The following is an article by Fathers & Families Board Member, Robert Franklin, Esq.:

This case out of the Ohio Supreme Court does little but suggests much (Leagle, 7/22/10). Reading the court’s dicta, i.e. the verbal embroidery with which it decorates its actual holding, fathers’ rights in adoption cases just got a huge boost.Back in July 2005, Susan Tuttle gave birth to a child. She was married to Jeremy Tuttle at the time and his name was placed on the birth certificate. The court’s recitation of facts leaves us to guess at just how and why certain events transpired, but, a month later, DNA testing on the baby had been performed. It showed that Tuttle was not the child’s father; Gary Otten was. Just who asked for the testing to be done is anyone’s guess. Whether Otten requested the testing or whether he even knew it had been done, the court doesn’t tell us.Whatever the case, not surprisingly, Jeremy Tuttle divorced Susan in November of that year. A little over a year later, Gary Otten filed a suit to establish his paternity rights and presumably to get some sort of a custodial order. But then Susan married another man, Kevin Crooks, who filed a petition to adopt the child who was then almost two years old. In order for Crooks to adopt the child, Otten’s parental rights would have had to be terminated by the probate court.At this point, it’s a good idea to recognize an important fact. There are two types of adoptions – stranger adoptions and non-stranger adoptions. Stranger adoptions are the kind most people tend to think about when they think about adoption. They’re the ones in which a couple adopts a child they don’t know, a child, in other words, who is a stranger to them.

Crooks wanted to do the other type of adoption. He knew Susan Tuttle’s child; he was married to Tuttle and wanted to formally recognize his parental relationship with her child and tie himself legally to the child should the pair ever divorce. That’s a non-stranger adoption.

In the United States, there are about 125,000 adoptions completed each year. Of those, about 75,000 are stranger adoptions and about 50,000 are the non-stranger variety.

Why does it matter what kind of adoption this was? If a stranger adoption doesn’t go through, it may well be that the child will have no parents at all, or at best a single parent. The child may sit unnoticed in an orphanage. If a non-stranger adoption doesn’t go through because the biological father asserts his rights, the child will still have two parents – a mother and a father – the same as if it had gone through. From the child’s standpoint, then, nothing is lost by allowing the dad to assert his rights.

When it comes to terminating fathers’ rights, the adoption industry often likes to pretend that all adoptions are alike, and therefore that if we allow the biological dad to prevail, the child will miss out on having two parents. That can be true in a stranger adoption case, but not in a non-stranger one. It’s an important distinction that those who make money off of completed adoptions often prefer to overlook.

Back to the case. The Ohio Supreme Court held that, because Otten is the biological father, Crooks can’t adopt the child (and terminate Otten’s rights) unless he can show that Otten is unfit.

One important thing about that holding is that Otten had never registered with the Ohio Putative Father Registry. So according to that law, he wasn’t entitled to notice of the adoption proceeding. The Court of Appeals held that his failure to register foreclosed his paternity suit. The Supreme Court said that’s not so. Essentially, a biological father who’s asserting his parental rights can stop the adoption of his child whether he’s filed with the Putative Father Registry or not.

It’s hard to overemphasize the importance of the court’s language in this case. First, it focuses on core principles of parental rights – principles long acknowledged but often ignored. For many years now, I’ve written of my astonishment at the U.S. Supreme Court’s calling parental rights “far more precious than property rights” and then approving the most bald-faced deprivations of due process in cases construing the rights of fathers. Significantly, those are often in cases involving putative father registries.

Here’s some of the court’s dicta:

[T]he right of a natural parent to the care and custody of his children is one of the most precious and fundamental in law…

Few consequences of judicial action are so grave as the severance of natural family ties…

[W]e have held that any exception to the requirement of parental consent (to adoption) must be strictly construed so as to protect the right of natural parents to raise and nurture their children.

Finally! Here’s a court that sees the obvious – that the rights of biological fathers have legal importance, and that courts and legislatures must respect them for the welfare of all concerned. Not only that, as important as parental rights are, in termination proceedings, states’ rights are virtually nil until a parent has been proven to be unfit.

the parent’s interest is fundamental but the State has no legitimate interest in termination unless the parent is unfit, and finding that the State’s interest in finding the best home for the child does not arise until the parent has been found unfit.

Second, I believe that the Ohio Supreme Court is signalling a change of direction in adoption matters. That’s because in two instances it cites, not the majority in U.S. Supreme Court cases, but dissents. That suggests to me that Ohio court is ready to break with the past. I believe that it is ready to turn away from the notion, clung to for so long by so many jurisdictions, that any adoption is a good adoption even though it’s unnecessary. When a fit father wants to be a parent to his child, there is no legitimate state interest in denying him his parental rights.

This case can be viewed as extremely limited and many will argue for that reading of it. But courts often prefer to obscure the full impact of important cases. Judges fear being tagged “judicial activist.” Given the language of the case, I would not be surprised to find it holding unconstitutional Ohio’s Putative Father Registry law at some time in the not too distant future. Either that or so limiting its scope as to render it all but impotent.

And let’s not forget that, just last month, right next door in Kentucky the state Supreme Court ruled that biological parents rights were “inherent and equitable.” Here’s my piece on that case. It too suggested a significant expansion of parental rights based solely on biology.

It’s important to understand what this case does not do. Somehow, Otten learned about his child and was able to assert his rights. Thus the case deals only with a father who was able to make a timely claim. This case does little or nothing to protect a father from whom a mother successfully keeps his child. What if Otten had found out he was the father, not a year later, but five years later? Could he have asserted his rights then? The case doesn’t say because that’s not what happened.

Some day, that case will come before the court and it will have an opportunity to decide whether a father’s rights can be prejudiced by the fraud of the mother. That happens frequently in adoption cases as I’ve reported on before. But this is a court that says it respects the rights of biological parents. We’ll see how far that goes.

But remember that Kentucky case. That’s exactly the issue it ruled on and it held that a father who’d been kept in the dark about his paternity until the child was three years old, could not be denied his parental rights.

As Bob Dylan once said, “the times they are a-changin.’”

Robert Franklin, Esq., is a board member of Fathers & Families, America’s largest family court reform organization. To learn more, see www.fathersandfamilies.org. 

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