statutory exceptions. A careful reading
of Caban reveals that it is directed to the specific
factual situation before the court. Caban had demonstrated that
he was a capable and loving father; he had **183
established and maintained a close family relationship *217
with Maria and the children for several years and continued
to maintain contact with and an interest in the children
after he and Maria had separated and even after her
marriage to Mohammed. The court specifically pointed out that in
Quilloin the court had recognized the importance of the actual
factual relationship that exists. The court also indicated that its
ruling might be different in a situation where an infant
is involved as opposed to older children. In addition, the
court stated that in cases where the father never has
come forward to participate in the rearing of his child,
"nothing in the Equal Protection Clause precludes the State from
withholding from him (the biological father) the privilege of vetoing
the adoption of that child." It also recognized that a
different result might be reached if the father was found
unfit after a notice and hearing as required in Stanley.
Thus it is clear that the Caban decision was a
narrow one based upon its particular facts and that not
all factual situations give the father of an illegitimate child
veto power over adoption.
Mr. Justice Stewart, in his dissenting opinion, stated:
"The
Constitution does not require that an unmarried father's substantive parental
rights must always be coextensive with those afforded to the
fathers of
legitimate children. In this setting, it is plain that the
absence of a legal tie with the mother provides a
constitutionally valid ground for distinction. The decision to withhold from
the unwed father the power to veto an adoption by
the natural mother and her husband may well reflect a
judgment that the putative father should not be able arbitrarily
to withhold the benefit of legitimacy from his children.
"Even
if it be assumed that each married parent after divorce
has some substantive due process right to maintain his or
her parental relationship, cf. Smith v. Organization of Foster Families,
431 U.S. 816, 862-863 (97 S.Ct. 2094, 2119, 53 L.Ed.2d
14) (opinion concurring in judgment), it by no means follows
that each unwed parent has any such right. Parental rights
do not spring full-blown from the biological connection between parent
and child. They require relationships more enduring. The mother carries
and bears the child, and in this sense her parental
relationship is clear. The validity of the father's parental claims
must be gauged by other measures. By tradition, the primary
measure has been the legitimate familial relationship he creates with
the child by marriage with the mother. By definition, the
question before us can arise only when no such marriage
has taken place. In some circumstances the actual relationship between
father and child may suffice to create in the unwed
father parental interests comparable to those of the married father.
Cf.
Stanley v. Illinois, supra. But here we are concerned with
the rights the unwed father may have when his wishes
and those of the mother are in conflict, and the
child's best interests are served by a resolution in favor
of the mother. It seems to me that the absence
of a legal tie with the mother may in such
circumstances appropriately place a limit on whatever substantive constitutional *218
claims might otherwise exist by virtue of the father's actual
relationship with the children.
"The
appellant's equal protection challenge to the distinction drawn between the
unwed father and mother seems to me more substantial. Gender,
like race, is a highly visible and immutable characteristic that
has historically been the touchstone for pervasive but often subtle
discrimination. Although the analogy to race is not perfect and
the constitutional inquiry therefore somewhat different, gender-based statutory classifications deserve
careful constitutional examination because they may reflect or operate to
perpetuate mythical or stereotyped assumptions about the proper roles and
the relative capabilities of men and women that are unrelated
to any inherent differences between the sexes. Cf. Orr v.
Orr, 440 U.S. 268 (99 S.Ct. 1102, 59 L.Ed.2d 306).
Sex-based classifications are in **184
many settings invidious because they relegate a person to the
place set aside for the group on the basis of
an attribute that the person cannot change. Reed v. Reed,
404 U.S. 71 (92 S.Ct.
251, 30 L.Ed.2d 225); Stanton v. Stanton, 421 U.S. 7
(95 S.Ct. 1373, 43 L.Ed.2d 688); Frontiero v. Richardson, 411
U.S. 677 (93 S.Ct. 1764, 36 L.Ed.2d 583); Weinberger v.
Wiesenfeld, 420 U.S. 636 (95 S.Ct. 1225, 43 L.Ed.2d 514);
Orr v. Orr, supra. Such laws cannot be defended, as
can the bulk of the classifications that fill the statute
books, simply on the ground that the generalizations they reflect
may be true of the majority of members of the
class, for a gender-based classification need not ring false to
work a discrimination that in the individual case might be
invidious. Nonetheless, gender-based classifications are not invariably invalid. When men
and women are not in fact similarly situated in the
area covered by the legislation in question, the Equal Protection
Clause is not violated. See, e.g., Schlesinger v. Ballard, 419
U.S. 498 (95 S.Ct. 572, 42 L.Ed.2d 610). Cf. San
Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 59
(93 S.Ct. 1278, 1310, 36 L.Ed.2d 16) (concurring opinion).
"In
my view, the gender-based distinction drawn by New York falls
in this latter category. With respect to a large group
of adoptions-those of newborn children and infants-unwed mothers and unwed
fathers are simply not similarly situated, as my Brother Stevens
has demonstrated. Our law has given the unwed mother the
custody of her illegitimate children precisely because it is she
who bears the child and because the vast majority of
unwed fathers have been unknown,
unavailable, or simply uninterested. See H. Clark, Law of Domestic
Relations 176-177 (1968); H. Krause, Illegitimacy: Law and Social Policy
29-32 (1971). This custodial preference has carried with it a
correlative power in the mother to place her child for
adoption or not to do so.
"The
majority of the States have incorporated these basic common-law rules
in their statutes identifying the persons whose participation or consent
is requisite to a valid adoption. See generally Note, 59
Va.L.Rev. 517 (1973); Comment, 70 Mich.L.Rev. 1581 (1972). These common-law
and statutory rules of law reflect the physical reality that
only the mother carries and gives birth to the child,
as well as the undeniable social reality that the unwed
mother is always an identifiable parent and the custodian of
the child-until or unless the State intervenes. The biological father,
unless he has established a familial tie with the child
by marrying the mother, is often a total stranger from
the State's point of view. I do not understand the
Court to question these pragmatic differences. See ante, at 392
(99 S.Ct. at 1768). An unwed father who has not
come forward and who has established no relationship with the
child is plainly not in a situation similar to the
mother's. New York's consent distinctions have clearly been made on
this basis, and in my view they do not violate
the Equal Protection Clause of the Fourteenth Amendment. *219
See Schlesinger v. Ballard, supra.
"In
this case, of course, we are concerned not with an
unwilling or unidentified father but instead with an unwed father
who has established a paternal relationship with his children. He
is thus similarly situated to the mother, and his claim
is that he thus has parental interests no less deserving
of protection than those of the mother. His contention that
the New York law in question consequently discriminates against him
on the basis of gender cannot be lightly dismissed. For
substantially the reasons expressed by Mr. Justice Stevens in his
dissenting opinion, post, at 412-413 (99 S.Ct. at 1778). I
believe, however, that this gender-based distinction does not violate the
Equal Protection Clause as applied in the circumstances of the
present case.
"It
must be remembered that here there are not two, but
three interests at stake: the mother's, the father's, and the
children's. Concerns humane as well as **185
practical abundantly support New York's provision that only one parent
need consent to the adoption of an illegitimate child, though
it requires both parents to consent to the adoption of
one already legitimate. If the consent of both unwed parents
were required, and one withheld that consent, the illegitimate child
would remain illegitimate. Viewed in these terms the statute does
not in any sense discriminate on the basis of sex.
The question, then is whether the decision to select the
unwed mother as the parent entitled to
give or withhold consent and to apply that rule even
when the unwed father in fact has a paternal relationship
with his children constitutes invidious sex-based discrimination." pp. 397-400, 99
S.Ct. 1770-1772.
Mr. Justice Stevens in his dissenting opinion addressed the constitutional
issues and found no violation in the New York statute
and also set forth his ideas on the limited application
of the majority opinion as follows:
"There
is often the risk that the arguments one advances in
dissent may give rise to a broader reading of the
Court's opinion than is appropriate. That risk is especially grave
when the Court is embarking on a new course that
threatens to interfere with social arrangements that have come into
use over long periods of time. Because I consider the
course on which the Court is currently embarked to be
potentially most serious, I shall explain why I regard its
holding in this case as quite narrow.
"The
adoption decrees that have been entered without the consent of
the natural father must number in the millions. An untold
number of family and financial decisions have been made in
reliance on the validity of those decrees. Because the Court
has crossed a new constitutional frontier with today's decision, those
reliance interests unquestionably foreclose retroactive application of this ruling. See
Chevron Oil Co. v. Huson, 404 U.S. 97, 106- 107
(92 S.Ct. 349, 355, 30 L.Ed.2d 296). Families that include
adopted children
need have no concern about the probable impact of this
case on their familial security.
"Nor
is there any reason why the decision should affect the
processing of most future adoptions. The fact that an unusual
application of a state statute has been held unconstitutional on
equal protection grounds does not necessarily eliminate the entire statute
as a basis for future legitimate state action. The procedure
to be followed in cases involving infants who are in
the custody of their mothers-whether solely or jointly with the
father-or of agencies with authority to consent *220
to adoption, is entirely unaffected by the Court's holding or
by its reasoning. In fact, as I read the Court's
opinion, the statutes now in effect may be enforced as
usual unless 'the adoption of an older child is sought,'
ante, at 392 (99 S.Ct. at 1768), and the 'father
has established a substantial relationship with the child and (is
willing to admit) his paternity.' Ante, at 393 (99 S.Ct.
at 1768). State legislatures will no doubt promptly revise their
adoption laws to comply with the rule of this case,
but as long as state courts are prepared to construe
their existing statutes to contain a requirement of paternal consent
'in cases such as this,' ibid., I see no reason
why they may not continue to enter valid adoption decrees
in the countless routine cases that will arise before the
statutes can be amended.
"In
short, this is an exceptional case that should have no
effect on the typical adoption proceeding. Indeed, I suspect that
it will affect only a tiny fraction of the cases
covered by the statutes that must now be rewritten. Accordingly,
although my disagreement with the Court is as profound as
that fraction is small, I am confident that the wisdom
of judges will forestall any widespread harm." pp. 415-417, 99
S.Ct. 1780-1781.
We agree and concur with the views expressed by Mr.
Justice Stewart and Mr. Justice Stevens.
With the foregoing factual situation and legal principles illucidated in
Stanley, Quilloin **186
and Caban before us, we now turn to the validity
of K.S.A. 59-2102(2) as applied to the factual situation of
Perciado.
Kansas has not ignored the rights of an unwed father
in adoption proceedings. See Note, Constitutional Law-Rights of an Unwed
Father in an Adoption Proceeding, 27 Kan.L.Rev. 483 (1979). In
In re Lathrop, 2 Kan.App.2d 90, 575 P.2d 894 (1978),
the court was faced with two issues: (1) whether the
natural father of an illegitimate child has a paramount right
over non-parents to custody of the child, and (2) whether
K.S.A. 59-2102(2), which requires the consent of the unwed mother
but not the unwed father is unconstitutional. The Court of
Appeals affirmed a trial court ruling that the natural father
of an illegitimate child has a paramount right to custody
as against non-parents where
both the adopting parents and the father are found to
be fit. The Court of Appeals also held that the
statute did not violate either the due process or equal
protection clauses of the constitution. The mother of the infant
child consented two days after birth to the baby's adoption
by the appellees and they were given immediate care and
custody. At the adoption hearing the natural father objected and
after a hearing in which the father and the adoptive
parents were all found to be fit, the court denied
the adoption. After giving careful consideration to Stanley v. Illinois
and Quilloin *221
v. Walcott, along with the parental preference doctrine as recognized
in Kansas, the court held:
"The
rights to conceive and raise one's children are 'essential rights'
protected by the due process and equal protection clauses of
the Fourteenth Amendment even though the family relationship is unlegitimized
by marriage." Syl. P 1.
"In
an appeal by prospective adoptive parents from a district court
order denying their petition to adopt a baby girl, held:
the father of the illegitimate child who appeared and sought
custody of the child and who had not been found
unfit was properly granted custody as against the prospective adoptive
parents." Syl. P 2. (Emphasis added.)
"The
father of an illegitimate child is an 'interested party' within
the meaning
of K.S.A. 59-2278 and must be given notice of the
pending adoption of his child." Syl. P 3.
"If
after being given notice of the pending adoption the father
appears and asserts his desire to assume parental responsibilities toward
the child, his rights in the child must be given
preference over those of third-party adoptive parents unless he has
failed to assume parental responsibilities for the statutory period of
two years or he is found to be unfit. However,
if he chooses not to appear and make known his
desire to care for the child, his rights are de
minimis and may be terminated without his consent by finalizing
the adoption." Syl. P 4. (Emphasis added.)
The court went on to hold that K.S.A. 59-2102(2) did
not offend the due process and equal protection guarantees of
the constitution.
In Aslin v. Seamon, 225 Kan. 77, 587 P.2d 875
(1978), the Supreme Court was faced with a determination of
whether the father of an illegitimate child could give consent
to an adoption when the child had been abandoned by
its unwed mother. In Aslin this court stated:
"We
emphasize in the instant case that we are asked only
to determine whether the father of an illegitimate child can
give his consent to adoption under K.S.A. 59-2102(3). Here a
simple reading of the Kansas statutory provision indicates paragraph three
does not differentiate between legitimate and illegitimate
children. The unadjudicated natural father, William Thompson, notoriously recognized his
paternity not only by taking his children in; acknowledging them
as his own; giving them parental support; and finding them
a home with his sister and her husband, but also
by recognizing them in writing when he consented to the
adoption petition. The trial court found for purposes of the
adoption William |