Crossing the Line for Unwed Fathers' Rights: A State of Chaos in the State of Ohio

• Author: Rachel M. Gagnon
• Position: Capital University Law School, J.D. Candidate, May 2012
• Pages: 561-603

CROSSING THE LINE FOR UNWED FATHERS’ RIGHTS: A

STATE OF CHAOS IN THE STATE OF OHIO

RACHEL M. GAGNON*

I. INTRODUCTION

Imagine that the law requires one course of action, but a state supreme

court creates another. Imagine that in choosing to create this contradictory

course, the court does so under the belief that it is acting fairly according to

the Constitution and the jurisprudence of the Supreme Court of the United

States. Now complete this image by placing this chaotic scenario in the

context of family law. More specifically, consider it in a situation where

the court is forced to choose between a father’s fundamental right to parent

his biological child, and allowing a child to remain with his future adoptive

family, the only parents he has ever known. The results are guaranteed to

be tragic, regardless of which of the two options the court chooses. It is

sure to be even more tragic, however, if in making its decision the court

dismisses the policy directives given to it by the state legislature after

careful thought and consideration, and instead inserts its own policy

initiatives into its decision. The sheer chaos that ensues highlights an issue

in desperate need of clarification. The situation described above is exactly

what happened in a recent set of adoption cases in the Supreme Court of

Ohio.

This set was composed of two adoption cases where unwed biological

fathers had paternity actions pending, but not yet determined in juvenile

court, when petitions for adoption of their children were filed in probate

court.1 One of the fathers had filed with the putative father registry;2 the

other had not.3 One case involved a step-parent adoption,4 and the other

was an adoption through a private agency by a family with no relation.5

Copyright © 2012, Rachel M. Gagnon.

* Capital University Law School, J.D. Candidate, May 2012. I would like to thank

Professor Mark Strasser of Capital University Law School for his insight in writing this

article. Further, I would like to thank my family, and especially my husband Ian, for their

constant support and encouragement.

1 See discussion infra Parts III.A.1–III.A.2.

2 In re Adoption of G.V., 933 N.E.2d 245, 246 (Ohio 2010).

3 In re Adoption of P.A.C., 933 N.E.2d 236, 237 (Ohio 2010).

4 Id.

5 In re G.V., 933 N.E.2d at 246.

562 CAPITAL UNIVERSITY LAW REVIEW [40:561

Neither father had his paternity legally determined before the adoption

proceedings began.6 In both cases, the biological fathers preserved their

rights as fathers by halting the adoption proceedings during the pendency

of the juvenile proceedings.7

In both cases, the Supreme Court of Ohio held that when an issue

concerning parenting of a minor is pending in juvenile court, a probate

court must refrain from proceeding with the adoption of that child.8

Furthermore, it held that the determination of a parent-child relationship in

the juvenile court proceeding must be given effect in the stated adoption

proceeding.9 This seems, on the surface, to be a fair result. Yet the

significance of these two holdings lies not in their fairness, but rather in

their incorrect result. The Supreme Court of Ohio has given these putative

fathers more protection than provided to them statutorily by the Ohio

General Assembly, excusing their failure to demonstrate commitment to

their children, as required by Ohio law. In both cases, the court considered

a biological father’s right to parent with the state’s interest in using

adoption to further the best interests of the child. These rulings tip the

scale in favor of the father’s rights, ignoring the harmful effects they have

on the best interests of the child. In an effort to avoid a harsh result, the

court overstepped its boundaries. It therefore left the legislature no other

option to recapture and reiterate its initial policy goals than to revisit and

reform the current adoption structure in Ohio. Without this kind of reform,

Ohio’s collection of cases and statutes remain in conflict with each other,

leaving a system of confusion and “chaos.”10

This note dissects this chaos through an examination of Ohio’s

statutory adoption scheme as it relates to consent requirements and the

rights of putative fathers in adoptions. It examines whether a putative

father’s consent should be required depending on the actions he has taken

to establish his role as a father. It does this through an analysis of these

two recent cases, both of which draw attention to a struggle between the

courts and the state legislature in deciding the limits of these potential

rights.

This article begins with the constitutional foundation underlying states’

actions in this area, presented through a discussion of an important line of

6 Id.; In re P.A.C., 933 N.E.2d at 236.

7 In re G.V., 933 N.E.2d at 246; In re P.A.C., 933 N.E.2d at 237.

8 In re G.V., 933 N.E.2d at 247–48; In re P.A.C., 933 N.E.2d at 238.

9 In re G.V., 933 N.E.2d at 247–48; In re P.A.C., 933 N.E.2d at 238.

10 See Rita Price, Adoption Challenges: Rulings May Boost Paternal Rights, COLUMBUS

DISPATCH, Aug. 9, 2010, at B1.

2012] A STATE OF CHAOS IN THE STATE OF OHIO 563

United States Supreme Court cases.11 These cases help provide the

constitutional framework upon which Ohio’s statutes were based, and

provide guidance on what is and should be required of putative fathers to

legally assert their parental r ights.

Next, this article provides an overview and analysis of Ohio’s statutory

scheme, setting forth the consent requirements and legal statuses involved

under Ohio’s adoption law.12 It also provides a discussion of important

case law which guided the court throughout these two decisions.13 This

article then explores the policies and goals that motivated the legislature

when it enacted this statutory framework, as those policies and goals are

relevant in the analysis of why the court erred in its holding.14

Finally, this article thoroughly examines the two cases, including both

the factual similarities and differences between the two fathers’ actions, as

well as the overarching holding as applied to both.15 It explains the few

strengths in the majority’s opinion, as well as why the weaknesses in the

majority’s holding ultimately dominate. It concludes by offering possible

explanations for why the court felt the need to rule in favor of the fathers,

why that was wrong, and how Ohio should move forward in light of these

recent decisions.16

II. BACKGROUND

A. History of Parental Rights in the United States

The Supreme Court first acknowledged the right to raise children in

1923, when it held that the liberty referred to in the Fourteenth

Amendment of the United States Constitution is “not merely freedom from

bodily restraint but also the right of the individual to . . . establish a home

and bring up children . . . .”17 The Court later elaborated when it noted that

“[t]he liberty interest . . . of parents in the care, custody, and control of

their children . . . is perhaps the oldest of the fundamental liberty interests

recognized by this Court.”18 This fundamental right has long found

substantial protection under various provisions of the Constitution,

11 See discussion infra Part II.A.

12 See discussion infra Parts II.B.1–II.B.2.

13 See discussion infra Parts II.B.3–II.B.5.

14 See discussion infra Parts II.B.3–II.B.5.

15 See discussion infra Parts III.A–III.B.2.

16 See discussion infra Parts III.B.3–III.B.7.

17 Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

18 Troxel v. Granville, 530 U.S. 57, 65 (2000).