Wednesday, February 22, 2012

Utah adoption laws becoming more hostile to birth fathers?

Jane
Robert Manzanares only wanted to nurture his new daughter. But for the past four years he has had to run the gauntlet of Utah’s byzantine anti-father adoption laws. Although the Utah Supreme Court ruled in his favor in January, he still faces more litigation before--if ever--he can have custody of his daughter.

Meanwhile the Utah legislature is on its way to passing a bill drafted with the assistance of the attorney who represented the adoptive parents in Manzanares’ case making Utah’s anti-father adoption laws ever harsher. SB 55 which passed the Utah Senate makes it legal for mothers-to-be to deceive fathers about their intent to place their baby for adoption.

FATHER ONLY A 'CHROMOSOME' DONOR
In the summer of 2007, Manzanares and Carie Terry conceived a child in Colorado where both resided. The expected due date was late March, 2008. Soon after the child was conceived, Terry terminated her relationship with Manzanares. Despite the split, he attempted to maintain contacted with Terry by email and provided some support. Terry insisted she wanted to place the child for adoption and began referring to Manzanares as the “chromosone donor.” Manzanares opposed the adoption, repeatedly telling her that he wanted to raise the child and would do so alone if necessary.

BIRTH MOTHER LIED; TOO BAD, DAD, SO SAD
In January, 2008, Terry emailed Manzanares that she was going to Utah to visit her sick father, but would return to continue discussions regarding adoption. In reality she visited Utah to make preparations for a return in late March to deliver the child. Five days later, Manzanares filed a paternity action in Colorado seeking to stop any adoption proceedings. He feared that Terry planned to surrender the baby for adoption in Utah. She came from a Mormon family and he believed she wanted the baby raised in Utah with a Mormon family. Terry denied she was planning to put the baby up for adoption in Utah. The Colorado court set a hearing date of February 20.

Terry gave birth prematurely in Utah on February 17, 2008. On February 19, her brother and sister-in-law, the Byingtons, filed a petition to adopt the baby. Terry called the Colorado court, asking for it to postpone the hearing because she was still in Utah visiting her sick father. She did not tell the court that she had given birth. On February 20, Terry gave her consent to the adoption in a Utah court without telling the judge about the Colorado action.

Terry returned to Colorado and Manzanares became aware that she was no longer pregnant. Manzanares then called the Byingtons who did not tell him about the adoption petition. Meanwhile the Colorado court granted Manzanares’ petition for paternity and ordered that his name be put on the child’s birth certificate.

UTAH'S ANTI-FAMILY BUT ADOPTION FRIENDLY LAWS
Three weeks after the child was born (March 4), Manzanares filed a motion in Utah to dismiss the Byington’s petition to adopt his child. That's when he ran into the Utah adoption buzz saw: An unmarried father’s consent to adoption of his child is not required unless he files a paternity declaration in the state before the mother consents to the adoption, and within 20 days of learning that she resides in Utah and intends to give birth there, the child was born in the state, or the mother intends to consent to adoption in the state. That's a lot of hoops to go through and miss one, and you're out. This is the same law that cost John Wyatt, Ramsey Shaud, and other fathers their children in the state of Utah. This is only the first of the many onerous conditions a father must meet to do what we as a civilized society expect fathers to do, i.e., nurture their children. The law, as at least one legislator has admitted, was designed to thwart a natural father's right to raise his own child.

Utah adoption laws, enacted by the Mormon-dominated legislature in 1975, reflect the point of view of the Church of Jesus Christ of Latter-Day Saints that it is wrong to have sex outside of marriage. “The Utah laws may be harsh but they are looking at what’s best for the child: stable families and two parent families” David Hardy, a lawyer for LDS Family Services, the adoption arm of the Mormon Church, told the Washington Post. (This from a church whose founder and leaders had multiple wives.) And of course, being raised in a "stable two parent" home is not necessarily better than being raised by natural parents, as we can tell from countless testimonies of adopted persons and biographies of countless successful people raised in single parent homes.

Utah law does allow a reprieve for a father who did not know or through the exercise of reasonable diligence could not have known that the mother gave birth in Utah and intended to give the child up for adoption. The exception appeared to apply in Manzanares’ case. The trial court denied his motion to set aside the adoption, however, saying in effect “tough luck Manzanares. You should have figured out what was going on and never trusted that woman.”

UTAH SUPREME COURT DECISION – JUSTICE AT LAST
The Utah Supreme Court reversed the trial court with three of the five judges holding that it was reasonable for Manzanares to believe Terry when she said she was not in Utah to place their baby for adoption. In her concurring opinion Chief Justice Christine Durham pricked a small hole in the “only home the child has even known” argument which often influences judges to stretch the law to keep the child with the adoptive family. 
Chief Justice Durham, a voice for  reason
“It is true, as the dissent notes, that the result of this decision means hardship for Baby B. and her adoptive family. It is equally true that the opposite result would mean hardship for a father whose rights to form a relationship with his child and be a part of her life (and arguably Baby B’s right to know him and benefit from his care and concern) would be cut off notwithstanding the statutory protections afforded him. The legislature may well, as the dissent asserts, have identified maternal privacy and finality in adoptions as primary values. But antecedent to these goals are constitutional rights, inchoate or realized, that all biological parents have in associations with their children.Manzanares v. Byington
This isn’t the end of the case, though. The Utah Supreme Court sent the case back to the trial court to determine whether Manzanares fully complied with Colorado's requirements to establish his parental rights to his daughter and has demonstrated "a full commitment to his parental responsibilities." In other words, Utah law requires unwed fathers to prove they are fit to be a parent even though no such requirement is imposed on unwed mothers.

LDS OPPOSES REFORM
Because of the notoriety of the Manzanares, Wyatt, and other cases* members of the Utah legislature have proposed changes to Utah law. As amended, HB 308, introduced by Rep. Christine Watkins, would require a woman intending to surrender her unborn child in Utah to notify the baby’s father and tell him what he needs to do to protect his right to contest the adoption. The mother-to-be is excused from notifying the father if the child resulted from a sexual offense, or if the father has behaved in a physically abusive way, and she is afraid he will be abusive in the future. This gives any woman such a route if she wishes to not  let the father and his family raise the child. The bill does extend the time for fathers to take action to protect their rights from 20 to 30 days. HB 308, which is pending in a House committee, at least give fathers a sporting chance, but it is too much for Fred Riley, former commissioner of LDS Family Services. The Mormon owned Deseret News reported that "Riley ... said “[HB 308] is not needed … The state, Riley said, does not need to apologize for its reputation as adoption friendly noting that 40 percent of pregnancies result from ‘recreational sex.’” Although Riley claimed that he was speaking for himself, LDS Family Services has not disavowed his remarks.

(Fellow blogger Lorraine and I are not sure of the meaning of “recreational sex” although we admit to having practiced what might be termed "sex for fun." We also question how Riley would know what kind of sex resulted in these illicit pregnancies.)

MESSAGE TO FATHERS: NEVER TRUST A DAME
As amended SB 55 proposed by Sen. Todd Walker would make optional the notice to fathers that mothers intend to place their babies for adoption in Utah. Both SB 55 and HB 308 include a provision that "No communication between the mother of the child and the birth father changes the rights and responsibilities of the birth father described in the notice [to the father of the pending adoption]". The Utah adoption code already legalizes lying providing that fraud on the part of either parent, or the adoption agency, does not nullify an adoption. However, both SB 55 and HB 308 appear to go further, overturning the precedent set in Manzanare's case, this is, if the mother denies she is planning to place her child for adoption, he has a defense against the claim that he failed to file a paternity action in Utah. SB 55 was written with the assistance of Larry Jenkins, the attorney who represented the adoptive parents in the Manzanaras, Wyatt, and other cases where fathers’ rights were trampled.**

SB 55 which has passed the Senate is a giant step backwards. It leaves in place all the processes designed to thwart a father’s quest to stop the adoption of his child. However it appears to delete what is often the only defense available to fathers: that the mother lied about her intent to place the baby for adoption in Utah.

If the the Utah legislature actually cared more about the well-being of children and the constitutional rights of parents than punishing parents for perceived sexual transgressions, it would repeal entirely its laws regarding unmarried fathers, and replace them with a simple law requiring notice to fathers of a pending adoption and give them the opportunity to nurture their child. Clearly it does not.

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15 comments :

  1. Good article. But the problem has been exacerbated by poor legal representation. Basic research of Utah case law shows that out-of-state fathers cannot rely on paternity actions in their own state. Research also shows that the father must raise constitutional issues--like full faith and credit, due process, PKPA, and choice of law in the first pleading or, if denied notice, in the INTERVENTION MOTION. I have seen some of the atorneys make constitutional arguments on appeal while omitting statutory arguments, amend initial pleadings without re-attaching needed documents, and submit required affidavits that do not meet the statutory criteria. Those are rookie mistakes.

    Utah does not need to change to be beat. Get diligent!

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  2. The local news here did a two night cover on this story. Unfortunately I missed it both times..

    http://www.9news.com/news/article/248237/188/Head-of-Utah-adoption-council-believes-Colo-dad-will-get-daughter-back

    More power to him! No matter what happens, his daughter will know he fought for her toot and nail & know that she was loved and WANTED by her father.

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  3. "but they are looking at what’s best for the child: stable families and two parent families”

    I don't know how anyone can still get away with this 1950s/60s mindset in the 21st century. Everyone knows that so called "stable families" are dissolving right and left in this country. I've noticed that the same name keeps popping up in all of these cases. This whole thing sounds Georgia Tann-esque in my opinion.

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  4. So essentially, if you're going to be an unwed father in any state, you should file a claim in Utah just to be safe.

    How stupid... The whole thing makes me sick.

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  5. http://www.deseretnews.com/article/865550493/Fathers-rights-in-custody-adoption-get-lawmakers-focus.html?pg=2

    According to this article in the Desert News, Riley clearly stated that he was speaking as a private citizen. He was not rendering an official statement from the LDS Church. Important distinction.

    Though I wish the LDS Church would issue an official position, as they recently have done on immigration reform.

    Here's another humdinger of a quote from Riley: "The letter of notification could invade [birth father's] privacy by potentially revealing their sexual activities to their wives or families." Whaaat? The Mormon Church does not condone husbands keeping extramarital affairs secret from wives.

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  6. Jane, I believe the Utah code already allows fraud in birth father notice to happen and not impact the adoption - it does allow for damages to be paid - but not to overturn the adoption. What exactly does SB55 add to that?

    Current code
    http://le.utah.gov/~code/TITLE78B/htm/78B06_010600.htm

    Title 78B Judicial Code
    Chapter 6 Particular Proceedings
    Section 106 Responsibility of each party for own actions -- Fraud or misrepresentation.

    78B-6-106. Responsibility of each party for own actions -- Fraud or misrepresentation.

    (1) Each parent of a child conceived or born outside of marriage is responsible for his or her own actions and is not excused from strict compliance with the provisions of this chapter based upon any action, statement, or omission of the other parent or third parties.

    (2) Any person injured by fraudulent representations or actions in connection with an adoption is entitled to pursue civil or criminal penalties in accordance with existing law. A fraudulent representation is not a defense to strict compliance with the requirements of this chapter, and is not a basis for dismissal of a petition for adoption, vacation of an adoption decree, or an automatic grant of custody to the offended party. Custody determinations shall be based on the best interest of the child, in accordance with the provisions of Section 78B-6-133.

    Renumbered and Amended by Chapter 3, 2008 General Session

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  7. Anon,

    Utah law is designed to create pitfalls for fathers and lawyers. It expects out of state lawyers to be thoroughly knowledgeable on Utah law even though the father's state has jurisdiction. It gives fathers only 20 days after a "qualifying event" to find a Utah lawyer and get the legal documents filled. Likely the father has to get the money together to pay a portion of the legal fees up front so that eats into the time as well.

    The pleading requirements are absurdly complicated. There is no reason why the father should have to include evidence of his ability to raise his child in the pleadings. In fact, he should not have to prove fitness at all. He should be presumed fit and the burden should be on the state to prove him unfit through a child dependency hearing which would assure his constitutional rights were protected including the right to an attorney at state expense.

    Anon, you make the whole thing sound like a sports match. You seem to forget that what's at stake is not some kind of trophy but the child's right to be raised by his own father. This right should not hinge on whether a father can afford an experienced lawyer to navigate the numerous traps the Utah legislature created at the behest of LDS Family Services and the adoption industry.

    Since the Utah legislature seems to have no intention in enacting just laws, perhaps you and the Utah Bar Association should providing free CLEs for lawyers all over the country on how to beat the Utah adoption industry.

    Finally, I have to wonder how Larry Jenkins, David Hardy, David McConkie, and the other lawyers who specialize in tearing children from their natural families sleep at night.

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  8. Anon2

    Thanks, Anon 2, I did not see the second Deseret News article which added that Riley said he was speaking for himself. However, I do not believe Riley would have made the statement if it conflicted with LDS Family Services position on the bill.

    I found in working on legislation that LDS Family Services stands back and lets others speak for it.

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  9. theadoptedone,

    Thanks for calling our attention to the fraud statute. This is a terrible statute and should be repealed forthwith. Oregon which is almost as adoption friendly does allow mothers to revoke their consent for fraud which allows a court to undo an adoption.

    However, in spite of this Utah statute affirming an adoption in spite of fraud, the Utah Supreme Court in Manzanares did allow a father to have his day in court based on another statute.

    Section 78B-6-122 of the Utah Code excuses a father from compliance with 78B-6-121 requiring he file an action in Utah before a mother gives her consent if "he did not know and through the exercise of reasonable diligence could not have known ... that a qualifying circumstance existed." A qualifying circumstance is what triggers the need for the father to file in Utah. The Court in Manzanares held that as a matter of law the birth mother's lies kept Manzanares from knowing about the qualifying circumstance and therefore he was excused from compliance.

    SB 55 adds a provision for a "prebirth notice to presumed father of intent to place child for adoption." HB 308 ads a provision for a "notice of potential adoption proceedings." The notice in both bills includes this provision: "No communication between the mother of the child and the birth father changes the rights and responsibilities of the birth father."

    The effect is that in considering whether the father knew or should have known that a qualifying circumstance existed, a Court cannot consider what the mother may have told the father, in effect overruling the precedent set in Manzanares. HB 308 makes the notice mandatory so at least the father knows what he has to do and knows that he cannot rely on what the mother told him.

    SB 55 does not make the notice mandatory but still appears to strip the father of the defense Manzanares had.

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  10. Thanks Jane,

    I think the SB 55 is horrendous. I do like the other bills intent to require certified notice etc.

    I read the Supreme Court ruling and particularly liked the way they stated what the difference is in a belief vs knowledge. That is what spoke volumes to me because it was such basic common sense and has been totally blended as one and the same in Utah law.

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  11. Jenn wrote:

    "So essentially, if you're going to be an unwed father in any state, you should file a claim in Utah just to be safe."

    That's exactly right. The Utah Code states: "An unmarried biological father, by virtue of the fact that he has engaged in a sexual relationship with a woman is considered to be on notice that a pregnancy may occur and has a duty to protect hos own rights and interests."

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  12. What is particularly disturbing about the Manzanares case and Utah's attempt to remove the protection he had for future cases is that this isn't just a case of "he said, she said" where the father is claiming the mother told him one thing in a private conversation and went and did something else. This was a case where there was already an ongoing paternity case in Colorado prior to the mother placing the child for adoption, and in the court papers, in her official respose to the court, the mother denied that she had any plans to attempt to have the baby adopted in Utah. So in other words, she didn't just lie to the father - she lied to the court. So now fathers are supposed to be psychic and know when the mother is lying in court?

    I wonder what Utah would do if they started getting flooded with registrations from all over the country. The house bill requiring notice if the father is out of state is excellent, which means it is unlikely to ever pass in a state like Utah. The lawmakers in Utah who support the current laws are quite arrogant to think they should have this much control over non residents.

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  13. Also, with regards to the PKPA, from reading Wyatt's petition to the USSC, state supreme courts are pretty split on whether it's waivable or non-waivable (jursidictional) as a defence. Considering Wyatt's was the first case in Utah to even attempt the PKPA defense, I don't think there was any way of knowing which way Utah would go. It's unfortunate he didn't find a better lawyer early on (his Utah SC lawyer joined the case after his motion to intervene had been denied) but again, given the strict time limits in Utah and the difficulty some fathers have in even finding out where the child is, it's pretty hard to find the best lawyer halfway across the country with these kinds of time constraints.

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  14. PKPA?

    The comments here and Jane's responses are highly informing (is Anon a lawyer too?) but some abbreviations leave us wondering. I looked PKPA up:

    Parental Kidnapping Prevention Act.

    On another note, may I applaud my friend Jane for such a detailed and careful deconstruction of the labyrinthine laws that Utah has in place to prevent unmarried fathers from raising their own children?

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  15. My voice is small because it's alone, but I have a daughter, she was 3 months when I saw her last. I was informed she was court sanctioned kidnapped. I never knew anything was in court but police say you need to get a lawyer for that, and I did. Which funny, turned out to be new, and right before we went to court he bailed. He told me there was a code among attorneys and he wanted a long career in his field. He didn't want to make enemies, by bringing the man who stole my baby to a judge... Because of what would happen.. The enemies he could make... So I went alone, and he took all his name off court documents and I turned them in. I stood before the judge, I told him, the notary was forged... Not even same date.. Duh.. But, I was granted to have a evidentiary hearing, but my arms ached for my baby, that's all I wanted. Anyway, I was told after by the father and his uncle which was his attorney if I dropped it, I would get my baby back. I of course dropped it, we called judge on 3 way call and I stated I knew I wanted to drop it. I didn't say why. Anyway, I never did get my baby. I think about her. I find no comfort, even in death I know I won't be with her, she isn't there. It is a wound without closure. I've never even been able to see her at the place where I'm told she lives. I find it horrid the cruel things people do to each other, I know I'm alone, the father of my daughter isn't, he has his mother and family. I can't grasp how they find it ok, I mean I understand it's easy to get away with, legally, but how do they sleep, morally and ethically? Or is something wrong with me? I swear on my life and every good thing in this world, every word I've written is the honest to God truth. I am glad to just have someone read this, to know I hurt, that is all. She will be 3 January. Thank you

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