Back To The Utah Case: The General Principles and The Specific Facts

I wanted to go back to the Utah case I wrote about recently as I just barely scratched the surface in that first post.   I did, however, lay out the facts at some length and I won’t repeat them here.  If you need a refresher, go read the first post or the opinion itself (which is pretty long.)

I’ll start with an overview of Utah law:  Utah makes it easy for unmarried women to give up children for adoption.   Among other things, this means that if a man asserting that he is the father of the child does not act very quickly, he will have no rights whatsoever.   Perhaps most shockingly, fraud on the part of the mother–by which I mean lying and deceit–does not provide the biological father with a basis for attacking the adoption.

This all might seem fairly appalling, but if you read the dissenting opinion in the case and the statutory statement of intent, you will find the rationale for this arrangement.   Remember that this system was enacted by the Utah legislature.   It’s perfectly proper for the legislature to enact laws based on value judgments.

In this instance, the legislature considered several values to be of the greatest importance.   The main purpose of the legislation is to encourage adoption, favor adoptive parents, and ensure stability.   (This is at page 41, which is in the dissenting opinion.)  The unmarried mother has a right to privacy in making her adoption decision and has no obligation to disclose the identity of the father to anyone.   By contrast the unmarried father is distinctly disadvantaged.   The legislature specifically concluded that:

 “the interests of the state, the mother, the child, and the adoptive parents . . . outweigh the interest of an unmarried biological father who does not timely grasp the opportunity to establish [a relationship with the child]”

Now as I said, in general legislatures get to do this sort of thing–decide which things are most important and which things are less important.  The constraints and the authority of the legislature are US Constitution and the Utah Constitution.   I know nothing about the protections guaranteed in the Utah Constitution, but I do know a bit about the federal constitution, and it doesn’t offer a great deal of protection for unmarried fathers.   There may be some questions raised here, but for the moment, I’m going to assume that the Utah legislative scheme complies with the US Constitution.

It might also be good to remember that Utah does not allow unmarried couples to adopt.  And it favors adoption by married couples (as opposed to by single people) and only different sex couples can get married.   Utah also disfavors adoption by single individuals who are unmarried.  (That’s in the legislative intent section I linked to.)

So now consider the general picture from Utah’s point of view.   Suppose you have an unmarried couple and the woman gets pregnant.   This is not a good situation for the potential child.   If the couple gets married everything is swell and, of course, the previously unmarried father will now have rights.   If they don’t get married, Utah would prefer that the mother put the child up for adoption so that it can be raised in a good and stable married household.  In Utah’s view this would be much  better for the child than having the unmarried father raise the child alone–which is where you’d be if the mother wanted to give the child up and we gave the father the right to object.

From this perspective, it makes sense that Utah gives him very little chance to object.  Only a few really determined (and pretty savvy) men will be able to claim any rights here.   And that will serve Utah’s purposes well, because most children born to unmarried women will end up in nice married households.

I’m sure some of you are just ready to scream, but take a deep breath and try to walk through the logic.  IF you grant the Utah legislature the right to decide which things are most important and if you look at the ones it chose THEN this might all make sense.   Your disagreement is probably rooted in the fact that you would make different choices about what is important.   You’re entitled to have different values, of course, but it’s the Utah legislature that is entitled to make these choices–unless they violate the Constitution, a question you’ll remember I set aside.

What the dissent says is going on in the case (and they could be right) is that the majority cannot stand the result in this particular case (which the dissent agrees is unpalatable) so the majority twists the law around to get a different result.   To me this looks like a classic instance where the court’s necessary focus on specific cases gives it a very different perspective from that of the legislature, which is dealing with general cases.

This is now long enough so I will close here.   I do, however, want to note that some of you ought to be challenging me about this case.   After all, one of the strongest claims that Manzanares has–probably the strongest–is the one rooted in genetic linkage, which I don’t accept.  I ought to figure out what I think about that, no?

23 responses to “Back To The Utah Case: The General Principles and The Specific Facts

  1. I am no expert by any means…

    I think the 14th Amendment comes into play in the aspect of liberty issues, you have the right to raise your children. Add on that adoption is a state created family then it must carry less weight than a blood relationship rights. If there were no biological rights there would be no reason to have laws relating to how and when consent to surrender your rights as a parent built into the adoption laws – if you had no rights to raise your biological children there would not need to be to consent to surrender those rights. You also need to consider the constitutional right to privacy from government interference in your life.

    You also have the due process requirement and when that is stripped out of the equation then basically you are done with any freedoms.

    The Supreme court has weighed in on this many times – the oldest I think is Stanley vs Illinois which triggered the laws in the states to be changed to include the father’s consent to surrender his rights to parent his biological children. (note the adoption laws in my state (WA) regarding surrender only included the mothers right to surrender her rights to her illegitimate children – the father was explicitly excluded in the statute – Stanley I believe changed that.)

    • This is the con law question I set aside, but let’s have at it. (I might continue in a real post.)

      The question is whether/when the US Constittuion protects parental rights. This is one of those instances where there is nothing explicit in the Constitution about the topic–nothing about families at all. But it is widely (yet not universally) agreed that there are some unenumerated rights around family. These rights would be protected by due process, because in the last fifty/sixty years that’s what we’ve done for unenumerated rights. And what it means is that it is surely unconstitutional for the state to swoop down and take your kids away from you without proper reasons and process. IF YOU ARE A PARENT. If you are not a parent, then of course the state can take kids away from you.

      So the question is when are you a parent within the meaning of the Constitution. And here there’s not too much to work with.

      Peter and Joan Stanley had three kids, mostly lived together for many years, but didn’t marry. When Joan died the kids became wards of the state, because the way Illinois defined who was a parent, Peter wasn’t one. The US Supreme Court held this was not okay. It’s a little fuzzy on why, but think of it as saying that given Peter’s position, he is a parent as a matter of constitutional law.

      The cases after that tend to be about younger kids and less harmonious relationships. I won’t catalog them here. But one (Lehr vs. Robertson, and I do think I’ve talked about it before–could search “Lehr”) involves a man who never met the child because the woman did everything in her power to conceal her location from him. He tried filing a paternity action, too. But just as he was doing that, the mother wanted her new partner (husband, I think) to adopt the child. The judge went ahead with that (and as I recall deliberately frustrated Lehr’s efforts to intercede) and the Supreme Court said it was okay. Lehr was entitled to an opportunity to claim parentage because of the bio relationship and NY said that the claim that opportunity he had to send in a post card to some office. Lehr instead had filed a lawsuit–which is to say that he didn’t do what NY wanted. And so he lost.

      it’s this last case that makes me think that Utah may be okay on constitutional grounds. They get to say what he needs to do and they’ve said. Maybe they’ve cut too close to the edge–left too little time, say. But I’m not certain at all.

      • Wasn’t the child in the Lehr case 2 years old before the father tried to act though? Even if the mother was being dishonest I don’t have much sympathy for him waiting 2 years.

        • My recollection is that the father (Lehr?) tried to find the child from the time it was born, or maybe even before the birth. The mother concealed her whereabouts. He did eventually find her by which time the child was two or three, as I recall. I don’t think you can say he waited, as he did everything he could think of (but send the postcard) but it is true that the child was older and had never met him.

          The majority in Lehr doesn’t discuss facts at all–because there was never even a hearing on them. Since he wasn’t a parent he never got to try to prove anything. The dissent takes its facts (about Lehr trying to find the child, etc.) from the papers Lehr had filed.

          • could he have filed for paternity earlier? It says he visited the mother and child at the hospital so he knew who the mother was and when the child had been born. If a court had determined paternity, he would have been deemed the legal father prior to the adoption which wasn’t filed until the child was 2 years old, no?

            I would be interested to see what the Supreme Court would say about a case involving a newborn and whether such a draconian time limit is acceptable.

          • ok, having read more it says notice did had to be provided to “adjucated father” but not a putative father who had not signed the registry. I believe that “adjucated father” refers to a father whose paternity had been determined by a court decision? That seems to suggest he could have gained rights if he filed that paternity lawsuit at birth, two years before the mother had wanted the man she met and married later to adopt the child. Since it does seem there was some contact at birth since he visited the mother/child in the hospital.

  2. Last para above I am talking about my era of adoption – pre 73.

  3. I know for the purposes of the post, we are assuming Utah’s law doesn’t violate the constitution. But I don’t quite understand how it can’t. Granted, I haven’t read Utah’s law yet, but given the Supreme Court’s statements in cases like Troxel about a parent’s fundamental right to raise his/her children without state interference, surely Utah’s law will be challenged. Maybe Utah would argue that an unmarried bio dad is not even a parent (if he doesn’t jump through the statutory hoops) so the state isn’t “interferring” with his rights at all. I wonder what happens if Utah’s law is found to be unconstitutional. I can’t imagine what possible retroactive remedy would apply to bio dads who lost their parental rights.

    • I think you have hit on the tack Utah would take: They’d argue that the people who are excluded here aren’t legally parents. Now I think there are constitutional constraints on the definition of parent. I think, for example, that if a state said Tammie Granville (the woman in Troxel) wasn’t a parent that would be unconstitutional. (She’s got it all–biology, pregnancy, years of caretaking, etc.) But unmarried father’s may or may not qualify as parents. See the discussion I just put up in response to the comments just above. And if it is constitutional to say they are not parents and if under Utah law that’s what the state has said, then I don’t think you have any rights to claim here.

      • politics makes strange bedfellows. you have the religious fundamentalists and the gay stepparents all trying to redefine the common and known society concept of father, to fit their ideology.

  4. Utah’s position is not all that shocking from a fiscally conservative point of view. It pushes the envelope in terms of being eligible for federal funding for aid to families with dependent children though – the fed’s require states to pursue the identification of the genetic father and hold him accountable for supporting his child. States have to try to find the father which means the philosophy is that a man is the father based solely on genetic relationship whether he’s ever identified or not. Utah does the bare minimum. Why? Because finding out that the father wants to raise his child sux for the taxpayers because the child will not have two sources of support; the mother is giving the child up for adoption likely because she has no means of supporting herself and her child so if she cannot give the child up because he wants to raise the child, she will owe support but have no money to pay it and the child will qualify for financial assistance from the state – and that might be for a full 18 years.

    Its not just Utah that leads with its wallet, California does it too and that is obvious by how eager they are to get foster children adopted vs reunification. I know foster parents and prospective adoptive parents think kids languish in foster care while their addicted parents clean up their acts but that has not been my observation and it flies in the face of financial logic. If the parent is on welfare the state has no financial incentive to put the kid back with his or her family. Any little infraction that gets cps involved – think noise complaints from neighbors about kids up late or a messy house, that is an opportunity to stop paying welfare to those kids. I am helping several people fight to get their kids back from adoptive homes in CA. If the kids are white toddlers forget it you will never see your kid again they are too adoptable to waste time on reunification that will result in 16 more years of welfare.

    I understand the logic and if it were not for my sense of justice I’d agree.
    We don’t have to offer welfare but we do, if we are going to do that we have to realize that helps parents become legal parents with all the no trampling

    • I wondered about how Utah’s law fit with the general preference for holding men responsible for support. I’m not sure I know the answer. Perhaps if the mother doesn’t want to place the child for adoption there’s a whole different set of rules?

      • vile but yes of course there is. Its not the best interests of the child State’s are concerned with its the best interests of the state balanced with making sure the kid does not starve. They don’t really care about ensuring that children have contact with both bio parents the way it says in the UPA or the UPA would not contradict itself in its own pages by sayin on one page how important it is for them to know their parents for medical heath reasons and then the very next saying that its totally ok for some guy to pretend to be the father of his wife’s child so long as the father was a gamete donor. Preposterous.

  5. My main issue with Utah’s laws is not neccessarily applying it to Utah residents, who certainly can choose to live elsewhere if they disagree with the general values in Utah. Rather, my issue is applying it in cases where neither biological parent had ever lived in Utah and the mother specifically used Utah law to exclude the father, who may have fully and timely complied with the law in the state where he and the mother lived and/or where the child had been born. Utah law strips the protections given by other states to the relationship between the child and his or her biological father, with absolutely no notification required to the father that Utah law is being used.

    The proposed change to the law would require that if the father is known and is not a Utah resident, he must be notified by certified mail that the mother intends to use Utah law for an adoption and cites the exact law he must follow. I think that is a step in the right direction. I do not live in Utah and I think it’s wrong they could harm a resident of my state or any other state by allowing a deceitful mother to take her child there solely to strip the father’s rights with zero notice to him.

    • I agree with you that application of Utah law to those who do not live in Utah seems particularly unfair. Given the way Utah has structured its law it looks like the state has tried to maximize its reach, making the application of Utah law to non-Utah residents (like the father here) as extensive as possible. The proposed change in law (which I keep meaning to blog about) would moderate that effect and thus address some of the worse excesses here.

      • Also, if the mother must notify, there is less incentive for her to actually go to Utah (if she was doing so just for the purpose of hiding the adoption from the father and preventing him from stopping it), which would likely result in more of these cases at least being litigated where the biological parents actually live instead of in some far off state where it’s much more difficult even if the law is known in time.

  6. This scenario brings up a dillema for me quiate apart from the “who is a parent” issue that I hadn’t thought of before. Utah correctly points out that a woman is under no obligation to disclose the identify of the father. Although there is such a high potential for women to abuse this freedom,
    I feel that this is essential to protect women (and children!) from violent men such as rapists or perpertrators of domestic violence.
    This conflicts with the requirement in most states that require the fathers consent to any adoption procedures, which i also strongly support.
    However, in this particular case, it shouldn’t have been an issue since the father already knew who he was (as they will in the vast majority of cases) and had even filed a paternity motion in another state- no disclosure from the mother was required.

  7. Julie said: “So the question is when are you a parent within the meaning of the Constitution. And here there’s not too much to work with.” and then discussed Stanley and Lehr in the 2nd reply on this post and my comments are to that reply.

    I think the Constitution would apply to fathers of newborns who participated in the pregnancy either financially, emotionally or both – as being a parent means being present and supportive in a similar manner as Stanley as there was no time after birth to create a post birth relationship. Actions prior to birth should be indicitive to the court of future actions. Further actions such as signing up on putative registries especially in your home state showing your commitment to stand up and be counted on (which would trigger child support) are all actions of a parent, or the qualities you would seek in a parent. The intent has to evolve to the current climate – there is no societal requirement to marry the father, and that has to factor into the the treatment of fathers. How can his right to parent his child be protected when the mother has no intention of marrying him. (sure don’t have sex)…(note other states use that type of support requirements in the laws to trigger right to notice etc)

    There is another case that is extremely troubling in the father signed the putative registry in their home state of Florida and then Arizona when she moved and then again in Utah but the office was closed and delayed the registration by 4 days – it’s before the USC right now if I remember. Utah has created it’s own paper trail of abuse of due process that will be held under scrutiny at some point. Note they were also not in compliance with the laws in providing the forms at specific official offices – if interested will provide info.

    I do believe the way Utah revised their laws was deliberately set to exclude out-of-state fathers – one of the clauses is so vague – if the mother intended to give birth in Utah at any point then that counts….really? I also think having members of the Adoption Council of Utah design the law is extremely problematic and should (in my mind) trigger a finding of prejudical bias of some degree that will come back to haunt them.

  8. Seems to me the UT law is vulnerable to challenge on 14th Amendment grounds, both procedural & substantive. Troxel is worded strongly re: substantive DP rights of parents and procedurally the UT system fails to provide meaningful notice / opportunity to be heard. As a bonus, they’re trampeling all over Full Faith & Credit by ignoring paternity actions filed pre-birth in other states. Thoughts about a Federal statutory solution, using a law similar to the Indian Child Welfare Act? At $20-50K per infant, premium for kids of a certain race (gag), is this arguably a form of interstate commerce?

    • It is true that IF a man is a legal father then he is entitled to procedural due process. The key to understanding UT law, I think, is to see that it says the men here are not legal fathers. And if they are not legal fathers, then there’s no due process right–no “life, liberty or property.”

      I also think it is true that a state cannot use just any old definition of legal fatherhood. In Stanley vs. Illinois the Supreme Court rejected one definition of who was a father and said, essentially, that Peter Stanley had to be recognized as a legal father or it would violate the constitution. This is substantive due process. There’s very little guidance about this topic, though. One thing we do know (from Lehr v. Robertson and Michael H v. Gerald D) is that genetics alone do not make you a constitutional father.

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