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February 15, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Readers, kindly compare this adoption case involving an unmarried mother with similar adoption cases I’ve written about involving unmarried fathers. In doing so, compare the ease with which an unmarried father is removed from the adoption picture and the difficulty with which this mother is. The case offers a stark lesson in the inequality of rights enjoyed by mothers and fathers.

C.L.S. is the mother of a newborn, C.C.S. From 2008 forward, C.L.S. and her five children lived with J.G. Although he was not the father of any of her children, J.G. completely supported C.L.S. and all her kids. C.L.S. played the role of stay-at-home mother. In 2013, C.L.S. became pregnant by another man, S.L. and in March of 2014, J.G. told C.L.S. that he didn’t want the new baby to be part of the household. She then sought the services of an adoption agency, Gentle Care, that located adoptive parents for the baby while C.L.S. was still pregnant.

Having told Gentle Care that she was placing the child for adoption and signed the necessary documents, at some point, C.L.S. decided that she wanted to renege on her agreement and cancel the adoption. C.L.S. took the legal stance that she was obligated under the contract she’d signed with them and a lawsuit ensued between C.L.S. who sought to void the contract and Gentle Care that wanted to enforce it. C.L.S.’s legal claim was that her agreement to have her child adopted was procured by fraud or duress by Gentle Care and/or J.G.

Here is how the Ohio Supreme Court described C.L.S.’s interactions with Gentle Care:

On March 27, 2014, C.L.S. met with a Gentle Care social worker, Kelly Schumaker, at a Bob Evans restaurant. At the meeting, C.L.S. was provided with pamphlets and packets of information about adoption including information about birth parents’ rights and options. Alternatives to surrender were also discussed as well as pre and post-adoption options, temporary custody, and foster care. After the meeting, C.L.S. texted Ms. Schumaker and Ms. Schumaker texted that "it's completely up to you, it has to be your decision," to which C.L.S. responded later that night, "I know it’s late but I want you to know I'm a hundred percent choosing adoption."

C.L.S. signed papers acknowledging that she knew her rights and obligations. She also selected a couple to adopt her child before giving birth to the child on March 31, 2014. C.L.S. did not request to see the child at the hospital and left the hospital the next day on April 1, 2014.

On April 4, 2014, after waiting one day longer than the statutorily-required 72 hours, C.L.S. signed the permanent surrender agreement. C.L.S. made no request for counseling and affirmatively stated that no one was forcing her to go through with the adoption. The permanent surrender agreement also stated that, by signing, she was given the opportunity to ask questions and that she was surrendering the child voluntarily. C.L.S. also signed an "Affidavit of Relinquishment" which stated, "I have the right to seek the counsel of any attorney * * * I have the absolute right to refuse to place my child for adoption."…

Before the trial court, C.L.S. claimed the permanent surrender was made involuntarily, as a result of duress, undue influence, misrepresentations, and failure of Gentle Care to provide the necessary information for C.L.S. to give a valid consent.

The trial court heard many days of testimony. The permanent surrender agreement, the affidavit of relinquishment, and the recorded colloquy of the permanent surrender were all read into the record. The trial court also heard testimony from C.L.S. and from a witness who testified about the personality of C.L.S. The court also heard testimony from employees of Gentle Care and from the child's biological father…

The trial court concluded that C.L.S. was not sufficiently credible and therefore did not meet her burden of proof for granting the requested habeas corpus. The trial court concluded, after examining the law and the evidence presented in her case-in-chief, that C.L.S. really had a choice and the execution of the permanent surrender was the product of her freedom of exercising her will…

The central issue in this case is whether the permanent surrender agreement is valid. A permanent surrender agreement constitutes a valid contract if it is accepted and voluntarily entered into without fraud or misrepresentation…. [I]f valid consent is lacking, the adoption decree violates due process of law, and giving effect to the decree then violates the public policy of Ohio.

What we have here is an adoption agency that’s required by law to bend over backwards to ensure that this mother’s choice to give up her child for adoption was freely given. Ms. Schumacher met in person with her, provided her with information and made it clear that the matter was entirely up to C.L.S. C.L.S. signed numerous forms declaring that adoption was her wish. She had the right to be advised by a lawyer and to see a counsellor, both of which she waived.

The law was similarly solicitous of C.L.S. In order for the adoption to be valid, a judge had to hear days of testimony and to decide whether C.L.S. “really had a choice” in giving up her child, whether her consent to do so was “valid” and “voluntarily entered into.” If not, the attempted adoption would have violated due process of law and been void as in violation of the public policy of the State of Ohio.

Now consider what happens in the same state if an unmarried father attempts to halt the adoption of his child. To make the point, I’ll alter the facts of the case slightly. Let’s pretend that J.G. the man who was supporting C.L.S. and all her children had fathered the new baby, C.C.S. And let’s also pretend that he wanted the child and finally that he didn’t know about Ohio’s putative father registry and therefore didn’t file the proper form with it to preserve his parental rights.

How would Ohio have treated him when C.L.S. relinquished his child for adoption? Not a bit like it treated her. Would Ms. Schumacher have invited him to a restaurant and explained his rights and obligations to him? No. Would she have presented him with informative pamphlets so he’d understand his parental rights in adoption court? No. Would she have made it clear to him that he could stop the adoption at any time, or that the matter was “entirely up to him? No. If he tried to stop the adoption in court, would the judge have been required to decide whether he “really had a choice” about the adoption? No. Would an appellate court have enquired into whether his “consent” was “valid” and voided the adoption if it weren’t? Again, no.

In fact, the only consideration J.G. would have received from the court and the adoption agency would have consisted of a single question, “Has the father filed the proper form with the state’s putative father registry?” Since the answer to that question would have been “No,” J.G. and his rights would have been given no further notice.

And keep in mind that the above is true despite the fact that J.G. had lived with C.S.L. for five years prior to her most recent pregnancy and been the sole support of her and her other children.

The comparison between how unmarried mothers and unmarried fathers are treated in states with putative father registries is something to behold. The pretense that the two are treated at all equally is absurd.  Unmarried fathers are required to (a) know about the registry that’s a closely guarded secret in most states, (b) know the legal effects of failing to register and (c) register within the time required by statute. Unmarried mothers, by contrast, must do none of that and are given great deference by adoption agencies, courts and the law.

Such is the state of fathers’ parental rights in the adoption arena.

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