Brownthenconfessed the infant was alive and that she had placed him for adoption without saying where.
It took another court hearing for Carlton to learn Brown had traveled to Utah to give birth and that his child had been placed for adoption here through the Adoption Center of Choice. And then there was a final bombshell, one that came after yet another months-long delay: The baby born on June 24, 2010, and placed for adoption two days later wasn't a boy. It was a girl.
On Tuesday, the Utah Supreme Court asked pointed questions about Carlton's moves to protect his paternity rights, which a trial judge said in February came too late, and whether Utah's Adoption Act should prevail over another state's statute when they conflict.
The case gets at a controversial provision in Utah's adoption law, which says unmarried biological fathers like Carlton can not use fraud or misrepresentations as a defense for failing to protect parental rights. It also focuses on due process rights of out-of-state unwed fathers.
Attorney Wes Hutchins, who represents Carlton, said in court documents that the adoption agency and birth mother engaged in an "unlawful, unconstitutional and illegal scheme" to keep Carlton from any relationship with his child, and because of that wrongdoing Carlton may challenge the adoption. Hutchins told the justices there appear to be no filing deadlines in Pennsylvania's consent statute and one law allows a father of a child born outside of marriage to assert paternity up until that child turns age 18. Carlton did not initiate a paternity action there initially because he believed his child was dead, though he did go to court to try to find out where the child was buried. Carlton filed an action in Utah as soon as he figured out the child was alive and had been born here and, despite initially being hampered by a lack of information about the adoption, should have been given standing, Hutchins argues.
Hutchins said it was unconstitutional to impose Utah law on an out-of-state father with no knowledge his child has been born here and then deny him standing once he figures that out. The crux of the adoption center's argument is that Carlton didn't act to protect his rights before the birth mother relinquished her rights, but there is no such time frame in Pennsylvania, hesaid.
But Justice Jill Parrish said when it comes to conflicts between state statutes, the Utah Legislature has made it "pretty clear" that Utah law controls. Utah's law says a father who is unaware of a Utah connection must take steps in his home state to protect his rights before a birth mother relinquishes a child to be entitled to notice of an adoption proceeding.
Justice Thomas Lee suggested Carlton could have filed a petition in Pennsylvania before being told the baby had died and that would have required him to receive notice of an adoption proceeding.
"He didn't do so," Lee said.
Larry Jenkins, an attorney representing the adoption agency, said the birth mother's misrepresentations occurred long after the baby's birth and do not excuse Carlton's failure to assert his paternity rights in a timely fashion in his home state, which might have given him standing to intervene in the Utah adoption proceeding.
"He would have just have had to do something to establish paternity in Pennsylvania," Jenkins told the justices.
"While it is unfortunate if Brown told him the child had died when she returned to Pennsylvania, it is undisputed that such misrepresentation took place after the adoptive placement," Jenkins wrote in a court filing. "Because he did not timely assert any interest in the child, through no one's fault but his own, he lacks standing to raise any of his claims or constitutional arguments."
When Brown left him, Carlton should haveinferred he needed to establish paternity, Jenkins wrote. Under the law, the birth mother was not obligated to identify the father, and neither she nor the adoption agency had any obligation to disclose her adoption plans to him. And because there is no such obligation, there can be no fraud, Jenkins said in the filing.
After the hearing, Carlton said a man can't assert paternity or register as a putative father in Pennsylvania until a child is born.
Carlton, a multi-tour Iraq war veteran who now works for a defense contractor, said he acted quickly once the truth trickled out, filing an initial petition for his "son" in Pennsylvania in November 2010 despite having no information about who had his child or where the adoption occurred. Weeks later, he learned the adoption had occurred in Utah and filed a new petition in 4th District Court on Jan. 6, 2011 about a week after the adoption was finalized in the same court but, as noted by the adoption agency's attorney, it contained few details because he was "unable to obtain sufficient information to complete the filing."
It was only in May 2011, after Carlton filed a second amended petition and while he was deployed in Iraq, that he learned his child was a girl.
Now, Carlton said, "I am going to fight until the end."
Nebraska court tackles fraud
Utah is not the only state tackling problems that arise when birth mothers are less than forthright about their adoption plans.
In February, the Nebraska Supreme Court ruled in favor of a father in such a situation. A lower court had barred the man, identified only as "Jeremiah J." from intervening to stop the adoption of his biological daughter after finding he did not object within five business days as required by statute. The Nebraska Supreme Court said, however, that the child's mother purposefully misled Jeremiah about the baby's due date and birth so he would miss the deadline, according to an Associated Press story.
In its decision, the court wrote that a "biological mother may not deliberately misrepresent or withhold information as to the date of the child's birth in order to prevent the biological father from timely objecting to the adoption of the child." One judge said the state's five-day notice period was too short to ensure a biological father had an adequate opportunity to claim paternity.