|IN THE SUPREME COURT OF MISSISSIPPI|
|JOE W. SMITH, JR., JOE W. SMITH, AND CLOVIS SMITH|
|NATALIE CASH MALOUF, ALEX J. MALOUF, JR., AND PATRICIA MALOUF|
|DATE OF JUDGMENT:||10/21/92|
|TRIAL JUDGE:||HON. EUGENE M. BOGEN|
|COURT FROM WHICH APPEALED:||LEFLORE COUNTY CIRCUIT COURT|
|ATTORNEYS FOR APPELLANTS:||J. BRAD PIGOTT|
|MARY MARVEL FYKE|
|ATTORNEYS FOR APPELLEES:||JAMES W. BURGOON, JR.|
|JAMES E. UPSHAW|
|F. EWIN HENSON, III|
|NATURE OF THE CASE:||CIVIL - TORTS (OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE)|
|DISPOSITION:||REVERSED AND REMANDED - 9/24/98|
|MOTION FOR REHEARING FILED:|
BANKS, JUSTICE, FOR THE COURT:
¶1. Here we are confronted with a challenge to the propriety of the lower court's dismissal of a suit, which alleged intentional infliction of emotional distress, conspiring to prevent the appellant-father from exercising his parental rights and conspiring to effect an illegal adoption of a child born out of wedlock. Because they have no standing, we affirm the dismissal of the appellant-grandparents' claim. The appellant-father, on the other hand, should have been afforded his day in court on his claims of intentional infliction of emotional distress and conspiracy to deprive him of his parental rights. Accordingly, we reverse and remand this matter to the trial court for further proceedings.
THE COURT ERRED IN RULING THAT BECAUSE JOEY SMITH IS AN UNWED FATHER (RATHER THAN AN UNWED MOTHER), HE HAS NO PARENTAL RIGHTS TO RECEIVE NOTICE OF ANY ADOPTION OF, OR TO OBJECT TO ANY ADOPTION OF, OR TO SEEK LEGAL CUSTODY UPON THE BIRTH OF, HIS BIOLOGICAL CHILD.
THE CIRCUIT COURT'S RULING THAT MR. AND MRS. JOE SMITH LACKED STANDING TO CLAIM DAMAGE, FLOWING EITHER FROM THE DEFENDANTS' UNLAWFUL CONSPIRACY OR FROM THE DEFENDANTS' INFLICTION OF EMOTIONAL DISTRESS UPON THEM, WAS ERRONEOUS.
PLAINTIFFS ESTABLISHED ALL ELEMENTS OF THEIR CLAIMS FOR PURPOSES OF RULE 12.
THE CHANCERY ORDER ENTERED IN A SEPARATE JUDICIAL PROCEEDING, THAT DEFENDANTS SEEK TO INSERT INTO THE RECORD IN THE INSTANT CAUSE, IN NO WAY ADVERSELY AFFECTS PLAINTIFFS' CLAIMS FOR RULE 12 PURPOSES.
THE DISTRICT COURT ERRED IN HOLDING THAT JOEY SMITH WAS LIMITED TO SEEKING REDRESS FOR THE TORTIOUS ACTIONS OF THE MALOUFS BY RESORT TO CONTEMPT PROCEEDINGS IN THE CHANCERY COURT.
THE DISTRICT COURT ERRED IN HOLDING THAT BECAUSE THE DEFENDANTS WERE EXERCISING UNSPECIFIED "RIGHTS TO TRAVEL FREELY THROUGHOUT THE UNITED STATES AND TO BE LEFT ALONE," THEY WERE SHIELDED FROM LIABILITY FOR DAMAGES CAUSED BY THEIR INTENTIONAL TORTS.
¶10. This Court, in adjudicating Rule 12(b)(6) motions, has held that upon a motion for dismissal pursuant to M.R.C.P. 12(b)(6) for failure to state a claim upon which relief can be
granted, the pleaded allegations of the complaint must be taken as true, and a dismissal
should not be granted unless it appears beyond a reasonable doubt that the plaintiff can prove
no set of facts in support of his claim which entitles him to relief. Overstreet v. Merlos, 570 So. 2d 1196, 1197 (Miss. 1990).
¶11. "A motion to dismiss under MRCP 12(b)(6) tests the legal sufficiency of the complaint . . . . [T]o grant this motion there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim." Busching v. Griffin, 465 So. 2d 1037, 1039 (Miss. 1985). In Carpenter v. Haggard, 538 So. 2d 776, 777 (Miss. 1989), this Court further explained that "[u]nder the MRCP it is only necessary for the complaint to show that the plaintiff is entitled to some relief in court in order to survive a Rule 12(b)(6) motion." The dismissal of a complaint on a 12(b)(6) motion is reviewed de novo. Tucker v. Hinds County, 558 So. 2d 869, 872 (Miss. 1990); UHS- Qualicare, Inc. v. Gulf Coast Community Hosp., Inc., 525 So. 2d 746, 754 (Miss. 1987).
In the case of a child born out of wedlock, the father shall not be deemed to be a parent for the purpose of this chapter, and no reference shall be made to the illegitimacy of such child [during the adoption process].
Although Miss. Code Ann. § 93-17-5 and applicable decisions of this Court do not require notification of the natural unwed father of an illegitimate child, applicable United States Supreme Court decisions nevertheless make it clear that this Mississippi statute [§ 93-17-5] would be unconstitutional in its application in certain cases, particularly in cases in which the natural unwed father has attempted to establish a substantial relationship with the child.
Where there is something about the defendant's conduct which evokes outrage or revulsion, done intentionally _ or even unintentionally yet the results being reasonably foreseeable _ Courts can in certain circumstances comfortably assess damages for mental and emotional stress, even though there has been no physical injury. In such instances, it is the nature of the act itself _ as opposed to the seriousness of the consequences _ which gives impetus to legal redress.
Leaf River Forest Prods., Inc. v. Ferguson, 662 So. 2d 648, 658 (Miss. 1995) (quoting Sears Roebuck & Co. v. Devers, 405 So. 2d 898, 900 (Miss. 1981)).
¶32. We have, on a number of occasions, considered the tort of intentional infliction of emotional distress. See Fuselier, Ott & McKee, P.A. v. Moeller, 507 So. 2d 63 (Miss. 1987) (firing of attorney, including changing of door locks to office not sufficient conduct); T.G. Blackwell Chevrolet Co. v. Eshee, 261 So. 2d 481 (Miss. 1972) (forging of car buyer's name on finance contract, sufficient conduct); Lyons v. Zale Jewelry Co., 246 Miss. 139, 150 So. 2d 154 (1963) (abusive bill collection tactics amounted to sufficient conduct). The standard is whether the defendant's behavior is malicious, intentional, willful, wanton, grossly careless, indifferent or reckless. Leaf River Forest Prods., Inc. v. Ferguson, 662 So. 2d 648, 659 (Miss. 1995).
¶33. If there is outrageous conduct, no injury is required for recovery for intentional infliction of emotional distress or mental anguish. Id. at 658. One who claims emotional distress need only show that the emotional trauma claimed was a reasonably foreseeable consequence of the negligent or intentional act of another. First National Bank v. Langley, 314 So. 2d 324 (Miss. 1975) If the conduct is not malicious, intentional or outrageous, there must be some sort of demonstrative harm, and said harm must have been reasonably foreseeable by the defendant. Strickland v. Rossini, 589 So. 2d 1268, 1275 (Miss. 1991).
¶34. The first aspect we must consider is what type of conduct occurred between Joey and Natalie and the Maloufs. Natalie argues she was entitled to put the child up for adoption, just like she would have been entitled to have an abortion had she been so inclined. Thus it is her position that she cannot be held liable for infringing upon Joey's rights when in fact she was only exercising her own right to place the child for adoption.
¶35. Natalie is correct insofar as she acknowledges that this Court is faced with two individuals' diametrically opposed legal rights _ her right to place the child for adoption and Joey's constitutional right to establish and maintain a relationship with his child. However her reliance on her constitutionally protected right to an abortion is of no moment since she was not hiding in order to effectuate an abortion. In other words, had Natalie been seeking an abortion there would have been little Joey could have done to prohibit her or to assert an interest that would have outweighed her right to abort the child. See Doe v. Smith, 486 U.S. 1308 (1988) (denying an application for an injunction, seeking to enjoin a mother from aborting the child on grounds that the mother's interests in aborting the child outweighed the father's interests notwithstanding Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976)). This is not an abortion case however. Once Natalie decided to carry the child full-term and place the child for adoption, Joey's constitutionally protected rights became viable.
¶36. Hence, the pivotal question here is whether Natalie and her parents owe damages to Joey for interfering with his right to attempt to gain custody of the child by exercising her own right to terminate her relationship with the child. Stated otherwise, the issue is whether Joey has a viable claim for intentional infliction of emotional distress, thereby rendering the circuit court judge's dismissal of his claim improper. Taking the well-pled allegations in the complaint as true, we conclude that he does.
¶37. It is irrefutable that appellees' behavior was intentional and that the foreseeable result of their actions was that the child would be adopted by strangers, thereby depriving Joey of an opportunity to veto the adoption and vie for custody. It is also axiomatic that any father _ especially a father who has gone that "extra mile" to gain custody of his child _ would suffer severe emotional distress due to the child he wanted being secretly placed for adoption. Thus, this Court concludes that Joey has presented a viable claim for intentional infliction of emotional distress. See Kessel v. Leavitt, 1998 WL 407096 (W. Va.) (affirming a verdict for damages in similar circumstances). See also Kessel v. Leavitt, 75 Cal. Rptr. 2d 639 (Cal. Ct. App. 1998) (determining that an award of damages against a California adoption attorney in favor of an unwed father whose child was secretly placed for adoption did not offend California public policy).
PITTMAN, PRESIDING JUSTICE, SPECIALLY CONCURRING:
¶47. I write separately to emphasize that this is a suit for the tort claims of intentional infliction of emotional distress and conspiracy to deprive Mr. Smith of his parental rights against Ms. Malouf and her parents. This is not an abortion case. I concur with Justice Banks' assessment that under precedents of the United States Supreme Court, Mississippi Code Ann. § 93-17-5 does not meet the test of the United States Constitution. Stanley v. Illinois, 405 U.S. 645 (1972), Lehr v. Robertson, 463 U.S. 248 (1983), Caban v. Mohammed, 441 U.S. 380 (1979), Quilloin v. Walcott, 434 U.S. 246 (1978).
¶48. The legislature might consider revisiting this unconstitutional statute and allowing the biological father's rights (in regard to a child born out of wedlock) to be born at the precise moment of the birth of the child. The father would have no say during the pregnancy but his interest can be born literally out of the child's birth.
¶49. The interest of the biological father must be demonstrated and he would be subject to all the requirements of establishing that he can be a good father, but he should not be prohibited by state statutes from having a voice in the child's well-being and indeed cannot be denied his interest without notice according to rulings of the United States Supreme Court before cited.
¶50. If parties conspire to deny the Father his constitutionally protected interest in fatherhood, after he has made known his desire of custody or his desire to be considered, such act or acts rise to the level of tort. To hold otherwise in this case leaves Smith with constitutional rights that were wronged, but no remedy. The remedy we impose pales when compared with Smith's loss, but it is the only remedy available to Smith or this Court.
¶51. To deny Smith the opportunity of fatherhood after birth because it may cause a wrongful abortion is to do wrong to prohibit wrong.
¶52. The United States Supreme Court in Stanley v. Illinois, 405 U.S. 645, 649 (1972) determined that a biological father, under the due process clause of the United States Constitution, was:
entitled to a hearing on his fitness as a parent before his children were taken from him and that, by denying him a hearing and extending it to all other parents whose custody of their children is challenged, the State denied Stanley [unwed biological father] the equal protection of the laws guaranteed by the Fourteenth Amendment.
The United States Supreme Court found it repugnant that under the Illinois law, "Stanley
[unwed biological father] [was] treated not as a parent but as a stranger to his
children . . . ." Id. at 648.
¶53. Similarly, under Mississippi's statute regarding parental consent to adoption, Miss. Code Ann. § 93-17-5 (1994) states in relevant part:
In the case of a child born out of wedlock, the father shall not be deemed to be a parent for the purpose of this chapter, and no reference shall be made to the illegitimacy of such child.
Under Mississippi's statute, the unwed biological father is treated as a legal stranger to his
child. That, under Stanley v. Illinois, is unconstitutional.
¶54. In Lehr v. Robertson, 463 U.S. 248, 262 (1983), the United States Supreme Court, while finding in favor of granting the adoption to the husband of the biological mother over the objection of the biological father, did recognize the significance of the biological connection between the child and the biological father.
The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie.
[ Caban] concerns the validity of rules affecting the status of the thousands of children who are born out of wedlock every day. All of these children have an interest in acquiring the status of legitimacy; a great many of them have an interest in being adopted by parents who can give them opportunities that would otherwise be denied; for some [of] the basic necessities of life are at stake. . . .
Nevertheless, it is also true that [the statute] gives rights to natural mothers that it withholds from natural fathers. Because it draws this gender- based distinction between two classes of citizens who have an equal right to fair and impartial treatment by their government, it is necessary to determine whether there are differences between the members of the two classes that provide a justification for treating them differently. . . . But it also requires analysis that goes beyond a merely reflexive rejection of gender-based distinctions.
Men and women are different, and the difference is relevant to the question whether the mother may be given the exclusive right to consent to the adoption of a child born out of wedlock. Because most adoptions involve newborn infants or very young children, it is appropriate at the outset to focus on the significance of the difference in such cases.
Both parents are equally responsible for the conception of the child out of wedlock. But from that point on through pregnancy and infancy, the differences between the male and the female have an important impact on the child's destiny. Only the mother carries the child; it is she who has the constitutional right to decide whether to bear it or not. In many cases, only the mother knows who sired the child, and it will often be within her power to withhold that fact, and even the fact of her pregnancy, from that person. If during pregnancy the mother should marry a different partner, the child will be legitimate when born, and the natural father may never even know that his "rights" have been affected. On the other hand, only if the natural mother agrees to marry the natural father during that period can the latter's actions have a positive impact on the status of the child; if he instead should marry a different partner during that time, the only effect on the child is negative, for the likelihood of legitimacy will be lessened.
These differences continue at birth and immediately thereafter. During that period, the mother and child are together; the mother's identity is known with certainty. The father, on the other hand, may or may not be present; his identity may be unknown to the world and may even be uncertain to the mother. These natural differences between unmarried fathers and mothers make it probable that the mother, and not the father or both parents, will have custody of the newborn infant.
In short, it is virtually inevitable that from conception through infancy the mother will constantly be faced with decisions about how best to care for the child, whereas it is much less certain that the father will be confronted with comparable problems. There no doubt are cases in which the relationship of the parties at birth makes it appropriate for the State to give the father a voice of some sort in the adoption decision. But as a matter of equal protection analysis, it is perfectly obvious that at the time and immediately after a child is born out of wedlock, differences between men and women justify some differential treatment of the mother and father in the adoption process.
Most particularly, these differences justify a rule that gives the mother of the newborn infant the exclusive right to consent to its adoption. Such a rule gives the mother, in whose sole charge the infant is often placed anyway, the maximum flexibility in deciding how best to care for the child. . . . Finally, it facilitates the interests of the adoptive parents, the child, and the public at large by streamlining the often traumatic adoption process and allowing the prompt, complete, reliable integration of the child into a satisfactory new home at as young an age as is feasible. Put most simply, it permits the maximum participation of interested natural parents without so burdening the adoption process that its attractiveness to potential adoptive parents is destroyed.
This conclusion is borne out by considering the alternative rule proposed by appellant. If the State were to require the consent of both parents, or some kind of hearing to explain why either's consent is unnecessary or unobtainable, it would unquestionably complicate and delay the adoption process. Most importantly, such a rule would remove the mother's freedom of choice in her own and the child's behalf without also relieving her of the unshakable responsibility for the care of the child. Furthermore, questions relating to the adequacy of notice to absent fathers could invade the mother's privacy, cause the adopting parents to doubt the reliability of the new relationship, and add to the expense and time required to conclude what is now usually a simple and certain process. While it might not be irrational for a State to conclude that these costs should be incurred to protect the interest of natural fathers, it is nevertheless plain that those costs, which are largely the result of differences between the mother and the father, establish an imposing justification for some differential treatment of the two sexes in this type of situation.
With this much the Court does not disagree; it confines its holding to cases such as the one at hand involving the adoption of an older child against the wishes of a natural father who previously has participated in the rearing of the child and who admits paternity. Ante, at 392-393. The Court does conclude, however, that the gender basis for the classification drawn by [the statute] makes differential treatment so suspect that the State has the burden of showing not only that the rule is generally justified but also that the justification holds equally true for all persons disadvantaged by the rule. In its view, since the justification is not as strong for some indeterminately small part of the disadvantaged class as it is for the class as a whole, see ante, at 393, the rule is invalid under the Equal Protection Clause insofar as it applies to that sub-class. With this conclusion I disagree.
. . .
The mere fact that an otherwise valid general classification appears arbitrary in an isolated case is not a sufficient reason for invalidating the entire rule. Nor, indeed, is it a sufficient reason for concluding that the application of a valid rule in a hard case constitutes a violation of equal protection principles.
Caban, at 441 U.S. at 402 - 412 (Stevens, J., dissenting) (footnotes omitted) (emphasis added). This passage is long, and it speaks volumes as to what the majority actually decided.
The only reason that Caban was resolved in the manner in which it was, was due to the fact that there were older children involved, and children who arguably had some relationship with their father. Caban did not involve a newborn. Moreover, the dissent makes clear that this case could have turned out very differently had the mother been asserting her "freedom
of choice" or her "privacy" rights. While Justice Stevens' view of the matter was not
endorsed or adopted by the majority at that time, neither was it rejected; the majority just
chose to answer the question at hand. Subsequently, three years later, the Supreme Court did
adopt Justice Stevens' view. While Justice Stevens could have limited his opinion to the fact
that he was unwilling to trash a statute because it may have been unconstitutional only as
applied to a small subset, he took license to make some extremely important observations.
In his dissent, Justice Stevens predicted that there would be clash between a woman
asserting her reproductive rights in regard to a newborn and a putative father asserting his
rights, and since that was not the question in Caban, the majority did not touch upon it. That very question is now haunting this Court, which it should answer with the greatest of
delicacy. Unfortunately, that has not occurred.
¶75. Shortly after Caban, in Lehr v. Robertson, 463 U.S. 248 (1983), the United States Supreme Court upheld the adoption of a child where the putative father had not been notified since the State of New York had a registry in which putative fathers could enroll so as to guarantee notification to them should their illegitimate child be placed on the adoption block. Lehr attempted to block his child's adoption by the unwed mother's new husband. The child's mother married the new husband eight months after her birth, and the new husband sought to adopt the child when she was two years old. Lehr had neither offered to marry the mother, nor had he supported the child custodially, personally, or financially. The Court found that if the natural father fails to grasp the opportunity to develop a relationship with his child, the Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie. Lehr, 463 U.S. at 256-263.
¶76. Finally, in Michael H. v. Gerald D., 491 U.S. 110 (1989), the Court tackled a California statute which provided the child of a married woman cohabitating with her husband is presumed to be a child of the marriage, as long as the husband is not impotent or sterile. The statute provided that the presumption could not be rebutted by a putative father, but only by the husband or wife, and only within the first two years of the child's birth. Five justices found that the putative father, Michael H., was not deprived of any protected liberty interest, holding that a statute giving categorical preference to a husband over an adulterous lover is not unconstitutional.
¶77. From a general overview, a distinction can be drawn between "developed parent- child relationship" that was implicated in Stanley and Caban, and the "potential relationship" involved in Quilloin and Lehr. Lehr, 463 U.S.at 261. At first, the most simplistic assessment of these cases would be "if and when one [a father] develops [a] relationship [with] his natural child, [then only] is [he] entitled to protection against arbitrary state action as a matter of due process." Lehr , 463 U.S. at 260 (quoting Caban, 441 U.S. at 414). However, factoring in Michael H., that understanding of the putative father's rights is debatable, as Michael H. did not receive any favored status even after maintaining a substantial relationship with his child, since the Court found his rights must succumb to the rights of the marital family.
¶78. In view of the United States Supreme Court cases of Stanley, Quilloin, Caban, Lehr, and Michael H., it would be uncertain whether Joey has any rights as a putative father, as the case at bar has a very different fact pattern in comparison to the putative fathers cases. First, not one of those cases dealt with the issue sub judice, where the natural mother is asserting her reproductive rights against the rights of the putative father. Second, Stanley and Caban , which in my view were correct, involved a situation where the father had already established a relationship. Here, since Joey cannot claim to have had a "substantial relationship" with his child, the holdings in those two cases are not applicable. Third, even though Lehr and Quilloin might appear applicable, as those appellants, like Joey, argued that they had the "potential" to hold a relationship with their child, Joey's claim is different in that he "intended" to have a substantial relationship with the child and desired to raise the child, and only missed out on his "opportunity" because of Natalie's actions, and not his own inactions. In that sense, the outcome of all of these putative fathers cases may be inapplicable to Joey's situation. However, Natalie refused to marry Joey and in spite of all his claims of good intention, there is not proof that Joey provided any support whatsoever which was one of the Lehr court's main concerns.
¶79. Nonetheless, it is indeed helpful to look for certain truths that run in those cases, which would be applicable in the present context, regardless of the fact differences. As a base concept, it can be said that "the mere existence of a biological link does not merit equivalent constitutional protection." Lehr, 463 U.S. at 261. In fact, at the onset, the Court noted that it "disagree[d]" with appellant Lehr's assertion that Stanley and Caban "g[a]ve him an absolute right to notice and an opportunity to be heard before the child may be adopted." Lehr , 463 U.S. at 250. Lehr made clear that there are no absolute rights for putative fathers, when it cited with approval Justice Stevens' dissent in Caban, which observed:
"Even if it be assumed that each married parent after divorce has some substantive due process right to maintain his or her parental relationship, . . . it by no means follows that each unwed parent has any such right. Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring." 441 U.S., at 397. . . .
Lehr, 463 U.S. at 260. The Court touted the same mentality when Michael H. argued that Stanley and progeny established that "a liberty interest [wa]s created by biological fatherhood plus an established parental relationship." Michael H., 491 U.S. at 123. The Court found that line of reasoning "distort[ed] the rationale of those cases." Michael H. at 123. The Court concluded that the putative fathers cases all recognized a "historic respect--
indeed, sanctity would not be too strong a term-- traditionally accorded to the relationships
that develop within the unitary family." Michael H., 491 U.S. at 123. The court also concluded "that the Constitution protects the sanctity of the family precisely because the
institution of the family is deeply rooted in this Nation's history and tradition." Michael H., 491 U.S. at 124. Because Michael H. and his daughter Victoria D.'s quasi-family
relationship was not one which had been treated as a "protected family unit" under our
society's "historic practices" or on any "special protection" basis, it was constitutional to
have a statute which gave a categorical preference to the marital family. Michael H., 491 U.S. at 124, 129. Thus, the essence of Justice Scalia's opinion in Michael H. was that persons in the position of Michael H. have never been accorded historical protections, but
since traditional family units have, the family's rights to maintain its integrity and to be free
from assault would supersede the rights of a putative father claiming his interests. When "the
child is born into an extant marital family, the natural father's unique opportunity conflicts
with the similarly unique opportunity of the husband of the marriage; and it is not
unconstitutional for the State to give categorical preference to the latter." Michael H., 491 U.S. at 129.
¶80. At first glance, one might wonder if Michael H. applies sub judice, as Natalie was unmarried at the time of the child's birth, thus, not really having a "family unit" which could claim these protections afforded by our traditions and history. The concern of Michael H.-- that the family unit can be assailed by outsiders-- really is not present in this case. However, just the fact that there were competing interests in Michael H. proves it to be the most instructive for deliberations in this case.
¶81. In Michael H. v. Gerald D., the competing interests between a natural putative father and a marital father was the crux of the issue. The plurality observed that "to provide protection to an adulterous natural father is to deny protection to a marital father, and vice versa. . . . One of them will pay a price. . . ." Michael H. 491 U.S. at 130 (emphasis in original). Likewise, assuming arguendo that Joey had any liberty interests in this situation, then his interests are in competition with that of Natalie's interests to make her reproductive choices unhampered. To provide protection to Joey's alleged interests would be to deny Natalie the free exercise of her constitutionally protected options. In my view, under our state laws and the federal laws, it is Joey who must "pay the price" here, for we find that his interests in putative fatherhood are neither sufficiently realized nor protected, while it is well established that her liberty interests in reproductive choice are both recognized and vigilantly guarded.
¶82. Joey maintains that he should not be faulted for not being able to come within the purview of the cases that do give putative fathers certain rights if they had established a substantial relationship with the child. Stanley, Caban, supra. Joey asserts that but for the fact that Natalie chose to have this baby out-of-state, and then chose to place the child for adoption in a foreign country, he was denied the opportunity to follow through on his intention to raise and support this child. Therefore, I pose the question whether Joey has gained an interest based on his mere "intentions" to raise his child, after all, his intentions may alter significantly in the future! First, the fact that a putative father maintained a substantial relationship with the child is of little consequence, as indicated by the Supreme Court's last pronouncement in Michael H.. Second, in thoroughly reviewing the case law on putative fathers, not one of them stands for the proposition that a putative father has rights based on his "potential" or his "intentions" to rear the child. Stanley, Quilloin, Caban, Lehr, Michael H., supra. Lastly, as previously stated, the ultimate question before this Court is whether Joey's alleged rights would supersede Natalie's reproductive rights.
¶83. In exercise of her rights, the first question Natalie must answer for herself is whether or not to have the child. Under the current interpretation of the Constitution, either choice is protected. Roe, Casey, supra. Once that decision has been made, she must make other decisions which are the necessary corollary to her first decision. It is well established that "[w]ithout . . . peripheral rights the specific rights would be less secure." Griswold, 381 U.S. at 482-83.
¶84. For example, had Natalie decided to have an abortion, she would then have the right to decide which abortion doctor to visit, which women's clinic to use, and where and how to conduct herself both before and after the exercise of this choice. Roe, Casey, Bray, supra. Similarly, since Natalie decided not to have an abortion, she then had to decide from which obstetrician to seek medical care, in which hospital she wanted to deliver her child, and where and how she wanted to keep herself both pre- and post- delivery.See footnote 2 Roe, Casey, Bray, supra.
¶85. "[W]hile [these rights are] not expressly included in [the respective Amendment, their] existence is necessary in making the express guarantees fully meaningful." Griswold, 381 U.S. at 483. There are "specific guarantees in the Bill of Rights [which] have penumbras, formed by emanations from those guarantees that help give them life and substance." Griswold, 381 U.S. at 484.
¶86. Because the Constitution recognizes and promotes a woman's decision to carry her child to full term, this right would indeed be a hollow right if she were not also allowed to decide the fate of her child once she gave birth. "Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture." Casey at 852.
¶87. Here, the record establishes that Natalie chose to carry the child to full term not only because of religious conviction, but because she wished for her child to be reared in a two parent home, far and away from her own backyard, and to avoid any confusion that a child might experience living in the same small community as the mother who chose to give the child away. "At the heart of liberty is the right to define one's own concept of existence. . . . ." Casey 505 U.S. at 851. It is clear that the reproductive choice she made was due in part to her belief that she could put the child up for adoption to a stable two-parent family, out of sight out of mind from her own domain, and no longer be subject to any financial responsibilities or ties with her child.See footnote 3 Because Natalie wished for this outcome for her baby and herself, she "chose" to carry it to full term. "The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperative and her place in society." Casey 505 U.S. at 852. Therefore, any limitations on the legal choices she makes for herself or her child, in-utero or post-delivery, is a limitation on her initial reproductive right of choice. There are "specific guarantees in the Bill of Rights [which] have penumbras, formed by emanations from those guarantees that help give them life and substance." Griswold, 381 U.S. at 484. Thus, Natalie not only has a Fourteenth Amendment Due Process liberty interest in carrying her child to full term, she has a correlating penumbra-like liberty interest in seeking to insure the destiny of her child, once born, as it relates to her, even to the detriment of that child's natural (putative) father.
¶88. What would the freedom of speech mean if persons were told that they could print anything they wanted, but the government would be responsible for the delivery, dissemination, and placing of the products. What would the freedom of association mean if persons were told that they could congregate with whomever they wanted, but once they left the congregation, they must associate with others they did not want to? Similarly, what would Natalie's reproductive rights mean if she were allowed all the freedom she wanted during pregnancy, but the moment her child was brought into this world, she would either have to turn it over to Joey or have to face the prospect of associating with it? Natalie's right to place her unborn child for adoption, to the exclusion of the child's natural father, is but a natural extension of her reproductive rights. That right has always been there, this dissenting opinion merely fleshes it out.
¶89. All this to say, that men who are as haphazard and careless as this, do not have substantive due process rights in regard to offspring of their seed. These type of "putative fathers" rights claims are reeking havoc for adoptions. While one might sympathize with the father and his current desire to help raise this child, it must be remembered that there are no guarantees that his interest in the child will continue. Months or even years from now, if the father's conduct does not measure up, it will be the mother who will be left holding the baby and picking up the pieces. Today, many men are reaping a supposed benefit of premarital and extramarital sex, without any of the consequences. Men are not only creating these illegitimate children, but are then demanding notice about said child's adoption in the process of making less than half-hearted attempts to support their issue, and essentially holding the lives of child's mother in abeyance for months and sometimes years to come, all under the pretense of procedural and substantive due process. Consistent with Stanley and Caban, this Court should hold that when men who father children out of wedlock incur substantive legal obligations, either voluntarily or through court order, then and only then, do certain rights attach. "[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition." Michael H., 491 U.S. at 124. While our society has reached the point where we can no longer look to the law to engender responsible behavior, we can interpret the law to preserve the remaining vestiges of a concept called "family."
¶90. A sub-issue has arisen by our consideration of this issue, and should be answered in order not to appear inconsistent to our citizenry. The question is why should the mother of the child have such greater rights than the father. In other words, why does she get to pick and choose whether or not she wants to hold the putative father responsible, but the putative father on the other hand has no such correlating right? While this question looks as if it might pose some sort of impermissible gender distinction, in actuality, it does not. Again, some one will have to "pay a price." As has already been thoroughly discussed in this opinion, by insisting on the putative father's rights to be equal to that of the mother, we cast a dark shadow on her ability to make an unfettered reproductive choice. However, by giving the initial right of self-determination for the baby to the mother, there is no similar weight placed on the father. If the mother of the child holds the putative father legally responsible for his offspring, then he is only paying the just consequences of his conduct. However, if the mother of the child places the child for adoption, then the putative father will either feel that he lucked out or feel a sense of loss, depending on his mind set.
¶91. When the outcome is like the one at bar, the putative father seems to emotionally tug at this Court's heart by asking us to sympathize with his sense of loss-- with his feelings of knowing that he has a child out there somewhere that he can't even know. Again, the putative father will have two sets of emotions depending on the reproductive choice the mother of the child has made. Either he can feel sadness at the prospect of his lover's decision to abort the child, or he can unfortunately feel joy and relief knowing that he has narrowly managed to escape his responsibilities. Either he can feel sadness over the mother's decision to have the child and place it for adoption, or joy over her decision to place the child for adoption and again allow him the privilege of foregoing his legal responsibilities. Whatever choice she makes, the putative father will be affected with some sort of emotion; either he will know he has a dead baby or he will know he has a live baby. The law does not require this Court to curb the rights of women just because the man may experience one of these emotions in regard to the life status of the baby. Casey, 505 U.S. at 898. (holding that husband's notification or consent not required for an abortion).
¶92. Against this backdrop, we must now address the propriety of the lower court's decision to grant a Rule 12 (b)(6) motion on both the conspiracy claim and the intentional infliction of emotional distress claim. The court found that Joey had no legally cognizable right under Mississippi law to notice of his child's adoption, so in essence, he had no paternal rights that were capable of violation, and further found that Mr. and Mrs. Smith lacked standing to assert a conspiracy claim against the Maloufs. The court also found that the Maloufs had merely been enjoying their constitutionally protected rights to travel freely throughout the United States and the world and to be left alone, therefore, the defendants could not have entered a conspiracy by exercising that which they had a legal right to do. The emotional distress claim was also dismissed on the ground that it was not wrong to exercise a constitutionally protected right, regardless of the consequence to others.
¶93. The facts are undisputed. Natalie became pregnant by Joey. Natalie chose to have the baby and desired to give it up for adoption as a result of that choice. The Smiths brought an injunction against her in the Chancery Court of LeFlore County to stop her from putting the baby up for adoption to anyone but Joey. She left LeFlore County and traveled to various parts of the United States and Europe. The Maloufs assisted her in her travels. The Smiths expended great effort to locate her. She had the baby in Georgia and placed the child for adoption in California to a Canadian couple. Hence, this action was brought for emotional distress and conspiracy in the Circuit Court of LeFlore County.
¶94. A civil conspiracy is a combination of two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Shaw v. Burchfield, 481 So. 2d 247, 255 (Miss. 1985). In this case, adoption of an illegitimate child is a lawful end. Traveling in the United States is a lawful purpose. Traveling in Europe is lawful also. The Maloufs (who were not even a part of the injunction) giving money to their own daughter Natalie in order to help support and maintain her is likewise as lawful as any other parent giving money to a child to vacation and travel. Surely the plaintiffs are not asserting that just because of Natalie's reproductive state, she must forego her constitutional rights and no longer receive travel allowances from her parents; after all, if one were free to vacation in Europe when one was not carrying a child, should that freedom be dissolved because one was pregnant? California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 280, 284 (1987) (it is wrong to discriminate against women on the basis of pregnancy). Thus, not only was the end not an unlawful purpose, neither was the method for achieving it.
¶95. Now, it is obvious that Natalie's travel was in an effort to maintain privacy avoiding Joey and to have the baby placed for adoption with a family. Again, even that is not an unlawful purpose in that she was exercising her own privacy rights, reproductive rights, right to associate (or not associate), and right to travel. The record does not establish that Natalie's actions were all a part of a grand scheme to hurt Joey. She simply did what she needed to do for her own life, and in her opinion, the baby's best interest. Desiring a certain outcome and tranquility for one's life is not an unlawful end, and traveling long distances so as to avoid others and have that peace is not an unlawful means. If anything, Natalie could just as easily counterclaimed on a conspiracy against Joey and the Smith's for doggedly pursuing, harassing, and infringing upon her privacy rights. She did not do so. Why? Possibly, pursuit of money was not her concern, but rather, only her own peace of mind, desire to be left alone, and to provide a proper two parent loving home for her child somewhere well away from Greenwood, Mississippi. In this regard, the Smiths claim for conspiracy is deficient, as a matter of law.
¶96. I respectfully dissent.
MILLS, J., JOINS THIS OPINION.
MILLS, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶97. I join with Justice Smith in his concurrence in part and dissent in part and write separately only to express my views in this matter.
¶98. Few cases before this Court have engendered such strong feelings as the matters presently before us. While none of the parties to this proceeding are blameless, each should also be commended to a degree. First, the daughter, Natalie Malouf, and her parents, should be commended for opting to birth the child and placing it for adoption. Ironically, the majority opinion will encourage women to seek abortions rather than birth in order to avoid a potential hassle with putative fathers.
¶99. The efforts of Joe Jr. to have a voice in the rearing of the child are also commendable. However, the briar thicket he is in was created by his own actions. I find it hard to countenance his claims of intentional infliction of emotional distress when he was an acting participant in the questionable behavior precipitating the pregnancy and resulting litigation. I would not allow these tort claims to continue. The broad language in the majority opinion expanding claims for intentional infliction of emotional distress absent other damages is unnecessary to the development of tort law in this state.
¶100. Finally, the true heartbreak and distress suffered by Joe W. Smith and Clovis Smith are apparent. It is tragic that this undoubtedly caring and loving family must live with the cold impact of the law in this case. Though their intentions are undoubtedly without fault, they simply have no rights under the law to pursue this matter. The law is incapable of fashioning a remedy for every perceived wrong in society.
¶101. I join the majority opinion only to the extent that it holds that Joe W. Smith and Clovis Smith have no legal standing to assert any rights in this cause. I would affirm the lower court on all other matters.
SMITH, J., JOINS THIS OPINION.