Commentary: Hard case, bad dissent

This is a follow up to an item about the decison in In Re Adoption of A.A.T., which appeared a few days ago. Before reading this commentary please read the case overview at that link.  What follows is personal opinion.

The opinions issued in this case can be summarized roughly as follows:

* The majority holds that M.P. missed his (albeit fleeting) opportunity to assert his parental rights as an unwed father. He therefore had no constitutional right to the notice which he was not given. The adoption therefore stands, and A.A.T (who is four years old). remains with the family he has spent his whole life with.

* Justice Nuss clearly thinks the father was wronged and that the adoption should be voided so that M.P. may regain his exclusive rights as a father to A.A.T. He makes no comment on the practical implications of this to A.A.T..

* Justice Beier implies horror at the practical application of her position, but would void the adoption and let the chips fall where they may because she sees the burden on M.P. set by the majority to be too great for him to have had a chance to meet it.

* Justice Rosen would void the adoption but have it replayed under a standard that includes the concept of the ‘best interests of the child’, something which would more or less guarantee that A.A.T. remain with his adoptive parents after several more years of draining legal fights.

It is my opinion that the outcome in this case was the correct one. It is somewhat disturbing that 3 out of 4 Justices on the Kansas Supreme Court would be willing to void the adoption, in the knowledge that to do so would present the likely outcome of a young child being ripped from his home and placed with a stranger who had never so much as seen him solely on the basis of biology. Justice Rosen suggests a way out, but there is no certainty that lower courts would have followed it had one more vote gone the dissenters way. What is more, while Rosen’s position (that the courts in Kansas have already established that the ‘best interests of the child’ is a valid theme in adoption cases) is a strong one, the language he couches it in is practically a license to judicial invention.

Justice Nuss’ dissent is particularly troubling. He praises M.P. for respecting N.T.’s abortion rights by eliminating himself from a role in the decision, then turns around and claims that because N.T. chose not to have an abortion but lied to M.P. about it that he can claim his rights. Does it not occur to Nuss that passively going along with the supposed abortion proves more than any legal analysis that M.P. abandoned his claim on the child?

The dissenters would have you believe that they are obligated to come to the conclusion they do by the state of the law and the current precedents from the US Supreme Court, yet we should remember that the court was not being asked whether M.P. would have prevailed had he attended the original hearing, but whether his failure to attend (for whatever reason) rose to the level of a constitutional violation, great enough to warrant reopening a case that has already been finalized where no such precedent exists in such an extreme situation.

When the US Supreme Court found a due process parental right of unwed fathers attached to the due process rights of parenting, it did so in a case far removed from this one. In that case an unmarried couple raised their children together, until the mother died and the State of Minnesota took the children and put them up for adoption. The father in that case effectively filled the now lost (in law) concept of common law marriage. To extrapolate from that case to the position that the dissenters take is an abomination.



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