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Adoption attorneys in Florida are attacking a state law that requires a mother who puts a child up for adoption to publish personal information about her sexual past and partners. National news reports have prompted legislators in both parties to talk about changing the law. Meanwhile, momentum is building for the appeal of one failed challenge to the law and for more suits. Private-adoption lawyers say the law resulted from politics in the state Bar’s Family Law Section, which helped draft the legislation and lobbied for its passage. The Florida Adoption Act went into effect in October 2001. It’s designed to ensure that a father doesn’t unknowingly give up parental rights. Fathers must be notified of a pending adoption if possible. A mother uncertain of his identity or whereabouts must run a newspaper ad revealing her name, age, height, hair and eye color, race and weight, as well as the child’s name and the date and place of birth. The ad must also give the putative father’s name and description. The notice is to appear in all cities in which conception could have occurred in the year before the child’s birth. The notification provision, which applies only to private adoptions, was challenged in a motion for declaratory judgement filed in a Florida Circuit Court by Boca Raton attorney Charlotte Danciu. In re: The Adoption of a Minor Child, (Palm Beach Co., Fla.). Representing six mothers, Danciu charged that the provisions violated their privacy rights under the 14th Amendment and under the state constitution, which specifically establishes a right of privacy. A hearing in May proceeded with no appearance or filings by the state attorney general’s office. Tricia Spillan, a spokesperson at the state attorney general’s office, says that officials decided not to get involved in the suit over the law, which does not affect state-supervised adoptions. She would not comment further, and a call to Attorney General Bob Butterworth was not returned by press time. Circuit Court Judge Peter D. Blanc rejected the mothers’ claim except in cases of rape. He found that under a Florida Supreme Court ruling, the state has the burden to show that alleged violations of state privacy law are serving the state interest, and by the least intrusive means. Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544 1985. Blanc concluded that the state has a compelling interest in finding fathers. He said it was unclear whether that is accomplished by the least intrusive means, since he had no empirical evidence. “However,” he wrote, “with no evidence that these statutes are ineffective or that the goals of the statutes could be accomplished with equal success through less intrusive means, the challenge to the constitutionality of these statutes as applied in cases that do not involved ‘forced’ sexual battery must fail.” Danciu says providing statistical information is impossible. “All of these adoptions are confidential,” she says. Danciu and her co-counsel, Lynn Waxman, a West Palm Beach, Fla., adoption appellate solo, intend to appeal. Danciu says she’s getting lots of support. “We’ve been contacted by pro-choice and pro-life groups and the ACLU about amicus briefs,” she says. Meanwhile, she is preparing to file another case in Broward County and is sharing her pleadings with other lawyers across the state. “Everybody is poised to do an appeal if the right case comes along,” says Madonna Elliott, a Tallahassee, Fla., adoption practitioner. Legislators have said the impetus for the adoption act came from a 1992 case in which a father demanded custody of his child after she was adopted, claiming he hadn’t waived his rights. In re the Adoption of Baby E.A.W. No. 84819. SC Florida, 1995. The case was Danciu’s. She says the trial judge found the father had dodged service of the notification. In any case, she says, the supreme court ruling, which rejected the father’s claim, isn’t relevant to the new law. It “turned on issue of prenatal abandonment — it had nothing to do with notice,” Danciu says. Danciu and other private adoption lawyers say the most significant influence on the legislators came not from father’s rights groups but from the Family Law Section of the Florida State Bar. It helped draft the legislation and lobbied for its passage for six years before it passed. Danciu says that she and other opponents of the bill were ignored. They supported the creation of a registry for men who believe they have fathered a child. Such a system is in place in more than 30 states. It simply requires lawyers to check the list before proceeding with adoptions. Caroline Kapusta Black, the chairwoman of the Family Law Section, says that the adoption bill came out of a task force comprised of every interest group associated with adoptions. She says the section now recognizes that the law is flawed and is trying to plug holes in it through additional legislation. “I think what has happened is that the bill as written created unintended consequences,” Black says. “We do not think a person’s right to privacy should be sacrificed. We do not think anyone should be humiliated.” Elliott, Danciu and others complain that the Family Law Section was compromised in its support of the bill because Deborah Marks, who has headed both the family law section and its legislative committee, was romantically involved with Frederick Dudley, the former state senator who proposed the legislation. An attorney at Akerman Senterfitt in Tallahassee, he is now the congressional lobbyist for the Family Law Section. Dudley didn’t return calls. Marks, a Miami solo, denied any impropriety growing from their relationship. “I deliberately stayed away from the drafting so there wouldn’t be an allegation of conflict.” She notes that Dudley was no longer in the Legislature when the bill passed. Marks still supports the bill, saying, “It was essential. It was balanced. It was a necessary bill to prevent a great deal of abuse that was going on in adoptions in Florida.”

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