January 4, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
I’ve written a lot about the Rob Manzanares case. He’s the father who’s fought an almost nine-year battle against the mother of his child and two other adults who attempted to force its adoption. He’s fought in two states, Utah and Colorado and, if I am any judge, he’s finally about to win custody of his child. By the time that happens, his child will be nine years old. Every second of her life will have been spent as the subject of litigation.
I’m as pleased as I can be for Rob. How that man has fought for so long and prevailed is a testament to his strength and persistence. But the legal system has performed disgracefully in his case. The girl should have been handed over to him long, long ago and, if his ex or the would-be adoptive parents wanted to continue asserting their rights, it should have been up to them to have done so. But the child would have been where she should have been all along.
Still, I’m glad for Rob and for justice, however belated.
I’m not so confident about this case, however (Elle, 12/30/16). The surprisingly excellent article by Sarah Yahr Tucker spells out the outrage that is Utah law on the rights of single fathers in excruciating detail.
It seems Jose Vargas had a daughter by a woman who’s a drug addict. She looks to have been an incompetent and probably dangerous mother, but Vargas worked hard to provide for his daughter (“M”) and did as much hands-on care as he was allowed.
Jose was actively involved in caring for his baby girl from the day she was born. He recalls driving mother and baby home from the hospital, amazed at how M looked exactly like photos of him as a baby. "I could not let her leave my hands," Jose writes in an email. "I just stayed with her and my baby's mom, changing her and feeding her. I'd wake up next to them and fall asleep with them."
Throughout her infancy, M spent most weekends at Jose's apartment. He bought diapers, clothes, and other baby supplies, careful not to provide cash that could be used to fuel her mother's struggles with substance abuse. He describes himself, then and now, as "completely focused" on his baby girl and thrilled to be a father.
But Vargas wasn’t married to his daughter’s mother, so, when her drug abuse reared its ugly head and she turned to various other criminal behavior, the state stepped in. The Utah Division of Child and Family Services took M from Mom and, instead of handing her over to her father, placed her with foster parents. In due course, they began proceedings to terminate the mother’s parental rights and to force adoption on a child who plainly doesn’t need it.
Now, at this point, it’s worth pointing out that, in the Ninth federal circuit, it’s a violation of a father’s civil rights, for a state child protective agency to ignore him as a possible placement for his child once it’s taken from Mom. Utah isn’t in the Ninth Circuit, but the case could easily constitute persuasive precedent to extend its ruling there. I would encourage Vargas’s lawyer to consider filing a suit for damages in federal court.
Whatever happens, Vargas has scraped together the money to try to stop his daughter’s adoption by strangers. But, as we know, the road to paternal rights for single dads in Utah is a minefield, a fact the Elle piece makes clear.
He needed to file a Voluntary Declaration of Paternity, a document that creates a legal relationship between an unmarried father and his child. Jose made two unsuccessful attempts to file the declaration at Utah County's Vital Records office. (The form must be signed and witnessed by both parents, and M's mother was hard to pin down.)
Yes, his ability to simply file a form with the appropriate state agency is entirely under the control of the mother. If she doesn’t want him to file it, it doesn’t get filed. His rights, her decision.
Because Jose was not considered M's father, he also did not qualify for a public defender. In order to win the right to see his daughter, he would have to hire a private attorney, and it took him until December to gather the necessary funds to do so. Just over six months after M's removal from her mother's home, Jose was able to file a Petition for Paternity and Custody.
But at a juvenile court hearing that month, the judge announced a "permanency goal": M would be placed for adoption. Jose was sitting in the same room, listening helplessly as his daughter's future was decided.
Of course if Utah had really cared about “permanency,” it would have handed the baby to Vargas and let him take up his parental rights. But the state isn’t interested in permanency, it’s interested in adoptions. There’s a large adoption industry there that makes lots of money on completed adoptions. That’s why single mothers come from all over the country to place their children for adoption. It’s not as if other states don’t have adoption laws and courts; they do. But mothers often travel thousands of miles just to place their child for adoption in Utah. Why? Because no state in the nation is as anti-father as is Utah. No other state erects so many and such hard-to-understand barriers to a single father getting custody of his child. Remember, it’s taken Rob Manzanares nine years and he’s not finished yet.
Jose Vargas is the victim of circumstances that family law attorney and part-time public defender Caleb Proulx says he has seen over and over in Utah. (Proulx is representing Jose Vargas in the custody case as a private attorney.) When a child is removed from an unmarried mother, the state will often work aggressively to place that child with an adoptive family rather than with her own father. "Unlike a lot of other areas of law where there's a fair amount of discretion and there's a fair amount of forgiveness," he says, "if you're an unmarried biological father and you miss a step, no matter how insignificant, if the court doesn't really think you ought to be in the child's life, you're gone."
The "steps" Proulx is referring to are the many requirements and documents involved in establishing paternity in Utah. Biological fathers may take legal action (often involving genetic testing) or file the Voluntary Declaration, but they must also file court petitions and notices of those petitions; they must serve documents to various people and submit an extremely detailed affidavit outlining their caregiving plans. Even married fathers have been forced to go to court if mothers seek adoption without their knowledge or consent. Needless to say, it is almost impossible for an unmarried father to win custody or even visitation rights without the help of an attorney.
That of course is something many single dads can’t afford.
I’ll write more about his case next time.