Petitioner and his wife were divorced by a Texas court. Custody
of their only child was granted to the respondent mother, and
petitioner was ordered to pay a monthly sum for the child's
support. The mother thereafter married respondent Manzo, who, two
years later, sought to become the child's adoptive father. State
law requires the natural father's written consent to adoption, an
exception existing if he has not substantially contributed to the
child's support for two years commensurate with his financial
ability. In that case, the written consent of the juvenile court
judge in the county of the child's residence may be accepted. The
mother filed an affidavit in her county juvenile court alleging
petitioner's failure for more than two years to contribute to the
child's support, and the judge consented to the adoption.
Respondents, the same day, filed an adoption petition alleging that
the natural father's consent was not necessary, because he had not
contributed to the child's support commensurate with his ability
for a period of over two years, and that the juvenile court judge
had given his written consent. No notice of the affidavit or
adoption petition was given to petitioner, though his whereabouts
were well known to respondents. An adoption decree was later
entered making Manzo the child's adoptive father, upon being
advised of which petitioner filed a motion seeking to have the
court annul its decree. A hearing was held at which petitioner
introduced evidence that he had not failed to contribute to his
child's support, but the court denied petitioner's motion. The
appellate court affirmed notwithstanding petitioner's contention of
deprivation of due process of law because of entry of the decree
without notice, and the state supreme court refused review.
1. Failure to give petitioner notice of the pending adoption
proceedings deprived him of his rights without due process of law.
P. 380 U. S.
2. The hearing subsequently granted to petitioner did not remove
the constitutional infirmity, since petitioner was forced to assume
burdens of proof which, had he been accorded notice of the
Page 380 U. S. 546
adoption proceedings, would have rested upon the moving parties.
Pp. 380 U. S.
371 S.W.2d 407, reversed and remanded.
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner, R. Wright Armstrong, Jr., and his wife were
divorced by a Texas court in 1959. Custody of their only child,
Molly Page Armstrong, was awarded to Mrs. Armstrong, and the
petitioner was granted "the privilege of visiting with said child
at reasonable times, places, and intervals." The divorce decree
ordered the petitioner to pay $50 a month for his daughter's
support. In 1960, Mrs. Armstrong married the respondent, Salvatore
E. Manzo. Two years later, the Manzos filed a petition for adoption
in the District Court of El Paso County, Texas, seeking to make
Salvatore Manzo the legal father of Molly Page Armstrong. [Footnote 1
Texas law provides that an adoption such as this one shall not
be permitted without the written consent of the child's natural
father, except in certain specified circumstances. One such
exceptional circumstance is if the father "shall have not
contributed substantially to the support of such child during (a)
period of two (2) years commensurate with his financial ability."
In that event, the written consent of the judge of the juvenile
Page 380 U. S. 547
the county of the child's residence may be accepted by the
adoption court in lieu of the father's consent. [Footnote 2
Preliminary to filing the adoption petition, Mrs. Manzo filed an
affidavit in the juvenile court, alleging in conclusory terms that
the petitioner had "failed to contribute to the support of" Molly
Page Armstrong "for a period in excess of two years preceding this
date." No notice was given to the petitioner of the filing of this
affidavit, although the Manzos well knew his precise whereabouts in
Fort Worth, Texas. On the basis of the affidavit, and without, so
far as the record shows, a hearing of any kind, the juvenile court
judge promptly issued his consent to the adoption. In the adoption
petition, filed later the same day, the Manzos alleged that
"consent of the natural father, R. W. Armstrong, Jr., to the
adoption herein sought is not necessary upon grounds that the said
father has not contributed to the support of said minor child
commensurate with his ability to do so for a period in excess of
two (2) years, and the Judge of a Juvenile Court
Page 380 U. S. 548
of El Paso County, Texas . . . has consented in writing to said
No notice of any kind was given to the petitioner of the filing
or pendency of this adoption petition.
An investigator appointed by the court made a detailed written
report recommending the adoption, and, a few weeks later, the
adoption decree was entered. The decree provided, in accord with
Texas law ,that
"all legal relationship and all rights and duties between such
child and the natural father shall cease and determine, and such
child is hereafter deemed and held to be for every purpose the
child of its parent by adoption, as fully as though naturally born
to him in lawful wedlock, [Footnote
and further provided that "the said Molly Page Armstrong shall
be known by the Christian and Surname as Molly Page Manzo from this
During this entire period, the petitioner was not given, and did
not have, the slightest inkling of the pendency of these adoption
proceedings. On the day the decree was entered, however, Salvatore
Manzo wrote to the petitioner's father, advising him that "I have
this date completed court action to adopt Molly Page as my daughter
and to change her name to Molly Page Manzo." The petitioner's
father immediately relayed this news to the petitioner, who
promptly filed a motion in the District Court of El Paso County,
asking that the adoption decree be "set aside and annulled and a
new trial granted" upon the ground that he had been given no notice
of the adoption proceedings. [Footnote 4
Page 380 U. S. 549
The court did not vacate the adoption decree, but set a date for
hearing on the motion. At that hearing, the petitioner introduced
evidence, through witnesses and by depositions, in an effort to
show that he had not failed to contribute to his daughter's support
"commensurate with his financial ability." [Footnote 5
] At the conclusion of the hearing, the court
entered an order denying the petitioner's motion and providing that
the "adoption decree entered herein is in all things
The petitioner appealed to the appropriate Texas court of civil
appeals upon the ground, among others, that the trial court had
erred in not setting aside the adoption decree, because the entry
of the decree without notice to the petitioner had deprived him "of
his child without due process of law." The appellate court affirmed
the trial court's judgment, [Footnote 6
] and the Supreme Court of Texas refused an
application for writ of error.
We granted certiorari. 379 U.S. 816. The questions before us are
whether failure to notify the petitioner of the pendency of the
adoption proceedings deprived him
Page 380 U. S. 550
of due process of law so as to render the adoption decree
constitutionally invalid, and, if so, whether the subsequent
hearing on the petitioner's motion to set aside the decree served
to cure its constitutional invalidity.
In disposing of the first issue, there is no occasion to linger
long. It is clear that failure to give the petitioner notice of the
pending adoption proceedings violated the most rudimentary demands
of due process of law.
"Many controversies have raged about the cryptic and abstract
words of the Due Process Clause, but there can be no doubt that, at
a minimum, they require that deprivation of life, liberty or
property by adjudication be preceded by notice and opportunity for
hearing appropriate to the nature of the case."
Mullane v. Central Hanover Bank & Tr. Co.,
339 U. S. 306
339 U. S.
"An elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an
opportunity to present their objections. Milliken v.
Meyer, 311 U. S. 457
; Grannis v.
Ordean, 234 U. S. 385
; Priest v.
Board of Trustees of Town of Las Vegas, 232 U. S.
; Roller v. Holly, 176 U. S.
at 339 U. S. 314
Questions frequently arise as to the adequacy of a particular form
of notice in a particular case. See, e.g., Schroeder v. City of
New York, 371 U. S. 208
New York v. New York, N.H. & H.R. Co., 344 U.
; Walker v. Hutchinson City, 352 U.
; Mullane v. Central Hanover Bank & Tr.
But, as to the basic requirement of notice itself,
there can be no doubt where, as here, the result of the judicial
proceeding was permanently to deprive a legitimate parent of all
that parenthood implies. Cf. May v. Anderson, 345 U.
, 345 U. S.
The Texas Court of Civil Appeals implicitly recognized this
constitutional rule, but held, in accord with its understanding
Page 380 U. S. 551
of the Texas precedents, [Footnote 7
] that whatever constitutional infirmity
resulted from the failure to give the petitioner notice had been
cured by the hearing subsequently afforded to him upon his motion
to set aside the decree. 371 S.W.2d at 412. We cannot agree.
Had the petitioner been given the timely notice which the
Constitution requires, the Manzos, as the moving parties, would
have had the burden of proving their case as against whatever
defenses the petitioner might have interposed. See Jones v.
Tex.Civ.App., 285 S.W.2d 877; Ex parte
301 S.W.2d 194. It would have been incumbent upon them
to show not only that Salvatore Manzo met all the requisites of an
adoptive parent under Texas law, but also to prove why the
petitioner's consent to the adoption was not required. Had neither
side offered any evidence, those who initiated the adoption
proceedings could not have prevailed.
Instead, the petitioner was faced on his first appearance in the
courtroom with the task of overcoming an adverse decree entered by
one judge, based upon a finding of nonsupport made by another
judge. As the record shows, there was placed upon the petitioner
the burden of affirmatively showing that he had contributed to the
support of his daughter to the limit of his financial ability over
the period involved. The burdens thus placed upon the petitioner
were real, not purely theoretical. For "it is plain that where the
burden of proof lies may be decisive of the outcome." Speiser
v. Randall, 357 U. S. 513
357 U. S. 525
Yet these burdens would not have been imposed upon him had he been
given timely notice in accord with the Constitution.
Page 380 U. S. 552
A fundamental requirement of due process is "the opportunity to
be heard." Grannis v. Ordean, 234 U.
, 234 U. S. 394
It is an opportunity which must be granted at a meaningful time and
in a meaningful manner. The trial court could have fully accorded
this right to the petitioner only by granting his motion to set
aside the decree and consider the case anew. Only that would have
wiped the slate clean. Only that would have restored the petitioner
to the position he would have occupied had due process of law been
accorded to him in the first place. His motion should have been
For the reasons stated, the judgment is reversed and the case is
remanded for further proceedings not inconsistent with this
It is so ordered.
Mrs. Manzo joined the petition in order to manifest her consent
to the adoption, and also filed a separate written consent.
Vernon's Ann.Civ.Stat., Art. 46a, § 6, provides in pertinent
part as follows:
"Except as otherwise provided in this Section, no adoption shall
be permitted except with the written consent of the living parents
of the child; provided, however, that if a living parent or parents
shall voluntarily abandon and desert a child sought to be adopted,
for a period of two (2) years, and shall have left such child to
the care, custody, control and management of other persons, or if
such parent or parents shall have not contributed substantially to
the support of such child during such period of two (2) years
commensurate with his financial ability, then, in either event, it
shall not be necessary to obtain the written consent of the living
parent or parents in such default, and in such cases adoption shall
be permitted on the written consent of the Judge of the Juvenile
Court of the county of such child's residence; or if there be no
Juvenile Court, then on the written consent of the Judge of the
County Court of the county of such child's residence."
The petitioner does not here question the constitutional
validity of the substantive provisions of this statute.
Vernon's Ann.Civ.Stat., Art. 46a, § 9.
The third paragraph of the petitioner's motion was as
"At the time the above entitled and numbered proceeding came on
to be heard and judgment rendered, your Petitioner had never been
advised or given notice, actual or constructive, as required by the
laws of Texas, that this proceeding was to be heard or that it was
even pending, or of the judgment herein, until after the rendition
of the judgment, nor was any attempt made to notify Petitioner in
any way of this proceeding although his address and whereabouts
were well known to the parties -- in fact the parties to this
proceeding deliberately and wrongfully withheld all notice from
Petitioner for the expressed purpose of denying him any opportunity
to appear, contest and present his defenses to this proceeding; and
that Petitioner was prevented from appearing and presenting his
defenses not by his own fault or negligence, but rather by the
deliberate and wrongful acts of the parties to this
The prayer of the motion was as follows:
"Wherefore, Petitioner prays that the judgment and decree
entered in this proceeding be in all things vacated, set aside and
annulled and a new trial granted."
See note 2
371 S.W.2d 407.
See Lee v. Purvin,
285 S.W.2d 405; Dendy v.
142 Tex. 460, 179 S.W.2d 269; DeWitt v.
143 Tex. 122, 182 S.W.2d 687; Johnston v.
279 S.W.2d 597.