Safe Haven

THE ART OF PROCEDURAL FRUSTRATION: THE UNCONSTITUTIONALITY OF SAFE HAVEN ANONYMITY LAWS

By

Erik L. Smith^

INTRODUCTION

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.

II SAFE HAVEN LAWS

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

III. CONSTITUTIONALITY

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

IV. ONLY CONGRESS CAN PROVIDE INCLUSIVE RELIEF

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.

V. CONCLUSION

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.