This case concerns the opposition of a biological father to the private adoption of his newborn child. The issue of notice invokes a due process question with regard to the father's opposition to the adoption, the resolution of which highlights the tension between the notice provisions of the Louisiana Children's Code and the Legislature's desire for prompt adoptions so that adopted children might have a permanent and stable home as early as possible. We are additionally called upon to determine
In November of 1998, A.S.
When A.S. left, she rekindled a relationship with F.H., III. Earlier she and F.H. had lived together and a child was born of that relationship. Despite this reunion, the record shows that for a brief time in either late June or early July 1999, A.S. returned to live with A.E. because F.H. had struck her in the face. During this time, A.E. bought A.S. clothes and continued to provide her with food and shelter. Without telling A.E. where she was going, A.S. then left again and returned to live with F.H. in Gretna, Louisiana.
On October 7, 1999, almost three weeks earlier than anticipated, A.S. gave birth to a male child, M.S., at Meadowcrest Hospital in Jefferson Parish. A.S. listed F.H. as the baby's father on the birth certificate. Two days later, on October 9, 1999, F.H. executed a voluntary act of surrender in which he informally acknowledged paternity of the infant child and surrendered the child to Noel E. Vargas, an attorney who represented the prospective adoptive parent, A.J.F., and accepted the child's surrender on her behalf. On October 12, 1999, five days after the child's birth, A.S. also executed an act of surrender in which she attested that F.H. was the child's natural father, and then surrendered the child to Vargas, who accepted the surrender on behalf of the prospective adoptive parent. F.H. and A.S.'s acts of surrender, the supporting affidavits from the attorneys for the surrendering parties and the mental health counselor who counseled the parties together with the parties' genetic histories, as required by LA. CHILD. CODE arts. 1120-1121; 1124-1127, were recorded in Jefferson Parish on October 12, 1999. On the day that A.S. executed the act of surrender, the record shows that Vargas gave a $4,000 check to either F.H. or A.S. The record is unclear about who actually received it; nevertheless, it is undisputed that the check was made out to A.S. The record further shows that F.H. and A.S. used these proceeds to purchase an automobile, pay a past due telephone bill, and pay for F.H.'s traffic-related fines. This payment was in addition to other payments that A.J.F. made now and then during A.S.'s pregnancy.
Approximately one week after M.S.'s birth, A.S.'s grandmother told A.E. of the
On November 22, 1999, Terri Miles, A.E.'s attorney, enrolled as counsel of record in Jefferson Parish Juvenile Court and requested notice pursuant to LA.CODE CIV. PROC. art. 1913 (notice of signing of judgment), 1914 (notice of rendition of interlocutory order), and 1572 (written request for notice of trial). Pursuant to that request, the trial testimony reflects that on December 7, 1999, representative service of the notice of surrender was purportedly made by a process server leaving the notice with the receptionist for A.E.'s attorney at the law office.
The record preponderates that the first time A.E.'s attorney saw this notice was on January 26, 2000, when she received a faxed copy from the juvenile court. As the trial court noted, no opposition was filed within the fifteen (15) days immediately following the purported service of the notice in December.
At some point shortly after A.E. entered the picture, all of the parties' attorneys agreed that their clients would submit to DNA testing and that no pleadings requesting a hearing on the adoption or an opposition to the adoption would be forthcoming until the results of the DNA testing were received. ReliaGene Technologies, Inc. conducted DNA parentage testing on December 10, 1999 (A.E.), December 24, 1999 (M.S.), and December 27, 1999 (A.S. and F.H.). On January 26, 2000, the test results were released which showed conclusively that A.E., not F.H., was M.S.'s father.
The juvenile court consolidated all of the procedural issues and took evidence on February 7, 2000. At the beginning of the hearing, the attorneys for A.E., A.S., and A.J.F. stipulated that they agreed in December that no one would file pleadings or set the matter for hearing until the paternity issue was settled by DNA evidence. In addition, the juvenile court heard testimony from various office personnel and attorneys at the suite of offices occupied by A.E.'s attorney, as well as Charles Trapani, the process server for the juvenile court who purportedly affected representative service on A.E.'s attorney's secretary. The juvenile court judge granted A.E.'s declinatory exception, finding that service was neither properly made on A.E.'s attorney nor her designated secretary as required by LA.CODE CIV. PROC. art. 1235.
After conducting a hearing on February 14 and 15, 2000, the juvenile court issued extensive written reasons in which she granted A.E.'s opposition to the adoption and awarded custody of the minor child to him. The juvenile court found that A.E. established his parental rights by executing and publicly recording an authentic act of acknowledgment, by acknowledging his paternity in open court, and by showing through DNA testing that he was M.S.'s father. The juvenile court then found that A.E. proved that he had "manifested a substantial commitment to his parental responsibilities" as required in LA. CHILD. CODE art. 1138(A), (B). In reaching this conclusion, the juvenile court stated that A.E. provided food, clothing, and shelter to A.S. during the early and middle months of her pregnancy, that he purchased baby furniture and other necessary items in preparation for the birth, that he established a living area for the baby in his room, and that he maintained contact with A.S.'s grandmother about the progress of A.S.'s pregnancy. The juvenile court made a factual finding that A.S. "made [A.E.] aware that she feared for her safety with [F.H.] if [A.E.] came around her. [A.E.] believed this to be true, as he was well familiar with [F.H.]. Nevertheless, [A.E.] did what he could to establish his commitment to his parental responsibilities." The juvenile court further found that A.E. immediately sought legal advice
In contrast to A.E.'s efforts, the juvenile court found that A.S. thwarted A.E.'s ability to establish his commitment to his parental responsibilities and fraudulently surrendered M.S. to the prospective adoptive parent. The juvenile court emphasized that A.S. failed to name A.E. in the act of surrender and did not inform her attorney or the attorney for the prospective adoptive parent that she had an intimate relationship with a man other than F.H. at the time of conception. She further stated that it caused her great concern that A.S. received a $4,000 payment on the same day that she executed the surrender of M.S. and that the money was used to purchase an automobile and to pay F.H.'s outstanding legal fines, clearly expenses that are not reimbursable under LA. CHILD. CODE art. 1223 et seq. or LA.REV. STAT. 14:286 (sale of minor children). Moreover, the juvenile court found that F.H. willingly participated in this fraud even though he knew that A.S. lived with A.E. during the time of conception and that she strongly suspected that F.H. participated in this fraud because of the monetary gain he received as a result of the adoptive parent's $4,000 payment at the time of surrender.
In its analysis, the juvenile court further resolved conflicting testimony about A.E.'s commitment to support M.S. Although there was testimony that A.E. had not consistently supported two other children he fathered, the juvenile court resolved these differences in A.E.'s favor, finding countervailing evidence that he provided some monetary support, that he supplemented these amounts with the purchase of clothes and other necessities, and that he accepted his two children into his home on many occasions and supported them for extended periods of time.
The juvenile court next concluded that A.E. was willing and able to assume the legal and physical care of M.S. She found that A.E. proved that he could provide an adequate home for the child, and that his steady employment for more than a year showed that his monthly after-tax income of $1,200 was sufficient to provide for the child.
Finally, the juvenile court considered A.E.'s fitness as a parent of the child. In finding that A.E. would be a fit parent, the juvenile court found that A.E. had shown that he had a positive relationship with his two other children and that the mother of these children trusts him with their care. Further, the juvenile court found that although A.E. had belonged to a gang and exhibited gang-like tatoos on his body, the evidence preponderated that he was no longer an active gang member. Lastly, the juvenile court considered testimony of substance abuse on the part of A.E. and other family members in the household (particularly, his father) and dismissed them as uncorroborated.
After considering all of these elements, the juvenile court maintained A.E.'s opposition to the adoption on February 18, 2000, and granted him legal custody of M.S.
The appellate court, Fifth Circuit, heeding our policy to promptly take up matters involving child custody,
The appellate court next considered the issue of A.E.'s parental fitness and responsibility. Finding the juvenile court's factual findings manifestly erroneous in these regards, it further concluded that although A.E. proved through DNA testing that he was the child's father, he failed to prove that he was substantially committed to his parental responsibilities and to show that he was fit to raise the child. It found that the juvenile court manifestly erred in finding that A.E. consistently supported and visited with his other children. The appellate court further found that the evidence was significant that A.E. was an important member of a gang, that he had admitted that involvement to law officers, and that his two brothers, who live in his house, were also gang members. It also determined that it was significant that A.E. did not consistently provide financial support to the mother during the pregnancy nor sought to send her money after she relocated, even though he knew that her family could help him contact her. Finally, it found that the evidence of drug and/or alcohol use by both A.E. and his father raised questions of parental fitness.
Even though the appellate court did not condone the biological mother's lack of forthrightness, it nonetheless found that A.E. did not establish that he attempted to contact the mother during the pregnancy to seek custody on his own or even to see the child. Although it found that A.E. did purchase some baby items and prepare a bedroom for the child, it concluded that these slight commitments to parental responsibility did not rise to the level of substantial commitment required by LA. CHILD. CODE art. 1138. Accordingly, when it considered this evidence in light of the expert psychological evidence of Dr. Allison Steiers on the importance of familial bonding, it found that the fundamental rights of the biological father were not to prevail because of a lack of proof. Therefore, it concluded that the child's best interest was best served by granting permanent, sole custody of M.S. to the proposed adoptive parent.
We granted the writ application of A.E. to consider the correctness of the appellate court's resolution of the legal issues presented. In re: A.J.F., Applying for Private Adoption, 00-0948 (La.4/26/00), 760 So.2d 1163.
LAW AND ANALYSIS
A.E. contends that the appellate court erred when it found that his petition for habeas corpus and his opposition to the adoption were untimely. He argues that his actual notice of M.S.'s birth and surrender
From the outset, we regress a moment to recap the procedural posture of this case. It is important to note at this time that no petition for adoption has yet been presented to the juvenile court for consideration. A.J.F. maintains custody of M.S. by virtue of an order from the juvenile court dated October 15, 1999, which recognized her as M.S.'s legal custodian during the pending adoption proceedings.
In addressing this crucial preliminary issue, both lower courts agreed that the service of process that was attempted was improper. Contrary to the dictates of LA. CHILD. CODE art. 1134, the notice of the filing of the mother's surrender on A.E., a non-resident, was not made by either registered or certified mail, return receipt requested. Next, even if service was intended to be made through A.E.'s attorney pursuant to her requests for notice under LA.CODE CIV. PROC. art. 1913 (notice of signing of judgment), 1914 (notice of rendition of interlocutory order), and 1572 (written request for notice of trial), the process server for the juvenile court failed to serve either the attorney of record or her secretary as provided in LA.CODE CIV. PROC. art. 1235.
Nevertheless, the appellate court ruled that A.E.'s "action to annul [the] surrender" was prescribed under LA. CHILD. CODE art. 1148 because he had actual knowledge of his son's birth and failed to bring his action to annul within ninety days from the execution of A.S.'s act of surrender. Simply stated, the court of appeal found that actual notice was just as effective as legal notice for the purpose of tolling prescription. For the reasons which follow, we find the appellate court's reliance on LA. CHILD. CODE art. 1148 both misplaced and incorrect as a matter of law.
We further note that the appellate court mischaracterized A.E.'s pleading filed in the juvenile court. Instead of correctly referencing the action as an opposition to the private adoption, the appellate court referred to the pleading as an action to annul the surrender and analyzed it as such. Because LA. CHILD. CODE art. 1137 permits an alleged or adjudicated father to "oppose the adoption of his child by filing a clear and written declaration of intention to oppose the adoption," A.E. did not have to annul the surrender documents.
Due Process of Law: Notice
Under the Fourteenth Amendment to the United States Constitution and LA. CONST. art. I, § 2, a person is protected against a deprivation of his life, liberty, or property without "due process of law." As recognized in Fields v. State, Through Dep't of Pub. Safety & Corrections, 98-0611 (La.7/8/98), 714 So.2d 1244, 1250, and Progressive Sec. Ins. Co. v. Foster, 97-2985 (La.4/23/98), 711 So.2d 675, 688, the guarantee of due process in the Louisiana Constitution does not vary semantically from the Due Process Clause of the Fourteenth Amendment. Consequently, federal jurisprudence is relevant in the determination of the nature and extent of LA. CONST. art. I, § 2.
The jurisprudence is well-settled as to the meaning of procedural due process. As recognized in In re Adoption of B.G.S., 556 So.2d 545, 549 (La.1990), persons whose rights may be affected by state action are entitled to be heard, and, in order that they may enjoy that right, they must first be notified. Equally fundamental is that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner. Id. (collecting cases). For due process to apply, the private interest affected by state action must be constitutionally cognizable. Fields, 714 So.2d at 1250. We addressed this private interest of a biological father in In re Adoption of B.G.S., 556 So.2d 545. There we stated:
In re Adoption of B.G.S., 556 So.2d at 549-50; see also Troxel v. Granville, 530 U.S. ___, ___ _ ___, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ("[I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children."); State of Louisiana in the Interest of J.A., 99-2905, p. 7-8 (La.1/12/00), 752 So.2d 806. ("The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law ... and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship.").
Partly in response to this jurisprudence and partly because of the dire need to synthesize the myriad statutes which attempted to regulate the lives of children in Louisiana, the Legislature adopted the Children's Code as 1991 LA. ACTS 235. Teanna West Neskora, Comment: The Constitutional Rights of Putative Fathers Recognized in Louisiana's New Children's Code, 52 LA. L.REV. 1009 (1992).
The Children's Code recognizes that when a mother surrenders her parental rights, it is required that an alleged or an adjudicated father be given notice of the filing of the surrender. LA. CHILD. CODE arts. 1132-1136. Correlative to that right, is the provision of LA. CHILD. CODE art. 1138 which provides the alleged or adjudicated father with a hearing in which he is given an opportunity to prove his commitment to parental responsibilities and his fitness as a parent. See In the Matter of R.E., 94-2657 (La.11/9/94), 645 So.2d 205, 208, (citing Lehr v. Robertson, 463 U.S. 248, 250, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983)).
To this end, the Children's Code identifies three basic situations in which the mother of an illegitimate child has executed a surrender document. In the first instance, the mother has identified the child's alleged or adjudicated father in the surrender document. Pursuant to LA. CHILD. CODE art. 1132, the clerk of court shall issue a notice which allows him fifteen days after receipt of the notice to file a written objection to oppose the proposed adoption. Whether or not the alleged or adjudicated father is a resident or nonresident of this state, "service shall be made by either registered or certified mail, return receipt requested, postage prepaid and properly addressed to his last known address." LA. CHILD. CODE arts. 1133-1134. This notice requirement is waived if the father named in the surrender document also signs a surrender document, has had his parental rights terminated by judgment, has consented in open court to the surrender, or has executed a release of claims. LA. CHILD. CODE art. 1132(A)(1-4). In the second instance, the mother has identified the child's alleged or adjudicated father in the surrender document, but his whereabouts are not known. As provided in LA. CHILD. CODE art. 1136, the juvenile court must appoint a curator whose duty it is to "begin a diligent effort to locate the alleged or adjudicated father within seven days ... from the date of his appointment." After thirty days following the appointment of the curator have elapsed, the court, after finding that the curator made a diligent effort to locate the father, shall terminate the alleged or adjudicated father's parental rights. In the third instance, the mother has indicated in the surrender document that the father of the child is unknown. In such scenario, LA. CHILD. CODE art. 1135 allows the juvenile court to terminate the father's parental rights "upon finding that a diligent effort has been made to identify the father."
In the present case, although the facts suggested that this case fell into the first instance outlined and notice was not required because F.H. also surrendered M.S. for adoption, LA. CHILD. CODE art. 1132(B)(2), it quickly evolved into a situation where none of the three basic scenarios provided in the Children's Code applied. Rather, the facts presented the juvenile court with a case in which the mother either misidentified the father or fraudulently attributed paternity to someone other than the actual biological father. Commenting on just such a scenario, the 2000 Authors' Notes to LA. CHILD. CODE art. 1122 states:
LUCY S. MCGOUGH & KERRY TRICHE, LOUISIANA CHILDREN'S CODE HANDBOOK 500-01 (1999).
Unfortunately, the wise words of the commentators were not heeded, and the juvenile court was invoked to settle an emotional legal dispute caused by the misidentification of a natural father who has cognizable constitutional rights to parenthood.
As we stated earlier, the lower courts properly found that the attempted service of notice was not properly made on A.E. We further find that A.E.'s actual knowledge of M.S.'s birth and the surrender for adoption by A.S. and F.H. does not substitute for the detailed notice requirement laid out in LA. CHILD. CODE art. 1132. Not only is the alleged or adjudicated father required to receive notice of the birth and the surrender, he is also required to be notified that he loses his right to oppose the adoption of his child if he fails to file a written objection with the court within fifteen days after receipt of notice. LA. CHILD. CODE art. 1132(D). In addition to this vital notification, the alleged or adjudicated father is required to receive essential information about the specific criteria with which a court will evaluate his opposition to the adoption and his assertion of parental rights to the child, namely acknowledge that he is the father of the child; demonstrate his fitness as a parent together with his willingness and ability to assume legal and physical care of the child; demonstrate that he has made a substantial commitment to his parental responsibility by providing or attempting to provide for the mother during pregnancy or after birth and consistently visiting or attempting to visit the child after birth. Finally, the alleged or adjudicated father is required to be provided with information of the consequences of his failure to act timely, i.e., the termination of any and all parental rights he may have.
Lehr, 463 U.S. at 261-62, 103 S.Ct. 2985. Accordingly, we find that the appellate court erred as a matter of law in finding
We next consider the reasoning that the appellate court used as underpinning for its resolution of the notice issue: the need to insist that a father assert his parental rights within a specified time period. For the appellate court, such justification was found in the annulment articles of the Children's Code relative to the nullification of acts of surrender for fraud or duress.
LA. CHILD. CODE art. 1147 provides that "[n]o act of surrender shall be subject to annulment except upon proof of duress or fraud, notwithstanding any provision of law to the contrary." With regard to the finality of acts of surrender, LA. CHILD. CODE art. 1148 provides that "[n]o action to annul a surrender shall be brought for any reason after ninety days from its execution or after a decree of adoption has been entered, whichever is earlier."
Contrary to the holding of the appellate court, the action for annulment of a surrender is only available to parents who allege that despite their execution of an act of surrender, "he or she did not voluntarily or knowingly consent to the adoption of the child" because of fraud or duress. As we pointed out in In re J.M.P., 528 So.2d 1002 (La.1988):
Id. at 1008
As additional justification for its application of LA. CHILD. CODE arts. 1147 and 1148, the appellate court rested its decision on the recognized need for finality of adoption proceedings. It reasoned that if LA. CHILD. CODE arts. 1147 and 1148 were not utilized, "[t]here would be no safeguards to prevent a biological father from successfully annulling an adoption ten or 15 years after it took place." In re A.J.F., Applying for Adoption, 00-CA-262 (La.App. 5 Cir. 3/23/00), 756 So.2d 1187, 1191. Although we wholeheartedly agree with the need for the finality of judgments in adoption matters within a relatively limited period of time, we find that the appellate court overlooks two areas of the Children's Code which provide for such finality. These areas are the codal provisions relative to the annulment of final decrees of adoption, LA. CHILD. CODE arts. 1262 and 1263, and those providing for the pre-adoption procedure for recognition of the termination of parental rights, LA. CHILD. CODE art. 1142.
Although LA. CHILD. CODE art. 1262 establishes that fraud or duress are the only
Thus, the finality of adoptions is provided for by the provisions of LA. CHILD. CODE art. 1263 which specify the time period in which a party may seek to annul a decree of adoption.
LA. CHILD. CODE art. 1142 is another element within the scheme of the Children's Code adopted to minimize, if not eliminate, successful attacks to the surrender of parental rights. Once the acts of surrender are filed with the juvenile court, the court may authorize counsel to seek an order terminating parental rights pursuant to LA. CHILD. CODE art. 1142(A). 2000 Authors' Notes, McGOUGH & TRICHE, supra at 514. Not only does this article further allay the fears raised in justification of the appellate court decision as regards the timeliness of A.E.'s opposition, it further buttresses our determination that his action to oppose the adoption was timely.
LA. CHILD. CODE art. 1142 provides:
When we read the various provisions of the Children's Code, we realize that it has built in numerous safety nets to identify alleged or adjudicated fathers who were
Applying LA. CHILD. CODE art. 1142 to the facts of the case sub judice and having found that A.E. did not receive notice of A.S. and F.H.'s surrender, we find that A.E.'s recordation of his acknowledgment of paternity and filing in the Putative Father's Registry on November 15, 1999, and November 16, 1999, respectively, with nothing more, would have triggered the application of LA. CHILD. CODE art. 1142(D). If the proposed adoptive parent had motioned the juvenile court to render an order declaring the rights of the F.H. and A.S. terminated, the provisions of LA. CHILD. CODE art. 1142(D) would have "given [A.E.] an opportunity to be heard in accordance with Articles 1132 through 1141" because a search conducted pursuant to LA. CHILD. CODE art. 1142(B) would have produced his recordation of M.S.'s paternity with the clerk of court as well as in the Putative Father's Registry and would have recognized the panoply of notice and hearing rights provided in LA. CHILD. CODE arts. 1132-1141. As such, A.E. would have been granted an opportunity to acknowledge that he was M.S.'s father in open court, express his opposition to the adoption, and demonstrate that he was a fit parent "willing and able to assume the legal and physical care of [his] child." LA. CHILD. CODE art. 1132(D). Having SO found, we cannot say that A.E. would have fewer rights because he filed his petition for habeas corpus and opposition to private adoption on January 28, 2000.
Opposition Hearing: Father's Parental Rights and Commitment
We next proceed to the question of whether the juvenile court was manifestly
LA. CHILD. CODE art. 1138 provides, in pertinent part:
In its assessment of A.E.'s burden under LA. CHILD CODE art. 1138, the appellate court found manifest error on the part of the juvenile court. It is well-settled that an appellate court cannot set aside a juvenile court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. "Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court." Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); In re: M.M. de St.G., wife of and PBS, Applying for Private Adoption of K.N.K., 97-655 (La.App. 5 Cir. 11/25/97), 705 So.2d 220. Where the fact finder is presented with two permissible views of the evidence, the fact finder's choice between them is not clearly wrong. Rosell, 549 So.2d at 844.
In the case sub judice, the appellate court appropriately noted that "[t]he criteria of parental fitness and substantial commitment to parental responsibilities... are vigorously contested and the facts surrounding each are disputed in their entirety." In re A.J.F., Applying for Adoption, 756 So.2d at 1192. Nevertheless, it chose to reevaluate testimony applicable to A.E.'s threefold burden under LA. CHILD. CODE art. 1137:(1) acknowledgment of paternity in open court; (2) proof of his efforts to seize his parental opportunity interest; and (3) proof of his present fitness for custody. See In re Adoption of B.G.S., 556 So.2d at 545 (La.1990); In the Matter of R.E., 645 So.2d at 205 (La.11/9/94). As shown in the juvenile court's well considered reasons for judgment, it thoroughly considered the questions of A.E.'s gang involvement and those of his brothers, the level of his support and care for his other children, A.S.'s fraudulent actions and surreptitious maneuvering from state-to-state, safety considerations which may have kept A.E. from contacting
For the foregoing reasons, the judgment of the court of appeal is reversed and set aside. The judgment of the juvenile court is reinstated. This matter is remanded to the juvenile court for entry of a judgment dissolving the mother's act of surrender and for purposes of giving her notice so that she can make a knowing decision regarding any exercise of parental rights.
VICTORY, J., additionally concurs with reasons.
VICTORY, J., concurring.
I agree with the majority's opinion in this case. However, I write separately to express my concerns regarding the constitutionality of article 1138 of the Louisiana Children's Code, more particularly, the equal protection issue it raises by demanding proof of fitness by an unwed father and not from an unwed mother.
Article 1138 requires the alleged or adjudicated father to establish his parental rights by proving that he has manifested a substantial commitment to his parental responsibilities and that he is a fit parent. Yet, nowhere in the Louisiana Children's Code is the unwed mother required to prove that she is a fit parent to prevent the adoption of her child if the father chooses to give up his child for adoption. She only has to withhold her consent. This disparity is unfair and appears on its face to violate the equal protection clause of the United States Constitution.
The United States Supreme Court has not decided whether such a scheme violates the equal protection clause when applied to a newborn child, but has indicated that it does. In Caban v. Mohammed, 441 U.S. 380,
After Caban, the Supreme Court held that when one parent has established a relationship with a child and the other parent has either abandoned the child or has never established a relationship, the equal protection clause does not prevent a state from giving the two parents different legal rights. Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). However, this case also involved a father that had had an opportunity to develop a relationship with his older child, not a newborn.
Therefore, in situations involving the adoption of older children, the Supreme Court has established two teachings regarding statutes giving unwed fathers different legal rights from unwed mothers. Caban teaches that if both unwed parents have established a relationship with the child, they have to be treated the same. Lehr teaches that if one parent has established a relationship with the child and the other has not, they do not have to be treated the same.
Our statute is analogous to the statute at issue in Caban. Pursuant to article 1138, an unwed father, even one having a relationship with that child since birth, must prove not only that he has manifested a substantial commitment to his parental responsibilities but also that he is a fit parent to prevent the adoption of his child, whereas, the unwed mother in Louisiana only has to withhold her consent and is not required to prove her fitness. Our Children's Code does not even provide for a hearing on the mother's commitment to the child or her fitness.
In my view, an unwed father who desires to raise his child should be presumed to be a fit parent to raise his child, as an unwed mother is, and should not have to fight a proposed adoptive parent for the right to raise his biological child merely because the mother chooses to give up her parental rights.
The instant case provides a good example of the disparity. If the unwed mother had chosen to keep the child and the father had chosen to give up his parental rights, there would be no hearing on her substantial commitment to raise her child and whether or not she was a fit parent. She simply would keep the child and raise it. But because of article 1138, the father who wanted to raise his child when the mother chooses to give up her parental rights has been forced to come into court to not only to prove his commitment to parental responsibilities, but also his fitness
Affiant declares that he [she] has been informed and understands that his [her] rights as the parent of this expected child are permanently and irrevocably terminated by execution of this Act of Surrender. However, he [she] understands that this Act of Surrender may be declared null due to fraud or duress....
For cases involving fraud or the misattribution of paternity see for examples, Thomson v. Cavanaugh, 97-35 (La.App. 3 Cir. 3/3/97), 688 So.2d 1259, writ denied, 688 So.2d 528 (La.2/21/97); In re B.G.C., 496 N.W.2d 239 (Iowa 1992); In re Petition of Kirchner, 164 Ill.2d 468, 208 Ill.Dec. 268, 649 N.E.2d 324, cert. denied, 515 U.S. 1152, 115 S.Ct. 2599, 132 L.Ed.2d 846 (1995); In re Adoption of Baby Girl S., 141 Misc.2d 905, 535 N.Y.S.2d 676 (Surrogate Court), affirmed without opinion, 150 A.D.2d 993, 543 N.Y.S.2d 602 (1989); Riggs v. Riggs, 612 S.W.2d 461 (Tenn.App. 1980), cert. denied, 450 U.S. 921, 101 S.Ct. 1370, 67 L.Ed.2d 349 (1981).