Amicus Curiae Brief — Baby "Richard", Etc. v. Kirchner, Otakar Doe, John, Et Ux., Etc. v. Kirchner, Otakar, Etc

Supreme Court brief1994

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IN THE

SUPREME COURT OF THE UNITED STATES

OcTOBER TERM, | 994

BABY "RICHARD", ALSO KNOWN AS BABY BOY JANIKOVA, A

MINOR, BY HIS GUARDIAN AD L/TEM, EDWARD J. O'CONNELL,

AND

JOHN AND JANE DOE, HUSBAND AND WIFE,

ADOPTIVE PARENTS OF BABY RICHARD,

PETITIONERS,

vs.

OTAKAR KIRCHNER,

BIOLOGICAL FATHER OF BABY RICHARD,

RESPONDENT.

On Wart OF CERTIORARI TO THE ILLINOIS SUPREME COURT

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF OF AMI/C/

CURIAE DEBOER COMMITTEE FOR CHILDREN'S RIGHTS,

LEGAL ACTION PROJECT OF THE NATIONAL COMMITTEE

FOR THE RIGHTS OF THE CHILD, THE NATIONAL TASK

FORCE FOR CHILDREN'S CONSTITUTIONAL RIGHTS,

GEORGE H. RUSS

IN SUPPORT OF PETITIONERS

Lewis Pitts | OS W. PARRISH STREET,

(COUNSEL OF RECORD) 3RD FLOOR

LEGAL ACTION PROJECT OF DURHAM, NC 2770)

THE NATIONAL COMM. FOR (So| 9) 688-0268

THE RIGHTS OF THE CHILD

(COUNSEL LISTING CONTINUED ON INSIDE COVER)

Lewis Pit7Ts (CONTINUED)

COUNSEL FOR AMIC/ CURIAE

DEBOER COMMITTEE FOR

CHILDREN'S RIGHTS

P.O. Box 2064

ANN ARBOR, MICHIGAN

48! O6

(31 3) 763-5000

EUGENE P. FALCO

THE NATIONAL TASK FORCE

FOR CHILDREN'S

CONSTITUTIONAL RIGHTS

LITCHFIELD COMMONS

P.O. Bax | Geo

LITCHFIELD, CONNECTICUT

06759

(203) 567-KIDS

GEORGE H. Russ

SELLAR, SEWELL, RUSS AND

SAYLOR

P.O. Box 492722

LEESBURG, FLORIDA

(S04) 749-2722

MOR SD is

Nos. 94-236 anbdD 94-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, | 994

BABY "RICHARD", ALSO KNOWN AS BABY BOY JANIKOVA, A

MINOR, BY HIS GUARDIAN AD L/TEM, EDWARD J. O'CONNELL,

AND

JOHN AND JANE DOE, HUSBAND AND WIFE,

ADOPTIVE PARENTS OF BABY RICHARD,

PETITIONERS,

vs.

OTAKAR KIRCHNER,

BIOLOGICAL FATHER OF BABY RICHARD,

RESPONDENT.

ON Writ OF CERTIORARI TO THE ILLINOIS SUPREME COURT

MOTION FOR LEAVE TO FILE BRIEF AM/C/ CURIAE DEBOER

COMMITTEE FOR CHILDREN'S RIGHTS, LEGAL ACTION

PROJECT OF THE NATIONAL COMMITTEE FOR THE RIGHTS

OF THE CHILD, THE NATIONAL TASK FORCE FOR

CHILDREN'S CONSTITUTIONAL RIGHTS, GEORGE H. RUSS

IN SUPPORT OF PETITIONERS

The DeBoer Committee for Children's Rights, Legal

Action Project of the National Committee for the Rights of the

Child, the National Task Force for Children's Constitutional

Rights, and George H. Russ move the Court for leave to file a

brief of amici curiae in support of Petitioners and as a basis

therefor show:

The DeBoer Committee for Children's Rights is a non-

profit organization that was organized prior to the final decision

in the case of Baby Jessica. In its relatively short history, the

DeBoer Committee has organized 30 state chapters. Just this

last weekend, the DeBoer Committee hosted its first national

conference on children's rights. At least 35 "professionals" and

125 representatives from the state chapters met in Ann Arbor,

Michigan to discuss its goals and objectives for the coming

year. Although the DeBoer Committee has appeared as amicus

curiae in numerous state cases involving children's rights, this is

its first brief amicus curiae in this Court.

The National Committee for the Rights of the Child is a

broad based coalition of over 40 national organizations and

child advocacy centers working to improve the quality of life of

children in the United States. The Legal Action Project of the

National Committee for the Rights of the Child was established

in March, 1993. The Legal Action Project has been involved,

often appearing as counsel of record or as amicus curiae, in

cases involving children in Florida, Iowa, Michigan, Missouri,

Kansas, Tennessee, South Carolina, California, New Jersey and

Colorado.

The National Task Force for Children's Constitutional

Rights was founded in 1988 by The Honorable Charles D. Gill,

judge of the Connecticut Superior Court, and Dr. Anne Burgess

of the University of Pennsylvania. The Task Force is a

multidisciplinary organization with membership in all fifty

states. The Task Force has appeared as amicus curiae in state

and federal courts in cases involving the nights of children.

George H. Russ is an attorney in private practice in

Florida. He practices in the area of family law and has been a

member of various Florida commissions and committees

concerned with the rights of children. He is an adoptive father;

has represented Kimberly Mays (Twigg v. Mays, S.2d

taille

1993); and has lectured nationally and internationally on issues

of children's rights.

In sum, the organizations and professionals requesting

permission to file a brief amici curiae have identified a long

term commitment to protecting the rights of children and thus,

it is submitted, have a sufficient interest in this matter.

Because of their expertise and experience in the area of

children's law, the applicants can provide the Court with the

broader implications of the Illinois Supreme Court's decision.

Specifically, the applicants’ brief analyzes the present case in the

context of the expansion of children's statutory and

constitutional rights across the nation.

The applicants present a broad perspective on the

implications of the Illinois decision based on their experience in

and knowledge of the area of children's rights. Given the

federal and state constitutional implications of the present

appeal, the Court may benefit from input from all

knowledgeable sources. Moreover, the applicants also have

had experience as amici curiae in other cases dealing with

children's rights.

The applicants support the position of the Petitioners

that the Illinois Supreme Court improperly ignored Baby

Richard's protectible liberty interest in maintaining the

relationship he has developed with his adoptive family as

guaranteed to him by the Fourteenth Amendment to the United

States Constitution.

The applicants have contacted all parties of record in

order to obtain the consent of the parties to file a brief of .

Permission, by telephone, has been granted by: Lee Ann

Lowder, Of Counsel, for Petitioner Baby "Richard", also known

as Baby Boy Janikova, a minor, by his guardian ad litem,

Edward J. O'Connell; Richard Lipshitz, counsel for Petitioners

John and Jane Doe, adoptive parents of Baby Richard; and,

Thomas Geraghty, counsel for Respondent Otakar Kirchner.

WHEREFORE, the DeBoer Committee for Children's

Rights, the Legal Action Project of the National Committee for

the Rights of the Child, the National Task Force for Children's

Constitutional Rights, and George H. Russ respectfully request

leave to file a brief of amici curiae in support of Petitioners.

Respectfully submitted,

Lewis Pitts

(Counsel of Record)

LEGAL ACTION PROJECT OF THE

NATIONAL COMM. FOR THE

RIGHTS OF THE CHILD

106 W. Parrish Street

3rd Floor

Durham, NC 27701

(919) 688-0268

Counsel for Amici Curiae

DEBOER COMMITTEE FOR CHILDREN'S

RIGHTS

P.O. Box 2064

Ann Arbor, Michigan 48106

(313) 763-5000

Eugene P. Falco

NATIONAL TASK F ORCE FOR

CHILDREN'S CONSTITUTIONAL RIGHTS

Litchfield Commons

P.O. Box 1620

Litchfield, Connecticut

06759

(203) 567-KIDS

George H. Russ

Sellar, Sewell, Russ and Saylor

P.O. Box 492722

Leesburg, Florida

(904) 749-2722

; Nos. 94-236 AND 94-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, | 994

BABY "RICHARD", ALSO KNOWN AS BABY BOY JANIKOVA, A

MINOR, BY HIS GUARDIAN AD L/TEM, EDWARD JU. O'CONNELL,

AND

JOHN AND JANE DOE, HUSBAND AND WIFE,

ADOPTIVE PARENTS OF BABY RICHARD,

PETITIONERS, .

vs.

OTAKAR KIRCHNER,

BIOLOGICAL FATHER OF BaBY RICHARD,

RESPONDENT.

ON Writ OF CERTIORARI TO THE ILLINOIS SUPREME COURT

BRIEF OF AMIC/ CURIAE DEBOER COMMITTEE FOR

CHILDREN'S RIGHTS, LEGAL ACTION PROJECT OF THE

NATIONAL COMMITTEE FOR THE RIGHTS OF THE CHILD, THE

NATIONAL TASK FORCE FOR CHILDREN'S CONSTITUTIONAL

RIGHTS, GEORGE H. RUSS

IN SUPPORT OF PETITIONERS

QUESTIONS PRESENTED FOR REVIEW

1. Whether a three year old child, who has

lived in a court-sanctioned adoptive home since

he was four days old, has a liberty interest in

maintaining his filial relationship with his

adoptive parents, which cannot be abrogated

without a hearing to determine whether it is in

his best interests to be placed in the custody

of his biological father, whom he has never met.

2. Whether this Court’s decision in Stanley

v. Illinois requires the Illinois courts to

ignore the strong public policy codified in

Illinois law, which favors the Stability and

permanence of adoptions at the consent of

unmarried mothers.

Te RE Ct SNA, SER Ration

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..... coeeee L

TABLE OF CONTENTS RRA PP OSECRCCCCGAbdeeee Lt

TABLE OF AUTHORITIES PSEC ERC Sse eeeeense LY

OPINIONS BELOW ne OS PAC SCs ececoscce 1

JURISDICTIONAL STATEMENT TRESS ORECR Gece ews 1

STATEMENT OF THE CASE oi ee

REASONS FOR GRANTING THE WRIT Coeccccccecce 1

I. The issues presented by this case are of

critical importance to adopted and

adoptable children and their biological

and adoptive families Sette hea eeese 2

II. Richard has a protectible liberty

interest in maintaining the relationship

he has developed with his adoptive

family, which the Illinois Supreme Court

improperly ignored oF a. ee ae 000 06

A. Children have a liberty interest in

continuity of relationships ..... 7

B. Children have a liberty interest in

freedom from harm that may limit a

fit parent's constitutional

rights POP POOR eS eS eecesesecce 20

¢. Bringing legal practice regarding

children into line with

constitutional principles ...... 26

Seiden —

Iii. Stanley v. Illinois does not require the

Illinois courts to ignore the strong

public policy codified in Illinois law,

which favors the stability and

permanence of adoptions at the consent

of unmarried mothers eoccccvesecces 32

CONCLUSION > = a = cuca Shs as eS © @ @ @ oe ef; eo oe © @ 42

iil

TABLE OF AUTHORITIES

»Cases Page

Adoption of Kelsey S., 1 Cal.4th ,

14 Cal.Rptr.2d 614, 823 P.2d 1216

HONE SEN ah evucewseiees us chiceacex. OO

)Bennett v. Jeffreys, 40 N.Y.2d 543, 356

gN.E.2d 277 (1976) coccccceccece 17, 18, 19

iBerhow vy. Crow, 423 So.2d 371 (Fla. App.

11982) eewseeoeoee ee eeseeeeeeeeeoeeeees 16

Bradwell v. Illinois, 83 U.S. (16 Wall.) 130

SUaeeee. A Sha hee i ida anion ee oe eka 10

iBrown v, County of San Joaquin, 601 F.Supp.

Se COUN” NA Newunuuadecusascebenten be .. 14

pe |

Certain Named and Unnamed Non-Citizen

*Children and Their Parents v. Texas, 448 U.S.

SORE. CRO ceases MR eka eo OS ws ke re 3 |

—

;City of Cleburne, Tex. v. Cleburne Living

Cir, sate, GTR Wi8. 200 (EROS) ccs cscne ss 6

sCruzan v. Director, Missouri Dept. of Health,

1497 Wome (1990) SCeeeeeeea1eqgedcete & ee @ 6 6

“

Davis v. Davis, 842 S.#.2d 588 (Tenn. 1992)

eeceseveces ann aT

é eee ee eee

DeBoer vy. DeBoer, 509 U.S. (1993) .... 3

‘Department of Health & Rehabilitative Serv.

v: Privette, 617 So.2d 305 (Fla. 99S) oes AS

‘Hammer v. Dagenhart, 247 U.S. 251 (1918)

21, 32

i i i 72.9 626098 9.46: 09.9 0:36 3 5 8066620069 6 6 6 8 @

In re Adoption of a Minor Child, 593 So.2d

LUO £0s0s BOPE) eek RRS Hee ewe wees rrr ae |

= In re Avpeal of H.R., 581 A.2d 1141 (D.C.

3 1990) 2? = @€ ee 2 ¢ 2.

eoeeoeeeeeteee ee @ eee eee es te @ 24

tin re Gault, 387 U.S. 1 (1967)

bectatianace @

f In re M.N.M., 605 A.2d 921 (D.C. 1992) ... 24

> In Re Jasmon O., California Supreme Court No.

SSO30556, filed Sept. 2, 1994 .uccccccoses 15

3 In the Matter of Baby M, 109 N.J. 396, 537

DADE BEES CM Es OUD cee eR ep acenrccences 25

} King v. Low, 1R.C.S. 87 (Canada 1985)

}Lehr v. Robertson, 463 U.S. 248 (1983)

Be eee eee eke hw ON ee 68 ea Sy 24, 33, 2

imatter of Marriage of Ross, 783 P.2d 33l

5 (Kan. 1989) ee ee es ee a Cae oe oe 6 wee 19

Matter of Pima County Juvenile Severance

Mction, 876 P.2d 1121 (Ariz. 1994)

ee 2 .¢ 2 4, 40, 41

eoeeeenreterreeeeee#e#et#ee#rteee*

Meyer _v. Nebraska, 262 U.S. 390 (1923) ....27

fichael H. v. Gerald D., 491 U.S. 110 (1989)

ee es Nees ve 2. 7, 2

Parham v. J.R., 442 U.S. 584 (1978) .. 21, 22

Pierce v. Society of Sisters, 268 U.S. 510

1925) é

Se e2 © @@E€ eee ¢ ee 6 € eoeoeeoteeoeeeeeee 86 8 @ 8 27

Prince +, Massachusetts, 321 U.S. 158 (1944)

eG ete tee et eee ee a aR 21

Quilloin v. Walcott, 434 U.S, 246 (1978)

de erie ates i deiitde ee ee ee *

Robert O. v. Russell x. , 80 N.Y. 254,

604 N.E.2d 99 (N.Y. cf On ene 39, 40

Roberts v. United States Jaycees, 468 U.S.

[OO OPEN. Sa eemae gear ceeT TL cove 7, 8

Smith v, City of Fontana, 818 F,2qd 1411 (9th

Se WOME | asvake oe: CCS bass o 466% 9

Smith v. Organization of Foster Families P

431 U.S. 816 (1977) UPA S Ra we deee 10, 11

Sorentino v. Family & Children's Society of

Elizabeth, 74 N.3. 313, 378 A.2da 18 oo Ae

1977) Ce SS Se Oe oe We OO Cu Oe be e-e bs 25

Stanley v. ilidese 405 U.S. 645 (1972)

Bet ECR RARS PMO ERAMS 5.65 60 050s . a, 32, 38

Taylor y, Ledbetter, 818 F.2q 79] (42th Cir.

See) See eee sce cove 29

Tinker v. Des Moines School District, 393

ysis, ems cape 6

| Trop _v. Dulles, 356 v.s. 86 (1958) ....., 29

| Wisconsin v. Yoder, 406 U.S. 205 o5 Pe ¢ Reems © |

te eden Acie Salih

Other Authorities Page

Clark, Children and the Constitution, 1992

Univ. of ill. Law rev. 1 (1992) oe. 35, 36

Cohen, Relationships Between the Child, the

Family, and the State, in PERSPECTIVES ON THE

FAMILY 293 (M. Bayles, R. Moffit & J. Greie,

eds. 1990) Ct te POOR NEPRNR ahaa wee <u « 5 aa

Genden, Separate SLegal Representation for

Children; Protecting the Rights and

Interests of Minors in Judicial] Proceedings,

11 Harv.C.R.-C.L. Law Rev. 565 (1976) eees 29

Gill, Essay on the Status of the American

Child, 2000 A.D.: Chattel or

Constitutionally Protected Child-Citizen?,

17 Ohio Northern L.Rev. 543 | Re

Goldstein, et al., BEFORE THE BEST INTERESTS

OF THE CHILD (1979) a en eo ee ee ee eer + 2 22-

Hart, From Property to Person Status:

Historical] Perspectives on Children's Rights,

46 Am.Psychologist 53 (Jan. 1991) covevee 31

Kleinfeld, The Balance of Power Among

Infants, Their Parents, and the State, 4

Fam.L.Q, 320 (1970) ed tL ee Fe a 28

Mnookin, CHILD, FAMILY AND STATE (2978) .. 32

)Tremper, Respect for the Human Dignity of

Minors: What the Constitution Requires, 39

Syracuse L.Rev. 1293 (1988) CSeccceccces 26

Williams, The Velveteen Rabbit Semecscea 10

pWoodhouse, "Who Owns the Child?" Meyer and

gPierce and the Child as Pro erty, 33 William

& Mary tag me tid as Property

& Mary Law Review 995 (1992) Cecccccccocces 27

vii

ne ee

OPINIONS BELOW -

The opinions below are attached as

appendices to the Petitions of the adoptive

parents and the child.

- JURISDICTIONAL STATEMENT

Amici adopt the jurisdictional statement of

the adoptive parents.

STATEMENT OF THE CASE

Amici adopt the statements of the case in

the Petitions of the child and of the adoptive

parents.

REASONS FOR GRANTING THE WRIT

This Court is not being asked to authorize

governmental, agency, or private actions that

would permit-children to be snatched from intact

families, regardless of the economic, social, or

racial status of those families. Rather, the

Court should allow a child to maintain and

preserve established relationships with adoptive

or de facto parents who have cared for and

nurtured the child once the bitth family has

disintegrated to the extent that relationship

with the birth parent can be shown to be

detrimental to the child’s best interests.

I. THE ISSUES PRESENTED BY THIS CASE ARE OF

CRITICAL IMPORTANCE TO ADOPTED AND ADOPTABLE

CHILDREN AND THEIR BIOLOGICAL AND ADOPTIVE

FAMILIES.

Thousands of adoptions occur every year, and

many more children need adoptive placements.1

Many other children are being raised by adults

other than a genetic parent, without formal

adoption. The expansive interpretation given to

rights of putative fathers by the Illinois

Supreme Court threatens the security of adoption

as an alternative for children in need of

families. Adult-centered interpretations of the

law and biological bias endanger the meaningful

familial relationships of children who have not

been formally adopted and reduce the viability

Of adoption. In an ate when many believe that

there is an excess of procreation and a shortage

of parenting, this is not only of personal

Significance to the individuals involved but of

1 There are over 500,000 children in

foster care, many of them remaining there for

lack of adoptive placements.

broad legal and social Significance because of

the costs attendant upon denying children

stable, reliable family relationships.

Cases such as this one will not gO away. In

addition to the Baby Jessica case [DeBoer v.

DeBoer, 509 U.S. (1993)] and this one, a

Similar unwed father adoption case was argued

before the New Mexico Supreme Court this spring

and is awaiting decision, and the Arizona

Supreme Court decided two such cases this

Summer. These cases are reaching inconsistent

results based at least in part on divergent

understandings of this Court’s decisions

concerning the rights of unwed fathers. The

Illinois Supreme Court focused on Stanley v.

Tllinois, 405 U.S. 645 (1972) and took a broad

view of the rights of unwed fathers. The

Arizona Supreme Court, focusing instead on Lehr

V. Robertson, 463 U.S. 248 (1983) - which the

Tllinois Supreme Court ignored - reached an

Opposite result, and stressed the burden of

unwed fathers to establish their entitlement to

parental rights. Matter of Pima County Juvenile

Severance Action, 876 P.2qa 1121, 1133 (Ariz.

1994) The Illinois Supreme Court decision is

inconsistent with this Court’s most recent

rulings and the predominant understanding by the

states of those rulings.

Conflicting interpretations and

uncertainties about the impact of this Court’s

decisions about the rights of unwed fathers

threaten the Security of adoption as an

alternative for children in need of families.

Most importantly, this Illinois Supreme

Court decision unambiguously ignores the child’s

rights, needs and interests. It does so without

consideration of, or even mention of, the

holdings of this Court that a child is a

‘person’ protected by the Constitution. By

totally leaving the child out of the equation,

the decision propagates the traditional adult-

centered perspective within family law which

myopically analyses only the rightness or

wrongness of conduct by the competing adults and

has not incorporated the fundamental principle

that a child is a person. The manifest

ee re ee

injustice to this Child which will occur if he

is snatched from the only family he has ever

know, is ignored in an optical-illusion-like

focus on highly disputed facts presented in

highly charged ideological terms, such as

evoking the Spectre of the State breaking up

natural families and taking children from poor

and/or ethnic citizens. The optical illusion

naturally appears then disappears absent a fully

contextualized understanding. (In this case the

Appeals Court affirmed the trial court; then the

Supreme Court reversed; then two justices who

voted to reverse joined in favor of rehearing. )

The anchoring principle of including the child

aS a person in the constitutional analysis

Prevents the outcome from being determined by

which ideological eye is cast upon the matter.

Amici submit that there is a compelling

national interest in grant of certiorari so that

this Court can consider, ina fully

contextualized way, the extent and consequences

of the treatment of children as property and not

persons in this and Similar cases.

II. BABY RICHARD HAS A FUNDAMENTAL LIBERTY

INTEREST IN MAINTAINING THE RELATIONSHIP HE

HAS DEVELOPED WITH HIS ADOPTIVE FAMILY, THE

ONLY FAMILY HE HAS LIVED WITH FOR THE ENTIRE

THREE AND A HALF YEARS OF HIS LIFE, WHICH

THE ILLINOIS SUPREME COURT IMPROPERLY

IGNORED

More that 25 years ago this Court stated:

"Whatever may be their precise impact, neither

the 14th Amendment nor the Bill of Rights is for

adults alone." n ult, 387 US 1, 13

(1967). The Court held that children "are

‘persons’ under our Constitution" and are

"possessed of fundamental rights which the State

must respect." Tinker v. Des Moines School

District, 393 US 503,°511 (1969).2

The Court has not determined the

implications of this fundamental principle as it

bears on the protection due children’s

2 As other of this Court’s decisions hold,

the fact that a person may not be able to act or

choose autonomously is not dispositive, and

"competence" in the usual adult sense is not a

prerequisite to possession of constitutional

rights.

Living Ctr., Inc., 473 U.S. 432 (1985); see also

497 US , 111 L.Ed.2d 224 (1990).

relationships with their functional families.3

This case squarely presents that issue. Amici

believe that because a child is a ‘person’, it

is relevant, in deciding who Richard’s parents

are, that he has lived with his adoptive parents

for all but the first four days of his life, and

how loss of that family could affect hin.

A. Children have a liberty interest in

continuity of relationships

As a "person" this child is protected by the

Fourteenth Amendment to the United States

Constitution. Among the fundamental elements of

personal liberty protected by the 14th Amendment

is the freedom of intimate association. Roberts

v. United States Jaycees, 468 U.S. 609, 618-620

(1984) (Bill of Rights, in order to secure

3 An experienced Connecticut state court

judge recently wrote,

It is ironic that although corporations in

the United States have long been held to be

"persons," and thus are eligible for

constitutional protection, the extent to

which children, as individuals, have

comparable constitutional rights is still

not entirely clear.

Gill, Essay on the Status of the American Child,

- 2, 17 Ohio Northern

L.Rev. 543, 548 (1991).

individual liberty, shelters highly personal

relationships from unwarranted state

interference). This includes protection of

family relationships, of which the Court said:

"Family relationships, by their nature, involve

deep attachments and commitments to the

necessarily few other individuals with whom one

shares nt only a special community of thoughts,

experiences and beliefs but also distinctively

personal aspects of one’s life." Roberts, 468

U.S. at 618-620. Roberts does not present

biological connection that is the key to

constitutional protection of intimate

relationships.

The 14th Amendment protects a child’s as

well as an adult’s family relationships, and the

companionship and care which the family provides

for a child:

We now hold that this constitutional

interest in familial companionship and

society logically extends to protect

children from unwarranted state interference

with their relationships with their parents.

The companionship and nurturing interests of

parent and child in maintaining a tight

familial bond are reciprocal, and we see no

reason to accord less constitutional value

to the child-parent relationship than we

hhc inte Dian

~ as ts tees Menasha ool

accord to the parent-child relationship.

When a child claims constitutional

protection for her relationship with a

parent, there is no Custodial interest

- implicated, but only a companionship

interest. This distinction between the

parent-child and the child-parent

relationship does not, however, justify

constitutional protection for one but not

the other. We hold that a child’s interest

in her relationship with a parent is

sufficiently weighty by itself to constitute

a cognizable liberty interest.

Smith v. City of Fontana, 818 F.2aqa 1411, 1418-

1419 (9th Cir. 1987) (emphasis in Original). The

"companionship" interest described in Smith v.

City of Fontana is Clearly defined by the

content of the relationship, not its genetic

Origin. It stems from nurture, not

Participation in the Physical process of

procreation.

If anything, family relationship is even

more critical to a child than to an adult

because of the vulnerability and dependency of a

Child. Parent figures are not fungible for

Children; adults are not interchangeable in the

role of parent. Contrary to the Illinois

Supreme Court’s "bounce back" theory, stability

of parental relationships is critical to

children’s well-being.4

In Smith v. OFFER, 431 U.S. 816 (1977), the

Court refused to limit its conception of

‘family’ to biological relationsips. The Court

declined to decide the constitutional status of

foster parents but acknowledged that although

the usual understanding of "family" implies

biological realtionsips, such "biologial

relationships are not exclusive [determinants]

of the existence of a family," noting that the

legal protection of the husband-wife

relationship is not based on shared blood.

The question of whether children have a

constitutionally protected liberty interest in

4 The fundamental developmental

Significance to a child of a long-term nurturing

relationship with an adult is expressed

metaphorically in the children’s book, The

Velveteen Rabbit:

"What is REAL?" asked the Rabbit one

day, when they were lying side by side near

the room. "Does it mean having things that

buzz inside you and a stick-out handle?"

"Real isn’t how you are made," said the

Skin Horse. "It’s a thing'that happens to

you. When someone loves you for a long,

long time, not just to play with, but REALLY

loves you, Then you become Real."

bP A ELC 5b ial, Spee, Pele ai tinh Hh LBA Dag <rind bs

attachments to functional family members to whom

they are not related by blood was left open in

Smith v. Organization of Foster Families, 431

U.S. 816, 847 (1977) _("[foster children’s] claim

to a constitutionally protected liberty interest

raises complex and novel question [but] it is

unnecessary for us to resolve those questions

definitely in this case"). However, the Court

pointedly noted:

[T]he importance of the familial

relationship, to the individuals involved

and to the society, stems from the emotional

attachments that derive from the intimacy of

daily association, and from the role it

plays in ‘promot[ing] a way of life’ through

the instruction of children, Wisconsin v.

Yoder, 406 U.S. 205, 231-233 (1972), as well

as from the fact of blood relationship. No

one would seriously dispute that a deeply

loving and interdependent relationship

between an adult and a child in his or her

care may exist even in the absence of blood

relationship. At least where a child has

been placed in foster care as an infant, has

never known his natural parents, and has

remained continuously for several years in

the care of the same foster parents, it is

na ami Vv e

Gul i i i th

foster child, and fulfill the same

socializing functions, as a natural family.

Smith v. OFFER, 431 US at 844 (emphasis added).

Sa arcana

ee ee ee ee Tey

A child is a person. When a functional

family has the same Place in the emotional life

of the foster child and fulfills the same

socializing functions as a "natural" family,

then the child’s relationship with that family

should have the same protection as it would with

a "natural" family.

An adoptive child’s interests are far

stronger than those of the foster children in

Smith. The relationship between the adoptive

parents and adoptive child is based on love, not

contract and profit, and is intended by all

concerned, including the state, to create a

permanent parent-child bond. on it is even

more like the relationships to which this Court

has extended the greatest protection.

Where children have been placed with persons

other than their biological parents for long

periods of time, crucial bonds ususally form

between them that cannot be distrubed without

the same harm that comes from taking children

from loving biological families. Goldstein, et.

al., BEFORE THE BEST INTERESTS OF THE CHILD

(1979).

Adoption is the legal process by which a

non-biological parent-child relationship is

created; parenting is the social process. The

legal process can be reversed, but the social

process cannot. For Baby Richard, the process

began the day he was placed with the Does.

Children do not wait for a court to tell them

who their parents are. To a child, whose

ability to survive and grow physically and

emotionally depends on having needs met by

adults, it is adult conduct and not adult

credentials that count. Legal principles that

link protection of children’s relationships to

formalities and credentials in effect require a

child to check birth certificates, marriage

licenses and HLA test results before risking

forming attachments or risk the consequences of

later being determined to have bonded with the

‘wrong" parents!

Respecting a child as a a requires

respecting the child’s relationships with those

nate.

who reliably meet that need. It requires

protecting their relationships with people who

have served as parents for them, for purposes of

determining custody if not for purposes of

determining parental rights.

At least one federal court has recognized

that, after one year in foster care, the

emotional ties between the foster parent and the

foster child may have matured to such a degree

that they are deserving of legal and

constitutional protection. Brown v. County of

San Joaquin, 601 F.Supp. 653, 662 (1985)(foster

family relationship was similar to other

familial relationships held by the Supreme Court

to be entitled to constitutional protection,

where the foster parent-foster child

relationship had the same content as a healthy

biological parent-child relationship). The

court said, "Reality controls; the emotional

Sustenance and enrichment, the very sense of

self, derived from an intimate relationship with

one’s parent or one’s child cannot be discounted

by the niceties of the relationship’s

creation."5 See also In Re Jasmon O., Cal.

Supreme Court No. S030556 (opinion filed 9/2/94)

(children with long-standing relationships with

non-biologically related adults develop certain

constitutional rights which are protectable).

The Florida Supreme Court recently held that

the nature of the relationship between a child

and foster parents created a fundamental due

process liberty interest in the foster parents

such that they were entitled to notice and a

meaningful opportunity to be heard in adoption

proceedings initiated by the child’s maternal

grandparents. In re: Adoption of a Minor

Child, 593 So.2d 185 (Fla. 1991). The court

effectively adopted the concept that the closer

a relationship between a child and an adult

5 The court went on to say, "No one can

instruct the infant foster child that his foster

parent is not his real or natural parent; no one

can diminish the infant foster child’s feelings

toward his foster parent and cause them to be

distinguished from the feelings of an infant

child to his natural parents." The court found

that the State had created an expectation of an

enduring relationship by leaving the child in

foster care longer than statutorily permitted,

and therefore allowed a fundamental liberty

interest to come into existence by allowing a de

facto parent/child relationship to develop.

becomes to that of a normal child/parent

relationship, the greater the constitutional

protection that should be provided to that

relationship, regardless of the biology

involved. 6

Interfering with the child’s family

relationship at the expense of his well-being

would violates the child’s rights and treats him

and his rights as constitutionally less

signficant than the birth father and his rights.

The child is reduced, thereby, to an instrument

to serve the birth father’s interests. If the

courts below wrongly interfered in the father’s

right to raise his child, that is not properly

rectified by now having the state interefere in

the child’s life by depriving the child of his

family and causing him emotional trauma, without

a demonstration that this is in fact in his best

6 See also Berhow v. Crow, 423 So.2d 371,

374 (Fla. App. 1982)("[A]s the nature of the

foster parent/child’s "familial relationship"

becomes closer and stronger, so as to approach

the level of the relationship between natural

parents and their offspring, so too do the

rights of the foster parents to preserve that

relationship.")

interests. A hearing is necessary to determine

the child’s best interests at the time that the

State attempts to disturb the child’s world.

When faced with resolving a conflict between

people who all have interests of constitutional

magnitude, a court should "consider the

positions of the parties, the significance of

their interests, and the relative burdens that

will be imposed by differing resolutions."

Davis v. Davis, 842 S.W.2d 588, 603 (Tenn.

1992). Instead, the Illinois Supreme Court’s

opinion treated only the biological father as

having rights while the child was to being

subject to being literally "repossessed" by a

biological parents in the same manner as

property, capable of ownership, without

independent human rights.

In Bennett v. Jeffreys, 40 N.Y.2d 543, 356

N.E.2d 277 (1976), the New York Court of Appeals

rejected the idea that a third party acquires

"squatter’s rights" in a child through long-

term custody, but recognized that the child is a

person and acquires rights in such a situation.

In Bennett a biological mother petitioned the

court to obtain custody of her child from the

child’s custodian. The New York court upheld

the presumption of parental custody but

unanimously held that if "extraordinary

circumstances" exist the lower court must

examine into the child’s best interests rather

than simply applying a parental preference.

Id., 356 N.E.2d at 280. The court held that one

"extraordinary circumstance" triggering the

requirement of considering the child’s interest

is when "the child [has been] so long in the

custody of the nonparent that, even though there

has been no abandonment or persisting neglect by

the parent, the psychological trauma of removal

is grave enough to threaten destruction of the

child." Id., 356 N.E.2d at 284. The court

noted that over time there had been a "shifting

of emphasis" in the case law in this area.

"This shifting reflects more the modern

principle that a child is person, and not a

Subperson over which the parent has an absolute

possessory interest." Id., 356 N.E.2d at 281

(emphasis added).

Recently courts in several states, in cases

of disputed paternity, have required the holding

of a hearing to determine if blood testing is in

a child’s best interests when there is a

presumed parent. These decisions reflect

recognition that a necessary implication of

treating a child as a "person" is respecting

that child’s functional family rather than

privileging biology alone.

Prior to ordering a blood test to determine

whether the presumed parent is the

biological parent, the district court must

consider the best interest of the child,

including physical, mental, and emotional

needs. The shifting of paternity from the

presumed father to the biological father

could easily be detrimental to the emotional

and physical well-being of the child.

Although someone may suffer, it should never

be the child, who is totally innocent and

who has no control over or conception of the

environment into which he or she has been

placed.

Matter of Marriage of Ross, 783 P.2d 331, 338-

339 (Kan. 1989) (emphasis added); Department of

Health & Rehabilitative Serv. v. Privette, 617

So.2d 305 (Fla. 1993)("it seldom will be in the

children’s best interest to wrench them away

from their legal fathers and judicially declare

that they now must regard strangers as their

fathers. The law does not require such cruelty

towards children.").7

Baby Richard has a real family; the Does are

real parents because they parent him. He is

entitled to protection of that relationship as

much as adults are entitled to protection of

their intimate relationships from State

interference.

B. Children have a liberty interest in freedom

from harm that may limit a fit parent’s custody

rights.

"Restoring" this child to his birth father

would destroy the only family he knows. No

matter how fine the birth father would be,

substituting him for the "mommy" and "daddy"

that the child knows and depends upon would come

at a huge price to the child. The loss of

family this child faces entails tremendous loss

7 Cf. Michael H. v. Gerald D., 491 U.S. at

124 n.4 (plurality opinion) (liberty interest of

a putative father cannot be evaluated in

isolation, without reference to its effect on

the other members of the family he seeks to

intrude upon).

of trust and emotional security. This Court has

recognized that harm to children’s mental and

emotional development involves injuries that

cannot be reversed or remedied. Certain Named

and Unnamed Non-Citizen Children and Their

Parents v. Texas, 448 U.S. 1327, 1332 (1980)

(irreparable harm to children of not being able

to attend school; recognizing that

developmental, emotional and behavioral damage

to children cannot be repaired by a future legal

remedy). The unique nature of the threatened

harm to this child far outweighs the possible

detriment to the adult parties, as recognized by

the priority historically accorded to protecting

vulnerable children. See, e.g., Prince v.

Massachusetts, 321 U.S. 158 (1944); Hammer v.

Dagenhart, 247 U.S. 251 (1918)(Holmes, J.,

dissenting).

The child has an interest in being protected

from harm whether the harm comes from physical

abuse or from severing his relationship with his

long-term care givers. In Parham v. J.R., 442

U.S. 584 (1978), the Court noted that,

regardless of the state’s respect for parental

authority, and parent’s right to decide what is

best for the child, "we have recognized that a

state is not without constitutional control over

parental discretion in dealing with children

when their physical or mental health is

jeopardized." Id. at 604 (emphasis added).

Where legal recognition is withheld in

situations involving established psychological

and emotional relationships between children and

adults they consider their parents, the forcible

interruption of these relationships does not

differ from those caused by separation from, or

death of, natural or adoptive parents.

Goldstein, et al, BEYOND THE BEST INTERESTS OF

THE CHILD 27 (1973).

Due Process requires that Richard be given a

hearing on whether removal from the Doe family

is in his best interest and that he not be

deprived of his safety and happiness but for the

most compelling reasons. Interfering with the

child’s family relationship with the Does at the

expense of his well-being would treat the child

and his rights as constitutionally less

significant than the birth father and his

rights, reducing the child to an instrument to

serve the birth father’s interests. The child

is entitled to a hearing on his claim of

irreparable harm.

A foreign court which comes from the same

legal tradition in respect to family law as this

country has ruled in the interests of protecting

the child in a situation like this. In King v.

Low, 1 R.C.S. 87, 105 (1985), Canada’s highest

court traced the development of English and

Canadian law from child-as-chattel-of-genetic-

parents to the view that "the Court in questions

of contested custody, including contests between

a natural parent an adoptive parents, must

consider the welfare of the child the

predominant factor and give it effect in

reaching its determination." The Court approved

the words of the trial court:

[T]he child has by now established a

strong bond instead with the adptive

parents, who are as a result in relation to

the child as if they were its natural

parents. .. . It goes to the very roots

of the child’s experience of its world since

that time. It would be extremely traumatic

for the child now to be uprooted from its

present home and to be returned to a

stranger to it, even if that stranger is its

natural mother. Though lawful, such an

uprooting would do serious and perhaps

permanent psychological damage to the child

for it would be destructive of the truly

close human bonds which it now has and would

impair its prospects of functioning as a

healthy human being as it grows older.

King v. Low, 1 R.C.S. at 104. The court said

that where the parent-child bonds are with an

adoptive rather than biological parent, "the

court must perforce give recognition to the

facts of the case accordingly. To do otherwise

would be to substitute an empty formula for the

substance which the law must embody and

express." Id.

State court decisions construing biological

fathers’ rights recognize that a child’s right

to be protected from harm requires that the

issue of custody be determined separately from

the biological parent’s rights if the child is

placed at risk by disruption of a long-term

adoptive placement, even where the adoption is

Overturned. See, In re Appeal of H.R., 581 A.2d

1141 (D.C. 1990); In re M.N.M., 605 A.2d 921

(D.C. 1992); Adoption of Kelsey S., 823 P.2d

1216, 1238 (Ca. 1992); Sorentino v. Family &

Children’s Society of Elizabeth, 378 A.2ad 18,

19-20 (N.J. 1977).

In the "Baby mM" Surrogate parenting case the

Supreme Court of New Jersey rejected the idea

that the child should be made to suffer in order

to correct wrongs done to adults.

Our declaration that this Surrogacy contract

is unenforceable and illegal is sufficient

to deter similar agreements. We need not

Sacrifice the child’s interests in order to

make that point Sharper. ... We disagree

with the premise ... that in determining

custody a court should decide what the

child’s best interest would be if some

hypothetical state of facts had existed.

Rather, we must look to what those best

interests are, today, even if some of the

facts may have resulted in part from legal

error. The child’s interests come first:

we will not punish it for judicial errors,

assuming any were made.

In the Matter of Baby M, 537 A.2d 1227, 1257-

1258 (NJ 1988) (emphasis by the court).

Legal commentators have argued that remedies

for violations of a parent’s constitutional

right to the custody of a biological child must

be sensitive to the human dignity and

constitutional rights of the children involved.

Returning the boy to his natural fathe-

[after a wrongful adoption was vacated ]

follows the same logic as letting the

defendant go free "because the constable has

blundered." Whatever the soundness of such

a policy for effectuating the prohibition

against unreasonable Searches and seizures,

it is improper in the Custody context

because it imposes the cost of the state’s

errors on children who have no hand in

creating either the particular situation or

the laws governing it.

Instead of awarding the child as the

victor’s prize, an appropriate alternative

remedy would be to award money damages to

the wronged parent. .. . money damages

would provide a more powerful incentive for

the state to change its procedures. By

contrast, taking the child from the adoptive

parents costs the state nothing.

Tremper, Respect for the Human Dignity of

Minors: What the Constitution Requires, 39

Syracuse L.Rev. 1293, 1334-1335 (1988).

C. Bringing legal practice regarding children

into line with rinciple.

site with principle

It is now more than twenty-five years since

this Court held that children are "persons" and

fave constitutional rights. That it was

necessary to so hold evidences children’s past

Status as less than "persons." The real issue

in this case is whether and how to incorporate

that "person" principle into practice.

Parental rights are unique among the rights

protected by the 14th Amendment, because they

involve the right to control another human

being.8 Children need parents. However, if the

State reinforces parental prerogatives when such

prerogatives are demonstrably contrary to the

child’s well-being and ignores the child’s

rights, parent-child bonds become bonds of

oppression. When the State privileges the

biclogical parent’s genetic contribution over

the child’s familial relationships with a

functional, though non-biological, family, to

the child’s detriment, the parent’s "liberty"

8 Meyer v. Nebraska, 262 U.S. 390 (1923),

and Pierce v. Society of Sisters, 268 U.S. 510

(1925), still much cited in defense of parents’

rights, are grounded in notions of children as

property. Meyer and Pierce were “authored and

joined by the Court’s most inflexible laissez-

faire conservative and grounded on economic

Substantive due process precedents." Woodhouse,

“Who Owns the Child?" Meyer and Pierce and the

Child as Property, 33 William & Mary Law Review

995, 1042 (1992). "[IJ]n Meyer the court

vindicated the ‘liberty’ to control another

human being . .." Id. at 1099 n.577. As

Governor Pierce of Oregon said during this

Court’s consideration of Pierce, "[I]t is a

strange perversion of the word ‘liberty’ to

apply it toa right to control the conduct of

others." Quoted in Woodhouse, supra, at 1042.

becomes a lack of liberty for the child and the

State treats the child as property.

This case is part of a necessary paradigm-

shift in the law from children-as-chattel to

children as rights-bearing people. The

constitutional principles underlying this shift

are well established. Courts, relying on

tradition, have failed to apply them

consistently to children. To the extent that

case law reflects ideas of children-as-chattel

instead of children-as-persons and has failed to

consistently apply basic constitutional

principles to children, the case law is due for

a change.9/ Our legal concepts constantly

9 It is not surprising that there is

little case law addressing the child’s rights in

matters such as marriage dissolutions involving

custody issues. These are treated as disputes

between adults; children are usually not

represented in these disputes, and "without

counsel, rights not only fail to be vindicated,

they fail to be created." Kleinfeld, The

Balance of Power Among Infants, Their Parents,

and the State, 4 Fam.L.Q. 320, 324 (1970). "The

paucity of substantive law concerning the rights

of minors in such matters as divorce, custody,

juvenile delinquency, and mental health

commitments may be attributable to the lack of

independent representation in such proceedings."

Genden, Separate Legal Representation for

(continued...)

change to reflect the growth of society’s

values, and this change is proper. As the 11th

Circuit pointed out in extending the protection

of the fourteenth amendment to children in

foster care:

The fourteenth amendment, like the

eighth amendment, "must draw its meaning

from the evolving standards of decency that

mark the progress of a maturing society."

Trop v. Dulles, 356 US 86, 101 (1958).

Taylor v. Ledbetter, 818 F.2d 791, 797 (11th

Cir. 1987).

In breaking with common law tradition the

Court will act consistently with well recognized

fundamental constitutional and human rights

principles and discard those portions of

tradition which are inconsistent with the

principles. Recognizing a child’s right to

protection of familial relationships recognizes

the human dignity of minors.

This paradigm shift in the legal status of

children is similar to other paradigm shifts in

9(...continued) ,

Children: Protecting the Rights and Interests

of Minors in Judicial Proceedings, 11 Harv.C.R.-

C.L. Law Rev. 565 n.2 (1976).

this nation’s history. It is at once a major

change and yet at the same time Simply a more

consistent application of our professed

principles.

At this Nation’s founding, the Founding

Father proclaimed it as "self-evident" that "all

men are created equal," and yet felt it obvious

that African American men were "different," such

that a black man had no rights which a white man

was bound to respect (in the infamous words of

the Dred Scott decision). It was also obvious

that women, of any race, were "different" and

therefore could be denied the rights guaranteed

to "all persons" - such as the right to vote.10/

African Americans, women and children have

in common the history of being treated

essentially as property and as exceptions to the

social contract upon which our founding

10 Shortly after ratification of the 14th

Amendment, which promised all citizens equal

protection of the laws, the U.S. Supreme Court

upheld an Illinois prohibition against women

becoming lawyers. Bradwell v. Illinois, 83 U.S.

(16 Wall.) 130 (1872).

documents declared this nation to be based.11/

In each case, the articulation of the principle

that members of each group were constitutional

"persons" came well before society in general

and the legal system actually treated them as

such.

Just as for African Americans and women,

steps toward progress for children have not come

easily or without protest and resistance. For

example, we now take for granted the child labor

laws passed during the early twentieth century.

At the time, however, some religious leaders and

conservative political forces opposed such laws

as unwarranted governmental interference in the

11 One scholar notes that "from Roman

times to the mid-nineteenth century [children]

were treated as something akin to property and

had rights which might be characterized as

falling somewhere between those of slaves and

those of animals." Cohen, Relationships Between

the Child, the Family, and the State, in

PERSPECTIVES ON THE FAMILY 293 (M. Bayles, R.

Moffit & J. Greie, eds. 1990). American

attitudes toward the treatment of children did

not begin to change until the end of the

nineteenth century. Hart, From Property to

Person Status: Historical Perspective on

Children’s Rights, 46 Am.Psychologist 53 (Jan.

1991). Even then, the Society for the

Prevention of Cruelty to Animals was founded

before a similar society to protect children.

economy and the privacy rights of the family.

See Hammer v. Dagenhart, 247 U.S. 251 (1918);

Mnookin, CHILD, FAMILY AND STATE 646-68 (1978).

"Tradition" could not sanctify slavery or

segregration or disenfranchisement of women or

discriminatory treatment of children born out of

wedlock. It cannot sanctify treatment of

children as chattel subject to repossession by

absentee owners claiming genetic title. The

Claims raised by this child cry out for a

hearing.

STANLEY V. ILLINOIS DOES NOT REQUIRE

THE ILLINOIS COURTS TO IGNORE THE

STRONG PUBLIC POLICY CODIFIED IN

ILLINOIS LAW, WHICH FAVORS THE

STABILITY AND PERMANENCE OF ADOPTIONS

AT THE CONSENT OF UNMARRIED MOTHERS

The Illinois Supreme Court’s decision that

the biological father’s parental rights were

terminated improperly begs the question of

whether he had parental rights. The court

relied on Stanley v. Illinois, 405 U.S. 645

(1972), and read it expansively. Stanley must

be read in context with subsequent opinions of

the U.S. Supreme Court regarding unwed fathers.

These cases look at family relationships in

functional, not solely biological, terms and are

more consistent with the fundamental principle

that the children involved are constitutionally

protected persons, too, and more consistent with

contemporary understanding of the effect on

children of judically Switching fathers on then.

In Quilloin v. Walcott, 434 U.S. 246 (1978),

this Court upheld a decision denying

legitimation and permitting an adoption over the

objections of the unwed biological father, even

though he had maintained contact with the child

and brought him gifts, on the ground that it was

in the child’s best interest:

Nor is this a case in which the proposed

adoption would place the child with a new

Set of parents with whom the child had never

before lived. Rather, the result of the

adoption in this case is to give full

recognition to a family unit already in

existence, a result desired by all

concerned, except appellant. Whatever might

be required in other situations, we cannot

Say the State was required in this situation

to find anything more than that the

adoption, and denial of legitimation, were

in the ‘best interests of the child.’

Quilloin v. Walcott, 434 U.S. at 255. The

child’s interest in being adopted into his

already existing family unit prevailed over

requirement for proof of the father’s

"unfitness", and the Court upheld a Georgia

statute permitting adoption of an illegitimate

child without the natural father’s consent

unless the father had obtained a paternity

ordery.

The liberty interest entitiled to

constitutional protection is "the relationship

of love and duty in a recognized family unit."

Lehr _v. Robertson, 463 U.S. 248, 257 (1983). In

Lehr the Court rejected an unwed father’s claim

that he had an absolute right to notice and a

hearing before his child could be adopted. The

court found that the state did not violate the

father’s rights to due process and equal

protection by failing to give notice of the

adoption proceedings, even though the state had

actual knowledge of his existence and

whereabouts. The Court reasoned that the

putative father could have guaranteed that he

would receive notice of any adoption proceedings

by mailing a postcard to New York’s putative

father registry. He did not avail himself of

that opportunity, nor did he seek to establish

his paternity until after the mother remarried

and her new husband had adopted the child. The

Court saw a "clear distinction between a mere

biological relationship and an actual

relationship of parental responsibility," and

said that ‘[p]Jarental rights do not spring full-

blown from the biological connection between

parent and child. They require relationships

more enduring." Lehr, 463 US at 260-261. In

Lehr the Court emphasized that "the rights of

the parents are a counterpart of the

responsibilities they have assumed." Id., 463

U.S. 257.12

12 Professor Homer H. Clark, Jr., author

of the much-cited treatise LAW OF DOMESTIC

RELATIONS (2d ed. 1987), has contrast the adult-

centered (father-centered) Stanley with the more

child-friendly Lehr:

The most striking aspect of Stanley is the

Supreme Court’s silence on the interests of

the children as well as the effect of the

decision on adoptions, and thus on

children’s welfare generally. ... The

opinion concentrated exclusively on the

rights of the father, treating the children

more like inanimate objects than persons. .

- + - Lehr at last recognized that the

(continued...)

When an unwed father demonstrates a full

commitment to the responsibilities of

parenthood . . . his interest in prersonal

contact with his child acquires substantial

protection under the Due Process Caluse . .

- But the mere existence of a biological

link does not merit equivalent

constitutional protection. ...

Lehr, 463 U.S. at 261. "If he fails to [grasp

the opportunity], the Federal Constitution will

not automatically compel a state to listen to

his opinion of where the child’s best interests

lie." Lehr, 463 U.S. at 263.

One way a biological father who is

frustrated by the birth mother can "grasp the

opportunity" is to file a paternity suit. The

Respondent said he did not file a paternity

action because he did not know the law. The

trial court properly held that ignorance of the

law iS no excuse. See Lehr, 463 U.S. at 265

(biological father’s ignorance of putative

father registry not dispositive). Such a

12(...continued)

State’s interest in establishing workable

adoption procedures was based on the needs

of children, especially out-of-wedlock

chidlren, for secure adoption placements.

Clark, Children and the Constitution, 1992 Univ.

of Ill. Law Rev. 1, 20-22 (1992).

conclusion is consistent with recognizing the

child’s personhood and need for prompt

resolution of family status, independent of the

biological father’s reasons for not acting.

The Respondent did not fall into any of the

categories of men entitled to notice of a

pending adoption in the statute upheld as

Constitutional by this Court in Lehr - i.e., the

State was not constitutionally required to

ensure notice.

A biological father is not automatically

constitutionally entitled to custody or

visitation. In Michael H. v. Gerald D., 491

U.S. 110, 130 (1989), the Court upheld the right

of California to bar an admitted biological

father from proving his paternity of a child

born during the mother’s marriage to another

man, even when he had established a relationship

with the child. The Court Said,

[Appellant] reads the landmark case of

Stanley v. Illinois, and the subsequent

cases of Quilloin v. Walcott, Caban v.

Mohammed, and Lehr v. Robertson, as

establishing that a liberty interest is

created by biological fatherhood plus an

established parental relationship... .

We think that distorts the rationale of

those cases. As we view them, they rest not

upon such isolated factors, but upon the

historic respect -- sanctity would not be

too strong a term -- traditionally accorded

to the relationships that develop within the

unitary family.

Michael H., 491 U.S. at 123 (plurality

opinion)(citations omitted).

Thus, an unwed father of a newborn does not

start off in the same constitutional position

as either a man married to the child’s mother or

an an unwed father who has actually parented his

child(ren) as had the unwed father in Stanley v.

Illinois. He has to affirmatively establish his

status, and determination of his status does not

occur in a vacuum without consideration of other

people’s rights.

Because children need functional parents,

and parental rights, quite reasonably, are

difficult to terminate once they exist, it is

also reasonable, for the child’s sake and

society sake, to set hurdles that must be

cleared to establish parental status and

entitlement to parental rights. The legislature

could decide that unwed fathers should

unequivocally establish their commitment to

assume responsibility for the child. If they do

not, the child should have an opportunity with

another family.

An unwed father who does not unequivocally

demonstrate a commitment should not be able to

maintain a form of absentee ownership of a child

based on genetic title that gives him a veto

power over adoption and forecloses other custody

options for the child, thus depriving the child

of the opportunity for a real family. Recent

state court decisions construing Lehr reject an

adult-centered focus on a biological father’s

reason for delay and instead focus on the

child’s need for prompt certainty.

"(T]j]he timing of the father’s action is the

‘most significant’ element in determining

whether an unwed father has created a liberty

interest [citation omitted]." Robert O. v.

Russell K., 80 N.Y.2d at 264, 604 N.E.2d at 103.

To conclude that petitioner acted

promptly once he became aware of the child

is to fundamentally misconstrue whose

timetable is relevent. Promptness is

measure 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.

Id., 604 N.E.2d at 103-104.

The uitimate question must be whether the

father has, in fact, created a relationship.

Even if this father had taken all possible

steps to bond with his child and failed,

Lehr’s message is that to protect his

interest, and the child’s well-being, he

must do more. For in the child’s eyes, a

valiant but failed attempt to create a

relationship means little. Severing long-

established bonds with others is equally

harmful to the child, regardless of whether

the father first attempted to create a

relationship. Therefore, if the father’s

parenting attempts are unsuccessful, he must

rapidly turn to legal recourse so that the

child may obtain a final placment as quickly

as possible. In this area, as in few

others, there must be prompt recourse to the

law.

Matter of Pima County Juvenile Severance Action,

876 P.2d 1121, 1133 (Ariz. 1994). The court

stressed "prompt finality" as the paremount goal

"aS a matter of matter of sound jurisprudence,"

because "[{o]therwise a young child languishes in

limbo - surrendered by the mother, unclaimed by

the father, and bonding with others - from which

the law cannot extricate the child without

lengthy proceedings compounding the harm." Id.,

876 P.2d at 1132.

When Mr. Kirchner’s answer in the adoption

proceeding was stricken because he had not

established paternity, he did not file a

paternity action for more than three months -

although he was fully on notice that his claim

to parental status was not recognized and that

any potential parental rights were in danger, he

was represented by counsel, and he knew the

child was bonding with the adoptive parents.

Whether or not that delay, in the face of full

notice of the Stakes,,. establishes unfitness

under subsection 1(D)(n) of the Adoption Act, it

certainly supports the lower courts’

determinations that his inaction in the first 30

days after the child’s birth demonstrates lack

of concern rather than confusion caused by the

birth mother.13 It is not the kind of prompt,

13 Likewise, the court of Appeals points

out that Mr. Kirchner’s counsel (like the Does’

counsel) did nothing to urge the courts to speed

hearing and review of the adoption proceeding.

Such efforts might not have Succeeded, of

course; but, the point is that they weren’t

made. There did not seem to be a sense of

urgency commensurate to what was at stake and to

what the birth father said his feelings were.

definitive action required by Lehr and a growing

number of state courts.

CONCLUSION

Due respect for the personhood and human

dignity of children - the characteristics that

distinguish them from property which can be

shunted about depending on claims of ownership -

requires that we respect the functional family

relationships of children. Children have only

one childhood in which to accomplish all the

tasks and meet all the challenges involved in

growing up. They do not go into suspended

animation while adults debate whether to fulfill

their duties toward children or whether a child

is bonding with the "wrong" family.

The decision of the Illinois Supreme Court

only balanced, weighed, and judged the interests

of contending adults and never once acknowledged

the child as having any interest worthy of

consideration. It treated the child as the

property of his biological parents. It

demonstrates and reinforces precisely the "Dred

Scott mentality" which the Court of Appeals

optimistically believed to have been eliminated

from the law. The U.S. Constitution, with its

emphasis on the human dignity of all people,

requires more.

The Illinois court’s fear that consideration

of the best interests of the child would mean

that the decision based on wealth or other

unacceptable criteria applied to contending

adults to identify the "better parent" is wholly

misplaced. The routine standard for determining

custody between biological parents and third

parties is the presumption that the birth

parents are fit, able and appropriate to raise

their child. To acknowledge the human dignity

of the child requires, however, that in two

extraordinary circumstances the presumption in

favor of birth parent custody give way to use of

the best interests of the child standard for

determining custody:

a. Unfitness of the biological parents.

b. Long-term placement of the child with

non-biological caretakers, with whom

the child has formed a parent-child

bond, such that removal of the child

threatens grave harm to the child.

Baby Richard’s case fits under both

principles. Baby Richard, independent of any

rights of the adoptive parents, is entitled to a.

hearing at which his best interest is the

touchstone for making the custody determination.

Otherwise, Baby Richard is merely a piece of

property.

According, amici respectfully request that

this Court grant the petitions of the adoptive

parents and the child for a writ of certiorari.

Dated: October 4, 1994

tune be submitted,

lon Pitts

Counsel of Record for Amici

Legal Action Project

106 W. Parrish St., 3rd Flr.

Durham, NC 27701-3321

(919) 688-0268

Eugene Falco

P.O. Box 625

New Hartford, CT 06057

(203) 379-7487 2

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.