Syracuse father loses fight / Court ruling in four-year-old adoption case urges Legislature to clarify law
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Syracuse father loses fight / Court ruling in four-year-old adoption
case urges Legislature to clarify law
Saturday, December 13, 2008
By JESSE FRUHWIRTH
Standard-Examiner Davis Bureau
(5 comments)
SYRACUSE -- A father's quest to reunite with his son has apparently
come to an end -- the Utah Court of Appeals has ruled against the man
whose son was placed for adoption against his wishes four years ago.
One judge noted, however, that the law cited to terminate Nikolas
Thurnwald's paternity rights is vague, illusory, highly problematic
and invites fabrication.
He urged the Legislature to clarify the law.
"... (S)evering an unmarried biological father's parental rights based
on such technicalities serves to reinforce traditional notions about
gender and childrearing -- i.e., that women are biologically better
suited for raising children," Judge James Z. Davis wrote in his
concurring opinion released Thursday.
"(Those) notions are antiquated and harmful to both men and women."
The technicality to which Davis referred is a state law that requires
an unmarried biological father who wishes to parent his child to file
within at least one business day of the child's birth a sworn
affidavit that "set(s) forth his plans for care of the child."
The law states an unmarried father must strictly comply with that
requirement, meaning almost good enough is not good enough.
There is no legal definition of what a "plan for care" is, and even
though Thurnwald had an attorney write a multipage affidavit, the
court ruled that the affidavit did not contain a plan.
Thurnwald is planning to end his quest for his son, for now.
"I've done everything in my power, under the sun, that anybody can do
as far as fighting this out, fighting to be his father and raising my
child," he said.
"Whatever happened was completely out of my control, and I did
everything -- everything -- I could. This is a sad situation. I'm
going to wait for the day he's in my arms, united with me -- hopefully
sooner rather than later."
Thurnwald plans to place his name on Utah's Mutual-Consent Voluntary
Adoption Registry, which one day might help his son contact him.
In the absence of specific details written by legislators, the two
other appeals judges who heard the case, Russell W. Bench and Carolyn
B. McHugh, wrote that a father must state in his sworn affidavit at
least "that he has a source of income and identify who will care for
the child while he is working to earn that income."
There is no requirement under Utah law that an unmarried mother detail
a plan to care for her child or risk losing custody.
Thurnwald's attorney, Dan Drage, said Utah adoption law seems to
assume all unmarried fathers want the child placed for adoption to
avoid the heavy burden of child support payments.
He said when the occasional responsible and interested unmarried
father comes along, his rights are often trounced.
"You've got more of a protectable interest when someone wants to
repossess a vehicle or collect on a debt. They have to give you notice
and give you a hearing, and all you're talking about is a television
or an automobile," he said.
"But we're talking about a child here."
Drage said the court acknowledged that it was obvious Thurnwald
expressed his desire to be a father at the time of his son's birth.
"He filed (an affidavit), he has fought hard, and there's no doubt
what his intention all along was: 'I want to be the dad,' " Drage
said.
"Now the court is saying, 'We know what your intention was, but you
didn't put it on paper.' We have a piece of paper, but it doesn't say
the magic words, and so his true intention is overlooked."
Utah Sen. Greg Bell, R-Fruit Heights, an attorney, recalled
Thurnwald's victory before the Utah Supreme Court in 2007.
In that battle, Thurnwald convinced the state's highest court that the
Constitution requires that his paternity affidavit be accepted even
though he missed the statutory 24-hour post-birth deadline.
Thurnwald's child was placed for adoption on a Sunday before Labor
Day, so the earliest he could file his affidavit with the court was
Tuesday.
The Utah Supreme Court changed the law from a 24-hour post-birth
deadline to a one-business-day deadline on equal protection grounds.
"We really want to balance the legitimate interests of the father, the
mother and the adoptive parents -- and the child," Bell said. "And we
don't want legitimate interests defeated by a technicality."
At the center of the case is a child who has spent more than four
years with an adoptive family and knows no other parents. The court
calls him Baby Boy Doe.
Had the court decided in Thurnwald's favor, an analysis of the best
interests of the child may have been performed for the first time in
the case.
Adam Pertman, of the Evan B. Donaldson Adoption Institute, said that's
too late to consider what's best for children.
He said he's unfamiliar with the Thurnwald case, so he could not
comment on the merits of the complaint, but said men are often treated
unfairly in adoption law.
"These laws can cause as many problems as they resolve," he said.
"These laws are not well-understood and they are not well-publicized,
but then men are expected to have followed them really well."
Pertman also said a case such as Thurnwald's should be expedited so
that it doesn't take four years to decide.
Davis acknowledged that not knowing the "magic words," as Drage called
them, put Thurnwald in an impossible bind.
"The lead opinion clearly observes that N.T.'s petitions are utterly
deficient in 'setting forth his plans for care of the child,' " Davis
wrote.
"It is entirely unclear, however, precisely what N.T. could have -- or
should have -- done differently that would have yielded a different
result in this case."
J.
This article is longer than the majority opinion issued by the Utah
Court of Appeals, which you can read here:
http://www.utcourts.gov/opinions/appopin/babyboydoe121108.pdf
After pointing out how Thurnwald's initial filing was defective ( a
point I'm sure he'll be discussing with his attorney, if he hasn't
already) the court dismissed the contents of the documents this way:
Second, regardless of which document is considered, N.T. fails to set
forth any plan for the care of the child. The
language in both documents is so lacking in specifics regarding how
N.T. will care for the child that neither document strictly complies
with the statute. On appeal, N.T. claims that the pleading found in
both versions of the document--requesting that he "be awarded the
permanent care, custody, and control of the
minor child . . . and assume all financial responsibilities"--
adequately sets forth his plan. We disagree. Although not
expressly stated in the Utah Adoption Act, a plan for the care of a
child logically must specify, at a minimum, how the putative father
will financially care for the child and provide some glimpse into how
he will meet daily care-giving
responsibilities.2 N.T.'s petitions are utterly deficient in "setting
forth his plans for care of the child."
In footnote 2. the court wrote:
2While this may not require a detailed, day-to-day plan for the
child's care, we believe the legislature intended that the putative
father at least specify that he has a source of income and identify
who will care for the child while he is working to earn that income.
After reading the concurring judge's opinion, I was surprised that he
didn't simply dissent. He obviously disagrees with the outcome and
the legitimacy of the statute.
Words normally do not fail me, but in this case, all I can do is
scream in rage. This man has been thoroughly cheated out of a life
with his son by a piece of draconian legislation that is, in my
opinion, far too vague in its requirements to permit compliance or
survive a proper constitutional challenge. After four years, I can
understand how he could decide to end the process, both for himself
and his son. He is to be admired for his efforts. The State of Utah
should be condemned by every humane individual for doing this to them.
J.