Good News

I successfully finalized an adoption last week for two of my clients. I wish them well and their super cute baby too!

Breaking News!

The Utah Supreme Court just announced its decision in the In Re Baby E.Z. See the opinion here: http://www.utcourts.gov/opinions/supopin/InReEZ071911.pdf. There are a ton of news coverage for this case. For instance here: http://abcnews.go.com/GMA/baby-emma-father-fights-daughter-adoption/story?id=10392464 I will have my analysis up this week.

Also, I am working on my article regarding Chief Justice Durham's opinion on adoptions. It is taking longer than I would have hoped. Sorry for the delay in posts.  

When Does a Father have to Consent to an Adoption without Following the Procedure Outlined in Utah Law?

T.M. v. B.B. (In re T.B.), 2010 UT 42 (parttwo)

As promised, here is the second part of my analysis of T.M. v. B.B. wherein the putative father (after essentially fathering his baby for five months) lost his parental rights. In part 1, I discussed the current Utah law that allows a putative father one year to make a collateral attack against an adoption. In this segment, I will discuss one of the arguments that putative fathers make.

Recall that in this case “[t]he putative father was aware of the pregnancy and made attempts to obtain  receipts” in an effort to assist with prenatal medical expenses. He “requested that the natural mother sign a release allowing him access to T.B.'s medical information so that he could monitor T.B.'s progress during the pregnancy.” Despite active efforts by the family to exclude him, the father found the mother the day of T.B.'s birth, and was present in the hospital the day his child was born. After T.B.'s birth, the father entered into an agreement to pay child support, visited the child for several hours multiple times a week, “purchased child care supplies,” took family pictures with T.B., and at all times “insisted on remaining involved in T.B.'s life.”

The first argument often seen is that the Utah adoption code is unconstitutional as applied.  Most often, this is means that the Code, as applied against this specific father, violates the father’s rights to due process and equal protection. There are books (and volumes of books) written on “due process” and more books (and more volumes) written on “equal protection.” I am not naïve enough to try to give you a full background and education on these topics in a blog. But I am sure as time goes on I will write more about them specifically. The Court did not really address the equal protection claim, however, and rested its decision on due process.

Due Process

The 14^th Amendment of the US Constitution requires (in very broad terms) that no right will be taken without due process of law. Utah and Federal law recognizes that “an unwed biological father has an inchoate interest in a parental relationship with his child.” Lehr v. Robinson, 463 U.S. 248 (1983); Thurnwald v. A.E., 163 P.3d 623 (Utah 2007). “Inchoate” is a fancy word for not fully formed. To perfect this right, a birth father must establish a substantial relationship with his child. Id. However, even in its inchoate form, a putative father has a recognized right to child that is protected by the 14^th Amendment.

            The putative father argued that the system did not adequately protect his rights in this case. Specifically, the putative father argued that the adoption was a sham adoption for the purpose of excising him from his child’s life. In this case, the mother waited two months before relinquishing her rights, and even though the birth father wanted to form a relationship and tried to form a relationship with his child during this time, he did not undertake the procedural steps required by Utah law. Three of the five Utah Justices, however, disagreed with the father and held that two months of care, without undertaking the necessary procedural steps to protect his interest, was not “enduring” enough for the inchoate right to morph into full blown rights.

            However, two of the Justices (Justice Nehring and Chief Justice Durham) disagreed. Justice Nehring wrote, “I would not find the statutory requirements to be unconstitutional, but neither would I make it impossible for a father to establish a constitutionally recognized relationship simply because he failed to strictly comply with the statute.” T.M., 2010 UT 42 at ¶58. In other words, the Utah structure is not unconstitutional on its face, but it should be possible for a putative father’s interests to morph from inchoate into full fledged without jumping through procedural hoops. Justice Nehring and Justice Durham both felt that the putative father had done so in this case by caring for the child for the first few months after birth and before the mother relinquished.   

            Who do you think was right in this case? The majority or the dissent? What else could the putative father have done to establish that his inchoate interests are full blown?

When Final Isn't Really so Final.

T.M v. B.B. (In re T.B.), 2010 UT 42

            When may a putative father challenge an adoption on the merits? Most believe that it has to happen before the final adoption decree is entered by the Court (usually six months after the petition for adoption is filed). After all, final means final, right? Not according to a recent Utah Supreme Court decision.

In 2006 a birth mother became pregnant with her then boyfriend. In fact, they broke up before the baby was born. The putative father knew about the pregnancy and asked for receipts from the mother so that he could assist with prenatal medical expenses. The birth mother refused this request. She did promise the putative father that she would coordinate with him so that he could be present during the birth.

On the date of the birth, the birth mother went to a different hospital than planned and registered as a “silent patient.” This attempt at subterfuge failed, however, as the putative father found and visited the birth mother at the hospital. While there, the birth mother’s father offered to pay the putative father $120,000.00 to leave the baby and the birth mother alone. The putative father did not accept the money and entered into an informal agreement to pay child support and have visitation rights.

During the first five months of the baby’s life, the putative father contacted and spent time with the baby. He took family pictures, had a baby shower, and purchased child care supplies.  Also during this time – and unbeknownst to the putative father – the birth mother initiated adoption proceedings whereby the birth mother’s parents would adopt the baby. The birth mother consented to the adoption and relinquished her parental rights. Shortly before the adoption was finalized, the putative father learned of the adoption. The adopting parents told the putative father that once the proceeding was finalized, his parental rights would be terminated. The putative father then initiated a paternity action. However, a final adoption decree was entered.

In a Motion to reconsider, the putative father challenged the adoption decree. The putative father argued that his parental rights should not have been terminated. The District Court allowed arguments on the merits (i.e., actually considered the putative father’s case) before deciding that the adoption should stand. This is significant because it indicates that the final adoption decree is not so final after all and could be challenged (not by appeal) but by a motion to reconsider and a separate paternity action.

On appeal, the birth mother challenged the putivite father's rights to attack the adoption decree. The Utah Supreme Court agreed with the District Court and held that an individual who was not named in the adoption proceeding and who did not participate in the adoption could nevertheless challenge the adoption on its merits. The Utah Supreme Court interpreted Utah statutes and concluded that “subsection 78B-6-133(7)(d) suggests that a separate action challenging the adoption, on whatever ground, is a proper means of challenging an adoption proceeding.” The Court then held that “the putative father’s paternity action, as well as his motion to set aside, qualify as timely collateral challenges to the adoption.”

In other words, the Court allowed the putative father’s arguments to come in under the doctrine of “collateral attack.” A collateral attack is a separate lawsuit filed to challenge a separate case. It is not an appeal which challenges the merits of the separate case. It is usually reserved for unconstitutional rulings or obvious injustice (i.e., man gets divorce decree in another state without notifying his wife. Wife files new lawsuit seeking to set aside the divorce and the start the proceedings over.)

However, the Court did note three categories of people who could not launch a collateral attack: (1) parties to the adoption (the adoptive parents); (2) people who were served notice of the proceeding (a rarity in Utah); and (3) people who have executed a consent to the adoption or a relinquishment (birth mothers and some putative fathers). Further, the Court also noted that all challenges must be made within one year of the decree of adoption.

The problem is that notice is rarely given in Utah. Birth mothers and adopting parents are not required to go through the emotional and sometimes embarrassing task of identifying who may or may not be the birth father and send them notice that an adoption proceeding may be initiated. I can only speculate that the Utah legislature believes that such an exercise might have the effect of discouraging otherwise willing birth mothers from placing a child for adoption. However, by closing that door, Utah had to open this backdoor to protect putative father’s rights. The result is that adoptions are relatively simple in Utah, but challenges to adoptions are made far too often by fathers who sometimes have very legitimate arguments.

Here’s the takeaway: adoptive parents cannot be 100% sure that the adoption is final for at least one year after the adoption is “finalized.” Make sense? Not to me either. Again, I imagine this situation exists to give an out-of-state putative father who has no idea that the birth mother ran off to Utah to give birth and place the baby, and who after much searching discovers the birth mother’s actions late, runs to Utah to assert his rights. However, it also allowed the putative father in this case (who was in Utah, knew about the pregnancy, but failed to timely undertake significant legal proceedings to protect his interests) to assert his rights as well.

The competing interests of putative father v. adoptive parents v. baby is incredible. Frankly I think the one year period in Utah is too long. My personal belief is that once the decree for adoption is entered, it should be final. In fact, I do not believe that putative fathers should have the ability to launch any attack challenging an adoption after the mother relinquishes her rights. However, this approach only makes sense if the putative father’s rights are adequately safeguarded from the getgo. In my opinion, Utah would be well served to look to sister states to find solutions that provide putative father’s more rights up front and less opportunity to contest on the backend (Arizona for instance). I believe these systems provide a better mechanism to protect putative fathers from subterfuge and “sham adoptions” while also providing the adopting parents and the child finality. If the birth mother suffers a little embarrassment or decides not to place because of these safeguards, those sufferings pale in comparison to a putative father who loses his rights without notice, an adoptive couple who potentially loses a child years after the adoption, or the child whose fate is in limbo.

The putative father in the case above actually makes some interesting and compelling arguments as to why the adoption should be set aside. Ultimately these were rejected by the District Court and the Utah Supreme Court, but should they have? I will discuss those next week.    

Father's Rights - RCR v. MAB

The Utah Court of Appeals announced a decision today against a birth father seeking to intervene in an adoption of his child.

In this case, a love triangle went very wrong when the mother, who is married to another man, became pregnant. It is undisputed that the husband is not the father of the baby. The birth father initiated paternity action in September 2009 and served the mother with that action. The husband then filed a petition to adopt the child, identified the father as the father (thus overcoming the presumption that he is the father), and sought to have birth father's rights terminated. However, the birth father was not notified of this action nor named in the adoption proceeding.

On December 10, 2009, the Judge Hadley, a Judge in Ogden Utah, terminated the birth father's rights and entered a Decree of Adoption.

The birth father filed an appeal from the adoption proceeding. It makes sense that a father -  who everyone admits is the father and who has done everything right according to statute - should be able to appeal a decision that terminates his rights, right? Not according to the Utah Court of Appeals.

Although neither party argued this point, the Utah Court of Appeals sua sponte analyzed whether the birth father had "standing" to bring the appeal. Standing is a legal doctrine that determines who can come before the court and argue a grievance. Standing is the doctrine that stops me from suing Toyota for faulty accelerators when I have never owned a Toyota.

The Court of Appeals held that because the father was not part of the action in the District Court, he did not have standing to appeal the decision. Accordingly, the Court upheld the District Court's decision to terminate the father's rights. Importantly, the case cited by the Court of Appeals says that "generally" an appellant must be a party to appeal - which means to me that sometimes, a person can appeal without being a party in the district court.

One interesting legal issue is what happens with the birth father's paternity action. With an order in place that says the birth father's rights are terminated, that is presumably a decision that would be binding in the paternity action. Further, once a father's rights are terminated, he has no ability to even establish paternity.   

Another interesting question is what should the birth father have done? Utah law says that by initiating a paternity action and filing notice of the action with the state, notice of a paternity action was required to be served  upon him. This may not have happened. (More likely, however, it did happen, but the father denied actually receiving the notice and was therefore a question of whether the service was sufficient - just a guess). A party has the right to intervene in an action if its rights are affected, and the Court of Appeals felt that the father should have done that here. If not, I would think if ever an appeal could be initiated by a non-party it would be in this case.

Here are some takeaways: (1) A court will sometimes make a decison that has nothing to do with merits of the case. You need a good attorney to help you through the process. A procedural snafu caused a father to lose the chance to fight for his child. (2) A father can, even if he does everything he is required to do, lose his rights. Both potential adoptive parents and birth fathers must be aware that this situation may occur. All birth fathers must be on notice now that if they do not intervene in an adoption, they will lose their rights. (3) Utah's legal system is not set up to help father's protect their rights. It's main purpose is to facilitate adoptions because that is what is in the best interests of the child. All other rights are clearly secondary to that issue.

The entire decision is available here: http://www.utcourts.gov/opinions/appopin/mjb010611.pdf