July 8, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Ever so gradually, it seems that the State of Utah may be backtracking on its outrageously biased adoption laws. As readers of this blog well know, Utah is the state of choice for unmarried mothers throughout the country who want to place their children for adoption without input from the fathers. The state erects many often insuperable barriers to unmarried fathers who might want to gain custody of and raise their children themselves.
The most remarkable such barrier is the so-called “fraud immunity” provision that actually gives a pass to mothers who fraudulently misrepresent relevant facts either to the father or the adoption agency. So, for example, a mother who claims not to know the father of the child or where he might be located sees the adoption of her child sail through courts even if it’s discovered that she lied.
Those barriers of course attract single mothers from all over the country and give a big boost to the state’s adoption industry. No state, with the possible exception of South Carolina, is as dedicated as Utah to removing unmarried fathers from their children’s lives.
But as I said, the worm may be turning, however slowly. In the Rob Manzanares case, Mom committed fraud by lying to the adoption agency and the court, acts that normally would pass legal muster in the Beehive State. But Manzanares intervened in time to stop the proceedings. It’s been over seven years, but it now looks like he’ll finally prevail and stop the adoption of his child.
Then in 2012, the state legislature passed the Pre-birth Notice Act allowing various people, including mothers and adoption agencies, to give formal notice to unmarried fathers that a child may be placed for adoption and informing him of what he needs to do to stop it. The fact of that Act alone strongly indicates uneasiness on the part of legislators about the bad press their state is getting regarding its enthusiasm for sidelining them from their children.
Now there’s this case that does two things. First and foremost, it requires any notice provided under the Pre-birth Notice Act to comply with the actual terms of the law. That may not sound surprising, but in Utah, you never know. Second, it provides a glimpse of how difficult on unmarried fathers the state still makes stopping an adoption.
Briefly, Phillip James and the unnamed mother had an affair and she became pregnant. Her estimated due date was in September, 2014. When she told James about the child remains unclear, but early in her pregnancy, she started contacting adoption agencies to place the child. Apparently she made the mistake that few in Utah seem to; she told the agency the name and whereabouts of the dad.
That meant that, in order to complete the adoption, sending him the pre-birth notice was, if not necessary, at least a good idea. And so the agency wrote up a notice that was delivered to James via a process server. James failed to do everything the statute requires of unmarried fathers in the time allotted, so the trial court ruled that his consent to the adoption wasn’t required. The state Supreme Court overruled that decision.
Why? It did so on the entirely technical basis that the statute clearly says that if the father fails to take the enumerated steps to preserve his parental rights, then he loses the right to contest the adoption. But the notice only said that he may lose his rights. The Supreme Court ruled that the notice didn’t comply with the statute and therefore wasn’t sufficient to deny James his right to intervene in the adoption.
That’s all simple enough, but the Court’s opinion brings out certain other facts. For example, although Mom told the truth about the father’s name and where he was located, it’s not as if she was exactly forthcoming with James. For at least three months, she didn’t tell James that she intended to place the child for adoption. But, having received the notice,
James immediately contacted Mother, who denied sending the Notice.
She did so even though she had sent it. Nevertheless, James did what he could to preserve his rights.
At this point, according to James, he and Mother had “meaningful discussions” about one or both of them raising Child. Yet unbeknownst to James, Mother continued to search for prospective parents to adopt Child. On August 28, Mother spoke with Adoptive Parents for the first time. She did not tell James because she did not want him to interfere. On September 4, again unbeknownst to James, Adoptive Parents petitioned to adopt Child.
When she gave birth, the mother still refused to inform James, even though her delivery was several days ahead of schedule.
So much for Mom.
Now, here’s what unmarried fathers in Utah have to do to stop an adoption of their child.
(1) initiating a paternity proceeding in district court; (2) filing an affidavit outlining James’s ability to care for Child and his plans for doing so; and (3) filing a notice of commencement of paternity proceedings with the Utah Department of Health.
He must do all those things within 30 days of his receipt of the Pre-birth Notice. So James swung into action, and here’s what he was met with:
James immediately contacted Mother, who denied sending the Notice. He also took the Notice to the Utah Department of Vital Records, where an “adoption specialist” advised him that the Notice was not a legal document because it was not signed, not notarized, and not filed with a court.1 The adoption specialist also informed James that he had until twenty-four hours after Child was born to preserve his parental rights.
Not a word of that was true. The “adoption specialist” was either wrong or lying. There is no requirement that the notice be signed or notarized or filed with a court. And the recipient has 30 days from receipt to act, irrespective of when the child is born. Those are the plain words of the statute. Strange that an “adoption specialist” at the Department of Vital Records would be so uniformly wrong about something so clear.
Still, Phillips prevailed, if only by dumb luck. Utah is still dead set on denying parental rights to unmarried fathers. Unmarried mothers? That’s a different story, at least I suspect it is. It’s worth speculating about what would happen if an unmarried father simply picked up his newborn the day it came home from the hospital and, while Mom was resting, took it to an adoption agency and placed the child for adoption.
Of course he couldn’t claim to not know the identity of the mother, but he could claim he had no idea of where to locate her. After all, fraud in a Utah adoption is both common and accepted.
What would happen? Would the wheels of the Utah adoption industry turn as efficiently and inexorably as they do when it’s a mother placing the child? Or would the inherent sexism of that system work against the father who wants to see the child adopted just as it does the father who wants to stop an adoption?
Funny that there are no cases on record of that ever happening.
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