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THE UNWED BIOLOGICAL FATHER'S RIGHT TO CONTEST AN ADOPTION: FURTHER REFLECTIONS ON BABY RICHARD ET AL.
© 1998 National Legal Research Group, Inc.
I. INTRODUCTION
In the last seven years, three publicized cases concerned the efforts of an unwed biological father to prevent the adoption of his child by prospective adoptive parents who had had custody since the child's birth. This article will first recap the facts of these three cases and how the results in these cases might have been avoided. The article will then recap Supreme Court law on the rights of unwed fathers to contest adoption. Finally, we will note developments in the law since these three cases were decided regarding the right of a biological father to contest an adoption.
II. THE CASES: BABY RICHARD, BABY JESSICA, AND BABY MICHAEL
A. Baby Richard
The case of In re Petition of Doe, 159 Ill. 2d 347, 638 N.E.2d 181 (1994), now and forever known as Baby Richard, represents a rather typical fact pattern in unwed parents adoption cases: an unwed father unaware of the birth of his child. Daniella Janikova and Otakar Kirchner began living together in 1989. Daniella became pregnant in June of 1990. During the first eight months of Daniella's pregnancy, Otakar provided for all of Daniella's expenses. In late January 1991, Otakar went to his native Czechoslovakia to attend to his gravely ill grandmother for a few weeks. During this time, Daniella was informed that Otakar had resumed a romantic relationship with a former flame.
Because of this news, Daniella left their shared apartment and refused to talk to Otakar on his return. When Daniella gave birth to the baby, she gave her consent to adoption by the Does. She also told the Does and their attorney that she knew who the father was, but she would not furnish his name. When Otakar and his uncle pressed Daniella for information about the baby, she told them the baby had died.
Fifty-seven days after the birth of the baby, Otakar learned of the pending adoption proceedings by the Does. He immediately filed his objection to the adoption. The trial court held that the father's consent to adoption was unnecessary because he did not show sufficient interest in the child during the first 30 days of the child's life. The appellate court affirmed, with one justice dissenting. In re Petition of Doe, 254 Ill. App. 3d 405, 627 N.E.2d 648 (1994).
The Illinois Supreme Court reversed, in a decision that made headlines all over the country. (Indeed, one Chicago newspaper columnist, Bob Greene, continues to agitate for a return of the baby to the adoptive parents.) The Supreme Court of Illinois held that the father had made various attempts to locate the child during the first 30 days of the child's life, all of which were frustrated or blocked by the actions of the mother. Further, the mother was aided by the attorney for the adoptive parents, who failed to make any effort to ascertain the name or address of the father despite the fact that the mother indicated she knew who he was. Under the circumstances, the court concluded, the father had no opportunity to discharge any familial duty. The father's parental rights had thus been improperly terminated, and any discussion of the best interests of the child was premature.
The court further noted that it was over three years since the birth of the baby. If anyone was to bear fault, the fault should be placed first on the mother, who fraudulently tried to deprive the father of his parental rights, and second on the adoptive parents and their attorney, who proceeded with the adoption despite their knowledge that a biological father existed who had not been informed of his baby's existence. The adoptive parents should have, when Otakar entered his appearance, relinquished the baby. An appeal to the United States Supreme Court was denied. Kirchner v. Doe, 115 S. Ct. 499 (1994).
The Illinois Supreme Court emphasized that the child's best interests cannot justify the termination of parental rights where the parent has not been found unfit. Thus, at least one author has suggested that a rule denying an unrelated person standing to file an adoption proceeding before a court has found the biological parents unfit would prevent a future Baby Richard case. H. Joseph Gitlin, No Standing to Adopt Unless Parents Are Found Unfit: Would It Prevent Baby Richard II?, 85 Ill. B.J. 420 (1997).
B. Baby Jessica
On February 8, 1991, in Iowa, Cara Clausen gave birth to a baby girl. In Iowa, valid consent to an adoption cannot be given until at least 72 hours after birth. Nonetheless, the attorney who facilitated the adoption allowed Cara to consent to the adoption in his presence 40 hours after giving birth. The attorney did not explain to Cara or to Scott, the man Cara named as the father of the infant, that he was the DeBoers' lawyer, that he was not representing Cara or Scott, and that a consent executed within 72 hours of birth might not be valid. The attorney accepted physical custody of the infant and transferred her custody one week later. On February 25, 1991, the attorney secured a juvenile court order terminating Cara's and Scott's parental rights and permitting the DeBoers to take the infant with them to Michigan pending completion of Iowa adoption proceedings. The Interstate Compact Administrators in Iowa and Michigan approved the interstate placement.
Two days later, Cara filed a request to revoke her consent to the adoption and to set aside the termination order. In her accompanying affidavit, Cara stated she had lied about who the father was, and that the true biological father was Dan Schmidt. Dan filed an affidavit of paternity and sought leave to intervene in the adoption proceeding, claiming that he had just learned he was the baby's father, that he opposed the adoption, and that without his consent the adoption proceeding must be dismissed.
In December 1991, the district court ruled that blood tests established Dan Schmidt's paternity and that because he did not know of the child's existence until after Cara had placed her he could not have abandoned her, and thus his parental rights could not have been terminated without his consent. The court further found that once Dan had learned of his paternity, he did everything he could to claim custody of his daughter. The district court dismissed the DeBoers' petition to adopt and ordered them to transfer custody of the child not later than January 12, 1992 (at which time the baby would have been 11 months old).
The DeBoers filed an appeal with the Iowa Supreme Court, which granted a stay of the district court's decision until the appeal was decided. In September 1992, the Iowa Supreme Court made its decision. In re B.G.C., 496 N.W.2d 239 (Iowa 1992). The court ruled, 8-1, that Dan's parental rights could not be terminated without his consent and that the juvenile court should hear Cara's motion to set aside her consent and restore her parental rights. The court stated that in an adoption case Iowa law requires that statutory grounds for terminating a parent's rights must be established before a court can rule on whether a proposed adoption will serve the best interests of the child. The court based its decision on Iowa law concerning abandonment, and not on whether a birth father has a constitutionally protected right to establish a relationship with his child after the child has been placed for adoption.
When the DeBoers faced an order from the Iowa Supreme Court to turn over the baby to Dan Schmidt, they refused to do so. Dan was authorized to seek enforcement of the Iowa order because his parental status had been recognized by the Iowa Supreme Court. Dan Schmidt moved for an order to show cause why the DeBoers should not be held in contempt.
The DeBoers then sought a modification of the Iowa order in the circuit court in Michigan where they resided. While they acknowledged that the Iowa order dismissing the adoption was entitled to full faith and credit in Michigan, they nonetheless asked the court to hold a best-interests hearing to determine the child's custody. Dan Schmidt's attorney argued that the PKPA and the UCCJA barred Michigan from relitigating the issues decided in Iowa and that the DeBoers, who were not the legal custodians or guardians of the child, had no standing to seek custody of her in Michigan.
The Michigan circuit court held a best-interests hearing and, "Surprise!," found that the best interests of the child required that the baby remain with the DeBoers. The Michigan Court of Appeals, however, held in March 1993 that Michigan lacked subject-matter jurisdiction to hear the DeBoers' petition to retain custody and that the DeBoers lacked standing to seek the child's custody in Michigan. DeBoer v. Schmidt, 199 Mich. App. 10, 501 N.W.2d 193 (1993). On July 2, 1993, the Michigan Supreme Court ruled 6-1 that the court of appeals was correct in finding that Michigan lacked subject-matter jurisdiction to hear the DeBoers' custody petition and that the DeBoers lacked standing to initiate a custody action. DeBoer v. Schmidt, 442 Mich. 648, 502 N.W.2d 649 (1993). The Michigan Supreme Court's opinion focused on the PKPA and the UCCJA, holding that Iowa continued to have jurisdiction, that it had not declined to exercise that jurisdiction, and that therefore its jurisdiction was exclusive and continuing. A last-minute appeal to the United States Supreme Court was denied. DeBoer v. Schmidt, 509 U.S. 1301 (1993).
In the case of Baby Jessica, the entire controversy might have been avoided had Iowa adopted the Uniform Adoption Act (UAA) (see discussion below regarding the provisions of the UAA). Under this Act, Cara's consent could not have been taken by the lawyer representing the DeBoers. Rather, only a disinterested third person, such as a judge, a court-appointed referee, a social worker, or Cara's own lawyer, could have taken Cara's consent. Further, whoever took Cara's consent would have to explain the meaning of adoption and its consequences. The birth parents must be informed of the availability of counseling and of their right to legal representation. The consent would not be valid until eight days after the birth of the child, and, within those eight days, the parents would have the absolute right to revoke their consent and to reclaim custody. If the UAA had been in place in Iowa, this adoptive placement would not have been made. Further, under the UAA, as soon as a contest to adoption is likely, the court is required to appoint a representative for the child, to make an interim custody order to protect the child, and to expedite proceedings. Thus, even if the placement had been made, the "psychological bonding" that the DeBoers claimed in their case would not have taken place, because the infant would have been returned to Cara or the matter would have been expedited. Further, under the UAA, the Iowa Supreme Court itself would have been bound to expedite the matter; it would not have taken nine months to make a decision. The UAA also provides that if an adoption is set aside then the court may determine who shall have custody based on the best interests of the child. Custody does not automatically revest in the biological parents.
Baby Michael
A more recent case, In re Adoption of Michael H., 10 Cal. 4th 1043, 43 Cal. Rptr. 2d 445, 898 P.2d 891 (1995), had a result that was cheered by those who favored the adoptive parents in the above cases. In that case, Stephanie H. met Mark K. in December 1988 in Arizona. In 1990, when Mark was 20 and Stephanie was 15, the two became engaged. In July 1990, Stephanie learned she was pregnant. The two considered the options and decided to place the baby for adoption. In October 1990, Mark decided he did not want to give up the child for adoption. He contacted an attorney to help him obtain custody after the child was born.
Stephanie moved away from Arizona in January 1991 and on February 27, 1991 she gave birth to baby Michael. Michael was released from the hospital directly into the custody of John and Margaret S., who wished to adopt the baby. Mark did not learn until March 7, 1991 that the baby had been born and had been released to John and Margaret. As soon as Mark found out, Mark asked for custody.
In April 1991, John and Margaret filed a petition to terminate Mark's legal status as Michael's father, and Mark soon thereafter filed a petition to establish paternity. The court concluded that Mark was not the "presumed father" and that it would be in baby Michael's best interests to be adopted by John and Margaret. Mark claimed that even if he was not the "presumed father" under California's statutory scheme, he had a constitutional right to establish his legal status as the father of the baby.
The California Supreme Court held that under constitutional principles, more particularly those proclaimed in Lehr v. Robertson, 463 U.S. 248 (1983), and Caban v. Mohammed, 441 U.S. 380 (1979) (see discussion below in Section III), Mark's constitutional claim must fail. He had not taken sufficient steps to transform his inchoate constitutional interest in his potential parental relationship with Michael into a constitutional right that entitled him to block John's and Margaret's efforts to adopt Michael and terminate his parental status.
The court made this ruling despite its explicit recognition that baby Michael had been released from the hospital directly into the custody of John and Margaret and that therefore Mark simply did not have the opportunity to develop a direct parent-child relationship with baby Michael. Moreover, the trial court had found that after the birth of baby Michael Mark's efforts were "nothing short of impressive," and "in the two years since his son's birth, Mark has never wavered in his desire to take on the full responsibility of fatherhood." 898 P.2d at 896. The court instead held that unwed fathers must assume their parental responsibilities during pregnancy, citing In re Adoption of Doe, 543 So. 2d 741, 749 (Fla. 1989); In re Baby Girl Eason, 257 Ga. 292, 358 S.E.2d 459, 462-63 (1987); In re Adoption of Baby Boy S., 16 Kan. App. 2d 311, 822 P.2d 76, 78 (1991); In re Kailee C.C., 179 A.D.2d 891, 579 N.Y.S.2d 191, 192 (1992); and In re Adoption of Baby Boy W., 831 P.2d 643, 646 (Okla. 1992).
The dissent pointed out that under the court's prior holding of In re Adoption of Kelsey S., 1 Cal. 4th 816, 4 Cal. Rptr. 2d 615, 823 P.2d 1216 (1992), a biological father who sufficiently and timely demonstrates his full commitment to his parental responsibilities has a right to veto the child's adoption. Mark's efforts demonstrated that commitment, and the majority's focus on the time period between conception and birth was unfair. The dissent pointed out the dilemma of the unwed father:
- he majority's decision creates a dilemma for a biological father: If in the early stages of pregnancy he vigorously opposes the mother's decision to relinquish their child for adoption, he runs the risk of irreparably damaging his relationship with the mother and causing her emotional upset, quite the opposite of the emotional support he must give her under Kelsey S. If, on the other hand, he initially acquiesces in the mother's decision to place the child for adoption, hoping to change her mind before the child is born, he has, under the majority's holding, forfeited his right to object later in the pregnancy to the child's adoption.
A different result would have obtained in the Baby Michael case had the majority recognized the dilemma posed to a biological father and held that an unwed father's commitment to fatherhood should not be measured from the moment of conception. A mother has the right to weigh her commitment to motherhood, unfettered by state constraints, until at least the end of her first trimester. Why should a father's right to weigh his commitment to fatherhood be more onerous? The fact scenario in Baby Michael reminds one of the film Nine Months (1995), where Julianne Moore informs her beau Hugh Grant of his impending fatherhood. At first, our feckless hero cannot deal with the fact of impending fatherhood and effectively abandons the mother. During the course of nine months, however, he becomes more accustomed to the idea and gradually offers the mother his dedication to fatherhood. Under Baby Michael, Mr. Grant's rights in the child would not have ripened sufficiently, and he would have had no option had Miss Moore decided to give the baby up for adoption. While Hollywood is not a mirror of reality, it would no doubt surprise most viewers as to the state of the law after the happy ending in Nine Months. See Tracy Cashman, When Is a Biological Father Really a Dad?, 24 Pepp. L. Rev. 959 (1997); Deborah L. Forman, Unwed Fathers and Adoption: A Theoretical Analysis in Context, 72 Tex. L. Rev. 967 (1994).
III. A SURVEY OF CURRENT LAW ON AN UNWED BIOLOGICAL FATHER'S RIGHT TO CONTEST AN ADOPTION
A. Constitutional Principles
When a child is conceived or born in wedlock, the father's consent to adoption is required. See, e.g., Unif. Adoption Act 5, 9 U.L.A. 15 (1988). There is a strong presumption of legitimacy, and this presumption may even be conclusive against a putative father who seeks to prove that he, and not the mother's husband, is the child's biological father. Michael H. v. Gerald D., 491 U.S. 110 (1989) (California statute creating presumption that child born to married woman living with her husband is legitimate child of marriage is upheld; statute does not violate putative father's due process rights). The marriage, in and of itself, endows the father with the constitutional right to consent or withhold consent to an adoption, even if the marriage has been dissolved and even when the father has never had custody of the child. Quillion v. Walcott, 434 U.S. 246 (1978) (married father without actual custody has greater rights in his child than similarly situated unwed father, by virtue of the former's legal custody which carries with it substantial obligations).
An unwed mother's rights to her child are clear, as she is the one who has borne the child. E.g., In re Kailee C.C., 179 A.D.2d 891, 579 N.Y.S.2d 191, 192 (1992) (describing the differences in the nature and relationship between an unwed mother and the child and an unwed father and the child); Baby Girl K. ex rel. L.K. v. B.B., 113 Wis. 2d 429, 335 N.W.2d 846 (Ct. App. 1983) (the mother carries and bears the child, and in this sense her parental relationship is clear; the validity of the father's parental claims must be gauged by other measures). An unwed father's rights are not so clear. Prior to 1972, the consent of an unwed father to the adoption of his child was not required. See generally Note, Emerging Constitutional Protection of the Putative Father's Rights, 70 Mich. L. Rev. 1581 (1972).
The first case to recognize a constitutional right of a father to the custody of his child was Stanley v. Illinois, 405 U.S. 645 (1972). In that case, the Supreme Court determined that a statutory presumption of unfitness which burdens all unwed fathers is violative of the United States Constitution on both equal protection and due process grounds. Mr. Stanley had been deprived of the custody of his children when the mother of the children died; the children had automatically become wards of the state on her death because an unwed father was not considered a "parent" for purposes of the statute. Mr. Stanley claimed the statute violated his equal protection and due process rights by excluding unwed fathers from the definition of parents. His unfitness had to be judicially determined before his children could be removed from his custody, he claimed.
The majority of the Court agreed. The interest Mr. Stanley had was that of a man in the children he had sired and raised. This was a cognizable and substantial interest, and unwed fathers like Mr. Stanley were entitled to notice of dependency hearings and the chance to be heard on their fitness as parents. A plurality of the Court agreed that in addition to due process defects Mr. Stanley's right to equal protection was violated because of the disparate treatment afforded unwed fathers who were presumed to be unfit as compared to all other mothers and fathers.
The key to Stanley v. Illinois was the Court's focus on "fathers like Mr. Stanley." The Court did not hold that all unwed fathers were entitled to constitutional rights in their children. Mr. Stanley was entitled to constitutional protection because of his long-established custodial relationship and commitment to his children. An unwed father who has not established any relationship with his children would not be entitled to the same protection.
Over the next two decades, the Supreme Court struggled to define which unwed fathers were deserving of constitutional protection in maintaining the parent-child relationship. In Quillion v. Walcott, 434 U.S. 246 (1978), the biological father challenged the adoption procedure in Georgia which gave him notice of the child's adoption but restricted his participation in demonstrating that the adoption was not in the child's best interests. The biological father could veto the adoption only if he legitimated his child.
The Supreme Court rejected Mr. Quillion's claim because there was no disruption of the family unit, as in Stanley. Instead, in Quillion, the statute was aimed at preserving the family unit. Mr. Quillion had never shouldered any responsibility as to the supervision, education, protection, or care of his child. Unlike Mr. Stanley, Mr. Quillion had failed to grasp the opportunity for a significant relationship with his child.
Subsequently, in Caban v. Mohammed, 441 U.S. 380 (1979), the Court invalidated a New York statute that provided that a child born out of wedlock could be adopted on the consent of the mother alone. Mr. Caban, an unwed father, was recorded as the children's father on their birth certificates. He shared custody of the children until their mother left him. He provided support and was a caring and nurturing parent.
The Court held that the distinction the statute made between mothers and fathers of a child born out of wedlock violated the Equal Protection Clause of the Fourteenth Amendment. Justice Powell concluded that, in cases where an unwed father's identity is known and he has manifested a significant paternal interest in the child, denying him the right to veto his child's adoption, while granting the unwed mother the same right, violates constitutional principles.
Justice Stewart dissented in Caban, stating: "Parental rights do not spring full blown from the biological connection between parent and child. They require relationships more enduring." Id. at 397. Whereas an unwed mother who bears a child is automatically responsible for it, a father's commitment to his child must be demonstrated. This demonstration may be by marriage, or it may be by undertaking responsibility, as in Stanley. But it is not by virtue of biology alone.
This theme of the insufficiency of a mere biological connection between the unwed father and the child is a recurring one. In Lehr v. Robertson, 463 U.S. 248 (1983), the Court reiterated this theme. In that case, a putative father filed a petition to vacate the order of adoption of his daughter by the mother's husband with her consent alone. The Court held that an unmarried man who has failed to establish any significant custodial, personal, or financial relationship with his child is not entitled to notice of the adoption proceedings. Due process was not violated, because, while an unwed father's developed relationship and full commitment to his child are deserving of substantial protection, "the mere existence of a biological link does not merit equivalent constitutional protection." Id. at 262.
Lehr v. Robertson was a synthesis of all the cases that came before it on the constitutional rights of unwed fathers. See Elizabeth Buchanan, The Constitutional Rights of Unwed Fathers Before and After Lehr v. Robertson, 45 Ohio St. L.J. 313 (1984). Because a father is not physically capable of bearing a child, he must manifest his parental commitment otherwise, either by marrying the mother or by developing a parent-child relationship with the child. Where the child is in another stable family unit, such as where the mother has married and it is the stepfather who wishes to adopt, the biological father must act quickly to establish the parent-child relationship. Where the biological father fails to exercise his opportunity interest in his child promptly, disparate treatment of unmarried men and unmarried women is not constitutionally repugnant.
The last case to discuss the rights of unwed fathers is Michael H. v. Gerald D., 491 U.S. 110 (1989). The plurality opinion in this case suggests that states may prevent an unwed father from vetoing a child's adoption if the unwed father fails to assert promptly his opportunity interests in establishing a parent-child relationship, and the state may also constitutionally bar a biological father from even attempting to assert that he has any protected interest in establishing a legal relationship with the child. The Court upheld the constitutionality of a California statute that presumptively established that the father of a child born in wedlock is the husband of the mother. The dissenters argued that any man who has not only a biological relationship to the child but who has also come forward to participate in the child's rearing deserves some legal recognition of his ties to the child. See Mary L. Shanley, Unwed Fathers' Rights, Adoption, and Sex Equality: Gender-Neutrality and the Perpetuation of Patriarchy, 95 Colum. L. Rev. 60 (1995); Mary Kay Kisthardt, Of Fatherhood, Families and Fantasy: The Legacy of Michael H. v. Gerald D., 65 Tul. L. Rev. 585 (1991).
The Supreme Court cases may be summed up as follows, as done by one eminent author: The unwed father's interest springs not from his biological tie with his illegitimate child, but rather from the relationship he has established with and the responsibility he has shouldered for his child. John T. Wright, Caban v. Mohammed: Extending the Rights of Unwed Fathers, 46 Brook. L. Rev. 95, 115 (1979). Since the 1980s when these cases were decided, most states have amended their adoption laws to accord greater recognition to unwed fathers. A consensus has emerged that consent is required of a "presumed father" and of any other biological father who actively assumes at least some parental responsibility for a child. But as Baby Jessica, Baby Richard, and Baby Michael so amply demonstrate, there is a lack of agreement as to which fathers belong in these categories. The most troubling cases are those in which courts are asked to decide what rights belong to a father who is unaware that his child exists and so has not had the opportunity to express a parental interest until well after the child has bonded with his or her psychological parents.
The Uniform Parentage Act
One response to these vexing questions has been the Uniform Parentage Act (UPA), 9B U.L.A. 287 (1987), enacted in 18 states. Under the UPA, a "presumed" father is one who is married to the biological mother when she gives birth, or whose marriage to the biological mother was terminated within 300 days before birth; one who marries or attempts to marry the mother after the child is born and who supports the child; one who lives with, has custody of, and openly treats the child as his own; or one who files a written acknowledgment of paternity which is not challenged by the child's mother or by another presumed father. The presumption of paternity created by the UPA is rebuttable in all but a few instances upon clear and convincing evidence that some other man deserves to be treated as the child's legal father. A presumed father has the right to consent to or to withhold consent to an adoption.
Under the UPA, there is also the category of "alleged" fathers. An alleged father is a man who is not a presumed father, but who nevertheless claims to be the child's biological father. An alleged father of a child who has a presumed father may bring an action to declare himself the natural father if the mother proposes to relinquish the child for adoption. When a child has no presumed father, an alleged father's rights must be terminated prior to adoption.
These provisions were interpreted in In re Baby Girl M., 37 Cal. 3d 65, 207 Cal. Rptr. 309, 688 P.2d 918 (1984). In that case, the unwed biological father did not meet the statutory definition of a "presumed" father. Thus, he was not given the opportunity to challenge the adoption. The biological father challenged the statutory distinction between presumed and alleged fathers.
The California Supreme Court held that all biological fathers must have an opportunity to enter into a custodial relationship with their children. When an unwed father seeks custody of his child after the mother gives up the child for adoption, a court must determine whether an award of custody to the father would be detrimental to the child. Only after such a finding may the court consider whether the best interests of the child would be served by the proposed adoption. Thus, a mother's desire to release her child for adoption may be thwarted by a biological father who has not yet performed any parental duties but who could rebut a claim that giving him custody would be detrimental to the child.
The California Legislature amended its version of the UPA to clarify that the general custody statute does not apply to adoption proceedings. If an alleged father who is not a presumed father attempts to block a proposed adoption, the court shall use the best-interests standard, not the detriment standard, to determine whether to terminate the alleged father's parental rights and approve the adoption. See Jermstad v. McNelis, 210 Cal. App. 3d 528, 258 Cal. Rptr. 519 (1989) (an alleged father's prompt and almost heroic efforts to establish a parental relationship with his child over the objections of the birth mother must be recognized); cf. In re Sabrina H., 217 Cal. App. 3d 702, 266 Cal. Rptr. 274 (1990) (father's relationship with his child remained only "potential" and he could not be treated as presumed father).
The distinction in the UPA between presumed and alleged fathers continues to come under attack. In In re Adoption of Kelsey S., 1 Cal. 4th 816, 4 Cal. Rptr. 2d 615, 823 P.2d 1216 (1992), the California Supreme Court held that the federal Constitution requires that if a father of a child born out of wedlock diligently attempts to gain custody once aware of the mother's pregnancy or his child's birth, his parental rights cannot be terminated absent a showing of clear and convincing evidence that he was an unfit parent. Because the presumption of fitness applies only to "presumed" fathers and not to "alleged" fathers, even if those alleged fathers have grasped their parental opportunity interests, the statute is not constitutional when applied to fathers trying to move from the category of "alleged" to "presumed."
Although New York has not enacted the UPA, its distinctions between the role of married and unmarried parents tracks the UPA. In re Raquel Marie X., 76 N.Y.2d 387, 559 N.Y.S.2d 855, 559 N.E.2d 418 (1990); In re Robert O., 80 N.Y.2d 254, 590 N.Y.S.2d 37, 604 N.E.2d 99 (1992) (father's opportunity to manifest his willingness to assume full custody lasts only for a limited time and cannot outweigh the state's interest in the prompt and efficient efforts to finalize adoption).
In sum, in UPA states, presumed fathers are treated comparably to mothers. Alleged fathers who do not grasp their parental opportunity interests do not have any presumption in favor of parental fitness. Alleged fathers who actively seek their parental rights, however, may be afforded the rights of presumed fathers. In re Zacharia D., 6 Cal. 4th 435, 24 Cal. Rptr. 2d 751, 862 P.2d 751 (1993).
C. The Uniform Adoption Act
The Uniform Adoption Act (UAA), 9 U.L.A. 1 (1994 version) (Supp. 1997), has been enacted in one state. The prior version, 9 U.L.A. 11 (1971 version) (1988), has been enacted in five states. The UAA follows the UPA and the Uniform Putative and Unknown Fathers Act (UPUFA) in determining who has the legal status of a parent for the purpose of consenting to a child's adoption. The presumed father must give consent, and the putative father must give consent. The putative father is one who has declared his paternity or who has been judicially determined to be the father, or he has received the child into his home and has openly held the child out as his own. If a biological father is successful in challenging an adoption, he does not automatically obtain custody of the child. Rather, the court then undertakes a best-interests analysis to determine custody.
In In re Jasmon O., 8 Cal. 4th 398, 33 Cal. Rptr. 2d 85, 878 P.2d 1297 (1994), the court adopted the approach of the UAA. In that case, the female child spent years in foster care while her father's parental status remained unresolved. Even though it was possible for the court to conclude that the father had not relinquished his parental rights, the court concluded that the child's constitutionally protected interests in not suffering the trauma of being separated from her foster parents could overcome her father's right to custody. In In re Bridget R., 41 Cal. App. 4th 1483, 49 Cal. Rptr. 2d 507 (1996) (review denied), the California Court of Appeal took this approach one step further and concluded that the Constitution may not only permit but may demand that a custody hearing be held whenever an adoption is denied or set aside months or years after a child has lived with and developed strong attachments to his or her prospective adoptive parents. Courts in other states have also found that equitable or constitutional principles allow would-be adoptive parents to maintain custody of a child even though they cannot compel a legal adoption. The courts in these cases have held that the detriment to the child outweighs the parental rights of the biological father. In re C.C.R.S., 892 P.2d 246 (Colo. 1995) (constitutional rights of biological parent do not require that state deny child or psychological parents an opportunity to be heard in a custody hearing, even though biological mother never executed a valid relinquishment of her parental rights); In re Adoption of Dzourovcak, 600 N.E.2d 143 (Ind. Ct. App. 1992) (citing Ind. Code 31-3-1-8(e), if the court dismisses the adoption petition, the court shall determine the person who shall have custody of the child based on the best interests of the child); In re Adoption of J.J.B., ___ N.M. ___, 894 P.2d 994 (1995) (even if adoption is dismissed, court has to decide child's custody based on best interests, and prospective adoptive parents who are child's psychological parents may seek custody against claims of birth parent; a finding that parental rights were improperly terminated does not mechanically result in the award of custody to the biological parents); Mollander v. Chiodo, 450 Pa. Super. 247, 675 A.2d 753 (1996) (when birth mother's revocation of consent is effected, couple who sought to adopt child may seek custody of child for whom they have served in loco parentis).
D. Other Cases
Many state courts have wrestled with the question of how to protect the constitutional interests of unwed fathers in establishing ties with their children while at the same protecting the interests of children in being adopted once their birth mothers have consented to their placement.
In Massachusetts, an unwed father who has established his paternity or who has acknowledged his paternity is given a chance to adopt his own child when the mother has consented to adoption. Petition of Department of Social Services to Dispense with Consent to Adoption, 391 Mass. 113, 461 N.E.2d 186 (1984). Most states, however, have taken a more traditional view that unwed fathers have few rights in adoption proceedings. For example, in In re Baby Boy D., 742 P.2d 1059 (Okla. 1985), the Oklahoma Supreme Court held that an unwed father has no right to contest an adoption unless the father has legitimated the child. The court held that this was not inconsistent with Stanley, Quillion, Caban, or Lehr. The failure to legitimize the child, the court believed, was a denial of responsibility for the child's support and care. See alsoShoecraft v. Catholic Services Bureau, 222 Neb. 574, 385 N.W.2d 448 (1986) (putative fathers must file intent to claim paternity within short time after child's birth in order to participate in adoption proceeding); In re Dearing, 98 Ohio App. 3d 197, 648 N.E.2d 57 (1994) (putative father must file objection within 30 days of birth in order to contest adoption); In re Adoption of Hudnall, 71 Ohio App. 3d 376, 594 N.E.2d 45 (1991) (Marine father's failure to object to adoption was not excused, although he was not notified of child's birth and was in another state); In re Termination of Parental Rights of Baby Boy K., 546 N.W.2d 86 (S.D. 1996) (father must file paternity claim within 60 days of child's birth); Utah Code Ann. 78-30-4.13 (1995) (to preserve the right to veto an adoption, an unwed father must file a notice of a paternity proceeding before the mother relinquishes the child to an agency or a petition to adopt is filed).
Oregon has drawn a middle ground, holding that fathers who make a good-faith effort to assert parental interests in a timely fashion deserve more protection than those who do not. In re Adoption of N., 66 Or. App. 66, 673 P.2d 864 (1983); see also In re Adoption of Baby James Doe, 572 So. 2d 986 (Fla. Dist. Ct. App. 1990) (putative father who paid for expenses of newborn and took affirmative steps to establish paternity was able to block adoption by unrelated adoptive parents and to prevent birth mother and her husband from asserting common-law presumption of husband's legitimacy); In re Baby Girl Eason, 257 Ga. 292, 358 S.E.2d 459, 462-63 (1987) (unwed father must be afforded reasonable opportunity to establish a relationship with his child; absent evidence that he has forfeited this opportunity, his rights may not be terminated); In re Adoption of J.J.B., ___ N.M. ___, 894 P.2d 994 (1995); In re BJB, 888 P.2d 216 (Wyo. 1995) (father's willingness to assume custody within 30 days of receiving notice of the pending or actual birth allows him to block adoption).
At present, there is little uniformity in the adoption laws as to who is entitled to notice alone and who is entitled to object to the adoption of a child. See Susan Swingle, Rights of Unwed Fathers and the Best Interests of the Child: Can These Competing Interests Be Harmonized?, 26 Loy. U. Chi. L.J. 703 (1995); Karen C. Wehner, Daddy Wants Rights Too: A Perspective on Adoption Statutes, 31 Hous. L. Rev. 691 (1994); Tonya M. Zdon, Putative Fathers' Rights: Striking the Right Balance in Adoption Laws, 20 Wm. Mitchell L. Rev. 929 (1994).
IV. CONCLUSION
The saying that "biology is destiny" is no more apt than in the adoption context. Whereas a mother is a parent by virtue of giving birth, a father must establish his parental rights by positive action. What constitutes sufficient interest in a baby in order to safeguard parental rights will continue to pose problems for the courts for many years to come.
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