Unwed Birthfathers and Infant Adoption: Balancing a Father s Rights with the States Need for a Timely Surrender Process

AuthorJeanette Mills
Pages614-641

Page 615

Adoptions may be categorized according to many different criteria. One categorization is based on the status of the adoptive parent as a relative or non-relative.1 Adoptions may also be categorized according to the age of the individual being adopted.2This comment addresses issues relevant to infants born out of wedlock and surrendered for adoption within their first year of life.3

In the 1990s, approximately 120,000 adoptions took place each year.4 Statistics reflect that an estimated one million United States children now live with adoptive parents. Disruption and dissolution rates for adoptions have ranged from ten- to twenty-percent over the years.5 While these percentages indicate that dissolution is a serious possibility for a significant number of adoptions, other reports indicate that less than one-percent of infant adoptions disrupt and less than one-tenth of a percent of adoptions are actually contested.6 Due to such disparity, reliance on statistics to define the scope of the disruption/dissolution problem is not helpful.

The importance of minimizing dissolution rates, regardless of their percentage, stems from the impact that a single dissolution has Page 616 on the parties involved. Parties wait while courts decide future family units, a decision that can put lives on hold for years. This waiting process impacts the child, the adoptive parents, the contesting individual, and the families of these parties. Because of the pervasive effect of disruption, it is of paramount importance that states enact laws which are not only effective, but are also constitutional, thus securing the finality of adoptions. Requisite components of effective, constitutional legislation necessarily include procedural safeguards that recognize a birthfather's interest in a potential relationship with his child. Though also concerned with protecting the due process rights of an unwed father, the state has a legitimate interest in freeing a newborn for adoption as soon as possible in order to secure a stable family unit for the child.

Balancing these competing interests has proven to be a difficult task. A statutory scheme that weighs too heavily in favor of protecting a birthfather's rights runs the risk of delaying the time in which an infant becomes available for adoption. This type of delay decreases the likelihood that the child will be adopted and results in increased expenditures by the state. A scheme that weighs too heavily in favor of early release of a child for adoption could result in dissolution if the requirements of consent to and notice of the adoption have not been met. Thus, the goal of any statutory scheme should be to create procedures allowing a father who is interested in his child to have a role in the adoption process while simultaneously expediting the process of terminating the rights of fathers who lack such an interest.

This comment will attempt to assist Louisiana legislators as they seek to meet this goal. A brief overview of the adoption process is presented, followed by a discussion of the judicially recognized rights of unwed fathers. Then, the possibility of using the putative father registry to expedite this process, as well as the termination of parental rights when a child was conceived as a result of rape, is discussed. Finally, a recommendation is provided to the Louisiana legislature not to enact such provisions. Rather, the legislature is urged to decrease to one year the current four-year peremptive period established by Louisiana Children's Code article 1263. This statutory modification would result in an appropriate balance between birthfathers' rights and the state's interest in expediting the surrender process, and it does not run the risk of being declared unconstitutional.

I The Adoption Process
A Generally

There is an important distinction between a right to consent to an adoption and the right to notice of an adoption. The right to consent is a much broader concept than the right to notice. Those entitled to Page 617 the right to consent will also be entitled to notice. An individual who has the right to consent has the power to veto or approve of an adoption. In contrast, a party with the limited right to notice has no right to veto an adoption. A party with a right to notice is typically entitled to an opportunity to provide information as to whether the impending adoption is in the best interest of the child.7

An adoption may not proceed without the consent of the necessary parties. Consent may be waived or forfeited in certain situations. Consent may be required from the parents or, if someone other than the parents are legally responsible for the infant or child, the agency or individual with such a duty. Mothers have a legal right to consent regardless of their marital status. A father's consent is generally required if the child was conceived or born during a marriage.8 The fact of marriage, despite divorce or annulment, may provide a male with a right to consent. The fact of marriage has been recognized as evidence of a commitment to undertake parental responsibilities.9 A married or once-married father has the right to consent to adoption because "legal custody of children is, of course, a central aspect of the marital relationship, and even a father whose marriage has broken apart will have borne full responsibility for the rearing of his children during the period of marriage."10 Historically, unwed birthfathers have not been accorded the right to consent to the adoption of their child.11 This notion has changed steadily since the 1970s, and state statutes now reflect a greater recognition of the rights of unwed fathers. Changes have occurred in large part due to United States Supreme Court cases recognizing constitutional rights of birthfathers in certain circumstances.

Although legislators must answer the difficult questions of which individuals are entitled to an opportunity to participate in adoption proceedings and in what fashion such individuals may participate, there are other issues to resolve. One issue is how to safeguard the rights of a birthfather who has no knowledge of the pregnancy or birth of the child and, therefore, is deprived of an opportunity to "demonstrate[ ] a full commitment to the responsibilities of Page 618 parenthood."12 This issue might be restated by asking the following question: Does the mother have a duty to disclose the potential father's name so that he can be notified, or, on the other hand, does the birthfather have the responsibility of reasonable inquiry as to whether an act of sexual intercourse resulted in pregnancy?

There are some state courts that have ruled in favor of a mother's right to non-disclosure of the birthfather's name. Rationale for such non-disclosure includes the mother's fear that the birthfather will harass her and the mother's fear for her own safety should the father be notified.13 However, in such cases, fairness to all persons should be a factor, and procedural devices should be in place that attempt to provide notice to all parties. For instance, some states have enacted provisions for notice by publication in these circumstances. Utah's statutory scheme is rather strict in that it requires a male to file a paternity proceeding before he is entitled to participate in the adoption proceedings. The Utah Legislature reasoned that "by virtue of the fact that he has engaged in a sexual relationship with a woman, [the father] is deemed to be on notice that a pregnancy and an adoption proceeding regarding that child may occur, and has a duty to protect his own rights and interests."14

In 1992, the New York Court of Appeals addressed this issue in the case of Robert O. v. Russell K.15 There, the court pointed out that a father's opportunity to demonstrate his commitment to the responsibilities of parenthood lasts for a finite period of time. There comes a point when the state's interest in freeing a child for adoption outweighs the father's interest. In this case, the birthfather did not discover there was a pregnancy until eighteen months after delivery. The court found that, where he had failed to take steps to discover the pregnancy and did not assert his rights until ten months after the adoption was final, the birthfather was entitled to neither notice, nor a right to withhold consent. Proof that the father had no knowledge of the child's birth did not change the fact that the window of opportunity had passed.16

Certain national trends have developed and been identified as states attempt to expedite the adoption process. According to Joan H. Page 619 Hollinger, three distinct trends have developed within the national jurisprudence:

(1) increased reluctance to force a mother to divulge information about a putative father and more systematic efforts to set limits for seeking information about the father from other sources; (2) increased wariness about granting parental rights to putative fathers who have not come forward of their own volition; and (3) increased recognition of the risks to the child posed by delays in resolving the father's status; and as a consequence, fewer placements of a child in the limbo of foster care, and more placements on an "at risk" basis with the prospective adoptive parents.17

As evidenced by the above discussion, states throughout the nation are enacting innovative legislation to deal with the time and finality issues of the adoption process. Many of these provisions, however, are not feasible in Louisiana because of the greater protection accorded by the Louisiana Constitution to be discussed in Part I.C. In order to examine possible solutions in Louisiana, it is...

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