In Re the Adoption of S.J.B.

Tom Glaze, Justice, concurring. While I join the majority in its result, I do so with some reservations because a strong meritorious argument exists that Arkansas’s statutory scheme fails to provide putative fathers the procedural due process that has been enunciated in at least four United States Supreme Court decisions. The majority court sets out those decisions, and, in three of them, the putative fathers had knowledge of the illegitimate child and had the opportunity to establish a relationship with the child. In the latest decision, Lehr v. Robertson, 463 U.S. 248 (1983), the putative father knew his child had been born, but had no opportunity to have a relationship with her. When comparing those Supreme Court cases to the one at bar, we find another deviation in the facts, since, here, the unwed mother, knowing the putative father’s identity, apparently failed to apprise him that she was pregnant or that she delivered his child. A brief review of the four Supreme Court decisions involving putative father rights will quickly point out why the notice provisions of Arkansas’s adoption laws are constitutionally suspect, and why that issue was raised by the trial judge in this case.

In Stanley v. Illinois, 405 U.S. 645 (1972), the Supreme Court held that the due process clause of the fourteenth amendment entitled Stanley, a putative father, to a hearing on his fitness as a parent. Six years later, the Court decided Quilloin v. Walcott, 434 U.S. 246 (1978), wherein it limited the new parental right given putative fathers under Stanley by indicating that if a putative father fails to show a substantial interest in his child’s welfare, he will not receive the full constitutional protection afforded the rights of other parents. Id. at 254-56 . The Supreme Court next considered the rights of the putative father in the case of Caban v. Mohammed, 441 U.S. 380 (1979), wherein the Court held a New York law violated the equal protection clause of the fourteenth amendment because the law denied an unwed father the same power to oppose his illegitimate child’s adoption as the unwed mother. In Caban, the quality of Caban’s relationship with his children convinced the Court that the unwed father and mother were similarly situated and could not be statutorily distinguished on the basis of sex.

Finally, in 1983, the Supreme Court considered the constitutional protection afforded a putative father’s relationship with his illegitimate child in a procedural due process context. In Lehr v. Robertson, 463 U.S. 248 (1983), the Court reiterated its position that a putative father’s attempts to establish a substantial relationship with his child will determine the constitutional protection afforded that relationship. However, the Lehr Court also clearly informed the states that they must at least protect the putative father’s opportunity to form a relationship with his child. Id. at 262-65 . In considering this procedural due process question, the Court reviewed New York’s statutory scheme, which the state adopted to protect the unmarried father’s interest in assuming a responsible role in the future of his child. The Court said:

After the Court’s decision in Stanley, the New York Legislature appointed a special commission to recommend legislation that would accommodate both the interests of biological fathers in their children and the children’s interest in prompt and certain adoption procedures. The commission recommended and the legislature enacted, a statutory adoption scheme that automatically provides notice to seven categories of putative fathers who are likely to have assumed some responsibility for the care of their natural children. If this scheme were likely to omit many responsible fathers, and if qualification for notice were beyond the control of an interested putative father, it might be thought procedurally inadequate. Yet, as all of the New York courts that reviewed this matter observed, the right to receive notice was completely within appellant’s control. By mailing a postcard to the putative father registry, he could have guaranteed that he would receive notice of any proceedings to adopt Jessica [Lehr’s child]. [Emphasis added.]

Id. at 263-64 . While the Supreme Court held that the New York statutes adequately protected Lehr’s inchoate interest in establishing a relationship with his child, the Court clearly did so because the New York law provided a means by which Lehr — by filing with the “putative father registry” — would have received notice of any adoption proceeding involving his putative child.

Arkansas’s statutory scheme fails to provide the notice or procedural safeguards the New York laws afforded putative fathers in Lehr. There, the unwed mother, throughout her pregnancy and after she gave birth, acknowledged to others that Lehr was the child’s father. However, after she was discharged from the hospital, she concealed her whereabouts, and although Lehr made substantial efforts to find her, he was unable to locate the mother until after she had married a Mr. Robertson. Lehr commenced a legitimacy proceeding, but was unaware (because of lack of notice) that an adoption proceeding had been instituted. On these facts, the Lehr Court disregarded Lehr’s due process argument that he should have received notice of the adoption proceeding, and the Court did so premised on the fact that Lehr had failed to assure his right to notice by registering as a putative father, as required by the New York law.

Unlike New York’s law, Arkansas’s statutes would not have availed Lehr (or someone in his situation) any procedural notice to assure him an opportunity to establish a relationship with his child. In fact, Ark. Code Ann. §§ 9-9-206 (a)(2) and -207(a)(3) (1987) require notice to and consent of a father whose child is to be adopted only if: (1) the father was married to the mother at the time the minor was conceived, or at any time thereafter, (2) the minor is his child by adoption, (3) the father has custody of the minor at the time the petition is filed, or (4) he has otherwise legitimized the minor. Clearly, under these provisions, a putative father in Lehr’s situation could not qualify for notice of any adoption proceeding involving his child. Under such circumstances, Arkansas’s adoption law would have altogether failed to meet the test of procedural due process as set out in Lehr because our state’s statutory scheme fails to protect a putative father’s opportunity to form a relationship with his child.

Of course, the same would seem true for a putative father whose identity is known to the unwed mother, but for her own reasons, the mother chooses not to reveal to the putative father that she is pregnant, much less inform him she gave birth to his child. Under these facts — which are the ones before us now — how does a putative father establish a substantial relationship with his child? No notice that discloses the unwed mother bore his child, gave birth to it and placed the child for adoption is given to the putative father, and none is required by this state. At least one jurisdiction has held, under almost identical facts, that such notice is not required. See P and P v. Children’s Services Div., 66 Or. App. 66 , 673 P.2d 864 (1983).

P and P obviously is not binding precedent here, but, confronted with a similar law and on facts that are almost identical to those presented here, the Oregon courts have upheld the constitutionality of their state’s adoption-notice statute as it relates to putative fathers. Id.;see also Burns v. Crenshaw, 84 Or. App. 257 , 733 P.2d 922 (1987). Arkansas’s adoption-notice provision has been in effect since 1977, and until now, its constitutionality has been unchallenged. Even now, no putative father raises the constitutionality of §§ 9-9-206(a)(2) and -207(a)(3). Arkansas law is settled that every reasonable doubt must be resolved in favor of constitutionality of a statute, and the fact that a statute has been in effect for a long period of time without its validity having been questioned, while not conclusive, is highly persuasive of its constitutional validity. S. Cent. Dist., Pentecostal Church v. Bruce-Rogers, 269 Ark. 130 , 599 S.W.2d 702 (1980).

As already noted, a putative father has never challenged Arkansas’s adoption-notice provisions, nor does one do so now. Instead the trial court here raised the issue, and although the court was justified in doing so, it bears the burden of overcoming the strong presumption that the law is constitutional. While I have some doubts of my own concerning the constitutionality of Arkansas’s law as it relates to the lack of notice given to putative fathers, I am uneasy in holding that law unconstitutional, especially when a comparable law has been upheld in another jurisdiction. See P and P, 66 Or. App. 66 , 673 P.2d 864 .

Nonetheless, I would be remiss not to at least point out (as I have tried to do) why I think Arkansas’s adoption-notice law might be constitutionally suspect and why I believe Arkansas’s notice provision could need remedial attention. In doing so, I am mindful of the problems such a notice poses to the privacy interest of an unwed mother. The Oregon Court in P and P discussed such a privacy interest and that interest assuredly was a factor when that court decided a putative father was entitled to no notice unless he came forward to assume the responsibilities of parenthood.

The question still remains, however, as to how a putative father assumes the responsibility of parenthood if he does not know the child exists? New York, by adopting a law that establishes a putative father registry, has provided a notice procedure to the father and at the same time, minimized an unwed mother’s privacy problem. That law has now passed constitutional muster, at least to the extent warranted by the facts in Lehr. Accordingly, our General Assembly should adopt the New York law, or a similar procedure, in order to ensure the constitutionality of Arkansas’s adoption-notice law. Hopefully, in considering such legislation, the General Assembly will weigh and be mindful of the privacy interests of unwed mothers.

Holt, C.J., joins in this concurrence.