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January 12th, 2012 by Robert Franklin, Esq.
Virginian John Wyatt has asked the United States Supreme Court to rule on the constitutionality of Utah’s adoption statutes and whether rulings in his case conflict with federal law.  Read about it here (Salt Lake Tribune, 1/1/12).

I’ve written before about Wyatt.  His is one of the many cases that show the way in which state adoption laws place all power over fathers’ parental rights in the hands of mothers.  Particularly in states with putative father registries, all a mother has to do is conceal her pregnancy or lie to him about who the father is or tell the hospital or the court she doesn’t know who the father is.  In most states, those actions will be sufficient to terminate the father’s rights without notice to him.

John Wyatt, however, was more assiduous than many dads in trying to establish and maintain his rights.  But Wyatt was dealing with the state of Utah, and the mother of his child who went to some pretty remarkable ends to keep him out of his daughter’s life.  Those two were more than enough to finalize the adoption of a little girl who didn’t need to be adopted.  The article linked to gives a good summary of what happened.

Wyatt learned in May 2008 that Emily Colleen Fahland, his then-19-year-old girlfriend, was pregnant. According to court documents, on Feb. 4, 2009, Fahland informed Wyatt by telephone that she had spoken with A Act of Love Adoption Agency, based in Utah. She sent a text message the next day that said: “Do you understand that I’m receiving information from a Utah agency for proceeding with an adoption.”

But Wyatt said he thought Fahland was just gathering information and that their co-parenting plan was still in place.

Unbeknownst to Wyatt, Fahland gave birth on Feb. 10, 2009, and a day later signed a document agreeing to waive Virginia law and proceed with an adoption in Utah. Wyatt learned of the birth on Feb. 11 but was initially unable to locate Fahland, who had checked out of the hospital and into a hotel under an assumed name.

A Utah couple flew to Virginia on Feb. 12 to pick up the infant. That same day, Fahland relinquished her parental rights. Wyatt hand-delivered a letter to the adoption agency’s Virginia attorney on Feb. 12 requesting to see his daughter and take her home. Wyatt said he was told he could see the infant only if he consented to the adoption. He refused.

Eight days after Baby Emma’s birth, Wyatt filed a custody action in Virginia. By then, the adoptive parents had returned to Utah with the baby and, on Feb. 23, began adoption proceedings here.

From that point on, court proceedings unfolded in both Utah and Virginia. In Virginia, a judge confirmed Wyatt’s rights to his child. In Utah, a judge ruled Wyatt acted too late to protect his rights since he filed a custody action in Virginia after Fahland consented to the adoption and did not file with putative-father registries in Virginia or Utah until April. The judge also said she saw “no legal basis for deferring” to the Virginia court’s decision that it had jurisdiction in the case.

What the article omits is the fact that Wyatt had made it clear to Fahland from the start that he wanted to parent his child.  She said she agreed and he thought they had a plan in place to keep their daughter.  Unknown to him, Fahland changed her mind and once she did, it was a simple matter of cutting him out of his daughter’s life.

Due solely to the lies Fahland told, Wyatt was a step late at every juncture in the proceedings.  She checked out of the hospital just before he figured out where she’d given birth.  (The hospital refused to tell him it had a patient under her name.)  She fled to a hotel where she checked in under an assumed name, handed the child off to infamous Utah adoption attorney Larry Jenkins and the adoption agency, and relinquished her rights.  And that, according to Utah law, is about all it takes to filch a child from its father.

Wyatt is asking the Supreme Court to rule on the constitutionality of that as well as whether the process conflicts with the federal Parental Kidnapping Prevention Act.  Amazingly, in Utah, as long as a father doesn’t contest an adoption before a the mother relinquishes her rights, he’s out of luck.  That makes his parental rights little more than a race to the courthouse that he’s bound to lose.  After all, when the woman, but not the man, knows she’s going to give up her parental rights, how is he supposed to win that race?

The answer of course is that he can’t, and that, as we’ve come to learn about adoption law, is the point.  States, particularly those with putative father registries, make no secret of the fact that getting the father out of the way of the adoption is the game being played.  Those states frankly place finalizing the adoption ahead of the father’s rights.  They do that by denying him notice of the adoption and the opportunity to contest it.

Of course, for every child taken in that way from a fit father, there’s another child somewhere in the world who needs adoptive parents, but who goes without.  It’s the peculiar genius of the adoptive system to force adoption on children who don’t need it and deny parents to those who do.  Utah is particularly bad about doing so, but it is far from alone.

The Utah Supreme Court upheld the adoption of Wyatt’s child and said he couldn’t raise the issue of the Parental Kidnapping Prevention Act because he hadn’t done so in the trial court.  That’s an odd holding since Wyatt had been entirely prevented from appearing in the adoption matter to contest anything at all.

Perhaps worse, Utah imposed requirements on Wyatt in Virginia that Virginia laws did not.  Wyatt’s attorney explained:

“Utah law required that he fulfill Virginia’s requirements more quickly than Virginia itself requires — in this case, before the baby was born and before he knew there would be any contest over his custodial rights, let alone a contest in Utah,” the petition states. The Utah law also “fosters fraud and deception on an unmarried father by the mother or unscrupulous adoption agencies” but then burdens the victim with anticipating such acts, which raises “troubling due-process questions.”

In fact, Wyatt said he did timely assert his rights under Virginia law, as acknowledged by a judge in that state. The petition also argues that Virginia requires a birth mother to identify and provide notice of a pending adoption to a “reasonably ascertained” father and to wait three days before consenting to an adoption, which are rules Wyatt says Fahland violated.

But in Utah, the laws of other states are nullities, at least those relating to adoption.  When it comes to adoption, Utah operates far outside the boundaries of due process of law and the U.S. Superme Court should say so.  As more and more  mothers are learning, even the most persistent father can be beaten easily by the Beehive State’s adoption laws.  That may be good for unscrupulous mothers and Utah’s adoption industry, but it’s bad for everyone else, particularly fathers and their children.

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