In Re the Adoption of A.A.T.

196 P.3d 1180, 287 Kan. 590, 2008 Kan. LEXIS 724

• Court: Supreme Court of Kansas
• Decided: December 12, 2008
• Docket: 98,740
• Status: Published

Opinions

The opinion of the court was delivered by

Luckert, J.:

In this appeal, a natural father seeks to set aside the adoption of his newborn child. Although he did nothing during the pregnancy to assume parenting responsibilities and preserve his liberty interest in fatherhood, he asserts this should be excused and a liberty interest should be recognized because the natural mother induced his inaction by lying to him about the pregnancy and the birth. Then, she lied to the district court regarding the father’s identity, preventing him from receiving notice and an opportunity to be heard in the adoption. Consequently, according to his argument, the adoption is void.

The district court rejected these arguments, and we affirm that ruling. A liberty interest, which results in the right to notice, is created by a developed familial relationship, not just biology. In a newborn adoption situation, a father must demonstrate a full commitment to parenting during the pregnancy, and in this case the natural father’s opportunity to parent did not develop into a full parenting relationship that warrants constitutional protection. Even though the father may be blameless in this failure that was induced by the natural mother’s fraud, his belated attempt to assert a parental interest, beginning 6 months after the adoption was final, cannot overcome the fully matured interests of the State and the adoptive family in the permanency and stability of the adoption.

Factual Background and Pretrial Procedural History

This case began in New York, where the natural mother, N.T., became sexually involved with the natural father, M.P. N.T. informed M.P. in mid-October 2003 that she was pregnant with his child. Then, just before Thanksgiving, N.T. left New York to visit her parents in Wichita. She later decided to stay in Kansas.

After leaving New York, N.T. refused to give M.P. the address where she was living, but the couple remained in telephone contact. M.P.’s cell phone records show that as early as November 25, 2003, he was making calls to Wichita.

In a phone call on January 22, 2004, N.T. falsely informed M.P. that she had undergone an abortion. She later testified that she did so because she knew M.P. would not consent to an adoption. After the conversation in which N.T. lied about the abortion, M.P. continued to question N.T. about the pregnancy, doubting her veracity. In May 2004, M.P.’s expression of skepticism led to an argument with N.T. that temporarily stopped their telephone contact.

After a period of time but before the child was bom, M.P. and N.T. began talking again and continued to do so throughout the remainder of the pregnancy and following their child’s birth on June 24, 2004, in Wichita. During this time, M.P. continued to express his doubts about N.T.’s truthfulness, making statements like, “Why do I have a feeling you’re lying to me?” and “I know I have a child, I can feel it.” M.P. told a friend that he thought he had a daughter, and he bought a pair of earrings before Christmas 2004, apparendy as a gift for the child he imagined he might have.

M.P. was not the only one deceived by N.T. N.T. told her mother, other family members, and friends that the baby died at delivery. She also deceived the adoption agency regarding the identity of the father, claiming not to know his last name and to have only vague information about where he lived.

The day after the birth, N.T. directed that A.A.T. be given to the adoptive parents, who took the baby home from the hospital. The adoptive parents filed their petition for adoption and for termination of the parental rights of the father on July 1, 2004, when A.A.T. was 1 week old. As part of this proceeding, N.T. again lied. She executed an affidavit that gave a false surname for the newborn child’s putative father. She also falsely stated that the father was “not willing to be of assistance to [her] during the pregnancy and with regard to these proceedings” and that she had no personal knowledge of his background information.

A guardian ad litem (GAL) was appointed to represent the putative father. After interviewing N.T., the GAL filed an affidavit with the court, passing on incorrect information supplied by N.T., including a false surname for the putative father and representations that N.T. had not contacted the father since her second month of pregnancy and that he was aware of her intent to place their child for adoption. In addition, N.T. failed to pass along information such as M.P.’s address.

Although there is some evidence that at the hospital N.T. told a representative of the adoption agency that she had just spoken to A.A.T.’s father, and that the agency did not follow up on this lead, an agency representative later testified that she had no recollection of N.T. making a statement to this effect. The representative also said she would have notified the GAL if she had been told about a recent conversation between N.T. and the child’s father.

In the absence of correct information about M.P. and his willingness or unwillingness to relinquish his parental rights under K.S.A. 59-2124, a notice including the inaccurate name of the putative father and “To Whom It May Concern” was published in the New York Post on July 30, 2004, and August 6, 2004. See K.S.A. 59-2136(e), (f) (if father identified to satisfaction of court, or more than one man identified as possible father, each shall be given notice of adoption proceedings by personal service, certified return receipt requested, or “in any other manner court directs”). The item in the New York Post, which circulates to every county in New York, also contained A.A.T.’s last name and stated that Kansas was the location of the proceeding. Nothing was done to provide actual notice of the adoption to M.P.

No father appeared before the court. The natural father’s parental rights thus were terminated and the adoption decree was finalized on August 24, 2004. See K.S.A. 59-2136(g) (if no person appears claiming to be father and claiming custodial rights, court shall enter order terminating father s parental rights).

In late December 2004, when A.A.T. was 6 months old, N.T. finally told M.P. the truth. Within 6 weeks, M.P. had retained Kansas counsel and had begun this action to set aside the adoption pursuant to K.S.A. 59-2213 and K.S.A. 60-260(b). M.P., possibly with the assistance of his lawyer, had been able to obtain the names, residential address, and church affiliation of the adoptive parents.

M.P. requested DNA testing to confirm paternity, a status conference to set a discovery schedule, and “orders to proceed with the case.” The adoptive parents moved to dismiss. At a March 23, 2005, hearing, the district court ordered the matter to proceed and considered whether genetic testing should be performed to determine if M.P. was the father and thus had standing to challenge the adoption. The attorneys present agreed that the adoptive parents were entitled to a Ross hearing to determine whether such testing was in A.A.T.’s best interests. See In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989). A GAL was appointed for A.A.T.

Before the Ross hearing could be held, M.P. advocated for a different approach, submitting a memorandum arguing that the Ross hearing was unnecessary. The district court was persuaded, and the adoptive parents took an interlocutory appeal to our Court of Appeals. The Court of Appeals affirmed the district court in In re Adoption of A. A.T., No. 95,914, unpublished opinion filed December 22, 2006.

Upon remand, DNA tests were performed. The results confirmed M.P.’s paternity of A.A.T. M.P. then sought a trial on the issue of whether the adoption should be set aside and requested visitation with A.A.T. pending resolution of the issue. The record on appeal is silent on the district court’s decision on the visitation question. The information before us indicates that A.A.T. has been living exclusively with the adoptive parents since leaving the hospital with them as a newborn. Recently, M.P. filed a motion with this court renewing his request to have visitation with A.A.T.

District Court’s Ruling on the Adoption

After trial, the district court refused to set aside the adoption decree. The court found, inter alia, that the adoption agency and adoptive parents had acted in good faith in the adoption proceeding. The court also found that M.P. had not abandoned N.T. during her pregnancy and that M.P. had not learned of A.A.T.’s birth until December 24 or 25, 2004. Still, the court further found that M.P. “should have known and did suspect [N.T.] was still pregnant with his child and she gave birth to his child.” Under these circumstances, M.P. “should have taken action to determine whether [N.T.] had had an abortion or was still pregnant . . . and . . . gave birth to his child.”

The district court ruled against M.P. on his argument under K.S.A. 59-2213, which provides that a court shall have continuing control over its own probate orders, judgments, and decrees for 30 days. Under this statute, the court held M.P.’s effort to set aside the adoption decree was time-barred.

The district court also rebuffed M.P.’s arguments under K.S.A. 60-260(b), which controls vacation or modification of probate judgments after the 30-day time limit of K.S.A. 59-2213 has passed. Under K.S.A. 60-260(b)(2), the court refused to set aside the adoption decree based on newly discovered evidence because “M.P. should have taken action to verify whether N.T. had an abortion.” Under subsection (b)(3), which allows a judgment to be set aside for fraud, the district court ruled that N.T. was not an adverse party and that fraud justifying relief must have been committed by an adverse party. The court also rejected subsection (b)(4) as a basis for setting aside the adoption decree as void; in the court’s view, although M.P. did not have notice of the adoption proceeding, the decree was not void because, again, “[M.P.] should have taken action to protect his parental rights.” Finally, the court considered the so-called catch-all provision of subsection (b)(6) and determined M.P. was not entitled to relief under that provision.

Arguments Raised on Appeal

M.P. relies on K.S.A. 60-260(b) in this appeal, transferred to this court from our Court of Appeals pursuant to K.S.A. 20-3017 and Supreme Court Rule 8.02 (2007 Kan. Ct. R. Annot. 62). He first asserts that the adoption decree was void under K.S.A. 60-260(b)(4) because he did not receive notice of the proceeding in violation of his rights to substantive and procedural due process. M.P. argues that he had a constitutionally protected liberty interest in his fatherhood of A.A.T. and that he could not be deprived of it without his consent or compliance with the Kansas Adoption and Relinquishment Act (Act), K.S.A. 59-2111 through K.S.A. 59-2144, i.e., due process of law. He asserts that N.T.’s fraud cut off his ability to assert his interest before the adoption decree was entered and that his only recourse has been his timely and diligent prosecution of this action. Because his consent was required and not obtained and there was no other basis to support termination of his parental rights, M.P. argues, the adoption decree is void.

In response, the adoptive parents argue that M.P. had a mere biological link and bore the burden to discover A.A.T.’s existence and transform that biological link into a full and enduring relationship worthy of constitutional protection. They also assert that M.P. was not denied due process because he “wholly neglected his parental responsibilities” and therefore the Act constitutionally allowed termination of his parental rights.

We also have the benefit of an amicus brief filed by the American Academy of Adoption Attorneys, which argues that a child has a constitutional interest in the protection of his or her “established family,” here, the adoptive parents. The Academy contends this right must trump any mere “possessory” right of another. The Academy also supports the adoptive parents’ responses to M.P.’s issues, arguing that the district court did not abuse its discretion by refusing to set aside the decree and that substantial competent evidence supported termination of'M.P.’s parental rights under K.S.A. 59-2136(h).

If we do not accept M.P.’s argument that the adoption is void, he argues alternatively that (1) the district court misinterpreted the phrase “adverse party” in K.S.A. 60-260(b)(3), meaning the decree must be set aside on the basis of N.T.’s fraud and (2) the district court abused its discretion by failing to set aside tire decree because of newly discovered evidence under K.S.A. 60-260(b)(2), specifically evidence of M.P.’s identity as A.A.T.’s biological father.

M.P. does not argue for relief under K.S.A. 60-260(b)(6); instead, he argues the district court erred in relying upon the provision because it applies only if there is no other applicable grounds for relief and, according to him, three other provisions do apply.

Analysis

K.S.A. 60-260 expressly provides for relief from district court decisions in certain circumstances. See In re Marriage of Leedy, 279 Kan. 311, 321, 109 P.3d 1130 (2005). K.S.A. 60-260(b) reads in pertinent part:

“On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: ... (2) newly discovered evidence . . .; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void .... The motion shall be made within a reasonable time, and for reasons ... (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subsection (b) does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or ... to set aside a judgment for fraud upon the court.”

Issue 1: Is the Adoption Decree Void?

The parties disagree about the proper standard of review applicable to the first issue raised by M.P., i.e., whether the adoption decree is void under K.S.A. 60-260(b)(4). M.P. seeks application of a de novo standard. The adoptive parents argue for an abuse of discretion standard.

Although abuse of discretion is generally the correct standard for review of district court decisions under K.S.A. 60-260(b), see In re Marriage of Reinhardt, 38 Kan. App. 2d 60, Syl. ¶ 1, 161 P.3d 235 (2007), this is not so when a judgment is attacked as void under K.S.A. 60-260(b)(4). A judgment is void and therefore a nullity if a court lacked jurisdiction to render it or acted in a manner inconsistent with due process. Automatic Feeder Co. v. Tobey, 221 Kan. 17, 21, 558 P.2d 101 (1976); Board of Jefferson County Comm'rs v. Adcox, 35 Kan. App. 2d 628, 635-36, 132 P.3d 1004 (2006). A district court has no discretion to exercise in such a case; either a judgment is valid or it is void as a matter of law. Thus, a reviewing appellate court must apply a de novo standard once a district court has made the necessary findings of fact. See In re Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997); Adcox, 35 Kan. App. 2d at 635.

The necessary, underlying findings of fact are reviewed under a different standard of review; Findings of fact are reviewed on appeal to determine if they are supported by substantial competent evidence and are sufficient to support the conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a finding. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007). An appellate court must not reweigh the evidence, substitute its evaluation of the evidence for that of the district court, or pass upon the credibility of the witnesses. See In re Estate of Sauder, 283 Kan. 694, 718, 156 P.3d 1204 (2007).

Underlying Findings of Fact

In this case, many of the district court’s findings of fact are not disputed. For example, there is no disagreement with the findings that N.T. lied to M.P. and took extraordinary measures to prevent him from knowing about the birth of his child. Nor is it disputed that N.T. falsified her affidavit and gave false information to the court regarding the identity of the putative father. Also, the parties do not dispute the district court’s finding that the adoption agency and the adoptive parents acted in good faith and without knowledge of N.T.’s deceptions.

Arguments are made regarding other findings, however. As evidenced by the separate opinions of this court, some disagree with the district court’s findings that M.P. “should have known and did suspect [N.T.] was still pregnant with his child and she gave birth to his child” and that he took no action to protect his parental rights. Although the evidence could be reweighed to reach contrary findings regarding whether M.P. should have known of the continued pregnancy and the birth, that is not our role. Our task is to determine if the district court’s findings are supported by substantial competent evidence, and we conclude they are. In fact, M.P. testified to his suspicions and his inaction.

Other evidence establishes that had he acted on those suspicions, it would have required relatively little effort for M.P. to have discovered the continued pregnancy or the birth of the child. N.T. testified that, although she discouraged contact between M.P. and her mother, her mother would have confirmed the continued pregnancy had M.P. asked. In addition, through M.P.’s phone records he could determine where N.T. was, and he had a Wichita address for N.T.’s sister.

Fourteenth Amendment Framework

In light of these circumstances, we must determine whether M.P. had a constitutionally protected liberty interest under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the only basis M.P. asserts for his claim that he was entitled to notice of the adoption proceeding. The Due Process Clause is invoked only when the State takes action to deprive any person of life, liberty, or property. Lehr v. Robertson, 463 U.S. 248, 256, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983).

If life, liberty, or property is at stake, procedural due process requires the State to provide notice of a potential deprivation of the interest and an opportunity to be heard regarding the deprivation. Baldwin v. Hale, 68 U.S. (1 Wall) 223, 233, 17 L. Ed. 531 (1863). It is necessarily implied that both the notice and opportunity to be heard must be provided at a meaningful time and in a meaningful manner to comport with the constitutional guarantee. Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972); Armstrong v. Manzo, 380 U.S. 545, 14 L. Ed. 2d 62, 85 S. Ct. 1187 (1965); Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1275, 136 P.3d 457 (2006).

In arguing that he has a liberty interest, M.P. relies upon the United States Supreme Court’s recognition of a natural parent’s right to “the companionship, care, custody, and management” of his or her child as a liberty interest far more important than any property right. Santosky v. Kramer, 455 U.S. 745, 758-59, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); Lassiter v. Department of Social Services, 452 U.S. 18, 27, 68 L. Ed. 2d 640, 101 S. Ct. 2153 (1981); see also Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d , 92 S. Ct. 1526 (1972) (parents have protected liberty interest in controlling their children’s religious upbringing); Pierce v. Society of Sisters, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925) (parents have protected liberty interest in the way they choose to educate their children); Meyer v. Nebraska, 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 625 (1923) (parents have protected liberty interest in controlling their children’s education). Similarly, this court has long recognized that “parental rights are fundamental in nature and are constitutionally protected.” In re Adoption of McMullen, 236 Kan. 348, 352, 691 P.2d 17 (1984).

Obviously, the liberty interest of a natural parent has its origin in the biological connection between the parent and the child. Nevertheless, a biological relationship does not guarantee the permanency of the parental rights of an unwed natural father. See In re K.M.H., 285 Kan. 53, 77, 169 P.3d 1025 (2007), cert. denied 129 S. Ct. 36 (2008) (no parental rights arose for sperm donor who had no written agreement with mother). Rather, “[t]he significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring.” Lehr, 463 U.S. at 262. The opportunity is lost, however, if the natural father does not come forward to “demonstrate[] a full commitment to the responsibilities of parenthood.” 463 U.S. at 261.

Decisions Regarding Unwed Fathers

Several decisions of the United States Supreme Court establish this principle and emphasize the importance of an actual relationship of parental responsibility as distinguished from a mere biological relationship.

In the earliest of the Supreme Court decisions involving an unwed father, Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), the Court clarified that the liberty interest of a natural parent could attach to an unwed father. Therefore, an Illinois statute that conclusively presumed every father in such circumstances to be an unfit parent was declared unconstitutional.

Peter Stanley, Sr., although not married to his children’s mother, had always acted as a parent to them and had lived periodically with their mother for 18 years. When the mother died, the children were immediately made wards of the state and were eligible for adoption. Stanley claimed he was denied due process of the law because he was refused a hearing on his fitness as a parent before his children were declared wards. The Supreme Court agreed, finding he was entitled to a hearing. 405 U.S. at 658-59; compare Armstrong, 380 U.S. at 550 (recognizing divorced natural father’s liberty interest in parental relationship, requiring notice of adoption proceedings to satisfy due process).

Six years after Stanley, the Court decided Quilloin v. Walcott, 434 U.S. 246, 254, 54 L. Ed. 2d 511, 98 S. Ct. 549, reh. denied 435 U.S. 918 (1978), addressing the rights of an unwed father in a stepparent adoption and whether those rights were protected adequately by application of a “ ‘best interests of the child’ ” standard.

Under Georgia law, an unwed father who had not legitimated his child was not permitted to object to an adoption. Leon Webster Quilloin had not petitioned to legitimize his 11-year-old before the adoption petition was filed; and he had never sought actual or legal custody or otherwise assumed any significant responsibility with respect to the child’s supervision, education, protection, or care. In these circumstances, the Court held, Quilloin had not grasped his opportunity to assert his constitutional rights, and due process did not require any more than a finding that the adoption and denial of legitimation were in the best interests of the child. 434 U.S. at 255.

The Court followed its Quilloin decision with Caban v. Mohammed, 441 U.S. 380, 60 L. Ed. 2d 297, 99 S. Ct. 1760 (1979). In Caban, a putative father challenged a New York statute that allowed an unwed mother to veto the adoption of her child by withholding consent but prevented an unwed father from doing so without showing the adoption was not in the best interests of the child. Appellant Abdiel Caban had developed substantial relationships with his 6-and 4-year-old children before the adoption proceedings began.

The Court held that New York did not have a compelling interest in treating Caban differently from the children’s mother and thus the statute violated equal protection. 441 U.S. at 394. Although the Court stated that a difference between maternal and paternal roles in the care of a newborn might justify distinct treatment, it suggested that any gender distinction between parents would become less acceptable as a basis for legislative line drawing as a child grows older. 441 U.S. at 388-89.

The analysis in Stanley, Quilloin, and Caban, which established that an unwed father who admitted paternity and had established a substantial relationship with his child would be able to protect his rights under due process and equal protection theories, provided the necessary stepping stones for the Court’s 1983 opinion in Lehr, 463 U.S. 248, which focused upon the right to notice in an adoption proceeding.

Jonathan Lehr, an unwed father, was not given actual notice of his 2-year-old child’s proposed adoption and sought to have it declared void because the lack of notice violated his constitutional rights to due process and equal protection. During his child’s life, Lehr did nothing to protect his legal interest; he filed no legal actions and did not file with New York’s putative father registry.

In discussing whether Lehr had a liberty interest, the Court reaffirmed its holdings in Caban, Quilloin, and Stanley, noting that a mere biological connection did not give rise to a liberty interest. Lehr, 463 U.S. at 261. Further echoing its previous holdings, the Court emphasized the natural father’s opportunity ripens into a liberty interest only when he “grasps that opportunity and accepts some measure of responsibility for the child’s future.” 463 U.S. at 262. The Court warned that if the father “fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child’s best interests he.” 463 U.S. at 262.

Throughout the opinion, the Court continued to emphasize the “constitutional importance of the distinction between an inchoate and a fully developed relationship.” 463 U.S. at 261 n.17. Comparing Stanley and Caban, in which the Court recognized a developed parent-child relationship, with Quilloin, in which the relationship was not recognized, the Court contrasted the strength of the resulting due process protection:

“When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘com[ing] forward to participate in the rearing of his child,’ [citation omitted], his interest in personal contact with his child acquires substantial protection under the Due Process Clause. . . . But the mere existence of a biological link does not merit equivalent constitutional protection.” 463 U.S. at 261.

The Court held Lehr did not have a fully protected interest, stating: “In this case, we are not assessing the constitutional adequacy of New York procedures for terminating a developed relationship. Appellant has never had any significant custodial, personal, or financial relationship with [his child], and he did not seek to establish a legal tie until after she was two years old.” (Emphasis added.) 463 U.S. at 262.

The majority did not expand upon the facts that gave rise to this conclusion. In contrast, the dissenting opinion focused upon Lehr’s efforts, discussing Lehr’s substantial attempts to develop a personal and financial relationship with his child and, albeit late, a legal relationship. The dissent explained that Lehr lived with the child’s mother during the pregnancy, and the mother acknowledged to friends and relatives that Lehr was the child’s father. After the child was bom, Lehr visited the hospital every day. The mother falsely told Lehr she had identified him as the child’s father on state forms.

Upon her discharge from the hospital, however, the mother thwarted any future relationship between Lehr and his child. Over the next 2 years, the mother attempted to conceal the child. Occasionally, Lehr would locate the mother and child, at which times he would visit the child to the extent the mother would allow. Each time, the mother would move again. At one point Lehr hired a detective agency when he was unable to locate his child. Through these efforts, he again made contact and learned that the mother had married. At that point, the mother threatened Lehr with arrest if he did not stay away. As a result, Lehr hired an attorney and requested visitation. During this time, Lehr’s offers of financial assistance had been refused.

As soon as Lehr threatened legal action, the mother’s husband initiated adoption proceedings with the mother’s consent. Lehr was not given notice of the proceeding, and, in a different court, he filed a petition requesting a determination of paternity, an order of support, and reasonable visitation privileges. At some point before the adoption was finalized, the mothers attorney advised the judge of the pending paternity action. The judge in the adoption proceeding stayed the paternity action, and, as a result of the stay, Lehr became aware of the adoption proceeding. Lehrs attorney then called the judge in the adoption proceeding and was advised the adoption had been finalized earlier in the day.

Apparently, none of these facts was relevant to the majority’s determination of the case because the majority did not mention Lehr’s efforts to establish a relationship with his child or the mother’s efforts to thwart the development of the relationship; the majority noted only that Lehr had not filed with New York’s putative father registry or otherwise protected his legal rights until after the adoption was filed. The Supreme Court’s focus was upon whether the state of New York had “adequately protected his opportunity to form such a relationship.” 463 U.S. at 262-63.

Considering New York’s statutes regarding notice requirements in adoption proceedings, the Supreme Court concluded the provisions adequately protected putative fathers and were designed to include “putative fathers who are likely to have assumed some responsibility for the care of their natural children. If this scheme were likely to omit many responsible fathers, and if qualification for notice were beyond the control of an interested putative father, it might be thought procedurally inadequate.” 463 U.S. at 263-64. The classifications into which most responsible fathers were deemed to fall included men who had married the mother, had been identified as the father by the mother in a sworn statement, had filed with the putative father registry, had been adjudicated as the father, had been identified as the father on the birth certificate, or had lived with the mother and child and held himself out as the father. Lehr was not a member of any of those classes.

Of these various classifications and available remedies, the district court had focused upon Lehr’s failure to file with New York’s putative father registry, a remedy totally within his control, and concluded he was not entitled to notice because he had not registered. On appeal, the Supreme Court concluded that imposing a registration requirement was not “arbitrary” because strict compliance with the procedure furthered the State’s legitimate interest in facilitating adoptions. The court noted an open-ended notice requirement would burden adoptions, threaten the unwed birth mother s privacy, and impair the finality of adoptions. Given those goals, the Court rejected an argument that ignorance of the registry should excuse the failure to file a putative father notice. 463 U.S. at 264-65.

Ultimately, the Supreme Court determined there were steps that Lehr could have taken that made “the right to receive notice . . . completely within [Lehr’s] control,” and his failure to take advantage of available legal procedures doomed his assertion that he had fully seized the opportunity to establish a relationship with his child. See 463 U.S. at 264; see also Quilloin, 434 U.S. 256 (holding Georgia statute requiring unmarried father to legitimate child in order to have veto authority over adoption did not deprive him of due process or equal protection rights).

The Court also rejected Lehr’s equal protection claim, reasoning that Lehr and the child’s mother were not similarly situated because the mother had had a custodial relationship with the child while Lehr had not. Lehr, 463 U.S. at 267-68.

Newborn Adoption Cases

Although Lehr and the other decisions of the Supreme Court provide guidance, none address a newborn adoption, leaving it to the state courts to determine how to measure whether a putative father of a newborn child has fully and completely grasped his opportunity to parent. See Note, He Said, She Said: Diverging Views in the Emerging Field of Fathers’ Rights, 46 Washburn L.J. 163, 180 (Fall 2006) (“Although the Supreme Court has offered guidance in cases involving unwed fathers and older children, it has been slow to address the rights of unwed fathers in newborn adoptions. . . . The Court’s reluctance suggests that it is currently 'unwilling to address the question of whether an unwed father has a legal interest in — and thus the right to veto the adoption of — a child he sired out of wedlock and with whom he has not yet had an opportunity to develop a relationship.’ ”); Resnik, Seeking the Wisdom of Solomon: Defining the Rights of Unwed Fathers in Newborn Adoptions, 20 Seton Hall Legis. J., 363, 389-90 (1996) (“The Supreme Court has avoided addressing the issue of newborn adoptions in its past unwed father decisions. . . . [Rjecent refusals to grant certiorari in [such] cases . . . indicate that the Supreme Court remains unwilling to address the question of whether an unwed father has a legal interest in — and thus the right to veto the adoption of — a child he sired out of wedlock and with whom he has not yet had an opportunity to develop a relationship” and “[t]he Supreme Court’s obstinacy has left the states wide latitude in crafting solutions to the dilemma posed by unwed fathers and newborn adoptions.”).

Two of the first newborn adoption cases to apply Lehrs requirement that the putative father must have taken some measure of the responsibility for the child’s future were Matter of Baby Girl S., 141 Misc. 2d 905, 535 N.Y.S.2d 676 (1988), aff'd without op. 150 A.D.2d 993, 543 N.Y.S.2d 602 (1989), aff'd sub nom. Matter of Raquel Marie X., 76 N.Y.2d 387, 559 N.Y.S.2d 855, 559 N.E.2d 418, cert. denied sub nom. Robert C. v. Miguel T., 498 U.S. 984 (1990), and its companion, Matter of Raquel Marie X., 76 N.Y.2d 387.

New York’s highest court, considering the consolidated appeal of the two cases, first compared Caban with Quilloin and Lehr. From those cases, the New York court discerned that “it is apparent that the biological parental interest can be lost entirely, or greatly diminished in constitutional significance, by failure to timely exercise it or by failure to take the available legal steps to substantiate it.” 76 N.Y.2d at 402. Based upon this concept, the New York court concluded that the father of a newborn child is entitled to constitutional protection of his rights “so long as he promptly avails himself of all the possible mechanisms for forming a legal and emotional bond with his child.” (Emphasis added.) 76 N.Y.2d at 402; see also Matter of Robert O. v. Russell K., 80 N.Y.2d 254, 263, 590 N.Y.S.2d 37, 604 N.E.2d 99 (1992) (father must “ promptly take[] every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his child’ ”). In Matter of Baby Girl S. and Matter of Raquel Marie X., the court determined the putative fathers in both cases had met this standard. 76 N.Y.2d at 402-03.

The tests formulated by other courts have been similar, although most have stopped short of the New York requirement that all available opportunities must have been seized. E. g., Adoption of Kelsey S., 1 Cal. 4th 816, 849, 4 Cal. Rptr. 2d 615, 823 P.2d 1216 (1992) (father must “promptly come forward and demonstrate a full commitment to his parental responsibilities”); In re Adoption of B.G.S., 556 So. 2d 545, 550 (La. 1990) (father of newborn child must “demonstrate that he is fit and committed to the responsibilities of parenthood” and “show that he has taken concrete actions to grasp his opportunity to be a father”); Heidbreder v. Carton, 645 N.W.2d 355, 372-73 n.12 (Minn.), cert. denied 537 U.S. 1046 (2002) (father must “affirmatively demonstrate a commitment” to parenting responsibilities; merely maintaining contact with mother by e-mail, contacting attorney, and attempting to locate mother does not indicate an “intent to rear the child”); In re Dixon, 112 N.C. App. 248, 251, 435 S.E.2d 352 (1993) (father must discover birth of child and take statutory steps to demonstrate his commitment to child); In re Baby Boy K., 546 N.W.2d 86, 97 (S.D. 1996) (“Because children require early and consistent nurturing of their emotional as well as physical needs, an unwed father must act quickly to grasp the opportunity interest in his biological child.”); In re Adoption of B.V., 33 P.3d 1083, 1086 (Utah App. 2001) (unwed biological father “ ‘ “must fully and strictly comply” with statutory conditions or “ ‘ “is deemed to have waived and surrendered any right in relation to child” ’ ”; he must initiate proceeding to establish paternity, and if he has knowledge of the pregnancy, pay reasonable amount of expenses); In re C.L., 178 Vt. 558, 560-61, 878 A.2d 207 (2005) (father must assume responsibilities in “reasonable” time and reasonableness judged from the perspective of the child’s needs); Pamess, Participation of Unwed Biological Fathers in Newborn Adoptions: Achieving Substantive and Procedural Fairness, 5 J. L. & Fam. Stud. 223, 229-30 (2003) (“paternity standards often require that proof of biological ties be accompanied by some conduct prior to birth or around the time of birth that evinces "a settled purpose to assume parental duties’ ”; “unwed fathers who step up at birth to raise their children can be too late, as they may have failed to provide adequate prebirth support, at times even [though] their attempts were thwarted by unwed mothers”); Buchanan, The Constitutional Rights of Unwed Fathers Before and After Lehr v. Robertson, 45 Ohio St. L.J. 313, 364 (1984) (“The need for early assurance of permanence and stability is an essential factor in the constitutional determination of whether to protect a parent’s relationship with his or her child. The basis for constitutional protection is missing if the parent seeking it does not take on the parental responsibilities timely.”).

The outcomes in these cases are not perfectly consistent, given variability in fact situations and state laws. See Pamess, 5 J. L. & Fam. Stud, at 237. Some states limit the time period during which an adoption can be set aside, regardless of the circumstances; some require statutory compliance with procedures such as filing with a putative father registry; and others specify criteria to be used in judging motions to set aside.

Despite these differences, as we synthesize these holdings, common factors emerge. In general, a putative father has a liberty interest affording a right to notice of proceedings to adopt his newborn child if he: (1) diligently took affirmative action that manifested a full commitment to parenting responsibilities and (2) did so during the pregnancy and within a short time after he discovered or reasonably should have discovered that the biological mother was pregnant with his child.

Regarding the first factor, to determine if a natural father of a newborn child has taken diligent, affirmative action, courts measure the putative father’s efforts to make a financial commitment to the upbringing of the child, to legally substantiate his relationship with the child, and to provide emotional, financial, and other support to the mother during the pregnancy. Following the holdings in Quilloin and Lehr, often courts have required the father to use those legal mechanisms within his control that would entitle him to notice under the state’s statutes, i.e., acknowledge or prove paternity, agree to a support order, or file with a putative father registry, and have done so even if a statute does not specify that adherence is required. E.g., Allen v. Allen, 48 F.3d 259 (7th Cir. 1995) (no constitutional infirmity in state court proceedings in which biological father was excluded because he had failed to establish parentage according to state law); In re Adoption of S.J.B., 294 Ark. 598, 745 S.W.2d 606 (1988) (failure of father to inquire into possibility of pregnancy or bring paternity action meant no due process interest); D.L.G., Sr. v. E.L.S., 774 S.W.2d 477 (Mo. 1989) (due process did not require notice of adoption where biological father failed to legally establish paternity); Friehe v. Schaad, 249 Neb. 825, 545 N.W.2d 740 (1996) (failure to file notice of intent to claim paternity within 5 days of child’s birth as required by statute curtailed father’s rights in adoption proceedings).

This principle has been applied in many cases where the father was unaware of the child’s existence. See, e.g., In re Adoption of S.J.B., 294 Ark. 598, 600, 745 S.W.2d 606 (1988) (although father unaware of child, notice of adoption proceeding not constitutionally required when “biological father was not interested enough in the outcome of his sexual encounter ... to even inquire concerning the possibility of her pregnancy”); In re Zacharia D., 6 Cal. 4th 435, 452-53, 24 Cal. Rptr. 2d 751, 862 P.2d 751 (1993) (biological father unaware of paternity until child 15 months old not constitutionally entitled to reunification services); In re Tinya W., 328 Ill. App. 3d 405, 409-10, 765 N.E.2d 1214, 1218 (2002) (court properly found father unfit based on failure to provide any financial or emotional support to child, despite father’s lack of awareness of paternity); In re Paternity of Baby Doe, 734 N.E.2d 281 (Ind. App. 2000) (State’s interest in child’s early permanent placement precludes father from contesting adoption when unaware of paternity, not timely included on putative father registry).

The second factor — timeliness or promptness of the father’s action — has been emphasized, often being cited as the most critical factor. In a newborn adoption, the father’s opportunity to make a commitment to parenting must have been grasped during the pregnancy and in a prompt and timely manner as measured by the fleeting opportunity availed to the father under the circumstances of the case, in other words, within a short time after he discovered or reasonably should have discovered that the mother was pregnant with his child.

The need for promptness reflects the reality of the newborn adoption situation; which provides the father with only a limited time in which to act. Petition of Steve B.D., 112 Idaho 22, 25, 730 P.2d 942 (1986). The necessity of promptness results from two primary considerations. First, in a newborn adoption case, the window of opportunity for a father to have grasped an opportunity interest is constrained by the biological reality that the mother bears the child during pregnancy. As one court noted, during a pregnancy a mother must make many important decisions including whether to have an abortion, prepare an adoption plan, or keep the child. Recognizing that the natural mother, in making these decisions, “may well need emotional, financial, medical, or other assistance,” the court concluded the natural father, as one of two people responsible for the pregnancy, must have “ ‘promptly’ demonstrated a ‘full commitment’ to parenthood during pregnancy and within a short time after he discovered or reasonably should have discovered that the biological mother was pregnant with his child.” Adoption of Michael H., 10 Cal. 4th 1043, 1054, 43 Cal. Rptr. 2d 445, 898 P.2d 891 (1995), cert. denied sub nom. Mark K. v. John S., 516 U.S. 1176 (1996). While a father cannot assume the physical aspects of pregnancy, he may assist with the financial and emotional aspects of the pregnancy and assure the mother of his commitment to fully assume parenting responsibilities both during the pregnancy and throughout the child’s lifetime, including being a sole parent if necessary.

The second reason a natural father’s actions must be timely was emphasized in Lehr v. Robertson, 463 U.S. 248, 263-64 n.20, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983): States have an interest in being able to determine as early as possible in a child’s life the rights, interests, and obligations of all parties, in eliminating the risk of unnecessary controversy that might impair the finality of an adoption, in encouraging adoptions, in protecting the adoption process from unnecessary controversy and complication, and in protecting the privacy and liberty interests of the natural mother and all parties to the adoption. As the California court stated in Adoption of Michael H.:

“[I]f an unwed father is permitted to ignore his parental role during pregnancy but claim it after birth, it will often be very difficult to know with certainty whether he will be able to successfully contest an adoption until after the child is bom. This uncertainty could well dissuade prospective adoptive parents from attempting to adopt the children of unwed mothers who . . . have chosen for whatever reason not to keep their child and raise it themselves. And that result would frustrate the state’s clear interest in encouraging such adoptions and providing stable homes for children. [Citations omitted.]” 10 Cal. 4th at 1056.

In addition, the finalization of an adoption gives rise to a legal relationship between the adoptive parents and the child, creating liberty interests. See Smith v. Organization of Foster Families, 431 U.S. 816, 844 n.51, 53 L. Ed. 2d 14, 97 S. Ct. 2094 (1977) (adoptive parenthood is “legal equivalent of biological parenthood”); K.S.A. 38-1111 (“parent and child relationship” defined as “the legal relationship existing between a child and the child’s biological or adoptive parents”).

In this case, M.P. did not diligently take affirmative action that manifested a full commitment to parenting responsibilities during the pregnancy and within a short time after he discovered N.T. was pregnant with his child. In fact, M.P. does not suggest he took affirmative steps that demonstrated his commitment to parenting. His only suggestion regarding his assumption of parental duties is a statement in his brief that “N.T. knew M.P. would have done anything N.T. asked to support her during her pregnancy.” However, standing ready and being willing to provide support is insufficient; parenting responsibilities must be assumed; affirmative action must be taken. Furthermore, the record does not evidence any support, financial or otherwise, being provided, with the exception of some insignificant financial payments of $200 for airfare and “$20 here, $20 there.”

Tellingly, M.P. offers no explanation of his failure to act during the time between his learning of the pregnancy and N.T.’s he about the abortion, the period when N.T. was making decisions regarding adoption. Later, there was no attempt to locate N.T., confirm the pregnancy, substantiate his legal rights, or take other action even though the district court found that M.P. “should have known and did suspect [N.T.] was still pregnant with his child and she gave birth to his child.”

M.P. failed to grasp the fleeting opportunity available to him to establish a firm commitment to parenting.

Fraud

M.P. suggests, however, that these considerations do not apply when the father’s ability to commit to fatherhood is thwarted by the mother’s actions. He suggests the calculus changes from a biology-plus-developed-parenting-relationship formula to a biology-plus-fraud formula when the natural mother is an active agent in preventing actual notice to the natural father.

This issue has not been addressed directly by the United States Supreme Court. Clearly though, in Lehr, the majority did not consider the mother’s efforts to thwart the father as even deserving of mention. In contrast, the mother’s actions were a focus of the dissenting opinion and explain much of the difference in analysis between the two opinions. Nevertheless, the Lehr majority did note “[t]here is no suggestion in the record that [the mother] engaged in fraudulent practices that led [the father] not to protect his rights.” 463 U.S. at 265 n.23. Thus, the question of whether fraud would change the Supreme Court’s view was left unanswered.

State courts have faced the issue, however. The cases reflect that mothers, with some frequency and for a variety of reasons (many of which are very weighty), fail to provide information regarding the putative father or provide inaccurate information. Gonzalez, The Rights of Putative Fathers to Their Infant Children in Contested Adoptions: Strengthening State Laws that Currently Deny Adequate Protection, 13 Mich. J. Gender & L. 39, 67-68 (2006) (discussing personal safety, privacy interests of mother, and other considerations). When this happens, competing interests are pitted against each other, including the mother’s constitutionally protected privacy interest. See Evans v. S.C. Dept. of Social Security, 303 S.C. 108, 110, 399 S.E.2d 156 (1990); Note, The Unwed Father and the Right to Know of His Child’s Existence, 76 Ky. L. J. 949 (1988); Gonzalez, 13 Mich. J. Gender & L. at 67-68.

Although there are variances, in general, the cases have not focused upon the natural mother’s intent, the reason she was not forthcoming, whether the fraud was concealment by silence (simply failing to inform the father or the court of information) or active (knowingly misstating information), or whether the fraud was intrinsic or extrinsic. Rather, the analysis has focused upon whether the State is justified in ending the putative father’s opportunity to develop a relationship and in recognizing the finality of the adoption even though the father’s opportunity was burdened and truncated by the birth mother’s fraud.

In general, the cases conclude that as long as the state’s statutes provide a process whereby most responsible putative fathers can qualify for notice in an adoption proceeding, the interests of the State in the finality of adoption decrees, as discussed in Lehr— providing a child stability and security early in life, encouraging adoptions, protecting the adoption process from unnecessary controversy and complication, and protecting other parties’ privacy and liberty interests — justify a rule that a putative father’s opportunity to develop a parenting relationship ends with the finalization of a newborn child’s adoption even if the reason the father did not grasp his opportunity was because of the mother’s fraud. See Lehr, 463 U.S. at 264-65.

This conclusion is supported by the decision in Matter of Robert O. v. Russell K., 80 N.Y.2d 254, 590 N.Y.S.2d 37, 604 N.E.2d 99 (1992). In that case, New York’s highest court concluded a putative father who had assumed no responsibility during a pregnancy did not have a due process interest even though the father was unaware of the child’s birth until after the adoption had been finalized. The natural parents were living together at the time of conception but, soon thereafter, the father moved out and terminated contact with the mother. The mother did not inform the father of the pregnancy, apparently because she did not want him to believe she was trying to coerce him into reconciliation. The mother placed the child for adoption. Later, the natural parents reconciled and married. Then, 18 months after the birth and 10 months after the adoption was finalized, the mother ended her fraud by silence and told the father of his child. As in this case, once learning of his child’s birth, the father immediately and diligently took action to assert his legal connection with the child.

The New York court concluded, however, that this was too late and rejected the father’s suggestion that “the Constitution also protects the custodial opportunity of the ‘unknowing’ unwed father who does nothing to manifest his parental willingness before placement because he is unaware of the child’s existence.” 80 N.Y.2d at 262-63. The court emphasized that “the opportunity, of limited duration, to manifest a willingness to be a parent . . . becomes protected only if grasped.” 80 N.Y.2d at 265. The court concluded:

‘‘[T]he timing of the father s actions is the ‘most significant’ element in determining whether an unwed father has created a liberty interest. [Citation omitted.] States have a legitimate concern for prompt and certain adoption procedures and their determination of the rights of unwed fathers need not be blind to the ‘vital importance’ of creating adoption procedures possessed of ‘promptness and finality,’ promoting the best interests of the child, and protecting the rights of interested third parties like adoptive parents (Lehr v. Robertson, [463 U.S.] at 263-66 n.25). Recognizing those competing interests — all of which are jeopardized when an unwed father is allowed to belatedly assert his rights . . . the period in which the biological father must manifest his parental interest is limited in duration: if the father’s actions are untimely, the State can deny a right of consent. . . .

“To conclude that petitioner acted promptly once he became aware of the child is to fundamentally misconstrue whose timetable is relevant. Promptness is measured in terms of the baby’s life not by the onset of die father’s awareness. The demand for prompt action by the father at the child’s birth is neither arbitrary nor punitive, but instead a logical and necessary outgrowth of the State’s legitimate interest in the child’s need for early permanence and stability.” 80 N.Y.2d at 264.

In Matter of Robert O., the majority and concurring opinion debated whether the opportunity was a constitutionally protected interest subject to a balancing of interests under a traditional due process test or was merely an opportunity that became extinguished once the adoption was finalized. The majority adopted the latter view because the inchoate interest had never ripened into a liberty interest. 80 N.Y.2d at 265. Compare Lehr, 463 U.S. at 270 (White, J., dissenting) (criticizing majority for using weight rather than nature of interest at stake) with Wells v. Childrens Aid Soc. of Utah, 681 P.2d 199 (Utah 1984) (using balancing to determine strength of protection to be afforded biological father), and Adoption of Michael H., 10 Cal. 4th at 1055 (weighing various interests when determining whether father promptly and diligendy grasped opportunity to parent).

The South Dakota Supreme Court adopted a similar rationale in In re Baby Boy K., 546 N.W.2d 86 (S.D. 1996), a case where the natural mother misrepresented the natural father’s identity to the court:

“When a putative father is ignorant of his parenthood due to his own fleeting relationship with the mother and her unwillingness to later notify him of her pregnancy, the child should not be made to suffer. The trial court in this case was faced with a child who was unwanted by his mother and unknown to his father. After sixty days had passed and no one had asserted a paternal interest, the State’s obligation to provide this unwanted and unclaimed child with a permanent, capable, and loving family became paramount. [Father’s] assertion, another month later, that Mother should have told him if he happened to father a child, cannot overcome the State’s fully matured interest in protecting the child’s permanent home.

“We also note Mother’s alleged dishonesty was a private act in which the State was also deceived. [Father] cannot claim illegal state action where the State was itself a victim rather than a perpetrator. [Citation omitted.]” 546 N.W.2d at 101.

Yet another example of a case using a similar analysis is Petition of Steve B.D., 112 Idaho 22, a case relied upon by the adoptive parents in this case. In Steve B.D., the natural mother misrepresented the identity of the natural father to the court. The father was aware of the child’s birth, but the mother engaged in an elaborate scheme to hide the adoption proceeding from the father. At the same time, she hid the father’s identity from those involved in the adoption.

In considering whether the father had a liberty interest, the Idaho court did not allow the mother’s deceptions to serve as an excuse for the father’s failure to establish a relationship with his child:

“As previously observed, a violation of the Fourteenth Amendment cannot be premised upon the independent actions of a private individual. The essential fact is that [the father] failed to initiate either contact with the child or any legal actions to establish his interest, whether or not [the father] was to blame for these failures.” 112 Idaho at 26.

The court emphasized that an unwed father’s “fleeting opportunity may pass ungrasped through no fault of the unwed father or perhaps due to the interference of some private third party; nevertheless, once passed, the unwed father is left without an interest cognizable under the Fourteenth Amendment.” 112 Idaho at 25 (citing Lehr, 463 U.S. at 267-68).

Finally, the court noted that the adoption proceedings had progressed for 4 months by the time the father asserted his desire to parent the child. Balancing the various interests, the court concluded the adoption should not be set aside:

“By that point, the time had passed for [the father] to assert an interest in a relationship with the child sufficient to reverse the already well-advanced adoption proceedings and sever the already well-established bond between baby and adoptive parents. To effectively assert an ‘opportunity’ interest, an unwed father must act early in proceedings on custody and adoption. [Citation omitted.].” 112 Idaho at 26.

Almost 20 years later, in Doe v. Roe, 142 Idaho 202, 127 P.3d 105 (2005), the Idaho Supreme Court again rejected an unwed natural father’s assertion of his interest in his child because of his failure to establish his rights, either pursuant to statute or by timely establishment of a relationship. 142 Idaho at 206.

Roe involved a child bom during the mother’s marriage to a man other than the natural father. The mother and her husband were later divorced. During the divorce proceeding, the husband learned he was not the natural father of the child; he therefore filed an action to adopt the 4-year-old child and to terminate the parental rights of the natural father. At the mother’s encouragement, the natural father took a paternity test, which established that he was the child’s biological father. He then objected to termination of his rights, claiming he did not assert an interest earlier because he was unaware the child was his.

A magistrate judge determined that the absence of natural father’s previous contact with the child was “ legitimate’ ” and “ ‘for just cause, as [Father] believed the child was not his as he was repeatedly told so by [Mother].’ ” 142 Idaho at 205.

The Idaho Supreme Court reversed. The court relied upon its earlier analysis in Steve R.D. and determined the natural father’s opportunity interest had passed ungrasped. Roe, 142 Idaho at 206-07. It noted that there was no dispute that the natural father had engaged in regular sexual contact with the mother within a couple of weeks of the estimated date of conception, that the mother told the natural father by telephone immediately after she found out she was pregnant, and that he was aware when the child was bom. At a minimum, therefore, the natural father was aware of the strong possibility of his biological link to the child. Despite this, he “did absolutely nothing to definitively determine whether the child was his, pay support for the child and assert his parental rights” for 4 years. 142 Idaho at 206.

Under similar rationales, several other courts have rejected fraud or deception as a substitute for showing that a parenting relationship had been established by an unwed father. E. g., Matter of Juvenile Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137 (1994) (stating the requirement that an unwed father grasp his opportunity interest “includes investigating the possibility that the child might be his”); Adoption of G., 529 A.2d 809 (Me. 1987) (even though biological father sent letter approximately 3 weeks after birth to judge in adoption proceeding, court determined best interests of child weighed in favor of allowing child to stay with adoptive parents); State ex rel T.A.B. v. Corrigan, 600 S.W.2d 87, 91-92 (Mo. App. 1980) (holding mother had no obligation to reveal identity of father of illegitimate child placed for adoption where father had not asserted his paternity); Matter of Child Whose First Name is Baby Girl, 206 A.D.2d 932, 933, 615 N.Y.S.2d 800 (1994) (holding “the attempt by the father to measure the timeliness of his parental efforts from the date he contends he became aware of the existence of the child is not supported in law”); Matter of Adoption of A.M.B., 514 N.W.2d 670, 673 (N.D. 1994) (mother’s attempts to frustrate father’s visitation with illegitimate child do not alone excuse the noncustodial parent from efforts to build a relationship with the child); Hylland v. Doe, 126 Or. App. 86, 93-94, 867 P.2d 551, rev. denied 318 Or. 478 (Or. 1994) (ruling that mother’s concealment of newborn child’s whereabouts did not excuse father of his obligation to timely assert his paternity in accordance with Oregon law); Evans, 303 S.C. 108 (birth mother’s privacy interest in not revealing identity of biological father outweighs other interests; John Doe notice allowed).

Summarizing the rationale expressed in these cases, one commentator noted: “Blood gives the father the absolute first chance to perform the constitutional duties [of parenting]. If he fails, regardless of his blamelessness, the critical requirement of stability for the child precludes a second chance.” Buchanan, The Constitutional Rights of Unwed Fathers Before and After Lehr v. Robertson, 45 Ohio St. L.J. 313, 368 (1984).

On the other hand, there are cases in which courts have ruled in putative fathers’ favor. Generally, however, there was some circumstance that caused the interests to balance differently. For example, in some cases the adoption was not finalized or the adoptive parents were aware there were questions about the father’s identity when they assumed custody or shortly thereafter. See, e.g., In re Petition of Doe, 159 Ill. 2d 347, 350-51, 638 N.E.2d 181, cert. denied 513 U.S. 994 (1994) (when assuming temporary custody prospective adoptive parents knew birth mother was refusing to disclose biological father’s identity; and father’s-identity, desire to parent, and refusal to consent was known 57 days later). Similarly, if the father made efforts to provide financial or emotional support or to protect his legal interests but the attempts were futile because of factors outside his control, the balance may shift. See, e.g., Doe v. Queen, 347 S.C. 4, 552 S.E.2d 761 (2001) (court order prevented father’s contact with mother but father placed support payments in savings account); Nale v. Robertson, 871 S.W.2d 674 (Tenn. 1994) (father timely filed notice with putative father registry but adoption agency did not learn of notice; adoptive parents told of father’s identity 3 months after child’s birth). Rarely, however, have the mother’s actions alone been sufficient to shift the balance of interests to the point the court determined the State was not justified in ending the father’s opportunity to assert his right to parent.

Kansas Adoption Statutes

With this discussion of cases in mind, we turn to the Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 through K.S.A. 59-2144, and the specifics of this case.

The general rule of the Kansas Adoption and Relinquishment Act is that the consent or relinquishment of both known natural parents is required for an adoption. See K.S.A. 59-2129 (consent to adoption shall be given by living parents of child); K.S.A. 59-2124 (relinquishment of child to agency must be accompanied by form executed by both parents). Departure from this general rule is permitted only if specific statutory requirements are met. See In re Adoption of X.J.A, 284 Kan. 853, 881, 166 P.3d 396 (2007) (statutorily required consent prerequisite to district court jurisdiction to render valid adoption decree); In re Adoption of Trent, 229 Kan. 224, 228, 624 P.2d 443 (1981) (consent by the natural parents to adoption of their child is essential requisite to jurisdiction on part of court to render a valid decree of adoption; although invalidly acknowledged in Missouri before a Kansas notary public, where consent freely and voluntarily given and was executed in substantial compliance with statutory requirements, consent valid); In re Marsolf 200 Kan. 128, 131-32, 434 P.2d 1010 (1967) (“It is well settled that the consent by the natural parents to the adoption of their child, where required by statute, is regarded as an essential requisite to jurisdiction on the part of the court to render a valid decree of adoption.”) (citing In re Thornton, 184 Kan. 551, 337 P.2d 1027 [1959]; 2 Am. Jur. 2d, Adoption §§ 24, 70; 2 C.J.S., Adoption of Children §§ 18, 45c); In re Sharp, 197 Kan. 502, Syl. ¶ 2, 419 P.2d 812 (1966) (consent of natural parents required unless clearly proved facts warrant exception).

Here, N.T. relinquished custody to the adoption agency, but M.P. neither consented to the adoption nor relinquished custody. In such a case, K.S.A. 59-2136(e) requires a petition to terminate the father’s parental rights.

Addressing the right to notice of the proceedings, the statute provides that “[i]n an effort to identify the father, the court shall determine by deposition, affidavit or hearing” if any man (1) is a presumed father under K.S.A. 38-1114, (2) has been determined the father by a court, (3) would be considered a father as to whom the child is a legitimate child under any state’s laws, (4) has provided or has promised to provide support to the mother during the pregnancy or to the child after birth, (5) cohabitated with the mother at the time of conception or at birth, or (6) has formally or informally acknowledged or declared possible paternity. K.S.A. 59-2136(e).

These provisions, like the New York statutes considered in Lehr, place several mechanisms within a man’s control which, if exercised, entitle him to notice of adoption proceedings. In addition, these categories, like those in New York, are likely to cover responsible fathers who have stepped forward to assume parenting responsibilities.

There is no showing that any of these mechanisms was utilized by M.P., explaining why he bases his arguments on a constitutional, rather than statutory, right to notice.

New York Procedures

In addition to the Kansas procedures that were available to M.P., Kansas law grants full faith and credit to any proceedings or actions taken under the laws of another state. K.S.A. 38-1114(d). Hence, under the unique facts of this case, M.P. could have availed himself of legal protections available in New York — the state of his domicile, the location of the child’s conception, N.T.’s location when M.P. first learned of the pregnancy, and the location to which N.T. promised to return. This means M.P. could have utilized the putative father registry as discussed in Lehr, 463 U.S. 248. See Matter of Robert O., 80 N. Y.2d 254 (father who failed to, inter alia, register with putative father registry cannot vacate adoption even though unaware of child’s birth). In addition, New York allows paternity proceedings to be “instituted during the pregnancy of the mother.” 29A Judiciary, Family Court Act § 517 (McKinney 1999).

M.P.’s use of these procedures might not have guaranteed he would receive notice in Kansas. Yet, cases from other jurisdictions illustrate that a putative father may develop a liberty interest or at least strengthen his argument that he has a liberty interest by attempting to utilize the procedure of his home state even though the mother moved to another state.

For example, in Pena v. Mattox, 880 F. Supp. 567 (N.D. Ill.1995), both the father and mother were residents of Illinois. The mother was taken to Indiana to give birth, and the child was placed for adoption in Indiana. The father did not know of the child’s birth or the initiation of adoption proceedings. When he became aware of the adoption he brought an action for relief under 42 U.8.C. § 1983 and for other causes of action. The federal court granted the defendants’ motion to dismiss, finding the father did not have a liberty interest because he failed to seize opportunities to develop a relationship with his child. 880 F. Supp. 570-74.

In reaching this conclusion, the court concluded the fact the putative father “now may stand ready to accept the responsibilities of a father” was not a sufficient basis for the court to find a constitutionally protected liberty interest. 880 F. Supp. at 574. Instead, what was determinative was that the father failed to use the procedures of either Indiana or Illinois. The court noted the father could have brought a paternity action in Illinois, his home state, as soon as he was aware of the pregnancy and before the mother and her family prevented him from knowing about the child’s location or adoption. In addition, he had several procedures available to him in Indiana, including a registry and paternity proceedings. 880 F. Supp. at 572-73.

Responding to the father’s arguments regarding the procedural and substantive difficulties he would have faced if he pursued these procedures, the court stated:

“It is important to note that this Court does not measure the constitutional interests present in this case by asking whether [the father] could have successfully established and protected his parental rights, however defined or limited. In the proper analysis, our focus is on the process established and available to [the father] to assert his rights in Illinois and Indiana, not on whether [he] could have succeeded in obtaining custody, visitation or any other rights of a parent.” 880 F. Supp. at 573.

Ultimately, his failure to act promptly meant “he lost the wondrous opportunity and massive responsibilities of fatherhood.” 880 F. Supp. at 574.

In a second case involving the procedures of multiple states, Heidbreder v. Carton, 645 N.W.2d 355 (Minn. 2002), the mother moved from Iowa — where the child was conceived — to Illinois and later Minnesota — where the child was bom and placed for adoption. Although the mother maintained e-mail contact with the father, she did not tell him where she was and instmcted her family and friends not to give him any information about her location. The father was aware of the pregnancy and had expressed his desire that the child not be placed for adoption. The mother had told him she would never do this. The father met with an attorney to discuss visitation and child support, and the two of them discussed hiring a private investigator to find the mother. The father, however, took no steps to locate the mother. Nor did he initiate a paternity action or register with the Iowa Declaration of Paternity Registry.

In filling out the birth certificate information, the mother left blank the space for the father s name. Adoption proceedings were initiated, and the adoptive parents took the child home from the hospital. Thirty-one days after the child’s birth, the natural father learned of the birth. Through a website, the father learned of the Minnesota Fathers’ Adoption Registry and completed and mailed the necessary forms. The forms were postmarked 31 days after the birth; the law required fathers to register within 30 days of the birth. Alternatively, if a father filed a paternity action within 30 days of the child’s birth and the action was still pending at the time of an adoption, he would gain rights in the adoption. The father in Heidbreder had not taken this step.

Because the father had failed to avail himself of the legal remedies in a timely fashion, the Minnesota Supreme Court held he was not entitled to notice of the adoption proceeding. 645 N.W.2d at 366-67, 369-70. Although the focus of the decision was on the father’s failure to comply with Minnesota requirements, the court also noted that the father could have taken steps in his home state of Iowa to assert paternity. Exercising the option “would have put [the father] in a position to argue he established a sufficient commitment to warrant due process protections” even if there were procedural problems with fully prosecuting such an action in the mother’s absence from the jurisdiction. 645 N.W.2d at 376. The court also discussed the impact of the Iowa registry. The court noted that if the father had registered in Iowa he would not have automatically been entitled to notice in the Minnesota proceeding but, like with the paternity action, it might have created a due process interest. Although the court did not decide the question because the father had not registered in Iowa, it stated: “If registration with an adoption registry in any state is, by itself, sufficient to demonstrate a substantial commitment to the child, then arguably a putative father is entitled to due process protection regardless of whether state law recognizes such registration.” 645 N.W.2d at 376 n.16.

In contrast, where a father utilized the procedure of his home state, even though unsuccessfully, the court held he had established a liberty interest. In In re M.N.M., 605 A.2d 921 (D.C. 1992), the mother hid the location of the child and the adoption proceeding from the natural father. One week after the child’s birth, the father filed a paternity action which led to him deposing the natural mother and the child’s natural grandfather (the mother’s father) in a futile attempt to determine where the adoption proceeding was filed. Having a suspicion the proceeding was filed in the Washington, D.C., area, the natural father sent letters to judges in Maryland, Virginia, and the District of Columbia. Based upon these efforts and attempts to protect his legal rights, the court held the father had established a liberty interest. See 605 A.2d at 927-30.

Finalization of A. AT.’s Adoption

In this case, M.P. did not utilize the legal procedures available to him in New York, nor did he pursue any procedures in Kansas, either during the first trimester of thé pregnancy or later when he suspected that N.T. was still pregnant. Both states had. established processes sufficient to protect his interest.

Having failed to protect himself, M.P.’s right to notice was contingent upon N.T. advising the court of sufficient information to result in actual notice. Instead of assuring M.P. received notice, N.T., by affidavit, provided a surname other than M.P.’s as the putative father and, as a result, M.P. was not identified as a possible father of the child.

Following the statutory procedure, the district court fulfilled its obligation to determine by affidavit the identity of tire father. Neither the court nor the parties to the adoption — the adoption agency and the adoptive parents — had any way of knowing the affidavit or the information N.T. provided the GAL was false. Thus, to all concerned, a putative father was identified.

Once identified, the putative father is entitled to notice under K.S.A. 59-2136(e)(6) (notice be given to “every person identified as a father or a possible father”); see also K.S.A. 59-2136(f). Notice is to be provided by certified mail “or in any manner the court may direct.” K.S.A. 59-2136(f). Because an exact address for the identified father was not given by N.T., notice by publication was allowed.

The statute provides further:

“(g) If, after the inquiry, the court is unable to identify the father or any possible father and no person has appeared claiming to be the father and claiming custodial rights, the court shall enter an order terminating the unknown father’s parental rights with reference to the child without regard to subsection (h). If any person identified as the father or possible father of the child fails to appear or, if appearing, fails to claim custodial rights, such person’s parental rights with reference to the child shall be terminated without regard to subsection (h).” K.S.A. 59-2136(g).

In reliance upon this provision, after the court utilized the statutory procedures to identify the putative father, the adoption of A.A.T. was finalized based upon the court’s and parties’ belief that the father had been identified but had not appeared.

Under the statute, if a father does not appear, the father’s rights shall be terminated and, thereby, the adoption can be finalized. By calling for the termination of parental rights, the provision brings finality to the adoption.

A different procedure applies if the mother identifies the putative father, notice is given, and the father enters an appearance in the adoption proceeding. If the father appears and asserts parental rights, several rights attach, including the right to appointed counsel and a hearing regarding whether paternal rights can be terminated. K.S.A. 59-2136(h) defines the criteria to be applied in the termination proceeding.

When applying K.S.A. 59-2136(h), Kansas appellate courts have strongly endorsed the parental preference doctrine, required strict compliance, and diligently enforced the clear and convincing evidence standard. See, e.g., In re Adoption of X.J.A., 284 Kan. at 881; In re Adoption of Baby Boy B., 254 Kan. 454, 456, 866 P.2d 1029 (1994); In re Adoption of F.A.R., 242 Kan. 231, 747 P.2d 145 (1987); In re Adoption of Trent, 229 Kan. at 228; In re Adoption of Baby Girl S., 29 Kan. App. 2d 664, 667, 29 P.3d 466 (2001) aff'd 273 Kan. 71, 41 P.3d 287 (2002); In re Adoption of Baby Boy S., 22 Kan. App. 2d 119, 912 P.2d 761, rev. denied 260 Kan. 929, cert. denied 519 U.S. 870 (1996); In re K.D.O., 20 Kan. App. 2d 559, 889 P.2d 1158 (1995); In re Baby Boy N., 19 Kan. App. 2d 574, 874 P.2d 680, rev. denied 255 Kan. 1001, cert. denied 513 U.S. 1018 (1994); In re Lathrop, 2 Kan. App. 2d 90, 575 P.2d 894 (1978).

Although M.P. makes it clear the provisions of K.S.A. 59-2136(h) are not at issue in this appeal, his arguments imply that Kansas’ parental preference doctrine should be given weight even after the adoption is finalized. His position creates a tension with the rights of the adoptive family and the State because voiding the adoption would be in derogation of the matured rights of the State and the adoptive family. See K.S.A. 38-1111 (defining “parent and child relationship” as “the legal relationship existing between a child and the child’s biological or adoptive parents.”); see also Smith v. Organization of Foster Families, 431 U.S. 816, 844 n.51, 845-46, 53 L. Ed. 2d 14, 97 S. Ct. 2094 (1977) (noting adoption was the “legal equivalent of biological parenthood” and holding that “liberty interests may in some cases arise from positive-law sources” making it “appropriate to ascertain from state law the expectations and entitlements of the parties”).

Undoubtedly, the human and emotional tensions of this case are enormous, creating sympathy for M.P.’s position and little doubt about the sincerity of his present desire for custody. Nevertheless, the critical fact remains that the opportunity to assert his interest in parenting slipped away without any involvement of the State. The interests of the State and the adoptive family justify a conclusion that M.P.’s opportunity to demonstrate his commitment to parenting passed without developing into a liberty interest.

We hold that M.P. did not have a liberty interest in a relationship with A.A.T. and that the State did not deny him the opportunity to establish such a relationship. Consequently, we affirm the district court’s conclusion that the adoption is not void.

Issue 2: Must the adoption be set aside because of fraud?

M.P.’s first alternative argument for setting aside the adoption decree is based on K.S.A. 60-260(b)(3), which provides that “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party” can justify relief from a judgment. Fraud entitling a party to relief from a judgment under K.S.A. 60-260(b)(3) must be committed by an adverse party.

Although the typical standard of review for a district court’s application of the fraud rule under K.S.A. 60-260(b)(3) to a set of facts is abuse of discretion, see In re Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997); In re Marriage of Reinhardt, 38 Kan. App. 2d 60, 161 P.3d 235 (2007), we agree with M.P. that the question of whether N.T. was an “adverse party” involves statutory interpretation. This raises a preliminary question of law over which this court has de novo review. See In re K.M.H., 285 Kan. 53, 79-80, 169 P.3d 1025 (2007), cert. denied 129 S. Ct. 36 (2008).

M.P.’s argument that the “adverse party” language is meant to relate only to “other misconduct” and not to “fraud” is not persuasive. When this court is asked to interpret a statute, we first attempt to give effect to the intent of the legislature as expressed through the language enacted. If a statute is plain and unambiguous, as we find this to be, this court will neither speculate regarding legislative intent nor read the statute to add something not readily found in it. There is no need to resort to statutory construction. “It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent.” 285 Kan. at 79 (citing CPI Qualified Plan Consultants, Inc. v. Kansas Dept. of Human Resources, 272 Kan. 1288, 1296, 38 P.3d 666 [2002]; State v. Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 [2006]).

We see no ambiguity in the wording of K.S.A. 60-260(b)(3). It lists three ways in which relief from a court order may be obtained: fraud, misrepresentation, or other misconduct. Regardless of whether one reads the phrase “of an adverse party” to modify all three possibilities explicitly or only “other misconduct” explicitly, one ends up with the same interpretation. The legislature’s choice of listing implies equality among the elements in the list. The plain meaning of the words bears this out. Fraud certainly qualifies as misconduct; so does misrepresentation. “[Ojther misconduct of an adverse party” references the two other specifically stated types of misconduct. Its third position in the list also tells the reader that each of the three examples of misconduct in the list shares the modifying characteristic of the last, i.e., that it must be the misconduct “of an adverse party.”

We also note that the language of K.S.A. 60-260(b)(3) is identical to Rule 60(b) of the Federal Rules of Civil Procedure. Our interpretation is consistent with that of at least three federal circuit courts of appeals. See, e.g., Frederick v. Kirby Tankships, 205 F.3d 1277, 1287 (11th Cir. 2000) (to obtain relief under federal rule, the losing party must prove the prevailing party obtained verdict through fraud, misrepresentation, or other misconduct); Atkinson v. Prudential Property Co., Inc., 43 F.3d 367, 372-73 (8th Cir. 1994) (to prevail on motion to vacate judgment for fraud, movant must show, with clear and convincing evidence, that opposing party engaged in fraud or misrepresentation that prevented movant from fully and fairly presenting its case); Varden v. Danek Medical, Inc., 58 Fed. Appx. 137, 139 (6th Cir. 2003) (unpublished opinion) (not entitled to relief under federal rule because plaintiff s attorneys, of whose actions he complained, were not “adverse parties” to the action and motions were filed more than 1 year after court’s dismissal of judgment).

Adoptions are not perfectly analogous to the usual adversary proceedings in our courts. In this case, to the extent M.P. has an adverse party, that role is filled by the adoptive parents, who filed the petition for termination of M.P.’s parental rights. As noted above, the district court found that the adoptive parents and the adoption agency acted in good faith, and M.P. does not argue otherwise. N.T. had already voluntarily relinquished her parental rights and had surrendered custody of A.A.T. Under these circumstances, we affirm the district court’s decision that N.T. did not qualify as an “adverse parly” and that M.P. is not entitled to relief under K.S.A. 60-260(b)(3).

Issue 3: Must the adoption be set aside because of the discovery of new evidence?

M.P.’s second alternative argument is that K.S.A. 60-260(b)(2) allows a court to reheve a party from a final judgment when there is “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259.” K.S.A. 60-259 requires a motion for new trial within 10 days. Ten days after the final adoption decree, M.P. had not been told by N.T. of A.A.T.’s birth or adoption. Under K.S.A. 60-260(b)(2), newly discovered evidence must be so material that its introduction would have been likely to produce a different result. Further, M.P. bears the burden of proof to show that newly discovered evidence of N.T.’s lies and his fatherhood could not have been discovered before trial through his exercise of due diligence. See State v. Munyon, 240 Kan. 53, 63, 726 P.2d 1333 (1986); Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 8, 535 P.2d 865 (1975).

Our standard of review on this issue is abuse of discretion. In re Marriage of Hampshire, 261 Kan. at 862.

The district court denied relief under K.S.A. 60-260(b)(2) because, it said, M.P. “should have taken action to verify whether [N.T.] had an abortion.” M.P. asserts that “[tjhere was little, if anything, M.P. could have done to discover N.T. had lied to him about the abortion .... While the district court in its decision stated M.P. had numerous ‘red flags,’ there was simply no reasonable way for M.P. to determine whether N.T. was lying to him.”

Without addressing whether a party in M.P.’s position who did not participate in a proceeding can argue newly discovered evidence as a basis for relief from a judgment, we conclude the district court did not abuse its discretion in determining the natural father, by exercising reasonable diligence, could have discovered the natural mother’s he about obtaining an abortion and her concealment of the birth and adoption of their child. For example, M.P.’s explanation for not asking N.T.’s mother about the abortion was that he did not want to talk to someone who did not like him, which was what N.T. had reported in an effort to prevent the contact. Even though it may have been uncomfortable and awkward for M.P. to have talked to N.T.’s mother, he could have done so in an effort to verify or dispel his suspicions. Consequently, the evidence could have been discovered with minimal diligence, and M.P. is not entitled to relief from the judgment under K.S.A. 60-260(b)(2).

Visitation

Finally, we address M.P.’s recent motion for visitation pending resolution of this case. Based upon our ruling that M.P. has no continuing interest, the motion is denied as moot.

Affirmed.

Johnson, J., not participating. Hill, J., assigned.