Safe Haven

Published Date Written by Erik L. Smith





Erik L. Smith




The United States used to have a significant child discard1 and infanticide problem. In the latter half of the nineteenth century, scores of infants were discarded in major cities.2 Between 1862 and 1872, New York City averaged ninety foundlings per year,3 excluding infanticides.4 During four years in the later 1800s, Philadelphia averaged over 120 infanticides per year.5 Similar figures in Britain brought declarations of an “epidemic.”6 States passed criminal laws to deter the behavior.7 New Jersey, for example, made it a crime to conceal a pregnancy, deliver a child in secret, kill a baby, or conceal an out-of-wedlock stillbirth.8

Over the next few decades discards decreased, due to improved child welfare practice, adoption,9 changed attitudes about illegitimacy,10 increased mobility for women,11 and the safety and availability of abortion.12 By the 1990s, the United States averaged less than 100 known infant discards per year.13 Child welfare had progressed and, regarding infanticide, succeeded.

But a moral panic14 was imminent due to adoption records becoming more accessible. In 1996, Bastard Nation: The Adoptee Rights Organization (“BN”) was formed.15 BN aimed to restore the right of access to original, unaltered birth certificates for all adult adoptees in North America.16 Initial success came in 1998 in Oregon through a ballot initiative that made original birth certificates available to all persons born there. 17 In 1999, Alabama restored adoption records access.18 Open records bills withstood constitutional challenges.19 By 1999, four states had laws opening adoption records to all adult adoptees.20 Three more states opened their adoption records to certain adoptees.21 Open records opponents could no longer rely on claims of birth parent privacy, breach of contract, and social stigma,22 to hide the misdeeds23 opened records would reveal. Suspected misdeeds included coercion of parents to surrender their children, record falsification, illegal means of obtaining infants, and refusals to update information.24 Sealed record advocates invented a new strategy to defeat open records.

It came in 1999, when 13 infants were discarded in one year around Houston, Texas25—a statistic never duplicated in any one county. Texas enacted a “safe haven” law, which let parents surrender their unharmed infants into substitute care without revealing any information.26 The state reasoned that a certain class of parents, fearing the legal or social consequences of surrendering their infants under traditional confidentiality procedures, would kill or discard their infants should they have to identify themselves.27

Advocacy groups, such as BN28 and the Evan B. Donaldson Adoption Institute (“Donaldson”), opposed the statutes.29 BN considered the safe haven movement a “tool to codify secret adoption relinquishment.”30 Donaldson criticized the lack of preventative measures, lack of counseling for distressed parents, and lack of due process for fathers.31

The National Council for Adoption, led by the late Dr. William Pierce, supported safe haven laws and sealed adoption records.32 Dr. Pierce admitted that “safe haven” laws countered “[d]isappearing privacy rights in adoption[.]”33 Despite the dubious constitutionality of anonymous surrender statutes, all 50 states enacted them by 200934 with little opposition.35 For example, Ohio’s amended safe haven bill in 2007, which extended the maximum age at which a newborn could be deserted, passed through the House and Senate almost unanimously.36 Other states saw similar popularity.37 In Hawaii, one of the last states to enact the law, the governor, citing concern for fathers, the native population, and family tradition, vetoed the bill twice.38 The legislature overrode the second veto.39

By 2011, two dozen law review articles analyzed the pros and cons of anonymous surrender laws. Two critical articles proposed sociological or cultural theories behind the popularity.40 Of the remaining articles, half a dozen discussed concerns about constitutionality.41 Most discussion about constitutionality focused on the due process rights of fathers as non-surrendering parents.42 The literature has almost ignored how anonymous surrender statutes conflict with state court rules and federal laws.43 Accordingly, this note describes how state anonymous surrender statutes violate state separation of power doctrines and the Supremacy Clause of the United States Constitution. The note also shows how anonymous surrender statutes are irrational and serve proponents’ agenda of avoiding contested adoptions and open records by frustrating executive and judicial procedure. Then, because anonymity makes challenges to anonymous surrender statutes non-justiciable, a cure must come through Congress’ spending power. Congress must enforce the Adoption and Safe Families Act of 1997 (ASFA) and withhold adoption assistance funds from states that let citizens use anonymous surrender statutes.

Part II discusses types of safe haven laws and how they allow for anonymity. Part III explains how anonymous surrender statutes conflict with court rules, the federal Indian Child Welfare Act of 1978 (ICWA), and the grant conditions of ASFA. The Ohio safe haven scheme provides a model. Part III also features legal arguments made against constitutional claims and this author’s rebuttal of them. Part IV explains why inclusive relief must come through Congress withholding adoption assistance funds.


Safe haven laws let parents surrender their unharmed infants to designated authorities (for this article “intermediaries”) anonymously.44 The laws aim to “deter mothers from leaving newborns in dumpsters” or other unsafe places.45 But parents can use the procedure for any reason, provided the child is unharmed.46 The anonymity right is the law’s main lure.47

For a parent to qualify for the anonymity right, the surrendered infant must be unharmed, i.e., not abused or neglected.48 Most safe haven schemes give parents immunity to criminal prosecution for surrendering the child, or make the safe haven procedure an affirmative defense to criminal abandonment or neglect.49 All safe haven schemes require direct transfers of the infant to the intermediary. A few states let parents relinquish infants to a personal representative who must make the transfer.50 Otherwise, safe haven laws differ in details, such as the maximum age at which an infant can be surrendered, the person to whom the child can be surrendered, the legal consequences of the surrender, and how anonymity is invoked.

With two exceptions, the maximum age at which an infant can be surrendered ranges from three to 60 days. North Dakota and Missouri make the age one year.51

Infants can be surrendered to professional staff at hospitals, police stations, and fire stations.52 Three states add staffed churches or “centers of worship” as safe haven locations.53 About a fourth of the states limit surrender locations to hospitals, health clinics, or emergency medical service providers.54 At least one state lets adoption agencies be drop-off locations if a registered nurse is on staff.55

In most states, a state agency takes custody of the surrendered infant. Only Florida limits custody to private agencies.56 A few states let custody go to a state or a private placing agency. For example, Michigan and Nevada let custody go to a “child placing agency.”57 If a parent fails to contact the agency within a certain time after the surrender, the custodial agency petitions to terminate parental rights (TPR). The time for a parent to contact the agency ranges from two to 90 days.58

Thirty-nine states let the parent withhold identifying information about the child and parents. Eleven states remain silent about anonymity.59 Some states require or encourage the intermediary to request identifying information yet let the parent withhold it.60 Two states forbid asking for identifying information.61 No state requires the surrendering parent to give identifying or contact information. One state, Georgia, requires the surrendering parent to prove her identity “if available.”62 If the parent claims not to have “proof of identity,” the intermediary must take the infant.63

This note concerns the constitutionality of the right to anonymity in safe haven surrenders in the preemption or separation of powers sense. Thus, for this note, safe haven schemes have two types: those that let surrendering parents withhold identifying information and those that remain silent about it. Due process is discussed only regarding how TPR is achieved, i.e., involuntarily or by implied consent.64


Anonymous surrender laws infringe on the state judiciaries’ rule-making authority,65 conflict with the federal ICWA,66 and violate the grant conditions of ASFA.67

Ohio’s Desertion of Child Act typifies state safe haven schemes that make surrendered infants state wards.68 Ohio is the only state to have a relevant69 court ruling on the constitutionality of anonymous surrender statutes.70 The Ohio law was also the subject of an administrative ruling regarding the applicability of federal law.71 Thus, this note uses the Ohio scheme as a model in the initial discussion of validity, alluding to other states’ laws as needed.

The Ohio scheme, called the “Desertion of Child” Act72, is an emergency custody procedure invoked when a parent “voluntarily delivers the child to an emergency hospital employee, emergency medical service worker, or peace officer without expressing an intent to return for the child.”73 The law was passed because “some distraught parents had secretly given birth and then left the newborns to die in trash cans or dumpsters.”74 The Act gave those parents “a way to anonymously leave their newborns with individuals capable of providing adequate care.”75 To invoke the safe haven law, the child must be unharmed, 30 or fewer days old, and transferred voluntarily to the intermediary by a biological parent.76

The scheme has two anonymity statutes. One gives the parent an “absolute right to remain anonymous.”77 The other prohibits the intermediary from “try[ing] to force the parent into revealing the identity of the child’s parents.”78

After the parent transfers the child, the intermediary contacts the County Children Services Department, which takes emergency custody, and moves for temporary custody of the child in juvenile court.79 If the court lacks the parents’ names, it need not notify the parents of the emergency custody hearing.80 The state petitions the court to declare the child “deserted.”81 The juvenile court must order DNA testing for any parent-child reunification,82 but reunification is not required. 83 Permanence for the child becomes the goal.84 The public or private placing agency must move to terminate parental rights absent “compelling reasons not to.”85 A private child placing agency may omit the child, parents, guardian, or custodian from the case plan.86

Separation of Powers

Anonymous surrender statutes violate the separation of powers doctrine by infringing on the court’s power to govern its proceedings. The Ohio Constitution, for example, vests authority to prescribe rules governing practice and procedure in the Ohio Supreme Court.87 Statutes in Ohio that conflict with earlier enacted procedural court rules lack force or effect.88 Ohio statutes and court rules require the court to give all parties notice of the adjudicatory and dispositional hearing.89 The Ohio legislature and the Ohio courts consider issuing summons procedural, thus governed by court rules.90

The relevant court rules are Ohio Juvenile Rules of Procedure 2, 15, and 16. Juv. R. 2(Y) makes parents necessary parties to juvenile court proceedings. Juv. R. 15(A) requires the court clerk to order the parties to appear at the adjudicatory or dispositional hearing. (An adjudicatory hearing determines whether the child is within the court’s jurisdiction, 91 e.g., whether the child is “deserted.” A dispositional hearing determines the action to take concerning that child,92 e.g., permanent custody to the agency.) Juv. R. 16(A) requires that notice by publication not be done until the petitioner uses due diligence to determine the missing party’s name and address for actual notice. A party may move for custody pending the outcomes of the adjudicatory and dispositional hearings.93 The court can grant those motions ex parte (without the opposing party present) if the child’s welfare requires immediate action.94 In that case, the court must hold a hearing to review the order within 72 hours, or by the end of the day after the day the order is issued, whichever occurs first.95 Before that hearing, the court must appoint a guardian ad litem for the child and give written notice of the hearing by means reasonably likely to give the party actual notice.96

The United States Constitution requires the government to give interested parties notice when it seeks to deprive them of a protected liberty interest.97 Due process does not always require that an interested party receive actual notice,98 but the “means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it[.]”99 Accordingly, due diligence requires “taking steps which an individual of ordinary prudence would reasonably expect to be successful in locating a defendant’s address.”100 Thus, due diligence includes asking the other parent and family members about the missing parent’s identity and address.101

The anonymous surrender statutes conflict with juvenile rules 15 and 16. Child desertion proceedings begin with a complaint,102 making the parents respondents. Because the court proceeding is adversarial, the lack of notice caused by the anonymous surrender statutes requires that the complaint and custody orders be vacated.103

An Ohio court found that the anonymity provisions conflicted with juvenile rules 15 and 16.104 In In re Baby Boy Doe,105 the mother invoked the anonymity provisions. The juvenile court granted the child’s request to dismiss the county’s motion for permanent custody,106 finding a conflict between the anonymity provisions and the court rules.107 Issuing summons or notice was a procedural act governed by the rules, not a substantive act governed by the statutes.108 Juvenile Rule 15(A) required the clerk to summon the parties,109 which, under Juv. R. 2(Y) included the parents. Juv. R. 16(A) required the County to use due diligence to locate a missing parent.110 Due diligence included asking the other parent and family members about the missing parent’s identity and residence.111 The juvenile rules, in turn, were enacted before the anonymous surrender statutes became effective.112 Accordingly, the parent’s right to remain anonymous, and the prohibition against forcing a party into revealing the parents’ identities, violated the Ohio Supreme Court’s rule-making authority, making the safe haven anonymity statutes ineffective.113 That conflict required dismissal of the permanent custody motion and vacation of the complaint and temporary custody order.114 Thus, state statutes that let parents stay anonymous in juvenile court violate the separation of powers doctrine.

The court in Doe (Ohio) did not reveal the state’s arguments. But the Ohio Attorney General has argued that the Doe (Ohio) court could have avoided a conflict by ordering notice by publication because the intermediary (police officer, hospital staff, or firefighter) was not a judicial officer.115

That argument ignores due diligence requirements when serving by publication. Before notifying a party by publication, the state must use due diligence to learn the parents’ names and addresses116 and include the missing party’s name and last known address in the publication notice.117 Thus, merely asking the deserter for that information is insufficient because she is not “missing” when asked for it. Instead, due diligence requires getting the surrendering parent’s name and address if possible.

Even if the mother in Doe (Ohio) could withhold information about other parties, she lacked a constitutional right to withhold her name and address because it would leave the child unable to cross-examine her andleave interested relatives unlocatable for the other custody hearings.118 A child can pursue evidence relevant to the adjudications and dispositions the court must make.119 TShat evidence resides in the parents.

The statutes’ invalidity is not avoided by an intermediary deciding to allow anonymity, as the statutes’ compelled result, not the private persons’ mental urge, determines whether a statute is invoked. 120 And state action cannot be avoided by appointing private parties to be intermediaries.121 The safe haven scheme requires the intermediary to accept the infant and notify Children Services of the acceptance.122 Children Services performs the intake with the police or duly authorized officer of the court.123 Thus, police officers are akin to officers of the court when taking a child into custody.124 Thus, the intermediary is not the private actor he was before the safe haven law was enacted, but, through statutory designation, an arm of Children Services. By removing all discretion from the intermediary, the statutes restrain the “private” actor in a new way. Thus, state statutes that allow anonymity are unconstitutional by subverting the judiciary’s inherent power to control its proceedings.

The state has argued that, because the safe haven scheme refers to an emergency hearing to determine whether the child is deserted, and the “court is relieved of the need to notify the parents only if their identities are unknown, notice requirements for temporary and permanent custody hearings remain intact.”125 But the court rules require issuing summons to parents when they can be identified with due diligence.126 Thus, statutes that let a party or state actor reduce the court’s ability to issue summons conflict with the rules requiring due diligence and summons. The “right to remain anonymous” at the emergency stage then interferes with the court rules by eliminating the state’s ability to use due diligence later. The rules regarding temporary and permanent custody do not remain “intact” but are thwarted by the anonymity.

Even where the court proceeds ex parte in an emergency hearing, the court must notify the parties of the dispositional hearing in the way most likely to cause actual notice.127 The surrendering parent, as a party, is entitled to notice of all the hearings. Thus, due diligence is needed upon surrender to identify the parents.

Courts in at least 30 states have found that their procedural rules control over statutes in conflict with those rules.128 That doctrine applies to states even if their constitutions are silent on the issue.129 State courts have held that “[a] court’s inherent power extends to all matters reasonably necessary for the administration of justice within the scope of its jurisdiction, subject to or not in conflict with valid existing laws and constitutional provisions.”130 “[T]his implied authority allows the court to dictate its own rules, even if they contradict rules established by the legislature.”131

A state-by-state analysis of the potential rule conflicts is unfeasible. But states with court rules requiring due diligence to identify and locate parents before notifying them by publication make anonymous surrender statutes invalid. Even if anonymous surrender statutes escape separation of powers violations in some states, they violate the Supremacy Clause of the United States Constitution by conflicting with federal law.

Federal Preemption

The Supremacy Clause of the United States Constitution makes federal laws enacted under its enumerated powers the “supreme Law of the Land.”132 Thus, federal laws bind state judges regardless of what a state constitution or state law says.133

When Congress has not expressly preempted state law or removed an entire field of law from the state realm, courts consider whether the state law conflicts with the federal law’s force or purpose.134 The latter theory, termed “conflict” or “objective” preemption,135 occurs when a party cannot comply with both the state and the federal law or when the state law presents an obstacle to achieving and executing Congress’s full purposes and objectives.136 Thus, where Congress does not control the whole field of legislation, state law can differ from federal law if it does not frustrate the federal law’s purpose.137 Accordingly, federal preemption is avoided where the state and federal laws harmonize.138 But when the state law frustrates the federal goal, the policy behind the state law becomes immaterial, and the federal law prevails.139

Similarly, the state cannot avoid preemption by having a separate purpose for its law.140 (E.g., the state could not make a discharge in bankruptcy of a car accident tort judgment ineffective by enforcing repayment by withholding driving privileges.) The court asks whether the state law frustrates the federal law’s “full effectiveness.”141

ICWA preempts anonymous surrender statutes142 because the latter compromise the placement preferences Congress intended for Indian children placed in state custody or for adoption. Congress enacted ICWA to prevent the removal of Indian children for placement in non-Indian homes.143 Thus, the tribe’s interest in the child is distinct from that of their members.144 Accordingly, in any state court proceeding for the foster care placement of, or TPR to, an Indian child, the Indian child’s tribe and Indian custodian have a right to notice and to intervene in the suit.145 The tribe can examine all documents filed with the court upon which any decision about the placement or TPR may be based.146 Thus, the Indian child’s tribe, or potential tribe, must be notified.147

Tribal law determines whether the child is eligible for membership.148 Voluntary foster care placements, or voluntary TPR, must be consented to in writing and signed before a judge.149 If a parent’s identity or location cannot be determined, notice must be given to the United States Secretary of the Interior.150 After a final order of adoption, the court must give the Secretary a copy of the order and the information needed to find the biological parents’ names and addresses.151 If a parent has filed an anonymity affidavit, the court must include that affidavit with the other information, of which the Secretary must ensure confidentiality.152

Also, in any pre-adoptive or foster care placement, a preference shall be given to a placement with (i) a member of the Indian child’s extended family, (ii) a licensed foster home specified by the tribe, (iii) an Indian foster home authorized by a non-Indian licensing authority, or (iv) a suitable institution approved by an Indian tribe or operated by an Indian organization.153 Exceptions apply only for good cause.154 In any adoptive placement of an Indian child, the court must prefer placement with (1) a member of the child’s extended family, (2) other members of the child’s tribe, or (3) other Indian families.155 Where a consenting parent desires anonymity, “the court or agency shall give weight to [that] desire in applying the preferences.”156

Courts analyze preemption questions involving ICWA under the conflict preemption rubric.157 The subversive effect anonymity statutes have on ICWA is exemplified in a Montana Supreme Court case, In re Baby Girl Doe,158 where the unwed mother was eligible for membership in a recognized Tribe.159 Three days after the birth, the child was taken from the hospital under a dependency petition.160 The child was found dependent and placed in foster care until available for adoption.161 The mother relinquished parental rights, requested anonymity, and asked the court not to notify her family or the tribe about the placement.162 The trial court ordered that the tribe be notified of the TPR proceedings and that the mother’s identity be withheld.163

The tribe intervened and requested information about the mother and her family so the tribe could advocate for the placement preferences.164 The trial court denied the request, finding that, though the anonymity provision conflicted with the placement preferences, the mother’s anonymity wish outweighed the tribe’s interest in enforcing the preferences.165 The trial court reasoned that it could satisfy ICWA’s purposes without revealing the mother’s identity to the tribe because the court had enough information to satisfy the placement preferences.166

The Montana Supreme Court reversed, ruling that the conflicting provisions had to be construed to achieve ICWA’s principles most optimally.167 Applying Mississippi Band of Choctaw Indians v. Holyfield,168 a United States Supreme Court case, the Court held that the desire for anonymity could be considered if it did not conflict with ICWA’s purpose.169 Giving primary importance to the anonymity request defeated the tribe’s right to meaningful intervention and might have defeated the extended family preference.170 To advocate for the extended family placement preference, the tribe had to know who the mother and her extended family were while respecting the mother’s privacy as far as possible.171 Thus, the mother lacked an absolute anonymity right.172

The balancing act that the Doe (Montana) court performed shows that the right to anonymity in safe haven schemes goes too far. Both the trial court and the State Supreme Court in Doe (Montana) found a conflict between the placement preferences and the anonymity provision in ICWA. Both courts reasoned that the resolution lay in balancing the competing interests between anonymity and placement preferences. The courts differed only about which provision had priority. Thus, even had the Montana Supreme Court affirmed, the trial court had identifying information to use in enforcing the preferences.

State anonymous surrender statutes, in contrast, remove the trial court’s ability to balance anything. By frustrating identification from the start, the anonymous surrender statutes eliminate the information the court and the tribe need to enforce the placement preferences. Had the mother in Doe (Montana) surrendered the child anonymously at a hospital, the county and the trial court would have been unable to identify the tribe or know that the child was an Indian child. Accordingly, the Tribe would have lost an eligible tribal member based on the mother’s wish, in contravention of both Holyfield and Doe (Montana). Even if the mother identified the tribe to the intermediary while remaining anonymous, the tribe and the court would have been unable to enforce the placement preferences to the extent Congress intended because the tribe would lack information about the mother’s family. Thus, letting a parent “remain anonymous” translates to the state giving a parent an absolute right to avoid or marginalize ICWA. Thus, ICWA preempts state anonymous surrender statutes.

Safe haven proponents argue that preemption is avoided by requiring the petitioner to notify the Secretary of the Interior when a parent withholds personal or tribal information under § 1912(a).173 But § 1912(a) does not let parents withhold identifying information about themselves, the tribe, or the child but contemplates a lack of information occurring. The need to rely on a parent for information does not imply Congressional permission for the parent to withhold it. And nothing in ICWA lets parents withhold their identities from the court. On the contrary, the anonymity affidavit asks the court and the Secretary to keep the information confidential.174

Also, arguing that Congress contemplated and approved of anonymous surrender under ICWA because it inserted § 1912(a) for dealing with foundlings, admits that the state anonymous surrender statutes would be preempted if ICWA omitted § 1912(a). Just as the placement preferences and the anonymity provision in ICWA must be construed to avoid thwarting ICWA’s purposes, the procedures for foundlings must be construed to avoid thwarting ICWA’s purposes. One achieves that construction only by deeming § 1912(a) meant for situations where the child was suspected to be an Indian child but discarded by a parent who is now missing. Even if that resembled anonymous safe haven surrender, ICWA’s foundling provision was meant as a way to react to that situation, not a way to create it. To achieve the full effectiveness of ICWA’s placement preferences, surrendering parents must identify themselves so due diligence can be used to identify potential Indian children and tribes. Anonymous surrender statutes sidestep ICWA and thus are preempted.

Contractual Preemption

Anonymous surrender statutes also violate conditions the states have agreed to abide by to be eligible for federal adoption and foster care assistance.175 State laws can be invalid by opposing a condition upon which the state’s reception of certain federal monies is based.176 The Supremacy Clause is not invoked in that situation because the federal enactment governs matters outside Congress’ enumerated powers.177 Thus, the states can reject the conditions and forfeit the federal funds.178 But should the state accept the funds, it must comply with the grant conditions.179

A state law inconsistent with the grant terms and conditions is invalid to the extent of the conflict.180 The federal legislation is valid if it pursues the general welfare, its conditions are unambiguous and reasonably related to the federal interest being advanced, and the Constitution does not bar the grant condition.181 A compelling state interest cannot justify a state policy that conflicts with the federal funding statute.182

Anonymous surrender laws thwart 42 USC § 671(a)(29) of ASFA, which requires the state to try to locate the child’s immediate relatives.183 ASFA balances the interest in preserving families with the child’s need for early permanence.184 ASFA achieves that balance by giving parents and relatives of removed children a fair chance to take custody of or reunify with the child.185 But once reunification becomes unlikely, adoption becomes the priority.186 The states have adopted the policies and procedures in ASFA to be eligible for foster care and adoption assistance subsidies.187

ASFA conditions adoption subsidies upon states having plans that advance that balancing purpose.188 Thus, for a state to be eligible for federal payments, it must have a plan approved by the Secretary that provides reasonable efforts to reunify removed children with their families and notify relatives of the removal.189 42 USC § (a)(15)(ii) requires the state to use reasonable efforts to “make it possible for a child to safely return to the child’s home[.]” But the reunification efforts need not “be made with respect to a parent of a child if...(i) the parent has subjected the child to aggravated circumstances (as defined in State law, which definition may include...abandonment.”) Subsection (a)(19) requires the state to consider giving placement preference to an adult relative. Amendments to ASFA (PSSFA) recognize safe haven laws as a “family preservation service” and authorize appropriations to be spent for their promotion.190

Anonymous surrender statutes conflict with subsection (a)(29) of § 671:

After 30 days of the removal of a child from the custody of the parent...the State shall exercise due diligence to identify and provide notice to all adult grandparents and other adult relatives of the child (including any other adult relatives suggested by the parents), subject to exceptions due to family or domestic violence[.]”191


Removed” applies to all children placed in substitute care, not just to children removed by the state.192 No court has found those ASFA provisions unconstitutional. And no one disputes that subsection (a)(29) pursues the general welfare, is clear, and reasonably relates to permanence and increasing child safety.193

No appellate cases have involved subsection (a)(29). But anonymous surrender statutes conflict with it by making due diligence impossible to perform when the parent uses the “right” to withhold all information. In fact, the anonymity provisions aim to make due diligence unenforceable.194 The ASFA language in state safe haven laws shows that. For example, New Jersey’s safe haven scheme, one of the first safe haven laws,195 relieves the state from having to “search for relatives of the child as a placement option” if the parents remained anonymous.196

In re Appeal of Hamilton PCSA,197 an agency proceeding, also shows the conflict. There, adoptive parents of a child surrendered under the Ohio safe haven scheme were ineligible for economic adoption assistance because state agency rules198 required the biological parents’ names and incomes in assessing the adoptive parents’ eligibility.199

Due diligence begins by obtaining the parent’s identity and address when available. At least one parent’s identity and address are available at the first stage of the state service, i.e., when the parent transfers the child to the intermediary. The requirement in subsection (a)(29) that due diligence be used to identify relatives “within 30 days after the removal of a child” means the state must act on the information it obtained within 30 days, not wait 30 days before trying to obtain it.

Congress did not intend to deny relative participation or placement on the fiction that an infant is in danger if the parent desires anonymity. No safe haven scheme makes danger, a parent’s mental state, or a parent’s inability to care for the child a prerequisite to using the service. Safe haven laws just present a new procedure for placing one’s child in substitute care. That some states find their anonymity provisions worthwhile if they save only one life200 proves that the saving of a life is speculative and that the law is susceptible to widespread misuse. How confidentiality would not achieve the same goal remains unclear. A child’s life can be saved confidentially—which temporary and permanent surrender or agreed dependency complaints have done for decades.

Conflict is not avoided by the PSSFA Amendments, which codify federal appropriations to states to promote family preservation services such as safe haven surrender.201 The right to “anonymity,” a procedural right, differs from the right to “abandon,” a substantive right. The Amendments state that safe haven programs should provide a way for a parent to “safely relinquish a newborn infant at a safe haven designated pursuant to a state law.”202 The Amendments do not say that the method must allow anonymity. The words “at a safe haven designated pursuant to state law” refer to sites designated as safe haven locations. One can abandon a child safely and non-anonymously. Congress likely remained silent about anonymity to avoid ambiguity, constitutional challenges, and intra-statute conflicts, as in Doe (Montana).

The aggravated circumstances cited in subsection (a)(15) do not justify anonymity either. That provision enacts exceptions to reunification for reasons such as domestic violence or abandonment, with the state free to define “abandonment.” Even if states include safe haven surrenders in their abandonment definitions, the state cannot make the anonymity procedure itself an aggravated circumstance. Congress did not intend “aggravated circumstances” to be state-created or state-assisted.

Safe haven proponents do not grasp this point because they see the safe haven surrender as a simulated child discard instead of a new way to place a child in substitute care. The intermediary is the initial contact in achieving that placement. The goal behind the new procedure is to circumvent due diligence and notice requirements required in traditional procedures (e.g., adoption, confidential surrender, temporary surrender agreements). Proponents conclude that because the state has decriminalized safe discards (e.g., surrendering of newborns at hospitals), which had often caused unknown parentage, the parent chooses that same anonymity when using a safe haven, which frustrates the rights of others no more than abandonment at hospitals did. In both cases, the state’s inability to use due diligence to identify the parents, they opine, results from private action.203

But unlike the hospital worker in the formerly illegal hospital drop-off, the hospital worker in the safe haven procedure no longer can choose whether to require the parent to give parental information. All discretion is removed from her. That the hospital worker or other intermediary might choose to let parents remain anonymous does not make the behavior private because the statute commands that result.204 The intermediary’s lack of discretion in acting makes him a surrogate of children services, hence a state actor and the initiator of a state service. The state cannot substitute its actors with private persons to perform governmental functions and then call it “private action.”205 Instead of telling parents to surrender the infant to a state worker, safe haven laws let parents surrender the infant at certain places to certain persons who then summon the state worker. That makes the intermediary an instrument of the state. Thus, the state has not decriminalized the abandonment of yesteryear but enacted a new procedure for placing infants in substitute care. “Abandonment” is a misnomer, as the safe haven service requires the participation of at least two actors, one of whom, the intermediary, is directed in his actions.206

Letting parents abandon children anonymously undermines the effectiveness of the ASFA by destroying the balance for which subsection (a)(29) strives. Thus, the anonymity provisions frustrate the purpose of ASFA. Accordingly, anonymous surrender statutes are preempted by at least three bodies of law: state court rules, federal laws, and federal grant conditions.

Anonymity Gone Wild

The argument that child safety is a compelling interest that justifies anonymity is illogical due to the conflicts described. But even absent a conflict between state and federal law, the argument fails by assuming danger when a parent uses the anonymity right. The circular reasoning compels legislatures and courts to expand the anonymity right to parents who refuse to follow the law and who want secrecy for reasons unrelated to danger (e.g., wanting to avoid future personal contact from the child, a contested TPR, or the red tape of traditional adoption surrender). For example, an unharmed newborn left alone on the fire station steps, wrapped in bags and towels, was within the spirit of delivering a baby to a firefighter207 at a fire station.208 The baby stayed on the steps unattended for an hour in the early morning before a resident called the Fire Rescue Engineer.209 The Fire Rescue Engineer found the child outside with a note in a bag: “Please find her a good home. I’m sorry. Thank you. Birth mom.”210 The safe haven Chapter Coordinator stated, “It’s tragic, but because this child was brought to a location where it could be helped and assisted, it’s a blessing. It’s a good thing, we know [the safe haven law’s] working.” The Chapter coordinator, it turned out, had adopted a safe haven infant herself.211 Her child, then seven years old, and “benefitting from the love and affection of the only parents he has ever known,” stated: “How they raised me was good, and life really poured into me.212

The quotes in the article show the agenda behind the law. The mother’s note, and the infant having been wrapped in towels with accompanying bags, spoke against any homicidal urge. That the mother did not trust the anonymity right enough to approach the Fire Engineer shows that the anonymity law did not work. And no seven-year-old spontaneously says, “How they raised me was good, and life really poured into me.” Any decent person—even if misguided—would have expressed gladness at the discarded child being unharmed but also grave disappointment that the parent lacked faith in the anonymity promise. A responsible safe haven coordinator would have asked the prosecutor to send a clear message that this is not how the safe haven law works and that the right to anonymity leaves no excuse for refusing to transfer the infant lawfully. The safe haven coordinator’s child benefitting “from the love and affection of the only parents he’s ever known” is rhetoric placement parents use in contested infant adoptions when they do not have the law behind them.213 The line had no purpose in the article. The comments make sense only if the criterion for success is having one more unharmed infant available for uncontested adoption and with their identity erased. That spirit was met.

Spirit of the law was also urged by a safe haven promoter where a newborn was abandoned on a bench outside a Florida hospital emergency room.214 In another case, officers at an Illinois police station took an infant who was five months over the safe haven age limit without obtaining the mother’s identity.215 Why the police could not detain or pursue the mother was unexplained. In other cases, boarder babies (babies born in hospitals and left there)216 were treated as safe haven cases despite the lack of danger.217 The “danger” assumption becomes so self-fulfilling and broadly applicable that the policy behind anonymous surrender shifts from protecting a vulnerable class of infants to giving all parents an unfettered right to frustrate court procedure.

In In re Doe (New Jersey), the phenomenon was exemplified where the state wanted to treat a boarder baby as a safe haven infant, despite the statute’s clear wording to the contrary.218 The New Jersey statute219 let a parent deliver their unharmed infant anonymously to a police station or “emergency department of a licensed general hospital.”220 If the parent showed no intent to return for the child, the agency had to petition for TPR within three weeks of receiving the child.221

The Spanish-speaking mother was admitted to the maternity ward, where she gave the staff her name and contact information.222 After the birth, the mother “indicated” that she wished to surrender the child for adoption anonymously.223 She received information about the safe haven law in Spanish and was interviewed by a Spanish-speaking social worker because she had “mentioned adoption.”224 In the interview, the mother requested complete anonymity.225 She explained that she had one other child and that the father of this child had disappeared and was not in contact with her.226 She claimed she couldn’t raise another child, “especially with no help.”227 The mother asked the doctor to write a letter stating she had miscarried to explain the baby’s absence to her family.228 The doctor wrote a vague medical leave letter instead.229

After the mother was discharged, the staff consulted the hospital lawyers about whether the child qualified as a safe haven baby.230 The lawyers responded that, under the statute, the mother would need to return to the hospital and take the infant to a police station or hospital emergency room.231 The social worker called the mother, told her the situation, and sent a pre-paid taxi to her house.232 The mother never met the taxi.233 So the hospital redacted the mother’s identifying information from their records and relinquished the child to the agency, stating that the mother had given birth in the hospital and left the child there under the safe haven law.234 The agency took custody of the child and petitioned for guardianship with a plan of adoption by the placement parents, with no notice to the natural parents.235 The agency asked the court to declare the child a safe haven baby so the mother could stay anonymous and the agency could seek TPR.236

The court did so, reasoning that the mother had shown her lack of intent to return by refusing to meet the taxi after the lawyers had “exhibited some confusion” over the child’s status.237 The court explained how the legislature “anticipated the need for a more expansive set of safe haven sites than hospital emergency rooms.”238 Legislative findings showed that the safe haven law aimed to give “mothers of unwanted infants, who may otherwise end up in dangerous or deadly circumstances, a way to safely and anonymously surrender their child without risk to the child’s life or health.”239 And a government website indicated that the safe haven law applied to babies delivered in hospitals.240 That could lead mothers to believe that a hospital delivery would not deprive them of the anonymity and legal protections that “Jane Doe so very much wanted.”241 Also, a pregnant woman who read the website and went to the maternity ward after approaching the emergency room might believe she was following the safe haven law.242 Because giving birth in the hospital was better than encouraging mothers to give birth outside the hospital, Jane Doe was considered to have gone to the emergency room.243 Accordingly, the infant was a safe haven baby, making notice to the mother unnecessary.244 The promise of anonymity also had to be upheld because sending notices to the mother could have had serious family consequences.245 But the state needed to wait 120 days to see if the father showed up or serve him with notice of the TPR proceedings if the agency gained information about him.246

The New Jersey court used a results-oriented approach to expand the target group from “at-risk” parents to all parents of newborns. Ironically, traditional adoption could have better served the mother’s desires, as adoption did not require notice to relatives247 or deserting fathers. Notice to a father of adoption proceedings in New Jersey was unnecessary if his identity remained unknown 120 days after the birth, or by the preliminary hearing,248 or he had not acknowledged paternity.249 Where a mother consented to adoption and waived notice of hearing, neither she nor her family needed to be notified.250 But under ASFA, relatives have standing to intervene, appear, or challenge the court orders should they discover the truth. Was the mother counseled on any of that? Would it have made a difference in her choice? From all appearances, the hospital and the court promoted the safe haven law upon hearing the buzzword “anonymous.” The 120-day wait for the father was an empty gesture. By the court’s logic, the father’s appearance would cause the serious family consequences that notice to the mother would cause—by incidentally notifying her family.

The court also erred from every legal angle. The hospital attorneys were not confused about the law. They followed the statute’s clear text, which required a parent to deliver the child to specific places should they wish to invoke the safe haven law. A parent motivated enough to invoke the safe haven law should have had no problem following that advice—especially when a pre-paid taxi is sent to accommodate them. Therefore, the mother’s refusal to take the taxi was a refusal to invoke the safe haven law since an intention “not to return” for the child is common to both adoption and safe haven surrender.

The court’s conclusion about legislative intent and history was improper because the statute’s text was clear. And using the website in applying the anonymity statutes to babies born in hospitals was opportunistic because an executive agency website constitutes neither law nor legislative history. Instead of interpreting the safe haven statutes as written, the court predicted how a parent might interpret the website and then rewrote the statute to fit it.

Even more glaring is that history spoke against the New Jersey safe haven law applying to babies born in hospitals. In 2004, when New Jersey State officials were planning to promote the safe haven law,251 they also planned a campaign to stop New Jersey’s “disturbing” boarder baby problem.252 Human Services Commissioner, James Davy, citing half a million dollars to promote the safe haven law, said he wanted to “flood the neighborhoods” to advertise it.253 The article described the safe haven law as letting parents “drop off unwanted newborns at hospitals.”254 A month later, Davy announced the allocation of $300,000 to determine how to stop New Jersey’s boarder baby problem.255 The goal was to get family members to take the babies home.256 Said Davy: “We must do whatever it takes to stop this disturbing problem...This additional funding…will…help more boarder babies go home with relatives.257

Therefore, the New Jersey legislature meant to limit its safe haven law to distraught parents who gave birth in secret and were in a panic about what to do. This mother in Doe (New Jersey) gave birth in a hospital and refused to comply with the safe haven law despite chances to do so. The court should have declared the infant a boarder baby. Instead of requiring parties to follow the law, the court twisted the statute so that the mother could achieve her desired result: secret adoption. The court called that a “favorable policy” while ignoring the unfavorable policy it had created: any mother who gives birth anywhere can achieve a secret adoption of her newborn on request in New Jersey. No state wants to encourage homicidal parents to give birth unsafely. But a speculative inability to avoid that result without violating the constitutional rights of indispensable parties does not justify the over-inclusiveness of the law. Only by perverting principles can one call that a compelling interest that justifies a lack of notice. The circular reasoning is complete: The state must let any parent of a newborn frustrate notice procedure because only a parent whose child is in “danger” would want to do that. Safe haven proponents then twist that absurdity into a compelling interest by calling it a saved life.

The case opinion in Doe (New Jersey) never depicted anyone trying to get to the bottom of the mother’s problem so they could educate her on her options. By proponents’ theory, safe haven deserters are parents who may see “no other option.”258 Why not help the parent see other options? The first step is to determine what is motivating the parent to her desperation. Was the mother in Doe (New Jersey) an illegal resident who feared deportation? Did she fear domestic violence? Did she know that traditional adoption surrender did not entitle relatives or deserting fathers to notice of the adoption? If the mother returned for the child, would she be denied reunification due to the “family consequences” that would presumably result? Or would the state ignore that presumption even more quickly than it had presumed it?

One also wonders why the mother’s words in Doe (New Jersey) were not interpreted as a request to surrender the child for adoption. Despite being informed of the safe haven procedure, the mother never stated that she wanted to use it. According to the opinion, after being told she was not at a safe haven location,259 the mother “repeatedly requested to give the child up for adoption with complete anonymity.”260 She then expressed fear of her family knowing about the adoption,261 which notice to her or her family would work against.262 The father, in turn, was out of contact with her and had “disappeared.”263

The word “adoption” is important because the proceeding in the New Jersey court, as in all safe haven cases, was adversarial in that TPR of the mother and father were involuntary. That is a main myth about the safe haven law—that the relinquishment results in a non-adversarial, or consensual, adoption surrender. Safe haven services are advertised with language that tells the parent that they are placing their child for adoption. For example, Ohio’s advertisement states that the surrendering parent will face “no legal consequences” for choosing a safe haven surrender.264 And:

The professional staff person who accepts the baby will contact the county children services agency; and the baby will be placed in an adoptive home. There are many families who want to adopt a baby.265


In truth, the child becomes the subject of a desertion complaint and a motion for permanent custody by the state.266 Thus, the parent faces legal consequences—TPR after being adjudicated a deserter. The advertisements prey on the public’s ignorance about the distinction between adversarial and non-adversarial proceedings. TPR can be non-adversarial only if the parent consents to TPR. In that sense, adoption is contractual.267 The adversarial process in child removal cases lets parties respond to the state’s complaint and present arguments about custody and reunification. But the safe haven parent has not waived the right to be heard. The advertisement misrepresents the procedure as a non-adversarial adoption surrender when it is an adversarial lawsuit brought by the state against the parent.

Implied Consent to TPR Versus Involuntary TPR

The misrepresentation is not cured by considering the surrender to be implied consent to TPR.268 Implied consent is impossible if the statute presumes duress.269 Consent means waiver, and waiver of parental rights must be made freely, knowingly, and voluntarily, i.e., without undue duress.270 A parent consenting to adoption out of fear for the child’s safety, or grave family disgrace, constitutes duress sufficient to void the consent.271 Safe haven proponents waffle between their claim that anonymous surrender statutes targets parents who are in a mental state so severe that their only perceived option is to discard their infant and their claim that the parent is in a mental state sound enough to waive her parental rights freely, knowingly, and voluntarily.

All Anonymity Statutes are Invalid


Safe haven schemes are not saved from invalidity by requiring intermediaries to ask parents for identifying information or by letting intermediaries remain silent about parental identity because court rules, ICWA, and ASFA are still marginalized. Anything short of requiring parents to prove their identities undercuts the full effectiveness of those governing rules, laws, and federal grant conditions.272 Preemption and separation of power claims do not require allegations of state action. Even if intermediaries are private persons, they are directed by the statute, making the state accountable for how the behavior of those actors affects a court rule or federal law. Thus, conflict with court rules and federal law can be avoided only by making parents prove their identities and residences upon placing their child in substitute care.

The Inherent Irrationality of Anonymous Surrender Laws

Anonymous surrender laws are irrational because a relative’s or non-surrendering parent’s appearance destroys the surrendering parent’s anonymity. If anonymity is crucial in convincing certain parents to avoid harming their child, that promise must retain credibility with future “at-risk” parents. Thus, the lure of anonymity can work only if relatives and non-surrendering parents fail to appear in court. The state, therefore, cannot claim that the right to notice can be balanced with the need for anonymity because anonymity succeeds by keeping parents and relatives out of court. Thus, the anonymity promise constitutes the legislature letting any parent of an unharmed newborn demand a secret adoption. Frustrating notice procedure is the key to meeting that demand. zzz


Anonymous surrender laws threaten child welfare by being over-inclusive and non-justiciable. Anonymous surrender statutes are over-inclusive because anonymity lets parents use the safe haven service for the same reasons they would use traditional adoption procedures (e.g., inability or unwillingness to parent)—only in secret. Thus, the law targets more parents than those at risk of discarding their infants. The law targets any parent who wants a secret adoption. The United States Supreme Court has rejected absolute anonymity because it allows for unchecked abuse and unaccountability.273 Thus, anonymity will appeal to those who want to circumvent traditional adoption for wrongful reasons, e.g., to avoid notice to other interested parties, hide statutory rape or incest, avoid rules about interstate placement, or erase the child’s identity. Anonymity, in turn, shields those wrongful reasons from detection. Delaware recognized the potential for that misuse. Its safe haven scheme suggested repealing the safe haven law if it was “abused” by “parents trying to circumvent the current process of adoption[.]”274 But the language is lip-service because anonymity shields misuse.

Anonymous surrender laws remain non-justiciable by the traditional unwillingness of state attorneys to prosecute parents who abandon their unharmed infants in safe places.275 Accordingly, safe haven laws reflect an illegal act that was seldom prosecuted anyway, whether or not the parent remained anonymous. Thus, a judicial declaration that anonymous surrender statutes are unconstitutional leaves the safe haven procedure intact, as states will continue to decline to prosecute parents who surrender their infants unharmed. With safe haven laws becoming common knowledge, their promotion will soon be unnecessary.276 The intermediaries (e.g., hospital workers, firefighters, policemen) cannot practically be enjoined. Relief, therefore, will be limited to each individual who manages to locate their child. The state can then moot that parent’s constitutional challenge to the anonymity provisions by offering reunification with the parent or establishing a case plan.

A constitutional challenge by the child, as occurred in Doe (Ohio), is also ineffective. Although the trial court can answer the child’s question about constitutionality, it cannot bring unknown parents to court. Adoption will be needed lest the child remain in foster care. The state will see no benefit in appealing the declaration of unconstitutionality, leaving the judgment non-binding outside the case. If the parents appear, the child’s constitutional claim can be mooted just like a parent’s constitutional claim can be mooted. In sum, any declaration of unconstitutionality is academic, as no inclusive redress can be achieved.

Disallowing subsidy payments to individual adopters does not suffice because the anonymity provisions still harm families and the system when the anonymous parents do not appear in court. The children are left without histories and identities, and their adoptions are open to attack later because the trial court lacked jurisdiction in the involuntary TPR proceedings.277 That problem has been ignored, presumably because state statutes bar challenges to adoptions after a minimal time, e.g., six months after the decree is issued. 278 But those repose statutes are inapplicable to TPR judgments issued after insufficient notice to the parents.279

The problem, therefore, must be cured politically. The leverage is through the federal funding enabled by ASFA. Congress must withhold federal funding from states whose plans let parents surrender their children anonymously. States must require parents to prove their identities and addresses. The service can proceed confidentially, with the surrendering parent’s name and address kept for administrative purposes—including being used to help the court and the non-surrendering parent or relatives find each other. The surrendering parent can waive notice, but only in the same way waiver occurs in traditional permanent surrender, i.e., in writing, with the legal consequences and legal rights of the consent explained.


Organized child welfare progressed for a century without anonymous surrender laws. Anonymous surrender is unnecessary today, just as it was unnecessary when infanticides and discards were a significant problem. A parent does not need to remain anonymous to save their child’s life. Confidentiality suffices. Preventative measures must be implemented for those few parents so disturbed they wish to discard their infants. The few parents who see their shame or embarrassment as more important than their child’s life should be treated like the criminals they are. As unfortunate as “grave family consequences” are, the family threat is a wrong that needs to be dealt with by protective measures, not by hiding children inside the government, erasing those children’s identities, and passing laws that make non-surrendering parents and adoptees scapegoats for the dysfunction of others. Thus, anonymous surrender statutes should be abolished.

Erik L. Smith B.A., California State Univ. – Bakersfield; M.A., Univ. of South Dakota; J.D., Univ. of Dayton, 2012, has for several years consulted for attorneys nationally in contested adoptions and juvenile matters.

1 “Discarded” infants are newborns abandoned in public places, other than hospitals, without care or supervision. National Resource Center. Boarder babies, Abandoned Infants, Dec. 2005, at 1, (last visited Mar. 20, 2011.

2 Lawrence M. Friedman, Crimes of Mobility. 43 Stan L. Rev. 637, 654 (Feb. 1991) citing Edward Crapsey, The Nether Side of New York: Or the Vice, Crime, and Poverty of the Great Metropolis 123 (reprint 1969) (1872).

3 Id.

4 Id.

5 Id. citing Roger Lane, Roots of Violence in Black Philadelphia, 1860-1900 128-30 (1986).

6 Friedman, supra n. 2, at 654.

7 Id, citing, e.g., Lucius Q. C. Elmer, A Digest of the Laws of New Jersey. 163 (J. Nixon 2d ed. 1855).

8 Id.

9 Cynthia R. Mabry & Lisa Kelly, Adoption Law: Theory, Policy and Practice 9 (1st ed. 2006).

10 Id. at 9; see also Kathleen Caswell, Comment: Opening the Door to the Past: Reorganizing the Privacy Rights of Adult Adoptees and Birthparents in California’s Sealed Adoption Records While Facilitating the Quest for Personal Origin and Belonging, 32 Golden Gate L. Rev. 239, 280 (Spr. 2002).

11 Friedman, supra n. 2, at 654-55.

12 Mabry & Kelly, supra n. 9, at 9-10.

13 Bastard Nation: The Adoptee Rights Organization: Baby Moses/Safe Haven Laws. Working Papers, Second Ed., Ariadne Group 2004 at 1, (Hereafter “BN Working Papers”) citing a Lexis-Nexis newspaper search commissioned by the Department of Health and Human Services.

14 “Moral panic” has been described as "[a] condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests." Cohen, S., Folk Devils and Moral Panics 9 (1973). Moral panic is characterized by, among other things, the action taken being disproportionate to the threat posed by the accused group. Jones, M, and E. Jones, Mass Media London: Macmillan Press (1999).

15 Carp. E. Wayne. Adoption Politics: Bastard Nation & Ballot Initiative 58 45 Lawrence: University Press of Kansas (2004).

16 Donna Martz, Bastard Nation Adopts New Bylaws, available at, (last visited February 21, 2011.

17 Ballot Measure 58 in 1998. Challenged by birthparents in Does 1-7 v. State, 993 P.2d 822 (Or. App. 1998).

18 Ala. Code §§ 26-25-1 through 5.

19Doe v. Sundquist, 106 F.3d 702 (6th Cir. 1997) (A Tennessee bill made adoption records available to anyone at least 21 years old); Doe v. Sundquist, 2 S.W.3d 919, 926 (Tenn. 1999) (The confidentiality of records was a statutory matter left to the legislature); Does 1-7.

20 Alaska Stat. § 18.50.500(a) (West 2007); Ala. Code § 22-9A-12(c) (2006); Kan. Stat. Ann. § 65-2423(a) (2002); Or. Rev. Stat. § 432.240(1) (2009).

21 Del. Code Ann. Tit. 13, § 929 (West 2006) (mutual consent required for access by adoptee); Ohio Rev. Code Ann. § 3705.12(c)(1) (LexisNexis 2005) (access restricted according to adoptee’s birth date); Tenn. Code Ann. § 36-1-127(b)(3)(A) (West Supp. 2011) (access subject to certain parental veto provisions).

22 E.g., Does 1-7, 993 P.2d at 835-36 (holding, inter alia, that law allowing birthparents to be identified to the adoptee did not violate birthparents’ privacy and confidentiality rights and did not impair the contract clause of the state or federal Constitution.) Compare with Alma Society, Inc. v. Mellon, 601 F.2d 1225, 1233 (2d Cir. 1979)(New York laws that restricted all adoption record access except for good cause did not violate substantive due process because of the state’s proper recognition of the natural and adoptive parents’ privacy interests.)

23 Fear of exposure of misdeeds is the main factor believed by BN behind the closed records agenda. BN: Frequently Asked Questions,, (last visited May 10, 2011). “We are angry at those self-interested sections of the adoption industry which continue to lobby for sealed records, hiding their own past misdeeds under a cloak of birth parent privacy.”

24 Author’s interview with Marley Greiner, Executive Chair Bastard Nation, May 14, 2011.

25 Otilia Oancu, Agenda Setting and Safe Haven Laws: The Convergence of Multiple Stream, Georgia Political Science Assoc. Conference Proceedings 2009, available at, (last visited May 11, 2011).

26 See, e.g., Id. at 1.

27 Mot. to Dismiss at 4 in Smith v. Hayes, 2005 Ohio App. LEXIS 2754, (10th Dist. June 14, 2005), discretionary appeal not allowed by Smith v. Hayes, 835 N.E.2d 728.

28 BN: Working Papers supra n. 13, at 1-2.

29 Other advocacy groups opposing safe haven laws included Ethica and Concerned United Birthparents (CUB).

30 BN: Working Papers supra n. 13, at 2; See also Marley E. Greiner, Response to Unintended Consequences: “Safe Haven” Laws are Causing Problems, Not Solving Them, Mar. 14, 2003, report.html at 1 (“We furthermore believe that the very existence of these laws is an attack on adoptee rights and open record activism…and are nothing but a tactic to perpetuate the sealed records/secret adoption system.” (Last visited Mar. 5, 2011).

31 Adoption Nation Education Initiative. Unintended Consequences: ‘Safe Haven’ laws are Causing Problems, Not Solving Them. Study by the Evan B. Donaldson Institute, available at the Adoption GuideSite at, (last visited Fall 2003).

32 See e.g. “Safe Haven Laws” (last visited Mar. 19, 2011); See also Affidavit of William L. Pierce (Sep. 6, 1996) in Doe v. Sundquist, Case No. 3:96-0599 (M.D. Tenn. 1996), available at, (last visited Mar. 19, 2011.

33 William J. Pierce, “European Court of Human Rights may overturn French law that promised women confidentiality in adoption,” Extra! October 9, 2002, no longer available online; formerly available at Copy available from author. (Full quote: “Disappearing privacy rights in adoption in the US has led most States to pass ‘safe haven laws’ so that women and their babies have a life-saving option of anonymously taking a baby to a hospital or other safe place.”)

34 See, Oancu, supra n.25, at 1.

35 See, e.g., Carol Sanger, Infant Safe Haven Laws: Legislating in the Culture of Life, 106 Colum. L. Rev. 753, 773-80 (2006) (noting that from 1999 to 2005 only three states declined to pass safe haven laws and that claims of safe haven successes were usually "accepted uncritically").

36 Senate Bill 304. 129th General Assembly of the State of Ohio. (Total vote was 124-1), available at

37 E.g., Nebraska’s safe haven bill (L.B. 157) passed with a vote of 49-1. Diane K. Donnelly, Symposium: How Far Have We Come Since 2000? Note: Nebraska’s Youth Need Help—But Was A Safe Haven Law The Best Way? 64 U. Miami L. Rev. 771, 776, (Jan. 2010) citing Leg. Journal, 100th Leg. 21st Day, at 539 (Neb. 2008).

38 See, Lingle was first Governor in history to veto a Safe Haven bill, July 14, 2007. Disappeared News. http://www.disappeared, (last visited Mar. 3, 2011); see also Bastard Nation Action Alert, describing Governor Linda Lingle’s Veto Statement of June 3, 2003, available at, (last visited Mar. 3, 2011); see also, Katrina Greiner, FAMILY LAW CHAPTER: Foster care and adoptions, 5 Geo. J. Gender & L. 503 at n. 87 citing H.B. 133, 22d leg., (Haw. 2003), House Bill 133 Measure History.

39 Bastard Nation Action Alert (discussing H.B. 1830 enacted on July 28, 2007, making Hawaii the forty-eighth state to pass a safe haven law).

40 Sanger, supra n. 35, describing safe haven laws as being generated from the anti-abortion campaign; Jeffrey A. Parness, Lost Paternity in the Culture of Motherhood: A Different View of Safe Haven Laws, 42 Val. U.L. Rev. 81 (2007) (Discusses Sanger and adds that “Safe Haven laws are also tied to a second culture, the culture of motherhood…that an unwed genetic mother knows what is best for her child, prompting an unconditional respect under the law for her right to act alone on matters involving her young child.” The genetic father is seen as a stranger to his child or a folk devil.)

41 See, e.g., Jeffrey A. Parness, Systematically Screwing Dads: Out of Control Paternity Schemes, 54 Wayne L. Rev. 641 (2008) (Discusses how anonymous surrender laws thwart father’s rights.) Mark Strasser, The Often Illusory Protections of "Biology Plus:" On the Supreme Court's Parental Rights Jurisprudence, 13 Tex. J. on C.L. & C.R. 31 (2007) (briefly mentions how safe haven schemes interfere with fathers’ constitutional rights to notice); Laura Oren, Thwarted Fathers or Pop-Up Pops?: How to Determine When Putative Fathers Can Block the Adoption of Their Newborn Children, 40 Fam. L.Q. 153 (2006) ("[I]nfant abandonment laws are of questionable constitutional validity" as they "create thwarted fathers by…design who do not enjoy even a modicum of procedural due process.") Robbin Pott Gonzalez, The Rights of Putative Fathers to Their Infant Children in Contested Adoptions: Strengthening State Laws that Currently Deny Adequate Protection, 13 Mich. J. Gender & L. 39 (2006) (“[S]afe haven laws make it too easy for a state to discard a father's interest in the adoption of his infant child,” thus denying due process.) Jeffrey A. Parness, Deserting Mothers, Abandoned Babies, Lost Fathers: Dangers in Safe Havens, 24 Quinnipiac L. Rev. 335 (2006)(“Safe Haven laws infringe upon the paternity opportunity and the childrearing interests of many genetic fathers.”) Laurence C. Nolan, Preventing Fatherlessness Through Adoption While Protecting the Parental Rights of Unwed Fathers: How Effective are Paternity Registries? 4 Whittier J. Child & Fam. Advoc. 289 (2005) (discusses how safe haven schemes will survive constitutional attack regarding due process for fathers.) Dayna R. Cooper, Note, Fathers are Parents Too: Challenging Safe Haven Laws with Procedural Due Process, 31 Hofstra L. Rev. 877, 895-96 (2003) (Some safe haven laws violate the fundamental rights of fathers by having no provision for locating them.) Karin Dwelle, Note, Adoption Without Consent: How Idaho is Treading on the Constitutional Rights of Unwed Fathers, 39 Idaho L. Rev. 207 (2002) (arguing that Idaho’s safe haven law violates the due process rights of fathers).

42 Id.

43 One article discusses in fair detail how anonymity statutes conflict with the Indian Child Welfare Act of 1978 (ICWA). Paul Stenzel, Safe Haven Laws and the Indian Child Welfare Act: Conflicting Laws and Policy Goals Leave Indian Children at Risk, Children’s Legal Rights Journal, Vol. 29, No. 3, pp. 1-10. (Fall 2009). Another article deals briefly with the potential conflict between safe haven laws and the Indian Child Welfare Act. Thomas R. Myers and Jonathan J. Siebers, The Indian Child Welfare Act: Myths and Mistaken Application (See under “Myth 1”), (last visited Aug. 29, 2009). And the Children’s Welfare League of America (CWLA) briefly opined that the diligent search for parents required by the Adoption and Safe Families Act of 1997 (ASFA) “clearly contradicts the promise of anonymity in most safe haven laws,” and that anonymity “could violate tribal sovereignty.” The Nature of Abandonment. (last visited Mar. 20, 2011).

44 Susan Ayres, Kairos and Safe Havens: The Timing and Calamity of Unwanted Birth, 15 Wm. & Mary J. of Women & L. 227, abstract (Wtr. 2009); See e.g. Ohio Rev. Code Ann. §§ 2151.3515-3530 (LexisNexis 2007 & Supp. 2011).

45 Barbara Stark, Baby Girls from China in New York: A Thrice-Told Tale, 2003 Utah L. Rev. 1231, 1278-79.

46 Brief of Appellee at p. 1 in Smith v. Hayes (wherein the Ohio Attorney General admitted that “[The safe haven] law permits a parent, for any reason, to hand over their unharmed three-day old or younger child with any list of persons…”)

47 Sanger, supra n. 35, at 771 (“The secrecy assured by statute substitutes for the cover of night that shielded mothers in earlier times in their efforts to abandon unwanted infants without detection.”) See also Nina Williams-Mbengue, Analysis of State Actions on Important Issues: Safe Havens for Abandoned Infants, National Conference of State Legislatures, Vol. 26, No. 8 (Sep. 2001), available at (last visited Mar. 5, 2011) (“The goal of the anonymity provisions is to encourage women to safely surrender their infants without fear of identifying themselves.”)

48 See, e.g., Ohio Rev. Code Ann. § 2151.3523(B) (LexisNexis 2007); N.J. Stat. Ann § 30:4C-15.7(e) (West 2008). At least one state has remained silent on the harm requirement. Wash. Rev. Code Ann. § 13.34.360(2) (West Supp. 2011) (declaring that the surrendering parent is not subject to criminal liability if she “transfers the newborn to a qualified person at an appropriate location[.]”

49 The following states do not expressly give parents immunity or a defense to criminal charges: (Arkansas) Ark. Code Ann. §§ 9-34-201 et seq. (West 2009); (Delaware) Del. Code Ann. tit. 16 §§ 902 (West Supp. 2011 & 907a (West 2006); (Florida) Fla. Stat. Ann. § 383.50(10) (West Supp. 2011) (no criminal investigation shall be initiated unless child abuse is suspected); (Georgia) Ga. Code Ann. § 19-10A-4 (West 2010) (parent immune from criminal liability if parent shows proof of identity, if available, and gives her address); (Texas) Tex. Fam. Code Ann. § 262.301-309 (West 2008).

50 See Alaska Stat. Ann. § 47.10.013(c)(1)(A) (West 2007); Iowa Code. Ann. § 233.2 (West 2006); Md. Code Ann. Cts. & Jud. Proc. § 5-641 (West 2011); R. I. Gen. Laws § 23-13.1-3 (West 2006); Utah Code Ann. § 62A-4a-802(1)(a) (West Supp. 2010).

51 Mo. Rev. Stat. §§ 210.950(3) (West 2010); N.D. Cent. Code §§ 27-20-02, 50-25-.1-15 (West 2008).

52 See, e.g., Alaska Stat. Ann. § 47.10.013(c) (West 2007); Ariz. Rev. Stat. Ann. § 13-3623.01(B) (West 2010) (fire station and health care institution only); Ohio Rev. Code Ann. § 2151.3515(A) (LexisNexis 2007).

53 S.C. Code Ann. § 63-7-40(J)(2) (West 2010); Vt. Stat. Ann. tit. 13, § 1303(b)(1)(B) (West 2007); N.H. Rev. Stat. Ann. § 132-A:1(III) (West 2005).

54 Ala. Code § 26-25-1 (West 2009); Conn. Gen. Stat. Ann. § 17a-57 (West 2006); Ga. Code Ann. §§ 19-10A-2 and 10A-6 (West 2010); Miss. Code Ann. § 43-15-201 (West 2008); N.D. Cent. Code § 50-25.1-15; Neb. Rev. Stat. § 29-121 (2008); N.M. Stat. Ann. § 24-22-3 (West 2003); 23 Pa. Cons. Stat. § 4306, 6504 (West 2010); W. Va. Code § 49-6E-1 (West 2002); Va. Code Ann. § 40.1-103(B) (West Supp. 2010); Utah Code Ann. § 62A-4a-802(1)(a) (West Supp. 2010).

55 Tex. Fam. Code. § 262.301(1)(C)(ii) (West 2008).

56 Fla. Stat. Ann. § 63.0423(2) (West Supp. 2011).

57 Mich. Comp. Laws Ann. §§ 712.1(2)(a) and 712.3(1)(b) (West Supp. 2011); Nev. Rev. Stat. Ann. 432B.630(3) (West 2010).

58 S.C. Code Ann. § 63-7-40(E)(2) (West 2010) (48 hours); R.I. Gen. Laws §§ 23-13.1-5(b) (West 2006) (90 days).

59 The states remaining silent are Alabama: Ala. Code §§ 26-25-1 through 26-25-5 (West 2009); Arizona: Ariz. Rev. Stat. Ann. § 13-3623.01 (West 2010); Arkansas: Ark. Code Ann. §§ 9-34-201 through 204 (West 2009); Colorado: Colo. Rev. Stat. Ann. § 18-6-401(9) (West 2004); Maryland: MD. Code Ann., Cts. & Jud. Proc. § 5-701 (West 2011); Michigan: Mich. Comp. Laws Ann. §§ 712.1 through 712.20 (West 2002); Missouri: Mo. Ann. Stat. § 210.950 (West 2010); Mississippi: Miss. Code Ann. §§ 43-15-201 through 43-15-209 (West 2008); Montana: Mont. Code Ann. §§ 40-6-401 through 40-6-417 (2009); Nebraska: Neb. Rev. Stat. § 29-121 (2008); Virginia: Va. Code Ann. §§ 18.2-371, 371.1 (West 2001); 40.1-103, 8.01-226.5:2, & 63.2-910.1 (West Supp. 2010).

60 E.g. Cal. Health and Safety Code § 1255.7(b)(3) (West 2008) (the medical information questionnaire shall not require identifying information and may be declined); Me. Rev. Stat. Ann., tit. 22 § 4018(2) (West 2004) (The parent may be requested to provide information helpful to the child, but the intermediary cannot detain the parent to obtain the information); Mich. Comp. Laws Ann. § 712.3(2)(d) (West Supp. 2011) (the intermediary must make a reasonable attempt to ask the parent to identify themselves.)

61 Idaho Code § 39-8203(3) (West 2006); Minn. Stat. Ann. § 145.902(b) (West 2005).

62 Code Ga. Code Ann. § 19-10A-4 (West 2010).

63 Id. at § 19-10A-6 (West 2010).

64 See Infra sec. II, at 51-52.

65 E.g., Ohio Const. art. IV. § 5(B).

66 25 U.S.C. §§ 1901 et seq. (2006).

67 42 U.S.C. § 671 (2006).

68 Ohio Rev. Code Ann. §§ 2151.3515 – .3530 (LexisNexis 2007 & Supp. 2011).

69 The constitutionality of anonymous surrender statutes was challenged in one other state on equal protection grounds regarding child support. Dubay v. Wells, 506 F.3d 422 (6th Cir. 2007)(Michigan’s safe haven law did not violate equal protection by giving women, but not men, a way to avoid child support of an unwanted child.)

70 In re Baby Boy Doe (“Doe Ohio”), 880 N.E.2d 989 (Ohio Com. Pl. Cuyahoga Co. 2007) (The anonymous surrender statutes were invalid for violating the Ohio Supreme Court’s rulemaking authority.)

71 In re Appeal of Hamilton PCSA, ODJFS, Bur. of State Hrgs. Admin. Appeal Sec., App. No. 1347356 (June 26, 2007) (Adoptive parent of safe haven baby did not qualify for adoption subsidy).

72 Ohio Rev. Code Ann. § 2151.3515 – 3530 (LexisNexis 2007 & Supp. 2011).

73 Ohio Rev. Code Ann. § 2151.3516 (LexisNexis Supp. 2011).

74 Ohio Attorney General’s Mot. to Dismiss at 1 in State ex rel. Smith v. Lumpkin, Ohio Sup. Ct. Case No. 2009-0538, (Apr. 8, 2009), dismissed without published opinion at 907 N.E.2d 319 (Ohio 2009).

75 Id.

76 Ohio Rev. Code Ann. § 2151.3516 (LexisNexis Supp. 2011)

77 Ohio Rev. Code Ann. § 2151.3524(A) (LexisNexis 2007)

78 Ohio Rev. Code Ann. § 2151.3527(A)(1) (LexisNexis 2007).

79 Ohio Rev. Code Ann. § 2151.3520 (LexisNexis 2007).

80 Ohio Rev. Code Ann. § 2151.3519 (LexisNexis 2007).

81 Doe Ohio, 880 N.E.2d 989, ¶ 2 citing Ohio Rev. Code Ann. § 2151.3515.

82 Ohio Rev. Code Ann. § 2151.3528 (LexisNexis 2007).

83 Ohio Admin. Code § 5101:2-39-08.1(H) (2009).

84 Id.

85 Ohio Admin. Code § 5101:2-42-95(A)(2) (Supp. 2009-2010). The rule gives no example of a compelling reason.

86 Ohio Admin. Code § 5101:2-38-05(H)(1) (Supp. 2009-2010).

87 Ohio Const., art. IV, § 5(B).

88 Id.

89 Ohio Rev. Code Ann. § 2151.35(C) (LexisNexis 2007); Ohio Juv. R. P. 1(A).

90 Id; Krause v. State, 285 N.E.2d 736, 744 (Ohio 1972); In re Doe, 565 N.E.2d 891, 892-93 (Ohio Com. Pl. Cuyahoga Co. 1990) (“The issuance of notice for court proceedings is procedural as it pertains to the method of enforcing rights or obtaining redress rather than creating, defining, or regulating the rights of the parties.”)

91 Ohio Juv. R. P. 2(B).

92 Ohio Juv. R. P. 2(M).

93 Ohio Juv. R. P. 13(B)(2)(a) and (b).

94 Ohio Juv. R. P. 13(B)(3).

95 Id.

96 Id.

97 Dusenbery v. United States. 534 U.S. 161, 170 (2002).

98 Id.

99 Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950).

100 In re Thompkins, 875 N.E.2d 582 (Ohio 2007), ¶ 25 quoting Sizemore v. Smith, 453 N.E.2d 632, 635 (Ohio 1983).

101 In re Sitgraves, 1997 Ohio App. LEXIS 5318 at **7-8 (8th Dist. Nov. 26, 2007).

102 Doe Ohio, 880 N.E.2d 989, ¶ 8.

103 Id.

104 Doe Ohio.

105 Id.

106 Id. at ¶¶ 1-2.

107 Id. at ¶¶ 3-8.

108 Id. at ¶ 4.

109 Id. at ¶ 5.

110 Id. at n.3.

111 Id. citing Sitgraves.

112 Id. at ¶ 6; See also Ohio Juv. R. P. 16(B)(4).

113 Doe Ohio, 880 N.E.2d 989, ¶¶ 6-7 and n.3.

114 Id. at ¶ 8.

115 Reply to Mot. to Dismiss at n. 1 in State ex rel. Smith v. Lumpkin.

116 See, e.g., In re Adoption of Knipper, 507 N.E.2d 436, 438 (Ohio App. 1986)(holding that a statute of repose was ineffective until due diligence was used to locate the parent, as “the Ohio Legislature does not constitutionally have the power to deprive the biological mother of her parental rights without valid constructive notice.”); Sitgraves, 1997 Ohio App. LEXIS 5318, **7-8 (Due diligence requirements included asking the parent and family members the identity and residence of the missing parent.)

117 Ohio Juv. R. P. 16(A).

118 Ohio Juv. R. P. 29(B)(5) and 34(I).

119 Id.

120 Peterson v. Greenville, 373 U.S. 244, 248 (1963) (using that theory in a state action analysis where a restaurant manager argued that he would have kicked blacks out of his restaurant even if the law had not required him to do so).

121 Evans v. Newton, 382 U.S. 296, 301 (1966).

122 Ohio Rev. Code Ann. § 2151.3517(A)(2) (LexisNexis 2007); Ohio Admin. Code § 5101:2-36-06 (2009).

123 Ohio Rev. Code Ann. § 2151.3517(A)(2) (LexisNexis 2007); Ohio Juv. R. P. 6.

124 See Ohio Juv. R. P. 6; Ohio Rev. Code Ann. § 2151.31(A)(3) (LexisNexis 2007) (“A child may be taken into custody…by a law enforcement officer or duly authorized officer of the court.”)

125 Mot. to Dismiss at 6 in Smith v. Hayes.

126 Ohio Juv. R. P. 15(A).

127 Ohio Juv. R. P. 13(B)(3).

128 AK: Winegardner v Greater Anchorage Area Borough, 534 P.2d 541, 545-46 (Alaska 1975) citing Alaska Const. art. IV, §§ 1 and 15; AL: Schoenvogel v. Venator Group Retail, Inc., 895 So.2d 225, 234 (Ala. 2004) citing Alabama Const. art. VI, § 140; AR: Miller v. State, 555 S.W.2d 563, 564 (Ark. 1977); AZ: State v. Blazak, 462 P.2d 84, 85 (Ariz. 1969) citing Ariz. Const. art. VI, § 5, cl. 5; CO: People v. McKenna, 585 P.2d 275, 276-77 (Colo. 1978) citing Colo. Const. art. VI, § 21; CT: State v. Clemente, 353 A.2d 723, 727 (Conn. 1974); DE: In re Stroik, 1998 Del. LEXIS 369, ¶ 6 citing Del. Code Ann. tit. 10, § 161; FL: State v. Raymond, 906 So.2d 1045, 1048 (Fla. 2005) citing Fla. Const. art. V, § 2(a) and art. II, § 3; GA: Atlanta Journal & Atlanta Constitution v. Long, 376 S.E.2d 865, 867 (Ga. 1989); ID: State v. Knee, 616 P.2d 263, 265 (Ida. 1980); IL: O'Connell v. St. Francis Hosp., 492 N.E.2d 1322, 1326 (Ill. 1986); IN: Campbell v. Criterion Group, 605 N.E.2d 150, 157 Ind. 1992); KY: Kentucky Farm Bureau Mut. Ins. Co. v. Wright, 136 S.W.3d 455, 458-459 (Ky. 2004); Com. v. Reneer, 734 S.W.2d 794, 796 (Ky. 1987) citing Ky. Const. § 28; MA: First Justice of the Bristol Div. of the Juvenile Court Dep't v. Clerk-Magistrate of the Bristol Div. of the Juvenile Court Dep't, 780 N.E.2d 908, 916 (Mass. 2003) citing Mass. Const. Decl. Rights art. 30; MI: McDougal v. Schanz, 597 N.W.2d 148, 162 (Mich. 1991); MO: State ex rel. Union Elec. Co. v. Barnes, 893 S.W.2d 804, 805 (Mo. en banc 1995) citing Mo. Const. art. V, § 5; MT: Coate v. Omholt, 662 P.2d 591, 599 (Mont. 1983) citing Mont. Const. art. VII, § 2(3); NH: Opinion of the Justices, 688 A.2d 1006, 1011 (N.H. 1997) citing N.H. Const. Part II, art. 73-a; see also In re Stapleton, 159 N.H. 694, 992 A.2d 593 (2010);NJ: Winberry v. Salisbury, 74 A.2d 406, 409 (N.J. 1950); NM: Albuquerque Rape Crisis Ctr. v. Blackmer, 120 P.3d 820, 822 (N.M. 2005) citing N.M. Const. art. VI, § 3; NV: Borger v. Eighth Judicial Dist. Court ex rel. County of Clark, 102 P.3d 600, 606 (Nev. 2004); OH: State ex rel. Ohio Acad. of Trial Lawyers v. Sheward, 715 N.E.2d 1062, 1087 (Ohio 1999) citing Ohio Const. art. IV, § 5(B); PA: Laudenberger v. Port Authority of Allegheny Cty., 436 A.2d 147, 151 (Penn. 1981) citing Penn. Const. art. V, § 10(c); TN: State v. Brackett, 869 S.W.2d 936, 939 (Tenn. Ct. Crim. App. 1993; TX: In the Interest of M.N., 262 S.W.3d 799, 802 citing Tex. Const. art. V, § 31(c); UT: State v. Banner, 717 P.2d 1325, 1333 (Utah 1986); VT: State v. Corliss, 484 A.2d 924, 925 (Vt. 1984) citing VT Const., Ch. II, § 37; WA: State v. Templeton, 59 P.3d 632, 641-42 (Wash. 2002) following In re Welfare of Messmer, 326 P.2d 1004, 1005 (Wash. 1958); WI: Rao v. WMA Sec., Inc., 752 N.W.2d 220 Wis. 2008), ¶ 35; State v. Jennings, 647 N.W.2d 142 (Wis. 2002) at ¶ 13;WV: Mayhorn v. Logan Medical Found., 454 S.E.2d 87, 94 (W.Va. 1994) citing W. Va. Const. art. VIII, § 3; WY: Terex Corp. v. Hough, 50 P.3d 317 (Wyo. 2002) at ¶ 11; Kittles v. Rocky Mt. Recovery, Inc., 1 P.3d 1220, 1223 (Wyo. 2000) citing Wyo. Const. art. 5, § 2.

129 For a detailed summary see Christopher Reinhart & George Coppolo, Court Rules in Other States—Legislative Approval. OLR Research Report, Dec. 30, 2008, available at, (last visited May 8, 2011).

130 20 Am. Jur.2d § 39 citing Veilleux v. State, 635 So. 2d 977 (Fla. 1994).

131 Id. citing Sackett v. Santilli, 47 P.3d 948, 951 (Wash. 2002); See also Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979)(“The inherent judicial power of a court is not derived from legislative grant or specific constitutional provisions, but from the very fact that the court has been created and charged by the constitution with certain duties and responsibilities"); but see Cal. Const. art. VI § 6(d): “The rules adopted [by the judicial Council] shall not be inconsistent with statute.”

132 U.S. Const., art. VI, cl. 2.

133 Id.

134 Cardinal Towing & Auto Repair, Inc. v. City of Bedford, 180 F.3d 686, 690 (5th Cir. 1999).

135 See Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 265 (2000).

136 Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995) (emphasis added.)

137 Mite Corp. v. Dixon, 633 F.2d 486, 493 (7th Cir. 1980).

138 Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 121 (1973).

139 Id.; Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153 (1982).

140 Perez v. Campbell, 402 U.S. 637, 652 (1971), superseded by statute in Md. Port Admin. v. Premier Auto Servs., 343 B.R. 501 (Bankr. D. Md. 2006); King v. Smith, 392 U.S. 309, 326-27 (1968).

141 Perez, 402 U.S. at 652.

142 25 U.S.C. § 1901 et seq. (2006).

143 Id.

144 Miss. Band of Choctaw Indians, 490 U.S. at 49 (Tribal jurisdiction was not meant to be defeated by the actions of individual members of the tribe;) Doe (Mont.), 865 P.2d at 1093.

145 25 U.S.C. § 1911(c) (2006).

146 25 U.S.C. § 1912(c) (2006).

147 25 U.S.C. § 1912(a) (2006).

148 25 U.S.C. § 1903 (2006).

149 25 U.S.C. § 1913(a) (2006).

150 25 U.S.C. § 1912(a) (2006).

151 25 U.S.C. § 1951(a)(2) (2006).

152 25 U.S.C. § 1951(a)(4) (2006).

153 25 U.S.C. § 1915(b) (2006).

154 Id.

155 25 U.S.C. § 1915(a) (2006).

156 25 U.S.C. § 1915(c) (2006).

157 25 U.S.C. § 1921 (2006); see e.g., In re Brandon M., 54 Cal. App.4th 1387 (1997); In the Interest of W.D.H., 43 S.W.3d 30 (Tex. Ct. App. 14th Dist.—Hous.); In the Interest of D.S.P., 480 N.W.2d 234, 238 (Wis. 1992).

158 865 P.2d 1090 (Mont. 1993).

159 Id. at 1090.

160 Id. at 1091.

161 Id.

162 Id.

163 Id.

164 Id.

165 Id. at 1091-92.

166 Id. at 1092.

167 Id. at 1093.

168 490 U.S. at 49 (1989) (The tribe’s interest is distinct from that of its individual members regarding the child’s placement.)

169 Doe (Mont.), 865 P.2d at 1095.

170 Id.

171 Id.

172 Id.

173 The Ohio Attorney General made that argument in its Reply to Second Mot. to Dismiss at 4-5 in Smith v. Hayes.

174 25 U.S.C. § 1951(a)(4) (2006).

175 Adoption and Safe Families Act of 1997, 42 U.S.C. §§ 670 and 671(a) (2006).

176 See, e.g., South Dakota v. Dole, 483 U.S. 203 (1987) (Congress conditioned certain highway maintenance funds on the states having minimum drinking ages of 21.)

177 California Dep’t of Human Resources Dev. v. Java, 402 U.S. 121 (1971) (unemployment compensation benefits); Rosado v. Wyman, 397 U.S. 420 (1970) (social security payments); King v. Smith, 392 U.S.309, 310 (1968) (grants for aid to dependent children). All three of those case enforced conditions to which the states had agreed as consideration for the grants, without reference to the Supremacy clause.

178 Dole, 483 U.S. at 206.

179 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (“[I]n return for federal funds, the states agree to comply with the federally imposed conditions.”)

180 King, 392 U.S. at 333.

181 Dole, 483 U.S. at 207-08.

182 See, e.g., King, 392 U.S. at 333 (Although Alabama could discourage illegitimacy and allocate limited resources by other means, it could not do so by promulgating regulations that conflicted with a federal funding statute regarding aid for dependent children.)

183 42 U.S.C. §§ 620 et seq. (2006).

184 See 42 U.S.C. § 671(a) (2006)

185 See 42 U.S.C. § 671(a)(15) and (29) (2006).

186 Ex parte T.V., 971 So.2d 1, 11 (Ala. 2007); Nekima Levy-Pounds, Children of Incarcerated Mothers and the Struggle for Stability, 2 Am. U. Modern Am. 14, 16 (2006).

187 42 U.S.C. § 671(a) (2006).

188 42 U.S.C. § 670 (2006)

189 42 U.S.C. § 671(a)(29) (2006).

190 Promoting Safe and Stable Family Amendments of 2001 (PSSFA). Pub. L. No. 107-133, 42 U.S.C. § 629a (2006).

191 (Emphasis added.)

192 See Administration for Children & Families. U.S. Dept. of Health & Hum. Servs., Child Welfare Policy Manual §1.2B.3 at Question 4, available at, (last visited May 8, 2011) (Removal can mean a “voluntary placement agreement which permits the child to be in a substitute care setting.”) Safe haven surrender fits that definition by being a voluntary placement by the parent, accepted by the state agent (intermediary), which lets the child go into substitute care (state or private agency custody); See also 42 U.S.C. § 671(a)(15)(D)(i) (2006).

193 Although some scholars argue that the ASFA is overly dedicated to achieving TPR and adoption instead of reunification. See e.g., Martin Guggenheim, Special Spring 2006 Symposium: Ratify the U.N. Connection on the Rights of the Child, But Don’t Expect Any Miracles, 20 Emory Int’l L. Rev. 43, 60-61 (asserting that the United States is the only country the article’s author knows of that has a national policy of seeking TPR over the objection of a parent once the child has remained in foster care for 15 months.)

194 Stacie Schmerling Perez, Combating the “Baby Dumping” Epidemic: A Look at Florida’s Safe Haven Law, 33 Nova L. Rev. 245, 266 (2008) (“…[T]he amendments [to the Florida safe haven law] will help newborns legally surrendered under the law achieve permanency faster since the time consuming requirement of conducting a diligent search for known parents has been eliminated.”); see also Cooper, supra n. 41, at 878 (“The ultimate goal of these laws is to protect babies by persuading mothers to leave them in safe places…and, ultimately, be placed with an adoptive family.”)

195 Enacted in 2000 at N. J. Stat. Ann. §§ 30:4C-15.7 to 15.11.

196 Id. at § 30:4C–15.8 (200_).

197 ODJFS, Bur. of State Hrgs. Admin. Appeal Sec., App. No. 1347356 (June 26, 2007).

198 Ohio Admin. Code §§ 5101:2-49-02; 5101:2-49-14; 5101:2-49-14.1 (2009).

199 In re Appeal of Hamilton PCSA, at *1-2.

200 See e.g. N. J. Stat. Ann § 30:4C-15.6(e) (West 2008).

201 42 U.S.C. § 629a (2006).

202 42 U.S.C. § 629a(1)(F) (2006).

203 Mot. to Dismiss at 4 in Smith v. Hayes.

204 Peterson v. Greenville, 373 U.S. 244, 247-48 (1963) (“When the state has commanded a particular result, it has saved to itself the power to determine that result, and thereby…has removed that decision from the sphere of private choice.”)

205 Evans, 382 U.S. 296 (Private land willed to the city as a park for white people and to be controlled by a white board of managers was not made constitutional by the official city trustees resigning and replacing themselves with private individuals. The private individuals became instrumentalities of the state.)

206 At least one state court has ruled that, in conjunction with state law, anonymous safe haven surrender constituted an aggravated circumstance under ASFA (justifying “fast-track” TPR). Matter of Doe, 883 N.Y.S.2d 430, 433 (2009 N.Y. Misc.) citing NY CLS Family Ct Act §1012 (West 2010).

207 Fla. Stat. Ann. § 383.50 (West Supp. 2011).

208 Vince Norman—, Baby left outside south Florida fire station wrapped in bags, towels. A Safe Haven for Newborns, August 6, 2010, available at http://www.asafe (Under “News and Media” tab), (last visited May 4, 2011).

209 Id.

210 Id.

211 Id.

212 Id.

213 That has been the battle cry since at least the “Baby Richard” case in the early 1990’s, Petition of Doe, 638 N.E.2d 181, 185 (Ill. 1994) (“According to the appellate court, the ‘only parents that he has ever known are John and Jane Doe.’”) The Illinois Supreme Court ordered the then three-year-old child returned to the natural father, expressing dismay at the argument: “[A] child is not available for adoption until the rights of his natural parents have been properly terminated. Any judge, lawyer, or guardian ad litem who has even the most cursory familiarity with adoption laws knows that.” Id. at 189.

214 Holly Hickman, Law lets babies be abandoned, but not hope, Aug. 24, 2003, Associated Press. Miami, available at, (last visited May 4, 2011).

215 Heywood Hoffman, Baby abandoned on New Year’s Day. Chicago Breaking News Center, Jan. 2, 2010,, (last visited May 4, 2011.)

216 "Boarder babies" are newborns born and left in hospitals because they are not wanted by their parents. "State adds funding to stop 'boarder baby' problem," Feb. 3, 2004, The Associated Press, available at, (last visited Mar. 20, 2011).

217 See In re Doe (“Doe New Jersey”), 2010 N.J. Super. LEXIS 160 (Cumberland Co. May 5, 2010) (Baby was born safely in hospital).

218 Id. at *1.

219 “New Jersey Safe Haven Infant Protection Act” N.J. Stat. Ann. § 30:4C-15.7(a)-(b) (West 2008).

220 Doe (New Jersey) at ***6-7 discussing N. J. Stat. Ann. § 30:4C-15.7 to 15.11 (West 2008), (emphasis added.)

221 Id. at ***7-8 citing and quoting N. J. Stat. Ann. § 30:4C-15(e).

222 Id. at ***1-2.

223 Id. at ***2.

224 Id.

225 Id. at ***2-3.

226 Id. at ***3

227 Id.

228 Id.

229 Id.

230 Id.

231 Id. ***3-4.

232 Id. ***4.

233 Id.

234 Id.

235 Id. ***4-5.

236 Id. ***8.

237 Id. at ***10.

238 Id.

239 Id. at ***10-11.

240 Id. at ***12-13.

241 Id. at ***13.

242 Id.

243 Id.

244 Id. at ***15-16.

245 Id. at ***16.

246 Id. at ***18.

247 N. J. Stat. Ann. § 9:3-45 (West 2002).

248 Doe (New Jersey), 2010 N.J. Super. LEXIS 160 at ***17 citing N. J. Stat. Ann. 9:3-45(d).

249 Id. citing New Jersey Stat. Ann. 9:3-45(b)(6).

250 N. J. Stat. Ann. 9:3-45(b)(1) (West 2002).

251 Tom Bell, Associated Press. State plans campaign to discourage dumping of newborns, Jan. 20, 2004, available at, (last visited Mar. 20, 2011).

252 The Associated Press. State adds funding to stop 'boarder baby' problem, Feb. 3, 2004, available at, (last visited Mar. 20, 2011).

253 Bell, supra n. 284, at *1.

254 Id.

255 Associated Press. State adds funding to stop 'boarder baby' problem, supra n. 284 at *1.

256 Id.

257 Id.; see also N.J. to study problem of abandoned babies, Feb. 04, 2004, no longer available online. Previously available at (Emphasis added.)

258 See e.g., Cooper, supra n. 41, at 879 (describing intent behind anonymity).

259 Doe (New Jersey), 2010 N.J. Super. LEXIS 160 at ***2-3.

260 Id. at ***3.

261 Id. at ***3.

262 Id. at ***3.

263 Id.

264 See, e.g., Ohio Dep’t of Job and Family Services (ODJFS) Ohio’s Safe Haven for Newborns,, (last visited: February 21, 2011.)

265 Id.

266 See Doe (Ohio), 880 N.E.2d 989, ¶ 2.

267 See e.g., In re Miller, 399 N.E.2d 1262, 1265 (Ohio 1980) (“An agreement by a child's parents or legal guardian to surrender a child to the permanent custody of a certified association or institution described in R.C. Section 5103.15 constitutes a contract where accepted by such association or institution and when voluntarily made without fraud or misrepresentation”); In re Frazier’s Estate, 177 P.2d 254, 257 (Ore. 1947)(“The relationship [created by adoption], although governed by statute, is contractual.”)

268 Fla. Stat. § 383.50(2) (West Supp. 2011)(“ There is a presumption that the parent who leaves the newborn infant in accordance with this section intended to leave the newborn infant and consented to termination of parental rights.”)

269 E.g. N.J. Stat. § 30:4C-15.6(b) (West 2008) (“The parents of these newborn infants may be under severe emotional stress and may need a safe haven available to them and their child.”

270 See e.g., In re Adoption of Zschach, 665 N.E.2d 1070, 1077-78 (Ohio 1996).

271 E.g., In re Hua, 405 N. E.2d 255, 232 (Ohio 1980)(Vietnamese mother’s relinquishment was executed under duress where she became reasonably convinced that the Viet Cong would kill her mixed race child if she kept the child); In re Baby Girl E., 2005 Ohio App. LEXIS 3288, *PP 32-33 (10th Dist. July 14, 2005) (Vietnamese mother’s consent to adoption was invalid for undue duress where her consent was based on her concern for the life of her Vietnamese-American child, and fear of family and societal rejection).

272 See Stenzel, supra n. 43, at 7 (“[I]t is difficult to envision how the identity and membership eligibility of an Indian child can be established while at the same time preserving the anonymity of the child’s parents.”)

273 See e.g., Ohio v. Akron Ctr., 497 U.S. 502, 513 (1990)(reasoning that in the context of minors seeking to bypass parental notification of abortion services, complete anonymity was not critical and the mother’s identity was useful for administrative purposes.)

274 See e.g., Del. Code Ann. tit, 16 § 907(A)(a) (West 2006).

275 See e.g., Evan B. Donaldson Adoption Institute, Unintended Consequences: “Safe Haven” Laws are Causing Problems Not Solving Them, p. 4 (noting that “prosecutors rarely, if ever, bring criminal charges against parents who leave their infants in any type of safe place regardless of whether a safe haven law exists.”) citing Children’s Bureau, U.S. Dep’t of Health and Human Services, 1998 National Estimates of the Number of Boarder Babies, Abandoned Infants and Discarded Infants, available at, (last visited Mar. 20, 2011.

276 Ron Morgan, Born Under the X: French Law Guarantees Anonymous Childbirth: Dr. Pierce and Vichy, 2003,, (last visited Mar. 15, 2011) (asserting that anonymous surrender laws enacted in France during the German occupation have remained in effect because “once this social welfare practice became institutionalized, it became normalized.”

277 See e.g. In re Frinzl, 87 N.E.2d 583, 589-90 (Ohio 1949) (The jurisdiction of the juvenile court does not attach until proper notice of the proceedings has been given to the parties. Absent proper notice, the judgment of the trial court is void.)

278 See e.g. Ohio Rev. Code Ann. § 3107.16(B) (LexisNexis 2008).

279 Knipper, 507 N.E.2d at 438 (holding that the statute barring challenges to adoptions after one year was ineffective because the legislature did not constitutionally have the power to deprive the parent of her parental rights without valid constructive notice).



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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