exposing the dark side of adoption
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Some Call It Kidnapping

How Utah adoption laws take babies from the nation's unmarried fathers.

By Jesse Fruhwirth

About one year ago, Ramsey Shaud learned he was going to be a dad. Even though he and the mother only had a casual relationship, Shaud, 23, dreamed of raising his first child—either with his baby's mother or without her, if needed.

Shaud has a Southern drawl evidencing his Florida-Panhandle upbringing in the small city of Crestview, population about 15,000. He met his baby’s mother, Shasta, 20, when they were children. She was a friend of his sister’s and her mother taught at the middle school they both attended. Shaud and Shasta started dating, however, only a few months before she became pregnant.

“I told her that I wanted to be there in every aspect: get a place together and everything,” Shaud says. “I wanted to be there for the birth of the child and I wanted the child.”

Shasta’s mother, who Shaud says was once a teen mother, objected. “‘I’m not going to let her make the same mistakes I made,’ ” Shaud recalls Shasta’s mother telling him. He says Shasta briefly considered abortion, which prompted Shaud to offer to raise the child himself.

Both Shaud and Shasta live in Florida, but he nevertheless learned quickly what it means to be a “putative father,” or an unmarried man who is presumed to be the baby’s father, under Utah adoption law.

Contact between Shaud and Shasta became strained because of Shasta’s wish to place the baby for adoption. Each time he called, she asked him to sign forms consenting to adoption and would hang up when he refused. At an impasse, communication ended entirely in November 2009. Shaud took to the Internet, where he found legal documents that would help him stop an adoption proceeding in Florida. Shasta had family in Arizona, so he did the same thing there. He said both were easy.

In December, he received a note from Shasta: “Hey, Ramsey, I’ll be in Arizona with my family for the holidays and will stay on in Utah for awhile.” It was a strange note to receive after weeks of no communication and ample anger preceding that. But, that random and mysterious note—a so-called “qualifying circumstance” under Utah law—triggered a 20-day deadline for Shaud to comply with Utah’s adoption laws—by hiring a Utah attorney and submitting various forms—or lose his child.

About eight months since receiving that note and the birth, Shaud has never seen his child, who lives with an adoptive family. Shaud is appealing. A higher court will decide whether Shaud complied with Utah’s requirements within the time limits—or whether he was one day too late. Shaud alleges that he was two days early, but that a delay at the state Office of Vital Records and Statistics sabotaged his efforts and made his paperwork one day late.

Other fathers have similar complaints. One was told by the mother that she had miscarried. Yet another was told he hadn’t adequately explained his “plan for care” of the child in his court paperwork that his hired attorney authored.

In most states, putative fathers have certain requirements they must meet to stop an adoption, but many local and national experts agree that Utah is one of the toughest—if not the toughest—state for unmarried fathers to stop an adoption. Presiding judge of the Utah Court of Appeals James Davis has written that Utah adoption laws put unmarried fathers in an “impossible bind.” Chief Justice of the Utah Supreme Court Christine Durham has written that Utah could become a national “magnet for those seeking to unfairly cut off opportunities” for fathers qualified to raise their own children. Five men registered as putative fathers in June alone. According to the Utah Office of Vital Records and Statistics, about 20 men register each year.

The rhetoric from the aggrieved families, many of whom communicate cross-country, is flaring. Geri Wyatt, of Dumphries, Va., whose granddaughter Emma was born in Virginia but was placed for adoption under Utah law, says the Beehive State is facilitating kidnapping.

“We went to the hospital to see his child and the hospital [in Virginia] … lied to us and told us there was no baby there. While they were keeping us at bay, they slipped the birth mother and baby out a side exit … where she signed away her rights on a Utah relinquishment form,” she says. “To me, if that isn’t kidnapping, I don’t know what is.”

Strong Adoptions

The intent of Utah’s adoption laws is to quickly place children with a stable family.

Adoption attorney and lobbyist Larry Jenkins, a man at the forefront of Utah's adoption policies, says mothers who place their children for adoption may do so to avoid sharing custody with the baby's birth father, which can lead to conflicts over parent time and child-support disagreements that could last 18 years. "They want their babies in a good, stable situation," Jenkins says.

Federal and state laws do give more power to women, and to some extent, that’s legitimate, says Utah Rep. Lorie Fowlke, R-Orem, a family-law attorney who has represented putative fathers and adoptive families. Health risks related to childbirth should give women an edge. “The guy does escape much of the trauma a girl has to go through,” she says.

But since the 1970s, the U.S. Supreme Court has recognized that unmarried biological fathers also have rights to their children after birth.

So, to help distinguish ne’er-do-wells from truly capable and desirous parents-to-be, Utah requires unmarried fathers to “put their money where their mouth is,” as Fowlke puts it, by requiring them to file a paternity petition in court, which requires an attorney. That already is stricter than most states.

But there’s more. That court petition must state a plan for care of the child, that the father offered to pay pre-birth costs related to the pregnancy and that he is willing to pay child support. If he fails to mention either of those last two, it’s gone-baby-gone, even if he actually did pay pre-birth costs and is willing to pay child support. Simultaneously, fathers must also place their name on the Putative Father Registry in the Utah Office of Vital Records and Statistics. In many cases, they can do this any time prior to the birth of a child until the time the mother relinquishes her rights to the child and places it for adoption, which under Utah law can happen 24 hours after the birth. Ohio, on the other hand, gives fathers a minimum of 30 days after the birth.

Defenders of Utah’s laws say the putative-father registry—a tool used by dozens of states, but each with different requirements and procedures—adequately helps fathers protect their rights. Some even suggest that a national putative-fathers registry would regularize the procedure so that fathers aren’t so confused by varied state laws.

Others are critical of the registries. “As they currently exist, [putative-father registries] too often are used to cut men out under the guise of cutting them in,” says Adam Pertman, the executive director of the New York City-based Evan B. Donaldson Adoption Institute.

A July blog post on Orem-based A Act of Love Adoptions’ Website announcing a soon-to-be-born baby available for adoption contained this note to prospective parents: “Agency will not be getting a consent from birth father. The Utah Birthfather [sic] Registry can be used specifically for families finalizing the adoption in Utah.”

The registry is only one tool “used” to cut out fathers, who are often ignored by the agencies, at least in their advertising. The Adoption Center of Choice, for example, says, “All of our adoptions are tailored to meet the needs of both our birth mothers and adoptive families.” Fathers’ needs aren’t mentioned.

Both agencies declined comment for this story.

Fowlke says, “There are some adoption agencies that will purposefully try and manipulate factual situations to get around the law.” Indeed, manipulation, deceit, bureaucratic errors and pedantic adherence to procedure have all separated fathers from their babies in Utah.

Fraud Protection

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 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 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 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.

Database Delay?

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.

“It’s Kidnapping”

Like Thurnwald, Wyatt believed that he and girlfriend, Colleen Fahland, would raise baby Emma together. He went to doctor appointments and spoke to the baby soothingly inside Fahland’s belly, with the belief that childhood connection to a father’s voice can begin before birth. Wyatt and Fahland, who have known each other since second grade and dated for about three years prior to the pregnancy, are still romantically involved, he says. While Fahland has declined all interviews with the news media, her attorney and Wyatt say she regrets her role in the adoption.

On the day of the Emma’s birth, Wyatt and his mother arrived at the hospital for the delivery, but the hospital would not let them in. So-called “silent patient” privacy policies allow patients to have no information released about them.

Wyatt knows what happened next only secondhand from Fahland and from court testimony. He says she was isolated in a hotel room and pressed by representatives of the adoption agency and her own mother to sign the relinquishment papers. “To me, it sounds like they took advantage of her,” Wyatt says.

It’s disputed whether Wyatt filed for custody of the child in Virginia court before the adoption papers were signed by Fahland, but both sides agree a Virginia court has granted temporary custody to Wyatt while the Utah court granted temporary custody to adoptive parents, Thomas and Chandra Zarembinski of Utah. The Zarembinskis could not be reached for comment. Jenkins, their attorney, however, says Wyatt didn’t comply with the time requirements of either state.

Joshua Peterman is Wyatt’s attorney in Utah. “Everybody knew from Day 1 that [Wyatt] was opposed to the adoption, interested in raising the child and ready, willing and able,” Peterman says.

Peterman believes the adoption violated the federal Parental Kidnapping Prevention Act, which prevents parents from seeking a child-custody order in another state once one state has already decided the matter. He argues the act clearly determines that Virginia should decide what happens to baby Emma, who turned 17 months old this month. The Zarembinskis are required to appear for an order-to-show-cause hearing in Virginia in August for violating the judge’s custody order in favor of Wyatt. The Utah Supreme Court will consider the case in September.

For John and his mother, Jeri Wyatt, the Zarembinskis and A Act of Love Adoption Agency are outright kidnappers, and they’re not ashamed of making that strong accusation. “We’ve asked nicely plenty of times. We’ve gone through the legal and court system and they still haven’t given her back,” John Wyatt says. “But I’m keeping faith that they’ll do the right thing and return my child."

Wyatt maintains the Web site babyemmawyatt.com.

Lobbyist Larry

Many of these fathers blame one man more than any other for their situation: Larry Jenkins. He’s been a fixture on Capitol Hill for at least the past five years as the sponsor of new adoption legislation. He is, and was, opposing counsel in the cases with Wyatt and Shaud, as well as Thurnwald and O’Dea.

During the 2010 session of the Utah Legislature, former Rep. Sheryl Allen, the Bountiful Republican who is the Democrats’ candidate for lieutenant governor, sponsored a bill that impacted several aspects of Utah adoption laws, and in one section further restricted putative fathers’ access to their children. At her side was Jenkins—he did most of the talking. She introduced him to the Senate and House health and human services committees only as a leader of the Utah Adoption Council. Neither she nor Jenkins mentioned his lobbyist ties, though Allen says in an interview that she was aware of them.

Jenkins was the only expert to testify regarding the bill, saying multiple times, “There’s nothing in this bill that changes current law. We’re just taking what the [Utah] Supreme Court said last year and putting it into code.” The bill further restricted a father’s ability to challenge a Utah adoption through challenges filed in other states (click here to get more information on the bill from the Utah Legislature Web site, including audio recordings of committee testimony).

While Jenkins’ claims about the Supreme Court rulings were true, he didn’t mention that the fathers in those cases were procedurally barred from claiming that their constitutional rights were violated, that one of the cases was a 3-2 decision, nor that Chief Justice Christine Durham, in her dissent, expressed concerns that the majority was not correctly interpreting the legislative intent behind the word “residency” as it pertains to the birth mothers. Jenkins didn’t mention Davis’ concern about fathers’ “impossible bind” or Durham’s worries about Utah’s potential magnetism for mothers wanting to unfairly clip fathers’ rights.

Jenkins’ response: “I know that Chief Justice said what she said, but I haven’t had anybody suggest that there ought to be something changed about the statute. … Why comment on provisions we aren’t changing?” he asked.

Many lawmakers are unfamiliar with the intricacies of the laws; for example, two members of the committees that approved the bill explicitly admitted their ignorance. Moreover, in an interview, Allen, who has sponsored multiple bills at the behest of the Utah Adoption Council and Jenkins, said she does not believe that families who do not travel to Utah should be allowed to place their child for adoption under Utah law. She was unaware that laws she has personally amended multiple times in past years authorize exactly that and laid the foundation for the cross-state battle in the Wyatt case.

Rep. Lorie Fowlke says a lobbyist like Jenkins is entitled to slant his testimony in favor of his clients. The family-law attorney is concerned, however, that most legislators may be unaware, as she was, that Jenkins is a lobbyist for adoption firms like A Act of Love—which had $9.6 million in gross receipts between 2004 and 2008—and is not just a leader of the Utah Adoption Council, which earns virtually no revenue.

“That should have been something they knew … so they know where he’s coming from,” she says. “I think [Jenkins being a lobbyist] changes the color of it just a bit.”

Baby Battles

Even after all the court fights, when and if the fathers are successful at stopping the adoption—and some of them are—they don’t automatically take custody of the child. “These birth fathers, they say they want the child, but if they stop the adoption, the reality is they’re not going to get the child, the mother is,” Jenkins says. “And 99 percent of the time, they’re going to pay child support for 18 years and the child is going to bounce back and forth [between mom and dad].” Seeking adoption services cannot be used as a negative against the mother in the ensuing custody battle; Jenkins promoted bills in recent years that prevent that.

Drage has represented fathers who stopped an adoption only to lose custody of the child to the mother and pay child support. But for those fathers, he said, any contact with their child is better than none.

Seventeen years ago, author and paralegal Erik L. Smith, of Dayton, Ohio, successfully stopped the adoption of his own child. Since then, he’s written a book, yet to be published, that contains 152 pages describing putative father/adoption contests across the country. He says, “Utah is out of control. … Utah is more burdensome [to putative fathers] than any other state.

Smith thinks there’s a national conspiracy of adoption practitioners: “They have a network of attorneys, the agencies do, where if a father does what he’s supposed to do in the home state, the agency can call up an attorney in Utah, and the mother will go there.”

That’s a problem for adoptions everywhere. Adam Pertman, author of Adoption Nation, says profits may explain some of the moral compromises made by adoption agencies, but even more so, he says, practitioners can be shortsighted and convince themselves that cutting out the father is the right thing to do.

“They may mean well in helping this one woman or one child … but when the negative publicity hits, when we see cases like the ones we’re observing now … the damage is done,” Pertman says. “The [repercussions are] even broader because too many people look at cases like this, they don’t know how common they are—rare or everyday—they just shake their head. Then they look at their next-door neighbor who adopted and wonder, ‘Did they do that, too?’ "

2010 Jul 28