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Disclaimer: The individuals named in this case are imaginary
and any resemblance to real persons, living or dead,
is purely coincidental.
In the YMCA Model Supreme
Court of the State of Montana
NO. 2007-123
DEVON FEDERLINE
and
MADGELINA JOLLY
Appellants,
v.
WARD and JUNE CLEAVER
Respondents.
On appeal from the 30th Judicial
District Court, Palladium
County
FACTUAL BACKGROUND:
Local football team stalwart Devon Federline
("D-Fense") and cheerleader Whitney Javelin
began dating in the fall of 2004 during their senior year at Frostbite High School
in the community of Freezeout, Nordasota. Devon turned 18 that fall, and dropped out of
high school after end of the season when he discovered that, in addition to
having grades too low to qualify for an athletic scholarship, he wouldn't be
able to graduate with his class anyway because he had lost all semester credit
due to excessive absences in violation of the school's 10-day rule. At the insistence of his parents, who hoped a
good dose of reality would convince him to return to school and graduate, he
went to work at Sven's Tire Shop, moved out of the house, and got an apartment
of his own.
Devon and Whitney had a stormy relationship during this time, with frequent
arguments and breakups, usually because Devon
dated other girls on the sly or because of Whitney's tendency to want to be
with him every moment, 24/7, and was constantly over at his apartment (thus
complicating his love life). Whitney's
mother, Madgelina Jolly ("Madge"), also
wasn't happy about the situation, because she assumed (correctly) that Whitney
and Devon were having a sexual relationship, but Whitney had turned 18 in
January, considered herself an adult, and wouldn't listen to anyone.
Shortly after her graduation in June of 2005, Whitney informed Devon that she was five months pregnant and, of course,
he was the father. Devon
refused to marry Whitney, but when Madge found out about the pregnancy and
threw her out of the house, he agreed to let Whitney move in with him, and even
opened up a separate savings account in his name, intended to help with the
needs of the baby. He started to kind of like the idea of being a dad and even
drove Whitney to a couple of doctor's appointments for her prenatal care.
However, the relationship between Devon and
Whitney was still rocky at best, with frequent arguments. After a particularly bad argument in August,
2005, Whitney moved out and went to live with her dad, Lance Javelin, a miner
who worked in Platinum, Montana. She
didn't tell Devon or her mother, Madge, where
she was going. Devon figured that she moved
back home with her mom, but was so relieved that she was gone that he didn't
bother to check.
Once in Platinum, her father and stepmother agreed not to tell Devon or Madge where she was, but convinced her that the
best thing to do was to put the baby up for adoption. Upon visiting with some neighbors who had
adopted a child, Whitney found out that both the mother and the father's
parental rights had to be terminated before the baby would be free to
adopt. They told her that the baby's
father would have to sign some papers and warned her that they had trouble with
their adoption because the biological grandparents had tried to get involved at
one point and had held up the proceedings for months.
Still angry at Devon, she called him on her cell phone, and without telling
him where she was, said she had miscarried the baby, was never coming back to Freezeout, did not ever want to see him again, and would
call the police and charge him with stalking if he ever tried to contact
her. Somewhat stunned, Devon
agreed not to call her, said he was sorry, and Whitney hung up on him. Then Whitney worked out a story (with the
help of her father and stepmother) to tell the adoption agency, and set up an
appointment.
When Whitney went to the Happy Cradle adoption agency, she stated that she
had been raped by a stranger in Nordasota and had no
idea of the father's identity. The
agency provided her with adoption counseling as required by Montana law, and arranged with prospective
adoptive parents, Ward and June Cleaver, to take custody of the baby when it
was born. Because the agency's preplacement evaluation of the Cleavers was glowing, and
Whitney liked the Cleavers a great deal, the agency recommended that Whitney
and the Cleavers proceed with a direct parental placement adoption.
Whitney gave birth to "Baby Girl Doe" on October 15, 2005. She listed the father as "unknown"
on the birth certificate. While still at the hospital, Whitney signed a
voluntary relinquishment and consent to adoption 72 hours following the birth,
on October 18, 2005, properly notarized, the Cleavers agreed in writing to
accept temporary custody of the child until the adoption petition was granted,
the Cleavers took the baby home with them.
A notice of parental placement and petition for termination of parental
rights was filed, with all proper documentation included, along with an
adoption petition, all filed on the same day, October 18, 2005. On October 24, 2005, the Montana Department
of Public Health and Human properly notified all parties that a search of Montana's putative
father registry did not yield any registrants relevant to Whitney Javelin or
Baby Girl Doe. As a precaution, the
Cleaver's attorney filed notice by publication in the "legals"
section of the classified ads in Platinum, Montana and Freezeout,
Nordasota newspapers, but not many people read the legals, Devon was not named (because Whitney still claimed
she didn't know who the father was) and neither Devon nor Madge saw the notice.
The District Court judge considered the petition and determined that it was
in the best interest of Baby Jane Doe to be adopted, entering an order on
November 2, 2005, terminating Whitney's parental rights, terminated parental
rights of any putative father for failing to appear, granted temporary custody
to the Cleavers, ordering a six-month postplacement
supervision and evaluation period in accordance with Montana law, and setting a
tentative hearing date for finalizing the adoption decree for April of 2006.
Meanwhile, back in Nordasota, Devon
realized that working at Sven's Tire Shop was a dead-end job with no future,
and in early October enrolled in the local alternative education center to
finish his education. Madge was a tutor
at the center, and when Devon enrolled, she
found out about the breakup. Madge had
no idea where Whitney was and thought she had been living with Devon all along.
On a hunch, Madge called Whitney's cell phone (which still had a Nordasota phone number) on Friday, October 14, 2005. Startled to hear from her mother, Whitney
told Madge that she was living in another town in Nordasota
with a high school girlfriend but that she didn't want Devon
or anyone else to know where she was.
After Madge agreed not to tell Devon anything, Whitney told Madge that
she was going to put the baby up for adoption and admitted that she had told Devon that she miscarried. Madge insisted that Whitney should come back
to Freezeout and let Madge raise the baby if she was
"too irresponsible to take care of it herself." Angry, Whitney told Madge never to call her
again, hung up, and threw her cell phone in the trash. Whitney went into labor
that night.
Madge, upset at the prospect of her grandchild being adopted, called Devon
and told him that Whitney had not lost the baby, but was going to put it up for
adoption, but she didn't know where Whitney was. She begged him to do something to keep the
baby from being placed "with strangers." She reassured Devon
that she would help take care of it if only he could get custody. He said that Whitney would call the cops if
he tried to call her, and Madge suggested he talk to an attorney.
Devon, not having much money, went to the
local legal aid office for advice. They
said they had a six-month waiting list before they could take his case, and
suggested in the meantime that he file with the Putative Father registry in Nordasota, so he would be notified if a court case was
filed that would affect his parental rights. He properly submitted his
registration to the Nordasota registry on October 20,
2005. He also gave the money he had
saved to Madge, and asked her to send it to Whitney if she ever found out where
she was. In the meantime, he called some
assorted old girlfriends to see if anyone knew where Whitney was, but no one
had heard anything about her. So he gave
up looking.
On October 21, Madge tried to call Whitney again, but the phone was
dead. So, she decided to call Lance,
whom she hadn't spoken to in years, in case he knew where Whitney was. Lance, not realizing that Whitney had lied to
Madge, admitted that Whitney was living with him in Montana, that she'd given
birth, and that she had already signed over the baby to "some really
wonderful people who will never throw
their little girl out of the house for getting pregnant." Madge then called the child abuse and neglect
hotline in Montana
and told the social workers that Whitney had abandoned the baby. Upon making a few phone calls, the social
workers learned that the baby had been legally relinquished, was in the care of
a loving, well-respected adoptive family, and did not further pursue the case.
Fuming, Madge told Devon that Whitney was in Montana and he needed to "save"
the baby. Devon went back to the legal
aid office, and they told him that under Montana
law, he had to file with Montana's putative
father registry within 72 hours of the child's birth, so it was too late to
file in Montana, but "you've filed in Nordasota, and we allow five days, so Montana should recognize it." They again explained that they were too busy
to take his case, but handed him a packet of do-it-yourself legal forms and suggested
he file a motion to intervene in the Montana
adoption, and that as a backup, Madge should also intervene because as a
grandparent, she was a fit and willing relative.
Devon and Madge worked together on the forms at the alternative education
center, and on November 15, 2005, they each filed a Motion to Intervene in the
Montana adoption, arguing that Whitney had fraudulently misrepresented her
situation to Devon, stating that he had registered with the putative father
registry in Nordasota, and, pursuant to Montana law,
that a court should also order Grandparent contact because Whitney was an unfit
parent who had lied to almost everyone and then had "abandoned" her
baby.
The Cleavers, with their adoption attorney, objected to the motion, arguing
that Devon had no standing as a putative father because he had not filed with
the Montana
registry. They further argued that under Montana
law, fraudulent misrepresentation was no defense when he had not attempted to
locate the mother through reasonable means, nor taken any of the steps under Montana or Nordasota law to preserve his rights. They also argued that
Madge had no standing to intervene because Whitney had voluntarily relinquished
her parental rights, thus severing any relationship Madge had with the baby,
and in doing so, she had never been found to be an unfit parent.
The judge consolidated the two motions and ordered an evidentiary hearing
for January, 2006, which was continued due to severe blizzards in Nordasota that prevented travel, and reset for April 15,
2006. Devon and Madge came to Montana,
representing themselves without an attorney.
In court, Devon admitted that Madge
wanted him to contest custody of the baby, but argued for his own fitness as a
parent that he had started the savings account and had tried to find Whitney
once he knew she had lied to him. The
Cleavers brought in Whitney, who explained how Madge threw her out of the house
and never even inquired as to her whereabouts for four months, and how she
didn't want her mother to have custody of the baby, then she described the
stormy relationship between her and Devon, stating that he was the one who was
too irresponsible to raise a child.
The judge said that grandparents had no right to custody or visitation over
the objections of a fit parent, and at any rate Whitney had signed over her
rights to the baby, and by doing so, severed any grandparent-grandchild
relationship. He wasn't going to let Devon serve as a proxy for Madge, either. He also found that Devon had no standing in
the case because he filed with Nordasota's putative
father registry more than 72 hours after the birth of the child as required in Montana law. Finally, the judge held that he had
irrevocably waived parental rights by failing to timely act to protect them, plus
he had notice because he had been served by publication, and thus no parent and
child relationship existed. While the
judge lectured Whitney about her lies and deception, pointing out that the
whole case could probably have been avoided if, before the baby was born or
Madge got involved, she simply had Devon file
a notarized acknowledgement of paternity and denial of interest in
custody. But, he also stated that she
was not an unfit parent because, "at least you ultimately did what is best
for this child."
The judge then dismissed the joint Motions to Intervene. On May 3, 2006, he finalized the adoption
decree. Devon
and Madge approached Montana Legal Services, who did have an opening in their
caseload, and this appeal was filed on May 14, 2006.
---End---
Issue One: Did the district court
err in finding that Devon "D-Fense" Federline had no standing to contest the adoption because Montana law on the
timeline for filing with the Putative Father registry was applicable, even
though he had complied with Nordasota law? And, even
if Nordasota law applies, did he comply with the
requirements to protect and preserve his parental interest and rights? Finally, did Whitney's fraudulent
misrepresentations take away Devon's due
process rights to personal notice of the hearing?
Issue Two: Did the district court err
in finding that Madgelina "Madge" Jolly had
no standing to contest the adoption because a grandparent has no standing after
the parental rights of the biological parent have been terminated? Further, even if she did have standing,
should she be allowed to intervene in the adoption over the objection of
Whitney? Does she have any other ground
under which to intervene?
Editor's note: Montana is home to one of the only Platinium
and Palladium mines in the United
States.
CONSTITUTION, STATUTES AND CASE LAW:
United States Constitution, Amendment V: "No person shall be ... deprived of
life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation."
United
States
Constitution, Amendment XIV, Section 1:
"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, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws."
Montana Constitution, Article II, section 15: "Rights of persons not adults. The
rights of persons under 18 years of age shall include, but not be limited to,
all the fundamental rights of this Article unless specifically precluded by
laws which enhance the protection of such persons."
Montana Statutes:
General:
MCA §42-1-102 and 103
MCA §42-1-105
MCA §42-1-107, 108, 109, 110, 111
MCA §42-2-301 and 302
MCA §42-2-401
MCA §42-2-404
MCA §42-2-408, 409, 410, 411, 412, 413
MCA §42-2-417
MCA §42-2-607
MCA §42-4-101 through 103
MCA §42-4-110 through 115
MCA §42-5-102 through 107
MCA §42-5-202
Statutes applicable to Devon:
MCA §42-2-201 through 206
MCA §42-2-217
MCA §42-2-230
MCA §42-2-421
MCA §42-2-609 through 611
MCA §42-2-617
Statutes applicable to Madge:
MCA §40-4-211(4)(b) and (6)
MCA §40-4-212
MCA § 40-4-227
MCA §40-4-228
MCA § 40-9-102
"Nordasota"
Statutes:
Nordasota State Code
Annotated (NSCA) § 42-2-206: When
putative father to register -- actual knowledge of pregnancy not required.
(1) In order to be entitled, because of
registration, to receive notice of a termination of parental rights proceeding,
a putative father's registration form must be received by the department not
later than five (5) working days after the child's birth.
(2) A
putative father may file before a child's birth even though the putative father
has no actual knowledge that a pregnancy has occurred or that a pregnancy has
continued through gestation.
Other than NSCA § 42-4-206 above, all other
relevant Nordasota statutes are to be considered
identical to those in Montana.
Case Law:
Federal:
Troxel v. Granville, 530 US 57 (2000)
Montana:
Polasek v. Omura, 2006 MT 103
Phillips v. GMC,
2000 MT 55
In re Adoption of A.L.O.,
2006 MT 59
In re Adoption of
C.R.N., 1999 MT 92
NOTES ON AUTHORITIES:
For both issues, one of the core underlying questions is the application of
the right to parent. This right is not
explicitly outlined in either the U.S.
or Montana Constitutions, but has been developed in case law as one of our
fundamental liberty interests which cannot be taken away without due process of
law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constition, with parallel provisions in Montana.
The right is also balanced in Montana
by Article II, section 15, which outlines the rights of persons not adults
(i.e. children), and is further supported in law by the "best interest of
the child" standard that Montana follows in child custody cases. Attorneys must pay particular attention to
MCA § 42-5-107 as to Devon and MCA §40-4-212
as to Madge.
It is also important for both sides to remember that Whitney voluntarily
relinquished her parental rights and no court found her to be an
"unfit" parent. Therefore, the
best interest of Baby Girl Doe must be balanced against the competing rights of
Madge, Devon and the Cleavers. For the purposes of this fact pattern, there
is no dispute that Devon is the biological father
of the child. The timelines listed in
the fact pattern are also legally significant.
For Devon's issues, both sides need to engage in a "Choice of Law"
analysis to argue whether Montana courts
should recognize Devon's compliance with the laws of Nordasota,
or to apply Montana
law, thus determining whether he had "standing" to intervene. In either case, jurisdiction is proper in Montana, the only question is whether to use the Montana 72 hour timeline
or the Nordasota 5 working days deadline. Attorneys for Devon
will argue that Nordasota law applies. Attorneys for
the Cleavers will argue that Montana
law governs. Phillips v. GMC is a leading case on choice of law provisions and
will be used by both sides. It was a
tort case, but outlines what is to be considered in determining which state's
law applies.
Then, attorneys must examine the law against the facts of the case to
determine if Devon complied with the
requirements to protect and preserve his parental interest and rights, and if
Whitney's misrepresentations in any way denied him due process. For the purposes of this fact pattern, we
will presume that, other than the difference in the length of time allowed for
filing with the putative father registry (three days in Montana, five days
in Nordasota), all other statutes relevant to this
case are the same in both states.
Attorneys will primarily read and apply the statutes. However, In re
Adoption of C.R.N. is a leading Montana
case on terminating the rights of a natural father and In re Adoption of
A.L.O deals with an underage birth mom who was
deceptive, so even though the facts of these cases are very different from the
fact pattern here, they may be helpful. (Ignore the issue about having an
attorney in ALO, here Whitney is of age). There is no case law on point in Montana regarding the
putative father registry itself, so Attorneys must simply interpret the
statutes as written.
For Madge's issues, Troxel v. Granville is the leading United
States Supreme Court case on the rights of grandparents. Polasek v.
Omura states the current interpretation
of the law by Montana
courts, wherein analysis of any action by grandparents must begin with the
presumption that the parent is fit to raise the child. Both cases can be distinguished here because
in this case Whitney relinquished her parental rights. This creates an opportunity for both sides to
argue the rights of grandparents.
Statutes on grandparent-grandchild contact, termination of parental
rights, and the best interest of the child standard should also be read,
analyzed and considered in forming legal arguments.