The Government Hiding Children From Fathers: Ohio's "Safe Haven" Law and the Separation of Powers Doctrine

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Published Date Written by Erik L. Smith

 

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]

1.
OHIO REV. CODE ANN. § 2151.3515 - 3530 (Anderson 2002). 
2.
OHIO REV. CODE ANN. §§ 2151.3515(A), 2151.3516, 2151.3517(A)(5) and (B), 2151.3523(B), 2151.3524, 2151.3527(B) (Anderson 2002). 
3.
Ohio Attorney General's Reply to Motion to Dismiss at 4 in Smith v. Hayes No. 04-CVD-05-4975 (Franklin County), dismissed for lack of standing; affirmed at Smith v. Hayes 2005-Ohio-2961, 2005 Ohio App. LEXIS 2754 (Ohio Ct. App., Franklin County, June 16, 2005). 
4.
Id. 
5.
See Dayna R. Cooper, Fathers Are Parents Too: Challenging Safe Haven Laws With Procedural Due Process, 31 HOFSTRA L. REV. 877 (Spring 2003); Karin Dwelle, Comment: Adoption Without Consent: How Idaho is Treading on the Constitutional Rights of Unwed Fathers, 39 IDAHO L. REV. 207 (2002); Memorandum in Support of Jurisdiction of Amicus Curiae La Coordination des Actions Pour le Droit à la Connaissance des Origines in Smith v. Hayes, Ohio Sup. Ct. Case No. 05-1318 (arguing that the DCA amounts to the state encouraging harm against third persons as a tool in bargaining with persons contemplating crime.) 
6.
OHIO REV. CODE ANN. §§ 2151.3515(A), 2151.3516(A) (Anderson 2002). 
7.
OHIO REV. CODE ANN. §§ 2151.3524(A), 2151.3527(A) (Anderson 2002) (hereafter the "anonymity statutes.") 
8.
OHIO REV. CODE ANN. § 2151.3518 - 3520 (Anderson 2002), OHIO ADMIN. CODE § 5101:2-42-04(C-D) (2004). 
9.
OHIO REV. CODE ANN§ 5101:2-34-32.1(A)(4)(b) and (B)(4) (Anderson 2002). 
10.
OHIO REV. CODE ANN. § 2151.3519 (Anderson 2002). 
11.
OHIO REV. CODE ANN. § 2151.3528 (Anderson 2002). 
12.
OHIO ADMIN. CODE § 5101:2-42-95(A)(2) (2004). 
13.
Ohio Dept. of Job & Family Services, News release: http://jfs.ohio.gov/releases/rl112905.stm. (Last visited February 4, 2006). 

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

Summary

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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