Term Paper on "Legal Analysis of Adoption & Biological Father"

Term Paper 20 pages (5867 words) Sources: 1+

[EXCERPT] . . . .

LEGAL ANALYSIS of ADOPTION & BIOLOGICAL FATHER'S RIGHTS

Introduction little over a decade ago, the nation watched in horror as news reports continuously showed Baby Jessica screaming as she was torn from the parents who raised her for nearly three years and given to her biological father. A Michigan court allowed Baby Jessica's transfer despite the fact that the experts who testified concluded that this disruption in her life would cause great psychological harm to her in the short-term and possibly emotionally scar her for life. In rendering its decision, the court evaluated the constitutional rights of the biological father, yet ignored the rights and interests of the child. In recent years, the same situation has repeatedly brought issues involving the parental rights of a biological father in an adoption case to the forefront of the legal system.

Historically, putative fathers have been virtually ignored by the law. These fathers have been afforded few, if any, rights to their biological children born out of wedlock. In 1972, however, the Supreme Court began to recognize and to expand the rights of unwed biological fathers. Although none of the Supreme Court cases address the issue of a newborn placed for adoption when the biological father is unaware of the child's existence, a brief overview of the cases will show the current status of unwed fathers' adoption rights.

There are no clear guidelines establishing how courts should decide adoption cases involving fathers' rights, and as a result, father's rights have slowly evolved. This lack of predictability leads fathers to bring constitutional claims alleging violations of their due process and equal protection rights. In addition to legislative and judicial recognition of this problem, the harm inflicted on children by the uncertain results in these adoption situations has also led to public demand for reform. As a result, many father's groups have formed specifically to lobby for the enactment of protective legislation.

This paper will analyze the role and rights of the biological father in adoption proceedings, drawing upon an examination of the relevant case law. It will discuss the biological father's rights in an adoption he wishes to contest and his post-adoption rights.

Finally, it will conclude with a discussion regarding the future of the adoption process and its' legal effect on the rights of biological fathers in the adoption process.

General Adoption Information / History

The concept of adoption was not legally recognized in the United States until the 1850's, with the inception of the first adoption statutes. Very often these informal placements were economically motivated, as farm families had a great need for child labor. The advent of industrialization in the United States resulted in massive immigration to major cites where families often were unable to support or care for their children. Informal transfers of these children to other families, by either the indigent parents or the charitable institutions where parents sometimes left their children, promoted these types of placements. While early adoption statutes required a finding of suitability on the part of the prospective adoption home, this requirement was more form than substance. Finally, while early adoption statutes created a defined relationship between the adoptive parents and the adopted child, the impact on the ties to the biological parents was unclear.

As the number of informal adoptions rose, the need became greater to have a formal process for adoptions. In 1851 Massachusetts enacted the first adoption statute. Adoption pursuant to the Massachusetts statute required judicial approval, consent of the child's parent or guardian, and a finding that the prospective adoptive family was of sufficient ability to raise the child. Between 1850 and 1930, statutes may have referred to consent, but rarely set parameters regarding when or how consents were taken. Virtually no safeguards existed for ensuring that a consent was informed and voluntary, and by 1917 Minnesota required the agency or state welfare department to investigate and make recommendations to the court. While early adoption statutes required a finding of suitability on the part of the prospective adoption home, this requirement was more form than substance.

The treatment of adoption records was similarly confusing. Early adoption statutes made no provision for confidentiality or the maintenance of records. Original birth certificates were not altered or secreted in court files to prevent their distribution. As a result, adoptive families and biological parents had no legal protection with respect to intrusions upon each other's lives following an adoption.

This unknown impact on the ties to the biological father remained unclear for years. Biological but unwed fathers had no recognized rule until the 1970's. In many states, biological unwed fathers still do not have a presumptive right to consent or veto an adoption, but merely a constitutional right to notice and an opportunity to be heard. In some cases, the unwed biological father may have a constitutional right to consent or veto where the birth father has "earned" that right by establishing paternity following the child's birth, or depending upon the law of the state where the adoptive placement occurred, the role of the biological father in the adoptive process may vary dramatically.

Historically, a grave stigma attached to an illegitimate child, and the law protected only legitimate children. Statutes detailing the ground upon which parental rights may be involuntarily terminated did not commence until the 1970's. In Stanley v. Illinois, the Supreme Court first recognized that putative fathers do have at least minimal parental rights to their illegitimate children. Although not married, the biological father lived with his children and their natural mother until the mother's death. Upon the mother's death, because he was an unwed father, the children were declared wards of the state. The Illinois law in place at that time provided the guidelines for removing children from the home. The law differed, however, in the treatment of married parents and unmarried mothers and the treatment of unwed fathers. Where neglect was at issue, in order to take children out of the parent's home, the Illinois law required notice, a hearing, and proof of the parent's unfitness. In the case of unwed fathers, however, Illinois law merely presumed children had no surviving parent or guardian and the children thus became wards of the state.

In finding the Illinois law unconstitutional, the Supreme Court recognized that even an unwed father has rights in his children and family which deserve due process protection. It held that Stanley, like all other parents, was entitled to a hearing on his fitness before his parental rights could be terminated. Although the Court found that an unwed father had rights that deserved protection, its holding was limited to circumstances in which a de facto family and an established relationship existed. The Court did not recognize an unwed father's rights based solely on the biological relationship between a father and his children, but rather recognized an unwed father's rights based on his biological relationship and the existence of an established family relationship.

In another early case, Quilloin v. Walcott, the decision in Stanley was held not to apply. In this case, the father had not demonstrated any of the normal responsibilities attached to the notion of parenthood. The biological father had never married or lived with the child and the child's mother, and he never had or sought legal custody of the child and had never filed a petition to legitimate the child until eleven years after her birth, when her stepfather sought to adopt her.

In allowing the adoption to proceed, the Court took note of the fact that the child had lived with her mother and stepfather since she was almost three years old. The Court stated that the adoption would, in effect, serve to give full recognition to a family unit already in existence.

Because the Court relied on an existing family relationship in both Stanley and Quilloin, it was clear, at this point, that constitutional protection would not be afforded a putative father on the mere existence of a biological link. There must also be some affirmative action by the putative father to acknowledge and accept his responsibilities, and the biological father must also act like a father.

In Santoski v. Kramer, the United States Supreme Court held that parents have a fundamental interest in the care, custody and control of their children, but not an absolute right. The due process clause of the United States Constitution requires that severance of a parent's rights be supported by clear and convincing evidence. Generally, state statutes view involuntary termination of parental rights as an action of last resort. State statutes normally require that efforts be made to preserve the family relationship, and those terms vary from state to state. Courts now grant illegitimate children privileges that they were previously denied and impose responsibilities upon their biological fathers.

Father's Constitutional Rights

Generally, state statutes view involuntary termination of parental rights as an action of last resort. Statutes normally require that efforts be made to preserve the family relationship. What efforts must be taken and to what… READ MORE

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