Length was getting out of hand so I’ve divided this entry into two parts. This is Part 1:
Wednesday, January 29, the Ohio House passed Sub HB 307, the make-adoption-cheap-and-fast bill brought by Ohio Right to Life. I was unable to attend the floor vote or the final hearing due to my work schedule, and have no idea why 307 is a substitute since there were only minor changes from the original.
I wrote at length about the bill, Ohio Right to Life’s Infant Adoption Reform Bill: Threatens Birthparent Rights; Doles Out Tax Credits in the December 5, 2013 issue of the Columbus Free Press Weekly.
By way of review, the bill:
- decreases the time an adoption after finalization can be challenged in Ohio from one year to 60 days;
- increases the state tax credit to adopters from $1500 to $10,000 that can be spread over a 5-year period ;
- creates a mechanism for adoption agencies and lawyers to make direct “birthparent living expense” payments (rent, mortgage, utilities, medical) to service providers rather than the current practice of distributing funds collected by paps to “birthparents” to make their own payments;
- authorizes potential Ohio adoptive parents who have passed a home study to advertise for newborns in the state. Currently only out-of-state paps can advertise here.
and the most controversial change, the creation of a two-tiered Putative Father Registry:
- post-birth–decreasing the timeframe from 30 days to 7 days after the birth of a baby in which a man can file with the already established Ohio Putative Registry (PFR) to guarantee his right to notice if an adoption is filed
- pre-birth–authorizing adoption agencies and lawyers, but only with the written consent of the mother, to inform putative father(s) that an adoption is pending, advising him to file with the PRF if he wants notice. In this case, the putative father has 30 days after receiving the letter to file with the PFR.
Although most of the changes were discussed at the hearing, I am focusing here on the testimony and discussion on putative father treatment. PDF’s of testimony are linked at the end of this blog. I am, however, quoting generously from them below. My emphasis is in bold.
Proponents speak
HB 307 proponents Nancy Burley, executive director of Adoption Circle and Indiana adoption lawyer bottom feeder, Steve Kirsch, according to their submitted testimony, waxed orgasmic at the January 15 hearing over how these changes, especially the PFR alterations, “expand the rights of birthparents.” by creating an “incentive” for women to “inform the putative father(s), early in the process ”
Burley, after using up the entire first page of her testimony crowing her qualifications to be heard, threw potential putatives under the train, arguing that men already have more than enough time to register since under Ohio law, sexual intercourse with a woman “puts a man on notice” of potential fatherhood. HB 307 “is only making a 23 day change in the current law.”
While Burley merely trivialized the change, Steve Kirsh told the committee that Ohio putative fathers should just shut up and be grateful. they aren’t in Indiana:
Frankly…Ohio is setting the bar fairly low for a a putative father to protect his rights. Under Indiana law, he has to actually file a paternity action and ask the court to make him legally and financially responsible for the child for the next twenty-one years in order to preserve his parental rights. Under House Bill 307, all he needs to do is register with the Ohio Putative Father Registry. In essence, what HB 307 is asking of him to take a tiny step to express a desire to be involved in the adoption process without any legal, financial or emotional commitment.
Funny thing. Registration in the Putative Father Registry in both states is simply a mechanism by which a man can secure his right to notice if an adoption of a child he believes he’s fathered is filed. Registration does not challenge or stop an adoption. To do that, a man must file in the PFR and show in Probate Court that he did not abandon the mother or fail to support the child. (and prove, if challenged that he is the biological father.) To become the legal father, he must file a paternity action in Juvenile Court. Kirsh failed to note that a man cannot realistically file a paternity action without knowing that a pregnancy has occurred.
Kirsh, Burley, Buchy, and ORTL can’t have it both ways. If a man must register without knowing about a pregnancy, then he cannot be required to file a paternity action–a actual law suit– without knowing about the pregnancy . A potential child must be known of to sue in court.
The “birthmother” remains the information gatekeeper. If she doesn’t want the man to know, there’s a good chance he won’t. And if he does know and files a pre-birth claim under HB 307, the filing puts the woman on notice that the father might seek to stop the adoption, consequently incentivizing her be secretly and consensually be shuffled off to Utah where she can dump her newborn into the L-d-S adoption maw.
Opponents Speak
A couple of sane heads prevailed at the hearing, though in the end were unsuccessful in stopping this cluster fuck.
Denise St.Clair, director of the Capital University Law School National Center for Adoption Law and Policy supported pre-birth notification, but did not agree with the shortened post-birth timeframe. She pointed out that under current law putative fathers already can file with the PFR anytime before the birth of the child and up to 30 days after.
She explained to the the committee what PFR registration in Ohio does and does not do.
The right (parental rights) is not absolute; the putative father’s consent is not required if the court finds that he has not the father of the minor. or that he has willfully abandoned or failed to care for and support the minor ,or that the putative father has willfully abandoned the mother of the minor during her pregnancy and up to the time of her surrender of the minor or the minor’s placement in the home of the petitioner. With these limitations and safeguards in place the reduction of time during which a putative father may register appears to be unnecessary and could place a nearly insurmountable barrier to putative fathers who want to and are suitable to parent a child.
Seeming to take aim at Ohio Right to Life’s refusal to accept input from adoption reformers, those directly affected by adoption, and even Quad A (Nancy Burley aside) she testified,:
We can conceive of no benefit for adoptive children through such a change. The vast majority of stakeholders with whom we have discussed this issue do not support this process change. In fact, Section (not listed) does not eliminate the potential that other men who do not receive notice may claim paternity or putative father status to the child and register as provided for notice is not received. If the goal is to decrease the chance that a potential father may appear late in the game, we are not sure that this provision will have that effect. Putative or legal fathers who are not so identified will still have the opportunity to take measures to protect their rights–as they should.
Judge Kenneth J Spicer
The Ohio Judicial Conference agreed, Speaking for the conference’s Probate Law and Procedure Committee, Kenneth J Spicer, Delaware County Probate/Juvenile Court Judge argued that HB 307 threatened constitutional challenges in two areas: putative father classifications and the decrease in challenge time.
Spicer argued that different treatment of similarly situated putative fathers could have “dangerous implications in certain very probable situations” that could give rise to equal protection action. He urged the committee to restore the 30-day registration timeframe for all to avoid legal complications.
Spicer then waved a very large red flag, Citing Ohio Rules of Civil Procedure, Rule 60(B) which governs the timing for a motion for relief from a final judgement which specifies that a motion must be made within a reasonable time, including one year for specified circumstances. He argued HB 307 could cause confusion between attorneys and courts, and could create a constitutional challenge from a father affected adversely by the law. HB 307:
create{s} a conflict between the Rules and the {Ohio Revised} Code. This provision of the bill attempts to modify court procedure… an area that the Ohio Constitution grants to Supreme Court which would be a more proper venue for this kind of change.
In other words, under Ohio’s separation of powers doctrine, the General Assembly has no authority to change court rules which are controlled, under the Ohio constitution, by the Ohio Supreme Court.
Kayla Smith, ORTL lobbyist, sidestepped when questioned about the constitutionally of the 2-tired system. She argued other states already have a seven day registration-timeframe that has passed judicial scrutiny, but ignored the fact that those states do not have a two-tiered system–the very constitutional problem Judge Spicer and Denise Sr Clair warned against.. But, hey! ORTL is AOK with the tiers because Ohio Legislative Service, the entity that vets bills, said it was constitutional. If LS were always correct, of course, then no law could ever be challenged successfully.
Passage in House
Rep. John Patrick Carney
Despite the factual testimony of Denise St Clair and Judge Spicer, HB 307 passed out of committee with only John Patrick Carney (D-Columbus–and a friend to bastards) opposing. When the bill went to the House floor, Carney attempted to add an amendment that would remove all the bill’s changes to the current PRF law . He was defeated 57-34. . The final bill passed 77-14.
Although HB 307 has been moved to the Senate for consideration, no hearings are scheduled. Sen. Shannon Jones (R-Springboro) the original sponsor of HB 307 who either dumped it or was dumped by ORTL after she raised issues with it, has introduced an alternative bill , SB 250. I haven’t read it, yet, but understand it’s a milder version of ORTL’s monstrosity, It stresses foster care adoption which ORTL has studiously ignored throughout HB 307’s promotion. SH 250 may have a better chance of passing.I’ll write about it later.
Part 2 will deal with what I see as Ohio Right to Life’s agenda and strategy to position itself as an adoption player in the state. I’ll also talk some more about how sponsor Jim Buchy and ORTL has “handled” complaints (even from supporters) that HB 307 does little oro nothing to actually increase adoption of newborns
Llinks to Testimony
Adoption Circle HB307 Testimony-NBurley001
ORTL HB307 Testimony-KSmith001
OH Jud Conf HB307 Testimony-KSpicer001
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