In Re Adoption of K.C.J.

¶ 21 In reaching their decision, my colleagues ignore over two decades of Utah precedent that interprets Utah's adoption statutes and addresses due process requirements relating to the rights of putative fathers. *Page 1245 According to controlling precedent, T.C.'s standing to contest K.C.J.'s adoption is directly tied to whether he has waived his rights to notice and consent by failing to comply with Utah's statutes. In light of the plain language of our statutes and binding Utah precedent interpreting these statutes, T.C.'s waiver is not a matter of dispute. Furthermore, due process does not require that T.C. receive a hearing to put forth evidence or to argue the applicability of Oklahoma law because T.C. has not made any showing that it was impossible for him to comply with Utah law. Finally, any possible compliance with Oklahoma law is immaterial given that Utah law indisputably applies to K.C.J.'s adoption proceedings.

I. T.C. Has No Standing to Contest K.C.J.'s Adoption ¶ 22 The majority erroneously recasts the issue in this appeal as a general one of standing and intervention based on unspecified interests rather than one of standing based on parental rights preserved by strict statutory compliance. Contrary to the majority's conclusion, the ultimate issue in this appeal is whether T.C. waived his rights to notice of and consent to K.C.J.'s adoption and lost his standing to object to K.C.J.'s adoption by failing to timely comply with the requirements of Utah statutes. A putative father's standing to intervene or otherwise contest an adoption is directly tied to whether he has waived or forfeited his rights to notice and consent by failing to comply with Utah's statutes. See Inre Adoption of Connor, 2007 UT 33, ¶ 8, 158 P.3d 1097 ("In order to have standing to contest the adoption, [the putative father] was required to establish that he had [complied with relevant portions of Utah's adoption statutes]." (citing Utah Code Ann. § 78-30-4.14(4)(a)(i)-(iii) (Supp. 2006))); In re Adoption of B.B.D., 1999 UT 70, ¶ 8, 984 P.2d 967 (affirming a district court's ruling that because the unmarried biological father "failed to follow Utah's statutory scheme for establishing paternity, he had no legal standing to contest the child's adoption").

¶ 23 In fact, "[t]he first sentence of Utah Code section 78-30-4.16(1) directs a court presiding over a contested adoption to make a threshold inquiry into statutory compliance," specifically, "statutory compliance [regarding] `a party['s] entitle[ment] to notice and consent.'" In reE.H., 2006 UT 36, ¶ 46, 137 P.3d 809 (quoting Utah Code Ann. § 78-30-4.16(1) (2000)). Whether an unmarried biological father has preserved his rights to notice and consent depends entirely on his compliance with Utah Code sections 78-30-4.131 and 78-30-4.14, 2 including the deadlines set forth therein. See Utah Code Ann. § 78-45g-403 (Supp. 2006) (providing that although "[n]otice of an adoption proceeding shall be given to unmarried biological fathers," such notice is only required in circumstances outlined in Utah Code "[s]ection 78-30-4.13"); Utah Code Ann. § 78-30-4.13(2)(a)-(b) (Supp. 2006) (listing persons to whom notice of an adoption must be given as including unmarried biological fathers and persons "whose consent or relinquishment is required under [s]ection 78-30-4.14"). According to the statutory deadlines, a putative father must take certain actions — most notably, filing a petition for paternity and notice of that action with the Utah Department of Health — prior to the time the mother relinquishes the child for adoption. See Utah Code Ann. § 78-30-4.13(3)(d)(ii)(B) (setting *Page 1246 the date of the mother's relinquishment as the deadline for taking actions necessary to preserve a right to notice);see also id. §§ 78-30-4.14(1)(d), (6) (setting the date of the mother's relinquishment as the deadline for taking actions necessary to preserve a right to consent). These deadlines can only be extended after the fact when, prior to the mother's relinquishment, a putative father did not know, or could not have known, that the mother was pregnant, that she was living in Utah, that the baby would be born in Utah, or that the mother intended to place the child for adoption in Utah. See id. § 78-30-4.14(10)(a)-(b).

¶ 24 Where there is no justification for extending the deadlines, the consequence for failure to timely comply with Utah's adoption statutes is abundantly clear. If an unmarried biological father fails to

fully and strictly comply with the requirements of [Utah law, he] is considered to have waived and surrendered any right in relation to the child, including the right to . . . notice of any judicial proceeding in connection with the adoption of the child and . . . [the right to] consent, or refuse to consent, to the adoption of the child.

Id. § 78-30-4.14(11) (emphases added). This waiver occurs because a putative father's interest in a child is merely "inchoate," id. § 78-3(M.12(2)(e), and does not become actualized until he "timely exercise[s] it or . . . strictly complies] with the available legal steps to substantiate it," id. § 78-30-4.12(3)(b). As recognized even by the majority, "substantial compliance with [Utah's adoption] statute is not enough" to preserve these rights. In re Adoption of W., 904 P.2d 1113, 1121 (Utah Ct.App. 1995). In fact, "[b]ecause of the nature of the subject matter dealt with by the statute," Utah courts have concluded that "a firm cutoff date [for those rights] is reasonable, if not essential." Sanchez v. L.D.S. Soc.Servs., 680 P.2d 753, 755 (Utah 1984).

¶ 25 The majority cites In re E.H., 2006 UT 36,137 P.3d 809, for the proposition that a person may have standing to intervene in an adoption proceeding even absent these parental rights to notice and consent. The Utah Supreme Court's holding in In re E.H. is much narrower than the majority represents. In In re E.H., the supreme court held that where a person "has made the requisite showing for intervention under rule 24(a) [of the Utah Rules of Civil Procedure]," id. ¶ 57, that person may be "eligible to intervene and present relevant best interests evidence" at the section 78-30-9 adoption hearing,id. ¶ 55, which hearing is limited to the exclusive issue of whether the adoption to particular parents is in the child's best interests, see id., ¶ 58. Thus, the Inre E.H. decision allowed a biological mother, whose parental rights had been waived, to present evidence of the child's bests interests at the section 78-30-9 adoption hearing because she had made a showing of interest based on factors other than the preservation of her parental rights to notice and consent. See id. ¶ 57 (concluding that the biological mother could participate in a best interests hearing because she had, among other things, "actively participated in the selection of the adoptive parents[,] . . . lived in the adoptive parents' home and observed the environment and family dynamics," and "consented to a stipulation [with the adoptive parents] directed exclusively to advancing the best interests of [the child]"). These interests, however, did not grant her standing to contest the adoption. See id. ¶ 58 ("We reiterate that the hearing in which the mother is entitled to participate is . . . the section 78-30-9 adoption hearing."); cf. In re Adoption of B.B.D., 1999 UT 70, ¶ 28, 984 P.2d 967 ("[B]y failing to [follow Utah's statutory scheme for] establishing] his paternity, [the unmarried biological father] lost any parental rights he may have had. Therefore, he had no right to contest the adoption, nor did he have any right to an evidentiary hearing to determine whether the adoption was in the best interest of the child.").

¶ 26 In this case, it is undisputed that T.C. failed to meet the deadlines imposed by Utah's statutes. While he ultimately did initiate a paternity action and file notice of the same with the Utah Department of Health, he did so onlyafter Mother had relinquished the child for adoption. There is no excuse for this failure because he undisputedly knew all of the material information regarding *Page 1247 Mother's pregnancy, location, and intentions to place the child for adoption several months before K.C.J.'s birth. As a result, T.C. has no standing to contest K.C.J.'s adoption.

¶ 27 The district court erred, therefore, by ruling that T.C. had a right to notice of any further proceedings regarding K.C.J.'s adoption. By failing to timely take the steps outlined in Utah law to preserve his parental rights, T.C. "has placed himself in the position where Utah courts cannot recognize him as an interested individual with rights to challenge an adoption proceeding." Osborne v. Adoption Ctr. ofChoice, 2003 UT 15, ¶ 34, 70 P.3d 58. T.C.'s status as an out-of-state father does not exempt him from those requirements. In fact, the Utah Supreme Court has affirmed the denial of an out-of-state unmarried biological father's petition to intervene in an adoption — despite the father's filing of a paternity and custody action in his state of residence — because the father had taken "no legal action in his home state . . . prior to the mother's relinquishment," the deadline imposed by Utah law.Id. ¶ 17. As stated by the Utah Supreme Court in Osbornev. Adoption Center of Choice, 2003 UT 15, 70 P.3d 58:

If we decided to allow every out-of-state putative father to contest an adoption without making some demonstration to a Utah court that he preserved his parental rights, we would open the gate for any out-of-state person to claim he is the putative father and to interrupt a Utah adoption proceeding by simply alleging that he is the biological father and that Utah law does not apply to him. We should not halt adoptions on the mere allegation of biological fatherhood.

Id. ¶ 35.

¶ 28 Here, the trial court refused to hear the petition to finalize the adoption on March 14, 2007, because of the pending paternity action. The Oklahoma paternity order was not issued until a month and a half later, on April 30, 2007. The trial court therefore did exactly what the supreme court forbade: It sua sponte halted the finalization of K.C.J.'s adoption on T.C.'s allegation of biological fatherhood before an adjudication of his paternity was actually made and without a demonstration that T.C. had preserved his parental rights. The majority erroneously condones this error.

II. Due Process Does Not Entitle T.C. to a Hearing ¶ 29 Contrary to the impression left by the majority's cursory treatment of Utah case law, this is not the first time that Utah courts have considered the due process rights of putative fathers who attempt to assert parental rights despite their failure to timely comply with Utah's statutes. Under Utah precedent, due process does not entitle a putative father to a hearing to assess his preservation of parental rights unless the father has "first shown that it was `impossible' for [him] to [comply with Utah's adoption statutes, including the deadlines for filing contained therein], `through no fault of his own.'" Wells v. Children's Aid Soc'y,681 P.2d 199, 208 (Utah 1984). In fact, Utah courts have mandated a hearing, such as the one contemplated by the majority,only where the father asserts that it was impossible for him to comply with Utah statutes because he did not know and could not have known certain material facts: that the mother was pregnant, that she was living in Utah, or that she intended to place the child for adoption in Utah. See Ellisv. Social Servs. Dep't of the Church of Jesus Christ ofLatter-Day Saints, 615 P.2d 1250, 1256 (Utah 1980) (holding that due process required a hearing so the putative father would have an "opportunity to present evidence to show as a factual matter that he could not reasonably" have complied with Utah's statutory requirements or deadlines because "he could not reasonably have expected his baby to be born in Utah"); see also Beltran v. Allan, 926 P.2d 892,895-96 (Utah Ct.App. 1996) (defining material facts as being whether the putative father "knew of the pregnancy and that the mother was in Utah to place the child for adoption"). However, where there is no indication that the putative father was "misled" as to these material facts or otherwise "prevented from" complying with Utah's adoption statutes "by filing a notice of paternity," the application of Utah's statute to effect a waiver of his parental rights does not violate due process. *Page 1248 Swayne v. L.D.S. Soc. Servs., 795 P.2d 637, 642-43 (Utah 1990).

¶ 30 Thus, under Utah law, an unmarried biological father carries the burden to come forward with some evidence demonstrating that he should be excused from his failure to comply with Utah's statutes. There is simply no general due process requirement that a "putative father's diligence to establish his parental rights . . . be individually assessed."Beltran, 926 P.2d at 897. A hearing such as the one contemplated by the majority here is dependent upon the father's initial demonstration that there is some reason to hold one. If the father fails to meet this burden, due process does not obligate Utah courts to bend over backwards to provide him with additional opportunities to do so. See Wells,681 P.2d at 208 (explaining that evidentiary hearings are required only where the putative father makes a showing of impossibility because "the need to prove in each adoption case that the unwed father . . . had a `reasonable opportunity' to file the required notice of paternity would frustrate the statute's purpose to facilitate secure adoptions by early clarification of status").

¶ 31 In this case, T.C. failed to comply with Utah's statutory requirements for putative fathers, and T.C. has not asserted that it was impossible for him to comply with those requirements. It is undisputed that T.C. failed to file his petition for paternity and notice thereof before the statutory deadline — the day Mother relinquished the child for adoption. Mother's affidavit amply demonstrates that it was possible for T.C. to comply with the statutory requirements. Despite the majority's squeamishness regarding this uncontested affidavit, it is sworn testimony and it includes statements that T.C. had knowledge of the material facts: Mother was pregnant, Mother was living in Utah, and Mother intended to place the baby for adoption. Although the majority speaks as if T.C. was never "allowed" to present his version of the story, the fact of the matter is that T.C. has never even claimed a different version of the facts or otherwise attempted to refute any of the statements in Mother's affidavit.3 Even more telling is that T.C.'s recitation of the facts in his brief on appeal mirrors Petitioners' recitation. T.C.'s utter failure to make any showing that he did not know or could not have known of the material facts disqualifies him from any right to the hearing contemplated by the majority.

III. The Oklahoma Order Does Not Alter T.C.'s Rights ¶ 32 Oklahoma's belated adjudication of T.C.'s paternity does not, as the majority claims, "make this a more difficult case than most." The majority improperly inflates the significance and legal effect of the Oklahoma order. The Oklahoma order merely declared what Mother and Petitioners had already presumed: that T.C. was the biological father of K.C.J. The Oklahoma order does not establish that T.C. has preserved his parental rights under Oklahoma law or has a legally recognized relationship with K.C.J. In fact, T.C. "has made no attempt to show that he has complied with the legal requirements of [Utah] or of any other state in order to establish a legally recognized relationship with the child whose adoption he intends to interrupt." Osborne v.Adoption Ctr. of Choice, 2003 UT 15, ¶ 34, 70 P.3d 58 (emphasis added). T.C. has not cited a single Oklahoma statute or case that demonstrates that his parental rights have been preserved under Oklahoma law by virtue of the Oklahoma order. In short, T.C. has failed to demonstrate any conflict between Utah and Oklahoma law.

¶ 33 Furthermore, the majority ignores the fact that any compliance with Oklahoma law is immaterial given that Utah has the most significant relationship to the adoption proceedings and the fact that Utah law, rather than Oklahoma law, applies.See Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 14, 54 P.3d 1054 ("In Utah we apply the `most significant relationship' approach as described in the Restatement (Second) of Conflict of Laws in determining which state's law should apply to a given circumstance."). *Page 1249 Where the nature of a given claim involves a status adjudication, "the state where the child resides is a highly significant factor" in determining the applicability of a given state's law. In re S.O., 2005 UT App 393, ¶ 7,122 P.3d 686 (mem.) (per curiam). Other relevant factors include whether "facts pertaining to . . . [the] potential adoptive parents are readily available" in one state instead of another and whether another state has "declined jurisdiction over the child custody proceeding." Id. With respect to adoption proceedings — a specific type of status adjudication — the Restatement (Second) Conflict of Laws states that "[a] court applies its own local law in determining whether to grant an adoption." Restatement (Second) Conflict of Laws § 289 (1971). Here, the residence of K.C.J., the biological mother, and the adoptive parents, as well as Oklahoma's refusal to assert jurisdiction over child custody proceedings, all demonstrate that Utah has a more significant relationship with the child and that Utah law applies.

¶ 34 Even if full faith and credit were given to Oklahoma's adjudication of T.C.'s biological fatherhood, T.C. would not be able to escape the deadlines imposed by Utah law. Utah law recognizes an adjudicated biological father's right to consent or refuse to consent to an adoption, but it does so only where the adjudication of paternity occurred "prior to the mother's execution of consent to adoption or her relinquishment of the child for adoption." Utah Code Ann. § 78-30-4.14(1)(d) (Supp. 2006) (emphasis added). T.C. did not file for or obtain Oklahoma's adjudication of paternity until after Mother's relinquishment of K.C.J. Additionally, there is no indication in the record that T.C. filed an affidavit setting forth his ability and plan to care for K.C.J. or made any offers to pay for expenses incurred in connection with K.C.J.'s birth. See id. § 78-3(M.14(6)(a)-(d) (listing the actions an unmarried biological father must take to preserve his right to consent where he does not obtain an adjudication of paternity prior to the mother's relinquishment of the child for adoption). Mother's relinquishment therefore constituted the cutoff date for T.C.'s "right in relation to the child." Id. § 78-30-4.14(11).

¶ 35 The majority erroneously overlooks T.C.'s failure to comply with Utah statutes, his failure to offer any justification for his lack of compliance, and his waiver of rights to notice and consent that resulted therefrom. There is absolutely no justification under Utah law for compromising this child's stable home by affording T.C. the second-chance hearing contemplated by the majority. I therefore respectfully dissent.

1 Utah Code section 78-30-4.13 provides that "[i]n order to preserve any right to notice and consent, an unmarried biological father may . . . [1] initiate proceedings to establish paternity . . . and . . . [2] file a notice of the initiation proceedings . . . with the state registrar of vital statistics within the [Utah] Department of Health." Utah Code Ann. § 78-30-4.13(3)(a)(i)-(ii) (Supp. 2006). He must do these things "prior to the mother's . . . relinquishment of the child for adoption." Id. § 78-30-4.13(3)(d)(ii)(B) (emphasis added).
2 Utah Code section 78-30-4.14 specifies that in order to preserve the right to consent or refuse to consent to an adoption, an unmarried biological father must receive an adjudication of paternity "prior to the mother's execution of consent to adoption or her relinquishment of the child for adoption." Id. § 78-30-4.14(1)(d) (emphasis added). Alternatively, he must initiate a paternity proceeding, file an affidavit regarding his ability to care for the child, file a notice of the paternity proceeding, and offer to pay expenses "prior to the time the mother executes her consent for adoption or relinquishes the child for adoption." Id. § 78-30-4.14(6) (emphasis added).
3 T.C. has never filed a motion to intervene in the adoption proceeding, never filed his own affidavit, and never even alleged in any sort of pleading before the district court or this court that Mother's statements were anything other than accurate.