South Carolina Adoption Law Blog : South Carolina Adoption Lawyer & Attorney : Russell Hall Law Firm : Termination of Parental Rights, Relinquishment

The text below is extracted  from www.justia.com and gives a great summary of a U.S. Supreme Court Case involving unwed fathers' rights and the putative father registry. After reading this case, I doubt the new South Carolina Responsible Father Registry will have any serious U.S. Constitutional challenges.

U.S. Supreme Court

Lehr v. Robertson, 463 U.S. 248 (1983)

Lehr v. Robertson

No. 81-1756

Argued December 7, 1982

Decided June 27, 1983

463 U.S. 248

Syllabus

Appellant is the putative father of a child born out of wedlock. Appellee mother of the child married another man (also an appellee) after the child was born. Subsequently, when the child was over two years old, appellees filed an adoption petition in the Ulster County, N.Y. Family Court, which entered an order of adoption. Appellant never supported the child or offered to marry appellee mother, did not enter his name in New York's "putative father registry," which would have entitled him to notice of the adoption proceeding, and was not in any of the classes of putative fathers who are entitled under New York law to receive notice of adoption proceedings. After the adoption proceeding was commenced, appellant filed a paternity petition in the Westchester County, N.Y. Family Court. Appellant learned of the pending adoption proceeding several months later. Shortly thereafter, his attorney sought a stay of the adoption proceeding pending the determination of the paternity action, but by that time the Ulster County Family Court had entered the adoption order. Appellant filed a petition to vacate the adoption order on the ground that it was obtained in violation of his rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Ulster County Family Court denied the petition, and both the Appellate Division of the New York Supreme Court and the New York Court of Appeals affirmed.

Held:

1. Appellant's rights under the Due Process Clause were not violated.

(a) Where an unwed father demonstrates a full commitment to the responsibilities of parenthood by "com[ing] forward to participate in the rearing of his child," Caban v. Mohammed, 441 U. S. 380, 441 U. S. 392, his interest in personal contact with his child acquires substantial protection under the Due Process Clause. But the mere existence of a biological link does not merit equivalent protection. If the natural father fails to grasp the opportunity to develop a relationship with his child, the Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie.

(b) Here, New York has adequately protected appellant's inchoate interest in assuming a responsible role in the future of his child. Under New York's special statutory scheme, the right to receive notice was completely within appellant's control. By mailing a postcard to the putative father registry, he could have guaranteed that he would receive notice of any adoption proceedings. The State's conclusion that a more open-ended notice requirement would merely complicate the adoption process, threaten the privacy interests of unwed mothers, create the risk of unnecessary controversy, and impair the desired finality of adoption decrees cannot be characterized as arbitrary. The Constitution does not require either the trial judge or a litigant to give special notice to nonparties who are presumptively capable of asserting and protecting their own rights.

2. Nor were appellant's rights under the Equal Protection Clause violated. Because he has never established a substantial relationship with his child, the New York statutes at issue did not operate to deny him equal protection. Cf. Quilloin v. Walcott, 434 U. S. 246. Appellee mother had a continuous custodial responsibility for the child, whereas appellant never established any custodial, personal, or financial relationship with the child. In such circumstances, the Equal Protection Clause does not prevent a State from according the two parents different legal rights. Caban v. Mohammed, supra, distinguished.

54 N.Y.2d 417, 430 N.E.2d 896, affirmed.

STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. WHITE, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined.

 Link to the Full Text of Case: http://supreme.justia.com/us/463/248/case.html

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Is John Doe dead?  Jenny Horne, a co-sponsor, of the new Responsible Father Registry law says yes in an article she wrote in The Summerville Journal Scene:

The Responsible Birthfather Registry Act will require fathers who wish to be notified of a termination of parental rights proceeding to take the affirmative step of registering with a confidential state database. This registry can then be checked by DSS [or the adoptive parents' lawyer in private adoptions] during the termination of parental rights (“TPR”) proceedings before a child is adopted into a permanent and loving home. This new registry does away with the antiquated practice of placing Joe Doe notices in the local newspapers.

If the mother of a child who is being placed for adoption is unmarried, the courts generally require the adoptive parents to serve any potential unknown father by adding John Doe as a defendant and serving John Doe via a newspaper in the county in which the child was conceived. This method of terminating the rights of a potential unknown father is fraught with legal uncertainty and a potential challenge by the father as illustrated in Brown v. Malloy; this case is a fact intensive case in which the father challenged the termination of his rights and the adoption of his child. All four issues raised by the father in the case concern the John Doe notice. 

The Responsible Father Registry should be in place on 1 January 2010 and will require a potential father to register with the Registry to ensure he preserves his parental rights; eliminating the need for John Doe notices.

The Responsible Father Registry law makes clear the only notice that the father is required  to receive concerning the mother's pregnancy is the sexual intercourse itself; his "sexual intercourse or his consent to artificial insemination with the biological mother is deemed to be notice to the unmarried biological father of the biological mother's pregnancy." In essence, if a man has sex with a woman and wants to preserve his parental rights to a child that may have been conceived from that intercourse, he must register with the Registry. This will eliminate any legal uncertainty concerning the father's rights and places the responsibility for preserving his rights squarely on his own shoulders. John Doe is dead.

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Termination of parental rights (TPR) is the process by which all future rights and responsiblities of the biological parents are terminated.

South Carolina Code lists eleven grounds for the termination of parental rights.

Two of the more frequently used grounds for the terminatin of parental rights in a private adoption action are:

1. The child has lived outside the home of either parent for a period of six months, and during that time the parent has wilfully failed to visit the child. The court may attach little or no weight to incidental visitations, but it must be shown that the parent was not prevented from visiting by the party having custody or by court order. The distance of the child's placement from the parent's home must be taken into consideration when determining the ability to visit, and;
2. The child has lived outside the home of either parent for a period of six months, and during that time the parent has wilfully failed to support the child. Failure to support means that the parent has failed to make a material contribution to the child's care. A material contribution consists of either financial contributions according to the parent's means or contributions of food, clothing, shelter, or other necessities for the care of the child according to the parent's means. The court may consider all relevant circumstances in determining whether or not the parent has wilfully failed to support the child, including requests for support by the custodian and the ability of the parent to provide support.

These two ground are independent of one another and only one needs to be shown for the judge to grant the termination of the parent's rights.

The judge has a great deal of discretion; even though you may be able to show that the biological parent has wilfully failed to visit or support the child, the judge may determine after reviewing all the facts that it is not in the best interest of the child to terminate the parent's rights.

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Under South Carolina's notice statute, the parental rights of an unmarried father who is required to be notified are terminated if he does not request a hearing within thirty days after receiving the required notice. Though the statute does not directly state the father's rights are to be terminated it does require the adoptive parents to including the following language in the notice—failure to file a response within thirty days of receiving notice constitutes consent to the adoption of the child and forfeiture of all rights and obligations of the person...with respect to the child. Because the statute requires the adoptive parents to include the language in the notice, South Carolina courts have implied that the father's rights have been forfeited and he has consented to the adoption of the child if he does not request a hearing within thirty days.

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