Motion — Putnam Tool Co. v. United States, 138 Ct. Cl. 878 (1957) (No. 86-56)

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Supreme Court, U.S. < '

= FILES @

No. 96-56 \? AUG 14 1986

BPANIOL, JR.

ree CLERK

Supreme Court of the United States

October Term, 1986

-O—

JERRY D. SHOECRAFT,

Appellant,

CATHOLIC SOCIAL SERVICES BUREAU, INCOR-

PORATED, A NON-PROFIT NEBRASKA CORPORA-

TION: JOHN AND MARY DOE; DEPARTMENT OF

SOCIAL SERVICES, STATE OF NEBRASKA,

Appellees.

Ben

—

APPEAL FROM THE SUPREME COURT

OF THE STATE OF NEBRASKA

MOTION OF APPELLEES TO DISMISS OR,

IN THE ALTERNATIVE, TO AFFIRM

James M. Kelley Royce N. Harper

Suite 203, 202 So. 11th Street Assistant Attorney General

Lincoln, Nebraska 68508 2115 State Capitol Building

(402) 435-1500, for Lincoln, Nebraska 68509

Catholic Social Services Bureau, (402) 471-2682, for

Incorporated, Appellee Department of Social Service

of Nebraska, Appellee

Patrick W. Healey

P.O. Box 83104

Lincoln, Nebraska 68508

(402) 476-2847, for

John and Mary Doe, Appellees

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

«“

TABLE OF CONTENTS

Page

OPINIONS BELOW 1

CONSTITUTIONAL PROVISIONS & STATUTES... 1

STATEMENT OF THE CASE 5

MOTION TO DISMISS eeceecocsecceocsncssee 6

MOTION TO ABPRIRM onnccccccccscssssessensesee 7

CONCLUSION ececcesssceseseeeeeseresnssnsneeseesensssennensnnenasnesntnnsnsnnennt . 10

TABLE OF AUTHORITIES

CasEs:

Pages

Caban v. Mohammed, 441 U.S. 380 (1979) cece 7,8

DeFunis v. Odegaard, 416 U.S. 312 (1974) 6

Franks v. Bowman Transportation Co., Inc., 424

U.S. 747 (1976)

Herb v. Pitcairn, 324 U.S. 117 (1954)

New York Times v. Jascalevich, 439 U.S. 1317 (1978)... 10

Quilloin v. Walcott, 434 U.S. 246 (1978) ... 7

Weinstein v. Bradford, 423 U.S. 149 (1975) — 6

CoNSTITUTION :

on eee, O0e Bee, $2 1,6

U.S. Const. amend XIV, $1

Ornuer AUTHORITIES:

Nebraska Statutes, Section 43-1040) ce cececeesssssecceeeeeee 2, 10

Nebraska Statutes, Section 43-104.02 2,6

Nebraska Statutes, Section 43-104.03 2. 3

Nebraska Statutes, Section 43-104.04 3

Nebraska Statutes, Section 43-104.09 20. 3

Nebraska Statutes, Section 43-104.06..00 0. 4, 5, 6, 10

TN te .

Pursuant to the provisions of Rule 16 of this Court

all appellees move this court for an order dismissing

appellant’s appeal or; in the alternative, for an order af-

firming the decision of the Supreme Court of the State

of Nebraska rendered April 25, 1986.

OPINIONS BELOW

The opinion of the Supreme Court of the State of

Nebraska is found at 222 Neb. 574, — N.W.2d — (1986),

and accurately is reproduced at Appendix A, p. App. 1 of

appellant’s jurisdictional statement. The decision of the

District Court of Lancaster County, Nebraska, reversed

by the Supreme Court of the State of Nebraska, is un-

reported. It is, however, accurately reproduced at Ap-

pendix C, p. App. 18 of appellant’s jurisdictional state-

ment.

CONSTITUTIONAL PROVISIONS & STATUTES

U.S. Const., art. ITI, § 2:

Section 2. The judicial Power shall extend to all

Cases, in Law and Equity, arising under this Consti-

tution, the Laws of the United States, and Treaties

made, or which shall be made, under their Authority;

—to all Cases affecting Ambassadors, other public

Ministers and Consuls;—to all Cases of admiralty

and maritime Jurisdiction ;—to Controversies to which

the United States shall be a Party ;—to Controversies

between two or more States;—between a State and

Citizens of another State;—between Citizens of dif-

ferent States,—between Citizens of the same State

claiming Lands under Grants of different States, and

between a State, or the Citizens thereof, and foreign

States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public

Ministers and Consuls, and those in which a State shall

be Party, the supreme Court shall have original Juris-

diction. In all other Cases before mentioned, the

supreme Court shall have appellate Jurisdiction, both

as to Law and Fact, with such Exceptions, and under

such regulations as the Congress shall make... ..

U.S. Const. amend XIV, § I:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

Nebraska Statutes, Sections 438-104.01 to 43-104.06,

R.S. (Reissue, 1954) :

43-104.01. Adoption; act; applicability. Section

43-104 shall apply to any adoption action pending in

any court on March 1, 1971, which has not proceeded

to final judgment.

43-104.02. Adoption; child born out of wedlock;

relinquishnent or consent requirements; paternity

claim; notice; contents. (1) Relinquishment or con-

sent for the purpose of adoption given only by a

mother of a child born out of wedlock pursuant to

section 43-104 shall be sufficient to place the child

for adoption and the rights of any alleged father

shall not be recognized thereafter in any court unless

the person claiming to be the father of the ehild has

filed with the Department of Social Services on forms

provided by the department within five days after

the birth of such child, a notice of intent to claim

paternity.

(2) The notice shall contain the claimant’s name

and address, the name and last-known address of the

mother, and the month and year of the birth or ex-

pected birth of the child.

43-104.03. Paternity claim; notice; to whom

gwen; effect. Within three days after the filing of a

notice to claim paternity, the Director of Social Ser-

vices shall cause a certified eopy of such notice to be

mailed by certified mail to (1) the mother or prospec-

tive mother of such child at the last-known address

shown on the notice of intent to claim paternity, or

(2) an agent specifically designated in writing by the

mother or prospective mother, to receive such notice.

The notice shall be admissibie in any action for pa-

ternity under sections 43-1401 to 43-1413, and shall

estop the claimant from denying his paternity of such

child thereafter and shall contain language that he

acknowledges liability for contribution to the support

and edueation of the child after its birth and for con-

tribution to the pregnancy-related medical expenses

of the mother.

43-104.04 Paternity claim; failure to file notice ;

effect. If a notice of paternity is not filed within five

days, the mother of a child born out of wedlock or an

agent specifically designated in writing by the mother

may request, and the Department of Social Services

shall supply, a certificate that no notice of intent to

claim paternity has been filed with the department

and the filing of such certificate pursuant to section

43-102 shall eliminate the need or necessity of a con-

sent or relinquishment for adoption by the natural

father of such child.

43-104.05. Paternity claim; notice; filed; pett-

tion for adjudication of paternity; hearing. If a

notice of intent to claim paternity is filed within five

days ofter the birth of such child, either the claimant-

father, the mother, or her agent specifically designated

in writing may file a petition in the county court in

the county where such child is a resident for an adjudi-

cation of the claim of paternity. After the filing of

such petition, the court shall set a hearing date upon

proper notice to the parties not less than ten nor more

than twenty days after such filing. If the mother

contests the claim of paternity, the court shall take

such testimony as shall enable it to determine the

facts.

43-104.06. Paternity claim; contest by claimant;

court; findings; relinquishment of child to placement

agency; when. (1) If the claimant seeks to oppose

any proposed relinquishment of a child by the mother

and requests custody of the child, the court shall in-

quire into the fitness of the claimant, his ability to

properly care for the child, and whether the best

interests of the child will be served by granting cus-

tody to the claimant. Only upon the appointment

of a guardian ad litem for the child, and a finding

that the claimant is a fit person, is able to properly

eare for the child, and that the child’s best interests

will be served by granting custody to the claimant,

shall custody be granted to the claimant.

(2) Upon relinquishment by the mother to a

child placement agency licensed by the State of Ne-

braska, or upon a finding that the child’s best inter-

ests would not be served by granting custody to the

claimant, together with the recommendation by the

guardian ad litem, and a finding that termination

of the rights of the mother and the father is in the

best interests of the child, the court shall terminate

the rights of the mother and father and confer such

rights upon the licensed child placement agency to

whom the relinquishment has been given.

STATEMENT OF THE CASE

The procedural history of the instant controversy

as set forth in appellant’s statement of the case generally

is accurate. As to the “facts” as set forth by appellant

there should be added that except for his expressed desire

to assume parental responsibility for his child, appellant

did nothing to foster that relationship. He did not visit

the child’s mother during her pregnancy after she moved

from Lincoln to Grand Island in July of 1984. He con-

tributed not a cent to the mother’s or the child’s hospital

and other medical expenses; he paid no other expenses;

and he even refused to return a medical questionnaire

sent to him on behalf of the Catholic Social Services

Bureau. The questionnaire was sent to him before the

birth of the child and requested, for adoption placement

purposes, information as to the appellant’s and his fam-

ily’s medical history.

Also missing from appellant’s statement of the case

is the disclosure that subsequent to the ruling of the state

District Court, and during the time that the Supreme

Court of the State of Nebraska had the issues under sub-

mission, an evidentiary hearing was held in the County

Court of Lancaster County Nebraska pursuant to Nebraska

Statutes, Section 43-104.06(1), R.S. (Reissue, 1984), as

to appellant’s fitness to have custody of the child. The

Section 43-104.06(1) proceedings were dismissed, upon

motion, at the conclusion of appellant’s case-in-chief.

MOTION TO DISMISS

Appellees move for an order dismissing appellant’s

appeal on the basis that the issues between him and ap-

pellees are moot. Even if appellant’s cause is successful

in this Court to the extent that it is decided that the five-

day filing requirement is unconstitutional, no benefit can

obtain to appellant.

Appellant has had in the County Court of Lancaster

County, Nebraska, the full benefit of the state District

Court’s ruling that Nebraska Statutes, Section 43-

104.02(1), R.S. (Reissue, 1984) is unconstitutional. Be-

fore the Nebraska Supreme Court overturned the Dis-

trict Court’s ruling appellant’s fitness to have custody of

his child fully was litigated pursuant to Nebraska Statutes,

Section 43-104.06(1), R.S. (Reissue, 1984). He lost, he

did not appeal that decision, and that decision now is

final. Hence, there is no case on controversy between

appellant and appellees wherein appellant has a personal

stake in the outcome of the case. Dismissal is required.

U.S. Const. art. III, $2. Franks v. Bowman Transporta-

tion Co., Inc., 424 U.S. 747 (1976); DeF unis v. Odegaard,

416 U.S. 312 (1974).

This is not a case governed by the rule in Weinstein

v. Bradford, 423 U.S. 149 (1975), where a moot issue was

classed as one where there “... was a reasonable expecta-

tion that the same party would be subjected to the same

action again.” 423 U.S. at 149. Nothing this Court may

do, as a result of appellant’s appeal, will effect Mr. Shoe-

ecraft’s right to his child or the adoption thereof by Mr.

and Mrs. Doe.

MOTION TO AFFIRM

In the alternative to their motion to dismiss, appellees

move for an order affirming the judgment of the Supreme

Court of the State of Nebraska. The Nebraska Court

fully, fairly and accurately considered appellant’s consti-

tutional claims and determined that a ruling as to the

statute’s constitutionality in the abstract was not required

beeause under the particular surrounding facts, the five-

day notice requirement as applied to appellant was not

unconstitutional. 222 Neb. 574, 580. The Nebraska Court

fully recognized the constitutional principles involved and

based its decision on settled federal constitutional prin-

ciples as interpreted by this Court in Caban v. Mohammed,

441 U.S. 380 (1979), and Quilloin v. Walcott, 484 U.S. 246

(1978).

In addition to the fact that the Nebraska Court cor-

rectly decided the controversy from the standpoint of fed-

eral constitutional doctrine, its decision is based on inde-

pendent non-federal grounds, that is, determinations that

appellant’s conduct, vis-a-vis has child and the mother,

and the facts of the pregnaney and birth as he knew them

to be, took him out of the category of litigants who could

benefit by a finding that the five-day notice requirement

was uneonstitutional. See, Herb v. Pitcairn, 324 U.S. 117

(1954).

The statutory scheme here requires the father of

a child born out of wedlock to declare himself as such

within 5 days after the birth of the child and to as-

sume the financial obligations of that status. The

Nebraska statutory scheme does not provide for noti-

fication to the father of the birth of the child.

That omission might well, in a particular case,

render constitutionally suspect as violative of due

process the termination of the father’s rights. See

Caban v. Mohammed, supra. However, the facts in

this case clearly demonstrate that the appellee father

knew of the pregnancy as soon as the condition could

be medically verified. He knew the whereabouts of

the mother and was advised of the birth on the date

of occurrence. Except for conversations relating to

the disposition of the child, no manifestation of his in-

tention to assert rights was made known. The record

is completely devoid of any financial contribution to

the expenses of maintainance during pregnancy or of

other medical expenses. ‘The lack of a provision for

notice in the statutes does not render the scheme un-

constitutional as to the appellee father.

222 Neb. 574, 578.

The Nebraska Court then went on to balance the com-

peting interests among appellant, Miss Davis, the prospec-

tive adoptive parents, the adoption agency and the state

in general.

The Legislature, in the passage of §§ 43-104.02

et seq., was concerned about the problems facing an

unwed mother as to the retention of custody of the

child or the relinquishment of the child to an agency

for placement in an appropriate home. The 5-day

period after birth was selected, in the words of the

introducer, ‘‘primarily because this is pretty much

a standard length of time that a child and the mother

might, be kept in the hospital anyway.’’ Judiciary

(Committee Hearing, L.B. 224, 84th Leg., Ist Sess. 2

(Jan. 29, 1975) (statement of Sen. Anderson). An

unwed mother would then know at the time she is

likely to be released from the hospital whether the

father will step forward, claim his own flesh and

blood, and assume the responsibilities he biologically

created. If not, the mother may then make the pain-

ful decision alone and not be left in the terrible limbo

of growing attachment and love for the child, await-

ing either the outcome of a judicial proceeding with

its attendant notoriety or decision of the amorous

Hamlet in the wings, pondering whether he should

assume his responsibility.

It is further obvious that the Legislature exercised

a judgment favoring adoption of children of unwed

couples as soon as possible after birth, concluding that

the placement of the child in a home with persons

anxious to have, love, and rear the child is to be pre-

ferred over a battleground where the mother must

either depend on social agency support or on the out-

come of a judicial support proceeding to compel the

father to assume his responsibility.

The Legislature also considered (in view of the

extended testimony) the views of the licensed child

placement agencies that rapid determination of the

rights, if any, of an unwed father to object to a relin-

quishment and subsequent adoption is in the best inter-

ests of the child, the relinquishing mother, and of the

prospective adoptive parents, That prospective adop-

tive parents would assume custody of a newborn with

the prospect of later having to surrender the child is

questionable. That the Legislature accomplished those

goals with the passage of the act is clear. It is further

clear that the problems of unwed births and adoptions

are legitimate concerns of the Legislature.

In consideration of the countervailing claims of

this appellee father, we must note that, until after the

birth, he exhibited (at least financially) no responsi-

bility for the child or the mother. This is not a ease

where he lived with the child and nurtured and sup.-

ported it and the mother. Thus, his rights, as Justice

Marshall observed in Quilloin v. Walcott, 434 U.S. 246,

296, 98'S. Ct. 549, 54 L. Ed. 2d 511 (1978), ‘tare readily

distinguishable from those of a separated or divorced

father, and [we] accordingly believe that the State

could permissibly give appellant less veto authority

than it provides to a married father.”’

We are not impressed with the excuse that the ap-

pellee father did not know of the 5-day limitation. In

this matter he is presumed, as are all citizens, to know

the law. Statutes of limitation bar evenly the claims

of the wary and the unwary and the just and the unjust.

222 Neb. 574, 579-580.

The Nebraska Legislature acted responsibly and

constitutionally in its enactment of Sections 43-104.01

through 43-106. The Supreme Court of Nebraska prop-

erly interpreted the act’s provisions. On both federal con-

stitutional principles and upon the other non-federal

grounds used by the Nebraska Court for its decision, an or-

der of affirmance should issue. New York Times v. Jas-

calevich, 489 U.S. 1317 (1978).

sy.

“FP

CONCLUSION

For the reasons and upon the authority set forth

above, Mr. Shoecraft’s appeal must be dismissed. In the

alternative the decision of the Supreme Court of the State

of Nebraska must be affirmed.

Respectfully submitted,