The Government Hiding Children From Fathers: Ohio's "Safe Haven" Law and the Separation of Powers Doctrine
Note: This is an amended version of the original 2005 article.
Introduction
In 2001, Ohio enacted the Desertion of Child Under 72 Hours Old Act (DCA), the so-called safe haven law. [1] The DCA lets parents surrender their newborns anonymously to the state provided the infant is three days old or younger and unharmed. [2] The law aims to "save the newborns of parents who cannot care for their children but fear the legal or social consequences of openly surrendering the child or being prosecuted for abandonment." [3]The Act supposedly encourages mothers to transfer children safely instead of discarding them on a street corner or in a dumpster. [4]
Because "safe haven" laws involve infants, they affect fathers disparately. Writers have opined that safe haven laws violate fathers' due process rights, present policy problems, and amount to bargaining with potential criminals. [5] This note asserts that the DCA also violates the separation of powers doctrine.
The Act Itself: R.C. 2151.3515 - 3530 (DCA)
The DCA is not an adoption law, but an emergency measure under the juvenile code. The mother therefore does not voluntarily surrender her newborn, but "deserts" him. Yet the Act is invoked only when the mother "voluntarily delivers the child to an emergency medical service worker, peace officer, or hospital employee without expressing an intent to return for the child." [6]The mother then has an absolute right to anonymity and to leave the area without pursuit. [7] Children's Services takes emergency custody, and moves for temporary custody within twenty-four hours or the next working day. [8]Physicians examine the child for abuse or neglect, and Children's Services requests searches of missing person databases. [9]
Where the mother has used the anonymity right, the court need not give the father notice of the emergency hearing. [10]Instead, the father must speculate that his child was deserted, find the court, and get a DNA match at his own expense. [11]Time constraints make temporary custody to the agency virtually automatic. A permanent custody request is mandatory, absent a compelling reason to do otherwise. [12]after permanent custody is granted, the child becomes available for adoption. As of November 29, 2005, thirty-seven infants had been surrendered under the DCA.[13]