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March 12, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

I’ve written several times recently about laws that require unmarried fathers to “prove their bona fides” as parents before they’re accorded parental rights. Just yesterday, for example, I wrote about a proposed law in Ireland that would require an unmarried father to live with the mother of his child for a year prior to obtaining parental rights to the child. That of course places his rights in her hands. If she doesn’t want to cohabitate, or if she doesn’t want him to have parental rights, she can easily prevent it. Meanwhile or course, she’s denying the child a father and there’s nothing anyone on the planet can do about it. That the proposed law would actually be a significant improvement over existing law says a lot about the state of children’s access to their fathers in Ireland.

Something similar is going on here (New York Law Journal, 3/10/15). But whereas in Ireland the issue is whether unmarried fathers have parental rights at all, in New York it’s about whether they can stop the adoptions of their kids. And sure enough, much as happens in other jurisdictions, the unmarried father was required to prove that he took responsibility for a child the state placed in the possession of another person.

The law says that when a child is born out of wedlock and put with adoptive parents for more than six months after birth, the consent of the child's biological father is mandatory "only if such father shall have maintained substantial and continuous or repeated contact with the child."

Also, the father has to demonstrate he paid "a fair and reasonable sum" toward child support.

The twin boys were placed with a foster mother right after birth and the woman now has an adoption petition pending.

The Nassau County Department of Social Services petitioned to terminate the parental rights of the biological mother. The father, Keith J., was notified of the petition and responded that his consent was needed for an adoption.

At a hearing called by Nassau County Family Court Judge Ellen Greenberg (See Profile), the sides stipulated that Keith visited the children at least monthly, satisfying one part of the law.

But a Social Services employee testified that a support order was entered against Keith in February 2012, though he never paid the $50 monthly payments.

The employee said the county made $705 in payments to Keith's child support account after seizing a portion of his tax refund. She said he was still in arrears of $885.

Keith he was aware of the support order but never complied. He said that when he filed his tax return, he knew some of the money would be seized and put toward his support arrears.

One thing I would add that’s suspiciously absent from the article’s rendition of the facts is that Keith J. must have filed the requisite documents with the state’s putative father registry. We know that New York has such a registry because it was vetted by the U.S. Supreme Court in Lehr v. Robinson way back in the early 80s. Having somehow passed constitutional scrutiny, the registry still exists. And since Mr. J. “was notified of the petition” for adoption, that means he filed with the registry. Notification of an unmarried father is the whole point of the registry. If he files, he gets notice of the adoption proceeding; if he doesn’t, he’s not entitled to notice.

So clearly, one of the things Mr. J. did to prove his bona fides was to file the appropriate forms with the putative father registry.

That’s one hurdle cleared, but there are more in the State of New York. Once he’s notified, he has to prove that he’s maintained contact with the child and paid child support to a person he doesn’t know, i.e. the person with whom the state placed the child after it terminated the mother’s parental rights. He must do so despite not knowing whether the state will vouchsafe him the right to be a father to his child.

Those are two more hurdles Mr. J. had to clear; he cleared one, but not the other. He maintained contact with the child sufficient to meet his legal requirements, but, for reasons unexplained, he didn’t pay the foster mother enough in child support for his parental rights to spring to life. What he did do was file his tax return knowing that a portion of it would be taken by the state and given to the foster mother as child support. The trial court said this was sufficient; the appellate court said it wasn’t.

In short, as the law now stands in the State of New York, Keith J. was supposed to know – and comport his behavior with – the requirements of a law about which New York State judges disagree. Now you’d think that, if the judges don’t know the law, it’s a bit much to expect a man like Keith J. to know it, but that’s the essence of the ruling. And of course it’s not just the judges, but the lawyers in the case too. After all, they’re the ones who write the briefs to the courts and supply the judges with a substantial amount of knowledge on the case in question.

Just for good measure, the article notes that, prior to the ruling in Mr. J.’s case, there was no case law on the subject.

So how was Mr. J. supposed to know what actions did or didn’t comply with the law? It’s a good question, but whatever the answer may be, it’s crystal clear that New York law placed an impossible burden on him. His parental rights depended on him, a layperson, knowing the requirements of the law that lawyers and judges experienced in family law disagreed on.

And of course that all assumes he was able to pay what the state ordered him to pay. About that, the article is silent.

But what neither the judges nor the article ask is why Keith J.’s twins were with a foster parent in the first place. After all, the state knew about him because he’d filed with the putative father registry. So why didn’t the child welfare authorities contact him before placing his children with a stranger? We don’t know, but, as the Urban Institute informed us back in 2006, that just how CPS agencies roll. Despite the practice being illegal in the entire Ninth Circuit, child protective authorities routinely fail to even attempt to contact fathers once a child is taken from a mother. That’s what happened to Keith J.

And where, you might wonder, are the best interests of the child in all this? The answer: nowhere to be found. My guess is that that’s yet another hurdle Mr. J. would have had to clear had he not stumbled at the child support one. Surely, had he done so, the court, having granted him parental rights, would have then enquired into which adult would have been more beneficial to the child, the foster mother or the biological father.

The point being that New York places a good many obstacles in the path of an unmarried father on his way to being (or trying to be) a father to his child. Many of those obstacles are strategically hidden by the state. Does he know about the putative father registry? How much child support is enough? Is he able to pay any at all? How often must he visit with the child? For the most part New York is content to let unmarried fathers guess at what’s required and let them know after the fact whether or not they guessed correctly. In the balance hangs their rights to parent their children and their children’s rights to a relationship with their fathers.

And of course all of this is in the service of the most dubious of goals – forcing adoption on a child who may well not need it. In the process, the state denies adoptive parents to a child who has neither a father and nor a mother strongly desiring to care for it.

The State of New York, having opted for foster care over foster care might consider the statistics on how children do in each. On average, children placed in foster care do significantly worse than in even moderately abusive households with biological parents. But states tend to ignore matters like the increased levels of physical abuse, sexual abuse, drug abuse, emotional abuse and neglect suffered by children in foster care and their resulting emotional, psychological and educational problems.

That may be because the federal government pays well for children adopted out of foster care. Depending on whether Mr. J.’s twins were classified as special needs children or not, they were worth between $10,000 and $22,000 in federal largess to the state. That too is something not mentioned by either the article of the court, but it’s scarcely irrelevant.

But the state isn’t the only one to get paid. Whoever the foster mother will too. Here’s a piece I wrote last fall about the gravy train that is adoption in New York State. The foster mother who got Keith J.’s kids will receive subsidies from the city, state and federal governments for adopting them, and we’re not talking about chicken feed. She may get as much as $1,700 per month per child. And the kicker? She doesn’t even have to keep the children. Oh, she’s supposed to, but many “adoptive parents” simply place the kids in foster care and continue receiving the money.

Of course I can’t say that Keith J.’s children will meet that fate. But what I am saying is that the adoption industry in New York is a gravy train. The feds pay the state, the state, the feds and the city pay the mother and the adoption agency pays the lawyer. If the child ends back up in foster care, then the state pays the foster parent. The asset that stimulates so much cash flow? A child. It’s called trafficking in children. And if a loving parent, particularly one without much money, has to be pushed out of the way, everyone involved, plus the legislature and various judges, is more than willing to lend a hand.

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