Absent biological fathers in adoption: noticing the nuance of notice.

AuthorMcLure, Samuel J.


In recent months, several states have seen intense litigation concerning the rights of biological fathers in contested adoptions. (1) For example, in November 2014, the Indiana Supreme Court held oral arguments in the case of Kramer v. Catholic Charities. (2) The Kramers, an adoptive family, filed a negligence lawsuit against Catholic Charities after the agency failed to identify that the putative father had registered with the Indiana Putative Father Registry. (3) The alleged negligence of Catholic Charities in failing to notify the biological father detrimentally affected the agency, the adoptive family, the biological father, and most importantly the adoptee. News sources indicated that the agency's failure to properly notify the biological father resulted in a disruption of the parent-child relationship between the child and the adoptive parents: "The adoption did not go through because the father of the child stepped forward, established paternity and successfully contested the adoption." (4) The trial court granted summary judgment to Catholic Charities, on the grounds that the Kramers signed documents waiving Catholic Charities from liability related to pre-adoption placement. (5) On appeal, the Indiana Court of Appeals was divided but ultimately reversed and remanded the decision. (6)

Similarly in Utah, biological fathers are fighting a legal battle against Utah. (7) A dozen fathers across the State have filed a civil lawsuit regarding the current adoption law, which allows mothers to secretly give their babies up for adoption. (8) The current Utah law does not require biological fathers to receive any type legal notice, which states a petition for adoption has been filed. (9) Requiring notice to be given provides the biological father with a limited number of days to contest the adoption process. (10) The notice requirement is common in several states and at least recommended in other states. (11)

The lack of notice requirement to biological fathers is also allegedly encouraging birth mothers to move to Utah and secretly place the baby for adoption. The Chief Justice of the Utah Supreme Court warned of such a scenario in which a biological father lost his bid to gain custody. (12) In a dissenting opinion, the Chief Justice wrote, "Utah risks becoming a magnet for those seeking to unfairly cut off opportunities for biological fathers to assert their rights to connection with their children. Not every unmarried biological father is indifferent to or unworthy of such connections." (13) Overall, the fathers who have filed suit are not only seeking monetary damages, but are also hoping the Utah Adoption Act will be found unconstitutional. (14)

For adoption professionals, providing proper notice to biological fathers in the adoption context is often overwhelming. Furthermore, the nuances of the putative father registry have recently been the subject of complex litigation. However, understanding these nuances is vital to protecting the interests of all entities involved--including attorneys, agencies, biological parents, adoptive parents, and more importantly, the adoptees.

What follows is an in-depth analysis of the key issues related to properly notifying biological and presumed fathers of an adoption in Alabama.


    Under Alabama adoption law, there are only two types of "fathers" who are potentially entitled to notice of an adoption proceeding and whose consent could potentially be necessary for an adoption: presumed and/or putative. (15) A man may become a presumed father by events transpiring around a marriage or attempted marriage, or receiving the adoptee into his home and openly holding out the adoptee as his own child. (16) All other potential "fathers" are considered putative fathers. (17)


    This section addresses the following questions: (1) when is a putative father required to receive notice of a pending adoption, and (2) when is a putative father's consent required. (18)

    Statutes and case law discussed herein firmly support the conclusion that, unless a putative father complies with the Putative Father Registry, he is not entitled to notice and his consent is implied.

    The relevant statutes governing this question are as follows:

    [section] 26-10A-17. Notice of Petition

    [N]otice of the pendency of the adoption shall be served by the petitioner on ... (10) the father and putative father of the adoptee if made known by the mother or otherwise known by the court unless the court finds that the father or putative father has given implied consent to the adoption, as defined by Section 26-10A-9. (19)

    [section] 26-10A-9. Implied consent or relinquishment

    (a) A consent or relinquishment required by Section 26-10A-7 may be implied by any of the following acts of a parent:

    (1) Abandonment of the adoptee. Abandonment includes, but is not limited to, the failure of the father, with reasonable knowledge of the pregnancy, to offer financial and/or emotional support for a period of six months prior to birth.

    (2) Leaving the adoptee without provision for his or her identification for a period of 30 days.

    (3) Knowingly leaving the adoptee with others without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee for a period of six months.

    (4) Receiving notification of the pendency of the adoption proceedings under Section 26-10A-17 and failing to answer or otherwise respond to the petition within 30 days.

    (5) Failing to comply with Section 26-10C-1. (20)

    [section] 26-10A-7. Persons whose consents or relinquishments are required

    (a) Consent to the petitioner's adoption ... shall be required of the following:

    (5) The putative father if made known by the mother or is otherwise made known to the court provided he complies with Section 2610C-1 and he responds within 30 days to the notice he receives under Section 26-10A17(a)-(10). (21)

    [section] 26-10C-1. Registration of putative fathers; notice of intent to claim paternity; release of information

    (f) The Department of Human Resources shall, upon request, provide the names and addresses of persons listed with the registry to any court. The information shall not be divulged to any other person except upon order of a court for good cause shown. The Department of Human Resources shall further after receiving notice pursuant to Section 26-10A1-7 of the pendency of any adoption proceeding wherein the proposed adoptee is a child born within 300 days of the date or dates of sexual intercourse listed in the registry and to the same biological mother listed in the registry, immediately send a copy of the notice of intent to claim paternity to the court handling the adoption. When the court handling the adoption receives the notice of the intent to claim paternity, that court shall forthwith give notice of the pendency of the adoption proceeding to the putative father listed in such notice of intent to claim paternity and at the address therein listed, and additionally notify the biological mother that the putative father has registered in conformity with the putative father registry. (22)

    A plain reading of these code sections suggests that unless a putative father signs the registry, he is not entitled to notice, and his consent is not required. The case of MVS. v. V.M.D. demonstrates the Court of Civil Appeals' "adoption," if you will, of this conclusion. In M. V.S. v. V.M.D., the Court of Civil Appeals interpreted the Adoption Code in the following manner:

    Section 26-10A-17(a)(10), a part of the Alabama Adoption Code, requires that a putative father be given notice of a pending adoption. Section 2610A-7(a)(5), also a part of the Alabama Adoption Code, requires the putative father's consent or relinquishment if he has responded within 30 days to the notice he received under [section] 26-10A-17(a)(10). Section 26-10C-1(i) of the Putative Father Registry Act, which went into effect in 1997, now provides that the putative father will irrevocably consent to an adoption unless, within 30 days of the birth of the child, he files a notice to claim paternity. Only where the putative father has complied with the provisions of the Putative Father Registry Act is the consent of the father to the adoption required today. Section 26-10C-1(f), specifically provides that when the court handling the adoption 'receives said notice of the intent to claim paternity, that court shall forthwith give notice of the pendency of the adoption proceeding to the putative father listed in such notice of intent to claim paternity.' There would be no purpose in providing unregistered putative fathers with notice under [section] 26-10A-17(a)(10), because a right to consent to the adoption would have been waived by a failure to register under the newly enacted Putative Father Registry Act. Putative fathers who have registered would be entitled to notice under [section] 26-10A-17(a)(10), and their consent or relinquishment would be required under [section] 26-10A-7(5), provided that they responded within 30 days of the notice of the pending adoption." (23) The Alabama Court of Civil Appeals and the Alabama Supreme Court have consistently upheld this interpretation of the statutes in question. In the 2007 Ex parte D.B. opinion, Justice Bolin of the Alabama Supreme Court reiterated the spirit of this sentiment. (24) Stating in relevant part:

    The concept of a putative-father registry may be burdensome to a putative father, but it cannot be contradicted that the registry gives him an opportunity to, and a procedure by which he can, perfect and propound that right, which he did...

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