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July 24, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

If the Alabama trial court’s and Supreme Court’s decisions to ignore fraud on the mother’s part in this case weren’t bad enough, their decisions to refuse to consider the father’s constitutional claims were every bit as bad. Recall from yesterday’s piece that the mother had given birth in secret and told the father three days afterward that the child had lived but a very short time after delivery. She even forged a birth certificate so saying. All agreed that she did so for the sole purpose of deceiving the father into not filing the necessary notice with the Alabama Putative Father Registry. The facts of the matter aren’t disputed, but for reasons that remain mysterious, her procurement by fraud of his non-registration got a pass from both courts.

Now, according to U.S. Supreme Court precedent, the father could assert the claim that, as applied to him under the facts of his case, Alabama’s PFR law was unconstitutional. That is, under those facts, depriving him of the right to contest the adoption of his child was unconstitutional. Various Supreme Court cases have held that unmarried fathers have a constitutionally protected liberty interest in caring for their children. That’s guaranteed to them by the due process clause of the 14th Amendment. However, a single father must do certain things in order to preserve his rights. The U.S. Supreme Court of Caban vs. Mohammed held that,

Where an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause.

None of the three courts that ruled on Daniel Williams’ case questioned whether he had done so. He had. He’d lived with the mother and was previously married to her. He at all times indicated his excitement about his child-to-be and his intention to raise him. He bought necessities for the child and paid for some of the mother’s pre-natal visits. In short, Williams had “demonstrate[d] a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child.”

Plus, the earliest Supreme Court case deciding the merits of a putative father registry was that of Lehr v. Robertson. It ruled that New York’s PFR passed constitutional muster, but made one important thing clear:

"There is no suggestion in the record that [the mother] engaged in fraudulent practices that led appellant not to protect his rights."

The dissent in Williams’ case made the point clearly.

Lehr unequivocally does not support the proposition that a putative-father registry statute may be applied to further a fraud against a father, which is what happened in the present case.

In short, Lehr strongly suggests that, because the mother of William’s child had engaged in fraud for the purpose of inducing him to not file with Alabama’s PFR, preventing him from contesting his son’s adoption would violate his 14th Amendment right to due process of law. Indeed, so finding looks like a legal slam dunk.

So, what’s a court to do, particularly one that’s obviously determined to deprive a father of his child? The trial court and the Supreme Court held that Williams hadn’t raised the issue of constitutionality and therefore was foreclosed from doing so. That way, neither court had to address the uncomfortable fact that allowing this adoption to go forward would almost certainly violate the U.S. Constitution. The Court of Appeals disagreed as did the vigorous dissent from the Supreme Court’s ruling. That wasn’t surprising because, according to the Supreme Court majority’s own legal citations, Williams had done exactly that.

Keep in mind that, generally speaking, issues of constitutionality may be raised at any time during the course of litigation. That’s because (a) constitutionality is of vital importance in every case and (b) the issue of whether a law is constitutional as applied in a particular case (as opposed to in general), may arise at any time depending on what facts are adduced at trial. Here is what the majority in Williams’ case said about raising a constitutionality issue:

If a party makes a constitutional argument to the trial court before a decision in the case is rendered, the constitutional issue is preserved for appellate review. See Alabama Power Co. v. Capps, 519 So. 2d 1328, 1330 (Ala. 1988)(holding that if a party raises a constitutional issue "at the pleading stage, during the taking of the evidence, or even during the instructions to the jury, the trial court [is] presented with the constitutional arguments…

In other words, it’s not hard to raise constitutional issues. A party can do so pretty much any time.

Which Williams did, as the dissent made clear.

In addition to the foregoing, at trial, in the face of a court hostile to his even presenting his constitutional arguments, the father

(1) specifically invoked both procedural and substantive due process "'under these facts,'"

(2) specifically referenced the "'state statute'" being applied to him,

(3) specifically referenced and made arguments as to pertinent precedents, including Lehr, supra, and

(4) specifically argued that his "'relationship acquire[d] ... substantial protection under the due process clause of the Fourteenth Amendment to the United States [Constitution].'"

Not only did Williams raise those constitutional issues, his attorney argued them to the trial court. The majority quotes the transcript of his doing so. And not only were the issues raised and argued, the trial court decided them saying,

"I believe –- I believe the U.S. Supreme Court's decision in Lehr can be distinguished from the facts in this case. "I do believe that and conclude that [the father's] equal protection rights, substantive and procedural due process rights of the Fourteenth Amendment have been and are adequately protected and have been properly addressed by this Court.

So, according to the precedents the majority cited, its ruling that Williams failed to preserve his constitutional arguments is clearly wrong.

As we see so often in adoption cases, even good laws avail fathers nothing in courts in which judges have predetermined the outcome and will go to any lengths to reach the conclusion they desire. That conclusion seems invariably to deprive fit fathers of their children and children of their fathers. Indeed, as here and elsewhere, courts routinely turn a blind eye to the most blatant fraud by mothers, adoptive parents and adoption agencies. They do so in order to force adoption on children who don’t need to be adopted because they have fit fathers ready and willing to care for them. In so doing, they deprive other children, who have no parents, of good adoptive ones.

There is a simpler, cheaper and fairer way to do this. Every father deserves the right to make his case why he should be able to care for his child. He has the right and courts must give him the opportunity. If he consents to the adoption, fine. If he doesn’t, he must prove that he is fit to care for the child properly. If he can’t prove that, then the adoption can go forward. If he can prove it, the child is his to love and raise as against all others.

The law has twisted itself into knots for the sole purpose of cutting fathers out of the lives of their children. But children need fathers and most fathers want their kids. Putative father registries need to be scrapped and laws passed to replace them that preserve fathers’ rights to children and children’s rights to their fathers.

 

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National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

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#U.S.Constitution, #DueProcessofLaw, #14thAmendment, #adoption, #fraud

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