December 12th. A divided Supreme Court handed down its decision in the case of In re the Adoption of A.A.T. (No. 98,740). The court split 4-3, with Justice Luckert writing the majority opinion and Justices Nuss, Beier and Rosen each writing separate dissents. Justice Johnson was recused from the case and his place was taken by Judge Stephen Hill of the Court of Appeals. The court determined that it would not set aside the 2004 adoption of a baby boy (A.A.T.) and restore parental rights to his father M.P. who sought this outcome on the grounds that they had been wrongly terminated by a District Court.
M.P. (who lives in New York) is not and was not married to the boy’s mother N.T. when in 2003 she conceived. N.T. returned to Kansas from New York at Thanksgiving of that year, and in spite of promising to return to New York, never did, but maintained contact with M.P. by telephone. She eventually lied to M.P., informing him that she had obtained an abortion. When the baby was born, she immediately put him up for adoption and lied to the adoption agency and the District Court about M.P.’s name with the result that no notification of the hearing to terminate parental rights was posted to him and the notice that was printed in the New York Post listed the wrong surname for the putative father. M.P. did not attend the hearing and his parental rights were therefore terminated and the adoption finalized in 2004.
Throughout this time M.P. had held suspicions that N.T. had lied to him about the abortion and these were confirmed by phone at Christmas 2004. He therefore initiated various proceedings in Kansas. He argued that as A.A.T.’s father he had a liberty interest (i.e. a protected due process right under the US Constitution) to have been notified of the adoption proceeding, and that since he did not receive it the adoption should be set aside. He also asked that the Kansas courts grant him access to A.A.T. during the proceedings
The Court reviewed the District Court’s legal ruling de novo on the grounds that had the lower court been in error its ruling would be a nullity. This was against the way that A.A.T.’s adoptive parents had wished since it allows for the reopening of supposedly final proceedings. However, there were many other hurdles M.P. had to leap in order to prevail, and in the end he did not.
The Court based its ruling on the guiding precedent from the US Supreme Court on the ‘paternal rights of unwed fathers’. These, the majority held, show that mere parentage alone is not enough to develop a liberty interest in the raising of the child. Since there was no US Supreme Court precedent directly touching on this topic in the setting of a newborn adoption, the Court extrapolated from the precedents which do exist and held that men in such cases must do things such as financially support the mother during the pregnancy, and take aggressive steps to protect their legal rights as soon as they are able (for example, New York maintains a register where unwed fathers may file to indicate their claim to a relationship with their offspring). Since M.P. had not done any of this, the fact that he was not informed of the hearing, for whatever reason, is not sufficient to set aside the adoption. The fact that he was misled by N.T. is deemed irrelevant since (given his suspicions that she was lying) he could have excercised due diligence to determine that she was still pregnant, and followed up with the appropriate legal procedures to maintain his interest in the child.
Finally, the Court dismissed M.P.’s motion to grant visitation rights to A.A.T. on the grounds that with the case finalized he had no continuing interest. A.A.T., now four and a half years old will remain with the only family he has ever known.
Justice Nuss dissented. He argued that the Court’s analysis overlooked the way the case was shaped by N.T.’s abortion rights. The US Supreme Court has held that whatever paternal rights exist in no circumstances rise to the the level where they can interfere with a woman’s abortion rights. Therefore since N.T. had said she would have an abortion, M.P. should not have been expected to have taken any steps to support the child he had to assume was dead. Nuss goes further, suggesting that M.P.’s stated position that the decision on the abortion was up to N.T. showed a ‘total respect for [the] mother’s rights’ which put him at a procedural disadvantage thereafter, sufficient to be cureable by voiding the adoption and remanding the case to District Court.
Justice Beier dissented. Her view was that the burden upon M.P. set by the majority to establish a liberty interest was far too great for him to ever have had a chance to meet it. She also indicated that it was an inequitable burden since someone more financially challenged would be unable to meet it. She also rejected the American Association of Adoption Attorney’s argument in an amicus brief that A.A.T. has a liberty interest of his own in preserving his familial ties with his adoptive parents which trump’s M.P.s due process rights at this stage. Therefore she would also void the adoption and remand to the District Court. In doing so, she takes the position that since the Kansas Legislature enacted a law allowing for the best interests of the child to be a factor in adoptions after this case began that that part of the law would not be applied to the case.
Justice Rosen dissented. His view was essentially the same as that of Justice Beier, except that he would hold that the District Court could take into account the best interests of the child. His position is that this notion permeates the case law and therefore the fact that the legislature made it explicitly a factor in adoptions after this case began does not mean that it cannot be considered. He cites the 1881 Kansas case Chapsky v. Wood which introduced the concept. Furthermore he emphasizes that a child has Constitutional Rights and that the majority and dissenting opinions in turning solely on the interplay between the statutes and M.P.’s due process rights as an unwed father ignore these and treat A.A.T. as chattel.