CA: ‘Safe Surrender’ Law Not so Safe for Fathers

I’ve always wondered about this and now I know a little bit more than I did before reading this article (CBS13, 2/7/11). What I’ve wondered about is the effect on parental rights of “Baby Moses” laws.  Those are the laws that allow a parent, shortly after the birth of a child, to surrender the child to certain people/places/organizations and be free of any future criminal charges of failing to care for the child, child abandonment, etc.  Most of those laws (maybe all of them) require that no harm has been done to the child prior to surrender.  Hospitals, fire stations, police departments, etc. are usually designated as acceptable places at which to surrender the child.
The “Baby Moses” laws are enacted to encourage parents who might otherwise abandon a newborn to give it to someone who will be responsible for it. All of that is fine; it deals with potential criminal liability of the parents and hopefully saves the child’s life. But what it doesn’t do is decide issues of parental rights.  Imagine, for example, that a mother brings a newborn to a fire station and surrenders it.  She’s complied with the statute in every way, but what if she changes her mind two days later, a week later, a month later, a year later?  Has she lost her parental rights?  What if she claims she didn’t know the legal effect on her rights of surrendering the child?  Have her rights been terminated?  If so, where was her due process of law? More importantly, what is the effect of her surrender on the rights of the child’s father?  Has her surrender terminated his rights?  What due process of law did he receive? On the other side of the coin, what if Dad marches into the hospital, picks up his newborn, marches out again and over to the nearest fire station to surrender the child?  Has he terminated the mother’s parental rights?  If so, where’s her due process of law? Well, the article linked to answers some of those questions.  Simply put, in California at least, one parent may not decide the rights of the other parent by surrendering the child pursuant to the state’s “Baby Moses” law that’s called “Safe Surrender” there. But… While that seems to be the law in the Golden State, the simple fact is that the Safe Surrender law is precisely how some parents (mostly fathers) lose their parental rights.  Perhaps without meaning to, the article makes that clear. Tracy Nugent is a Stanislaus County sheriff’s deputy.  In her late 40s, she decided she wanted to adopt a child and specifically, one that had been surrendered under the Safe Surrender law.

“I know the law says safe and surrender, confidentiality, no mother, no father involved,’ Nugent remembers in an interview with CBS13.

In short, she knew the law and knew that a surrendered child would have “no mother, no father involved.”  That pretty much sums up the actual way the law works; it doesn’t say anything about parental rights, but in fact, parents lose their children through Safe Surrender.  Tracy Nugent knew that. And apparently, when the law says the surrender is to be “confidential,” that’s exactly what it means.  So when someone – no one seems to know just who – allowed the mother of the child Nugent had adopted to be identified, it violated California law.

Under the Safe Surrender law, the names of the boy”s biological mother and father were never to be known.  Any records of their identities were to be sealed, never to be revealed.  But apparently there was a mixup…

Somehow, someone, either from the hospital or from the Sacramento County Department of Health and Human Services leaked what was supposed to be confidential information about the biological mother”s identity.

[State Senator] Jim Brulte says that”s a problem. “That”s horribly illegal in this state,’ hey says, “and I would certainly hope the authorities are moving heaven and earth to find out who broke that law.’

So someone had let the cat out of the bag and, a few weeks after the child’s birth, the father, Richard Frackowiak came forward to demand custody.  And, despite the fact that, by the time his claim was adjudicated, the child was 16 months old, that’s exactly what happened; the child was transferred to him. So, it appears that California’s Safe Surrender law doesn’t permit one parent to legally terminate the other parent’s rights.  Except of course it does and is meant to without ever saying so. In fact if not in law, the Safe Surrender statute does what we’ve seen so often before in adoption cases; it establishes the principle that possession of a child can determine rights to the child.  As I’ve said before, many laws relating to adoption encourage mothers who want to place children for adoption to keep them secret from their fathers.  If they’re successful and a child is placed in the hands of adoptive parents, the natural father has increasing difficulty asserting his rights even if he does find out about his child.  The confidentiality provision of the Safe Surrender law does exactly the same thing but more; it not only encourages secrecy, it criminalizes informing a father like Frackowiak that he has a child.  That he ever found out is a violation of California law.  Just to drive the point home, Tracy Nugent is now suing the hospital and the county for their alleged failure to keep the mother’s name secret and in so doing allowing the father to get custody of his child. I’ve written more words than I care to remember about the many ways that fathers’ rights are placed in mothers’ hands.  This is another one. And predictably, the writer of the article couldn’t be more indignant that a law, so carefully crafted to allow a mother to pass off a child without the father’s knowledge, for once failed to perform that reprehensible task.  As is so often the case, the father barely appears at all in the article and when he does, he’s voiceless.  He’s not exactly the villain of the piece; that honor probably goes to the unknown hospital worker who spilled the beans. No, Frackowiak is just the destroyer of Nugent’s dreams.

When Frackowiak found out he was the baby”s biological father he demanded custody and a social worker told Tracy her dream was slipping away.

Of course it’s possible to see him as an outrageously wronged father.  Any balanced look at his situation would show that his girlfriend was pregnant for nine months but, during all that time, never told him about his child.  Indeed, I wouldn’t be surprised to learn that she well knew that state law abetted her secrecy.  Richard Frackowiak has custody of his child for one reason only – dumb luck.  Everything else conspired against him. I understand Tracy Nugent’s heartbreak.  She attempted to give a good home to a child she thought didn’t have parents to care for it.  But, as in all failed adoptions, Richard Frackowiak’s child is not the last one available.  There are hundreds of thousands of children across the country who need homes and parents.  There are millions more throughout the world. But Frackowiak’s child is the only one he has. Like all laws that seek to cut fathers out of the adoption loop, California’s Safe Surrender law needs to be changed to ensure that one parent can’t deprive the other of a child he/she may desperately want and be qualified to raise. Thanks to John for the heads-up.

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