Conservative Utah think tank weighs in on unwed father's adoption case

By Brooke Adams

A conservative Salt Lake City think tank is defending Utah's adoption law and the hurdles it creates for unwed fathers, arguing a "natural family" that consists of a married man and woman is best equipped to rear a child.

The Sutherland Institute makes that case in an amicus brief, marking the first time the group has weighed in on an adoption case with its claim that such families are the "fundamental unit of society" — a view it says the state's adoption statute upholds.

The institute filed the brief in opposition to an appeal filed by Bobby L. Nevares, of Colorado.

Nevares is contesting a judge's decision to deny his paternity petition and block his attempt to get custody of his son, who was born and placed for adoption in Utah more than three years ago. The Utah Court of Appeals has not yet set a date to hear Nevares' case.

William C. Duncan, an attorney for the not-for-profit Sutherland Institute, said the organization filed the brief after noting increased calls in recent years to provide more rights for unwed fathers in Utah's adoption statute, which is widely regarded as one of the most restrictive in the nation when it comes to unmarried fathers' rights.

The institute advocates for public policies that promote what it considers to be seven "core" values: personal responsibility; family; religion; private property; free markets; charity; and limited government. In 2005, it distributed a "natural-family resolution" supporting recognition of marriage between a man and a woman as "ordained by God" and homes as "open to a full quiver of children" to Utah cities. Just one — Kanab — adopted it.

In 2008, the institute established a Center for Family and Society to promote policies in line with its values, such as preserving marriage rights only for a man and a woman; eliminating no-fault divorce laws; and upholding "moral culture and local community standards." It opposes same-sex marriage and equates gay parents with single parents, both of whom place children at a "measurable disadvantage in terms of socioeconomic risks," according to a column by institute president Paul Mero.

Duncan said that rather than just advocate at the Utah Legislature, the institute decided to add its voice in pivotal court cases that threaten such values.

"Part of our mission is to promote that the family is the fundamental unit of society and ideally is based on marriage between a husband and a wife," Duncan said. "The question of whether the state can continue to privilege choices mothers make for children and ideal settings for child rearing — those questions go right at the heart of our mission."

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A 'novel claim' • In the institute's view, Nevares is making a "novel claim" to upend Utah's adoption law by asking the court to create "a new, nebulous requirement" that would allow "late contests" from out-of-state fathers who failed to preserve their paternity rights before a birth mother relinquished a child.

Utah's adoption law properly gives deference to unwed mothers who experience "more exacting consequences" than unwed fathers as a result of an unintended pregnancy, the institute argues.

"To use an extreme example, no father has ever died in childbirth, though, tragically, some mothers do," its brief notes.

Utah's adoption statute requires unwed fathers to act speedily to assert their paternity to meet the best interests of children, mothers and the state in ensuring stable and permanent placements, it argues, a stance solidly based on "the reality that children conceived out of wedlock are at greatly increased risk to be either aborted or raised in difficult circumstances" that adoption by a married heterosexual couple overcomes.

The institute references census data and academic studies such as "Why Marriage Matters," produced by the Institute for American Values, to bolster its argument that single-parent home life is "often less than ideal," with more conflict between mother and child; less monitoring by mothers; more child poverty; more substance abuse; and higher levels of abuse, among other things. Children in stepparent families also are more likely to have problems, the institute says.

"Adoption, by contrast, often provides much better prospects for children," the brief states.

Unwed men such as Nevares have a simple means of avoiding paternity and adoption battles, the institute concludes: "Though he cannot insist on marriage, he has an absolute ability to refrain from engaging in a sexual relationship prior to marriage and has, to some degree, assumed the risk of not doing so."

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'Sorry for your loss' • The case the institute chose to stamp with its views is not unlike many that end up in protracted legal battles in Utah. Nevares, in fact, is the second Colorado father to engage in such a fight.

In this case, Nevares and the birth mother had a brief relationship that spanned a few months before ending in January 2010.

Eight months later, the birth mother informed Nevares, then 20, she was pregnant and due to give birth Oct. 11, 2010. She also told Nevares she planned to place the infant for adoption; Nevares told her he was willing to take responsibility for and parent the child.

The birth mother proceeded to contact two adoption agencies, the Adoption Center of Choice in Utah and Adoption Options in Colorado.

In mid-September 2010, the Colorado agency contacted Nevares and told him it was working with the birth mother. Nevares visited that agency twice and, during one visit, was given an "Anticipated Expedited Relinquishment Reply" form to fill out. He did so while again expressing his desire to take custody of and parent the child.

Unbeknownst to Nevares, the birth mother, then 16, decided to work with the Utah agency instead. She arrived in Utah two days before giving birth on Sept. 29, 2010, to a boy who was placed for adoption by the Utah agency a day later.

The teen's mother contacted Nevares on Oct. 6, 2010, and, without disclosing the location, informed him of the birth and adoption. She also sent a photo of the infant in a text message with the comment, "sorry for your loss," according to Nevares.

A week later, after Nevares' mother threatened legal action to force the birth mother's family to disclose details about the baby's birth, the Adoption Center of Choice called and left a message at the Nevares home. Nevares' mother was able to trace the agency, via the telephone number, to Utah.

Nevares hired a Utah attorney and, on Oct. 18, 2010, filed a paternity petition in Utah County's 4th District Court seeking to intervene in the adoption proceeding.

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Dueling decisions • Fourth District Judge Claudia Laycock ruled in August 2011 that Nevares had not complied with Utah law and rejected his attempt to intervene in the adoption.

Months later, Laycock reversed that decision and ruled for Nevares, finding that the form provided to him by the Colorado agency was inadequate because it did not properly advise him of legal requirements and deadlines he needed to meet to protect his rights in that state — a first step to being allowed to intervene in Utah.

At that November hearing, the judge declared Nevares to be the child's biological father and granted his request to intervene in the adoption proceeding. Laycock also ordered the Adoption Center of Choice to provide Nevares with future hearing notices.

But the judge dismissed his attempt to challenge the section of Utah's adoption law that bars unmarried fathers from using fraud by a birth mother as a defense for inaction, noting that Nevares "has not shown that the birth mother or [Adoption Center of Choice] had any duty to disclose that the birth mother came to Utah to give birth and to place her child for adoption."

The legal wrangling, however, was far from over.

In July 2012, after the Adoption Center of Choice contested that ruling, Laycock came to yet another conclusion.

This time, the judge found Nevares had not complied with Colorado law and thus was barred from intervening in Utah. While the form he was given was defective, the judge ruled that, under other provisions of Colorado law, Nevares nevertheless should have voluntarily taken legal steps to acknowledge his paternity and protect his parental rights.

That duty is independent of noticing requirements, Laycock said, and there is no obligation on the part of the mother or any other party to notify the unwed father of what he needs to do to protect his rights.

Like Utah law, Colorado's Uniform Parentage Act burdens natural fathers to "independently search out and complete the requirements to establish paternity," Laycock ruled.

Understanding the law was apparently a challenge even for the judge, who noted her initial interpretation of the notice requirements as "necessary first steps to a father's establishment of parental rights was [an] error on this court's part."

The notice requirement applies only when a birth mother pursues an "expedited" hearing to relinquish her rights and place a child for adoption, the judge said. In this case, the mother did not do that.

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'Mixed signals' • Nevares appealed Laycock's ruling to the Utah Court of Appeals in August 2012, arguing that he acted properly under Colorado law to protect his rights and that Utah's imposition of additional requirements violates his due-process rights.

The wins and losses "send a lot of mixed signals to me," said Nevares, now 23, in a telephone interview. "At points it is hopeful, and at points it's not hopeful. If I get custody [of my son], I'll be really, really happy. And if I don't, at least my son will know how hard I fought for him to be a part of my life."

The Sutherland Institute, however, hopes the court stays the course in upholding Utah's current law, drawing "bright lines setting out the rights and responsibilities" of all parties to an adoption proceeding.

"Our federal system allows, and even encourages, individual states to develop their own policies on issues like domestic relations and those policy decisions are entitled to respect," its brief states. "Any distinctiveness in Utah adoption laws does not threaten constitutional rights but instead exemplifies the best traits of federalism."