Biological Father's Rights in Adoption Proceedings

Introduction

A little over a decade ago, the nation watched in horror as news reports repeatedly showed Baby Jessica screaming as she was torn from the parents who had raised her for nearly three years and handed over to her biological father. A Michigan court allowed Baby Jessica's transfer despite expert testimony concluding that the disruption would cause great psychological harm in the short term and could 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 United States Supreme Court began to recognize and expand the rights of unwed biological fathers. Although none of the Supreme Court cases directly 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, fathers' 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 generated public demand for reform. As a result, many fathers' groups have formed specifically to lobby for the enactment of protective legislation.

This paper analyzes the role and rights of the biological father in adoption proceedings, drawing upon an examination of the relevant case law. It discusses the biological father's rights in an adoption he wishes to contest and his post-adoption rights. Finally, it concludes with a discussion regarding the future of the adoption process and its legal effect on the rights of biological fathers.

General Adoption History and the Emergence of Fathers' Rights

The concept of adoption was not legally recognized in the United States until the 1850s, 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 cities 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 adoptive home, this requirement was more form than substance. Furthermore, while early adoption statutes created a defined relationship between the adoptive parents and the adopted child, the impact on ties to the biological parents remained unclear.

As the number of informal adoptions rose, the need for a formal process became greater. In 1851, Massachusetts enacted the first adoption statute in the United States. 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. 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 adoptive home, this requirement remained 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.

The unknown impact on ties to the biological father remained unclear for years. Biological but unwed fathers had no recognized legal standing until the 1970s. In many states, biological unwed fathers still do not have a presumptive right to consent to 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. 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 grounds upon which parental rights may be involuntarily terminated did not commence until the 1970s. In Stanley v. Illinois, the Supreme Court first recognized that putative fathers have at least minimal parental rights to their illegitimate children. Although not married, the biological father in that case 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 guidelines for removing children from the home. The law differed, however, in its treatment of married parents and unmarried mothers versus unwed fathers. Where neglect was at issue, Illinois law required notice, a hearing, and proof of the parent's unfitness in order to remove children from the home. In the case of unwed fathers, however, Illinois law merely presumed that the 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 that 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 deserving 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 those rights based on his biological relationship combined with the existence of an established family relationship.

In Quilloin v. Walcott, the Court held that the decision in Stanley did not apply. In that 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, had 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 noted that the child had lived with her mother and stepfather since she was almost three years old, and that the adoption would, in effect, 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 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 — the biological father must also act like a father.

In Santosky 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 in Adoption Proceedings

Generally, state statutes view involuntary termination of parental rights as an action of last resort, and 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: A prima facie 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: Neglect must be serious and continuing and must involve serious mental, physical, or moral harm to the child. Poverty or a disreputable lifestyle, absent such harm, is not adequate grounds for termination.

Abuse: Abuse requires serious physical or emotional harm, or sexual misconduct. A likelihood of future abuse must also be established, since termination is not intended as a punishment to the biological parent.

Mental illness, deficiency, or substance abuse: Such a condition must result in an inability to parent and must continue for a long and indeterminate period of time in order to constitute viable grounds to terminate parental rights.

In addition to demonstrating a conviction and current incarceration, most state laws require a showing that the crime demonstrates unfitness or that the sentence is of 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 on the basis of a valid relinquishment of rights to a child. Rights of inheritance and support continue until the 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 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 to 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 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 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. 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 abandonment as a situation in which the parent, although able to do so, makes no provision for the child's support and makes no effort to communicate with the child — actions 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. 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 and 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 had suggested that the unwed biological mother have an abortion, which she refused, instead making 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 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 toward the pregnancy and toward 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. 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 a third party; (3) the possible emotional effect on the child of a change of custody; (4) the period of time that 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.