*1 court he As the that did. procedures—but statutory states, procedures “The

further refused the defendant followed

were tests.” and breath blood

offered therefore, re- believe, that defendant’s

I 321B tests was chapter take

fusal the FAIT test was

admissible, of the admissibili- question

irrelevant chapter take the 321B refusal

ty of the

tests. J., concurred

Reynoldson, specially Harris, JJ., opinion in which Rees and filed joined. J., part

Uhlenhopp, dissented opinion. filed OF the CHARITIES CATHOLIC DUBUQUE, OF

ARCHDIOCESE

Iowa, Appellant, ZALESKY, Appellee.

Joseph 2-56720.

No. of Iowa.

Supreme Court 29, 1975.

Aug.

541 *3 Hughes, Dubuque, appel- E. for

Alfred lant. Koehler, Chipokas, Chipokas, L.

James Merrifield, Rapids, appel- & Cedar for Platt lee.

RAWLINGS, Justice. Section 238.27 declares: parent “Neither may sign such release without the written Plaintiff, Charities of the Arch Catholic of the other consent unless Iowa, Dubuque, appeals from tri diocese parents are not married to each other.” declaratory judgment holding The al court’s 238.28 states: “If parents Section Sections 288.26-238.28 and 600.3 are Code other, married to each parent relating adoptions placements and child hav- ing providing the care and are purpose unconstitutional. We wants of n everse. may sign the child the release.” Chapter prescribes procedures rela- 16, 1971, Baby Boy June Cox was born to direct through tive child or of wedlock Karen Ann Cox. out Defend- child-placement agency. ant, Joseph Zalesky, is the natural father of parents child. These were never mar- part In relevant says: 600.3 *4 ried. parents “The of both consent shall be * * * given adoption to unless [an] * * * June 21 Miss Cox executed a release of parent parents or have rights (permanent parental care and custo- signed a release of the child in accordance dy) plaintiff, to a * * child-placement licensed the statute on child with placing. agency. plaintiff Thereafter commenced given If the child has been by written 11, adoption proceedings. July 1972, the release to a licensed child welfare agency adoption was finalized. It is conceded de- in accordance with the statute on child consent a fendant’s to termination of his placing, the consent of the agency to rights or parental subsequent adoption whom the release was made shall be nec- obtained, nor was was he afforded no- essary.” opportunity tice and to be heard in either of 30, 1973, July trial court held 238.26- §§ prior these related matters to finalization of 600.3, quoted above, 238.28 and violate proceedings. said protection and equal process, due as alleged defendant, because they permit termina plaintiff commenced the in- November parental of tion of a declaratory judgment ac- involved stantly requiring without first his consent or af adjudication seeking validity an as to tion fording him notice and opportunity to be adoption. the aforesaid December of brief, In heard. trial court’s holding was thereby attacking filed answer defendant premised Stanley Illinois, on v. 645, 405 U.S. (child placement 238.26-238.28 Code §§ 1208, 31 L.Ed.2d 551 (1972); Roth (adoption statute) 600.3 statutes)' and as Services, stein Lutheran Social 405 U.S. equal protection proc- and due of violative 1051, 1488, S.Ct. L.Ed.2d 786 ess. Vanderlaan, Vanderlaan part chapter particularly In relevant (1972). L.Ed.2d 787 prescribe 238.26-238.28 the manner in support In of a plaintiff reversal contends voluntary termination of which holding trial court erred in the above cited rights may custody be effectuated statutory enactments are unconstitutional. child-placement to a minor transferred agency. filing I. Since of appeal this person may “No says: parties 238.26 both hereto have Section conceded defend * * * rights, formally another his or has transfer to ant consented to the aforesaid permanent of respect adoption Baby Boy duties with to care By Cox. reason * * a child unless thereof the case now custody or before us is moot. a written release Board of Directors parent parents sign or Ind. Sch. Dist. v. * * * * * * Green, custody 1264-1265, 259 Iowa * agency N.W.2d child-placement] child to [a we Despite holding the above have these opinions. legislature II. given is here, where, present- “the issue in defining wide said discretion limits of public interest there a statute is of substantial classes when involves classifica- ed or permissible exception gener- things. If a persons classifica- exists operates which tion is reasonable and equally that a case has become moot al rule class, upon all within the it is question academic only an will valid presents Enterprises, Brown classification. appeal.” on Board of Di- Inc. v. dismissed be Iowa, Fulton, Green, N.W.2d Iowa 776 and Ind. Dist. at rectors Sch. citations. at 856. 147 N.W.2d judicial “The government branch of the In vein it is trial evident court’s no power determine legis- whether places upon a cloud chs. Code decree unwise, lative Acts are wise or nor has it will, effect, jeopardize 600 and power to declare an Act void unless it proceedings previously whether plainly repugnant and without doubt process may -or completed, now which some provision the Constitution. Gra- Therefore, adjudi an hereafter instituted. Worthington, supra, ham v. 259 Iowa constitutionality as to of the statutes cation 146 N.W.2d 631.” deemed be a matter above cite.d preface IV.As an additional concern, our con- guidance desirable for public sideration of constitutional issues here public courts or other officers trial our an evaluation presented Stanley, citizens, supra, and all concerned and neces bodies *5 appropriate. is deemed prob because of a likelihood the same sary instantly presented may recur. lem woman, There a man and though not married, lived together intermittently had these circumstances we Under conclude eighteen years. Three children were issues at hand should be now enter- the born to them. When the mother court, died two by this albeit in the abstract. tained adjudged of the children were to be depend- guiding At outset these III. the stan- of ents the state. The known father was Keasling Thompson, set forth dards opportunity accorded no to be heard on the (Iowa 1974) 689-690 N.W.2d come parental issue of his as to termination play: into rights. statutes, “Ordinarily, with notable excep- The involved Illinois law allowed all stat- involved, regularly not here tions enacted utorily “parents” defined to be heard on legislature will be by the accorded a prior matter of fitness termination strong presumption constitutionality But rights. custodial the father of an ille- all reasonable intendments must was included gitimate child not within the indulged validity favor of the “parent”. definition challenges attacked. One who legislation grounds on constitutional legislation Stanley appealed parent-child termi negate every the burden reasonable the Illinois judgment Supreme nation upon may which statute be sus- In re Stanley, basis 45 lll.2d Court. See constitutionality argued Where He there tained. N.E.2d 814 fairly merely doubtful or debat- unwed statute exclusion of fathers from the statu able, will not interfere. tory parent equal the courts Thus violated pro definition argument not be declared unconstitu- rejected a statute will tection. This was by clearly, palpably and high unless it with- tribunal. Thereupon tional Illinois the Unit infringes doubt, Court, the constitution. Supreme having out ed States granted Corporation Develop- certiorari, C-B-R Hearth reversed and a proceeding held Iowa, Co., Inc., 210 N.W.2d ment which culminated in termination an Vick, 637; Iowa, 205 N.W.2d custody State unwed father’s of his child without many opportunity and the authorities cited in notice to be heard violated process. and due equal protection This V. Mindful of the foregoing we turn by first holding considering was reached equal protection now matter of under due process, under Illinois statutes then em quoted the Iowa statutes above. analysis as a ploying finding such basis for equal protection. denial of It is at once evident these enact ments do discriminate as in Stanley by Court, process upon recog- As to due drawing lines of distinction regarding con nizing father’s putative interest in his sent to or release of a child to an child, illegitimate private balanced the agency purpose for such on the basis of against interests one public another. In so Rather, any parent, status. mar doing the observed that Court when the ried, divorced, single, male or female stands putative separates state from his position. in like only line hearing demarca parent child without a is de- caring tion is between the legally protected right noncaring prived of without parent. furthering the interest public any sub- held, was way. consequently

stantial It Noticeably, aforesaid statutes hearing, absent noticed the statutory meth- provide by two methods which adoption had od which Illinois chosen to imple- may be effectuated. See Stotler v. Luther- unreasonably ment its state interest inter- Iowa, an Social Service of fered with the father’s N.W.2d rights. (Iowa 1973). And since the laws appli- And, having determined such a parent’s pari cable thereto are in materia they are so thus cursorily could not be terminat- Bartz, considered. See State v. 224 N.W.2d ed, the court reasoned since all married (Iowa 1974); Am.Jur.2d, Stat- parents statutorily were Illinois entitled to 188-190; utes, C.J.S. Statutes prior to hearing being a fitness separated 366c(l). children, their it was a equal from denial of protection deny right same puta- to a Code ch. 238 allows release of a child tive father. placement under 14 to a licensed agency for purpose of adoption only with the

Two state court decisions consent involving issues *6 parents subject of both to designated Stanley, raised in were excep- remanded for con tions neither here relevant light opinion sideration in of that nor and there considered. however, Significantly, upon parents vacated. State ex rel. v. where the See Lewis Mich., parent are not married Lutheran Wis. & Upper Soc. Serv. providing for 420, (1970), “may 47 N.W.2d 56 wants of the child sign Wis.2d 178 vacat the release”. v. And by parent ed sub. nom. Rothstein 600.3 a Lutheran similarly § Social situated 1051, Services, 1488, may 405 92 consent U.S. S.Ct. to a direct adoption 31 by desig- (1972); L.Ed.2d 786 Vanderlaan adoptive parents. v. nated Vander See Stotler v. Lu- 410, laan, Ill.App.2d 126 262 Iowa, N.E.2d theran 717 Social Service of supra. See (1970), 1051, 1488, vacated 405 U.S. 92 also Uhlenhopp, S.Ct. H. “Adoption in Iowa”, 40 (1972). 31 L.Ed.2d 786 See also Cheryl (1955). Iowa L.Rev. 228 Lynn Superior H. v. Court for City of Los Therefore, Cal.App.3d 273,

Angeles, 41 115 Cal.Rptr. determinative factor (1974); ex rel. under Iowa law People regarding 849 Slawek v. direct adoption Cove Home, 20, by designated nant Children’s 52 of a child adoptive Ill.2d parents, 284 (1972); N.E.2d 291 Doe v. release of a child a Department child-placement agen Services, 666, cy, Social 71 Misc.2d 337 or placed N.Y.S.2d by such (1972). 102 generally agency See In re Adoption of whether nonconsenting parent Anonymous, 1037, 78 Misc.2d provided 359 for wants N.Y.S.2d of his or her off (1974); M., 410, 220 In re 132 Vt. 321 spring. Adoption A.2d In re See of Keithley, 206 (1974); Stroh, 295, 19 v. 707, Slawek 62 (Iowa Wis.2d N.W.2d 711-712 1973); Rubendall (1974). 215 N.W.2d 9 Bisterfelt, v . 1388,1390-1391, 227 Iowa

545 also Code (1940). See Surely sovereign, parens pat- N.W. riae, legitimate has a 675.29. socio-humanitarian 675.1 §§ every in child within its interest boundaries. posed thus is whether question perforce state interest And this attaches to versus “caring” classification statutory adoption proceedings. Stanley See v. passes constitutional parent “noncaring” Illinois, 652, 1213; 405 U.S. at 92 S.Ct. at muster. 535, Hackney, v. Jefferson U.S. 546- 32 L.Ed.2d 285 it is understood the regard, In McDonald, In re 201 N.W.2d authority statutorily have states various 1972); (Iowa Crawley, Helton v. in differ persons classes of different treat 296, 310-315, 41 60 (1950); N.W.2d Iowa is rea such classification ways, provided ing 3; Am.Jur.2d, Adoption, Adoption 2 C.J.S. upon some sonable, arbitrary, and rests 5;3, Iowa, cf. Persons Sosna v. §§ having a and sub fair of difference ground 560-563, 42 L.Ed.2d legisla object relation stantial (1975). persons similarly alike all as to treat tion so us It is to evident difference Reed, Reed v. See circumstanced. caring noncaring parents between 251, 253, 30 L.Ed.2d 225 71, 75, 92 S.Ct. relationship rational state ob bears a to be advanced the above sought jective is this observation State To like effect otherwise, Phrased Iowa statutes. quoted 1975): (Iowa Hall, 227 N.W.2d patent v. is not statutory differentiation rationally arbitrary and does relate to a ly given wide discre- legislature “The interest, e., governmental pro i. legitimate when defining the limits of classes and best interests of of the welfare motion persons involves classification a statute the state. In re within all children a classification is reasonable things. If Keithley, 206 N.W.2d at 712. Adoption of equally upon all within the operates class, Keasling Stanley, valid classification. the father Illustratively, it is a caring parent. Brown known There- Thompson, supra; Enterprises, was a supra, Fulton, Iowa, Stanley presented been fore, 192 N.W.2d case had Inc. jurisdiction the in this unmarried a court citations. father’s, would have been accorded Iowa, Vogelmann, Lunday “In recognition applicable under appropriate say: we N.W.2d words, he In other would have law. Iowa “ sustained must be classification ‘[T]he equal protection. here afforded been arbitrary and bears patently it is unless Code 238.26-238.28 and now hold We legitimate relationship to a *7 no rational equal violate constitutional do not 600.3 Id. It does not interest. governmental mandates. protection simply because protection deny equal issue to be resolved is VI. The next inequality; in some it results practice quoted above statutes meet whether government permit problems practical requirements. of law process due procedural accommodations; and the classifi- rough question Stanley, supra, no facts With little or upheld any if state of will be cation putative requires that a known justify generally conceived to it. reasonably can be 471, 485, Williams, adoption must consent to an of his Dandridge v. 491, given and 1153, 1161, offspring, 501- otherwise notice be 25 L.Ed.2d 90 S.Ct. accorded hearing has wide dis- him before legislature right The (1970). 502 can be terminated. Cedar See deciding classifications. cretion Rights Putative Father’s Protecting v. Personnel As- Cem. Ass’n Mem. Park 343, (Iowa Stanley v. Illinois: Problems in Im- Inc., 350 soc., 178 N.W.2d After ” * * 115, Law Family 13 J. 125- 1970). plementation, 546 Stanley v. Illinois: (1973-1974); Consti-

132 shall, named however, have the Father, Rights a Putative 41 tutional pleading burden of proving, in the 334, (1972). L.Rev. 345-347 And as UMKC sense of the risk of nonpersuasion, he has majority of courts determinable best providing been and is for the wants of said Stanley have so Cheryl held. applying See This risk child. of nonpersuasion shall at Superior for City H. v. Court Lynn Los remain all times with the father. People ex rel. v. Angeles; Slawek Covenant Van Horn v. Iowa See Public Service Com- Home; Adoption In re of Anony- 365, Children’s pany, (Iowa 182 N.W.2d 1970); 370 mous; Department of Doe v. Social Serv- Iowa R. 344(f)(5)(6); Civ.P. 9 Wigmore on ices; Stroh, supra Evidence, In re 2485, Slawek (1940); 2487 1 §§ Jones on P., Guardianship 129, of Donna 80 Evidence, Misc.2d (6th 5:l-5:2 1972); ed. §§ McCor- (1974). 370 362 N.Y.S.2d Evidence, 336, on mick (2d 1972). 337 §§ ed. Adoption See also In re of Vogt, 219 Moreover, says, Code 600.4 in relevant § 529, (Iowa 1974). 531 N.W.2d provide “The Court shall for such part: hearings adoption proceedings may apparent It is to us the aforesaid necessary prescribe and shall notice there- requisite noticed hearing as to such known of.” putative father is clearly contemplated by above quoted statutes and deemed to be foregoing,

Mindful of the we are part an inherent thereof. This court has adjudication satisfied an effective cannot never determined otherwise and now con any be entered in proceeding hereafter in cludes the involved statutory (1) enactments volving adoption either direct to desig interpreted. must be so See (2) Terminiello v. adoptive parents adoption nated City Chicago, 337 894, through child-placement agency, 895, (1949); 93 L.Ed. 1131 Wright City upon parental premised release of the child Montgomery, Alabama, 867, 406 F.2d 874 purpose, unless an identity for such 1969); (5th Cir. Lavin, State v. 204 N.W.2d nonconsenting putative áddress known fa 844, (Iowa 1973); 848-849 Whetstone, In re appropriate timely ther accorded notice 137 Fla. So. opportunity means, to be heard. Car This Forshee, penter v. 103 Ga.App. any consent absent release for or S.E.2d 791-793 See also Os wedlock, of a child born out of Edison, borne v. 211 N.W.2d (Iowa such known father must be accorded mean 1973); McGuire, State v. ingful N.W.2d opportunity to show he signifi (Iowa 1972); Fulton, Janson v. cantly provided for the wants of his child (Iowa N.W.2d 442-443 1968); ready, willing and is Code pro and able to thus 4.2, 600.4, quoted supra; Sutherland, §§ 2A vide for future wants of said child before a Statutory Construction, (Sands 45.11 § can 4th effectively court terminate his parental 1973); Am.Jur.2d, ed. Adoption, rights. 55 at Rapids, § See Cedar Etc. v. Cedar 905; 16A C.J.S. Constitutional Sch., Law Rapids 391,401- Commun. 619. § N.W.2d (Iowa 600.4; 1974); Code § Am. VII. Pursuing the matter at hand Jur.2d, Law, 569; Constitutional 16A more step one we also hold the notice to be C.J.S. Constitutional Law 622. given such known putative father may be in also footnote 9 in Stanley Illinois, such mode or manner as the trial court *8 1216; at U.S. 92 S.Ct. at Code 600.3. § appropriate deems and shall in each case however, Understandably, a no prescribe, including notice by mail, certified nonconsenting putative ticed-in subject shall to process constitutional due re not have the initial burden proof. of Rath quirements. footnote See 9 in Stanley v. er, petitioner the shall have the initial Illinois, bur supra. See also Code §§ 232.4-232.- den pleading of proving 600.4; and the 9, 232.45, individual 618; Code ch. Iowa named is subject the father of the (renumbered child. R.Civ.P. 56 56.1 July as of 57, 58, (as July amended effective persed. 1975), names and addresses of 1, 1975); 16 (effective July 1975), many potential 59.1 beneficiaries were un- 560; Law, 16A Am.Jur.2d, trustee, § Constitutional yet known to the before a court 569(4)b, Law § Constitutional could render final decree it was re- C.J.S. provide quired to these individuals with any judicially notice so specifically, More constitutionally sufficient notice of the reasonably be such as is must prescribed The Supreme proceedings. Court held circumstances, calculated, all the to under the notice of trust that settlement must regard- putative father known apprise to beneficiaries known be mailed to the pro- adoption-related of the pendency ing [Mullane, supra, trustee 339 U.S. at him reasona- and afford ceedings involved However, at as to S.Ct. those 659]. appear to heard. opportunity ble unknown, held who were Court news- this such known regard, in Further paper publication constitutionally suffi- cannot be nonconsenting putative father cient. [Id.] if, upon reasonable notice complain heard extent “To some this flexible treatment appear or appearing he not does given, group of individuals whose of interests aforesaid, fails, show has been he distinguishable only are in terms of the of his child for the wants providing is practical problems different of notice judicial is subject adoption accorded apposite is they present problem Stanley, supra; 9 in footnote approval. putative presented by the father. But in dissenting in State ex rel. opinion Lewis context, adoption unless the name of Wis., of 207 N.W.2d Social Servs. Lutheran available, a newspaper the father de- 834; Adoption, 165 In re Asterbloom's at scription of interest by threatened Am.Jur.2d, generally 28 at 160. See P.2d provides less judicial proceedings protec- 26-28; Waiver, Estoppel and C.J.S. §§ practicable less tion and is than in Mul- Estoppel 59. mother and child are to lane. If remain juncture upon we focus this VIII. At keeping in with the anonymous necessary regarding noticed-hearing problem adoptive placement practices Code [see father, adoption-re- in putative 600.8-600.10], notice of adoption whose name address is proceedings, lated in a appearing newspaper cannot provide subject a relevant ob- On unknown. necessary apprise the information an (1973) 59 Va.L.Rev. 517 in be- servation unidentified father that his in- stated, at pertinent. As there 529- comes Thus, to be terminated. terests are while 531: forms traditional of constructive notice provide does suffi- Constitution “[T]he elsewhere, they lack utility are useful in problem to deal with the cient latitude context. A putative father. con- the unknown “Nevertheless, the rationale for con- process due clause which struction is helpful resolving notice structive place insurmountable obstacles would notice problem puta- unknown adoption system is way of an efficient The Supreme Court has said tive father. justifiable constitutionally nor re- neither ‘general principle invoked is that that the class of fathers is quired. The imputes knowledge when oppor- the law diverse, respect unique. but interest, with tunity coupled reasona-^ Hanover Bank & Mullane v. Central In care, necessarily impart would it.’ ble Co., U.S. Trust Co., v. Shelby Iron States (1950) sought protec- the Court [United L.Ed. 580-581, property interests benefici- (1927)]. To the end of persons L.Ed. 781 inform- trust. The of a common aries exercising ing one who reasonable care the trustee’s settlement of affected interests, widely newspaper numerous and dis- no- were in behalf accounts *9 only a modicum added of provides practical tice “The effect of requiring self- protection. is the inquiry puta- notice that concerned would be the tive father one most often of an illegitimate birth impending

“The actual receiving notice impending of potential warning the for the carries proceedings. adoption cooperative The possibility of the forth- of putative identify him, mother would he and would will his coming proceedings which affect receive formal notice from family the procreator, pu- child’s the rights. As Similarly, partner court. the unnamed responsibility bears for his tative marriage a de facto would aware be of well-being. Code 675.- offspring’s [See his status child’s and through to self-infor- be clear him that this It should 1] mation of assumed, pending legal learn proceedings must be and that responsibility his affecting do so interests. Like to will result Pe- failure his Stanley, ter he would assuming responsibility come of forward state’s hand, own initiative. On the opportunity this for knowl- other Given if the child. putative permit engaged father had to self-infor- in a edge, it is reasonable brief putative mother, unknown father’s sexual encounter with the as the mation it is he unlikely notice. would take means of sole trouble to himself, inform and hence likely would course a solution of involves a “Such proceedings of unaware for the adoption of constructive notice in the focus shift of his child. appendage newspaper away from the emphasis on the basic toward publication lacking “While amenities a more that, It self-inquiry. duty of assumes formal constructive notice system, only where the al- circumstances under solution seems constitutionally sound. compromise sig- is to other ternative it protects those putative fa- involved, self-inquiry interests nificant thers who are worthy most of considera- constitutionally may constitute suf- alone Admittedly, conjure tion. one can up Yet a such is notice. shift ficient hypothetical situations in pro- which this The law is under no illusion one. radical posed provides protection solution no to the effectiveness of devices as but putative the interested unidentified The newspaper publication. Supreme father. These situations occur more fre- has remarked that chance of an Court quently imagination than in fact. receiving party’s interested actual notice putative The unknown group fathers [Mullane, slight. supra, is indeed who are unaware of mother’s inten- 658], at S.Ct. at odds The child, place yet tions to are concerned greater when the become name welfare, for the child’s is small. Even party unknown and conse- interested the group smaller is putative unknown [Mullane, be included. quently cannot fathers unaware the pending at 659], S.Ct. at supra, likely prevail who are if hearing require does the Constitution embar- Nor given them.” rassing, time expensive, consuming investigations to Briefly stated, ascertain the name and by publica notice identity father so as to to an location tion or address pu unknown father, newspaper publica- the need for within adoptions, obviate tative the ambit of altogether. ordinarily practi- limited would be an futility. exercise in [Id.] protection generally cal afforded traditional con- Grand River Dam Authority techniques Going, F.Supp. (N.D.Okl. structive notice eases the deci- 1939). deemphasize them. when It would sion And also needlessly embarrass concerned, employing newspaper particularly notice threatens the unwed moth interests, er, significant harm all the other and unjustifiably violate rule compelling. confidentiality the conclusion becomes which usually attends such

549 pur or no 358, 363-366, little fruitful 148-149, for U.S. 53 S.Ct. 77 proceedings, (1932). 360 also Gosa Mayden, L.Ed. See v. pose. 665, 685, 2926, 2938, 93 S.Ct. foregoing, the we con light In of (1973); Chevron Company Oil L.Ed.2d where, any that hereby hold and

clude Huson, 97,106-107, U.S. 92 S.Ct. showing proceeding, adoption-related (1971); Cipriano L.Ed.2d City court con reasonably which the upon made Houma, of of address of the father the name or cludes 1900-1901, 23 (1969). L.Ed.2d 647 known, of wedlock born out summary, In we here X. hold Code court, findings upon appropriate the then and 600.3 comport 238.26-238.28 with §§ record, may dispense of entered order and requirements (1) regarding constitutional parent. to such giving of notice the with protection (2) equal procedural and due be notice-dispensing order shall No such process as said enactments are instantly however, prior the entered, timely absent interpreted. ad appointment guardian meaningful plaintiffs. are taxed to Costs Court Se.e child. person of affected litem 23. rule 600.3; Wadst, re In Estate of Code See 1204-1206, 229 N.W. Iowa Reversed. Gifford, Hopkins v. Ill. 178, 180-181 See also Code N.E. MOORE, MASON, J.,C. and LeGRAND 232.11; 13,14. 232.2(8)(d), Iowa R.Civ.P. McCORMICK, JJ., concur. and impres- case of is a first IX. Since this REYNOLDSON, HARRIS, REES and us, as to question retroactivity with sion JJ., specially. concur holding regard- of our prospectivity versus hearing should be now resolved. ing noticed J., UHLENHOPP, dissents in part. it is threshold understood innu- At the fi- adoptions have been heretofore REYNOLDSON, merable Justice (concurring spe- no- jurisdiction in this without cially). nalized hearings today which we accord ticed with result agree by I reached requirements if such

recognition. And out specially but concur concern majority of retroactively applied impact to be were goes majority’s opinion further Surely the of chaotic. interests would required Stanley. danger lies than homes, tranquility many of society, Stanley over-extension and a lem- in an presently children en- of numberless march to the social lurk- ming-like disaster family a wholesome environment joying decision’s dicta. ing in that may any flaws which outweighs procedural some of apparent sweeping now It is effected previously such attended have Stanley was language written without otherwise, a retroactive adoptions. Stated presentation proper of either benefit statutes, as in- of our application countervailing or state interests other indi- produce interpreted, would stantly interests, constitutional e. g., vidual the im- hardships defy as to all dictates self-evident legally adoptions, secure portance inva- law. justice under right to privacy of constitutional sions supra, resulting their holdings, our mothers and children

Consequently, unwed adversely (1) nullify apply third-party revealing nor service no- neither from shall “to-whom-it-may-concern” pub- adoption which been finalized tices any notices, anonymity re need for between any case where mother has lished (2) to parents, adoptive adoption, prior child for emotional natural leased by litiga- Great Northern to unwed mothers caused filing opinion. trauma Co., uncertainty, detrimental Refining psycho- Oil & Ry. Co. Sunburst illegitimate effects on children flow- logical fit to rear his progeny so deprive as to him *11 changes in from environment and de- ing in his custody of children without notice placements, prospec- the layed permanent hearing. and (and reported) congestion of now foster tive I. Notice. children by thought facilities once le- care adoption, danger free for the of ille- gally Stanley may agree I as construed es- becoming pawns children gitimate con- tablishing a due-process requirement for the payments, probabil- for A.D.C. and tests type some of notice to a non-consenting by of blackmail and extortion ity an un- in adoption-related father proceedings. number of conscienceless known unwed fa- it is But determined due proc- that “[o]nce Comment, 59 thers. See Va.L.Rev. 517 the applies, question ess proc- remains what (1973). Morrissey Brewer, ess is due.” 408 U.S. 2593, 471,481, 2600, such 92 That dicta seldom carved in stone S.Ct. 484, 33 L.Ed.2d in the (1972); Lopez, is now demonstrated sudden concern 565, 494 Goss v. 419 575, U.S. by the United Supreme evidenced States 95 725, S.Ct. 42 (1975). L.Ed.2d 737 in Rothstein v. Lutheran Court Social Serv Shevin, also Fuentes 67, 92 1051,92 ices, 405 S.Ct. 31 U.S. L.Ed.2d 1983, 32 S.Ct. L.Ed.2d (1972). 556 (1972) (vacating judgment 786 and remand “It has been said so often by this Court ing Services, v. Lutheran State Social as not to require and others citation of [1970]) 178 N.W.2d 56 Wis.2d that the authority process that due is flexible and light should be reconsidered in of Stan case procedural such calls for protections as but ley “with due consideration for the * * * situation particular the demands. completion adoption proceedings of the and concept To that the say process due child apparently that the has fact lived flexible does not mean that judges are at adoptive family for with interven large apply any it and all relation- court, ing of time.” The Wisconsin period ships. Its flexibility is in its scope once it invitation, held after accepting remand has determined that been some process is appeal “putative” on father final had due; recognition it is a that not all situa- the child before its birth. abandoned State calling procedural tions for safeguards Services, ex rel. Lewis v. Lutheran Social call for the same kind procedure.” 36, 227 N.W.2d 68 Wis.2d Brewer, —Morrissey v. at U.S. Regardless permissible of the interpreta S.Ct. at 33 L.Ed.2d at 494. Stanley it resulted from a facial on attack the Illinois statutes and not an majority vast In the of these situations, on applied, attack the statute as it is obvi involving nonmarriage births followed by setting the unique ous factual unwed —an attempted the mother’s release parent custody with furnishing sup and adoption, we are balancing the recog- port majority decision. The —motivated personal nized fundamental right of first two sentences of the opinion demon privacy of mother who has put her life on preoccupation strate court’s with the line bear the child Wade, Roe v. [see posture factual of the case. And in the 113,152-153, U.S. 726-727, S.Ct. analysis, protected final the interest L.Ed.2d 176-177 Doe v. Stanley private was “The interest Rampton, 366 F.Supp. 189, (D.Utah of a man in the children he has sired 1973)], and the child’s fundamental and per- * * raised at right privacy sonal not to be advertised at at (Emphasis L.Ed.2d 558. sup illegitimate, against as the still-undefined plied.) constitutional of a par- father whose non-essentials, Stripped of its Stanley enting potential has been only manifested simply proscribed a statutory conclusive his ability demonstrated to conceive a presumption that an unwed father was un- my view, child out wedlock. In the due n required by whatever countervail- process Hearing. II. possesses should be rights the

ing convinced, am I majority Nor superior the far accommodate narrowed are, Uhlenhopp apparently that such Justice mother child. interests non-caring “putative” father who does already marked the es- majority custody presumptively have is so quali- futility “to-whom-it-may-eon- sential parent person as a that some other fied a “putative” notice in case of cern” must assume the burden to organization identity or address is un- whose prove unfitness. against publication Balanced known. *12 is not or a result dictated even and Such psychological emotional trauma by Stanley, as by suggested new the United mother unnec- States occasioned and of Court has essary publicity, Supreme recognized violation our state in its later and privacy, anonymity opinion. of confiden- to that references policy Stanley has proceedings, by in such evidenced our tiality capsulated by the been court as holding 232.55, 232.57, 232.27, See “that the simply statutes. State could not conclusive 600.9, The any particular Code. ly presume that unmarried child; was unfit to raise Due “putative” of identity-known In the case required Clause a more Process individual address, timely last-known with a a fathers ized determination.” Cleveland Board of pursuant mail restricted certified notice LaFleur, 632, 645, v. Education 414 U.S. 94 618.15, Code, mini- satisfy The should to § 791, 799, 52, 39 L.Ed.2d 63 see S.Ct. requirements. process Any due notice mum Kline, 441, 447, 412 also Vlandis U.S. 93 in state to a sheriff for serv- delivered 2230, 2234, 63, 37 (1973) S.Ct. L.Ed.2d 69 record, public a matter of becomes ice Dept. Agriculture and United States (which county courthouses most rural in 508, 513-514, Murry, 2832, 413 U.S. 93 S.Ct. are), potential in Iowa sub- courthouses 767, public 37 L.Ed.2d 773 information discussion. ject permits majority opinion restricted cer- The requirements constitutional The articulat- But many mail notice. because Iowa tified Stanley and other ed in United States Su- have judges may over-reacted to trial Stan- preme Court decisions merely mandate that should specify I submit we such service ley, rebuttable; statutory presumptions be we cases. is sufficient go further and need not hold that there can kept should mind that the case It be at presumptions regard no all with be abandoning parent non-caring fathers, much judi- less need we our adoption terms of statutes ei- express cially presumption create a unwed and non- require permit no notice or court waiv- ther prima caring parents. fathers are facie fit 600.3, 600.4, The notice. Sections er of back brought are to the inescapable We of parent- In the case severance Code. question: yet as unanswered many how relationship, permit- certified mail is can rights posited be constitutional on the personal where the court deems service ted flimsy of what is frequently foundation 232.8, 232.45, The impractical. Sections sexual only a casual encounter? In this service notice Personal would Code. connection, it should be noted the decisions embarrassing mother, publicity to cause upon superficial inspection might which be unnecessary publicity concerning the child’s interpreted as authority lifting status, policy and breach state of confi- proof “putative” burden from dentiality anonymity and we should actually involve different factual back- impractical, justifying such notice declare See, g., Manzo, e. grounds. Armstrong v. by restricted certified mail. This notice satisfy of our statutes will interpretation L.Ed.2d (1965), concerning the requirements constitutional of one the obscure whom Stanley. “legitimate parent”: the court termed

divorced father of a child born in wedlock. and confirmed judges. The appeals similar status parent A was the concern pass substantiate, which before us in most In re Adoption Vogt, of this court in situations, only truth hypothecated in (Iowa 1974). N.W.2d 529 Stanley, U.S. at 92 S.Ct. at be, at may L.Ed.2d “It as the State conflicting between The tension interests insists, that most unmarried fathers are un- resolved with certain must be basic con- neglectful suitable and parents.” in mind. The married cepts family rela- is the fundamental tionship building block similarly unimpressed I am by the argu- society, concept so judicially in our well frequently advanced, ment that because a it has withstood recognized constitutional non-caring unwed father has certain obliga- religious on freedom in Reyn- attack based tions, necessarily it legal follows he has all States, 145, 165, olds v. United U.S. rights. Those obligations the law * * * (1879) (“Upon L.Ed. (see rightly imposes chapter Code) [marriage] society may be said to out of a evolved concern for illegitimate built”). Loving Virginia, also children, not unwed fathers. So also do the 1817, 1824, L.Ed.2d *13 in which decisions courts have protectively 1010, (1967). (“Marriage 1018 is one of the down struck statutes discriminating against man,’ civil ‘basic fundamental to illegitimate children. Perez, See Gomez v. very survival.”) and our existence I have 535, 409 U.S. 93 S.Ct. 35 L.Ed.2d 56 judicially articulated found no constitution- (1973); Levy Louisiana, right procreate outside a al to married set- 1509, 20 S.Ct. L.Ed.2d 436 (1968). While opinions have ting. Judicial linked the two reject these decisions illegitimacy of the together. Oklahoma, See Skinner permissible classification, child as neither 1110, 1113, U.S. L.Ed. those cases nor Stanley, my in opinion, pro- (1942) (“Marriage procrea- and grounded scribe a delineation on the unwed fundamental the very tion are to existence non-caring and status of biological a father. race”); Meyer and survival of the v. Ne- a Such classification could hardly be held braska, 390, 399, “suspect” when biological those parents vio- (1923).(“Without 67 L.Ed. doubt judicially recognized late a and fundamen- liberty guaranteed by Amendment [the 14] * * * * * * policy. public tal See Reynolds v. United right denotes to States, supra; Loving v. Virginia, supra; marry, bring establish a home and up chil- Oklahoma, supra; Skinner Meyer v. Ne- . ”); dren Planned Parenthood of braska, supra. Danforth, Central Mo. v. 392 F.Supp. (E.D.Mo.1975) (“Procreation has been interpretation In the of our statutes I aspect held to be a fundamental of the impose would therefore two burdens on a marriage relationship”). “putative” and non-caring father ap- who How is it biological then that a father pears following notice in an adoption-relat- legal who has made no for the commitment ed or proceeding. severance benefit, child’s who has taken no responsi- obligation The first would be to establish bility, who has made no pain investment of by competent evidence his status as a bio- risk, who, or and at least under today’s logical parent. Neither the State nor a interpretations constitutional Doe v. [see placing licensed child agency in an Rampton, 366 F.Supp. (D.Utah 1973)], proceeding should be bound the word of has constitutionally protected no interest in frequently distraught or secretive or birth, the child to the moment of suddenly or protective afraid or simply unsure moth- upon acquires such event panoply full er. rights? required We are not in these situations to It be petition should sufficient if a merely ignore what we have learned as lawyers the person given asserted puta- notice is a a interest potential has who fitness ability father to care properly tive names more than the mother If This is beyond the child. the child. a burden nurture given be notice. should person, might satisfy majority’s one such which cri- person agency or should petitioning terion, obliga- But the appears impose which an which is the proving the burden prove not have father on the “he has been father, penalty peti- dismissal on for the providing wants of the child.” case, fails. In such a trial proof tion if the presump- does not invoke a conclusive This permitted to find be court should incapacity, but strips tion of rather him unknown, grant the peti- nonetheless but presumption of fitness accorded a result obtain should where The same tion. biological by marriage father who pleads he is the putative father a noticed-in maturity and responsibility shown father, carry fails to his burden biological prior legal po- make commitment to his trial from the evidence court proof, and children. tential reputed identity of no other can discern should be further noted non-conclusive It brought into the pro- who should abound our law and are presumptions fa- Where noticed-in ceeding. helpful in frequently placing problem having appear, appeared, or ther does perspective. Such proper presumptions father, court, biological is the he denies found in involving are cases inferences finding no finding proper notice upon personal liberty where is at grave issues in, noticed who should be also else one passed have constitutional They stake. empowered grant peti- ought to be Johnson, United States v. muster. See tion. (8 1972), denied, 538 Cir. cert. F.2d give obligation to Stanley-mandated A *14 34 L.Ed.2d 693 not father notice should relieve (inference crime, (1973) participation in a him, asserting interest in the in presence, companionship and conduct from child, legal ground the for his proving from committed); crime is before after State and This make such assertion. situa- right to Hansen, 1972) (in (Iowa 203 N.W.2d 216 present strong presump- not the does the arising presence spec from of a ference in prevails which the parenthood tion of percentage of alcohol in defendant’s ified born a married a child to relation- case of blood); Voltenburg, v. Van 260 Iowa State Code; Olson, 598.31, Kuhns v. The ship, § (1967) (inference or N.W.2d 1274,141 Nel- N.W.2d 258 Iowa of criminal presumption intent from the Nelson, 249 Iowa 87 N.W.2d 767 son burglar tools). possession v. Bailey, 237 Iowa (1958); Bowers statutory law rec- Our N.W.2d event, any position should this be in- In alleged nature of an ognizes speculative the imposition terpreted presumption as an where there no relationship father-child unfitness, justi- it is not conclusive and is 633.222, The marriage, The Code. clause situations above noted. in the mine-run fied frequently so used in ma- father” “putative con- the one-in-ten-thousand case of the For juris- and elsewhere in our opinion jority’s father, qualified biological and scientious implicit acknowledgment an prudence opportunity shall have the to person that degree difficulty fixing any in with the proof should have little difficul- and present biological father-child rela- certainty the establishing parenting fitness. On inty Third New Interna- tionship. Webster’s hand, imposition burdens other of these the * ** Dictionary (1966) (“Putative tional troublemakers, the discourage the would * * * * * * commonly supposed blackmailers, extortionists, the and those * * *.”) reputed assumed the custody purpose for sole seek who receiving payments, additional A.D.C. place an second burden I would on protection non-caring provide who has to for never would tend unwed and custody to of the mother would be establish his assumed constitutional ultimately, interests of best If a father attacks an adoption decree on the child. of no ground him, notice to the adopters permitted be to try prove should to that the HARRIS, JJ., join special

REES and did provide not have the care or for concurrence. of- father, the wants the child —and the course, should permitted be to rebut. If the UHLENHOPP, in (dissenting Justice facts, adopters establish those then the part). decree adoption should be an held effective opinion in all court’s ex- I concur adjudication notwithstanding the adopters IX, from I which dissent cept division give of the adoption proceed- did not notice court also should address I think part. ing father —the father’s consent was question. an additional necessary place not the first and he has opinion agree that court’s should I. I day now had his in court on that issue. adoptions heretofore decreed. apply not opinion apply should think the But I are which hereafter decreed.

adoptions open still so that adoptions are notice

Those indeed, given, petition

can be filed. But the court

might yet not be holds to a known father is not re-

that notice if the mother heretofore released

quired adoption. may The facts be the child for In Matter Floyd of the ESTATE of heretofore mother released the CROZIER, H. Deceased. child, may placed the child in the but Byron year CROZIER, until a from now adoptive Appellee, home D. may not be filed adoption petition the adopters I think years two from now. al., Appellants. et Inez DOYLE give should notice a known father 56894. No. any adopters case same as other such a dispense If we with give must notice. no- Supreme Court of Iowa. in adoptions tice to known fathers hereafter *15 Aug. 1975. decreed, give we do not effect to In re Stanley,

L.Ed.2d 551. case Although this is moot the court

II. chosen, think, rightly I

has deal with necessity question of notice to proceedings.

Inevitably, situations will arise which for adopters notify do not

some reason although the identity father’s

child’s to the child’s

is known mother —for exam-

ple, misrepresents the mother when the fa- identity adopters.

ther’s Since the far gone

court as it has in say

opinion, something I think it should situations, especially those

about since the says VI

court in division that an “effective”

adjudication cannot be made without notice

to a known father.