A young man sits in a small room at the Division of Child & Family Services in American Fork, Utah, 30 miles south of Salt Lake City. Behind a mirror on the wall, a caseworker is watching. A camera records his every move. He is waiting to spend a precious hour with his 1-year-old daughter.
He has been told that he may not ask where his daughter is living. The location of her foster home is secret. He may not ask how she is being treated, whether she misses him, if she is frightened. Even if he could ask, his daughter is too young to answer him.
What he has not been told is that this may be the last time he will hold his baby girl. This might be the last memory of her that he will ever have, sitting in a room, being watched through one-way glass. He may never see her again.
Jose Vargas was never married to the mother of his child. They ended their three-year relationship before the birth of their daughter, M, in July 2014. But Jose was actively involved in caring for his baby girl from the day she was born. He recalls driving mother and baby home from the hospital, amazed at how M looked exactly like photos of him as a baby. “I could not let her leave my hands,” Jose writes in an email. “I just stayed with her and my baby’s mom, changing her and feeding her. I’d wake up next to them and fall asleep with them.”
Throughout her infancy, M spent most weekends at Jose’s apartment. He bought diapers, clothes, and other baby supplies, careful not to provide cash that could be used to fuel her mother’s struggles with substance abuse. He describes himself, then and now, as “completely focused” on his baby girl and thrilled to be a father.
In May 2015, at 10 months old, M was removed from her mother’s care by Utah’s Division of Child & Family Services (DCFS). According to juvenile court documents, her mother’s substance abuse had begun to involve the police, and the court determined that the state of Utah should take custody of her. M was placed in foster care, and her mother was offered “reunification services”: a road map of requirements to regain custody, which involved treatment for addiction, maintaining stable employment, and random drug testing.
In the weeks that followed, Jose scrambled to navigate the juvenile court system, attending hearings and meetings with DCFS, driving M’s mother to supervised visits, while maintaining his job as a construction worker. Jose was shocked to discover that under Utah’s strict laws for unmarried fathers, he had virtually no parental rights to M.
Jose was not named on M’s birth certificate, although in Utah and many other states, even this would not have established his paternity. He needed to file a Voluntary Declaration of Paternity, a document that creates a legal relationship between an unmarried father and his child. Jose made two unsuccessful attempts to file the declaration at Utah County’s Vital Records office. (The form must be signed and witnessed by both parents, and M’s mother was hard to pin down.) According to court records, in the fall of 2015, M’s mother was briefly jailed on charges that included attempted assault and criminal mischief.
Since M’s mother was unable to meet the mandated goals for reclaiming her daughter, the state of Utah was now instructed by law to begin terminating her parental rights. (M’s mother, currently an inmate at the Utah County Jail, was contacted during the reporting of this article but declined to comment.) As M’s mother began to fall out of contact with Jose and DCFS, Jose reached out to the caseworker to arrange his own visitation schedule. To his surprise, the caseworker refused. Jose would not be allowed any contact with his daughter unless her mother continued to be present, because legally he was not her father. To the state, he was no one.
Legally he was not her father. To the state, he was no one.
Because Jose was not considered M’s father, he also did not qualify for a public defender. In order to win the right to see his daughter, he would have to hire a private attorney, and it took him until December to gather the necessary funds to do so. Just over six months after M’s removal from her mother’s home, Jose was able to file a Petition for Paternity and Custody. He believed he was acting with M’s mother’s cooperation, that she would agree to his wish to raise their daughter.
But at a juvenile court hearing that month, the judge announced a “permanency goal”: M would be placed for adoption. Jose was sitting in the same room, listening helplessly as his daughter’s future was decided.
Six weeks later, M’s mother chose to voluntarily relinquish her parental rights, making M available for adoption. Jose’s Petition for Paternity had not yet been granted, and he was powerless to stop the adoption process. M was offered to her mother’s relatives across the country in Indiana.
“I never saw that coming, that she would give away her daughter,” Jose says in a phone interview from his home in Utah County. “Why would you give away your daughter? I don’t know what she was thinking.… I helped her. My family tried helping her. She just didn’t want our help. She doesn’t want anybody’s help.”
Parental rights are considered fundamental and protected by the Constitution, according to the United States Supreme Court. In a series of cases, beginning as early as 1923 and occurring as recently as 2000, the Supreme Court has upheld that parental rights fall under the Due Process Clause of the Fourteenth Amendment and that states are forbidden to interfere in the parent-child relationship without a compelling reason. But in reality, each state has the power to determine that “reason” and to define the rights of unmarried fathers.
Jose Vargas is the victim of circumstances that family law attorney and part-time public defender Caleb Proulx says he has seen over and over in Utah. (Proulx is representing Jose Vargas in the custody case as a private attorney.) When a child is removed from an unmarried mother, the state will often work aggressively to place that child with an adoptive family rather than with her own father. “Unlike a lot of other areas of law where there’s a fair amount of discretion and there’s a fair amount of forgiveness,” he says, “if you’re an unmarried biological father and you miss a step, no matter how insignificant, if the court doesn’t really think you ought to be in the child’s life, you’re gone.”
The “steps” Proulx is referring to are the many requirements and documents involved in establishing paternity in Utah. Biological fathers may take legal action (often involving genetic testing) or file the Voluntary Declaration, but they must also file court petitions and notices of those petitions; they must serve documents to various people and submit an extremely detailed affidavit outlining their caregiving plans. Even married fathers have been forced to go to court if mothers seek adoption without their knowledge or consent. Needless to say, it is almost impossible for an unmarried father to win custody or even visitation rights without the help of an attorney.
In Utah (and many other states), the burden is on the father to take legal action to prevent an adoption that he may have no idea is happening.
Many biological fathers argue that Utah’s “pro-adoption” policies put them at a dramatic disadvantage. Utah’s laws are some of the most adoption friendly in the country, earning the state a reputation as a “baby warehouse.” In Utah (and many other states), the burden is on the father to take legal action to prevent an adoption that he may have no idea is happening. An unmarried mother is, in some cases, under no obligation to inform her child’s father that she intends to begin an adoption process, or even that a child exists. Under Utah’s Adoption Act, a father of a child under six months of age may have only one business day after his child’s birth to complete all paperwork before losing his parental rights.
In recent years, several cases have drawn national attention and indicated a pattern of unethical practices by adoption agencies, including fraud, coercion, and even cash payments to pregnant women. While many juvenile court cases are sealed, Utah fathers have begun to publicize their claims of unfair treatment. In January 2014, 12 fathers filed a federal lawsuit against the state of Utah, alleging that the “incomprehensible legal mandates and nearly impossible deadlines” of the Adoption Act permit “legalized fraud and kidnapping.” The class-action suit was dismissed. In November of the same year, the Utah Supreme Court upheld a case denying paternity to a father who had submitted all the required paperwork except for a single affidavit. Other fathers have had somewhat more success, such as Robert Manzanares, who hopes to win primary custody of his daughter in January after fighting a legal battle against her adoption for more than eight years.
Utah and other “pro-adoption” states often justify their approaches by using the concept of the child’s “best interest.” This sounds harmless enough, but the danger lies in the inconsistent ways in which “best interest” is determined. Each state provides lists of factors that should be considered, such as the importance of family integrity or the child’s health and safety. Only three states also list factors that should not be considered. Delaware, for instance, is the only state that actually forbids courts to discriminate against a parent because of his or her sex. Utah’s statute contains very few specifics.
The court has, so far, refused to grant Jose’s petition for custody, although his paternity has now been established. The state of Utah has challenged that decision on a technicality and continues to pursue M’s adoption. Currently, the Utah Court of Appeals is scheduled to hear oral arguments regarding the juvenile court’s authority to grant Jose’s paternity on January 20, 2017. Jose’s requests to visit his daughter are still being denied. (A spokesperson for the Utah Attorney General’s Office declined to comment because the case is still pending.)
Jose does not claim to be a perfect parent. He has a criminal record—four arrests for minor charges, including consumption of alcohol by a minor and intoxication—that he attributes to a misguided period during his late teens and early twenties. (The issue of Jose’s record has not been raised in the custody case beyond one reference in M’s mother’s juvenile court adjudication.) But he maintains that he is a fiercely devoted parent.
As he waits for a decision, Jose dreams about a time when M will play with his nieces and nephews or enjoy the playroom he has made for her in his home. He imagines teaching her to play soccer and seeing her face every day instead of the photos he has saved on a CD.
“When I get her back, she’s going to be a lot bigger. I still want my baby back.”
In the meantime, M remains in foster care, and Jose juggles work and court hearings and school. He is training to become a nurse, hoping to get a more stable job to provide for the two of them. Overwhelmed by legal fees that have already exceeded $25,000, Jose has set up a GoFundMe account where supporters can make donations. He has only been able to cover about $5,000 so far. He believes the state of Utah is trying to run out the clock, with the goal of exhausting him financially so he’ll give up.
But giving up is not what worries Jose. He worries that when M is finally returned to him, he will have missed out on her first steps and her first words, that those moments of babyhood will have passed. “When I get her back, she’s going to be a lot bigger,” Jose says. “I still want my baby back.”
Sarah Yahr Tucker is a freelance writer who lives in Los Angeles with her husband and daughter.
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