Petition — Riggs v. Terrazas

Supreme Court brief1981

Ask Donna

What actually matters in this document.

Text

en ees Court oe

3 E FILED

80-1092 | “= *™

oo 4 -MiCk=£) Pon, JR., CL

No. Ee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

IN RE: JOSEPH RYAN RIGGS,

A Minor, |

TOMMY JOE RIGGS and

ANN MARIE RIGGS,

Petitioners,

versus

ROBERT TERRAZAS,

Respondent.

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF TENNESSEE,

WESTERN SECTION

PETITION FOR WRIT OF CERTIORARI

JAMES B. OUTMAN

Counsel of Record

P. O. Box 105041

Atlanta, Georgia 30348

(404) 491-6543

JAMES D. TODD

Waldrop, Hall, Tomlin & Farmer

106 South Liberty Street

Jackson, Tennessee 38301

(901) 424-6211

Lucy 8S. McGouGH

Emory University School of Law

Atlanta, Georgia 30322

(404) 329-6498

Attorneys for Petitioners

QUESTIONS PRESENTED FOR REVIEW

1, Whether the Court of Appeals of Tennessee

erred in refusing to give full faith and credit to a

Georgia Final Order of Adoption involving an in-

fant child on the basis that it was violative of the due

process rights of the putative father in contraven-

tion of the public policy of Tennessee and the Con-

stitution of the United States?

2. Whether the Court of Appeals of Tennessee

erred in ruling that a putative father whose identity

was unknown and legally undiscoverable by the

Georgia Court which granted the adoption has

“established, through his sperm and through his ef-

forts to find his natural child, such a relationship

with the child as to entitle him to due process of law

in any proceedings adverse to his interest” and that

any adoption decree rendered without such notice

becomes voidable at his option?

3. Whether the Court of Appeals of Tennessee

erred in failing to recognize the constitutional right

of privacy of a birth mother who refused to disclose

the identity of the putative father of her infant child

whom she desired to surrender for adoption?

4. Whether the Court of Appeals of Tennessee

erred in construing and applying retroactively Ca-

ban v. Mohammed, 441 U.S. 380 (1979), to a case

involving an infant with whom the putative father

had established no relationship?

5. Whether the Court of Appeals of Tennessee

denied adoptive parents full recognition of their

(i)

liberty rights and due process rights under the

Constitution of the United States when it ordered the

removal of their child from their custody without

any showing of their unfitness as parents?

6. Whether the Court of Appeals of Tennessee de-

nied adoptive parents their right to procedural due

process and equal protection of the laws under the

Constitution of the United States when it ordered

the removal of their child from their custody?

7. Whether the Court of Appeals of Tennessee

denied the infant adoptive child his due process

rights under the Constitution of the United States

when in the course of litigation affecting his present

and future custody, property rights, and legal rela-

tionships, it refused to appoint a guardian ad litem

and refused to permit a full exploration of the issue

of his custody?

(ii)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW _ (i)

pe ER ae ogy ob) io 9) +. Sr ere (iv)

OPINIONS BELOW "GIGS Rend a React Begone 1

NARI or ain Pe a a 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED Bet. gchar ia aes 2

STATEMENT OF THE CASE ............... 3

REASONS FOR GRANTING THE WRIT 11

- CONCLUSION | | .82

APPENDICES:

Appendix A—In Re: Joseph Ryan Riggs, a

minor; Robert Terrazas vs. Tommy Joe

Riggs and Ann Marie Riggs; No. 31079,

Opinion, Chancery Court of Madison Coun-

ty, Tennessee, filed September 21, 1979,

Amended September 27, 1979 __. la

Appendix B—In Re: Joseph Ryan Riggs, a

minor; Robert Terrazas, Petitioner-A ppel-

lee vs. Tommy Joe Riggs and Ann Marie

Riggs, Defendant-Appellants; Opinion,

Court of Appeals of Tennessee, filed July

a: eg | 1b

Appendix C—In Re: Joseph Ryan Riggs, a

minor; Robert Terrazas, Appellee vs. Tom-

my Joe Riggs and Ann Marie Riggs, Ap-

pellants; Order, Supreme Court of Ten-

nessee, filed October 6, 1980 _. le

Appendix D—Pertinent portions of the Geor-

gia adoption statute, Georgia Code Chapter

74, Sections 74-404(c) (5); 74-406(a)-

(e); 74-409(a); 74-410(a); 74-412(a)-

(d); and 74-413(a)-(b) ld

(iii)

TABLE OF AUTHORITIES

Page

Cases:

Caban v. Mohammed, 441 U.S. 380

(1979) _........10, 14, 18, 19, 20, 21, 22, 23, 32

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) .. 22

Cleveland Board of Education v. La Fleur,

414 U.S. 632 (1974) Pee) nant 24

Delaney v. First National Bank, 73 N. M. 192,

386 P.2d 711 (1963) . 13

Department of Health and Rehab. Services 7 v.

Herzog, 317 S.2d 865 (Fla. App. 1975) ...—:16

Ex parte Osborne, 205 N.C. 716, 172 S.E. 491

(1934) | a

Fauntleroy v. Lum, 210 U. S. 230 (1908) - 12

In re Gault, 387 U. S, 1 (1967) | .. 80

J.L.and J. R.v. Parham, 442 U.S. 584 (1979) 30

Magnolia Petroleum Co. v. Hunt, 320 U.S.

430 (1943) NAc 12

Perkins v. Courson, 219 Ga. 611, 135 S. E. 2d

388 (1964) 27

Planned Parenthood of Central Missouri v.

Danforth, 428 U.S. 52 (1975) 19

Quilloin v. Walcott, 434 U.S. 246

ea: ) oe | 10, 17, 21, 27, 28, 29, 32

Roe v. Norton, 422 U.S. 391 (1973) | 21

Roe v. Wade, 410 U.S. 152 (1973) | 19

Rothstein v. Lutheran Social Services, 405 U.S.

1051 (1972) 29, 30

Smith v. Organization of Foster Families for

Equity and Reform, 431 U.S. 816

(1977) 25, 28, 30

(iv)

Page

Stanley v. Illinois, 405 U.S. 645

(91a) ......5.... SBR See

Williams v. North Carolina, 317 U.S. 287 (1942) 12

Wisconsin v. Yoder, 406 U.S. 205 (1972) 30

Constitutional and Statutory Provisions:

Constitution of the United States, Article IV,

Section 1 pie |

Amendment Fourteen, Constitution of the

United States..............

28 United States Code Section 1738 :

28 United States Code Section 2403 (b)

Georgia Code Annotated Section 74-108 .......

Georgia Code Annotated Section 74-406 1

)

Do 1) DO DO PO

(v)

No.

IN THE

SUPREL-© COURT OF THE UNITED STATES

OCTOBER TERM, 1980

INRE: JOSEPH RYAN RIGGS,

A Minor,

TOMMY JOE RIGGS and

ANN MARIE RIGGS,

Petitioners,

versus

ROBERT TERRAZAS,

Respondent.

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF TENNESSEE,

WESTERN SECTION

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Trial Court, filed on Septem-

ber 21, 1979, not reported, is reproduced as Ap-

pendix A. The opinion of the Court of Appeals of

Tennessee, Western Section, filed on July 29, 1980,

— Tenn. _, S.W.2d _, (1980), not yet reported,

is reproduced as Appendix B. The order of the Su-

preme Court of Tennessee denying Petitioners’ Ap-

plication for Permission to Appeal, filed on October

6, 1980, not yet reported, is reproduced as Appendix

JURISDICTION

The judgment of the Court of Appeals of Ten-

nessee, Western Section, was entered on July 29,

1980. Application for Permission to Appeal was de-

nied by the Supreme Court of Tennessee on October

6, 1980. This Petition for Certiorari is timely filed

within ninety days of that date. The jurisdiction of

this Court is invoked under 28 U.S.C. $1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

Article IV, Section 1, Constitution of the United

States:

Full Faith and Credit shall be given in each State

to the public acts, records, and judicial proceed-

ings of every other State... .

Amendment Fourteen, Constitution of the United

States:

. nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

28 United States Code Section 1738:

.. . Such Acts, records and judicial proceedings

or copies thereof, so authenticated, shall have the

same full faith and credit in every court within

the United States and its Territories and Pos-

sessions as they have by law, or usage in the

courts of such State, Territory or Possession from

which they are taken.

28 United States Code Section 2403 (b) :

In any action, suit, or proceeding in a court of the

United States to which a State or any agency, of-

ficer, or employee thereof is not a party, wherein

the constitutionality of any statute of that State

affecting the public interest is drawn in question,

the court shall certify such fact to the attorney

general of the State, and shall permit the State to

intervene for presentation of evidence, if evidence

is otherwise admissible in the case, and for argu-

ment on the question of constitutionality. The

State shall, subject to the applicable provisions of

law, have all the rights of a party and be subject

to all liabilities of a party as to court costs to the

extent necessary for a proper presentation of the

facts and law relating to the question of constitu-

tionality.

Pertinent portions of the Georgia adoption statute,

Georgia Code Chapter 74, are reproduced as Ap-

pendix D.

STATEMENT OF THE CASE

Joseph Ryan Riggs, age twenty-three months, has

resided with Petitioners, his adoptive parents, since

he was three days old. At the time of the place-

ment and adoption, Petitioners, Tommy Joe Riggs

and Ann Marie Riggs, were thirty-six and thirty-one

years old, respectively, and had been married for

eleven years.

Petitioners had resided in Modesto, California, for

several years where they developed a friendship with

their parish priest, Father Joseph Ryan. In October,

1978, Petitioners moved to Moultrie, Georgia, to ac-

cept different employment. In December, 1978,

Father Ryan phoned Petitioners and asked if they

were interested in adopting a child yet to be born

to an unwed mother whom he was counseling. After

considering the matter for two days, Petitioners

called Father Ryan to advise that they wished to

adopt the child. They were later told that the ex-

pectant unmarried mother was residing in a con-

vent in Nevada and that the child would be brought

to them after its birth.

Petitioners then retained the services of an at-

torney in Moultrie, Colquitt County, Georgia, who

thereafter handled all legal aspects of the adoption

in full compliance with Georgia law. At no time did

Petitioners have any contact with any biological

relative of the child. Their attorney prepared the

documents required by Georgia law, including a

Surrender of Parental Rights Final Release for

Adoption, Acknowledgement of Surrender of Paren-

tal Rights, and Mother’s Affidavit Regarding Puta-

tive Father, and transmitted each of the documents

to Nevada for signature. After the child was born,

each of the documents was executed by the birth

mother, Roneva Anderson, under what was later

discovered to be an assumed name “Jessica Stewart.”

The birth mother stated in her “Mother’s Affi-

davit Regarding Putative Father’ that the identity

and location of the biological father of her child

was “unknown” even though under Georgia law she

had the right, if she so desired, to merely refuse

to disclose his name and address.

On February 1, 1979, the three-day old infant was

brought to Georgia by a nun and was left with

Petitioners. Petitioners contributed two thousand

dollars to the convent to help defray the costs of

the birth and reimbursed the nun’s travel expenses.

Their attorney prepared the necessary Petition

for Adoption and filed it with the Superior Court

of Colquitt County on February 7, 1979.

The Superior Court set April 12, 1979, as the

hearing date for the adoption petition. Pursuant to

Georgia law, the Court ordered that a hearing be

held on March 1, 1979, to determine whether notice

to the putative father was required. After hearing

evidence the Court found: that the identity and

location of the putative father was unascertainable;

and furthermore, that no putative father had ever

lived with the child, contributed to the support of

the child, or given any other tangible indication of

interest in the child. The Court concluded that the

putative father of said child was not entitled under

Georgia law to notice of the adoption proceedings.

In accordance with Georgia law, a home study was

done by the Georgia Department of Human Re-

sources and a report recommending the adoption

was filed with the Court. On April 12, 1979, a Final

Order of Adoption was entered and the child was

given the legal name of Joseph Ryan Riggs. All

aspects of the adoption were handled by Petitioners’

Georgia attorney. Petitioners themselves did not

learn the name of either the biological father or

biological mother until the initiation of these pro-

ceedings against them by Respondent.

In March 1979, while the adoption was pending,

Petitioner was approached by his former employer

and offered a new position which would require re-

location. Following the entry of the Final Order of

Adoption, Petitioners moved to Jackson, Tennessee.

After Petitioners had settled in their new home

in Tennessee, Father Ryan telephoned informing

them that he had been subpoenaed to appear in a

judicial proceeding in California brought against

the birth mother of their child by the alleged natural

father. Petitioners received no formal notice of the

California proceeding, nor were they formerly ap-

prised of its outcome until they were served with

the Petition for habeas corpus and arrested on an

ex parte Writ of Ne Exeat issued by the Chancery

Court of Madison County, Tennessee, on the even-

ing of July 26, 1979. Terrified by the jailing, the

prospect of forced separation from their child and

the threat to the future security of their family unit,

Petitioners immediately retained legal counsel.

At the outset of the hearing held in the Chancery

Court of Madison County, Tennessee on August 7,

1979, Petitioners asserted that the sole issue to be

decided at the habeas corpus hearing was the legal-

ity of Petitioners’ holding of the child. They tendered

into evidence as proof a certified and exemplified

copy of their Georgia adoption proceedings includ-

ing the Final Order of Adoption from the Superior

Court of Colquitt County, Georgia. Petitioners con-

tended that full faith and credit must be given to

the Georgia adoption order which was valid and

regular on its face. The Court overruled Petitioners’

motions to restrict the scope of the habeas corpus

hearing and allowed Respondent to relate, among

other things, the following facts. Respondent, Robert

Terrazas, a twenty-eight year old unmarried man,

established a relationship with Roneva Anderson in

California, in late 1977. Miss Anderson, an un-

married nineteen year old, became pregnant, and

approximately two months later, in July of 1978,

she informed Respondent she desired to have no fur-

ther contact with him and that she intended to place

the child for adoption. She confirmed this by letter

dated September 9, 1978, which letter was the last

communication Respondent had with Miss Anderson.

According to facts later developed by Respondent,

Miss Anderson admitted her pregnancy to her fam-

ily and with their Support sought counsel from Fa-

ther Ryan. In November or December, 1978, she

asked Father Ryan if he knew of anyone who wanted

to adopt her child. With Father Ryan’s assistance,

she traveled to Reno, Nevada, to a convent where she

stayed until the child was born, On January 29,

1979, a male child was born to her.

Two months before the birth of the child, Respond-

ent initiated legal proceedings in California seeking

a restraining order preventing Miss Anderson from

placing the child for adoption. However, the Com-

plaint and Summons were not served upon Miss

Anderson until Fvoruary 25, 1979 — after the child

had been born, surrendered to and physically trans-

ferred to Petitioners, said surrender had become ir-

revocable by its terms, and the adoption had been

commenced in Georgia. After a hearing, a prelimin-

ary injunction was issued by the Superior Court of

Calaveras County, California, on May 9, 1979, en-

joining Miss Anderson from placing the child for

adoption. However, the Preliminary Injunction was

entered in California almost a month after the Final

Order of Adoption was entered by the Georgia Court.

Proceeding on information learned during the

California hearing, Respondent went to the State of

Georgia seeking information concerning the adop-

tion of Miss Anderson’s child, and successfully de-

termined Petitioner’s identity.

Based upon this information, Respondent filed a

habeas corpus action in the Chancery Court of Madi-

son County, Tennessee, and a hearing was held in

said Court on said Petition on August 7, 8, 9, 1979.

After Respondent testified to the above chronol-

ogy, he attempted to call as his witness Petitioners’

Georgia co-counsel as an expert witness on the adop-

tion laws in the State of Geoorgia. Said co-counsel

did in fact testify at the request of the Court, and

answered questions propounded by both Respond-

ent’s attorney and the Court. He established for the

record that under Georgia law Respondent was an

unknown putative father who was not entitled to no-

tice of the Georgia adoption proceeding.

In addition to his testimony concerning the chro-

nology of the case, Respondent also attempted to tes-

tify concerning his fitness as a parent. Petitioners

objected to this enlargement of the scope of the hear-

ing, but were overruled by the Court. Respondent

proceeded to make representations about his prepar-

ations for parenthood, including his having taken

instruction in child care from a nun, his having

taught catechism to youth in his church, and his

having read four books on child care (i.e. First Five

Years, Baby and Child Care, The First Twelve

Months of Life, and Your Child’s Self Esteem.)

Upon cross-examination, Respondent conceded that

he was asserting no unfitness of the part of Petition-

ers as parents.

Having been overruled in their objection to Re-

spondent’s introduction of evidence concerning his

fitness as a parent, Petitioners countered with their

own testimony about their care of their child and

in corroboration offered the testimony of a regis-

tered nurse (neighbor). In addition, after the hear-

ing, Petitioners moved for an order of reference di-

recting an investigation to be conducted by the Ten-

nessee Department of Human Services into the

background of both the Respondent and the Petition-

ers. At no time did the Trial Court rule on Petition-

ers’ motion and the Petitioners cited this as error in

their appeal to the Court of Appeals of Tennessee.

Finally, at the conclusion of the hearing, but be-

fore decision, Petitioners filed with the Trial Court

a motion for the appointment of a guardian ad litem

to protect the interests of the child. The Trial Court

never ruled on this motion. Instead, on September

21, 1979, the Trial Court ruled that Tennessee did

not have to give full faith and credit to the Georgia

decree and ordered that Respondent be awarded

custody of Petitioners’ child, but that the child be

placed in the custody of the Tennessee Department

of Human Services, in foster care, pending appeal

(App. A).

Thereafter, Petitioners sought and obtained a

modification of the custody order from the Court of

Appeals of Tennessee pending appeal to that Court.

Under said modification, Petitioners were allowed to

retain custody of their child pending appeal.

On appeal to the Court of Appeals of Tennessee

Petitioners assigned as error the failure of the Trial

Court to give full faith and credit to the Georgia

adoption order. Also assigned as error was the Trial

Court’s treatment of an unknown putative father as

a legal father fully entitled to notice, with a right to

be heard, and as possessing a right to custody of a

child with whom he had had no contact. Petitioner’s

assigned as error the Trial Court’s -nlargement of

the scope of the habeas corpus hearing into a super-

ficial inquiry into the merits of custody. Also as-

signed as error was the failure of the Trial Court to

order an independent background investigation of

all litigants. Petitioners also assigned as error the

failure of the Trial Court to appoint a guardian ad

litem to protect the interests of the minor child in

litigation affecting his present and future custody,

property rights, and legal relationships.

Among other cases, Petitioners asserted that the

Trial Court had misapplied this Court’s rulings in

Stanley v. Illinois, 405 U.S. 645 (1972) ; Quillion v.

Walcott, 434 U.S. 246 (1978), and Caban v. Moham-

med, 441 U.S. 380 (1979).

The Court of Appeals of Tennessee on July 29,

1980, affirmed the ruling of the Trial Court (App.

B). An Application for Permission to Appeal to the

Supreme Court of Tennessee was timely filed and

was denied by that Court on October 6, 1980 (App.

C). Upon motion by Petitioners, the Court of Ap-

peals of Tennessee on October 17, 1980, granted a

stay of the enforcement of the order transferring

custody of the child to Respondent until appellate

procedures were completed, including the Petition

for Certiorari to this Court.

The child, Joseph Ryan Riggs, has lived his entire

life of twenty-three months with Petitioners as a

member of the only family he has ever known.

REASONS FOR GRANTING THE WRIT

In holding that Tennessee did not have to give full

faith and credit to the Georgia Final Order of Adop-

tion on the basis that it was violative of Tennessee’s

public policy and the Constitution of the United

States, the Court of Appeals of Tennessee decided a

Federal question in conflict both with the decision of

another state court of last resort and with applicable

decisions of this Court.

The etitioners, in complete innocence and without

any knowledge whatsoever of the birth father, duly

complied with all requirements of Georgia law and

obtained a Final Order of Adoption for their infant

son. According to Georgia law, the Georgia Court had

both subject matter and personal jurisdiction over

all necessary parties to the adoption. The adoption

decree contains a recitation of jurisdiction and other-

wise appears to be valid and regular on its face.

Subsequently, however, the Court of Appeals of

Tennessee refused to give full faith and credit to

that Final Order of Adoption, because, in its words,

“{W]e are not obliged to give full faith and credit

to any judgment of a state which we hold to be vio-

lative of Tennessee’s public policy or the Federal

Constitution.” (App., p. 8b).

A. The Conflicting Public Policy Rationale.

The very function of the Full Faith and Credit

Clause is to compel the states to give effect to the

contrary policies of other states when these have

been validly embodied in a judgment. To this extent,

this clause of the Constitution has foreclosed the

freedom of the states to apply their own local poli-

cies. The foreclosure was not intended only for slight

differences or for unimportant matters. It was also

for the most important ones, such as the establish-

ment of a family through a final order of adoption.

According to a host of decisions of this Court, it is

settled that Tennessee must give the same effect to

the Georgia Final Order of Adoption that would be

given it in Georgia. See, e.g. Magnolia Petroleum Co.

v. Hunt, 320 U.S. 480 (1943); Williams v. North

Carolina, 317 U.S. 287 (1942); and Fauntleroy v.

Lum, 210 U.S. 230 (1908).

The putative father is not deemed to be a neces-

sary party in every adoption under Georgia’s adop-

tion statutes. The record contains testimony concern-

ing the purpose and construction of the Georgia

adoption statutes as they relate to the putative fa-

ther, and such provisions were dealt with at length in

Petitioners’ brief to the Tennessee Court of Appeals.

Georgia Code Section 74-406 (1977) seeks to de-

termine whether or not the putative father has ever

lived with the child, contributed to its support, or the

support of the birth mother, or made some other

tangible expression of interest in the child, when

viewed from the perspective of the child. Based upon

the evidence before it, the Georgia Court was able to

reach a finding of fact wncontradicted by Respon-

dent that he had not established any of these essen-

tial connections with the child. The Georgia Court

was never required to reach the question of Respon-

dent’s identity and the birth mother’s withholding of

that information was irrelevant to the full imple-

mentation of the Georgia adoption statute concern-

ing notice to a putative father.

Respondent’s position before the Georgia court

was that of a bare putative father: a mere impreg-

nator, not a de facto father, and certainly not a de

jure father. As such, he was not an essential party

to the proceeding, nor was he entitled to receive no-

tice of the proceeding, and the mother’s exercise of

her privacy right (though accomplished through an

inaccurate statement) did not prevent the full im-

plementation of Georgia law. (See, App. D.)

The Tennessee Court saw fit to interpret and hold

the Georgia adoption statute to be violative of Ten-

esssee’s public policy. That court imposed what it de-

termined (contrary to Tennessee’s adoption statute)

to be Tennessee’s policy (i.e. a putative father is a

necessary and indispensible party in all adoptions)

upon Georgia’s adoption statutes. Petitioners submit

that the Full Faith and Credit Clause was intended

to preclude such results and requires that the Geor-

gia Final Order of Adoption be given the same effect

in Tennessee as it has in Georgia.

The decision of the Court of Appeals of Tennessee

is in direct conflict with the principle embodied in

the decisions in the courts of last resort of New Mev-

ico and North Carolina, and, therefore, demonstrates

a conflict in the application of the Full Faith and

Credit Clause to final orders of adoption.

In Delaney v. First National Bank, 73 N.M. 192,

386 P.2d 711 (1963), the Supreme Court of New

Mexico held that a judgment of adoption entered by

a foreign court which was not capable of entry by a

New Mexico court because it would have offended

the public policy of that State, could not be denied

full faith and credit. See also, Ex parte Osborne,

205 N.C. 716, 172 S.E. 491 (1934).

The adoption statutes of no state, including Ten-

nessee, require that a putative father be deemed an

indispensible party to all adoption proceedings in-

volving his possible biological offspring. The public

policy interpretation of the Tennessee Court has the

practical effect of rendering final orders of adoption

voidable at the option of the putative father, rather

than enforceable under the Full Faith and Credit

Clause.

As was stated by Mr. Justice Stevens in his dis-

senting opinion in Caban v. Mohammed, 441 U.S.

380 (1979), “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.” Petitioners

have one of those “millions” of decrees as they, in

reliance upon Georgia’s adoption statutes created a

family unit through the institution of adoption. Un-

less their Final Order of Adoption is entitled to full

faith and credit, they will represent the “millions”

whose adoptions are subject to being retroactively

voided at the option of a birth father who had estab-

lished no familiar relationship with his out-of-wed-

lock child. Unless the decision below is reviewed and

reversed by this Court, the institution of adoption

will be significantly damaged and the prospect of

future adoptions will vanish for untold numbers of

out-of-wedlock children.

B. The Unconstitutionality Rationale.

In ruling that a birth father who has established

no relationship with an illegitimate infant child is

entitled to notice and a right to be heard in a pro-

ceeding to adopt the child, the Tennessee Court of

Appeals has decided an important question of Fed-

eral constitutional law which has not been, but

should be, settled by this Court.

In its opinion, the Court of Appeals of Tennessee

held that “[T]he Appellee [Respondent] has estab-

lished through his sperm and through his efforts to

find his natural child such a relationship with the

child as to entitle him to due process of law in any

proceeding adverse to his parental rights.” (App., p.

16b). In so holding, the Tennessee Court accorded

due process rights to the Respondent which no court

has heretofore granted unto a putative father and

thereby afforded him a legal status which is not

justified in fact or in law. The Tennessee Court ap-

pears to have placed excessive significance on the bio-

logical relationship between the Respondent and the

child, ignoring a developing body of this Court’s

precedents.

The Tennessee Court’s conclusion that the Respon-

dent “amply meets the test of de facto fatherhood as

set out in Stanley and Quilloin” appears clearly er-

roneous. (App., p. 18b). In reaching its conclusion,

the Tennessee Court apparently equated intentions

with actions. Petitioners submit that is not enough.

It is clear from this Court’s opinion in Stanley v.

Illinois, 405 U.S. 645 (1972), that the private inter-

est that warranted. protection was “that of a man

and the children he has sired and raised.” (Empha-

ae om ao ~—

sis added.) No parallel can be drawn between Re-

spondent’s intended relationship with the child whom

Petitioners were caring for during the pendency of

the Georgia adoption proceeding and Mr. Stanley’s

relationship with his children. It was Mr. Stanley’s

developed relationship over the eighteen years dur-

ing which he exercised his rights and discharged his

responsibilities in the upbringing of his children that

entitled him to the status of a de facto father, not his

mere blood relationship.

Petitioners emphasize that the holding of this

Court in Stanley, supra, does not support the Ten-

nessee Court’s decision in this case as it does not

stand for the proposition that every putative father

is entitled to notice and a right to be heard in con-

nection with every adoption. Such a position was re-

jected by the Court of Appeals of Florida in Depart-

ment of Health and Rehab. Services v. Herzog, 317

S.2d 865 (Fla. App. 1975). That case, as this one,

involved the application of Stanley, supra, to the

adoption situation involving an illegitimate infant

child. The Florida Court held that unless the putative

father had lived with the child, contributed to its

support or given some other tangible indication of

interest in the child, he was not entitled to notice.

It was this standard which was used as a model

when the Georgia adoption statutes were revised in

1977. It was not the intention of the Georgia Legis-

lature to accord every putative father the right to

notice and a right to be heard in every adoption, but

only those whose conduct, when viewed from the

most critical perspective of the child, demonstrated

tangible interest.

—

Petitioners assert that the Tennessee Court’s de-

cision, based in part on the conclusion that the Re-

spondent achieved de facto fatherhood as defined in

Stanley, supra, is unsupportable by comparison of

the record in this case with the facts in Stanley. Fur-

ther, Petitioners submit that no case can be cited in

support of the conclusion that intentions to act can

be deemed equivalent to a demonstrated pattern of

behavior when it comes to familial relationships.

The only relationship which the Tennessee Court

of Appeals can substantiate as existing between the

Respondent and the Petitioners’ child is the blood

relationship. A blood relationship alone is NOT

“such a relationship with the child as to entitle him

to due process of law in any proceeding adverse to

his parental rights.” ( App., p. 16b). To be entitled to

such rights a de facto father must have a familial re-

lationship with the child, rather than merely a blood

relationship to the child, and the familial relation-

ship can only come into existence through physical

contact over time. Neither blood nor intentions is

enough. Without a familial relationship, there is no

requirement that a putative father be afforded no-

tice and a right to be heard in connection with the

termination of whatever rights he may have.

Petitioners note that the de facto fatherhood re-

lationship that existed in the case of Quilloin v. Wal-

cott, 434 U.S. 246 (1978), did not coincide with the

blood relationship. Instead, it was the stepfather who

had achieved de facto fatherhood, and his rights were

held te prevail over the birth father who had no re-

lationship with his child, except by blood.

In this Court’s most recent decision in this area,

Caban, supra, it was again the existence of a familial

relationship which was pivotal. In that decision, this

Court stated that in those cases where the father has

not participated “in the rearing of his child, noth-

ing in the Equal Protection Clause precludes the

State from withholding from him the privilege of

vetoing the adoption of that child.” 441 U.S. at 392.

Though Respondent has not even seen Petition-

ers’ child the Tennessee Court concluded that Re-

spondent “has come forward to participate in the

rearing of his child within the meaning of the Caban

guidelines.” (App., p. 17b). Based upon that con-

clusion, the Tennessee Court proceeded to find that

Respondent “should have been allowed the privilege

of vetoing” the adoption. (App., p. 17b.)

Although Caban, supra, did not involve an appli-

cation of the due process clause, this Court’s opinion

was clearly limited to cases “where the father has

established a substantial relationship with the child

and has admitted his paternity.” (441 U.S. at 393).

It seems clear that this Court confined its holding to

cases involving the adoption of an older child against

the wishes of a natural father who admitted paterni-

ty and previously had participated in the rearing of

the child.

The instant case deals with the adoption of an in-

fant with whom the birth father (theugh having ad-

mitted paternity )has never had any contact. The

Tennessee Court’s construction of Federal Constitu-

tional law is in conflict with the clear import of this

Court’s decisions.

Under the rationale of the court below, unless

some individual could be unequivocally established as

the birth father of every out-of-wedlock child placed

for adoption, no such child would be adoptable. Such

a result would deny millions of such children like

Joseph Ryan Riggs the right to a prompt and secure

placement in a permanent home.

Il.

In holding that the putative father is a necessary

party to an adoption proceeding involving the out-of-

wedlock child he has simply sired, by implication, the

Court of Appeals of Tennessee failed to recognize the

constitutional right of privacy of the birth mother to

refuse to disclose the identity of the putative birth

father of her infant child whom she desires to sur-

render for adoption. Through such decision, the Ten-

nessee Court has decided an important question of

Federal law which has not been, but should be, set-

tled by this Court.

In the line of cases including Roe v. Wade, 410

U.S. 152 (1973), Planned Parenthood of Central

Missouri v. Danforth, 428 U.S. 52 (1975), and Ca-

ban, supra, this Court has indicated that there is a

right to privacy possessed by a mother which at least

in some instances includes her exclusive power to de-

termine the destiny of her offspring.

As Mr. Justice Stevens noted in his dissenting

opinion in Caban, supra at 402, there are “[T]hou-

sands of children who are born out-of-wedlock every

day.” As adoption is an important solution to the

problem of illegitimacy, a great many of these illegit-

imate children have an interest in being adopted.

Since it is a biological fact that each out-of-wedlock

child must have had a birth father, it follows that

these children will be denied adoption under the

Tennessee rationale unless their birth father can be

given notice and a right to be heard at any adop-

tion proceeding. As Mr. Justice Stevens noted, “In

many cases, only the birth mother knows who sired

the child, and it will often be within her power to

withhold that fact, and even the fact of her preg-

nancy, from that person.” To compel disclosure

would offend the birth mother’s right to privacy un-

der the Constitution of the United States. Even if

the birth mother does not surrender her privacy

right by disclosing the name of the birth father of

her child in those situations where she in fact knows

it, her privacy right would be compromised through

efforts to notify the unknown birth father, for

as Mr. Justice Stevens observed in his dissenting

opinion in Caban, supra, n. 17, at 408:

[T]o be effective, any such notice would probably

have to name the mother and perhaps even identi-

fy her further, for example by address. Moreover,

the terms and placement of the notice in, for ex-

ample, a newspaper, no matter how discrete and

tastefully chosen, would inevitably be taken by the

public as an announcement of illegitimate matern-

ity. To avoid the embarrassment of such an-

nouncement, the mother might well be forced to

identify the father (or potential fathers) — de-

spite her desire to keep that fact a secret.

It is submitted that the birth mother’s right to

privacy may be exercised by her either through her

affirmative refusal to identify the birth father or, as

is probably more common, through a misstatement

that his identity is unknown to her. As an alterna-

tive to the unknown father, she might instead de-

cide to provide a fictitious name. The practical ef-

fect is the same in each situation. If the adoption

statutes look to the existence, or non-existence, of a

familial relationship between a birth father and the

child, then in those situations where such familial re-

lationship exists, notice will be afforded to the puta-

tive father and he will be accorded his due process

rights as this court has defined them in the decisions

of Stanley, Quilloin and Caban, supra. Again, it is

relationship that is worthy of protection and the

birth mother’s right to privacy does not have to be

compromised in order to ascertain whether or not

such a relationship between father and child in fact

exists. It should be demonstrated by objective evi-

dence obtainable by an examination of a child’s life.

Since it is capable of objective determination with-

out the invasion of the mother’s privacy, her right to

that privacy should be protected.

In Roe v. Norton, 422 U.S. 391 (1973), this Court

reversed and remanded for reconsideration of the

issue of the mother’s privacy right as it related to

her identification of the putative father as a condi-

tion precedent to her child’s receipt of governmental

financial assistance. In the instant case, the Ten-

nessee Court has failed to recognize the birth moth-

er’s right to privacy and has in effect required her

to yield that right as a condition precedent to the

placement of her child for adoption.

Ill.

In construing and applying retroactively Caban,

supra, to a case involving an infant with whom the

putative father had not established a relationship,

the Tennessee Court has decided an important ques-

tion of Federal law in a way which conflicts with

applicable decisions of this Court.

The Court of Appeals of Tennessee stated:

The appellants [Petitioners] contend that we can-

not apply the guidelines set out in Caban to the

case at bar because Caban cannot be retroactively

applied. We disagree. Caban does not. overrule

clear past precedent on which litigants may have

relied, nor does it decide an issue of first impres-

sion whose resolution was not clearly foreshadow-

ed. (App., p. 17b.)

Caban, supra, was decided on April 24, 1979. The

Final Order of Adoption in the instant case was en-

tered in the Superior Court of Colquitt County, Geor-

gia on April 12, 1979, twelve days before this Court’s

decision in Caban, supra. The Tennessee Court, how-

ever, specifically ruled that Caban could be retro-

actively applied, contrary to decisions of this Court.

In Chevron Oil Co. v. Huson, 404 U.S. 97 (1971),

this Court described the three factors to be consid-

ered in dealing with the issue of nonretroactivity.

Those factors are: whether a new principle of law

has been established, whether retroactive applica-

tion will further or retard the operation of the rule,

and whether the retroactive application of the rule

could produce inequitable results.

Clearly, the Caban rule was a new principle of law

and the retroactive application of the rule to the in-

stant adoption, granted before Caban, supra, will re-

sult in a grievous injustice.

In his dissent to Caban, supra, Mr. Justice Stev-

ens clearly described the damage which would result

from a retrocative application of the rule:

The adoption decrees that have been entered with-

out 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 to-

day’s decision, those reliance interests unquestion-

ably foreclose retrocative application of this ruling.

Families that include adopted children need have

no concern about the probable impact of this case

on their familial security. (441 U.S. at 415-16)

Mr. Justice Stewart in a separate dissenting opin-

ion, agreed

[T]hat retroactive application of the Court’s de-

cision today would work untold harm, and I fully

subscribe to Part III of Mr. Justice Steven’s dis-

sent. (441 U.S. at 401)

This Court expressly did not consider the difficul-

ties of applying the rule of Caban to adoptions of

newborn infants. Mr. Justice Powell said:

Because the question is not before us, we express

no view whether such difficulties would justify a

statute addressed particularly to newborn adop-

tions, setting forth more stringent requirements

concerning the acknowledgment of paternity or a

stricter definition of abandonment. (441 U.S. at

392, n.11)

In addition, Mr. Justice Stevens described the ef-

fect of the Caban decision upon future adoptions:

The procedure to be followed in cases involving in-

fants who are in the custody of their mothers —

whether solely or jointly with the father — or of

agencies with authority to consent to adoption, in

entirely unaffected by the Court’s holding or by

its reasoning. In fact, as I read the Court’s opin-

ion, the statutes now in effect may be enforced as

usual unless “the adoption of older children is

sought,” ..., and: the father has established a

substantial relationship with the child and [is will-

ing to admit] his paternity.” (441 U.S. at 416)

The Tennessee Court, however, ruled that Re-

spondent “has come forward to participate in the

rearing of his child within the meaning of the Caban

guidelines. This means that in the Georgia Court he

should have been allowed the privilege of vetoing his

child’s adoption.” (App., p. 17b).

Thus, the Tennessee Court has specifically applied

retroactively the Caban guidelines to the adoption of

an infant and, consequently, has decided an impor-

tant Federal question in a way which conflicts with,

and surpasses, the decisions of this Court.

IV.

In removing Petitioners’ adopted child from their

family without first finding them to be unfit par-

ents, the Tennessee Courts denied Petitioners their

constitutionally protected liberty rights; and there-

by decided an important Federal question which has

not been, but should be, addressed by this Court.

Petitioners assert that they are both the de jure

and de facto parents of their minor child and as such

possess a constitutionally protected liberty interest

in the integrity of their family unit. Cleveland Board

of Education v. La Fleur, 414 U.S. 632 (1974).

In reliance upon a surrender of parental rights

executed by the birth mother of her illegitimate

child, Petitioners proceeded within the bounds of

Georgia law and the Constitution of the United

States to become the legal parents of that child by

adoption. As this Court expressly recognized in

Smith v. Organization of Foster Families for Equal-

ity and Reform, 431 U.S. 816 (1977) at 844, adop-

tion is a prime example of a constitutionally pro-

tected “deeply loving and interdependent relation-

ship between an adult and a child in his or her care

[which] may exist even in the absence of blood rela-

tionship.” Petitioners took this child into their home

three days after his birth, continued to provide for

his care and nurture after the decree of adoption,

and were secure in their family life until the ruling

of the Trial Court on the putative father’s habeas

corpus petition.

In Smith, supra, this Court recognized two dis-

tinctions between the biological or “natural” family

and a foster family which, in turn, justify differ-

ential regard toward the assertion of any liberty in-

terest in the family relationship under the Constitu-

tion of the United States.

First, unlike foster parents whose relationship

is limited at the outset by the terms of a boarding

contract with the state, Petitioners as adoptive par-

ents had justifiable and constitutionally protected

expectations in the continuation of their adoptive

family status free from subsequent interference by

any state except those relating to a charge of their

unfitness as parents for the trust of custody. The

origins of the relationship between Petitioners and

their child lie in an independent (privately ar-

ranged) adoption involving a voluntary and total

release to them of all parental rights possessed by

the mother in her illegitimate infant child. Such in-

dependent adoptions are legally sanctioned in the

overwhelming majority of states including Georgia.

The Final Order of Adoption entered by the Georgia

Court confirmed that there were no outstanding

legal rights without limftation in degree or duration

upon Petitioners as adoptive parents.

Second, according full recognition of the liberty

interests of these adoptive parents does not derogate

from the substantive liberty rights of others, 7.e., the

birth mother or the putative father. All rights of the

birth mother were surrendered to and are possessed

by the Petitioners, a conclusion which was confirmed

by the Georgia Final Order of Adoption and which

is apparently conceded by the Respondent. Although

Petitioners are not insensitive to the plight of the

putative father in this case, they in no way either

created or knowingly contributed to his inability to

establish a relationship with this child. The “rights”

of this putative father in this infant child were at

best inchoate claims at all times prior to the entry of

the Final Order of Adoption. The Georgia Court con-

sidered and properly discounted any cognizable par-

ental rights of an unknown putative father in this

child. Its decree severed any inchoate claims of the

putative father and should have precluded any sub-

sequent assertion of “rights” by him in Georgia or in

any other sister state.

Both the Tennessee Courts not only refused to

honor the fundamental rights and justifiable expec-

tations of Petitioners arising from the Georgia Final

Order of Adoption, but also proceeded to deny them

procedural due process and equal protection of the

laws in the custody hearing. In so doing the Tennes-

see Courts decided a Federal question in conflict with

applicable decisions of this Court.

Despite Petitioners’ strenuous objections the Trial

Court reversed the legal presumptions demanded by

these facts and awarded custody to the putative fa-

ther based upon little more than his naked assertion

of a preferred status as their child’s birth father.

Perhaps the pivotal issue in this case is a determ-

ination of who are the “parents” of this child? Ac-

cording to the Parental Rights Doctrine, the tradi-

tional rule of law in American jurisdictions, the “‘le-

gal” parents of a child are entitled to his custody un-

less they have forfeited their rights or are expressly

found to be unfit. Although Tennessee has apparent-

ly never addressed the applicability of the Doctrine

in parent-third party custody disputes, Georgia law

clearly would accord that presumption to a child’s

legal parents by adoption. Georgia Code Section 74-

108; Perkins v. Courson, 219 Ga. 611, 135 S.E.2d

388 (1964).

More importantly, Petitioners as adoptive parents

assert a claim as a “natural family” within the pro-

tection extended by this Court in the course of its

opinion in Quilloin, supra at 255:

We have little doubt that the Due Process Clause

would be offended [i]f a State were to attempt to

force the breakup of a natural family, over the ob-

jections of the parents and their children, without

some showing of unfitness and for the sole reason

that to do so was thought to be in the children’s

best interest. Smith v. Organization of Foster

Families for Equality and Reform, 431 U.S. 816,

97 S.Ct. 2094, 2119, 53 L.Ed.2d 14 (1977) (Stew-

art, J. concurring).

In its opinion the Court of Appeals of Tennessee

held that “This state has a strong interest in sus-

taining the father-child relationship and protecting

the family unit.” (App., p. 18b). As applied to the

instant case, such a policy is cruelly ironic: the in-

choate putative father-child relationship never rip-

ened into anything other than biological fact while

the family unit which flowered into a legal and an

actual relationship of daily intimacy is being de-

stroyed by the application of the announced policy.

Petitioners assert that the underlying policy upon

which the Court of Appeals of Tennessee based its

decision can be stated simply as “bloodlines are

best.” Regardless of the innocence and good faith of

the adoptive parents, the interests of the child in

stability and permanence of relationship, and the

existence of a Final Order of Adoption, it is now the

policy of the State of Tennessee to unite blood rela-

tives rather than to protect legally created family re-

lationships. Such a policy is repugnant to the main-

tenance of the institution of adoption in this country

and is unsupportable in light of modern social sci-

ence research and the protection accorded by this

Court to the “intimacy of daily association” in its

decisions in Smith, supra, and Quilloin, supra.

Even as the Tennessee Trial Court purported to

base its award of custody of this child to its putative

father on a “best interests of the child” standard, it

refused to conduct a full inquiry concerning the

merits of the competing claims to custody. When it

became clear to Petitioners that the Tennessee Trial

Court was predisposed to consider the putative fa-

ther’s claims to custody on the merits, they sought an

objective evaluation of his present fitness and pres-

ent ability to care for the child and voluntarily sub-

mitted themselves to a similar assessment. Never-

theless, the Trial Court ruled in favor of the putative

father’s demand for custody without permitting any

further evidence. The order appealed from is in di-

rect contravention of the limited and carefully con-

structed prior decisions of this Court.

In Rothstein v. Lutheran Social Services, 405 U.S.

1051 (1972), Stanley, supra, and Quilloin, supra,

this Court has clearly distinguished between the pro-

cedural due process rights of a putative father and

any claim which he may have to the child’s actual

possession and control. In effect, the Trial Court’s

conclusion that the putative father was entitled to

notice and an opportunity to be heard was converted

into the entry of summary judgment in his favor.

At a minimum, this Court should intervene to re-

strain the Tennessee Courts from ordering the sum-

mary release of this young child to one who is but a

stranger to him and whose present ability to provide

for his needs is as yet unexplored. This Court so in-

tervened in Rothstein, supra, and charged in its re-

mand that the trial court give “further consideration

in light of Stanley ... with due consideration for the

completion of the adoption proceeding and the fact

that the child has apparently lived with the adoptive

family for the intervening period of time.”

VI.

By refusing to appoint a guardian ad litem for the

infant child and to permit a full exploration of the

issue of his custody, the Tennessee Courts denied the

adoptive child his due process rights under the

Constitution of the United States and thereby de-

cided an important question of Federal law which

has not been, but should be, settled by this Court.

As this Court recognized in dictum in its decision

in Wisconsin v. Yoder, 406 U.S. 205 (1972), a minor

child may have interests and rights under the con-

stitution which cannot be fully protected in litiga-

tion involving his welfare and best interests by

means of derivative representation by named adult

parties.

A child’s assertion of a constitutional claim to pro-

tection against the grievous loss of home and family

in the context of a civil custody case has never been

squarely presented to this Court. Cf. In re Gault,

387 U.S. 1 (1967) and J. L. and J. R. v. Parham,

442 U.S. 584 (1979).

However, in Rothstein, supra, this Court inter-

vened to remand the case to the trial court for a con-

sideration of the child’s fundamental rights in a

custody dispute between his adoptive parents and his

putative father.

Furthermore, in Smith, supra, n. 44, at 841, this

Court indicated the proper process necessary to in-

sure a full development of any independent funda-

mental rights to the integrity of his family unit

which a minor child may possess:

[C]hildren usually lack the capacity to make that

sort of decision [involving the assertion of their

constitutional rights], and thus their interest is

ordinarily represented in litigation by parents or

guardians. In this case, however, the State, the

natural parents, and the foster parents, all of

whom share some portion of the responsibility for

guardianship of the child . . . are parties, and all

contend that the position they advocate is most in

accord with the rights and interests of the chil-

dren. In this situation, the District Court properly

appointed independent counsel to represent the

children, so that the court could have the benefit

of an independent advocate for the welfare of the

children, unprejudiced by the possibly conflicting

interests and desires of the other parties.

Although the Tennessee Trial Court had pending

before it a motion that a guardian ad litem be ap-

pointed to represent the interests of this minor child,

it awarded custody of the child to the putative fa-

ther without taking any action to appoint or to seek

the advice of an independent advocate for the child.

It is theoretically impossible for any child to ever

claim the ear of a trial court in matters so funda-

mentally affecting his life, liberty, and property un-

less his interests can be protected and presented by a

guardian ad litem. On this narrow issue alone is this

Court justified in intervening to reverse the decision

below. Having attempted and failed to secure rep-

resentation for their child in the proceedings below,

Petitioners assert the independent due process rights

of their child because he has no other advocate.

CONCLUSION

The decision of the Court of Appeals of Tennessee

in the instant case is in conflict with decisions of this

Court and a threat to the institution of adoption.

This case presents the opportunity for this Court to

consider and settle issues of monumental concern to

the institution of adoption in this country, which is-

sues have been precipitated by this Court’s decisions,

and particularily those in Stanley v. Illinois, Quilloin

v. Walcott, and Caban v. Mohammed.

For the reasons stated Petitioners respectfully

and earnestly pray that their Petition for Certiorari

be granted.

JAMES B. OUTMAN

Counsel of Record

P. O. Box 105041

Atlanta, Georgia 30348

(404) 491-6543

JAMES D. TODD

Waldrop, Hall, Tomlin & Farmer

106 South Liberty Street

Jackson, Tennessee 38301

(901) 424-6211

Lucy S. McGouGH

Emory University School of Law

Atlanta, Georgia 30322

(404) 329-6498

Attorneys for Petitioners

APPENDIX A

IN THE CHANCERY COURT OF MADISON

COUNTY, TENNESSEE

IN RE: q

JOSEPH RYAN RIGGS,

A Minor,

ROBERT TERRAZAS

RULE DOCKET

VS. ) NO. 31079

TOMMY JOE RIGGS

and

ANN MARIE RIGGS

OPINION

The application of Plaintiff, Robert Terrazas, for

a writ of habeas corpus and custody of his son,

Joseph Robert Terrazas, came regularly on for hear-

ing on August 7, 1979, before this Court. Plaintiff

appeared in person and by his counsel; defendants

appeared in person and by their counsel. Upon re-

view of the file, testimony of witnesses and argu-

ments of counsel, and for good cause shown, the

Court finds:

1. Plaintiff, Robert Terrazas, is the natural fa-

ther of the infant male born to Roneva Anderson on

January 29, 1979, in Reno, Nevada, while she was

using the assumed name of Jessica Stewart.

2. Joseph Ryan Stewart (Exhibit 2), Joseph

Ryan Riggs (Exhibit D-1), and Joseph Robert Ter-

razas (Exhibit 3) are, in fact, one person; that

Joseph is the natural son of Robert Terrazas and

Roneva Anderson, and that he is the child whose

custody is at issue.

3. Plaintiff, Robert Terrazas and Roneva An-

derson began dating and entered into a serious re-

lationship in the fall of 1977. Both were students at

Santa Clara University; he was in his final year of

law school and she was in her second year of college.

During this time they looked at their relationship

with an eye toward marriage and had announced

such intentions to their friends and families. In

May of 1978, Miss Anderson became pregnant. They

discussed different aspects of the pregnancy with

each other. Initially, they planned to accelerate their

marriage plans. Anderson soon thereafter decided

that marriage was apparently not a viable option

for her and thus rejected this alternative. She al-

luded to the idea of giving up the child for adoption.

Plaintiff told her that the child should not be given

up for adoption but instead that it would be best if

he took care and custody of his child.

When it appeared that plaintiff would not con-

sent to the adoption of the child, Miss Anderson

cut off communication with plaintiff. Without the

plaintiff’s knowledge, she moved to three different

cities in three states (Modesto, California; Reno,

Nevada; Portland, Oregon) in order to keep plain-

tiff from finding her and from finding the child.

When it became clear to plaintiff that he was no

longer loved by Miss Anderson, that marriage was

out of the question, and that she would not com-

municate with him, he concentrated on preserving

and asserting his rights as the father of his child.

He retained counsel two months prior to the birth

of his child. On November 28, 1978, he filed a pe-

tition in the Superior Court of the county of the

mother’s residence to establish the existence of a

parent-child relationship with his yet unborn child.

The efforts for service upon the mother required

traveling several hundred miles throughout Cali-

fornia. Plaintiff wrote and talked with the head-

quarters for State adoption bureaus in California,

Arizona, Colorado, Nevada, and Oregon and in-

formed them of his effort to find and have custody

of his child. He also contacted by letter seventy-nine

public and private agencies within California and

informed them of his efforts. In early January,

1979, he traveled many miles from his home to Mo-

desto, California to contact Father William Ryan

who knew of the mother’s whereabouts and who, it

turned out, was the intermediary arranging for the

placement of Joseph. Father Ryan, who was plain-

tiff’s only hope and link of finding the mother at

this crucial time, was evasive and would not reveal

her whereabouts.

While plaintiff was making his efforts, Miss An-

derson also contacted Father William Joseph Ryan

in Modesto, California Father Ryan introduced the

mother to Sister Julianna of the Dominican Order at

St. Mary’s Convent and Hospital in Reno, Nevada.

Arrangements were made in December, 1978, for

Miss Anderson to live in Reno at St. Mary’s where

Joseph was born. Father Ryan also contacted the

defendants, Tommy Joe and Ann Marie Riggs in

Moultrie, Georgia, in December, 1978, about adopt-

ing the child to be born to Miss Anderson. The Riggs

had never applied to any private or public agency to

adopt a child and were and are capable of having

their own children.

On December 18, 1978, the defendants, Riggs,

made payable to Father William Ryan a two thou-

sand dollar check to cover the laying and delivery

expenses of Miss Anderson and the baby. Father

Ryan and Sister Julianna are friends of Mr. and

Mrs. Riggs.

Also at this time Miss Anderson procured from

the California and Nevada Departments of Motor

Vehicles identification as Jessica Stewart. Later

when Joseph was born, the mother signed as Jessica

Stewart a release, a surrender, and an affidavit

denying any knowledge of the name and where-

abouts of Joseph’s biological father; when, in fact,

she knew the father was the plaintiff and knew his

address. A birth certificate for Joseph was also

signed by Jessica Stewart on January 31, 1979,

without naming a father for Joseph. The mother left

Joseph with Sister Julianna in Reno and returned

to her home in Calaveras County, California, where

she was served with the California lawsuit on Feb-

ruary 25, 1979. Sister Julianna then delivered Jo-

seph to the Riggs in Moultrie, Georgia.

On February 12, 1979, defendants moved to adopt

Joseph in Colquitt County, Georgia, whereupon the

false affidavits of Jessica Stewart/Roneva Ander-

son were attached as necessary exhibits for use in

determining plaintiff’s rights to notice of the Geor-

gia proceedings.

On March 1, 1979, a hearing was held in Colquitt

County, Georgia, whereby defendants moved to cut

off the rights of the putative father. Based upon

oral testimony and the proof, this Court finds that

no attempt was ever made to give plaintiff, Robert

Terrazas, notice that his parental rights were being

determined in a court of law.

This finding is supported by evidence that neither

the Georgia Department of Human Resources nor

anyone else made any attempt to verify the natural

father’s identity or whereabouts. Either a simple in-

vestigation by an agency in one of Georgia’s sister

states or a couple of phone calls could have prevented

ignoring plaintiff’s fundamental rights and jeopard-

izing the emotional well-being of many people.

Soon after initiating these proceedings, Mr. Riggs

accepted new employment in Tennessee. Defendants

began exploring housing opportunities and signed an

agreement to purchase a house in Jackson, said

agreement being dated March 17, 1979. Thereafter,

defendants left Moultrie, Georgia, on April 13, 1979,

the day after the Georgia proceedings concluded.

Miss Anderson was served with plairtiff’s Cali-

fornia complaint on February 25, 1979, even though

it was clear that plaintiff would pursue his legal

rights to Joseph, the mother continued to make mis-

representations about the plaintiff and about Jo-

seph’s birth. On March 2, 1979, Anderson /Stewart

talked with the Georgia Department of Human Re-

sources and denied once again, any knowledge about

the plaintiff, Joseph’s father. On March 22, 1979,

Miss Anderson also filed a declaration in Calaveras

EER ee oe a NT ae LT

County falsely swearing that she had never given

birth to a child, nor had she ever placed a child out

for adoption. Not until April 30, 1979, the hearing

date for plaintiff’s California cause of action, did

plaintiff obtain any knowledge about his son’s birth

and probable whereabouts.

Plaintiff then contacted the Nevada Department

of Human Resources, Section of Vital Statistics, and

amended Joseph’s original birth certificate to in-

clude the true names of Joseph’s mother and father.

This Court finds that there is only one birth cer-

tificate for Joseph: The original certificate reading

Joseph Ryan Stewart has been sealed by plaintiff

and amended by plaintiff to read JOSEPH ROB-

ERT TERRAZAS.

Thereafter, plaintiff traveled to Georgia to assert

and defend his rights as the father of his child and

to object to any proposed adoption. Plaintiff discov-

ered Joseph and defendants were, in fact, no longer

in Georgia, the defendants having already moved to

Jackson, Tennessee. Plaintiff then traveled to this

State and again asserted his rights as the natural

father of his son and objected to any custody priv-

ileges over Joseph that defendants have asserted.

4. The Court finds on the testimony before it that

defendants were told by Father Ryan in April, 1979,

that the putative father was looking for Joseph. Act-

ing on this information defendants contacted legal

counsel in Stockton, California, in April, 1979, to

inquire into the California proceedings regarding

plaintiff’s attempts to find Joseph.

5. The Court finds that fraud pervaded the Geor-

gia decision to grant defendants custody of Joseph

and that fraud prevented plaintiff from getting no-

tice of the Georgia proceedings. It also prevented

plaintiff from asserting and defending his rights as

Joseph’s natural father. This conclusion is supported

by the findings of the California Court, the false af-

fidavits relied upon by the Georgia Court, and the

abundant proof that plaintiff was earnestly and as-

siduously searching for his son throughout four ju-

risdictions. Plaintiff’s efforts are also supported by

the finding of this Court that he has incurred ex-

penses well in excess of $12,000.00 and has retained

a battery of lawyers in four different states.

6. This Court finds that the Georgia Court lacked

jurisdiction over plaintiff. The natural father’s

rights were never lawfully terminated and he never

voluntarily surrendered, abandoned, or relinquished

his parental rights to Joseph.

7. Plaintiff was prevented from participating in

the Georgia proceedings by not being given notice of

them. As the natural father of Joseph, plaintiff was

denied a hearing on his fitness for the custody of his

son. For the reasons set out in the findings herein-

before the Court does not give full faith and credit

to the Georgia decree.

8. The Court finds that plaintiff and defendants

are each sincere and well intentioned in their con-

duct and that each wants what is best for Joseph.

The Court finds both sides to be fit people for cus-

tody of a child.

9. This Court finds plaintiff to be a fit, qualified,

and suitable person to assume custody of his son.

10. This Court finds no competent evidence of un-

fitness, incompetence, surrender, or abandonment on

the natural father’s part.

11. The Court has weighed the evidence produced

at trial, the exhibits admitted into evidence, and the

arguments of counsel and, based upon such proof, the

Court finds that it is in Joseph’s best interest to be

in the care and custody of his natural father, Robert

Terrazas. It is clear to the Court that the father,

plaintiff, has continually and consistently sought

custody of Joseph and has been anxiously willing,

able, and ready to assume the full responsibility of

parenting his son. At the same time, the mother

and her consorters were striving to put the child out

of plaintiff’s reach by making false and misleading

statements in two different legal actions and by pur-

posefully circumventing plaintiff's fundamental

rights as a father.

12. The Court finds that the plaintiff is ready to

assume full parental responsibilities. This conclu-

sion is supported by the proof before the Court. The

father has the personal ability to fulfill a child’s

need for support, affection, stimulation, guidance,

and restraint. He has sought professional direction

and has become involved with a Catholic nun who is

connected with a home for unwed mothers and has

experience in counselling unmarried parents. He

traveled over ninety miles a week since January to

seek her advice and instruction. He has been instruc-

ted and informed on the physical care of infants. He

would make a good father and a fine role model. This

is supported further by overwhelming proof showing

a father desperately reaching out to keep his child.

Even before Joseph’s birth the father was making

living arrangements, finding professional employ-

ment, obtaining legal counsel, and preserving his

parental rights to Joseph. He has crossed a continent

searching for his son who was placed in the hands of

strangers by intermediaries the father does not

know. This father clearly wants to assume and en-

joy the responsibilities and obligations of father-

hood. In addition, plaintiff is a law school graduate

preparing to take a bar exam and enter employment

in the legal profession. He also has the support of

his family to help support Joseph as is evidenced by

their relative affluence and their financial contribu-

tion to the burden of this lawsuit.

Upon a consideration of the facts of this case, to-

gether with the applicable law, it is the finding of

the Court that plaintiff be awarded custody of his

minor son, Joseph.

Pending further hearings and appeals in this mat-

ter, this Court (very sadly and reluctantly) orders

that the minor child be placed in the protective cus-

tody of the Tennessee Department of Human Ser-

vices.

Counsel will prepare a decree accordingly.

JOE C. MORRIS, CHANCELLOR

TO THE CLERK AND MASTER:

File this Opinion as part of

the Technical Record in this

cause but same need not be

copied on the minutes of the

Court. This September 21, 1979.

10a

IN THE CHANCERY COURT OF MADISON

COUNTY, TENNESSEE

IN RE:

JOSEPH RYAN RIGGS,

A Minor,

ROBERT TERRAZAS RULE DOCKET

VS. f NO. 31079

TOMMY JOE RIGGS

and

ANN MARIE RIGGS

ORDER MAKING ADDITIONAL FINDING

OF FACT

This cause came on to be heard on the 27th day

of September, 1979, upon the motion of defendants

for additional findings of fact, upon the statements

of counsel, and upon the entire record in this cause.

From all which, it appears to the Court that said

motion is well taken and that the Court’s previous

opinion should be amended to include the following

finding of fact: defendants had custody of the minor

child Joseph Ryan Riggs pursuant to and by virtue

of a final order of adoption entered in the Superior

lla

Court of Colquitt County, Georgia, on April 12,

1979.

All of which is so ordered and adjudged.

ENTERED: This the 27th day of September,

1979.

Honorable Joe C. Morris,

Chancellor

Approved For Entry:

Edwin M. Saginar and

George L. Morrison

By /s/ EDWIN M. SAGINAR

Attorneys for Petitioner

Waldrop, Hall, Tomlin & Farmer

By /s/ JAMES D. Topp

Attorneys for Respondents

APPENDIX B

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT JACKSON

IN RE: )

JOSEPH RYAN RIGGS, paces

seen CHANCERY COURT

ROBERT TERRAZAS OF MADISON

Petitioner-A ppellee COUNTY AT

JACKSON

VS.

HONORABLE

pea a JOE RIGGS JOE C. MORRIS

ANN MARIE RIGGS CHANCELLOR

Defendants-A ppellants }

FOR PETITIONER-APPELLEE

George L. Morrison of Jackson

Edwin M. Saginar of Atlanta,

Georgia

Nordin F. Blacker of San Jose,

California

FOR DEFENDAN TS-APPELLANTS

James D. Todd of Jackson

James B. Outman of Tucker,

Georgia OPINION FILED: JULY 29, 1980

AFFIRMED

MATHERNE, J.

EWELL, J.

SUMMERS, J.

This suit was commenced in the Chancery Court

of Madison County on July 26, 1977, by Robert

Terrazas, the petitioner-appellee. On that date, the

appellee filed a petition seeking a writ of ne exeat

and a petition for writ of habeas corpus against

Tommy Joe Riggs and Ann Marie Riggs, the de-

fendants-appellants. Terrazas alleged that he was

the natural father of an infant boy, Joseph Ryan

Riggs, who had been adopted by the appellants in

Georgia. Terrazas further alleged that the appel-

lants were unlawfully detaining the minor child and

that he was entitled to the possession and custody

of the minor child.

Terrazas prayed that the writ of ne exeat be is-

sued to keep the appellants from leaving this juris-

diction until the matter was settled. Terrazas prayed

in the writ of habeas corpus that the court grant the

custody of the child to him. Both writs were issued

the day they were sought.

A hearing was held before the chancellor on Au-

gust 7, 8, and 9, 1979. His opinion was released on

September 21, 1979, finding that Terrazas should be

awarded custody of the minor child and that pending

further hearings and appeals, the minor child should

be placed in the protective custody of the Tennessee

Department of Human Services.

The appellants perfected an appeal to this court,

which in turn entered a stay order which provided

that the minor child remain with the appellants

pending the appeal to this court on its merits.

The appellants have presented seven issues for re-

view by this court:

1. Did the Trial Court err in failing to give full

faith and credit to the Georgia adoption order?

2. Did the Trial Court err in affording Plaintiff

a legal status which was not justified in fact or in

law?

3. Did the Trial Court err in conducting a hear-

ing on extraneous matters when the only issue be-

fore the Court was the habeas corpus question of

the legality of the Defendant’s holding of the

child?

4. Did the Trial Court err in rendering an opin-

ion without affording Defendants an opportunity

to file an answer?

5. Did the Trial Court err in rendering an opin-

ion and judgment while Defendants had motions

pending which had not been acted upon by the

Court?

6. Did the Trial Court err in admitting into evi-

dence certain depositions taken by Plaintiff with-

out Defendants having been given adequate notice

of the taking of said depositions?

7. Will the ruling of the Trial Court destroy the

institution of adoption?

In the fall of 1977, while he was in his final year

of law school at Santa Clara University, Terrazas

began dating Roneva Anderson, also a student at

Santa Clara University, and they contemplated mar-

riage. In May, 1978, Miss Anderson became preg-

nant and considered surrendering the child for

adoption. However, Terrazas made it known to Miss

Anderson on several occasions that he was desirous

of taking the child and raising it.

In the fall of 1978, Terrazas was unable to de-

termine the whereabouts of Miss Anderson. After it

became clear to Terrazas that Miss Anderson did not

want to marry him, he retained legal counsel. On

November 29, 1978, he filed a petition under the Uni-

form Parentage Act of California seeking to estab-

lish a parent-child relationship with his unborn

child. Numerous efforts were made to serve the

mother with legal process in California. She was

finally located and served on February 25, 1979.

Unbeknownst to Terrazas, a petition for adoption

had already been filed in Georgia by Mr. and Mrs.

Riggs. Also during this time, Terrazas contacted

several adoption agencies in an attempt to prevent

the feared adoption of his child.

After breaking off her relationship with Terrazas,

Miss Anderson counseled with Father Joseph Ryan,

a Catholic priest, who introduced her to a Sister

Julianna, resident of a Catholic convent in Reno,

Nevada. Arrangements were made for Miss Ander-

son to live in Reno at the convent until her baby was

born.

In December, 1978, Father Ryan telephoned Mr.

and Mrs. Riggs in Georgia about the possibility of

adopting the child who was soon to be born to Miss

Anderson. On December 18, 1978, Mr. and Mrs.

Riggs sent a check to Father Ryan for $2,000.00 to

cover the perinatal expenses incurred by Miss An-

derson. Later Mr. and Mrs. Riggs also paid the

plane fare for Sister Julianna to transport the baby

from Reno, N evada, to Georgia.

Early in January, 1979, Terrazas contacted Fa-

ther Ryan, who refused to reveal Miss Anderson’s

whereabouts although he was at the time arranging

for the adoption of the unborn child. In fact, he told

Terrazas he knew nothing about the matter.

Miss Anderson’s baby was born on January 29,

1979. Masquerading as Jessica Stewart, she signed

a release, surrender and affidavit denying any

knowledge of the name and whereabouts of the

child’s biological father. As Jessica Stewart she also

signed the child’s birth certificate. Three days after

the child was born, he was delivered to Mr. and Mrs.

Riggs in Georgia by Sister Julianna.

On February 7, 1979, Mr. and Mrs. Riggs filed a

petition for adoption in the Superior Court of Col-

quitt County, Georgia. The false affidavits of Miss

Anderson, using the assumed name of Jessica Stew-

art, were attached to the petition. On March 1, 1979,

a hearing was held in the Georgia court, and the na-

tural father’s rights to the child were terminated.

The only evidence before the court on that date as to

the father’s identity was the false affidavit of the

mother. The evidence showed that there was no at-

tempt to verify the identity of the natural father.

The Department of Human Resources of Georgia

only contact with the mother, by telephone, where-

upon the mother informed the social worker that she

did not know the identity of the father.

Very soon after the parental rights of Terrazas

were terminated in Georgia, Mr. Riggs found em-

ployment in Tennessee, and on March 17, 1979,

signed an agreement to purchase a house in Jack-

son, Tennessee. The final hearing on the adoption

was held in Georgia on April 12, 1979, and on the

next day the appellants moved from Georgia to

Tennessee.

After Miss Anderson was served with the Cali-

fornia suit instigated by Terrazas, she denied having

a baby, and a continuance was sought by her at-

torney for a medical examination. When the matter

was finally heard in the California court on April

30, 1979, Terrazas was found to be the father of the

minor child. As a result of this finding, the Cali-

fornia court issued a restraining order against any

placement of the child for adoption. It was at that

hearing that Terrazas was informed that Miss An-

derson had given birth to his son in Nevada, listing

her name as Jessica Stewart, and that the child had

been adopted by Mr. and Mrs. Riggs in Georgia.

Terrazas then had the minor child’s birth certificate

changed in Nevada to reflect the name of Joseph

Robert Terrazas.

Terrazas then retained counsel in Georgia and

filed an action to determine whether an adoption

had taken place. The action was initially begun in

Atlanta, and upon Terrazas’ learning that the adop-

tion proceedings had occurred in Colquitt County,

Georgia, proceedings were commenced there. After

proceedings were commenced in Colquitt County, it

(0)

was learned that Mr. and Mrs. Riggs had m:«. ‘ed to

Madison Cotinty, Tennessee.

In April of 1979, Mr. and Mrs. Riggs learned of

the California suit which had been instituted by Ter-

razas. Mr. and Mrs. Riggs took no action in this mat-

ter until they were served with the papers in this

suit, which was commenced in Madison County, Ten-

nessee.

The appellants rely heavily on the Tennessee Su-

preme Court case of Abernathy v. Chambers, 482

S.W. 2d 129 (1972), as authority for the principle

that the full faith and credit clause requires the Ten-

nessee courts to accord res judicata effect to a final

decree rendered by another state. We find, however,

that in the Abernathy case the Tennessee Supreme

Court first looked to the issue of whether the foreign

(Mississippi) state court had jurisdiction. Before af-

fording the foreign sister state judgment full faith

and credit, the Tennessee Supreme Court determined

that all essential parties to the Mississippi proceed-

ing were, in fact, before the Mississippi court. Aber-

nathy held that the Tennessee court was at liberty to

see if questions of jurisdiction had been fully and

fairly litigated, and finally decided, in the court

which rendered the original judgment.

In a 1942 case, McAlhany v. Allen, 23 S.E. 2d 676,

680 (1942), the Georgia Supreme Court refused to

recognize a Tennessee adoption after finding a fatal

infirmity in the Tennessee proceedings. In McAI-

hany, the Georgia court said:

[T]he Full Faith and Credit Clause of the Federal

Constitution would not require that such decree of

adoption be given effect in this state as against the

father, where he was not made a party in the

adoption case, and was not served, and did not

appear and plead, or otherwise waive service, or

consent to such adoption....

We are not persuaded that Tennessee has no choice

but to give full faith and credit to the order in Geor-

gia granting adoption unless this court can find that

the Georgia judgment was vitiated by a manifest

fraud. We agree with the appellants that a final

judgment in a sister state is ordinarily conclusive

upon the merits in every other state, and we applaud

the principal of comity; however, we are not obliged

to give full faith and credit to any judgment of a

state which we hold to be violative of Tennessee’s

public policy or the Federal Constitution. Hanson v.

Denckla, 357 U.S. 235 (1958), reh. denied 358 U.S.

858 (1958). We look here to see if there were such

failures of jurisdiction and/or due process of laws

in Georgia as to bring us within the rule enunciated

by the United States Supreme Court in the landmark

case of Williams v. State of North Carolina, 325 U.S.

226 (1945), or Hanson, supra. These are threshold

questions. We, therefore, do not need to look into the

issue of whether such fraud was perpetrated by the

mother on the Georgia court as to vitiate the Georgia

judgment.

In Williams v. State of North Carolina, supra, the

United States Supreme Court stated:

It is one thing to reopen an issue that has been

settled after appropriate opportunity to present

their contentions has been afforded to all who had

an interest in its adjudication. This applies also to

jurisdictional questions. After a contest these can-

not be relitigated as between the parties. . . But

those not parties to a litigation ought not to be

foreclosed by the interested actions of others, es-

pecially not a State which is concerned with the

vindication of its own social policy and has no

means, certainly no effective means, to protect

that interest against selfish action of those outside

its borders. ...

Williams v. State of North Carolina held that a judg-

ment rendered by a court in one state can be made a

judgment in another state only if the court render-

ing the original judgment had jurisdiction to render

it, and that a state decree of divorce may be collater-

ally impeached in another state for want of jurisdic-

tion even though the record purports to show juris-

diction.

In the instant case the appellee did not have notice

of the Georgia proceedings of adoption and was not

before that court. The mother of the child, Roneva

Anderson, evidently did everything she could to keep

the appellee from his child and to deny him an oppor-

tunity to be heard in Georgia. She was aided and

abetted in this by Father Ryan, a friend of the appel-

lants who had the child delivered to them for adop-

tion.

In litigation between parties over private rights,

it is well-settled that due process of laws requires

that both notice and an opportunity to be heard be

given to necessary parties as to the essentials of a

10b

judicial proceeding. Notice and opportunity to be

heard are the minimal requirements of due process.

Mar), W. Graves et al v. David A. Witherspoon, 379

F. Sv. p. 52 (EK. D. Tenn., 1974); see also In Re

Adoption of Malpica-Orsini, 331 N.E. 2d 486 (N.Y.

(1975).

Let us assume, arguendo, that the appellee Ter-

razas had been married to the birth mother. If so,

for this court to give full faith and credit to the

Georgia adoption decree, rendered without the Geor-

gia court’s having in personam jurisdiction over Mr.

Terrazas, would unquestionably deprive the married

father of due process of laws. Before the Georgia

court could condemn a married father to losing his

child, that court must afford him an opportunity to

contest the propriety of the legal action taken

against him. Such is the Constitutional guaranty ap-

plied to the states by the Fourteenth Amendment.

But the appellee Terrazas was not married to the

birth mother, Roneva Anderson. The appellants call

Mr. Terrazas the mere “sperm impregnator” of the

birth mother. The record convinces this court that

the appellee was, at the very least, the natural father

of the baby whose custody is in question here.

The issue becomes, then, whether the appellee, the

natural father, had established such a relationship

with his natural minor child as to entitle him to due

process of laws — specifically, notice and an oppor-

tunity to be heard — before his parental rights, if

any, could be terminated by any court. If we find

that the appellee had achieved a status entitling him

to due process of laws in the Georgia adoption pro-

ceeding, then we cannot give full faith and credit

11lb

to the Georgia decree of adoption. See In re: Adop-

tion of McElroy, 522 S.W. 2d 345 (Tenn. 1975),

cert. denied 423 U.S. 1024 (1975); McAlhany v.

Allen, supra; Hanson v. Denckla, supra.

The appellants argue that the chancellor below

erred in affording the appellee a legal status which

was not justified in fact or in law. The appellants

argue that the putative father was nothing more in

Georgia than the male whose sperm had impregnated

the mother of Joseph Ryan Riggs, and that this type

of putative father was not an essential party in the

Georgia adoption proceedings who, as such, had to

be served with process.

Implicit in the appellants’ argument is the theory

that if the appellant is a married father — or pos-

sibly an unmarried father who has established a

familial relationship with the child — he was en-

titled, in the Georgia court, to notice comporting

with the Due Process of Laws Clause of the Federal

Constitution; whereas if the appellee is only an un-

married father — or an unmarried father who has

not established a familia] relationship with the

child — he does not come within the constitutional

guaranty. The appellants would have us ignore the

reasons why the appellee did not establish familial

ties with the minor child.

The appellants’ contentions lead us now to Stanley

v. Illinois, 405 U.S. 645 ( 1972), a landmark case

dealing with the rights of fathers of illegitimate

children to notice and an opportunity to be heard;

and we note that the marked trend of the law is to

favor these rights.

12b

In Stanley the United States Supreme Court la-

beled the right to raise one’s children as a basic civil

right of man. The Stanley court further said “‘it is

cardinal with us that the custody, care and nurture

of the child reside first with the parents, whose pri-

mary function and freedom include preparation for

obligations the state can neither supply nor hinder.”

Unmarried, Stanley had lived with the mother of

his three children, along with the children, for a

number of years. When the mother died, the children

were declared wards of the state and placed with

court-appointed guardians. Under Illinois law, mar-

ried fathers and unwed mothers could not be de-

prived of their children absent a showing of unfit-

ness. The Illinois Supreme Court said that the actual

fitness of Stanley, as an unwed father, was irrele-

vant and that he could be separated from his chil-

dren upon mere proof that he and the mother had not

married. Stanley claimed that he had been deprived

of equal protection of the laws guaranteed him by

the Fourteenth Amendment. On appeal, the United

States Supreme Court concluded that all Illinois par-

ents are constitutionally entitled to a hearing on

their fitness before their children are removed from

their custody; therefore, when Stanley was not

granted such a hearing, he was denied equal pro-

tection under the laws. The Stanley court further

stated: “To say that the test of equal protection

should be the ‘legal’ rather than the biological re-

lationship is to avoid the issue. For the Equal Pro-

tection Clause necessarily limits the authority of a

State to draw such ‘legal’ lines as it chooses.” A

parent’s interest in his or her children must be pro-

tected absent a countervailing interest.

13b

In Quilloin v. Walcott, 434 U.S. 246 (1978), reh.

denied 435 U.S. 918 (1978), the plaintiff attacked

the Georgia adoption statutes as being violative of

the Equal Protection Clause of the Fourteenth

Amendment because they were discriminatory in

treatment of putative fathers. Quilloin was to be

appealed to the United States Supreme Court solely

on the disparate statutory treatment of a married

father and an illegitimate father. The appellant was

the father of an illegitimate child whose adoption

was sought by the mother’s husband. The child had

been in the custody and care of the mother for his

entire life. The appellant tried to block the adoption

of the child, but he did not seek custody of his child.

Quilloin was not a case in which the natural father

at any time had, or sought, actual or legal custody

of the child. At the hearing at the lower court, the

appellant was not found to be an unfit parent, but

the adoption was granted over his objections.

Under Georgia law a child born in wedlock can-

not be adopted without the consent of each living

parent if the parent has not voluntarily surrendered

the rights to his child or been adjudicated unfit. Out-

side wedlock, only the consent of the mother is re-

quired for the adoption of an illegitimate child. If

the father legitimates the child, either by marrying

the mother and acknowledging the child as his own

or by obtaining a court order declaring the child to be

legitimate and capable of inheriting from him, he

also may veto an adoption of his child.

On appeal to the Supreme Court of Georgia, the

Quilloin appellant claimed that the applicable Geor-

gia statutes violated the Equal Protection and Due

14b

Process clauses of the Fourteenth Amendment and

contended that he should have the same rights as a

married or divorced parent. The Georgia Supreme

Court upheld the lower court, relying on a strong

state policy of rearing children in a family setting

and on the fact that the appellant had not taken

steps to support or legitimate the child over a period

of more than 11 years.

The Quilloin appellant then appealed to the United

States Supreme Court, and his equal protection

claim was based solely on the different statutory

treatment of unmarried fathers and married fa-

thers. The father did not claim that he was deprived

of a right to a hearing nor did he challenge the suf-

ficiency of the notice.

The Georgia court had grounded its decision on

the best interest of the child. The United States Su-

preme Court examined this issue under the Due Proc-

ess Clause, then under the Equal Protection Clause,

and said:

We have little doubt that the Due Process Clause

would be offended “[i]f a State were to attempt to

force the breakup of a natural family, over the

objections of the parents and their children, with-

out some showing of unfitness and for the sole

reason that to do so was thought to be in the chil-

dren’s best interest.” Smith v. Organization of

Foster Families, 431 U.S. 816, 862-863, 53 L. Ed.

2d 14, 97 S. Ct. 2094 (1977) (Stewart, J., con-

curring in judgment). But this is not a case in

which the unwed father at any time had, or

sought, actual or legal custody of his child... .

15b

... We think appellant’s interests are readily dis-

tinguishable from those of a separated or divorced

father, and accordingly believe that the State

could permissibly give appellant less veto author-

ity than it provides to a married father.

Although appellant was subject, for the years

prior to these proceedings, to essentially the same

child support obligation as a married father would

have had, compare § 74-202 with § 74-105 and

§ 30-301, he has never exercised actual or legal

custody over his child, and thus has never shoul-

dered any significant responsibility with respect

to the daily supervision, education, protection, or

care of the child. Appellant does not complain of

his exemption from these responsibilities and, in-

deed, he does not even now seek custody of his

child. In contrast, legal custody of children is, of

course, a central aspect of the marital relation-

ship, and even a father whose marriage has bro-

ken apart will have borne full responsibility for

rearing of his children during the period of the

marriage. Under any standard of review, the

State was not foreclosed from recognizing this dif-

ference in the extent of commitment to the wel fare

of the child.

For these reasons, we conclude that §§ 74-203 and

74-403(3), as applied in this case, did not deprive

appellant of his asserted rights under the Due

Process and Equal Protection Clauses. The judg-

ment of the Supreme Court of Georgia is, accord-

ingly, affirmed. Quilloin, supra, at 520. (Empha-

sis added)

In Quilloin, supra, the father knew where his child

16b

was and could have supported or legitimated his

child, but he did not choose to do so. In the case at

bar, the father has gone to great lengths to locate

and to gain custody of his child. The appellee has

sought to exert full responsibility for his child. Al-

though it is true, as the appellants allege, that the

putative father and the child here have had a lack of

relationship, we find that any lack of relationship

is not through the fault of the father. The putative

father made obvious efforts to establish a de facto

and de jure relationship with the child.

We look here to the extent of the appellee’s com-

mitment to the welfare of his child, and find it con-

siderable. See In re: Adoption of McElroy, supra.

In an age of permissive sex and fleeting relation-

ships, the appellee’s long quest to assume responsibil-

ity for his child is impressive indeed.

Quilloin, supra, cannot be relied upon as a basis

for overturning the chancellor, as the pivotal issue

there was not the sufficiency of notice to the unmar-

ried parent under the Georgia statutes. Quilloin rec-

ognized that an unwed father was entitled to due

process safeguards before his parental rights could

be terminated. Notice is one of the most basic due

process safeguards.

In the instant case, the appellee has established,

through his sperm and through his efforts to find

his natural child, such a relationship with the child

as to entitle him to due process of laws in any pro-

ceeding adverse to his parental rights. No court

could have constitutionally deprived this father of his

child without giving him notice. And when third

17b

parties, appellants here, seek custody of the appel-

lee’s child, no court could constitutionally deprive

the appellee of his child absent the showing of a

strong countervailing interest.

The appellants cite Caban v. Mohammed, — U.S.

—, 99 S. Ct. 1760 (1979), which held unconstitu-

tional, as gender-discriminatory, a part of a New

York statute. The New York statute granted an un-

wed mother the right of absolute veto over a pro-

posed adoption. The same New York statute made

the unmarried father’s consent irrelevant. This part

of the statute was held to be in violation of the Equal

Protection Clause of the Fourteenth Amendment.

The United States Supreme Court stated that “in

these circumstances where the father has never come

forward to participate in the rearing of his child,

nothing in the Equal Protection Clause precludes the

state from withholding from him the privilege of

vetoing the adoption of that child.” Jbid, at p. 1768.

We think that the appellee has come forward to

participate in the rearing of his child within the

meaning of the Caban guidelines. This means that in

the Georgia court he should have been allowed the

privilege of vetoing his child’s adoption. Instead, he

received no notice at all of the adoption proceedings.

The appellants contend that we cannot apply the

guidelines set out in Caban to the case at bar because

Caban cannot be retroactively applied. We disagree.

Caban does not overrule clear past precedent on

which litigants may have relied, nor does it decide an

issue of first impression whose resolution was not

clearly foreshadowed. In determining whether Ca-

18b

ban can be retroactively applied, this court has fol-

lowed the test of the United States Supreme Court

and weighed the merits and demerits in this “case

by looking to the prior history of the rule in ques-

tion, its purpose and effect, and whether retrospec-

tive operation will further or retard its operation.”

Linkletter v. Walker, 381 U.S. 618 (1965) ; Chevron

Oil Company v. Huson, 404 U.S. 97, 107 (1971).

As to this retroactivity issue, we go further and

state that we have not found it necessary to fit the

appellee within the Caban guidelines. We believe

that the appellee amply meets the tests of de facto

fatherhood as set out in Stanley, supra, and Quilloin,

supra.

The appellee was entitled to minimal due process

of laws before his natural child could be adopted by

the appellants. This court will not deprive such a

parent of the parent-child relationship, one of the

most basic of civil rights, without affording that

parent adequate notice and an opportunity to be

heard.

In the Georgia adoption proceedings under which

the appellants claim their rights to the child, the

father had no notice and no right of hearing before

his parental rights were terminated. There can be

no valid adoption without a valid termination of

parental rights. State ex rel. Lewis v. Lutheran So-

cial Services of Wisconsin & Upper Michigan, 207

N.W. 2d 826 (1973). The interest of a father in his

child is of profound importance, deserving protec-

tion. This state has a strong interest in sustaining

the father-child relationship and protecting the

family unit.

19b

For this court to enforce the Georgia judgment,

which is fraught with constitutional difficulties, and

to deny the natural father due process of laws, would

be repugnant to the Federal Constitution and the

public policy of Tennessee. We do not afford full

faith and credit to the Georgia decree under which

the appellants claim custody of the child, and said =

fe VF LH

In response to the appellants’ contention that sus-

taining the trial court will destroy the institution of

adoption, we must note that Williams v. State of

North Carolina, supra, did not curtail the institution

of divorce.

We shall not examine the issues of whether the

chancellor below erred in: (1) conducting a hearing

on matters extraneous to the habeas corpus proceed-

ings; (2) rendering an opinion without affording

the defendants-appellants an opportunity to answer;

and/or (3) rendering an opinion while defendants

had motions pending. It is enough to hold that the

chancellor correctly granted the writ of habeas cor-

pus. The rights of the minor child were fully pro-

tected at the habeas corpus proceeding, and the chan-

cellor’s decision not to appoint a guardian ad litem

was proper and within his sound discretion. Gann v.

Burton, 511 S.W. 2d 244 (Tenn. 1974).

20b

The appellants contend that the trial judge erred

at the habeas corpus hearing in admitting into evi-

dence the out-of-state deposition of the birth mother,

Roneva Anderson. The entire record of the proceed-

ing conducted in Calaveras County, California,

which included the deposition of Roneva Anderson

and the judgment of that court adjudicating Ter-

razas to be the father of the minor child, was prop-

erly admitted into evidence in the trial court of

Madison County, Tennessee, the entire record having

been properly authenticated pursuant to Rule 44 of

the Tennessee Rules of Civil Procedure. Therefore,

we must give full faith and credit to the California

proceedings establishing Terrazas to be the natural

father of the minor child.

For the reasons stated, and under the authorities

cited, we respectfully overrule all issues presented by

the appellants for our review.

We affirm the chancellor’s issuance of the writ of

habeas corpus. Custody of the minor child is awarded

to the appellee, Robert Terrazas. Pending time for

appeal all parties are enjoined from removing the

minor child from this jurisdiction.

The birth certificate of the minor child shall be

amended in order to reflect the child’s new name, as

chosen by the appellee.

The costs of this appeal are taxed against the ap-

pellants, for which execution may issue if necessary.

SUMMERS, J.

CONCUR:

MATHERNE, J.

EWELL, J.

21b

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT JACKSON

IN Re: ;

JOSEPH RYAN RIGGS, FROM THE

A Minor, CHANCERY COURT

ROBERT TERRAZAS Cee

Petitioner-A ppellee JACKSON

VS. HONORABLE

TOMMY JOE RIGS and JOE C. MORRIS

ANN MARIE RIGGS CHANCELLOR

Defendants-Appellants

JUDGMENT

This matter came on to be regularly considered by

this court on the record. For the reasons set forth in

our opinion of even date, it is ordered:

1. That the judgment of the chancellor’s issuance

of the writ of habeas corpus is affirmed.

2. Custody of the minor child is awarded to the

appellee, Robert Terrazas.

3. Pending time for appeal all parties are en-

joined from removing the minor child from the ju-

risdiction of the court.

4. That the costs of this Cause are taxed against

the appellants, for which execution may issue if

necessary.

ENTER: JULY 29, 1980

SUMMERS, J.

APPENDIX C

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

IN RE: !

JOSEPH RYAN RIGGS,

A Minor,

ROBERT TERRAZAS,

Appellee

~ MADISON EQUITY

VS.

TOMMY JOE RIGGS,

and

ANN MARIE RIGGS,

Appellants

ORDER

On considering the application for permission to

appeal and briefs filed in this case and the entire

record, the application of Tommy Joe Riggs, and

Ann Marie Riggs is denied at cost of the appellants.

PER CURIAM

FILED

OCTOBER 6, 1980

JEWEL REDDEN, CLERK

APPENDIX D

Georgia Code Chapter 74

Adoption

Act No. 85, Georgia Laws 1977, Effective

January 1, 1978

Section 74-404(c) (5).

Whenever the biological mother surrenders her

parental rights she shall execute an affidavit as to

the identity and location of the putative father in

substantially the following form:

MOTHER’S AFFIDAVIT

REGARDING PUTATIVE FATHER

NOTICE TO MOTHER:

This is an important legal document which deals

with your child’s right to have its biological father’s

rights properly terminated. You have the right not

to disclose the name and address of the father of

your child. Understand that you are providing this

affidavit under oath and that the information pro-

vided will be held in strict confidence and will be

used only in connection with the adoption of your

child.

Personally appeared before me, the undersigned

officer duly authorized to administer oaths,

, who, after having been sworn, deposes and

says as follows:

That I am the mother of a (male) (female) minor

child born :

That the name of the biological father of my child

is , and his last known address is

Sworn to and subscribed

befov'e me this

day of ;

Notary Public.

Section 74-406. Notice to Putative Father.

(a) If the identity and location of the putative fa-

ther of an illegitimate or legitimate child is known

or reasonably ascertainable and he has not executed

a surrender as provided in Code section 74-404(c),

then he shall be notified of the mother’s surrender or

her consent to the child’s adoption by her husband,

or the proceeding to terminate her parental rights

by registered or certified mail, return receipt re-

quested, at his last known address.

(b) If the identity and location, or either, of the

putative father of an illegitimate or legitimate child

is not known or reasonably ascertainable then upon

motion by either the petitioner(s), Department of

Human Resources, or licensed child-placing agency

the Court, as soon as practicable, shall make such

inquiry as it deems appropriate under the circum-

stances and shall determine whether the identity and

location of the putative father is ascertainable, and

whether the putative father lived with the child, con-

tributed to its support, or has given any other tangi-

ble indication of interest in the child, so as to entitle

him to notice of the mother’s surrender or her con-

sent to the child’s adoption by her husband, or the

proceeding to terminate. If the Court identifies the

putative father and determines that he is entitled to

notice of the mother’s surrender or the proceeding to

terminate her parental rights it shall enter an ap-

propriate order designed to afford him such notice.

If after inquiry the Court is unable to identify the

putative father or concludes that he is not entitled to

notice of the mother’s surrender or her consent to

the child’s adoption by her husband, or the proceed-

ing to terminate her parental rights the Court shall

enter an order terminating the putative father’s

rights with reference to the child.

section (a) or (b) above, it shall advise the putative

father that he loses all rights to the child and will

neither receive notice nor be entitled to object to the

adoption of the child unless he files (1) a petition to

legitimate the child pursuant te Code section 74-103,

and (2) notice of such petition to legitimate with the

court in which the adoption is pending, within thirty

(30) days of receipt of such notice.

(d) If a legitimation petition is not filed by the

putative father and notice given as required in sub-

section (c) above within thirty (30) days of his re-

ceipt of notice, as provided for in subsection ( a) or

(b) above, or if after filing such petition, he fails to

prosecute it to final judgment he loses all rights to

the child and he may not thereafter object to the

adoption and is not entitled to receive notice of the

adoption.

(e) If the child is legitimated by the putative fa-

ther, the adoption shall not be permitted except as

provided in Code Sections 74-403 through 405.

Section 74-409. Investigation by Department of

Human Resources Or Other Agency.

(a) Prior to the date set by the court for a hear-

ing on the petition for adoption, it shall be the duty

of the Department of Human Resources through its

own agents, one of its licensed child-placing agencies

or through any other agency appointed by the De-

partment of Human Resources, to verify the allega-

tions in the petition for adoption and to make a com-

plete and thorough investigation of the entire mat-

ter, and to report its findings and recommendations

in writing to the court where the petition for adop-

tion was filed. If for any reason the Department of

Human Resources shall find itself unable to make or

arrange for the proper investigation and report, it

shall be the duty of the Commissioner of the Depart-

ment to notify the court immediately, or at least

within twenty (20) days after receipt of the request

for investigation service, that it is unable to make

such report and investigation so that the court may

take such other steps as in its discretion are neces-

sary to have the entire matter investigated.

Section 74-410. Report and Recommendation.

(a) The report and findings of the investigating

agency shall, among other things, include the fol-

lowing:

(1) Verification of allegations contained in the

petition.

(2) Circumstances under which the child came to

be placed for adoption.

(3) Whether the proposed adoptive parent(s) is

financially (including adoption supplement if ap-

proved by the Department of Human Resources),

physically and mentally able to have the permanent

custody of the child.

(4) The physical and mental condition of the

child to be adopted insofar as this can be determined

by the aid of competent medical authority.

(5) Whether or not the adoption is for the best

interests of the child, including general care.

(6) Suitability of the home to the child.

(7) Whether the identity and location of a puta-

tive father is known, or ascertainable and whether

the requirements of Code section 74-406 were com-

plied with, if applicable.

(8) Any other information that might be dis-

closed by the investigation that would be of any value

or interest to the court in deciding the case.

Section 74-412. Hearing and Decree of Adoption.

(a) (1) Upon the date appointed by the court for

a hearing of the petition for adoption, or as soon

thereafter as the matter may be reached for a hear-

ing, the court shall proceed to a full hearing on the

petition and the examination of the parties at inter-

est in chambers, under oath, with the right of con-

tinuing the hearing and examinations from time to

time as the nature of the case may require. The court

at such times shall give consideration to the investi-

gation report to the court provided for in Code sec-

tion 74-409 and the recommendations therein con-

tained.

(2) If the court determines from the report or

otherwise that the identity and location of the puta-

tive father of an illegitimate or legitimate child have

been ascertained or are ascertainable and that he is

entitled to notice as provided in Code section 74-406

and has not received such notice, the court shall

within five (5) days following such hearing cause

the notice requirement of Code seciion 74-406 to be

satisfied. The hearing shall be continued for at least

thirty (30) days following notice to the putative

father to allow him to legitimate the child or to sur-

render all his rights to said child. If the putative

father files a petition to legitimate the child within

~ such thirty-day period, the court shall fix a time for

a hearing thereon which shall not be later than thirty

(30) days from the date of filing of said petition. If

a petition to legitimate the child is not filed within

thirty (30) days following receipt of notice, or if the

petition is not prosecuted to finai judgment, such

failure shall constitute the surrender by the putative

father of all his rights to said child as provided in

Code section 74-406(d) and the court shall proceed

with the final hearing on the petition for adoption.

If the child is legitimated by the putative father, the

adoption shall not be permitted except as provided in

Code sections 74-408 through 405.

(b) If the court is satisfied that the parent(s) or

guardian(s) of the child has been relieved of the

care, Support and guardianship and all rights to said

child in the manner provided by law and that the

petitioner(s) is capable of assuming responsibility

for the care, supervision, training and education of

the child, and that the child is suitable for adoption

in a private family home and that the adoption re-

quested is for the best interests of the child, it shall

enter a decree of adoption, granting the permanent

custody of the child to the petitioner(s), and declar-

ing said child to be the adopted child of the petition-

er(s).

er(s) has not complied with the provisions of this

Code Chapter, it may dismiss the petition for adop-

tion without prejudice or continue the cause. Should

the court find that any notice required under this

Chapter to be given by the petitioner has not been

given or not properly given, or that said petition has

not been properly filed, then said court is authorized

to enter an order providing for corrective action and

an additional hearing.

(d) If the court is not satisfied that the adoption

is for the best interests of the child, it shall deny the

petition and commit the child to the custody of the

Department of Human Resources or a licensed child-

placing agency, if the petition was filed pursuant to

subsection (1) or (2) of Code section 74-403 (a). If

the petition was filed pursuant to subsection (3) or

(4) of Code section 74-403(a), the child shall re-

main in the custody of the petitioner(s) if he is fit

to have custody or the court may place the child with

the Department of Human Resources for the pur-

pose of determining whether or not a petition should

be instituted under the Juvenile Court Code of Geor-

gia.

Section 74-413. Effect of Decree of Adoption.

(a) A decree of adoption, whether issued by a

court of this State or of any other jurisdiction shall

have the following effect as to matters within the

jurisdiction or before a court in this State:

(1) Except with respect to a spouse of the peti-

tioner and relatives of the spouse, to relieve the natu-

ral parent(s) of the adopted individual of all paren-

tal rights and responsibilities, and to terminate all

legal relationships between the adopted individual

and his relatives, including his natural parent(s),

so that the adopted individual thereafter is a strang-

er to his former relatives for all purposes including

inheritance and the interpretation or construction of

documents, statutes, and instruments, whether exe-

cuted before or after the adoption is decreed, which

do not expressly include the individual by name or by

some designation not based on a parent and child or

blood relationship; and

(2) To create the relationship of parent and child

between petitioner(s) and the adopted individual, as

if the adopted individual were a child of natural

bodily issue of petitioner (s), and he shall enjoy every

right and privilege of a natural child of petitioner

(2) ; and shall be deemed a natural child of petition-

er(s) to inherit under the laws of descent and dis-

tribution in the absence of a will and to take under

the provisions of any instrument of testamentary

gift, bequest, devise or legacy, whether executed be-

fore or after the adoption is decreed, unless express-

ly excluded therefrom; and shall take by inheritance

from relatives of the petitioner(s); and shall also

take as a ‘child’ of the petitioner(s) under a class

gift made by the will of a third person.

(b) Notwithstanding the provisions of subsection

(a), if a parent of a child dies without the relation-

ship of parent and child having been previously

terminated the child’s right of inheritance from or

through the deceased is unaffected by the adoption.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.