Arkansas Adoption Case: A Persistent Putative Father Wins

My plan for today was to write one more post on the topic from yesterday and the day before–the Massachusetts case where the man is found liable for child support.   But then I got distracted by this case from Arkansas that I noticed on  The Adopted Ones Blog.   So I’m going to sidetrack myself to comment on the case.   I suspect that what I want to say about it may make some people unhappy.   Please take the time to read what I say with some care before you get really angry, though.

JEM and SMB were dating when SMB became pregnant.   Both were students at Southern Missouri State University.   SMB told JEM she wanted to place the child for adoption and she told him that she would leave the state to do so.

In order to protect is rights, JEM filed a notice with the Missouri Putative Father’s Registry.   Putative father’s registries are maintained by many states (but I don’t think all states.)  They idea is that unmarried men who think they may be biological fathers can sign up there and, if they do, they  may be entitled to certain rights.

Anyway, probably because he knew that SMB might leave the state for the adoption, he did not stop with the Missouri Putative Father’s Registry.  He also signed up with the Illinois, Texas and Arkansas Registries.   He also refused to consent to an adoption in Texas and instead filed a petition to establish parentage there.   All of this was done before the child was born.

Eventually SMB moved to Arkansas.   SMB signed forms there relinquishing parental rights and consenting to guardianship and adoption of the child on September 3, 2011.  The baby was born September 4 and placed with the adoptive parents the same day.   JEM was not notified of the birth.   On September 8 he filed a paternity action in Arkansas.

A guardianship petition was filed the same day as JEM’s paternity action.  It alleged that JEM’s consent for the adoption was not required.   (I confess that I am not clear who filed that petition.  I suspect it was the prospective adoptive parents but it might have been the entity that was appointed guardian–Grace Adoptions.)  Shortly after that an adoption petition was filed.

The central legal question here is whether JEM’s consent was necessary.  This is a question of Arkansas law and I will focus on that in a moment.   (It’s the part I think might make people unhappy.)  But take a moment to look at the sum of the facts first.

There’s something really disturbing about the events here.  JEM did a great deal to try to establish his rights.  He filed not one, not two, not even three but FOUR separate notices with putative father registries.   (You’d think this could be a little more centralized, but it’s another instance of state’s rights in family law.)    He filed two paternity actions.   He clearly tried.

But despite trying, he never saw the child.  He never had a relationship with the child.   He never supported the child.   In none of these shortcomings is he remotely blameworthy.   It seems clear the reason he was unable to do these things was because of the determined efforts of SMB.

So now let’s go back to the question of whether his consent was necessary.   Arkansas law governs this question and it says:

(a) Unless consent is not required under § 9-9-207, a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by:

(2) The father of the minor if the father was married to the mother at the time the minor was conceived or at any time thereafter, the minor is his child by adoption, he has physical custody of the minor at the time the petition is filed, he has a written order granting him legal custody of the minor at the time the petition for adoption is filed, a court has adjudicated him to be the legal father prior to the time the petition for adoption is filed, or he proves a significant custodial, personal, or financial relationship existed with the minor before the petition for adoption is filed[.]

What (2) does is identify the circumstances under which the father’s consent is needed.   Most clearly do not apply to JEM.  The only one that might is the one that I put in bold.   But of course, JEM couldn’t prove that–because SMB had prevented him from forming that relationship.

You might be wondering about section 207, which is referenced in (a).  It doesn’t make anything better.   According to the court (page 7) it provides that:

no consent to adoption is required of a father who fails to establish a significant custodial, personal, or financial relationship with the minor prior to the time the petition for adoption is filed, even if that father is listed on the Putative Father Registry or has signed an acknowledgment of paternity.

Again, I’ve placed in bold language I think is particularly important here.

I don’t want to go on too much longer, but here’s where I’m heading.  It looks to me like Arkansas law is pretty dreadful for unmarried fathers–maybe up there (down there?) with Utah.   But it also looks to me like it is pretty clear.  Indeed, look at the legislative history recited by the court.   Signing up for the putative father registry doesn’t do it.   Only an actual relationship does.

But the court here ruled in favor of the unmarried father.   This seems like quite a trick given the statutes quoted.  I’ll come back to that tomorrow.

 

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24 responses to “Arkansas Adoption Case: A Persistent Putative Father Wins

  1. I see this beer bonging frat boy in my minds eye. You know how college kids are boys still and I admire him for rising to the occasion and acting like the Father that he is.
    This country gives lots of lip service to wanting men to step up to the plate and take care of their offspring and yet we make it so very difficult for them to do the right thing unless they are willing to marry the mother. That is so wrong.

    This child is blessed to have a Father like him. I’m sure they will be just fine. By preserving a relationship with him, the Father ultimately helps the child preserve a relationship with the mother as well. I want to hug this family so hard. I’m just filled with joy that there are men in the world willing to fight so hard for their children. Good man.

    You’ll find a way to get what you want without preventing men from taking responsibility for their offspring. Its his baby too. How could he let his baby go with strangers?

    (i just realized I’ve been commenting on this blog for 4 years OMG I am old and should have accomplished more in that time)

    • If I were the father, I certainly wouldn’t want this mother having much, if any, contact with the child. Who can trust her judgment after the way she conducted herself?

      • those adoptive parents are a disgrace.
        even if you think the law is on your side, if you know the father is looking for the kid, how do you possibly try to use the law against that. It would be one thing if it was a kid who had lived with you for years, but this was a baby that was just born.
        No excuse in the world!

        • Again, we do not know any facts at all. I’m not prepared to judge the actions of the people involved without something to go on. If it is the case (and I have no evidence that it is) that the man is a bad guy, then perhaps I’d think differently. I just don’t know enough to judge. Though I’ll say that in general I’d rather give people the process they might be owed even if they aren’t nice. Still, are they entitled to follow the law of the place they live? (If that’s what the did, of course.)

          • It is possible to do something that is legally allowed, but considered morally wrong by the standards of society, which I think the law has yet to catch up to in cases lik ethese. Judging by the reactions when these cases come up in the media, most people seem to think that if the father is fighting for custody since before the child was born, it’s morally wrong to proceed with an adoption, even if the prospective parents find a state that will allow it.

            • Yes, it certainly is. I just wanted to be careful to separate the two. There’s a cold, hard question of statutory interpretation here. It has to do with the power of courts vs. the power of legislatures and what is written on the page. It’s quite possible to say that the legislature got it wrong but that the court was nonetheless obliged (by virtue of its place in the governing structure) to follow the law. And then there is the moral or political question–what should the answer be. I wanted to be clear here about the difference so that people can take aim at the right thing. And also to appreciate that sometimes when a court steps outside its proper role that can be the right thing, too. But then you have to figure out what the rule is for when court’s should do that. I do not consider the rule “whenever I personally will like the outcome” to be very principled, so it’s a challenge for me.

        • K some people think that the baby is theirs the moment its in their arms and that they must fight just as hard for their baby as any parent by genetics would because DNA does not make a parent. People are freaking nuts. Of course I agree with what you said K.

      • But really, we know nothing about this specific mother and this specific father. She might have had good reasons for doing what she did. Or she might not have. He might be a terrific guy. Or he might not be. We just do not know, do we?

        • Agreed. He might not be a good parent but that’s for a court (not the mother) to decide. Otherwise, what’s the point of having a legal system to decide these matters?

      • I would. If I were the father of this child. She is the child’s mother! She has not been judged unfit to care for her child its just not something she wanted to do. She sounds like a real royal bitch but that is not a necessarily a permanent condition. It could have been brought on by him cheating on her a whole bunch or something – in combination with pressure from her religious parents or something who knows. I would want my child to have what he/she is entitled to the physical and financial support of both parents and I would want my child to be fully included and recognized as a member of her family as well. She will have to provide half the physical and financial care for the child now so it would be foolish for him to vilify her. If he loves his kid he does not need to rub this in the kids face. She will probably end up being a pretty good Mom. Plenty of people enter parenthood unwillingly, but there are few that would not give their own lives to save their child once they are here.

        • Would that the experience of parenthood uniformly transformed people into responsible parents. (I despair a bit because we’ve just had a series of shootings around Seattle where parents allowed kids access to guns and then people got killed/hurt.) But it’s also true that many people do grow into the role.

        • Actually, I’m not sure if the mother will have any legal or financial obligations. If an adoption can’t be completed but the mother has already terminated her rights, I think she has to request them back, which she may not do.

          • Yes, she will still have legal and financial obligations! Can you imagine how many “deadbeat dads” (and moms) would just ‘relinquish their rights’ to get out of supporting their child if it was as easy to do as that? Relinquishing rights does just that… ends RIGHTS, not responsibilities. She may (probably will) have to request to have her rights reinstated — and that may or may not be granted — but her responsibilities will be intact and in force, regardless, unless and until a legal adoption is finalized (which I personally pray never happens).

    • Do we know what kind of a father this guy will make? I don’t think we do. He might be good, he might be bad. I don’t think we have any basis to say. After all, not all genetically related people make good parents.

      At the same time, I’m not sure that’s really the question we need to think about. I think the question is whether he is a legal father. If he is, then his consent is needed. If he is not, then it is not.

      There’s two different levels on which to approach this question of legal parenthood. One is what does Arkansas law tell us. That’s where I’m going first and I’ll post again about that.

      The second (and perhaps the more interesting) question is what the law should be. There’s a subsidiary question, too. On what basis should we decide what the law should be? This is where I think (and many others think to) a general concern with the well-being of children should fit into the equation. What I mean is that we should choose a test for who is a legal parent that will serve the interests of children generally. The test ought to have something to do with what will be good for them.

      I think it must be three and a half years, since I started the blog in the fall. Long time and you keep me on my toes all the time.

  2. Julie,

    I think the intent of overturning the ruling was solely because of the intent in the original drafting that was added to AND that right to due process.

  3. “While appellees suggest that he could have done more, that is not the question. Instead, the question is whether appellant’s efforts to establish a significant custodial, personal, or financial relationship, in light of S.M.B.’s thwarting of his efforts, were sufficient such that his consent to the adoption was required pursuant to section 9-9-206(a)(2). We hold that they were. And, because they were, the circuit court’s finding that appellant’s consent to the adoption was not required is clearly erroneous.”

    read the full decsion at: http://www.leagle.com/xmlResult.aspx?page=1&xmldoc=In%20ARCO%2020120301006.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7

    • Right–that’s the opinion. But the thing is, I don’t think that is what the law actually says. The law actually says that the test of whether his consent is required is whether he has a relationship with the child. The law doesn’t have any provisions about why he might or might not have such a relationship–it’s only about whether he does. He does not–so his consent is not (by the terms of the statute) required. The court here reached a different result, obviously. I think it did so by rather ignoring the terms of the statute and the history of the statute as well.

  4. “Accordingly, we reverse the finding that appellant’s consent is not required, vacate the decree of adoption, and remand for further proceedings consistent with this opinion.”

  5. I am sick to learn that in most cases the father’s consent is simply not required! How awful! Where are all the right wingers who decry absentee fathers as being the reason for the downfall of this nation? It is shameful that we take away fathers’ rights so cavalierly in order to create orphans and “unwanted” children to fill a demand, and for adoption practitioners to profit from.

    • If you go back and look at this string (https://julieshapiro.wordpress.com/2012/02/06/whats-the-matter-with-utah/) you will see that one reason for disfavoring unmarried fathers is to ensure that children are raised in two-parent married homes. That’s a sort of standard relatively conservative view. Keep in mind that if this couple wanted to get married they could and then he would have rights. So it’s only instances where there will be no married parents that you find that the man is disadvantaged.

      I suppose people who approve of this kind of set-up might be people who think married couple parents is more important that biologically related parents?

      • exactly, thanks for mentioning marriage. That’s what establishes consent to conceive children with someone, and the commitment to support each other and any children. Unmarried people never established that consent to commit to each other or have children together, they only consented to sex and there are no commitments, so all the details of what might happen if they get pregnant are up in the air. That makes fully-informed consent to sex impossible, because they can not be fully informed without the official “I do consent” of marriage. So the father is technically a rapist, and so is the mother, because they never got consent from each other to make a baby together, and we never give parental rights to a rapist, so unmarried men are lucky if they are allowed to be parents of their illegitimate children, if they want to be. And unmarried women are lucky if they get what they want too. But a judge is necessary sometimes to make the decision.

        • I recognize that some, maybe even many, people take this view but can we agree that there are other views, too? Unmarried people can and do make commitments to each other. Married people sometimes get pregnant without any intention of doing so.

          On a narrower point, to suggest that an unmarried man who participates in consensual sex that results in pregncancy is technically a rapist is abusrd (and actually offensive) to me. There’s a critical qualitative difference between sex between unmarried people that is desired by both and rape. If you obscure that distinction you trivialize rape even as you slander many unmarried people who engage in consensual sex.

        • I find that very offensive too, and by your definition, I and the mothers of my children are “rapists” and our parental rights should be revoked. I don’t think our children would be too happy with that though. Fortunately, people with your views seem to be in a very small minority and almost everyone recognises that rape and parenthood have very little to do with marriage.

          In 2009, 41% of US births were to unmarried women btw, and the proportion of parents who were unmarried at conception will be higher. The percentages are higher over here in the UK. That’s a lot of children whose parents you consider to be rapists, and whose parental rights are questionable.

          http://www.cdc.gov/nchs/fastats/unmarry.htm
          http://www.telegraph.co.uk/health/healthnews/6227283/Proportion-of-births-outside-marriage-has-risen-to-highest-ever-level.html

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