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 14th 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 14th 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?
In this case, short of jumping through all the procedural hoops, nothing.
ReplyDeleteI think the Utah Supreme Court said essentially, it is possible that you can, as an unwed biological father, acquire constitutional protection of your parental rights, but only after you've acted like a father for a *long* time (we're talking spent years raising the kids as your own). 5 months didn't cut it, and a father who doesn't comply with the statutory requirements risks having his parental rights terminated by the birth mother's adoption decision before he has enough time to acquire constitutional protection.
But the Court split tenuously 3-2 on this point, so I'd expect some future adjustments, qualifications.
Nonetheless, I still think the court got it right in this case. But you feel for the dad, here, no doubt.