Another Erroneous Interpretation of Lehr v. Robertson
Erik L. Smith
In the Interest of C.M.D., 2009 Tex. App.-Hous. (14 Dist.), June 25, 2009 (No. 14-08-00113-CV).
LDS, a private adoption agency petitioned to adopt C.M.D., a nine-month-old child. The unwed mother's affidavit stated that she had dated the unwed father for several months before the birth, but the father never supported or visited the child after the birth. The mother also swore his phone number was out-of-service. The mother also gave the agency the unwed father's name, but the father was unlisted in the Texas putative father registry (PFR), statutorily eliminating his right to notice.1Tex. Fam. Code § 161.002(b). Accordingly, the agency never notified the putative father or tried to find him.
On its own initiative, the trial judged declared the PFR statute unconstitutional for not requiring due diligence by the agency to find the father. The agency appealed, arguing that the registry was meant for situations like this where the unwed father appeared to lack interest in the child. That let adoptions be resolved quickly.
The Appeals Court held that the trial court did not err by considering the constitutional issue because of the statute's important interest in protecting "the integrity of the adoption process" and in quickly resolving the child's legal status.2In re C.M.D., at *4. That overrode the "deeply rooted" rule that courts reach constitutional issues only where unavoidable.3Id. at *4-5. The Appeals Court found the statute constitutional because the putative father had shown no interest in asserting his parental rights.4Id. at *6. In turn, a lack of evidence about the father's circumstances could not overcome the statute's presumed constitutionality.5Id. The putative father possibly being aggrieved was an improper basis for the trial court to declare the statute unconstitutional.6Id. The court reinforced its reasoning by citing Lehr v. Robertson7463 U.S. 248 (1983). and Robert O. v. Russel K.,8604 N.E.2d 99 (N.Y. 1992). in stating that "even with a complaining father, the constitutionality of paternity registry statutes has been overwhelmingly upheld."9In re C.M.D. at n. 3.
The integrity of the adoption process is best protected by having all potential parties heard quickly. Had the agency successfully located this supposedly uninterested father, he would have consented and the child would have been adopted immediately. Alternatively, had the putative father not been found, due diligence would have been satisfied and the child would have been adopted immediately. On the other hand, had the father been found, and then contested the adoption, then, by the agency and Court of Appeals' reasoning, the robust constitutionality of the PFR statute would have prevailed and caused the father's rightful termination. Those options protect the integrity of the adoption process better than Texas having a constitutional ruling made with no opposing party to argue against the constitutionality of the statute.