The Government Hiding Children From Fathers: Ohio's "Safe Haven" Law and the Separation of Powers Doctrine
Erik L. Smith
Note: This is an amended version of the original 2005 article.
In 2001, Ohio enacted the Desertion of Child Under 72 Hours Old Act (DCA), the so-called safe haven law.1OHIO REV. CODE ANN. § 2151.3515 - 3530 (Anderson 2002). The DCA lets parents surrender their newborns anonymously to the state provided the infant is three days old or younger and unharmed.2OHIO REV. CODE ANN. §§ 2151.3515(A), 2151.3516, 2151.3517(A)(5) and (B), 2151.3523(B), 2151.3524, 2151.3527(B) (Anderson 2002). The law aims to "save the newborns of parents who cannot care for their children but fear the legal or social consequences of openly surrendering the child or being prosecuted for abandonment."3Ohio Attorney General's Reply to Motion to Dismiss at 4 in Smith v. Hayes No. 04-CVD-05-4975 (Franklin County), dismissed for lack of standing; affirmed at Smith v. Hayes 2005-Ohio-2961, 2005 Ohio App. LEXIS 2754 (Ohio Ct. App., Franklin County, June 16, 2005). The Act supposedly encourages mothers to transfer children safely instead of discarding them on a street corner or in a dumpster.4Id.
Because "safe haven" laws involve infants, they affect fathers disparately. Writers have opined that safe haven laws violate fathers' due process rights, present policy problems, and amount to bargaining with potential criminals.5See Dayna R. Cooper, Fathers Are Parents Too: Challenging Safe Haven Laws With Procedural Due Process, 31 HOFSTRA L. REV. 877 (Spring 2003); Karin Dwelle, Comment: Adoption Without Consent: How Idaho is Treading on the Constitutional Rights of Unwed Fathers, 39 IDAHO L. REV. 207 (2002); Memorandum in Support of Jurisdiction of Amicus Curiae La Coordination des Actions Pour le Droit à la Connaissance des Origines in Smith v. Hayes, Ohio Sup. Ct. Case No. 05-1318 (arguing that the DCA amounts to the state encouraging harm against third persons as a tool in bargaining with persons contemplating crime.) This note asserts that the DCA also violates the separation of powers doctrine.
The DCA is not an adoption law, but an emergency measure under the juvenile code. The mother therefore does not voluntarily surrender her newborn, but "deserts" him. Yet the Act is invoked only when the mother "voluntarily delivers the child to an emergency medical service worker, peace officer, or hospital employee without expressing an intent to return for the child."6OHIO REV. CODE ANN. §§ 2151.3515(A), 2151.3516(A) (Anderson 2002). The mother then has an absolute right to anonymity and to leave the area without pursuit.7OHIO REV. CODE ANN. §§ 2151.3524(A), 2151.3527(A) (Anderson 2002) (hereafter the "anonymity statutes.") Children's Services takes emergency custody, and moves for temporary custody within twenty-four hours or the next working day.8OHIO REV. CODE ANN. § 2151.3518 - 3520 (Anderson 2002), OHIO ADMIN. CODE § 5101:2-42-04(C-D) (2004). Physicians examine the child for abuse or neglect, and Children's Services requests searches of missing person databases.9OHIO REV. CODE ANN§ 5101:2-34-32.1(A)(4)(b) and (B)(4) (Anderson 2002).
Where the mother has used the anonymity right, the court need not give the father notice of the emergency hearing.10 OHIO REV. CODE ANN. § 2151.3519 (Anderson 2002). Instead, the father must speculate that his child was deserted, find the court, and get a DNA match at his own expense.11OHIO REV. CODE ANN. § 2151.3528 (Anderson 2002). Time constraints make temporary custody to the agency virtually automatic. A permanent custody request is mandatory, absent a compelling reason to do otherwise.12OHIO ADMIN. CODE § 5101:2-42-95(A)(2) (2004). After permanent custody is granted, the child becomes available for adoption. As of November 29, 2005, thirty-seven infants had been surrendered under the DCA.13Ohio Dept. of Job & Family Services, News release: http://jfs.ohio.gov/releases/rl112905.stm. (Last visited February 4, 2006).