Obscure law keeps Bend father from challenging adoption

By Sheila G. Miller / The Bulletin 
Published: January 06, 2008

Editor’s note: Most adoption-related cases aren’t open to the public. But Bryce Carkhuff waived his rights to privacy and allowed his lawyers and others to speak about the case. Esther Jones and her father, Dylane Jones, also agreed to speak with The Bulletin, as did Jones’ lawyer. Their interviews, court records and a partial audio transcript of the trial were used for this story.

On Sept. 6, Bryce Carkhuff became a father. He just didn’t know it.

When he discovered his former girlfriend gave birth to a baby girl, he relished the chance to watch her grow. But before he could change the first diaper, the child already had been adopted.

Now, after a trial to determine the child’s custody and a half-dozen, court-ordered visits, Carkhuff is left with only a picture album and a diaper bag.

At issue is a little-known law, Oregon Revised Statute 109.096. It states that if a father hasn’t established paternity through the Oregon Center for Health Statistics and hasn’t contributed or tried to contribute to the support of the child in the year prior to an adoption, then he has no right to know about or object to his child’s adoption. That period of time includes the pregnancy. A judge found that Carkhuff, a Bend resident, had failed to contribute. As a result, he was not entitled to notice of the adoption and could not object to it.

Carkhuff and 20-year-old Esther Jones had a month long relationship that ended shortly after she discovered she was pregnant in December 2006. While Carkhuff said he wanted to raise the child, Jones believed she wasn’t ready for the responsibility and decided to give the baby up for adoption. Now, with the child nearly 5 months old, the Bend man is fighting the law designed to protect adoption rights, but which he believes has wrongly cut off his parental rights.

Gordon Dick, a Salem-based lawyer specializing in family law and the president-elect of the Oregon State Bar Association’s family law section, said the law is often used in Oregon Department of Human Services custody cases to get kids into stable adoptive homes.

“I think the importance of the law is that it’s kind of an endgame, that once you get past a certain point and you adopt a child to a certain family, it doesn’t allow for people to come back and say, ‘Wait a minute, I’m the dad and I want my kid back,’” said Patrick Carey, district manager for the Department of Human Services in Crook, Deschutes and Jefferson counties. “That’s pretty disruptive to the child and to the family.”

But Dick said few fathers know how easy it is to lose a child.

“I think that most men have not a clue how quickly they lose their rights in the state of Oregon,” Dick said. “If you are a male and wish to assert your rights to a child, you should go through every step possible and beyond … so there’s no question.”

Child-related laws in Oregon usually try to keep children with their parents or ensure that parents who want their children don’t lose that opportunity. In this case, that was not the outcome.

“He’s held and smelled her, he’s changed her diaper, and now he’s been told he’ll never see her again,” said Carkhuff’s attorney, Angela Lee. “It’s one of the coldest laws I’ve ever seen.”

Trying to get in touch

Esther Jones, of Prineville, met Carkhuff, 35, at a church service at the Black Horse Saloon in Bend last year. Carkhuff asked Jones for her number, and the two began talking on the phone and dating. About a month later, in December 2006, both agree, Jones discovered she was pregnant. At the time, Carkhuff, who works in construction, was separated from his wife. They are now divorced.

The couple confirmed the pregnancy while visiting Carkhuff’s mother, Chris Laughery, in Florence for the weekend at the end of December.

“Everything was just happy happy,” said 53-year-old Laughery. “I made sure when she went home she had my home phone number and my cell phone and said, ‘If you need anything let me know.’ I said, ‘I’ve only got one thing to say, no matter what happens between you and my son, don’t keep my grandbaby from me.’”

Soon, however, Jones ended contact. Later, Carkhuff’s attempts to contact Jones, and particularly whether he tried to offer financial support, became key in the court case.

Laughery said she offered to let Jones live in Florence, but her family refused. A few weeks later and still early in the pregnancy, Carkhuff received a call from Esther’s father, Dylane Jones, inviting him out for dinner. Carkhuff went but was disappointed when he said the father insisted on adoption.

“I said, ‘Absolutely not, she is mine, and I want to raise my daughter,’” Carkhuff remembered. “It seemed like it went in one ear and out the other.”

After that meeting, Carkhuff said, the family cut off contact with him, even though he called repeatedly. Dylane Jones said the few calls his family received were threatening, so they stopped answering them.

Lee used phone records in the court case as proof that Carkhuff had tried repeatedly to contribute and express interest in the child. Jones’ lawyer, Susan Steves, said in court that telephone calls were not sufficient evidence that Carkhuff had tried to contribute financially.

Steves asked Carkhuff on the stand whether he had ever sent Esther Jones a check or dropped off money with her family to pay for the pregnancy. Carkhuff testified he had not, but while being questioned by Lee he noted other ways he offered to support her.

“I told her I’d marry her, that I’d continue working, I’d get us a place to live and take care of my child as well as her, that I wasn’t just going to run off,” he said in court.

Jones doesn’t dispute that Carkhuff called her and said in an interview that she was clear about her plans for the baby. In her signed affidavit, Jones indicated she had no contact with Carkhuff after conception, but Steves said at the hearing her client didn’t know what the term “conception” meant.

Both Jones and Carkhuff agree that he never gave her money for the pregnancy.

In court, Lee argued that by offering his mother’s home and asking her to marry him, Carkhuff had made clear financial promises to her.

Jones noted in an interview that Carkhuff called once offering to send her money and asking for her address. But she believes he could easily have found her address or gotten money to her in some way if that was his intention.

Jones said she was concerned about the stability of the child’s life if the baby lived with either parent and didn’t believe Carkhuff was prepared or responsible enough to take care of a child.

Carkhuff said he moved from Florence to Bend in November 2004 in an attempt to quit using drugs. He admits that his past is checkered with problems and that he has struggled with being a father to his son, 11, from a previous marriage.

In the past, Carkhuff has been convicted on domestic violence charges against his ex-wife, and after moving to Bend in 2004, Carkhuff lost his license after two DUIIs.

Carkhuff insists he shouldn’t lose a child because of what happened years ago.

Jones, her family and friends point to Carkhuff’s past as the reason he shouldn’t have custody.

Jones said her relationship with Carkhuff was rocky, and she gave up the baby because she wanted to make sure the child was properly cared for.

“I wasn’t ready to be a mom,” she said. “I could not afford to raise a baby by myself. I was living at home, and I didn’t have a job. And I wanted the best for her, so I found a family who couldn’t have kids … they just seemed right.”

The adoption

The baby was born Sept. 6. Less than a week later, she was placed with adoptive parents through a legal, private adoption. Dylane Jones said the adoptive parents are family acquaintances.

On Sept. 14, Carkhuff received word from a friend that the baby had been handed over to adoptive parents at a Bible study or potluck.

“It was the perfect time for her to go. You don’t want to keep (a baby) longer than you should,” Esther Jones said. “If I would have had her any longer, it would have been even harder to do that. It was hard enough to do it already.”

Steves believes that Jones showed an enormous amount of maturity in giving away the child.

“It was a really wise decision for someone so young, and it was very brave,” she said. “I think it was absolutely putting that baby first.”

Shocked that the baby had been adopted without his knowledge or approval, Carkhuff hired Lee as his lawyer in mid-September. They filed a petition with Deschutes County Circuit Court on Oct. 9, and he was awarded visitation rights by Deschutes County Circuit Judge Michael Sullivan on Oct. 10. A week later, a DNA test proved he was the father.

Lee said that when she heard how the adoption had gone forward, she recalled adoptions she’s worked on and thought it sounded wrong. The adoptive parents’ lawyer, Fred Kowolowski, stated in court that he couldn’t find Carkhuff to tell him about the adoption.

“I made an attempt to contact him. There’s even a Carkhuff listed in the phone book, and I called that number and inquired as to whether he lived there,” Kowolowski said. “(Jones) said she did not know where (Carkhuff) was at that time. Ms. Lee is contending that he has always been at the same address, but that’s not my understanding of situation.”

Judge Sullivan asked Kowolowski at the hearing whether he had attempted to contact Carkhuff’s parents, and Kowolowski said he had not.

“I have to say that here’s the beginning of the problem in this particular case,” Sullivan said. “There was no serious attempt to get in touch with the biological father.”

Carey, with DHS, said his agency works very hard to find the father before any adoption takes place.

“For the benefit of the child, if for whatever reason the child can’t be placed with the mother, it’s reasonable and logical to be placed with the father,” he said.

Because this was a private adoption and DHS was not involved in the situation, these rules did not apply for Carkhuff.

Meanwhile, Carkhuff spent several two-hour supervised visits with the baby in Lee’s office.

“It was neat,” he said of his visits. “And it only got better. She was smiling … and throwing her hands in the air.”

Carkhuff and his mother bought baby clothes and toys, and took them to Florence so they’d be ready if they won custody of the child.

Esther Jones found the court case disheartening.

“It’s like he just doesn’t see that I wanted what was best for her,” she said. “It was really frustrating.”

A little-known law

The main issue, Carkhuff believes, is that he didn’t find out about the birth until after the child had been adopted. And since he said Jones and her family refused to speak to him, he had no way of offering any support to her.

“I’d never heard of it. The judge had never heard of it,” Lee said of the law. “It doesn’t make a lot of sense.”

Jones’ lawyer, Steves, introduced the law’s requirement of financial contribution or attempted financial contribution at the start of the trial. She said in an interview that Kowolowski had found the law, and the two had done research on similar cases.

“I know things have been portrayed that the law is harsh,” Steves said in an interview. “There’s the saying, ignorance is no excuse for not knowing the law, and (Carkhuff) did the pregnancy test with her. It wasn’t like he didn’t know he had gotten her pregnant. And she also told him she wanted to adopt the baby out … I could see a situation where you have a really stand-up guy, and then everybody should feel bad.”

This, she said, is not that case.

Carkhuff said he wasn’t aware he needed to get a lawyer or put money in people’s hands or do anything other than to express a serious interest in keeping the child.

“They were focused on how he was willing to marry her, but that has more to do with his desire to be in a romantic relationship with Esther than with indicating his wanting to be a part of the baby’s life,” Steves said in an interview.

On Nov. 6, they all met at 9:30 a.m. in a courtroom. After a 4 1/2-hour hearing, Judge Sullivan found that Carkhuff was not entitled to notice and that the adoption would go forward. Sullivan also ruled that Carkhuff’s visitation would end immediately.

“When I lost in court, I was shocked,” Carkhuff said. “How could they say that my rights as a father are done? … It hurt so bad that I couldn’t even cry.”

Lee, who also serves as a municipal judge, was surprised by the decision.

“It is easier to get a baby taken away than to have a dog taken away,” she said. “You have to do a lot to get your dog taken away.”

On Dec. 21, Carkhuff and his new lawyer, Foster Glass, filed a motion for a new trial in Deschutes County Circuit Court. Lee handed Carkhuff over to Glass to handle further appeals and a potential new trial, and Glass filed the motion based on his belief that the law was misinterpreted, and that Carkhuff’s constitutional rights were being violated. To Carkhuff and his lawyers, it seemed as if the amount of time he had to claim his child was strangely short.

“ORS 109.096, subsection 3, is harsh, and I think that it may be appropriate for people who are absolutely not involved, who don’t care, who don’t try, who get a woman pregnant and say, ‘See ya, wouldn’t want to be ya,’” Lee said during trial. “That is not the case, that is not what happened here. He wants to be a part of his daughter’s life.”

Carey, with DHS, said the difference between the amount of time given to Carkhuff and the amount of time given to parents whose children are placed in DHS custody is that in this case, the mother wanted the child in an adoptive home. Most parents who lose their kids to the state are desperate to have them back. And DHS usually gives parents about 15 months to regain custody.

“Our number one priority is to keep the child with the family,” Carey said, noting that the department often provides parents with classes and services to help them hold on to their kids. “If the child has to go into foster care, at that point we again look for relatives to place this child with.”

While Carkhuff has been told he can’t see his child anymore, Lee said she received a letter from DHS in mid-December stating Carkhuff would have to pay for the medical costs of the child’s birth.

Jones said in an interview that she hasn’t spoken to or heard from Carkhuff since the judge made his decision. But if she could say something to Carkhuff, she would ask him to think of what is best for their baby.

“Think about the whole situation. Is he actually capable of taking care of that child? Can he physically support her? Can he financially support her? Can he mentally support her?”

Steves said she believes that even if Carkhuff had won the case and had a right to object to the adoption, he would have lost the custody battle because of his troubled past.

Carkhuff has struggled to pay lawyers’ fees and said he is concerned he’ll have to move back to his mother’s home in Florence so he can start paying the bills.

But Carkhuff said he’ll do whatever he can to get the law he thinks is unfair off the books in Oregon.

“Maybe God wants to change laws,” Carkhuff said. “Maybe this is the reason I’m alive.”

Sheila G. Miller can be reached at 617-7831 or at smiller@bendbulletin.com