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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0571%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 994

## Text

IN THE
SUPREME COURT OF THE UNITED STATES
OcTOBER TERM, | 994

4
v

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

4
i

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

4
v

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

4

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.

4
¥

ON Writ OF CERTIORARI TO THE ILLINOIS SUPREME COURT

4
v

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

4
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

5

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

6
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

8

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

4
v

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

,
bd

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

,
7

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

ii

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
2
3

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

‘Department of Health & Rehabilitative Serv.
v: Privette, 617 So.2d 305 (Fla. 99S) oes AS

a

‘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

q
z
2
4
|
2
$
2
§
Z
7

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

vi

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

h,
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."

10

te

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).

11

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.

12

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

13

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

14

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.

is

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.")

16

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.

a7

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

18

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

19

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,

21

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

22

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

23

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

24

(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.

i

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.

26

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.

27

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...)

28

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).

29

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).

30

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.

31

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.

32

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

33

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

34

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...)

35

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).

36

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

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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

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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

39

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.

40

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.

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0571%3A3. Public record. Not legal advice.