CONSTITUTIONALLY UNPROTECTED FATHERS
April 9, 2013 § 2 Comments
If you do any adoption work, the case styled In the Matter of the Adoption of a Minor Child, A.S.E.L.: V.S.P v. M.J.W. and M.S.L., decided by the COA on April 2, 2013, is one you should be familiar with.
The facts are somewhat involved, but the essence is that Vincent, age 19, and Dana (pseudonyms), age 17, had a child together, whom they named Andy, born May 25, 2004. Vincent was not listed as the father on the birth certificate. Shortly after the birth, the young couple split and Dana moved from place to place with the baby. Vincent had little contact with Dana or the child, and he did nothing to help support his offspring.
Through a series of events, Dana’s brother Mark, and his wife, Melanie, obtained custody of Andy in youth court.
Melanie and Mark decided to adopt Andy, and in April, 2005, Dana signed a consent to adoption. Vincent was not made a party to the adoption because paternity had never been established. A judgment finalizing the adoption of the child by Mark and Melanie was entered December 16, 2005.
In September, 2009, nearly four years after the adption, Vincent filed an action to set it aside, claiming that it was void because he was not made a party, despite the fact that everyone involved should have known that he was the father, and that Dana was coerced into executing the consent.
The chancellor denied Vincent any relief, and he appealed. Judge Barnes, for the majority, wrote:
¶21. … we note generally the setting aside of an adoption decree is disfavored in Mississippi. See [In Re Adoption of J.E.B., 822 So.2d 949, at 952] (¶10) (citing Humphrey v. Pannell, 710 So. 2d 392, 399 (¶35) (Miss. 1998)). There is a strong public policy declaration in Mississippi’s adoption statutes for the finality of adoption decrees. In re Adoption of M.D.T., 722 So. 2d 702, 705 (¶12) (Miss. 1998) (citing In re Adoption of R.M.P.C., 512 So. 2d 702, 707 (Miss. 1987)).
¶22. It is well established that the United States Supreme Court has offered constitutional protection to the rights of unwed fathers who have tried to have relationships with their children. Stanley v. Illinois, 405 U.S. 645, 651-59 (1972), held for the first time that under certain circumstances, such as when the putative father has participated in the care and custody of his child, the Constitution protected an unwed father’s parental rights. The Supreme Court clarified the rights of unwed fathers six years later in Quilloin v. Walcott, 434 U.S. 246 (1978), where the Court established the requirement of a meaningful relationship with the child, and not just proof of biology, in a putative father’s attempt to set aside an adoption. In Quilloin, the appellant did not petition for legitimation of his child for eleven years, between the child’s birth and the filing of the adoption petition. Id. at 249. The father failed to seek custody of the child, and never had significant responsibility for the child regarding supervision, education, and care. Id. at 247, 256. The Supreme Court held that the natural father’s substantive rights under the Due Process Clause were not violated by applying the “best interest of the child” standard in this instance, and the adoption was affirmed. Id. at 254, 256. In Caban v. Mohammed, 441 U.S. 380, 392-94 (1979), the Supreme Court concluded the unwed father, who had had custody of his children for several years and thereby established a significant, supportive relationship, should have the privilege of vetoing the adoption of his children, not merely receiving notice.
The court went on to affirm the chancellor’s ruling, holding that if a biological father has failed to establish the quality of relationship described in the US Supreme Court decisions and in MCA 93-17-6, then he has no constitutionally protected right to process and participation in the proceeding, and failure to serve him with process does not void the adoption judgment.
- Not a criticism of counsel, but wouldn’t it have been more prudent to get a consent from Vincent? The undisputed facts establish that he was agreeable with the adoption at the time it was in process. If he did not want to admit paternity, language could have been added to the consent to the effect that he did not know whether he was the father, but, in the event that he might be, he consented to the adoption. Lawyers sometimes yield to the client’s desire to do it the easiest way, when a little more trouble now could avoid lots more down the line.
- Add some protective language to your consents. Add language to the effect that it was not coerced, was freely given, and that the signer knows and understands that it is irrevocable and can not later be undone. It may not be conclusive in a later attack, but it would certainly buttress the defense of the original judgment.
- Ponder measures you can take to immunize your judgment from attack months and even years down the road. Make sure you have tended to every detail, especially jurisdictional detail, in strict compliance with the statutes. In the past few years, it has become increasingly common for parties to agree to one thing, and then to hire another lawyer to try to set the agreement aside. The more armor-plating you add to your judgments (and property settlement agreements and contracts, for that matter), the more likely it is that they will survive attack.