Thursday, July 29, 2010

Unwed Biological Fathers Must Strictly Comply With the Statute to Be Entitled to Contest an Adoption

E.G. and N.G. v. C.C.D., 2010 UT App. 114, (Utah Court of Appeals, May 6, 2010).

C.C.D. challenges the adoption of his biological daughter, which took place without his consent.  The trial court found that C.C.D. did not strictly comply with Utah Code § 78B-6-121 because he failed to plan what he would do if he was deported.  The Court Appeals found that when strict compliance with the statute is required, the trial court shall not require more than the statute, therefore requiring a contingency plan for deportation was in error.  However, Because C.C.D. did not agree to pay child support in his affidavit he did not strictly comply with that provision of the statute.  Because of this failure, the Court Affirmed the trial court’s denial.  The Court also noted C.C.D. failed to properly raise and preserve the constitutional claims raised on appeal.

DISSENT: Judge Thorne opined that C.C.D. did strictly comply with the statute by agreeing to “assist Mother in taking responsibility for the unborn child, and to help mother with expenses.”  Judge Thorne also expressed concerns about the current policies expressed by the statute to divest unwed biological fathers of parental rights with very little due process and strict compliance. 

Full Decision available at http://www.utcourts.gov/opinions/appopin/babygirl101050610.pdf

1 comment:

Scott said...

The majority got the legal standard right, but - as Judge Thorne correctly observed - they misapplied it.

J. Thorne's analysis in paragraph 29 is spot on. "If Father is awarded custody, such responsibility would be direct; if not, his responsibilities as a noncustodial parent would include paying child support [etc.] ... Either way, Father's declaration is a clear and unconditional agreement to take responsibility for Baby Girl without regarding to her ultimate placement..." The whole statutory requirement of requiring putative fathers to agree to an order of _paying_ child support (as opposed to simply agreeing to accept financial responsibility in general) almost seems as if the Legislature has foreclosed the very thought of an unmarried father receiving custody (C.f. Stanley v. Illinois anyone?).

I understand the State has a compelling interest in expediting the adoption process and making sure putative fathers who want to contest matters are truly willing to "step up to the plate" if their objection is successful, but with the degree of strictness Utah's appellate courts have come to expect of fathers is a horrible triumph of procedure over substance. (Cf. Paragraph 43-46).

Anyways, that's my rant. :) On a side note, congrats on finishing the UT State Bar. I'm sure you're glad to be done with that fun ordeal.

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