Syracuse father loses fight / Court ruling in four-year-old adoption
case urges Legislature to clarify law
Saturday, December 13, 2008
By JESSE FRUHWIRTH
Standard-Examiner Davis Bureau
SYRACUSE -- A father's quest to reunite with his son has apparently come to an end -- the Utah Court of Appeals has ruled against the man whose son was placed for adoption against his wishes four years ago.
One judge noted, however, that the law cited to terminate Nikolas Thurnwald's paternity rights is vague, illusory, highly problematic and invites fabrication.
He urged the Legislature to clarify the law.
"... (S)evering an unmarried biological father's parental rights based on such technicalities serves to reinforce traditional notions about gender and childrearing -- i.e., that women are biologically better suited for raising children," Judge James Z. Davis wrote in his concurring opinion released Thursday.
"(Those) notions are antiquated and harmful to both men and women."
The technicality to which Davis referred is a state law that requires an unmarried biological father who wishes to parent his child to file within at least one business day of the child's birth a sworn affidavit that "set(s) forth his plans for care of the child."
The law states an unmarried father must strictly comply with that requirement, meaning almost good enough is not good enough.
There is no legal definition of what a "plan for care" is, and even though Thurnwald had an attorney write a multipage affidavit, the court ruled that the affidavit did not contain a plan.
Thurnwald is planning to end his quest for his son, for now.
"I've done everything in my power, under the sun, that anybody can do as far as fighting this out, fighting to be his father and raising my child," he said.
"Whatever happened was completely out of my control, and I did everything -- everything -- I could. This is a sad situation. I'm going to wait for the day he's in my arms, united with me -- hopefully sooner rather than later."
Thurnwald plans to place his name on Utah's Mutual-Consent Voluntary Adoption Registry, which one day might help his son contact him.
In the absence of specific details written by legislators, the two other appeals judges who heard the case, Russell W. Bench and Carolyn B. McHugh, wrote that a father must state in his sworn affidavit at least "that he has a source of income and identify who will care forthe child while he is working to earn that income."
There is no requirement under Utah law that an unmarried mother detail a plan to care for her child or risk losing custody.
Thurnwald's attorney, Dan Drage, said Utah adoption law seems to assume all unmarried fathers want the child placed for adoption to avoid the heavy burden of child support payments.
He said when the occasional responsible and interested unmarried father comes along, his rights are often trounced.
"You've got more of a protectable interest when someone wants to repossess a vehicle or collect on a debt. They have to give you notice and give you a hearing, and all you're talking about is a television or an automobile," he said.
"But we're talking about a child here."
Drage said the court acknowledged that it was obvious Thurnwald expressed his desire to be a father at the time of his son's birth.
"He filed (an affidavit), he has fought hard, and there's no doubt what his intention all along was: 'I want to be the dad,' " Drage said.
"Now the court is saying, 'We know what your intention was, but you
didn't put it on paper.' We have a piece of paper, but it doesn't say
the magic words, and so his true intention is overlooked."
Utah Sen. Greg Bell, R-Fruit Heights, an attorney, recalled
Thurnwald's victory before the Utah Supreme Court in 2007.
In that battle, Thurnwald convinced the state's highest court that the Constitution requires that his paternity affidavit be accepted even though he missed the statutory 24-hour post-birth deadline.
Thurnwald's child was placed for adoption on a Sunday before Labor Day, so the earliest he could file his affidavit with the court was Tuesday.
The Utah Supreme Court changed the law from a 24-hour post-birth deadline to a one-business-day deadline on equal protection grounds.
"We really want to balance the legitimate interests of the father, the mother and the adoptive parents -- and the child," Bell said. "And we don't want legitimate interests defeated by a technicality."
At the center of the case is a child who has spent more than four years with an adoptive family and knows no other parents. The court calls him Baby Boy Doe.
Had the court decided in Thurnwald's favor, an analysis of the best interests of the child may have been performed for the first time in the case.
Adam Pertman, of the Evan B. Donaldson Adoption Institute, said that's too late to consider what's best for children.
He said he's unfamiliar with the Thurnwald case, so he could not comment on the merits of the complaint, but said men are often treated unfairly in adoption law.
"These laws can cause as many problems as they resolve," he said. "These laws are not well-understood and they are not well-publicized,but then men are expected to have followed them really well."
Pertman also said a case such as Thurnwald's should be expedited so
that it doesn't take four years to decide.
Davis acknowledged that not knowing the "magic words," as Drage called them, put Thurnwald in an impossible bind.
"The lead opinion clearly observes that N.T.'s petitions are utterly deficient in 'setting forth his plans for care of the child,' " Davis wrote.
"It is entirely unclear, however, precisely what N.T. could have -- or should have -- done differently that would have yielded a different result in this case."