Huddleston Case: Strict Constructionism Down the Tubes

Published Date Written by Erik L. Smith

In re Petition of Antonio R., 2007 N.M. LEXIS 694 (N.M. 2007).



The mother surrendered the child for adoption three days after the birth. The prospective adoptive parents petitioned to adopt two months later. Testimony was disputed as to whether the father had known of the pregnancy. But the father undisputedly did not try to provide the mother with financial support before the adoption petition. Upon receiving notice of the petition from the adoption agency, the father filed in the New Mexico putative father registry, moved to establish paternity in the adoption proceeding, and requested a visitation order. The trial court found that the father should have known of the pregnancy, did not file timely in the PFR, and that his consent was unnecessary because he did not timely initiate a paternity action. The trial court also found that the father abandoned the child by not providing financial support during the pregnancy.


The Appellate Court reversed the abandonment ruling, reasoning that the law did not make pre-birth conduct part of the abandonment analysis. The Appellate Court held further that the father timely initiated a paternity action because the acknowledged father statute specified no deadline for doing so and the father moved to establish paternity before the adoption hearing. [1] Moreover, the pertinent statute imposed time restrictions only on some of the alternatives for establishing acknowledged fatherhood. [2] Thus, the legislature intended no time limit for initiating a paternity action. [3]



A biological father's consent to adoption was needed where he qualified as an "acknowledged" father. A man could qualify as an acknowledged father of a child placed before six months of age by having initiated an action to establish paternity. N.M.S.A. sec. 32A-5-3(F)(4)(a)(1). (See statutes quoted in the Appendix after this commentary.)



The Supreme Court reversed the Appellate Court, reasoning that, despite no stated deadline for initiating a paternity action, the adoption act as a whole showed an intent to limit the time for bringing a paternity action to before the placement or adoption petition, as the deadlines for other actions under the act were similar and the statute was written consistently in the past tense. The statute's wording also showed a legislative intent to require the paternity action be brought in a separate civil action, not by motion in an adoption proceeding. The father did not timely seek acknowledged father status where, despite having reason to know of the pregnancy, he did not try to establish paternity until after getting notice of the adoption petition. Thus, the father's consent to adoption was not needed. [4] The abandonment question was moot.



I disagree with the New Mexico Supreme Court. Because the statute specified no deadline for initiating a paternity action, the father's paternity motion made him an acknowledged father at the hearing. By not interpreting the statutes strictly as written, the court encouraged vagueness and ambiguity in law, and furthered the citizenry's inability to interpret laws for themselves. By adding words and presumptions to the acknowledged father definition, the New Mexico Supreme Court legislated from the bench. Any supposed justice in this specific case was not worth the bad precedent.


The court stated that the statutes should not be viewed in a vacuum, but rather, the whole Adoption Act should be considered to determine legislative intent. [5] But statutes say what they mean and mean what they say. Nowhere does the statute defining "acknowledged father" state a deadline for bringing the paternity action, or that a separate civil proceeding is needed--despite the legislature putting specific deadlines in for other requirements in that statute and throughout the Act. The proper interpretation is that the legislature purposely omitted a deadline. The legislature could have defined an acknowledged father as a man who "before the adoption petition filing, has initiated an action to established paternity." That would have been clear to everyone without further examination. That the legislature may have forgotten to use that wording did not give the court authority to do it for them.


The court noted that because (4)(a)(1) applied to adoptees "under six months old at the time of placement," a rationale reading of it "suggests" that the paternity action must be filed before the placement or adoption petition. [6] But "time of placement" establishes no deadline, as the subsections after that phrase give different deadlines themselves. The introductory phrase simply designates who the statute applies to.


The court also reasoned that because the statutes required the adoption petitioner to know the father's identity before petitioning, the adoption petition filing must be the deadline for the father's paternity claim. [7] But that proves only that the statutes are ambiguous. Thus, the statutes should be construed in the light most favorable to the parent who must read and follow them. Moreover, the natural parent, upon reading (4)(a)(1), would see no reason to examine the requirements about the adoption petition contents. And if the paternity action needed to be a separate action, then the adoption petitioner would need to search for paternity actions before petitioning because they would not get notice of the paternity action. Yet nothing in the court's opinion suggested that adoption petitioners had to search for paternity actions.


Now the legislature is rewarded for being lazy and for writing misleading laws that harm the ordinary citizens who must read and follow them. Lawmakers now know they can put requirements on parties that will confuse them or leave them unable to determine exactly what they must do without scrutinizing the entire adoption act for some other "suggestion." Even the Supreme Court could not discern the true intended deadline for the paternity action--the date of the placement or of the adoption petition filing. [8] Conjecture runs through the opinion. For example, the reference to past actions in the rest of the statute would "seem" to apply to (4)(a)(1); the text of the entire section "strongly suggests" that the deadline is the beginning of the adoption proceeding; [9] it would "appear" from the statute that more than a responsive motion was required.10 [10] If the Appellate and Supreme Courts cannot determine the statutory requirements with certainty, we cannot expect ordinary citizens to do so. Laws are written for ordinary citizens to follow, not just for lawyers and judges to interpret.


Other jurisdictions have reasoned that way. For example, in a Florida case, Guerra v. Doe, [11] the putative father did not acknowledge paternity until one month after the adoption petition. Florida required a putative father's consent to adoption where: "He has acknowledged in writing...that he is the father...and has filed such acknowledgment with...the Department of Health and Rehabilitative Services." [12] The court held: "The putative father...filed the required acknowledgment of paternity shortly after learning of the birth and petition for adoption of his natural child and within a reasonable time before the final adoption hearing. Consequently, Guerra falls within the category of fathers whose consent is required for the adoption of a minor child under the express terms of section 63.062." [13] Florida later changed its adoption laws to make the date of the filing of the petition for termination of parental rights the deadline for a father to claim paternity. [14]


That should happen here. One could reasonably interpret (4)(a)(1) to require initiating a paternity action before the adoption hearing. Given that interpretation, no point would be served by requiring the paternity action to be brought in a separate civil proceeding instead of in response to the adoption petition. Legislatures now know they can write vague and ambiguous laws and depend on the courts to fill in the blanks for them. If parties need to follow adoption laws strictly, then states must write adoption laws strictly. And courts must construe them accordingly. Any supposed justice in this specific case is not worth the bad precedent set by it.




Applicable statutes


32A-5-19. Persons whose consents or relinquishments are not required.


The consent to adoption...shall not be required from: ... (E) an alleged father who has failed to register with the putative father registry within ten days of the child's birth and is not otherwise the acknowledged father. (Emphasis added.)


32A-5-3(F). Definitions.


"acknowledged father" means a father who:...


(4) has openly held out the adoptee as his own child by establishing a custodial, personal or financial relationship with the adoptee as follows:



(a) for an adoptee under six months old at the time of placement:


1) has initiated an action to establish paternity;


2) is living with the adoptee at the time the adoption petition is filed;


3) has lived with the mother a minimum of ninety days during the two-hundred-eighty-day-period prior to the birth or placement of the adoptee;


4) has lived with the adoptee within the [90] days immediately preceding the adoptive placement;


5) has provided reasonable and fair financial support to the mother during the pregnancy and in connection with the adoptee's birth...;


6) has continuously paid child support to the mother since the adoptee's birth...; or


7) any other factor the court deems necessary to establish a custodial, personal or financial relationship with the adoptee;... [Emphasis added.]

In re Romero, 2006-NMCA-136 (N.M. Ct App. 2006), ¶19. 
Sec. 32A-5-3(F)(1-7). 
In re Romero, ¶20. 
In re Petition of Antonio R., 2007 N.M. LEXIS 694 (N.M. 2007), ¶51. 
Id., ¶26. 
Id., ¶27. 
Id., ¶20. 
Id., ¶21. 
Id., ¶17. 
454 So.2d 1 (Fla. Ct. App. 1984). 
Id., at 2 quoting then Florida Statute 63.062(1)(b)4. 
Id., at 2 (Emphasis added.) 
Florida Statute 63.054(1). 

The Ohio Putative Father Registry–the WHAT?

I am a single man. Yet I had been in Ohio for over a year before hearing of the Ohio Putative Father Registry, and then only in a Probate Law class. The professor was covering how a child could be adopted without the birth father's consent. "ORC 3701.061: A man who has sexual intercourse with a woman is on notice that if a child is born as a result and the man is the putative father, the child may be adopted without his consent pursuant to division (B) of section 3107 of the Revised Code." That section required the man sign the Putative Father Registry within thirty days after the birth to get notice of the adoption.


Ohio Putative Father Registry: The Basics

Unwed fathers are entitled to notice of petitions to adopt their biological children. Yet many fathers lose this right by not registering timely with the Ohio putative father registry (PFR).1R.C. 3107.062. Because adoptions are probate proceedings, lawyers practicing juvenile, domestic relations, or traditional probate law may not understand how the Ohio PFR applies.  At initial consultations then, attorneys may omit counseling fathers about the registry and refer them to attorneys with more specialized experience. But the strict registration deadline, and often unknown deadline date, demand that the father register immediately. Thus the attorney should consider counseling the client about the PFR and help him register that day before referring him. This article gives the information needed to do that.

Preventing Your Infant Child From Being Adopted Without Your Consent


Consult an adoption law or family law attorney. Otherwise: An unwed father has no absolute right to veto an adoption. You must take action to preserve your rights. Whether the mother is considering adoption or not, an unwed father should, as soon as possible and preferably before the birth:

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