BIRTH DAD FIGHTS FOR CUSTODY : BABY UP FOR ADOPTION OVER MAN'S PROTESTS.

Byline: Nancy Hobbs Salt Lake Tribune

For almost two years, Mario Garcia Beltran Jr. has been fighting to be a father to his child.

He told his pregnant girlfriend in 1994 that he wanted to marry her and raise their child together in Santa Clarita, where both had grown up and were living at the time. When she refused, he told her he opposed putting the baby up for adoption and would take custody of the child himself.

Nevertheless, the teen mother moved to Provo during her last trimester of pregnancy in the fall of 1994. Her baby was born Nov. 14 and three days later placed for adoption in a Utah home through LDS Social Services.

An attorney for Beltran argued before the Utah Court of Appeals last week that his client not only was denied due process by the state-licensed adoption agency, but also that the agency ``set a trap'' that ensured the out-of-state father would slip up in following Utah's strict paternity statute.

Provo attorney Robert Moody told the three-judge panel that LDS Social Services didn't inform Beltran about Utah law and ignored correspondence from Beltran which clearly indicated his desire for custody. The agency staff either hung up or refused to provide requested information when Beltran telephoned, Moody said.

That ``flies in the face of due process,'' Moody said.

Attorney Merrill Nelson of Salt Lake City argued that his client, LDS Social Services, did not ignore the father. The agency met its legal responsibilities by notifying Beltran that the mother, Denise Allan, was in Provo and planned to place the child for adoption.

``With that information, the father has all the information he needs'' to alert him to educate himself about Utah laws or to hire an attorney, Nelson said.

Had Beltran done so, he would have learned that Utah law requires the father of a child born outside marriage to file a paternity claim with the state Department of Health within 10 days of the birth. Without the filing, a father loses all rights to his child unless he can prove that, through no fault of his own, the requirement was impossible to meet.

In a summary judgment last November, the 4th District Court in Provo found Beltran failed to meet Utah's statutory requirements and therefore forfeited his parental rights. He is asking the appeals court to overturn the decision.

Appeals Court Judge Judith Billings told Nelson she found it ``shocking'' that LDS Social Services proceeded as it did, having been clearly notified of the father's wishes. She asked the attorney why it would be a burden on the adoption agency to inform an out-of-state father of his statutory rights?

``It's not necessarily a burden on the agency. It is a conflict of interest,'' Nelson said, because the agency's client is the mother.

``The burden is on the father to determine what his legal rights are and to comply with the law,'' he added. In support of that, he cited a decision by the Court of Appeals last year that affirmed a trial court's termination of paternal rights in an adoption case because the father failed to assert his rights according to Utah law.

But Billings, who heard that case and concurred with the decision, said there were significant differences. Beltran asserted his rights prior to the baby's birth, not only by notifying the mother and the agency of his custodial interests, but also by filing for paternity in California, where both the father and mother are residents.

Billings said all parties, including the prospective adoptive parents, knew of the father's intent. She asked whether Beltran should be denied any rights because he didn't file a notice of paternity as required by a Utah law of which he was not informed.

``This almost seems like a fraud on this young man,'' the judge said.

The child has been in adoptive placement since birth.

If Beltran loses the child, Moody said, this ``sad set of facts'' could set a dangerous precedent when pregnant women come from outside Utah to place their babies for adoption.

``It would give the agency license to do this again: to set traps for out-of-state fathers,'' he said. He also took issue with Nelson's claim that the adoption agency's primary loyalty should be to the birth mother, as its client.

``This agency holds itself out as an adoption agency. Their first duty is to the child.''

The court took the case under advisement with no indication of when a decision will be made.