holding that appellant’s interest was adequately protected by his receipt of actual notice of the pending adoption and rejected his argument that his due-process rights have been violated
How later courts described this case
- holding that appellant’s interest was adequately protected by his receipt of actual notice of the pending adoption and rejected his argument that his due-process rights have been violated
- holding that the biological father was not entitled to notice of adoption proceeding where he failed to properly legitimate his child
Written by the judges who cited it.
The opinion
Robert L. Brown, Justice, concurring. I, too, would ..affirm but write to emphasize a salient point. It occurs to me that Mr. Escobedo had some obligation to track Misty Ford’s condition after he had unprotected sex with her if he ever planned to claim notice of an adoption and the paternity and custody of the resulting child. Here, Mr. Escobedo did nothing prior to birth, and the result was that the Nickitas filed for adoption two weeks before the child was born. That was in November 2004, and the adoptive parents have now had the child since birth.
Mr. Escobedo fiercely contends that once he found out he might be the father, due to the exclusion of Ms. Ford’s boyfriend as the father, he took positive steps to legitimate the child includ.ing paternity testing and registering with the Arkansas Putative Father Registry. But his paternity petition was filed a month after the adoption petition and a week after the adoption hearing. His registry with the putative-father registry was still later. Moreover, I agree with the majority’s conclusion that Mr. Escobedo has taken no significant steps to prepare for the custody of the child.
I am persuaded by the reasoning of the Vermont Supreme Court which also considered the rights of a biological father to a child when that father was unaware of the pregnancy and had failed to act. See In re C.L., Juvenile, 878 A.2d 207 (Vt. 2005). In that case, the Vermont Supreme Court said:
To conclude that petitioner acted promptly once he became aware of the child is to fundamentally misconstrue whose timetable is relevant. Promptness is measured in terms of the baby’s life not by the onset of the father’s awareness. The demand for prompt action by the father at the child’s birth is neither arbitrary nor punitive, but instead a logical and necessary outgrowth of the State’s legitimate interest in the child’s need for early permanence and stability.'
878 A.2dat2U.
Next, the Vermont Court quoted from an Arkansas case and said:
Since Lehr [v. Robinson, 463 U.S. 248 (1983)], numerous courts have concluded that it is the father’s burden to discover the existence of his child, even if he had no notice of the pregnancy or birth, or risk losing the opportunity to transform a biological link into a full and enduring parental relationship. In re S.J.B., 294 Ark. 598 , 745 S.W.2d 606, 607 (1988) (although father was unaware of his child, notice of adoption proceeding was not constitutionally required where “biological father was not interested enough in the outcome of the sexual encounter... to even inquire concerning the possibility of her pregnancy”) [.]
Id. at 211-12.
In the case at hand, Mr. Escobedo did not act until after the adoption hearing. There is much he could have done prior to that time, including checking on Ms. Ford’s condition and registering with the putative-father registry. The actions he took were woefully late in my opinion. For these reasons, I would affirm.
Imber, J., joins this concurring opinion.