The Appeals Court misapplied Lehr and Robert O. regarding the constitutionality of the PFR. The statutes involved in Lehr and Robert O. entitled an unregistered putative father to notice if the mother had identified him in a sworn written statement.10Lehr, 463 U.S. at Maj. n. 5 (citing then N.Y. Dom. Rel. Law §§ 111-a(2)(f) (McKinney 1977 and Supp. 1982-1983); Robert O., 604 N.E.2d at 101 (citing then N.Y. Dom. Rel. Law § 111-a(2)). The fathers in Lehr and Robert O. were unregistered and unidentified by the mother.11Lehr, 463 U.S. at 251-52; Robert O., 604 N.E.2d at 100-01. The fathers' rights were lost without hearings because they did not qualify for notice under the statute, and their lack of prompt action gave them no protection otherwise under the Due Process Clause.12Lehr, 463 U.S. at 264-65; Robert O., 604 N.E.2d at 103-04.
Here, the mother named the putative father. Naming the father outside the affidavit, then detailing his actions in the affidavit, should equate functionally to identifying him in a sworn written statement. It makes little sense to describe the specific father's actions about the dating relationship, lack of support, and last known phone number as being important, yet consider it critical that father’s name was communicated only orally. Thus, under Lehr and Robert O., the father here could well have been entitled to notice of the adoption petition, making due diligence to locate him required. In any case, neither Lehr nor Robert O. stands for the proposition that a "putative father registry" in itself fulfills due process. In fact, in Robert O., the New York Court of Appeals stated that the PFR and other statutory requirements presumed the father knew he had a child before the adoption was finalized, and the father lacked that knowledge.13604 N.E.2d at 101. Thus, the court did not find the father’s failure to register fatal. Id.
The purpose behind the PFR in Lehr and Robert O. was to locate and serve unidentified fathers. Perversely, the Appeals Court used the Texas registry to avoid finding an identified father. The trial court requiring due diligence was proper.
Erik L. Smith is a certified paralegal in Columbus, Ohio and an independent legal researcher for family law and personal injury attorneys. He has appeared on NPR, CNN, and PBS regarding adoption law and has published several of his articles on the internet and in hard copy publications such as Ohio Lawyer, Air Force Law Review, Probate Law Journal of Ohio, Adoption Today, and Midwifery Today.