434 U.S. 246
QUILLOIN v. WALCOTT ET VIR
APPEAL FROM THE SUPREME COURT OF GEORGIA
No. 76-6372.
Argued November 9, 1977
Decided January 10, 1978
Under Georgia law no adoption of a child born in wedlock is permitted
without the consent of each living parent (including divorced or separated
parents) who has not voluntarily surrendered rights in the child or been
adjudicated an unfit parent. In contrast, 74-403 (3) and 74-203 of the Georgia
Code provide that only the mother's consent is required for the adoption of an
illegitimate child. However, the father may acquire veto authority over the
adoption if he has legitimated the child pursuant to 74-103 of the Code. These
provisions were applied to deny appellant, the father of an illegitimate child,
authority to prevent the adoption of the child by the husband of the child's
mother. Until the adoption petition was filed, appellant had not attempted to
legitimate the child, who had always been in the mother's custody and was then
living with the mother and her husband, appellees. In opposing the adoption
appellant, seeking to legitimate the child but not to secure custody, claimed
that 74-203 and 74-403 (3), as applied to his case, violated the Due Process
and Equal Protection Clauses of the Fourteenth Amendment. The trial court,
granting the adoption on the ground that it was in the "best interests of
the child" and that legitimation by appellant was not, rejected
appellant's constitutional claims, and the Georgia Supreme Court affirmed.
Held:
1. Under the circumstances
appellant's substantive rights under the Due Process Clause were not violated
by application of a "best interests of the child" standard. This is
not a case in which the unwed father at any time had, or sought, custody of his
child or in which the proposed adoption would place the child with a new set of
parents with whom the child had never lived. Rather, the result of adoption
here is to give full recognition to an existing family unit. Pp. 254-255.
2. Equal protection principles do
not require that appellant's authority to veto an adoption be measured by the
same standard as is applied to a divorced father, from whose interests
appellant's interests are readily distinguishable. The State was not foreclosed
from recognizing the difference in the extent of commitment to a child's
welfare between that of appellant, an unwed father who has never shouldered any
significant responsibility for the child's rearing, and that of a divorced father
who [434 U.S. 246, 247] at
least will have borne full responsibility for his child's rearing during the
period of marriage. Pp. 255-256.
238 Ga. 230, 232 S. E. 2d 246, affirmed.
MARSHALL, J., delivered the opinion for a unanimous Court.
William L. Skinner argued the cause and filed a brief for appellant.
Thomas F. Jones argued the cause for appellees pro hac vice. With him on the
brief was S. Ralph Martin, Jr.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
The issue in this case is the constitutionality of Georgia's adoption laws
as applied to deny an unwed father authority to prevent adoption of his
illegitimate child. The child was born in December 1964 and has been in the
custody and control of his mother, appellee Ardell Williams Walcott, for his
entire life. The mother and the child's natural father, appellant Leon Webster
Quilloin, never married each other or established a home together, and in
September 1967 the mother married appellee Randall Walcott. 1
In March 1976, she consented to adoption of the child by her husband, who
immediately filed a petition for adoption. Appellant attempted to block the
adoption and to secure visitation rights, but he did not seek custody or object
to the child's continuing to live with appellees. Although appellant was not
found to be an unfit parent, the adoption was granted over his objection.
In Stanley v. Illinois, 405
U.S. 645 (1972), this Court held that the State of Illinois was barred, as
a matter of both due process and equal protection, from taking custody of the
children of an unwed father, absent a hearing and a particularized [434 U.S. 246, 248] finding
that the father was an unfit parent. The Court concluded, on the one hand, that
a father's interest in the "companionship, care, custody, and
management" of his children is "cognizable and substantial,"
id., at 651-652, and, on the other hand, that the State's interest in caring
for the children is "de minimis" if the father is in fact a fit
parent, id., at 657-658. Stanley left unresolved the degree of protection a
State must afford to the rights of an unwed father in a situation, such as that
presented here, in which the countervailing interests are more substantial.
Generally speaking, under Georgia law a child born in wedlock cannot be
adopted without the consent of each living parent who has not voluntarily
surrendered rights in the child or been adjudicated an unfit parent. 2
Even where the child's parents are divorced or separated at the time of the
adoption proceedings, either parent may veto the adoption. In contrast, only
the consent of the mother is required for adoption of an illegitimate child.
Ga. Code 74-403 (3) (1975). 3
To [434 U.S. 246, 249] acquire
the same veto authority possessed by other parents, the father of a child born
out of wedlock must legitimate his offspring, either by marrying the mother and
acknowledging the child as his own, 74-101, or by obtaining a court order
declaring the child legitimate and capable of inheriting from the father,
74-103. 4
But unless and until the child is legitimated, the mother is the only
recognized parent and is given exclusive authority to exercise all parental
prerogatives, 74-203, 5
including the power to veto adoption of the child.
Appellant did not petition for legitimation of his child at any time during
the 11 years between the child's birth and the filing of Randall Walcott's
adoption petition. 6
However, in [434 U.S. 246,
250] response to Walcott's petition, appellant filed an
application for a writ of habeas corpus seeking visitation rights, a petition
for legitimation, and an objection to the adoption. 7
Shortly thereafter, appellant amended his pleadings by adding the claim
that 74-203 and 74-403 (3) were unconstitutional as applied to his case,
insofar as they denied him the rights granted to married parents, and presumed
unwed fathers to be unfit as a matter of law.
The petitions for adoption, legitimation, and writ of habeas corpus were
consolidated for trial in the Superior Court of Fulton County, Ga. The court
expressly stated that these matters were being tried on the basis of a
consolidated record to allow "the biological father . . . a right to be
heard with respect to any issue or other thing upon which he desire[s] to be
heard, including his fitness as a parent . . . ." 8
After receiving extensive testimony from the parties and other witnesses, [434 U.S. 246, 251] the
trial court found that, although the child had never been abandoned or
deprived, appellant had provided support only on an irregular basis. 9
Moreover, while the child previously had visited with appellant on
"many occasions," and had been given toys and gifts by appellant
"from time to time," the mother had recently concluded that these
contacts were having a disruptive effect on the child and on appellees' entire
family. 10
The child himself expressed a desire to be adopted by Randall Walcott and
to take on Walcott's name, 11
and the court found Walcott to be a fit and proper person to adopt the
child.
On the basis of these findings, as well as findings relating to appellees'
marriage and the mother's custody of the child for all of the child's life, the
trial court determined that the proposed adoption was in the "best
interests of [the] child." The court concluded, further, that granting
either the legitimation or the visitation rights requested by appellant would
not be in the "best interests of the child," and that both should
consequently be denied. The court then applied 74-203 and 74-403 (3) to the
situation at hand, and, since appellant had failed to obtain a court order
granting legitimation, he was found to lack standing to object to the adoption.
[434 U.S. 246, 252] Ruling
that appellant's constitutional claims were without merit, the court granted
the adoption petition and denied the legitimation and visitation petitions.
Appellant took an appeal to the Supreme Court of Georgia, claiming that
74-203 and 74-403 (3), as applied by the trial court to his case, violated the
Equal Protection and Due Process Clauses of the Fourteenth Amendment. In
particular, appellant contended that he was entitled to the same power to veto
an adoption as is provided under Georgia law to married or divorced parents and
to unwed mothers, and, since the trial court did not make a finding of
abandonment or other unfitness on the part of appellant, see n. 2, supra, the
adoption of his child should not have been allowed.
Over a dissent which urged that 74-403 (3) was invalid under Stanley v.
Illinois, the Georgia Supreme Court affirmed the decision of the trial court.
238 Ga. 230, 232 S. E. 2d 246 (1977). 12
The majority relied generally on the strong state policy of rearing
children in a family setting, a policy which in the court's view might be
thwarted if unwed fathers were required to consent to adoptions. The court also
emphasized the special force of this policy under the facts of this case,
pointing out that the adoption was sought by the child's stepfather, who was
part of the family unit in which the child was [434 U.S. 246, 253] in fact living, and that the
child's natural father had not taken steps to support or legitimate the child
over a period of more than 11 years. The court noted in addition that, unlike
the father in Stanley, appellant had never been a de facto member of the
child's family unit.
Appellant brought this appeal pursuant to 28 U.S.C. 1257 (2), continuing to
challenge the constitutionality of 74-203 and 74-403 (3) as applied to his
case, and claiming that he was entitled as a matter of due process and equal
protection to an absolute veto over adoption of his child, absent a finding of
his unfitness as a parent. In contrast to appellant's somewhat broader
statement of the issue in the Georgia Supreme Court, on this appeal he focused
his equal protection claim solely on the disparate statutory treatment of his
case and that of a married father. 13
We noted probable jurisdiction, 431
U.S. 937 (1977), and we now affirm.
At the outset, we observe that appellant does not challenge the sufficiency
of the notice he received with respect to the adoption proceeding, see n. 7,
supra, nor can he claim that he was deprived of a right to a hearing on his
individualized interests in his child, prior to entry of the order of adoption.
Although the trial court's ultimate conclusion was that appellant lacked
standing to object to the adoption, this conclusion was reached only after
appellant had been afforded a full hearing on his legitimation petition, at
which he was given the opportunity to offer evidence on any matter he thought
relevant, including his fitness as a parent. Had the trial court [434 U.S. 246, 254] granted
legitimation, appellant would have acquired the veto authority he is now
seeking.
The fact that appellant was provided with a hearing on his legitimation
petition is not, however, a complete answer to his attack on the
constitutionality of 74-203 and 74-403 (3). The trial court denied appellant's
petition, and thereby precluded him from gaining veto authority, on the ground
that legitimation was not in the "best interests of the child";
appellant contends that he was entitled to recognition and preservation of his
parental rights absent a showing of his "unfitness." Thus, the
underlying issue is whether, in the circumstances of this case and in light of
the authority granted by Georgia law to married fathers, appellant's interests
were adequately protected by a "best interests of the child"
standard. We examine this issue first under the Due Process Clause and then
under the Equal Protection Clause.
Appellees suggest that due process was not violated, regardless of the
standard applied by the trial court, since any constitutionally protected
interest appellant might have had was lost by his failure to petition for
legitimation during the 11 years prior to filing of Randall Walcott's adoption
petition. We would hesitate to rest decision on this ground, in light of the evidence
in the record that appellant was not aware of the legitimation procedure until
after the adoption petition was filed. 14
But in any event we need not go that far, since under the circumstances of
this case appellant's substantive rights were not violated by application of a
"best interests of the child" standard. [434 U.S. 246, 255]
We have recognized on numerous occasions that the relationship between
parent and child is constitutionally protected. See, e. g., Wisconsin v. Yoder,
406
U.S. 205, 231 -233 (1972); Stanley v. Illinois, supra; Meyer v. Nebraska, 262
U.S. 390, 399 -401 (1923). "It is cardinal with us that the custody,
care and nurture of the child reside first in the parents, whose primary
function and freedom include preparation for obligations the state can neither
supply nor hinder." Prince v. Massachusetts, 321
U.S. 158, 166 (1944). And it is now firmly established that "freedom
of personal choice in matters of . . . family life is one of the liberties
protected by the Due Process Clause of the Fourteenth Amendment."
Cleveland Board of Education v. LaFleur, 414
U.S. 632, 639 -640 (1974).
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, 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, 431
U.S. 816, 862 -863 (1977) (STEWART, J., concurring 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. Nor is this a case in which the proposed adoption would
place the child with a new set of parents with whom the child had never before
lived. Rather, the result of the adoption in this case is to give full
recognition to a family unit already in existence, a result desired by all
concerned, except appellant. Whatever might be required in other situations, we
cannot say that the State was required in this situation to find anything more
than that the adoption, and denial of legitimation, were in the "best
interests of the child."
Appellant contends that even if he is not entitled to prevail as a matter of
due process, principles of equal protection require that his authority to veto
an adoption be measured by [434
U.S. 246, 256] the same standard that would have been applied to
a married father. In particular, appellant asserts that his interests are
indistinguishable from those of a married father who is separated or divorced
from the mother and is no longer living with his child, and therefore the State
acted impermissibly in treating his case differently. We think appellant's
interests are readily distinguishable from those of a separated or divorced
father, and accordingly believe that the State could permissibly give appellant
less veto authority than it provides to a married father.
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 shouldered 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, indeed, 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 relationship, and even a father whose marriage has broken apart will
have borne full responsibility for the rearing of his children during the
period of the marriage. Under any standard of review, the State was not
foreclosed from recognizing this difference in the extent of commitment to the
welfare 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 judgment of the Supreme Court of
Georgia is, accordingly,
Affirmed.
[ Footnote
1 ] The child lived with his maternal grandmother for the initial period of
the marriage, but moved in with appellees in 1969 and lived with them
thereafter.
[ Footnote
2 ] See Ga. Code 74-403 (1), (2) (1975). Section 74-403 (1) sets forth the
general rule that "no adoption shall be permitted except with the written
consent of the living parents of a child." Section 74-403 (2) provides
that consent is not required from a parent who (1) has surrendered rights in
the child to a child-placing agency or to the adoption court; (2) is found by
the adoption court to have abandoned the child, or to have willfully failed for
a year or longer to comply with a court-imposed support order with respect to
the child; (3) has had his or her parental rights terminated by court order,
see Ga. Code 24A-3201; (4) is insane or otherwise incapacitated from giving
consent; or (5) cannot be found after a diligent search has been made.
[ Footnote
3 ] Section 74-403 (3), which operates as an exception to the rule stated
in 74-403 (1), see n. 2, supra, provides:
"Illegitimate children. - If
the child be illegitimate, the consent of the mother alone shall suffice. Such
consent, however, shall not be required if the mother has surrendered all of
her rights to said child to a licensed [434 U.S. 246, 249] child-placing agency, or to
the State Department of Family and Children Services."
Sections of Ga. Code (1975) will hereinafter be referred to
merely by their numbers.
[ Footnote
4 ] Section 74-103 provides in full:
"A father of an illegitimate
child may render the same legitimate by petitioning the superior court of the
county of his residence, setting forth the name, age, and sex of such child,
and also the name of the mother; and if he desires the name changed, stating
the new name, and praying the legitimation of such child. Of this application
the mother, if alive, shall have notice. Upon such application, presented and
filed, the court may pass an order declaring said child to be legitimate, and
capable of inheriting from the father in the same manner as if born in lawful
wedlock, and the name by which he or she shall be known."
[ Footnote
5 ] Section 74-203 states:
"The mother of an illegitimate
child shall be entitled to the possession of the child, unless the father shall
legitimate him as before provided. Being the only recognized parent, she may
exercise all the paternal power." In its opinion in this case, the Georgia
Supreme Court indicated that the word "paternal" in the second
sentence of this provision is the result of a misprint, and was instead
intended to read "parental." See 238 Ga. 230, 231, 232 S. E. 2d 246,
247 (1977).
[ Footnote
6 ] It does appear that appellant consented to entry of his name on the
child's birth certificate. See 88-1709 (d) (2). The adoption petition gave the
name of the child as "Darrell Webster Quilloin," and appellant [434 U.S. 246, 250] alleges
in his brief that the child has always been known by that name, see Brief for
Appellant 11.
[ Footnote
7 ] Appellant had been notified by the State's Department of Human
Resources that an adoption petition had been filed.
[ Footnote
8 ] In re: Application of Randall Walcott for Adoption of Child, Adoption
Case No. 8466 (Ga. Super. Ct., July 12, 1976), App. 70.
Sections 74-103, 74-203, and 74-403 (3) are silent as to the appropriate
procedure in the event that a petition for legitimation is filed after an
adoption proceeding has already been initiated. Prior to this Court's decision
in Stanley v. Illinois, 405
U.S. 645 (1972), and without consideration of potential constitutional
problems, the Georgia Supreme Court had concluded that an unwed father could
not petition for legitimation after the mother had consented to an adoption.
Smith v. Smith, 224 Ga. 442, 445-446, 162 S. E. 2d 379, 383-384 (1968). But cf.
Clark v. Buttry, 226 Ga. 687, 177 S. E. 2d 89 (1970), aff'g 121 Ga. App. 492,
174 S. E. 2d 356. However, the Georgia Supreme Court had not had occasion to
reconsider this conclusion in light of Stanley, and, in the face of appellant's
constitutional challenge to 74-203, 74-403 (3), the trial court evidently
concluded that concurrent consideration of the legitimation and adoption
petitions was consistent with the statutory provisions. See also Tr. of Hearing
before Superior Court, App. 34, 51; n. 12, infra.
[ Footnote
9 ] Under 74-202, appellant had a duty to support his child, but for
reasons not appearing in the record the mother never brought an action to
enforce this duty. Since no court ever ordered appellant to support his child,
denial of veto authority over the adoption could not have been justified on the
ground of willful failure to comply with a support order. See n. 2, supra.
[ Footnote
10 ] In addition to Darrell, appellees' family included a son born several
years after appellees were married. The mother testified that Darrell's visits
with appellant were having unhealthy effects on both children.
[ Footnote
11 ] The child also expressed a desire to continue to visit with appellant
on occasion after the adoption. The child's desire to be adopted, however,
could not be given effect under Georgia law without divesting appellant of any
parental rights he might otherwise have or acquire, including visitation
rights. See 74-414.
[ Footnote
12 ] The Supreme Court addressed itself only to the constitutionality of
the statutes as applied by the trial court and thus, at least for purposes of
this case, accepted the trial court's construction of 74-203 and 74-403 (3) as
allowing concurrent consideration of the adoption and legitimation petitions.
See n. 8, supra.
Subsequent to the Supreme Court's decision in this case, the Georgia
Legislature enacted a comprehensive revision of the State's adoption laws,
which became effective January 1, 1978. 1977 Ga. Laws 201. The new law
expressly gives an unwed father the right to petition for legitimation
subsequent to the filing of an adoption petition concerning his child. See Ga.
Code 74-406 (1977 Supp.). The revision also leaves intact 74-103 and 74-203,
and carries forward the substance of 74-403 (3), and thus appellant would not
have received any greater protection under the new law than he was actually
afforded by the trial court.
[ Footnote
13 ] In the last paragraph of his brief, appellant raises the claim that
the statutes make gender-based distinctions that violate the Equal Protection
Clause. Since this claim was not presented in appellant's jurisdictional
statement, we do not consider it. This Court's Rule 15 (1) (c); see, e. g., Phillips
Chem. Co. v. Dumas School Dist., 361
U.S. 376, 386 , and n. 12 (1960).
[ Footnote
14 ] At the hearing in the trial court, the following colloquy took place
between appellees' counsel and appellant:
"Q Had you made any effort
prior to this time [prior to the instant proceedings], during the eleven years
of Darrell's life to legitimate him?
"A . . . I didn't know that
was process even you went through [sic]." App. 58. [434 U.S. 246, 257]