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.