N. Carolina Father Challenges Utah Adoption Law

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(The Salt Lake Tribune)

A North Carolina man is challenging Utah's adoption laws in a federal lawsuit, claiming out-of-state biological fathers are forced to fight for their children in Utah courts, rather than in their home states.

Frank Osborne of Stanley, N.C., has never even been to Utah, said his attorney, Phillip Lowry of Provo. But his son was born in Orem, where the mother put him up for adoption, and under state law that means Osborne had to contest the proceeding here.

Osborne did so in 4th District Court in Provo, asking that the adoption file be opened and that the court acknowledge it lacked jurisdiction over his parental rights. But last month, Judge Steven Hansen denied the request to open the file and found that Osborne had waived any claim to the boy because he had not established his paternity in compliance with Utah law.

Osborne, however, contends he should not have to establish paternity in Utah because he, his son and his former girlfriend, the child's mother, all are residents of North Carolina. The state of North Carolina backs his stance, saying the infant and his mother, Angela Baker, both received state benefits as residents.

Now Lowry has taken the case to U.S. District Court for Utah, claiming that Osborne's right to due process under the U.S. Constitution has been violated by Utah's adoption code and that the code itself is unconstitutional.

"This is a classic Catch-22 that has the practical effect of extending unconstitutionally the reach of Utah law beyond its borders," the suit says.

"The baby is a North Carolina resident. He's a North Carolina resident. The mother is a North Carolina resident. Why are we in Utah?" Lowry said Thursday.

But Larry Jenkins, attorney for Adoption Center of Choice in Orem, which is named as a defendant in the suit, along with the child's unidentified adoptive parents, said Osborne's position has little merit because the boy now is in Utah.

"What better place to challenge it than here?" Jenkins said.

Osborne and Baker had been living together in North Carolina with her 2-year-old son when she became pregnant in December 2000. After learning of the pregnancy, Osborne bought a home in Stanley and Baker and her son moved in with him, court documents state.

Baker lived with Osborne throughout her pregnancy, but flew to Orem, where a doctor induced labor and the baby was born in August 2001.

Although Baker had threatened to place the baby for adoption, she apparently changed her mind, took a bus back to North Carolina with her children and eventually moved back in with Osborne, the suit says. "The child was in Utah for one day," it says.

Baker and her children lived with Osborne until December. Even after she moved out, Osborne continued to provide for both children, court documents say, buying the baby's medical care and supplies and giving the children Christmas presents.

But in January, Baker returned to Orem and put the infant up for adoption with Adoption Center of Choice. She told Osborne he had "no chance in hell" of getting the baby back because he could not fight the state of Utah and win, according to the suit. The baby was placed with a Utah family.

Osborne filed his Utah lawsuit in February, buttressing his case with letters from the North Carolina Department of Health and Human Services stating that Baker and the baby received benefits in that state.

"It is our contention that both mother and child have North Carolina residency," wrote social work supervisor Patricia Hovis, whose department also contends that under the Interstate Compact on the Placement of Children, North Carolina and Utah should have jointly approved the child's movement across state lines for the adoption.

Hansen denied the request to open the adoption file, adding in his memorandum that without having established paternity rights, Osborne's consent to the adoption was not required. Courts traditionally have limited unwed fathers' parental rights, Lowry said, because many fail to support the mother during her pregnancy or support the child after its birth.

"But here we have a very different situation," Lowry said. "He took care of mom. He took care of baby. He took care of the baby's half-brother. But everyone is assuming, and they're branding him as being a deadbeat dad, because he just happens to fall within the legislative definition of a deadbeat dad.

"I don't think he's a deadbeat dad under the U.S. Constitution," Lowry said. "If he's not . . . why is he being forced to travel halfway across the country to prove it?"

Jenkins said Osborne was certainly aware the child was born in Utah. But he had not seen a copy of the federal lawsuit as of Thursday and did not want to comment further.

Said Lowry: "Lawyers who practice in this area have always wondered whether there was someone out there the law was going to affect, and all of a sudden everyone was going to stand up and say, 'It's not working for this person.'

"In my opinion, now it's happened," he said. "We've found that father who's done everything he's supposed to do, except some technicalities under Utah law. But Utah is the only place where he can make a stand."
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