Editorial - Idaho judges fail to do what is best for baby

Deseret News, The (Salt Lake City, UT)

Author: Tad Walch Deseret Morning News

I am an adoptee. So is the 7-month-old infant Utahns have come to know as Baby Harvey.

For now.

He belongs with his parents in American Fork but, sadly, a pair of Idaho judges are fouling off some pretty easy legal pitches that have put his future in doubt.

After Baby Harvey was born June 24, Jed and Cally Nielson hurried north to Kootenai County, Idaho, to hold their first child in their arms. The routine adoption already had been arranged by LDS Family Services.

That's where the story should have ended, with the Nielsons living happily ever after through diaper changes, teething, potty training, Junior Jazz and those wonderfully wacky and ever awkward teenage years.

Instead, Jed and Cally say they have spent $25,000 trying to stop a late bid by the birth father to take away Baby Harvey. Sadly, the birth father is being aided and abetted by these two Idaho magistrates who have failed to follow the first moral obligation of an adoption: Do what is best for the child.

Not only is that a moral obligation, it's also Idaho state law. Baby Harvey doesn't need a Solomon. Judge Judy could get this one right. The intent of the Idaho legislature couldn't possibly have been any clearer when it passed the set of adoption laws that begin with this phrase: "The state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner, in preventing the disruption of adoptive placements, and in holding parents accountable for meeting the needs of children. ... "

Unfortunately, Kootenai County magistrates Robert Burton and Barry Watson have spent the past couple of months disrupting the placement of Baby Harvey in the stable home of a loving mother and father.

Burton somehow found the birth father, Matt Tenneson, had some parental rights, though the 20-year-old Hollywood Video employee didn't follow the clear steps laid out by state law for declaring paternity. Then, just before Christmas, of all Dickensian things, Watson went a step farther and awarded temporary primary custody to the birth father.

The Nielsons refused to obey Watson's order because they don't believe he has jurisdiction in Utah. Good for them. LDS Family Services filed an appeal of Tenneson's order. This week, a judge set the hearing on the appeal for April 10.

I know fathers get the short end of the stick in many cases. This isn't one of them. The birth father has proved one thing based on Idaho state law: He isn't ready to be a father.

Idaho requires prompt and substantial action by an unmarried biological father if he wants a say in the custody of the child. This birth father did not file a voluntary acknowledgement of paternity. He did not file a notice that he was starting proceedings to establish paternity. He did not pay any expenses related to the pregnancy and birth.

He needed to do those things before the placement of Baby Harvey or before proceedings began to terminate the parental birth rights of the birth mother.

He didn't.

Meanwhile in Utah, we have a family, a mother and a father, who are ready to be parents.

If the judges or others don't like the way Idaho adoption law worked in this case, they should petition the Idaho legislature to change it. That would be far better than legislating from the bench to wrench an innocent baby from the arms of the only parents he's ever known.

"A certain degree of finality is necessary in order to facilitate the state's compelling interest," the Idaho legislature wrote.

Remember, Idaho's compelling interest is prompt placements without disruption.

"The legislature finds that the interest of the state, the mother, the child, and the adoptive parents described in this section outweigh the interest of an unmarried biological father who does not timely grasp the opportunity to establish and demonstrate a relationship with his child in accordance with the requirements of this chapter."

The highest good for this child should be the top priority. Idaho state law agrees. The highest good in this case is to keep the baby with the Nielsons in American Fork.

That the father can't see this is all the more reason the judges should.

E-mail: twalch@desnews.com