Adoption of Baby Girl M., Matter of, 86784

• Decision Date: 25 February 1997
• Docket Number: No. 1,No. 86784,86784,1
• Citation: 1997 OK CIV.APP. 33,942 P.2d 235
• Parties: 1997 OK CIV APP 33 In the Matter of the ADOPTION OF BABY GIRL M., a Minor Child. Court of Civil Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 235

942 P.2d 235

1997 OK CIV APP 33

In the Matter of the ADOPTION OF BABY GIRL M., a Minor Child.

No. 86784.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma Division No. 1.

Feb. 25, 1997.

Rehearing Denied April 1, 1997.

Certiorari Denied June 13, 1997.

Christine N. Gronlund, Gary A. Taylor, Legal Aid of Western Oklahoma, Inc., Oklahoma City, for Appellant Biological Father.

Gary L. Blevins, Gary L. Blevins & Assoc. P.C., Oklahoma City, for Appellee Adoptive Parents.

JOPLIN, Judge.

The biological father (Father) of Baby Girl M. seeks review of the trial court's order finding his consent to the child's eligibility for adoption unnecessary. In this appeal, we are presented with three questions: (1) whether the Oklahoma statutes concerning adoption of children conceived by unwed fathers are unconstitutionally vague; (2) if the answer to this first question is no, then, is the decision by the trial court in this case supported by sufficient evidence; and (3) if we find the trial court's decision so supported, whether the trial court erred in allowing the adoption to proceed without further notice thereof to biological father. We here hold the Oklahoma statutory adoption scheme, under some circumstances providing an unwed, biological father with notice and opportunity to be heard on the issue of necessity for father's consent to adopt, not unconstitutionally vague, where as here, with knowledge of the impending birth of the child believed to be his, the unwed biological father is shown by clear and convincing evidence to have failed to acknowledge paternity or take any action to legally establish his claim of paternity, or to exercise parental rights and duties with respect to the child, including failure to contribute to the support of the mother during her pregnancy. We further find the trial court's decision not against the clear weight of the evidence, and conclude the trial court did not err in proceeding with the adoption without further notice to the biological father.

This case represents the latest generation of cases involving the rights and responsibilities of unwed fathers. Prior to 1972, it was difficult, if not impossible, for an unwed father to establish any parental rights to his biological children. However, the United States Supreme Court in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), "described Peter Stanley as a man who had 'sired and raised' his children[,] [a] man who had lived with and supported them all their lives ... [and] [t]he Court equated the interest of a custodial unwed father with that of any other custodial parent and gave it equal constitutional stature." Matter of Adoption of Baby Boy D., 742 P.2d 1059, 1066 (Okla.1985). The U.S. Supreme Court consequently held:

[I]f Stanley was a fit parent, removal of his children would do nothing to further the state's interest in the welfare and safety of his children. Thus, there was a necessity to disprove Stanley's fitness. As a custodial unwed father, Stanley had a constitutional interest in his relationship with his children equal to the interest of other custodial parents. His interest entitled him to a hearing on his fitness because fitness was the standard applied to state removal of children from other custodial parents. It was his custody of his children, and not his biological connection alone, that gave him an interest of the same stature as that of any other custodial parent.

Baby Boy D., 742 P.2d at 1066. (Emphasis added.)

For the next 11 years, the U.S. Supreme Court established the principles which currently govern the rights and responsibilities of unwed fathers. The U.S. Supreme Court has found the parent-child relationship to be a constitutionally protected liberty interest entitled to due process safeguards. See, e.g., Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). See also, Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978). However, each Supreme Court case which has considered the extent of this interest, and corresponding constitutional protection thereof, has made a clear distinction between the rights of those fathers who have a "mere biological relationship" and those fathers who have meaningfully "demonstrate[d] a full commitment to the responsibilities of parenthood," assuming an "actual relationship of parental responsibility." Lehr, 463 U.S. at 259-260, 261, 103 S.Ct. at 2992-2993, 2993 (emphasis added). That is to say, the "mere existence of a biological link does not merit equivalent constitutional protection." Lehr, 463 U.S. at 261, 103 S.Ct. at 2993.

Consistent with this view, the Supreme Court has recognized that fathers of children conceived and born out of wedlock gain from that biological connection a constitutionally protected "opportunity" to develop a relationship with the child. Lehr, 463 U.S. at 262, 103 S.Ct. at 2993-2994. However, in order to avail himself of constitutional protection, the biological father must "[grasp] that opportunity." Id.

In the 1985 case of Baby Boy D., the Oklahoma Supreme Court applied these cases in the constitutional analysis of the Oklahoma adoption statutes, then requiring no consent to adopt from, nor even notice of adoption proceedings to, unwed fathers, but requiring consent of mother and fathers of "legitimate" children, and consent of mothers of illegitimate children, and held the Oklahoma adoption statutes constitutional. As to both due process and equal protection concerns, the Oklahoma Supreme Court held the statutory scheme for the adoption of children born out of wedlock constitutionally sound, and that the constitution permitted omission of notice and the opportunity for the unwed father to be heard in the adoption proceedings. Baby Boy D., 742 P.2d at 1068. Moreover:

In the adoption proceeding the competing interests at stake must be balanced.

Granting unwed fathers the same rights as all other parents, but with no guarantee that they would assume the responsibilities that other parents assume, would be giving the unwed father an unqualified right to block an adoption, absent unfitness, even though the adoption might be in the child's best interest. The Supreme Court has been unwilling to allow unwed fathers to have the rights of parenthood without also assuming the responsibilities of parenthood. This reasoning represents a careful balancing of the competing interests at stake. We concur in that reasoning and its result. Requiring the consent to adoption of the natural mother, but not the consent of the natural father, of the child born out of wedlock in the instan(t) case does not deny appellant equal protection of the law.

Baby Boy D., 742 P.2d at 1069 (emphasis added). This is consistent with the United States Supreme Court analysis in Lehr recognizing a "clear and significant" difference between the status of a biological father married to the mother and a father who conceives a child out of wedlock; the married father has legal rights as father from the outset, while the unmarried father does not have automatic rights as father, but must acquire such rights through his conduct. 10 O.S.1991 § 60.6(3). The latter must take some positive action to assume the responsibilities of parenthood before he becomes entitled to exercise the rights of parenthood. See, Lehr, 463 U.S. at 261, 103 S.Ct. at 2993. See also, Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979).

Since Baby Boy D., the Oklahoma statutory adoption scheme has developed to the point where now unwed fathers are given notice and opportunity to be heard, to demonstrate they have seized the parental opportunity interest, or if they have not, to show that they were otherwise prevented from exercising their parental rights, duties and obligations. If they so show, then their consent to adoption is necessary, a far cry from the law in Oklahoma just ten years ago. Today, Oklahoma's statutory adoption scheme recognizes such protected opportunity interest. That is, a child may not generally be adopted without the consent of its parents. 10 O.S.1991 § 60.6. However, consent is not required from the father or putative father of a child born out of wedlock if:

a. prior to the hearing provided for in Section 29.1 of this title, and having actual knowledge of the birth or impending birth of the child believed to be his child, he fails to acknowledge paternity of the child or to take any action to legally establish his claim to paternity of the child or to exercise parental rights and duties over the child, including failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy, or

b. at the hearing provided for in Section 29.1 of this title:

(1) he fails to prove that he is the father of the child, or

(2) having established paternity, he fails to prove that he has exercised parental rights and duties toward the child unless he proves that prior to the receipt of notice he had been specifically denied knowledge of the child or denied the opportunity to exercise parental rights and duties toward the child. As used in this subparagraph, specific denial of knowledge of the child or denial of the opportunity to exercise parental rights and duties toward the child shall not include those instances where the father or putative father fails to prove to the satisfaction of the court that he has made a sufficient attempt to discover if he had fathered the child or to exercise parental rights and duties toward the child prior to the receipt of notice, ...

10 O.S.1991 60.6(3)(a), (b). Section 60.6(3) thus protects biological fathers who undertake affirmative, positive acts of parental responsibility. Section (a) clearly extends protection to biological fathers who, with knowledge of conception of a child out-of-wedlock, exercise parental rights and...