"Of particular potential merit is Mr. Carlton's contention, which he clarified at oral argument, that the [Utah Adoption] Act's imposition of a deadline on out-of-state fathers whose home states impose no such deadline is a violation of due process," the high court said.
It also said Carlton's claim for emotional distress against The Adoption Center of Choice, which handled the placement, should have not been dismissed by Hansen, though the judge properly dismissed five other claims.
If a plaintiff challenging the constitutionality of a state statute is able to show how and by whom the law causes harm, the "allegedly unconstitutional statute cannot then be used as grounds for denying the plaintiff standing," the court said in the unanimous decision.
The court also said that "because we today reverse the district court's dismissal of Mr. Carlton's constitutional claims, the question of whether he may be able to 'establish his parental rights to the child' remains open' and that leaves intact his claims against the adoption center.
The court, which ruled 11 months after hearing arguments, sent the case back to the lower court to address those points.
Carlton, represented by West Jordan attorney Wes Hutchins, had asked the court to find Utah's adoption act unconstitutional and award him damages against the adoption agency and his former girlfriend.
"We wish the court would have gone ahead and found various portions of the Utah Adoption Act unconstitutional, but it did signal with fairly clear language how it is going to come down on constitutionality issues," Hutchins said, who nevertheless characterized the decision as a "big win."
Carlton learned in late 2009 that girlfriend Shalanda Brown was pregnant. Even though they broke up, he continued to support her and her two children and expected to be involved with the baby due in June 2010.
But Brown disappeared in May 2010 and Carlton, who served in the Iraq war, was unable to locate her. He learned in late June 2010 from a mutual friend that Brown had given birth to a baby boy.
He frantically began searching for Brown and finally reached her by cellphone. She told Carlton the baby had respiratory problems but she was "too far away" for him to see the child. She then sent him three photos of the baby via text messages.
Three days later, Brown showed up at Carlton's door, raging that he had killed her baby. Carlton pressed Brown about where the baby had been buried but she refused to give him any information until ordered to do so by a Pennsylvania judge. Months later, Carlton learned Brown had placed the infant, still identified as a boy, for adoption in Utah two days after its birth on June 24, 2010.
She refused to give him any more information until, once again, ordered to do so by the Pennsylvania judge. Carlton learned in November 2010 the baby a girl, not a boy had been placed through the now defunct Adoption Center of Choice.
The center lost its operating license last week and it is unclear how that might affect ongoing proceedings in the Carlton case. Attorney Larry S. Jenkins, who represented the agency, did not immediately respond to a telephone call seeking comment.
For Carlton, there is ongoing frustration, however, that he remains separated from his child and faces what could be several more years of legal proceedings to reach a final resolution of the matter.
"As a practical matter, there could be settlement discussions between everyone that involves potential for visitation and joint custody," Hutchins said, though he added Carlton wants full custody of his daughter.
Carlton is among a dozen biological fathers who recently sued the state, alleging Utah laws permit "legalized fraud and kidnapping."
Hutchins is representing the fathers in that lawsuit, which seeks monetary damages and a finding that the Utah Adoption Act is unconstitutional.
The lawsuit says the 12 dads represent a much larger group of an estimated 300 fathers whose constitutional rights have been violated by Utah's adoption laws.
The lawsuit says some adoption agencies, as shown in secretly recorded telephone conversations, encourage biological mothers to come to Utah and take steps so that a birth father would "never have a shot in hell in ever getting his child back," as one agency worker put it.
Notifying birth fathers
Sen. Curt Bramble, R-Provo, introduced a bill Tuesday that would require that notice be given to a birth father in most potential adoption proceedings.
SB 246, titled "Parental Rights of Biological Fathers," amends the state's adoption law to require a birth mother or her representative to notify the birth father; the mother must consent to being identified by name.
The proposed bill also allows a birth mother to opt out of the requirement if she is able to show a judge that the birth father has been physically abusive in the past or she fears he may be in the future.
Bramble said he is sponsoring the bill "to address the unfortunate situation where fraudulent mispresentation denies a birth father any rights in an adoption case."
State takes over adoptions
The Utah Division of Child and Family Services has now taken oversight of 13 open adoption cases from The Adoption Center of Choice, an American Fork-based child placement agency.
The state revoked the agency's license Thursday after it failed to correct numerous problems or respond to the proposed action. Owner James C. Webb and other principals with the business are barred from reapplying for a license for a year.
Liz Sollis, spokeswoman for the Utah Department of Human Services, said anyone with questions about the status of an uncompleted adoption may contact Staci Ghneim, DCFS deputy director, at 801-538-4371.
Other questions about the agency, its employees or its practices may be directed to the Utah County Attorney's Office, the Utah Division of Occupational Licensing, the Utah State Bar or a private attorney.