A 4th District Court judge says he is "astonished and deeply troubled" by a Utah adoption agency's deliberate move to circumvent the rights of a married man whose daughter was adopted at birth without his knowledge.
The Provo judge, while noting the birth mother had deceived her husband, the adoption agency and the prospective parents, has given the adoptive couple 60 days to give the child back.
In a 48-page ruling, Judge Darold McDade said the Adoption Center of Choice's policy of refusing to disclose any information to Terry Achane once he learned what had happened to his baby is "utterly indefensible."
Salt Lake City attorneys Mark and Scott Wiser, the father/son team that represented Achane, used even stronger language for what occurred.
"This is a case of human trafficking," said Mark Wiser. "Children are being bought and sold. It is one thing what [adoption agencies] have been doing with unmarried biological fathers. It is in a new area when they are trying to take a child away from a married father who wants to have his child."
Jared and Kristi Frei, the adoptive parents, declined to comment, as did Kasey Wright, their former attorney, and Larry Jenkins, newly hired to represent the couple. James Webb, executive director of the Adoption Center of Choice, based in American Fork, did not return a call from The Salt Lake Tribune. The Tribune attempted to reach Tira Bland, the birth mother who is now divorced from Achane, but was unsuccessful.
On a blog about the case, where the Freis have raised more than $20,000 to help with legal bills, they vow to appeal McDade's decision, describing the arrival of Achane's daughter in their lives "a righteous desire blessed to fruition by God."
"We have not lost our conviction that we are in the right!!!!!!" Kristi Frei wrote after McDade's Nov. 20 ruling dismissed their adoption petition. "We have only ever wanted to do right by Leah, and have always felt we have been acting in her best interest to keep her with our family and raise her as our own. Our hearts have demanded it there has never been any question to us that she is OURS!!!"
Achane, 31, still finds the position he is in hard to believe and just wants the baby girl he has met just twice and calls Teleah, the name he picked out before her birth, back.
"I am not a very religious person," he said in an interview Friday, "but 'Thou shalt not steal.' If they prolong it, that is more time away from my daughter. There are precious moments I can't get back. ... It has been a year and a half now. There is no court order saying they have the right to my child. I just won the case. I want to get my daughter and raise my daughter."
Texas marriage • Achane and Bland, both then residents of Texas, married in February 2009 and learned around late June 2010 that Bland was expecting their first child. Achane, who is in the U.S. Army, accompanied his wife to prenatal visits and was there when an ultrasound revealed they were having a girl. They shared a joint bank account and Achane carried Bland and her daughter from a previous relationship on his military health insurance, which he also expected would cover the new baby.
In the fall 2010, Achane accepted a job as a drill instructor at Fort Jackson in South Carolina and was ordered to report for duty no later than Feb. 1, 2011.
But the couple began having marital problems that December and, according to the ruling, Bland was concerned she would end up a single mom with two children. Bland suggested she either have an abortion or pursue an adoption. Achane objected to both options.
The couple continued making plans to move to South Carolina, but their marital troubles continued. At one point they separated to have a "cooling-off period." They also sought counseling.
In January, Bland told her husband she wanted to remain in Texas, where she has family, for their daughter's birth. Achane was to return for the birth, after which Bland and their daughter would join him in South Carolina. He left Texas on Jan. 17, 2011, anticipating what he thought would be a short separation.
"I had already gotten clearance to come back when the baby was on the way," he said.
But about 10 days after Achane left to set up a new home for his family, Bland decided to proceed with an adoption. She contacted the Adoption Center of Choice, which in mid-February brought Bland to Utah to give birth.
Although Achane continued to give Bland money and make mortgage and utility payments on their Texas home, by that point he was unable to reach his wife by telephone. He had no idea what was transpiring.
Utah birth • Teleah was born March 1, 2011, more than two weeks premature, at Mountain View Hospital in Payson.
Two days later, Bland relinquished her parental rights and the infant was placed with the Freis. At the time, Bland claimed her husband had abandoned her and was not interested in raising the child, according to the ruling.
Bland told the Adoption Center of Choice it could reach her husband in Texas, though she knew he was in South Carolina and thus would not receive any legal notices sent to his former address. Bland also apparently withheld Achane's telephone number from the agency and later claimed she did not contact him about the birth because her phone wasn't working.
The adoption agency informed the Freis that the father did not know his daughter had been placed for adoption in Utah and it was likely he would contest the placement if he found out. The Freis, the judge noted in his ruling, "acknowledged this risk but decided they wanted to proceed forward with the adoptive placement anyway."
In mid-March, unable to reach his wife, Achane asked a friend to drive by their Texas home; he was told it appeared vacant. Achane then contacted Bland's relatives. He learned that Bland was no longer pregnant, but their baby "was nowhere in sight." The relatives did not know what had become of the child.
Achane feared Bland had, as she threatened, proceeded with an abortion, or had given the baby to relatives. Achane next reached out to his wife's doctors in Texas, hoping to learn whether Bland had given birth or had an abortion, but they informed him doctor-patient confidentiality precluded sharing any information with him.
In June 2011, Bland for the first time informed her husband she had given birth in Utah and placed the child through the Adoption Center of Choice.
"I was like, 'Utah? Where is Utah?' I'd never been to Utah, she's never been to Utah," he said. "Adoption? Who does that? ... I believe she felt guilty at that point because she just made a call out of the blue," said Achane.
That same day, Achane contacted the adoption agency and requested information about his child, which the agency refused to give him.
An attorney later contacted Achane, confirmed an adoption was in process and asked for his consent. Achane refused and told the attorney he wanted his daughter returned to him.
Instead, the Freis proceeded with the adoption. In their adoption petition, filed in July 2011, the couple acknowledged Achane was married to Bland when the child was conceived and born and that he had never consented to the adoption. They asked that his parental rights be terminated because he "abandoned the natural mother during her pregnancy" and "had not developed a substantial relationship" or otherwise taken responsibility for his daughter.
Achane intervened in the case and in October, more than a year later, a two-day hearing finally took place.
During that hearing, a representative for the Adoption Center of Choice testified that it was "standard practice" to not provide any information when a father married or not of a prospective adoptive child called the agency. Kristi Freis told the court that although they knew Achane wanted his child, she and her husband felt they had no obligation to return the baby.
A fit parent? • In his subsequent order, McDade said it is "undisputed" that Utah law requires consent of a married father before an adoption can take place.
"The right of a fit, competent parent to raise the parent's child without undue government interference is a fundamental liberty interest that has long been protected by the laws and constitution of this state of the United States, and is a fundamental public policy of this state," he said.
There was no need under law for Achane to "prove himself" fit to be a parent to his child. Nor did he have any obligation to comply with statutes directed at unmarried putative fathers, the judge said.
"Just by marrying the woman who may one day become the mother of his child, a man is deemed to have demonstrated his commitment to the responsibilities of parenthood," McDade said.
While the birth mother initially misled the agency and adoptive parents by claiming Achane had abandoned the baby and had no interest in raising her, "once Mr. Achane contacted the Adoption Center of Choice ... to let them know he opposed the adoption and wanted his daughter back, that should have been the end of this case," McDade said.
"Likewise, when the attorney for the Adoption Center of Choice contacted Mr. Achane and confirmed that Mr. Achane would not consent to the adoptive placement, the very next conversation they should have had was what arrangements the adoption agency would be making to return Teleah to him with all due haste," he said. "That did not happen."
The Freis also should have cooperated once they knew there was a legal father who, contrary to the birth mother's assertions, had been involved and wanted the child, the judge said. Instead, they refused.
"At that juncture, the right thing for the Freis and the Adoption Center of Choice to have done would have been to make arrangements to return Teleah to Mr. Achane with all due haste," the judge said.
McDade found that Achane could not be said to have consciously abandoned or failed to provide for or develop a relationship with his child since her whereabouts were unknown to him until months after her birth and his wife, the Freis and the adoption agency "deliberately thwarted" any opportunity for him to have a relationship.
The judge set a hearing for Jan. 16 on how to transition Teleah to her father, though the Freis want any change in custody stayed while they appeal.
"Much of the pain and anguish in this case could have been avoided or at least substantially mitigated if the adoption agency had responded to Mr. Achane's initial requests for information concerning his daughter, and [his] request to have her returned to him back in July or August 2011," McDade said, adding that he hoped the case would "serve as a cautionary tale and prompt the Adoption Center to change its policies so situations like this never happen again."
A married father's rights
While unmarried biological fathers must act to preserve their parental rights and have a limited time to do so, married fathers are presumed to have a constitutional, fundamental liberty interest in their children.
A married father "has the exact same parental rights as the mother from the get-go," said Salt Lake attorney Scott Wiser, who with his father represents Terry Achane. "It is the same reason why any other married parent would not have to worry about filing a paternity petition or jumping through a series of legal hoops to get their kids back if a third-party like a neighbor or day-care provider decided not to return their kids."
Unless his parental rights have been terminated for cause, the father's consent to an adoption is required.
In his ruling in the Achane case, 4th District Judge Darold McDade called the situation painful and heartbreaking while noting previous Utah Supreme Court rulings that found that prospective adoptive parents are "legal strangers" who have no rights other than to temporarily care for the child until custody can be returned to a natural parent and that any bonding that may have occurred while they had custody is "legally irrelevant."