The Government Hiding Children From Fathers: Ohio's "Safe Haven" Law and the Separation of Powers Doctrine - 3

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Published Date Written by Erik L. Smith

 

A law can also violate the doctrine by circumventing notice rules by application. For example, In re Adoption of Knipper, [21] the count found a statute prohibiting adoptions from being attacked more than a year after the decree unconstitutional as applied to a particular parent. There, the constructive notice to the mother was invalid because the petitioner had not used due diligence to locate her. The mother learned of the adoption years later and sought relief from the judgment. The court granted relief, holding that, "The legislature does not constitutionally have the power to deprive a biological parent of parental rights without valid constructive notice." [22]

 

The legislature also exceeds its authority where it bestows jurisdiction to bind the court to unconstitutional results. That occurred in State ex rel. Ohio Academy of Trial Lawyers v. Sheward, [23]where a statute limited tort damage awards. The statute read: "[T]he court of common pleas shall not have jurisdiction to award compensatory damages for noneconomic loss that exceed the amounts set forth in section 2323.54 of the Revised Code." Knowing the Supreme Court had declared those damage caps unconstitutional, the legislature added: "The courts of common pleas were established by the Ohio Constitution as courts of general jurisdiction in Ohio, but the Constitution itself limits their jurisdiction to that which is expressly conferred by the General Assembly, including jurisdiction to limit consideration of noneconomic damages." The Ohio Supreme Court found a separation of powers violation: "We have held...that 'the jurisdiction of the common pleas courts is limited to whatever the legislature may choose to bestow.' However, we have never allowed this rubric to be employed in an effort to shield legislation from judicial review or deprive the courts of the jurisdiction to enforce a constitutional right." [24]

 

Application to the DCA

The DCA violates the separation of powers in all those ways. The pertinent rules are juvenile rules of procedure 13, 15, and 16, all enacted before the DCA. Juv.R. 13 states that where the court has granted a temporary protective order without notice, it must hold a hearing within 72 hours of issuing the order, if not the next day. The court must give written notice of that hearing to the parties by means reasonably likely to result in the parties receiving actual notice. [25]Whenever possible, the court shall provide an opportunity for hearing before proceeding without notice. Where the court proceeds without notice for the child's safety, it must give the parties notice of the action taken and give them an opportunity for a hearing about the continuing effects of the action. [26]

21.
507 N.E.2d 436 (Ohio Ct. App. 1986). 
22.
Id. at 438, applying Armstrong v. Manzo (1965), 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62. Note that Knipper has not applied where a parent ultimately receives notice and contests the adoption before the final decree is rendered. See In re Adoption of Hart, 577 N.E.2d 77 (Ohio App. Ct. 1989). 
23.
715 N.E.2d 1062 (Ohio 1999). 
24.
Id. at 1095. 
25.
JUV.R. 13(B)(3). 
26.
JUV.R. 13(E). 

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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