Another Erroneous Interpretation of Lehr v. Robertson

Published Date Written by Erik L. Smith

In the Interest of C.M.D., 2009 Tex. App.-Hous. (14 Dist.), June 25, 2009 (No. 14-08-00113-CV).



LDS, a private adoption agency petitioned to adopt C.M.D., a nine-month-old child. The unwed mother's affidavit stated that she had dated the unwed father for several months before the birth, but the father never supported or visited the child after the birth. The mother also swore his phone number was out-of-service. The mother also gave the agency the unwed father's name, but the father was unlisted in the Texas putative father registry (PFR), statutorily eliminating his right to notice. [1] Accordingly, the agency never notified the putative father or tried to find him.

On its own initiative, the trial judged declared the PFR statute unconstitutional for not requiring due diligence by the agency to find the father. The agency appealed, arguing that the registry was meant for situations like this where the unwed father appeared to lack interest in the child. That let adoptions be resolved quickly.


The Appeals Court held that the trial court did not err by considering the constitutional issue because of the statute's important interest in protecting "the integrity of the adoption process" and in quickly resolving the child's legal status. [2] That overrode the "deeply rooted" rule that courts reach constitutional issues only where unavoidable. [3] The Appeals Court found the statute constitutional because the putative father had shown no interest in asserting his parental rights. [4] In turn, a lack of evidence about the father's circumstances could not overcome the statute's presumed constitutionality. [5] The putative father possibly being aggrieved was an improper basis for the trial court to declare the statute unconstitutional. [6] The court reinforced its reasoning by citing Lehr v. Robertson [7] and Robert O. v. Russel K., [8] in stating that "even with a complaining father, the constitutionality of paternity registry statutes has been overwhelmingly upheld." [9]


I Disagree

The integrity of the adoption process is best protected by having all potential parties heard quickly. Had the agency successfully located this supposedly uninterested father, he would have consented and the child would have been adopted immediately. Alternatively, had the putative father not been found, due diligence would have been satisfied and the child would have been adopted immediately. On the other hand, had the father been found, and then contested the adoption, then, by the agency and Court of Appeals' reasoning, the robust constitutionality of the PFR statute would have prevailed and caused the father's rightful termination. Those options protect the integrity of the adoption process better than Texas having a constitutional ruling made with no opposing party to argue against the constitutionality of the statute.


Page Break

The Appeals Court misapplied Lehr and Robert O. regarding the constitutionality of the PFR. The statutes involved in Lehr and Robert O. entitled an unregistered putative father to notice if the mother had identified him in a sworn written statement. [10] The fathers in Lehr and Robert O. were unregistered and unidentified by the mother. [11] The fathers' rights were lost without hearings because they did not qualify for notice under the statute, and their lack of prompt action gave them no protection otherwise under the Due Process Clause. [12]


Here, the mother named the putative father. Naming the father outside the affidavit, then detailing his actions in the affidavit, should equate functionally to identifying him in a sworn written statement. It makes little sense to describe the specific father's actions about the dating relationship, lack of support, and last known phone number as being important, yet consider it critical that father’s name was communicated only orally. Thus, under Lehr and Robert O., the father here could well have been entitled to notice of the adoption petition, making due diligence to locate him required. In any case, neither Lehr nor Robert O. stands for the proposition that a "putative father registry" in itself fulfills due process. In fact, in Robert O., the New York Court of Appeals stated that the PFR and other statutory requirements presumed the father knew he had a child before the adoption was finalized, and the father lacked that knowledge. [13] Thus, the court did not find the father’s failure to register fatal. Id.


The purpose behind the PFR in Lehr and Robert O. was to locate and serve unidentified fathers. Perversely, the Appeals Court used the Texas registry to avoid finding an identified father. The trial court requiring due diligence was proper.

Tex. Fam. Code § 161.002(b). 
In re C.M.D., at *4. 
Id. at *4-5. 
Id. at *6. 
463 U.S. 248 (1983). 
604 N.E.2d 99 (N.Y. 1992). 
In re C.M.D. at n. 3. 
Lehr, 463 U.S. at Maj. n. 5 (citing then N.Y. Dom. Rel. Law §§ 111-a(2)(f) (McKinney 1977 and Supp. 1982-1983); Robert O., 604 N.E.2d at 101 (citing then N.Y. Dom. Rel. Law § 111-a(2)). 
Lehr, 463 U.S. at 251-52; Robert O., 604 N.E.2d at 100-01. 
Lehr, 463 U.S. at 264-65; Robert O., 604 N.E.2d at 103-04. 
604 N.E.2d at 101. 

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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