Adoption processes and considerations

¶ … LEGAL ANALYSIS of ADOPTION & BIOLOGICAL FATHER'S RIGHTS

Introduction little over a decade ago, the nation watched in horror as news reports continuously showed Baby Jessica screaming as she was torn from the parents who raised her for nearly three years and given to her biological father. A Michigan court allowed Baby Jessica's transfer despite the fact that the experts who testified concluded that this disruption in her life would cause great psychological harm to her in the short-term and possibly emotionally scar her for life. In rendering its decision, the court evaluated the constitutional rights of the biological father, yet ignored the rights and interests of the child. In recent years, the same situation has repeatedly brought issues involving the parental rights of a biological father in an adoption case to the forefront of the legal system.

Historically, putative fathers have been virtually ignored by the law. These fathers have been afforded few, if any, rights to their biological children born out of wedlock. In 1972, however, the Supreme Court began to recognize and to expand the rights of unwed biological fathers. Although none of the Supreme Court cases address the issue of a newborn placed for adoption when the biological father is unaware of the child's existence, a brief overview of the cases will show the current status of unwed fathers' adoption rights.

There are no clear guidelines establishing how courts should decide adoption cases involving fathers' rights, and as a result, father's rights have slowly evolved. This lack of predictability leads fathers to bring constitutional claims alleging violations of their due process and equal protection rights. In addition to legislative and judicial recognition of this problem, the harm inflicted on children by the uncertain results in these adoption situations has also led to public demand for reform. As a result, many father's groups have formed specifically to lobby for the enactment of protective legislation.

This paper will analyze the role and rights of the biological father in adoption proceedings, drawing upon an examination of the relevant case law. It will discuss the biological father's rights in an adoption he wishes to contest and his post-adoption rights.

Finally, it will conclude with a discussion regarding the future of the adoption process and its' legal effect on the rights of biological fathers in the adoption process.

General Adoption Information / History

The concept of adoption was not legally recognized in the United States until the 1850's, with the inception of the first adoption statutes. Very often these informal placements were economically motivated, as farm families had a great need for child labor. The advent of industrialization in the United States resulted in massive immigration to major cites where families often were unable to support or care for their children. Informal transfers of these children to other families, by either the indigent parents or the charitable institutions where parents sometimes left their children, promoted these types of placements. While early adoption statutes required a finding of suitability on the part of the prospective adoption home, this requirement was more form than substance. Finally, while early adoption statutes created a defined relationship between the adoptive parents and the adopted child, the impact on the ties to the biological parents was unclear.

As the number of informal adoptions rose, the need became greater to have a formal process for adoptions. In 1851 Massachusetts enacted the first adoption statute. Adoption pursuant to the Massachusetts statute required judicial approval, consent of the child's parent or guardian, and a finding that the prospective adoptive family was of sufficient ability to raise the child. Between 1850 and 1930, statutes may have referred to consent, but rarely set parameters regarding when or how consents were taken. Virtually no safeguards existed for ensuring that a consent was informed and voluntary, and by 1917 Minnesota required the agency or state welfare department to investigate and make recommendations to the court. While early adoption statutes required a finding of suitability on the part of the prospective adoption home, this requirement was more form than substance.

The treatment of adoption records was similarly confusing. Early adoption statutes made no provision for confidentiality or the maintenance of records. Original birth certificates were not altered or secreted in court files to prevent their distribution. As a result, adoptive families and biological parents had no legal protection with respect to intrusions upon each other's lives following an adoption.

This unknown impact on the ties to the biological father remained unclear for years. Biological but unwed fathers had no recognized rule until the 1970's. In many states, biological unwed fathers still do not have a presumptive right to consent or veto an adoption, but merely a constitutional right to notice and an opportunity to be heard. In some cases, the unwed biological father may have a constitutional right to consent or veto where the birth father has "earned" that right by establishing paternity following the child's birth, or depending upon the law of the state where the adoptive placement occurred, the role of the biological father in the adoptive process may vary dramatically.

Historically, a grave stigma attached to an illegitimate child, and the law protected only legitimate children. Statutes detailing the ground upon which parental rights may be involuntarily terminated did not commence until the 1970's. In Stanley v. Illinois, the Supreme Court first recognized that putative fathers do have at least minimal parental rights to their illegitimate children. Although not married, the biological father lived with his children and their natural mother until the mother's death. Upon the mother's death, because he was an unwed father, the children were declared wards of the state. The Illinois law in place at that time provided the guidelines for removing children from the home. The law differed, however, in the treatment of married parents and unmarried mothers and the treatment of unwed fathers. Where neglect was at issue, in order to take children out of the parent's home, the Illinois law required notice, a hearing, and proof of the parent's unfitness. In the case of unwed fathers, however, Illinois law merely presumed children had no surviving parent or guardian and the children thus became wards of the state.

In finding the Illinois law unconstitutional, the Supreme Court recognized that even an unwed father has rights in his children and family which deserve due process protection. It held that Stanley, like all other parents, was entitled to a hearing on his fitness before his parental rights could be terminated. Although the Court found that an unwed father had rights that deserved protection, its holding was limited to circumstances in which a de facto family and an established relationship existed. The Court did not recognize an unwed father's rights based solely on the biological relationship between a father and his children, but rather recognized an unwed father's rights based on his biological relationship and the existence of an established family relationship.

In another early case, Quilloin v. Walcott, the decision in Stanley was held not to apply. In this case, the father had not demonstrated any of the normal responsibilities attached to the notion of parenthood. The biological father had never married or lived with the child and the child's mother, and he never had or sought legal custody of the child and had never filed a petition to legitimate the child until eleven years after her birth, when her stepfather sought to adopt her.

In allowing the adoption to proceed, the Court took note of the fact that the child had lived with her mother and stepfather since she was almost three years old. The Court stated that the adoption would, in effect, serve to give full recognition to a family unit already in existence.

Because the Court relied on an existing family relationship in both Stanley and Quilloin, it was clear, at this point, that constitutional protection would not be afforded a putative father on the mere existence of a biological link. There must also be some affirmative action by the putative father to acknowledge and accept his responsibilities, and the biological father must also act like a father.

In Santoski v. Kramer, the United States Supreme Court held that parents have a fundamental interest in the care, custody and control of their children, but not an absolute right. The due process clause of the United States Constitution requires that severance of a parent's rights be supported by clear and convincing evidence. Generally, state statutes view involuntary termination of parental rights as an action of last resort. State statutes normally require that efforts be made to preserve the family relationship, and those terms vary from state to state. Courts now grant illegitimate children privileges that they were previously denied and impose responsibilities upon their biological fathers.

Father's Constitutional Rights

Generally, state statutes view involuntary termination of parental rights as an action of last resort. Statutes normally require that efforts be made to preserve the family relationship. What efforts must be taken and to what length those efforts must go prior to termination varies from state to state. Normally, efforts must be reasonable and diligent but not futile. The general grounds for termination of parental rights in all states are as follows. Abandonment is a prime case of abandonment can be established after six months of conscious disregard of any form of parental obligations by a parent, including support, maintenance, love and care. The conduct must be intentional and normally must involve a lack of support plus a failure to communicate. Neglect must be serious and continuing and involve serious mental, physical or moral harm to the child. Poverty or disreputable lifestyle, absent such harm, is not adequate grounds for termination. Abuse requires serious physical or emotional harm, or sexual misconduct. A likelihood of future abuse must also be established, since termination is not intended to be a punishment to the biological parent. A mental illness, deficiency, or substance abuse problem must result in an inability to parent, and must continue for a long and indeterminate period of time in order to be viable grounds to terminate parental rights.

In addition to demonstrating a conviction and current incarceration, most states laws require a showing that the crime demonstrates unfitness or that the sentence be of an exceedingly long length. In evaluating the length of the sentence, the court will balance the prior parental relationship existing between the parent and the child, the age of the child, the potential of the parent to care for the child post-incarceration, and the potential for contact with the child during incarceration.

Parental rights can also be severed predicated upon a valid relinquishment of the rights to a child. The rights inheritance and support continue until finalization of the adoption. If a child is in out-of-home care, termination of parental rights can be based upon nine months of willful refusal or substantial neglect by a biological parent, or eighteen months of the demonstrated inability to remedy the problem by the biological parent with a substantial likelihood that the situation will continue. In these circumstances, if a plan for adoption exists, termination of parental rights may be considered.

The United States Supreme Court has recognized in several cases that a father's constitutional right to raise his child is not absolute. The Courts have held that a father's relationship with his child is entitled to constitutional protection only after he establishes a substantial and committed relationship with his child. The standards applied by state courts in determining whether they will terminate an unwed biological father's rights are: 1) whether his actions constitute abandonment of the child, 2) whether it is in the best interests of the child that the father's parental rights be terminated, and 3) whether the nature of the relationship between the father and his child is worthy of constitutional protection.

The Courts have consistently held that there is a presumptive preference for biological parents to assume the custody and care of children and that the state must show a sufficient cause for any intervention with this presumption. In the case of illegitimate children, the state has an interest in placing children in stable homes while fathers have an interest in parenting their children.

The Courts have attempted to balance these competing interests, and courts have held that a state does not violate a father's right to due process if it shows a compelling reason to terminate his parental rights.

In Pena v. Mattox, the biological father argued that his due process rights were violated when his parental rights were terminated by the adoption of his child.

The mother had given birth to the child while the father was incarcerated for statutory rape. As part of his sentence, he was ordered to have no contact with the mother or her family. As a result, he was not informed of the birth of the child and did not consent to the adoption of the child. However, the court held that his due process rights were not violated when the child was adopted without his consent because he failed to take advantage of steps available to him to form a relationship with his child. Accordingly, if a father fails to develop a substantial relationship with his child, due process does not demand a hearing prior to the termination of his parental rights.

Several states allow termination of a biological father's rights upon a showing that the father has abandoned the child. The Courts have defined abandoned as a situation in which the parent, although able to, makes no provision for the child's support and makes no effort to communicate with the child. These actions are sufficient to evince a willful rejection of parental obligations. In Doe v. Roe, a biological father claimed that the court violated his constitutional rights when it permitted the adoption of his child without his consent. However, an examination of the facts revealed that the father had urged the mother to have an abortion because he was not ready to commit to marriage, felt financial pressure, and was troubled by the whole idea of marriage. After the adoption papers were signed, the father proposed marriage that wanted to keep the baby. The trial court determined that he had abandoned the child and therefore his consent to the adoption was not necessary. The Supreme Court of Florida upheld the trial court's decision, reiterating that a court may examine a father's prebirth actions in determining whether he has abandoned the child.

The Courts generally will not permit termination of the rights of a father who comes forward and demonstrates a full commitment to his parental responsibilities. In Adoption of Michael H., the biological father suggested that the unwed biological mother have an abortion, which she refused and instead made adoption arrangements. During the pregnancy, the father was arrested for aggravated assault on the mother, but agreed to the planned adoption of the child. After the child was born, the adoptive parents and the mother learned that the father had decided not to place the child up for adoption. The Supreme Court of California scrutinized the father's actions prior to the birth of the child, and awarded custody to the adoptive parents.

Some courts allow a finding of abandonment on the basis of a father's prebirth conduct, considering such factors as the father's attitude towards the pregnancy and towards any arrangements for the subsequent placement of the child. Many courts also apply the "best interests of the child" standard, often resulting in varying decisions with outcomes based on justification of the child's interests. The factors courts consider in analyzing what is in the best interests of the child are as follows: 1) the length of time the child has been away from the biological parent; 2) the age of the child when care was assumed by the third party; 3) the possible emotional effect on the child of a change of custody; 4) the period of time which elapsed before the parent sought to reclaim the child; 5) the nature and strength of the ties between the child and the third party custodian; 6) the intensity and genuineness of the parent's desire to have the child; and 7) the stability and certainty as to the child's future in the custody of the parent.

California Courts & Adoption Law

California courts utilize the best interests of the child standard by considering whether the biological father presents a substantial risk of detriment to the child's well-being.

Other California courts have argued that the best interests of the child standard should no longer be the primary consideration in the determination of whether the court should terminate an unwed biological father's rights. The discrepancy regarding the applicable standard even within the same jurisdiction exemplifies the unpredictability involved in these decisions. The various best interests of the child standards and their varied application further demonstrate the great degree of uncertainty plaguing adoptions involving an unwed biological father and also illustrate the urgent need for resolution.

In response to the uncertainty regarding the rights and responsibilities of unwed biological fathers, several states enacted legislation aimed specifically at clarifying these issues. California passed legislation that specifies the particular instances when and the precise parties who may bring an action to determine whether a father and child relationship exists. The California Family Code provides that a man presumed to be the child's biological father may bring an action as follows: 1) at any time for the purpose of declaring the existence of the father and child relationship; 2) for the purpose of declaring the nonexistence of the father and child relationship only if the action is brought within a reasonable time after obtaining knowledge of relevant facts. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party.

Reacting in part to what happened in the DeBoer case, the California legislature proposed and enacted changes to California's adoption laws. None of these legislative changes, however, directly addressed the issue of biological fathers who seek to assert their parental rights upon finding out about their children months, or even years, after adoption proceedings have begun or have been completed. In California, there are two types of adoptions, agency adoptions and independent adoptions. In an agency adoption, the birth parent relinquishes the child to a licensed adoption agency or the Department of Social Services. Relinquishment of the child, by either birth parent, terminates all parental rights and responsibilities toward the child.

In an independent adoption, the birth parent consents to the adoption of the child by the prospective adoptive parents, and consent may be withdrawn with court approval.

Under California law, if the biological father wants to stop an adoption, the court first determines whether he is the father, and then ascertains whether the retention of his parental rights serves the best interests of his child. If consent is withdrawn, the court must approve the adoption based upon an analysis of the child's best interests. The California Supreme Court, in Adoption of Kelsey S., clearly established that a biological father possesses a constitutional right to contest an adoption and gain custody of his child. The court held that the statutory distinction in California between fathers and birth mothers, to the extent that the statutes allow a mother unilaterally to preclude the biological father from meeting the statutory requirements and becoming a presumed father, violated the principle of equal protection and due process guaranteed biological fathers by the federal constitution. This allows the state to terminate the parental rights of the biological father upon a showing that it is in the child's best interest.

As part of this holding, the court stated that if an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities; emotional, financial, and otherwise, his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. Accordingly, state law required the trial court to determine whether the child's best interests were better served by the birth father's retention of his parental rights or by allowing the adoption to proceed. The trial court found that the child's best interest required termination of the biological father's parental rights. The Court of Appeals affirmed the judgment.

Guided by other court decisions, the Court concluded that absent a showing of a father's unfitness, his child is ill-served by allowing its mother effectively to preclude the child from ever having a meaningful relationship with its only other biological parent. As the courts mentioned in the previous sections, the court took into consideration the father's conduct both before and after the child's birth. The court further reasoned that the father must also demonstrate his personal willingness to assume full custody of his child himself and not merely his desire to block a planned adoption. Other factors include public acknowledgment of paternity by the biological father, payment of as much of the pregnancy and birth expenses as his financial situation will allow and initiating prompt legal action to seek custody of his child.

Role of the Supreme Court & the Present Status of Biological Father's Rights

Thus, the Court maintained its stance of requiring some form of relationship between the biological father and the child before the father's rights will be constitutionally protected, although its definition of relationship was expanded by the recognition that a father has an opportunity to develop a relationship with his biological child that should be protected. In later cases, the Supreme Court recognizes not only existing relationships, but also the opportunity to develop such relationships.

Beginning with its decision in Stanley, the Court expanded the rights of unwed fathers. Subsequent to Lehr, unwed father's constitutional rights attached when a biological link and a relationship exist between father and child. With its decision in Michael H., however, the Court halted its expansion of unwed fathers' rights.

Where a putative father has established psychological as well as biological ties to his child, the Court recognizes between them a constitutionally protected relationship. The Court also seems to recognize that a biological father has an opportunity interest in developing a relationship with his illegitimate child. The opportunity interest must receive constitutional protection when the father has taken steps to grasp that interest, such as participating in the care and custody of his child. The Supreme Court cases, however, leave many questions unanswered. The question of how to handle a custody dispute between a putative father and prospective adoptive parents when the father has learned of the child's existence only after the child has been placed with the adoptive parents appears to thus have been left to the states.