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From conception to 24 hours after birth seems like a long time to file paternity papers, but a father may not act to protect his rights if he’s told the baby is dead.
Wyoming father Cody O’Dea, who lost his case before the Utah Supreme Court (pdf) in 2009, was told by the mother of his daughter that she had miscarried. O’Dea lost contact with her, and it wasn’t until months later that he heard from a friend that the mother may have lied. He says he quickly protected his rights in Utah and Wyoming, but the Supreme Court ruled that he didn’t act fast enough to prevent the adoption in Utah.
“He’s an amazing father,” says O’Dea’s wife, Tanya O’Dea, whom he married six months after his child was placed for adoption. They are now raising two children together. “There’s this little girl out there who has a sister [and step-brother] who she doesn’t even know. … Her grandmother passed away before she ever got to see a picture of her.” Cody O’Dea runs a Website, BabySelling.com, which provides documents and details of his case.
Dan Drage, an Ogden attorney who represents adoptive parents and also putative fathers who want to stop adoptions—including O’Dea and Shaud—says Utah’s laws work in “99 percent” of adoption cases. But in those remaining cases, there are many capable and interested unmarried fathers who are excluded, he says.
Even Utah fathers struggle to comply with the state’s laws. Nikolas Thurnwald, of Clinton, was led to believe throughout the pregnancy that he and his baby’s mother would raise their child together. They had a baby shower, and he considered joining the military to support his family. Less than a month before the birth on Sept. 4, 2004, he learned that the mother was considering adoption. Soon after, he hired an attorney and filed his paperwork with the court on Tuesday, the first day the courts were open after the Saturday birth, Monday being Labor Day.
Utah law states without exception, however, that fathers have only 24 hours after the birth of their child to file for paternity, so the judge ruled that he was too late. The Utah Supreme Court sided with Thurnwald (pdf) on that dispute, saying the state’s interest in quick adoptions is not sufficient to withhold the one-day post-birth deadline for fathers whose children are born on weekends and holidays. The court changed the law, saying fathers must be provided at least one day post-birth during which the court is actually open.
Despite that victory, which modestly expanded putative-fathers’ rights, Thurnwald still lost his child. After proving that his petition was submitted in time, the Utah Court of Appeals later ruled his plan for care was deficient (pdf) because it was submitted without his signature and thus was not a sworn affidavit, as required by law. The court also said Thurnwald’s plan was not detailed enough. That’s what provoked Judge Davis, in a concurring opinion, to write that fathers like Thurnwald are in “an impossible bind” because while the law says fathers must adhere to the rules with “strict compliance,” the law fails to explain what level of detail is adequate.
“At a minimum, [the plan for care must explain] how the putative father will financially care for the child and provide some glimpse into how he will meet daily care-giving responsibilities,” the majority wrote. That’s helpful guidance to attorneys representing fathers now, but it didn’t help Thurnwald, who was not given a second chance to “say the magic words,” as Drage, his attorney, puts it. After a four-year legal battle, Thurnwald was finished. “I’ve done everything … that anybody could do as far as fighting this out to be his father and raising my child,” Thurnwald said in December 2008, shortly after his final court loss. “Whatever happened was completely out of my control.”
In a 2010 case before the Utah Court of Appeals, the court rejected a lower court’s ruling that a putative father failed to state an adequate plan for care of the child because he had not written what he would do if he were deported. The Court of Appeals nevertheless rejected the father’s plan as inadequate because, regardless of whether he actually is willing or not, that father did not say that he is willing to pay child support in his sworn affidavit.
“[Lawmakers and the courts] are putting policy, procedure, form and state’s interest before the inherent and constitutional right to be a father,” Drage says.
Unmarried fathers are also not protected from other people’s errors even if the third party is the state of Utah itself—although that issue is currently on appeal.
After receiving a note Dec. 16, 2009, Shaud hired Drage on Jan. 7. By Jan. 12, Drage had filed the necessary forms with the court. All a mother has to do is notify the father that she will be in Utah, and the 20-day countdown for him to comply with Utah’s laws begins. In Shaud’s case, the baby was born after the 20 days, and thus the race continued. Drage first faxed, then mailed the other necessary forms to the Utah Office of Vital Records and Statistics on Jan. 13—two days before the birth. Utah law, however, says a father’s paternity declaration “is considered filed when it is entered into a database,” which is accessible only to state employees. Shaud’s declaration wasn’t entered into the database by office staff until Jan. 20. Too late—the mother had consented to adoption on Jan. 19.
“It’s a race,” Drage says, “and they make the state of Utah the gatekeeper to the finish line.”
Jenkins, who represents A Act of Love Adoption Agency, which placed Shaud’s child, declined to comment on Shaud’s case, citing confidentiality issues in adoption cases and the ongoing litigation.
Shaud is in the process of appealing. Drage argues that Shaud’s constitutional right to his child should protect him from state errors.
Barry Nangle, director of the Center for Health Data—of which the Office of Vital Records and Statistics is a division—declined to discuss Shaud’s case because it is still active; some of his employees were subpoenaed to testify in the case. He acknowledged, however, that the office has a policy that all mail should be processed on the day it is received.
Drage said if Shaud fails in the Utah court system, the case might test the constitutionality of Utah’s adoption laws on a federal level, which hasn’t been done recently.
“It’s just wrong from a layman’s perspective, but jurisdictional requirements … are something you learn in the first semester of law school,” he says.
Jurisdictional requirements refer to which state’s court has the duty of settling a particular dispute, like in the case of John Wyatt, which has been featured on Dr. Phil and inspired an April editorial in The Washington Post that slammed Utah laws (click here for the story, here for the editorial). The Wyatt case pits Virginia courts against Utah courts. The unique aspect of Wyatt’s case is that the mother of his child has never even been to Utah—a Utah adoption agency came to her.
(Go to the next page for a video interview with Wyatt)