In Re N.L.B. V. Lentz: The Missouri Supreme Court's Unwarranted Extension of a Putative Father's Constitutional Protections

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I. INTRODUCTION

"Out-of-wedlock births in the United States have climbed to an all-time high." (1)

Recent statistics indicate that nearly four in every ten children born in the United States have unwed parents, (2) and that these children are surrendered for adoption more frequently than children born into wedlock. (3) Adoption has life-long implications for all parties involved, especially the child. An adopted child "is less likely to grow up in poverty [and] more likely to obtain an education ... than a child raised by a single mother." (4) While a mother has a unilateral right to abort or to deliver a child without informing its biological father, the nature of an unwed father's rights to his child remains an unsettled area of law. (5)

According to Martin Bauer, president of the American Academy of Adoption Attorneys who specializes in contested adoptions, "the most common contest is where the morn wants to place the baby [for adoption] and the dad objects." (6) Due to the burgeoning number of babies born out of wedlock and the expanding number of unwed fathers who wish to play a role in their children's lives, putative fathers' (7) legal rights have become an increasing concern to parents and courts alike.

When a mother's rights are terminated (8) and the child is placed for adoption, the crucial issue is to determine what rights a putative father has, and also what he must do to avail himself of them. The difficulty arises in balancing the weight of the father's biological ties, when he has not assumed legal or custodial responsibilities for the child, against the necessity of expeditiously placing the child in a stable adoptive home. (9)

In the last few decades, courts have sharpened their focus on the rights of putative fathers and have consistently held that an unwed father's parental rights to his child are entitled to constitutional protections such as due process in certain situations. (10) For instance, putative fathers in almost all states are entitled to notice of an adoption proceeding or of a hearing to terminate their parental rights. (11) However, states require a putative father first to take some type of affirmative action, such as registering with the state's putative father registry or taking steps to assert his paternity, in order to protect his rights and ensure they receive such protection. (12) The Supreme Court of the United States has stated that the limited nature of a putative father's rights requires that he affirmatively "develop a relationship with his offspring" and "accept [] some measure of responsibility for the child's future" before his rights may receive constitutional protections. (13)

In Lentz, the Missouri Supreme Court granted an unwed father leave to intervene in an adoption, despite the fact that he had failed to bring himself into the realm of constitutionally protected putative fathers. (14) This note explains why the holding of the Lentz court subverted the intent of Missouri's adoption statutes and its putative father registry, and argues that an unwed biological father who has not filed a valid paternity action, registered with the putative father registry, or demonstrated a substantial commitment to the responsibilities of parenthood should not be entitled to the additional constitutional protections available to diligent putative fathers. The note will argue that it is not a violation of his constitutional fights to deny such a father leave to intervene in the adoption of his child without a hearing on parental fitness.

II. DUE PROCESS AND PUTATIVE FATHERS

Putative fathers have typically challenged state adoption and termination of parental rights statutes on due process or equal protection grounds. (15) These challenges are relatively recent developments, as historically biological fathers have enjoyed few rights to their illegitimate children because state laws provided that the mother's consent alone was necessary for an adoption to proceed. …