In re N.L.B. v. Lentz: the Missouri Supreme Court's unwarranted extension of a putative father's constitutional protections.

• Author: Standlee, Lauren

1. INTRODUCTION

   "Out-of-wedlock births in the United States have climbed to an all-time high." (1)

   Recent statistics indicate that nearly four in every ten children born in the United States have unwed parents, (2) and that these children are surrendered for adoption more frequently than children born into wedlock. (3) Adoption has life-long implications for all parties involved, especially the child. An adopted child "is less likely to grow up in poverty [and] more likely to obtain an education ... than a child raised by a single mother." (4) While a mother has a unilateral right to abort or to deliver a child without informing its biological father, the nature of an unwed father's rights to his child remains an unsettled area of law. (5)

   According to Martin Bauer, president of the American Academy of Adoption Attorneys who specializes in contested adoptions, "the most common contest is where the morn wants to place the baby [for adoption] and the dad objects." (6) Due to the burgeoning number of babies born out of wedlock and the expanding number of unwed fathers who wish to play a role in their children's lives, putative fathers' (7) legal rights have become an increasing concern to parents and courts alike.

   When a mother's rights are terminated (8) and the child is placed for adoption, the crucial issue is to determine what rights a putative father has, and also what he must do to avail himself of them. The difficulty arises in balancing the weight of the father's biological ties, when he has not assumed legal or custodial responsibilities for the child, against the necessity of expeditiously placing the child in a stable adoptive home. (9)

   In the last few decades, courts have sharpened their focus on the rights of putative fathers and have consistently held that an unwed father's parental rights to his child are entitled to constitutional protections such as due process in certain situations. (10) For instance, putative fathers in almost all states are entitled to notice of an adoption proceeding or of a hearing to terminate their parental rights. (11) However, states require a putative father first to take some type of affirmative action, such as registering with the state's putative father registry or taking steps to assert his paternity, in order to protect his rights and ensure they receive such protection. (12) The Supreme Court of the United States has stated that the limited nature of a putative father's rights requires that he affirmatively "develop a relationship with his offspring" and "accept [] some measure of responsibility for the child's future" before his rights may receive constitutional protections. (13)

   In Lentz, the Missouri Supreme Court granted an unwed father leave to intervene in an adoption, despite the fact that he had failed to bring himself into the realm of constitutionally protected putative fathers. (14) This note explains why the holding of the Lentz court subverted the intent of Missouri's adoption statutes and its putative father registry, and argues that an unwed biological father who has not filed a valid paternity action, registered with the putative father registry, or demonstrated a substantial commitment to the responsibilities of parenthood should not be entitled to the additional constitutional protections available to diligent putative fathers. The note will argue that it is not a violation of his constitutional fights to deny such a father leave to intervene in the adoption of his child without a hearing on parental fitness.

2. DUE PROCESS AND PUTATIVE FATHERS

   Putative fathers have typically challenged state adoption and termination of parental rights statutes on due process or equal protection grounds. (15) These challenges are relatively recent developments, as historically biological fathers have enjoyed few rights to their illegitimate children because state laws provided that the mother's consent alone was necessary for an adoption to proceed. (16)

   1. Due Process for Putative Fathers Prior to the Advent of Putative Father Registries

      1. Supreme Court Case Law: Stanley v. Illinois and After

         In 1972, the Supreme Court of the United States issued the groundbreaking holding in Stanley v. Illinois, which established that Fourteenth Amendment due process guarantees a putative father certain constitutional rights to his child. (17) In Stanley, two unwed biological parents of three children lived together intermittently for eighteen years. (18) The State of Illinois took the children from their father upon their mother's death and declared them wards of the state because Illinois law automatically presumed unwed fathers unfit to raise their illegitimate children. (19)

         The Court held that because Stanley had "sired and raised" his children, his fights had acquired a substantial protected interest, and therefore the statute at issue and its automatic presumption of parental unfitness violated his due process rights. (20) The Court tempered its holding by recognizing the flexibility of due process and that the exact procedures and protections it affords a litigant will vary depending on the nature of both the government and private interests at stake. (21) In sum, Stanley affirmed that due process protection applies to those relationships "unlegitimized by a marriage," (22) such as a biological father and his child born out of wedlock, but also announced that "due process of law does not require a hearing 'in every conceivable case of government impairment of private interest.'" (23)

         In applying this concept, subsequent Supreme Court case law established that a putative father must have established more than a biological connection to his child prior to an adoption in order for his rights to acquire a heightened degree of due process protection such as a hearing on parental fitness. (24) Two of the Court's key post-Stanley decisions focused on the legally significant distinction between inchoate rights and legally-cognizable, fully developed parental rights. In 1978, Quilloin v. Walcott established that it is not a due process violation to deny a putative father both notice and consent to adoption when he has not participated in the rearing of his child or shown a substantial commitment to being a parent. (25) The Court reaffirmed this position one year later in Caban v. Mohammed, holding that the state may procedurally distinguish between fathers who maintain a substantial role in their children's lives and those who do not. (26)

      2. Missouri Case Law

         Missouri has similar decisions concerning putative fathers' due process rights, the most applicable being the 1978 Missouri Supreme Court case of Ex rel J.D.S. v. Edwards. (27) In Edwards, an unwed father challenged a Missouri statute that permitted the juvenile court to transfer guardianship and custody of a child to the state, even though only the mother's rights had been terminated. (28) At issue in Edwards was whether a state may "constitutionally terminate parental rights without providing the putative father an opportunity to protect his status as a parent." (29) The Edwards court declared the Missouri statute unconstitutional, but stated that an unwed father does not automatically enjoy the same initial presumption of fitness as a married father. (30) Rather, it is only after a "reasonable showing of fatherly concern" that unmarried fathers enjoy the same presumption of fitness as married ones. (31) Therefore, Edwards held that the State "is free to require an unwed father first to prove that he has seasonably demonstrated a meaningful intent and a continuing capacity to assume responsibility with respect to the supervision, protection and care of the child" before an unwed father attains the same presumption of parental fitness as that of a married father. (32)

         Two years after Edwards, the Court of Appeals for the Eastern District of Missouri decided State ex rel. T.A.B. v. Corrigan (33) and expounded upon the nature and extent of putative fathers' rights in Missouri. Corrigan cited Edwards in support of its holding that only the putative father who has affirmatively asserted paternity qualifies as a "parent" under Missouri statutes. (34) Because the putative father in Corrigan had not taken steps to establish a legal relationship with his child, he did not meet Missouri's statutory definition of a parent. (35) Therefore, the court held that it was not a violation of his due process or equal protection (36) rights to deny the father notice of a pending adoption of his child. (37) The court carefully noted that "[t]he current Missouri statutes on termination of parental rights reflect the rationale enunciated in Stanley v. Illinois [...] and State ex rel. J.D.S. v. Edwards." (38)

   2. Due Process for Putative Fathers after Lehr v. Robertson (39) and the Advent of the Putative Father Registry

      The emergence of state putative father registries in the 1980s created a new facet in the issue of putative fathers and their due process rights. (40) Lehr v. Robertson in 1983 was the first case to address the constitutionality of putative father registries in light of a putative father's due process rights. In upholding the constitutionality of a putative father registry, the United States Supreme Court distinguished an unwed father's mere biological link to his child from "an actual relationship of parental responsibility." (41) Lehr said that because the strength of the familial bond exists by virtue of the relationships formed therein and not sheer biology, courts may require an unwed biological father first to assert paternity and act as a father to his child before his rights may acquire heightened constitutional protection. (42) According to Lehr, the putative father registry system afforded putative fathers an alternate and adequate opportunity to establish a relationship with a child born outside of marriage. (43) Therefore, Lehr held that a putative father who had neither filed with a state's putative...