Getting Back Baby Jack – Putative Father Registration and Consent to Adoption in Arizona

A nightmare scenario for one Utah father has made national news.  The most disconcerting part of his story is that it could happen again right here in Arizona.

In 2010, Jake Strickland learned that he was to become a father.  Strickland and the baby’s mother, Whitney Pettersson Rathjen, mutually agreed to share joint responsibility for the care of their son despite their inability to maintain their intimate relationship together.  As the pregnancy progressed, Strickland became more and more involved.  He invited Rathjen to numerous family gatherings, paid for medical expenses and groceries, attended doctor appointments, and even converted a room in his home into a nursery to prepare for the arrival and care of his child.

During this time, Strickland and Rathjen briefly discussed the issue of whether Strickland should register as the baby’s putative father.  A putative father registry reserves potential paternity rights (including consent to adoption) for the unwed biological father of a child in the event that parentage is disputed after the baby is born.  The legal presumption is that the husband of a married woman is the biological father of her child unless the unwed biological father overcomes legal barriers to establishing paternity, one of which is putative father registration.


Rathjen insisted that Strickland not register and take the mother at her word that she would not attempt to terminate his parental rights.  She even went so far as to threaten Strickland, saying that she would never allow him to see the baby if he submitted his name to the putative father registry.  Strickland, although leery of Rathjen’s odd response, felt he had no choice and never registered.

The day before the baby was born, Strickland and Rathjen spent the evening hours together walking through downtown Salt Lake City and enjoying the Christmas lights on display.  On December 29, 2010, Rathjen gave birth and, unbeknownst to Strickland, declared that she did not know the identity of the father and immediately consented to an adoption.

For eight days, Rathjen ignored or curtly responded to Strickland’s attempts to communicate with her.  At one point, Rathjen affirmed that she was still scheduled to have the baby by Caesarean section on January 12 before finally divulging the truth on January 5.  Since then, Strickland has been embroiled in an extensive and complex legal dispute with Rathjen, her attorneys, the adoptive parents, LDS Family Services, and the State of Utah over his wrongfully terminated parental rights.

Strickland alleges that Rathjen worked together with social workers and the adoptive family to streamline the adoption process and guarantee that he could not assert his paternal right to consent to the adoption until it was too late.  Strickland has been battling for the restoration of his parental rights for three years and filed a civil suit for fraud, racketeering, and other claims on January 2, 2014.  Essentially, Strickland believes that Utah law creates an adoption system that a birth mother can use to defraud an unwed father out of his parental rights with little to no recourse.

It is not yet clear whether the courts will vindicate Strickland’s claims, and the story is certain to continue to evolve as the civil case progresses (the adoption challenge, however, has reached the appellate stage and has established a clear record of factual wrongdoing even if the law does not create an eventual remedy).  That said, the case of “Baby Jack” in Utah could have happened much the same way in Arizona or one of numerous other states with similar unwed paternity law.

Arizona’s putative father registry statute allows an unwed father to register his claim of paternity and to receive notice of adoption proceedings.  The unwed father must affirm that he is willing and able to support the child and actively seeking paternity in a separate action.  The unwed father must register within thirty days of the child’s birth unless he proves by clear and convincing evidence that it was impossible at the time, but the father’s lack of knowledge of the pregnancy is specifically excluded as a reason for failure to file within the thirty-day period.  The statute, codified at A.R.S. § 8-106.01, declares that “the fact that the putative father had sexual intercourse with the mother is deemed to be notice to the putative father of the pregnancy.”  Furthermore, the adoption consent statute (A.R.S. § 8-106) requires the putative father to object to a proposed adoption by filing a paternity petition and serving it to the mother.

19th Century Family

This means that a father’s right to consent to, or reject, a potential adoption of his child can be defeated if the mother simply refuses to tell him about the pregnancy or the date of the child’s birth.  The Baby Jack scenario could easily be repeated in Arizona – and may already have occurred – because the statute does not waive its strict requirements in the event of fraud.  In fact, in 1971, then-Attorney General Gary K. Nelson issued an opinion recommending that the putative father registry statute be amended to require notice to all fathers whose identity is known when an adoption proceeding is initiated.  Op.Atty.Gen. No. 73-5-L.  Unfortunately, it appears that the Legislature ignored Mr. Nelson’s advice and still requires strict compliance with the onerous requirements of § 8-106.01.

As a result, one need not be a legal mystery writer to imagine the potential for a pregnant woman to accept the help of the baby’s father until shortly before childbirth and then dodge service of the paternity petition (assuming the putative father even receives notice of the adoption or manages to register in time).  The mere possibility of this result, let alone its apparent likelihood, is preposterous in today’s sophisticated world of family law.  Unfortunately, as long as states rely on antiquated notions of legitimacy and parental rights initially formulated almost a century or more in the past, the ability of well-meaning fathers to protect themselves will be handicapped.

Accordingly, the best way for an unwed father to protect his parental rights is to register before the baby is born notwithstanding his trust in the mother.  Admittedly, this advice is not helpful to an unwed father who does not learn of the pregnancy in time, either through mistake or misconduct by the mother, but early registration remains the best way to protect paternity rights.  That said, existing putative father law in Arizona and other states is not particularly effective at protecting the rights of fathers who want to be involved in their child’s upbringing.


When Arizona Foster Parents are Ready to Adopt – A Rare Opportunity for a Free Lawyer

I received a call the other day from a potential client and her partner.  They had been fostering a child through a CPS placement for almost 19 months.  The baby was just three weeks old when he was placed in their care.  The first few weeks of his life were spent in a hospital.  The birth mother had limited prenatal care and the baby was born as a S.E.N. (Substance Exposed Newborn).

Although foster training taught the moms that their obligation was to nurture the child until reunification with the parents occurred, as with many loving foster families, they fell in love with the baby after welcoming him into their Gilbert home.  Notwithstanding the drug exposure, he was thriving in their care.

Sunglasses Baby

The foster moms went to every Dependency Hearing and even attended the Foster Care Review Boards.  The biological mother appeared at the court hearings and proclaimed a desire to be reunited.  Her numerous missed TASC drug tests told a different story.  Her erratic behavior and failure to attend a court-ordered psychological evaluation coupled with an arrest for possession of drug paraphernalia certainly did not help her court appointed attorney present a defense or argument to expedite the reunification.

Meanwhile, the CPS case workers constantly changed.  There was an investigative worker, an involved supervisor, and three others since the baby had been in the State’s care.  Fortunately, no one ever mentioned removing the child from the foster parents.  There was never a biological father identified (referred to as a “John Doe”) and mother’s family was uninterested and/or equally enmeshed in methamphetamine culture.

Ultimately, the biological mother’s rights were terminated (she was pregnant again at the Severance hearing).  Now, six weeks after the severance hearing, the foster mom was meeting with an attorney for the first time to see what needed to happen.  Foster Mom, who is a physician in Chandler, was eager to pay my office to tie this up and complete this adoption so that they could get back to normalcy and so that she and her partner would not have to deal further with CPS, court hearings, Foster Care Review Boards (FCRB), etc.

As her check book came out on my conference room table, I had the rare pleasure of telling the moms that this would be free for them.  Pursuant to rules regarding ‘non-recurring adoption expenses’, the legal fees for the adoption can be paid by our Uncle Sam, irrespective of the financial situation of the parents.

Sports Kid

Our law provides that, in the case of CPS placement adoptions, non-recurring adoption expenses are reimbursed (paid) by the government.  What this means is that, once a Parent’s Authorization for DES to Reimburse Attorney Directly form is signed and other basic pleadings filed, the adoption can proceed through its conclusion without the adopting family incurring costs.

To be clear, this only applies to CPS placement adoptions in Arizona.  Qualifying placement adoptions require that the child is legally free for adoption and cannot or should not be returned home, the child experiences of one numerous broadly defined special needs, and the adoptive parent cannot adopt without a subsidy.    Most other situations, such as private severance actions, step-parent adoptions, and second-parent adoptions, still require direct payment to the attorney.

Still, the availability of government reimbursement for some adoptions contributes substantially to the placement of children with wonderful parents without the added burden of adoption expenses.  The joy felt by a newly recognized adoptive family is something for which every Arizonan should feel pride.


Supreme Court Hears Key Adoption Case for Arizona

The U.S. Supreme Court heard an important adoption case on April 16. The case, captioned Adoptive Couple v. Baby Girl, involves complex issues of sovereignty and statutory construction, to say nothing of the high stakes element of a little girl’s permanent placement.

In 2009, a South Carolina couple took custody of a newborn girl after her mother agreed to let them adopt her. The girl’s biological father objected to the adoption on the grounds that the mother had not consulted with him before making the arrangements.

Supreme Court (Woodnick)Under typical circumstances in South Carolina (and in many other states), the father’s consent would not have been necessary because he was not married to the mother and was considered an absentee. A 1978 federal law entitled the Indian Child Welfare Act, however, provided a strong enough legal ground for the state to award custody to the biological father in December, 2011.

The Indian Child Welfare Act (ICWA) was passed to address what was described as an “alarmingly high” rate of removal of children from Native American families. The law requires inclusion of the family’s tribe in proceedings to determine child custody, including adoptions. Under ICWA, the “biological parent or parents of an Indian child” cannot have their parental rights involuntarily terminated without notice, hearing, and proper showing that continued custody of the child by the parent or custodian “is likely to result in serious emotional or physical damage to the child.” Such notice must also be given to the child’s tribe so that the tribal courts can engage in determining the child’s placement.

If such a showing is made and the court terminates a parent’s rights, ICWA requires the court to give preference to the child’s extended family, other members of the child’s tribe, or to “other Indian families” when placing the child.

In the case at bar, the Supreme Court must decide if (and how) ICWA applies to the girl’s biological father, with whom she will have spent about 18 months by the time a decision is reached. No matter the result, one of two families will be devastated. Broader concerns with the case involve the potential limitation of ICWA, prompting several states, tribal councils, and others to file numerous amicus briefs.

Saguaro (Woodnick)The State of Arizona and the Inter Tribal Council of Arizona have each filed briefs in support of ICWA. Arizona is home to the nation’s third-largest population of Native Americans at around 155,000 people; if ICWA is overturned, the impact on Arizona would be disproportionately large. Legal commentators speculate that the Supreme Court’s high rate of reversal indicates the Justices’ intent to do away with outcomes like these under ICWA, but the form that such reversal might take is in doubt.

Adoptions are complicated endeavors which sometimes lead to tragic outcomes. ICWA is designed to respect tribal sovereignty and to protect the cultural heritage of Native American children whose unique situation makes them more vulnerable. At times, however, statutes have unintended consequences that can lead to termination of the rights of both biological and adoptive parents. Adopting a child in Arizona is a complicated process (and not only because of tribal law issues), so both Arizona adoption lawyers and prospective adoptive parents must exercise due care and caution.

Outcry Over Russian Adoptee’s Texas Death

On February 18, CNN reported that Russian officials are outraged after the death of Max Shatto, a Russian boy living with his adoptive family in Texas.  Texas Child Protective Services is investigating the boy’s death, citing the suspiciousness of his injuries revealed in preliminary reports from the medical examiner.

Konstantin Dolgov, special representative for human rights at Russia’s Foreign Ministry, believes that the three-year-old boy’s death is “another case of inhuman abuse of a Russian child by U.S. adoptive parents.”

Snow (Woodnick)Russian lawmakers recently passed a moratorium on the adoption of Russian children by U.S. citizens which is scheduled to begin in January, 2014.  President Obama recently signed a law which restricts the travel and financial flexibility of human rights abusers in the U.S. – Russia’s ban on adoptions is viewed by many as a retaliatory measure.

What does all of this mean for Arizonans?  According to the U.S. State Department (via CNN), around 1,000 Russian children were adopted last year by U.S. citizens, making Russia the third-most popular foreign nation from which U.S. families adopt.

Russia’s outrage at 19 reported deaths of Russian adoptees since 1990 is mostly a political issue, but many families have pending adoptions which could be blocked by the change to Russian law, likely resulting in the loss of thousands of dollars of expenses already paid toward securing an adoption abroad.

To make matters worse, Russian authorities are calling for the criminal prosecution of Max’s parents and the immediate removal of Max’s younger brother, Kirill, from the family’s custody and his return to Russia.  Texas CPS officials are monitoring Kirill’s safety, but are waiting for final autopsy and toxicology reports before moving further.

If Russian commentators’ contentions that Max was beaten, drugged, or otherwise neglected hold true, it is unclear whether Kirill can (or should) be returned to Russia, where he previously lived in an orphanage.

Political Dolls (Woodnick)In any adoption, there can be unforeseen legal pitfalls.  Foreign adoptions, in particular, could become subject to the diplomatic meanderings of the day.  Although the 19 deaths of Russian adopted children in the U.S. since 1990 are each tragic whether they involved foul play or not, there have also been over 60,000 successful adoptions in the same period.  Extreme measures like Russia’s total ban could result in thousands of children and families not being matched – a scenario in which everyone loses.

Furthermore, the national headlines attached to this case can cause the public to associate adoptive families with negative stigmas (that adoptive parents are more likely to abuse their children, for example).  Such stigma could result in more calls to CPS and civil and criminal actions being brought against perfectly fit parents.  All of these phenomena will likely continue to drive up the already extreme cost to adopt a child as agencies seek to tighten their standards for selecting parents and parents are forced to parry legal matters which arrive as a result of heightened scrutiny into their personal lives.

If the Shattos abused Max, then sanctions are certainly appropriate.  The extremity of national and international reactions to this case, however, could result in more harm being done to children without homes and fit families who would offer them a better life.

For more insight into the potential pitfalls of foreign adoptions, click the following link:

CPS Under Scrutiny for Placement in Colorado City

Child Protective Services (CPS), the state agency responsible for protecting the safety and welfare of vulnerable children, is one of the most embattled sectors of our local government.  Understaffed and underfunded, CPS struggles with the ever-growing task of investigating child abuse, finding homes for children who need them, and other related tasks.

woodnickArizonans for Children, Inc. reports that emergency shelters regularly harbor 1,300 children for three weeks or more while they await placement in homes.  The need for qualified foster parents exceeds availability, so CPS, although careful to select safe places to send children who need care, sometimes makes controversial decisions. reports that Mohave County Supervisor Buster Johnson asked Gov. Jan Brewer and Attorney General Tom Horne to help return a child to Lake Havasu City, where his mother currently resides.  The child was separated from his two brothers, who are currently in Prescott, and was himself placed in the care of Dan Wayman, a former member of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) in Colorado City.

The FLDS Church, situated in numerous enclaves along the Arizona-Utah border, has garnered national attention over the course of many years for its policies, which include polygamy.  Supervisor Johnson believes that CPS should not permit foster care or adoptions in Colorado City, where he says arranged marriages and family-run businesses lead to spousal and child abuse and underage labor.

Meanwhile, Dan Wayman has one adopted son and is licensed to care for up to five children.  According to Johnson, CPS is considering placing the child’s brothers in the same home in accordance with an overarching policy to keep families together where possible.

Children can be placed under CPS supervision for a many reasons, including being abandoned or being removed from parental custody after becoming victims of abuse.  CPS attempts to place such children with relatives if possible, and subjects potential foster and adoptive parents to a licensing procedure before approving their application to care for children.


Although CPS investigates the mental health, history, and lifestyle of prospective caretakers, there are simply too many variables to consider – and too great a need for more open homes – to guarantee that every foster parent is qualified.

Most caretakers are highly qualified and perform their duties admirably, but sometimes children are moved from one dangerous situation to another when they are removed from their homes and placed in foster care.  In addition, mistakes can sometimes lead to children being taken away from loving parents whose mistakes do not warrant such drastic measures.  In those scenarios, placing a child in a potentially harmful foster care situation would be a tragedy, particularly if the allegations leading to the child’s removal turn out to be false.

The laws governing Child Protective Services and the scenarios in which their duties are triggered can be complex.  Criminal, family, and other unique areas of law often intersect in CPS-related cases, creating a mired field of complicated legal issues.