2013 UT App 27
_________________________________________________________
THE UTAH COURT OF APPEALS
IN THE MATTER OF THE ADOPTION
OF R.M., A MINOR.
L.M.,
Appellant,
v.
J.B. AND A.B.,
Appellees.
Opinion
No. 20120006‐CA
Filed January 31, 2013
Second District, Farmington Department
The Honorable David M. Connors
No. 102700102
J. Keven Hofeling, Attorney for Appellant
Victoria Cramer, Attorney for Appellees
JUDGE JAMES Z. DAVIS authored this Opinion,
in which JUDGES GREGORY K. ORME and
WILLIAM A. THORNE JR. concurred.
DAVIS, Judge:
¶1 This case is before the court on interlocutory appeal from the
trial court’s November 23, 2011 Order determining that L.M.
(Father) was not required to consent to the adoption of his child,
R.M. (Child), by J.B. (Stepfather). We reverse and remand.
In re R.M.
BACKGROUND
¶2 Father and A.B. (Mother) are the parents of Child, who was
born in July 2002. Father and Mother lived together until Child was
six months old but were never married. Father was listed on
Child’s birth certificate, and both parents executed a voluntary
declaration of paternity recognizing Father as Child’s father.
Understandably, given these facts, the parties did not initiate a
paternity case at that time.1
¶3 Mother married Stepfather on October 19, 2004. On July 20,
2010, when Child was eight years old, Mother and Stepfather filed
a Verified Complaint for Adoption and to Terminate Parental
Rights of the Natural Father. Father failed to file an answer, and the
trial court entered a Decree of Adoption on September 7, 2010.
Father filed a Motion to Set Aside Default Judgment and Memoran‐
dum of Authority on October 19, 2010. The trial court set aside the
decree on the basis that Father was not provided sufficient advance
notice of the hearing. However, at a hearing on April 22, 2011, the
trial court determined that Father’s filing of a declaration of
paternity was insufficient to establish his right to consent to Child’s
adoption. The trial court did not address Father’s co‐equal status
with Mother on the birth certificate but explained that an unmar‐
ried biological father must comply with Utah Code section 78B‐6‐
120(1)(f) by establishing compliance with sections 78B‐6‐121 and
78B‐6‐122 (the paternity provisions), regardless of whether he filed
a declaration of paternity, in order for his consent to adoption to be
required. See generally Utah Code Ann. §§ 78B‐6‐120 to ‐122
(LexisNexis 2012).2 The trial court granted Father leave to file an
1. Apparently, Father has since filed a paternity action, but the
details of that action are not contained in the record for this case.
2. Because substantive amendments to the relevant provisions are
not material to the issues on appeal, we cite the current version of
the Utah Code for the reader’s convenience.
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In re R.M.
interlocutory appeal and stayed the adoption and paternity actions
pending the outcome of the appeal.
ISSUE AND STANDARD OF REVIEW
¶4 Father argues that the trial court erred in interpreting section
78B‐6‐120(1) as requiring an unmarried biological father who files
a declaration of paternity to also establish compliance with the
paternity provisions. “The interpretation of a statute is a question
of law that we review for correctness without any deference to the
legal conclusions of the district court.” Jaques v. Midway Auto Plaza,
Inc., 2010 UT 54, ¶ 11, 240 P.3d 769.
ANALYSIS
¶5 Utah Code section 78B‐6‐120(1) identifies seven classes of
individuals who must consent to an adoption: (a) the adoptee if
over twelve years old; (b) a presumptive or adoptive father; (c) the
mother; (d) a biological parent who has been adjudicated as such
prior to the mother’s relinquishment; (e) a biological parent who
has filed a declaration of paternity; (f) an unmarried biological
father3 who has complied with the paternity provisions; and (g) an
3. The term “unmarried biological father” is used only in
subsection (f), while subsections (d) and (e) use the more general
term “biological parent,” which is not defined for the purposes of
Title 78B, Chapter 6. See Utah Code Ann. § 78B‐6‐103(24)
(LexisNexis 2012) (defining the term “unmarried biological father”
as “a person who . . . is the biological father of a child[] and was not
married to the biological mother of the child . . . at the time of the
child’s conception or birth” but not defining the term “biological
parent”). However, given that all married biological fathers are
presumptive fathers, see id. § 78B‐15‐204, whose consent is required
under subsection (b), see id. § 78B‐6‐120(1)(b), and that the consent
(continued...)
20120006‐CA 3 2013 UT App 27
In re R.M.
agency to whom the child has been relinquished.4 See Utah Code
Ann. § 78B‐6‐120(1). Father argues that because he filed a declara‐
tion of paternity, which was signed by Mother, his consent to
3. (...continued)
of all biological mothers is required under subsection (c), see id.
§ 78B‐6‐120(1)(c), we do not know who other than an “unmarried
biological father” could possibly be described by the term
“biological parent” as that term is used in subsections (d) and (e).
Thus, we consider subsections (d), (e), and (f) to all refer equally to
“unmarried biological fathers.”
4. A similar list is contained in Utah Code section 78B‐6‐110, which
identifies the individuals entitled to notice of an adoption
proceeding. Mother and Stepfather point out that while this list
includes unmarried biological fathers who comply with the
paternity provisions, it does not separately identify unmarried
biological fathers who file a declaration of paternity. This is not
exactly true. Section 78B‐6‐110 states that “any person who, prior
to the time the mother executes her consent for adoption or
relinquishes the child for adoption, is recorded on the birth
certificate as the child’s father, with the knowledge and consent of
the mother” is entitled to notice. Utah Code Ann. § 78B‐6‐110(2)(f)
(LexisNexis 2012). Utah Code section 78B‐15‐302(7) further
provides that a “declaration of paternity shall become an
amendment to the original birth certificate.” Id. § 78B‐15‐302(7).
Thus, an unmarried biological father who files a declaration of
paternity is at least arguably entitled to notice of an adoption
proceeding as the equivalent of a father listed on the birth
certificate. In any event, whether an individual is entitled to notice
is not necessarily determinative of whether that individual’s
consent is required for the adoption. See id. § 78B‐6‐110(3)(a)
& amend. notes (explaining that “[t]he 2009 amendment, effective
May 12, 2009, substituted ‘notice’ for ‘notice and consent’ in the
introductory language of (3)(a),” which discusses the steps an
unmarried biological father must take to preserve his right to
notice).
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In re R.M.
Child’s adoption is required under subsection (e). Mother and
Stepfather maintain that an unmarried biological father who files
a declaration of paternity under subsection (e) must also comply
with the paternity provisions under subsection (f) in order for his
consent to be required. The trial court agreed with Mother and
Stepfather and determined that the filing of a declaration of
paternity alone is insufficient to give a biological father the right to
consent to an adoption if he has not also complied with the
paternity provisions.
¶6 Subsection (f) is worded in such a way as to suggest that
compliance with the paternity provisions is the exclusive means for
an unmarried biological father, such as Father, to establish his right
to consent to adoption: “[C]onsent to adoption of a child . . . is
required from . . . an unmarried biological father of an adoptee,
only if he fully and strictly complies with the [paternity provi‐
sions.]” Id. § 78B‐6‐120(1)(f) (emphasis added). “Because we
assume that the legislature used each term in the statute advisedly,
we read the statute’s words literally unless such a reading is
unreasonably confused or inoperable.” Paar v. Stubbs, 2005 UT App
310, ¶ 6, 117 P.3d 1079 (citation and internal quotation marks
omitted). Nevertheless, we must “interpret[] statutes to give
meaning to all parts, and avoid[] rendering portions of the statute
superfluous.” Id. (alterations in original) (citation and internal
quotation marks omitted). Here, reading literally the language of
subsection (f) that an unmarried biological father’s consent is
required only if he complies with the paternity provisions leads to
a “confused or inoperable” result, see id. (citation and internal
quotation marks omitted), in light of the rest of section 78B‐6‐
120(1), to which we must also give meaning.
¶7 It is clear when reading section 78B‐6‐120(1) in its entirety
that there are, in fact, three different ways for an unmarried
biological father to obtain the right to consent to an adoption: (1) he
may be adjudicated as the child’s father, (2) he may file a declara‐
tion of paternity, or (3) he may demonstrate compliance with the
paternity provisions. See Utah Code Ann. § 78B‐6‐120(1)(d)–(f). To
20120006‐CA 5 2013 UT App 27
In re R.M.
read the statute any other way would render subsections (d) and
(e) superfluous.5 Furthermore, given the structure of section 78B‐6‐
120(1), identifying seven distinct classes of individuals entitled to
consent, it would be illogical to declare that certain individuals
must actually fall into more than one category in order for their
consent to be required, while other individuals must meet the
requirements of only one category.6
¶8 Mother and Stepfather assert that subsection (f) would be
rendered meaningless if an unmarried biological father could
establish his paternity and thus his right to consent by merely
filing a declaration of paternity. As they put it, “[i]f all an unmar‐
ried biological father has to do is to file a voluntary declaration of
5. While we acknowledge that an unmarried biological father who
falls under subsection (d) by virtue of having been adjudicated as
the child’s father will often have complied with the paternity
provisions as the means of obtaining that adjudication, this will not
always be the case. For example, the mother and unmarried
biological father might stipulate to an order of paternity without
the father actually demonstrating such compliance to the court. See,
e.g., LaChance v. Richman, 2011 UT App 40, ¶ 6, 248 P.3d 1020
(stating that the trial court had entered a stipulated “Decree of
Paternity, Parent‐Time, and Child Support” in the case); Nelson v.
Sweazey, 2005 UT App 126U, para 2 (mem.) (per curiam) (“The
parties stipulated to entry of a judgment of paternity . . . .”).
6. Mother and Stepfather cite recent cases addressing the
requirement that an unmarried biological father strictly comply
with the paternity provisions in order to perfect his right to consent
to adoption. See, e.g., In re Adoption of Baby B., 2012 UT 35; In re
Adoption of T.B., 2010 UT 42, 232 P.3d 1026; In re Adoption of I.K.,
2009 UT 70, 220 P.3d 464. However, as Mother and Stepfather
acknowledge, none of these cases dealt with biological fathers who
had filed declarations of paternity, much less fathers listed as such
on the child’s birth certificate. They are therefore not dispositive of
the issue at hand.
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In re R.M.
paternity . . . , then why would he go through the trouble of ‘fully
and strictly’ complying with [the paternity provisions] . . . ?” The
answer is that not all unmarried biological fathers will be able to
file a declaration of paternity because such a declaration “must . . .
be signed by the birth mother,” Utah Code Ann. § 78B‐15‐302(1)(c)
(LexisNexis 2012). “[A] valid declaration of paternity filed with the
Office of Vital Records is equivalent to a legal finding of paternity
of a child and confers upon the declarant father all of the rights and
duties of a parent.”7 Id. § 78B‐15‐305(1); see also In re S.H., 2005 UT
App 324, ¶ 15, 119 P.3d 309 (“For the purposes of establishing
paternity, a voluntary declaration of paternity, duly signed and
filed, has the same effect as a judicial determination of paternity.”).
Given the legal effect of such a declaration, it cannot be filed by the
father unilaterally. Thus, while filing a declaration of paternity is
certainly the simpler option, and was, as previously noted, the
option exercised by Father and Mother in this case, that option is
not available to all unmarried biological fathers. If the birth mother
declines to acknowledge the unmarried biological father’s paternity
and refuses to sign the declaration of paternity, he will have to
comply with the paternity provisions in order for his consent to be
required. Thus, the fact that the paternity provisions are more
7. Mother and Stepfather attempt to downplay the significance of
this provision by asserting that the “the primary purpose of [a]
declaration of paternity is to make sure the child’s mother is
receiving child support rather than to grant an unmarried
biological father certain rights.” In support, they point out that
other provisions within the same section of the statute address
financial support for the child and the mother rather than the
specific rights of the father. See Utah Code Ann. § 78B‐15‐305(2)
(LexisNexis 2012). However, this assertion ignores the plain
language of the statute, which states that “a valid declaration of
paternity . . . confers upon the declarant father all of the rights and
duties of a parent.” Id. § 78B‐15‐305(1) (emphasis added).
Furthermore, we can see no logic in the position that a father could
be subject to the liabilities of parenthood by virtue of a declaration
of paternity and yet be denied the rights of a parent.
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In re R.M.
demanding does not foreclose the possibility that an unmarried
biological father could acquire the right to consent by simply filing
a declaration of paternity.
CONCLUSION
¶9 For all of these reasons, we conclude that subsections (e) and
(f) of Utah Code section 78B‐6‐120(1) each identify a separate
means of perfecting parental rights and that the consent of an
unmarried biological father complying with subsection (e) is thus
required for adoption regardless of whether he has complied with
the paternity provisions. We therefore reverse the trial court’s
determination that Father’s consent was not required.
20120006‐CA 8 2013 UT App 27