In 3-2 decision, Supreme Court takes narrow view of unwed father’s parental rights

Posted Thursday, May 5th, 2011 by Gregory Forman
Filed under Adoption/Termination of Parental Rights, Child Custody, Jurisprudence, Not South Carolina Specific, Of Interest to Family Law Attorneys, Of Interest to General Public, South Carolina Appellate Decisions

The creation of parental rights and responsibilities for unwed fathers are hardly reciprocal.  The state, the mother, or the child’s guardian can come after an unwed father at any point to seek child support.  Age 17? Sure.  Even after the child is an adult if that child has physical or mental disabilities.  In contrast, an unwed father who fails to take action while the child is still in utero may find he lacks parental rights.

Such is the case in the May 2, 2011 decision in Roe v. Reeves, 392 S.C. 143, 708 S.E.2d 778 (2011). That appeal considered the issue of whether the Father’s consent was needed for the adoption of his newborn child.  The family court determined it was.  In a 3-2 decision, the South Carolina Supreme Court reversed, finding his consent was not required because he had failed to develop his parental rights pursuant to the requirements of S.C. Code § 63-9-310(A)(5)(b).

Reeves was not a sympathetic father.  At age 19 he impregnated a 15 year old girl (who already had another child!).  After learning of her pregnancy, he sent Mother a text message, “We dnt hav a baby jstop txtn me and sendin me pics.”  Approximately twenty-four hours later, apparently in response to another text from Mother, he texted, “Go hav an abortion or sumthn get a life stop txtn me damn.”  After learning Mother intended to place the child for adoption, he texted her, “If ur putn it w people and ur hapy then f*kn stop begin me 2 cum b there its not gna hapn.”  Less than a month later, he texted Mother, “Leav me tha f*k alone im nt gna txt u bak and I want nothng 2 do w u so jus get out mx [sic] life already.”

He had nothing further to do with Mother until approximately her fifth or sixth month of pregnancy, when he came to visit her.  Realizing that she was clearly pregnant, he asked her to stop the adoption and offered to take custody of the child after the birth.  During the next few months, while Mother vacillated on whether to go forward with the adoption, Father provided some financial support for Mother and her other child.  He even made repairs to her car, valued at $750.  However Mother, possibly on the advice of the adoption agency, refused to accept an offer of cash and Father made no further cash offers.  Meanwhile Father took steps to set up a nursery in his parents’ home (where he intended to raise the child if he was awarded custody).  There was some evidence that Mother’s vacillation regarding the adoption was a ploy to get Father to resume a romantic relationship with her.

The Roes, who were seeking to adopt the child and had provided Mother financial support during the pregnancy, were present at the hospital when Mother delivered.  Mother refused to allow Father any contact with her or the child while she was in the hospital.  The day after the child’s birth, Mother executed a consent to adoption and the Roes took the child home.

After learning this, Father filed an action for custody.  After his paternity was established, Father was ordered to pay child support and granted visitation.  At trial, the family court found Father had taken the steps necessary to develop parental rights and therefore his consent was required for the adoption.  The family court denied the adoption and awarded Father custody.  The Roes appealed.

The issue on appeal was whether Father had undertaken sufficient prompt and good faith efforts to assume parental responsibility as required by § 63-9-310(A)(5)(b).  That code subsection provides:

(A)    Consent or relinquishment for the purpose of adoption is required of the following persons: . . . .

(5)  the father of a child born when the father was not married to the child’s mother, if the child was placed with the prospective adoptive parents six months or less after the child’s birth, but only if:  . . . .

(b)  the father paid a fair and reasonable sum, based on the father’s financial ability, for the support of the child or for the expenses incurred in connection with the mother’s pregnancy or with the birth of the child, including, but not limited to, medical, hospital, and nursing expenses.

The standards of § 63-9-310(A)(5)(b) can be relaxed if a mother thwarts a father’s efforts to comply with this statute.  In such circumstances, when a father “undertakes sufficient prompt and good faith efforts to assume parental responsibility and to comply with the statute,” courts will still require a father’s consent to an adoption.

The majority found that Mother did not thwart Father’s efforts to comply with the statute and that Father did not comply with the requirements of § 63-9-310(A)(5)(b).  It ordered immediate custody of the child to the Roes.  In reaching this decision the majority made what I consider to be a few dubious factual conclusions.  It found that Mother did not sufficiently thwart Father’s efforts to establish a relationship with his child (what about her refusal to accept a cash payment and her refusal to allow him access to the child in the hospital?) to relax the requirements of § 63-9-310(A)(5)(b).  It found that Father’s contribution towards Mother’s and her older child’s living expenses, the repairs to her car, and the expenses he incurred in setting up a nursery, were not within the purview of § 63-9-310(A)(5)(b).   It further found that his payment of child support during the litigation did not prove he was making a reasonable contribution to the child’s expenses because he understated his income in his financial declarations and had been in arrears during the litigation.  Given Mother’s refusal to accept cash from Father, the majority’s determinations that Mother didn’t thwart Father but that these expenditures shouldn’t count strikes me as pretzel logic.

The dissent differed with the majority’s factual conclusions.  It found that Mother had thwarted Father’s efforts to support his child.  If found that Father’s contributions and attempted contributions towards Mother’s living expenses “demonstrated his willingness to develop a relationship with his child and therefore acquired constitutional protection.”

Part of the problem with these type of cases is that § 63-9-310(A)(5)(b), and similar code sections in other states, make support of the pregnant mother a proxy for demonstrating support for a father’s unborn child.  An unwed father may desire a relationship with his child without necessarily desiring, or being able, to have a relationship with the child’s mother, but the law provides such fathers no good way to demonstrate this desire other than by supporting the mother.  Given that Father demonstrated such antipathy towards Mother while attempting to demonstrate support for his child, I am not surprised that two of the three male justices sided with Father while both female justices sided against him.

In the cases of Stanley v. Illinois, 405 U. S. 645 (1972), Caban v. Mohammed, 441 U. S. 380 (1979) and Lehr v. Robertson, 463 U.S. 248 (1983), the United States Supreme Court developed constitutional protections for an unwed father’s right to create a relationship with his children.  While certain elements of Reeves’ initial behavior were reprehensible, he clearly demonstrated an interest in parenting his son months before the child was born.  To hold unwed fathers to high standards, or even average standards, to develop their parental rights would be to deny the majority of unwed fathers any right to their children (remember that half of all fathers will be “below average”).

I believe Roe v. Reeves holds Father to an unconstitutionally high standard to develop his parental rights.  Father, who has had custody of his son since trial, will now have no legal relationship with this child and may never see him again.  I hope he and his attorneys seek certiorari with the United States Supreme Court.  Such putative fathers need to consult a child custody attorney.