In Re Adoption of T.B.

¶ 52 I respectfully dissent. Unlike the majority, I conclude that the putative father's conduct and his interactions with T.B. were sufficient to establish a constitutionally protected substantial relationship under the Due Process Clause of the United States Constitution.

¶ 53 The majority correctly identifies the standard established by the United States Supreme Court for an unwed biological father to gain constitutional protection for his relationship with his child. The majority states that "[i]nLehr v. Robertson, the Court determined that what the Due Process Clause protects, at least as far as an unwed natural father is concerned, is the opportunity to assume a responsible role in the future of his child."Supra ¶ 31. While the majority also correctly states that in a vast number of cases, state laws adequately protect this opportunity, "[i]n some cases . . . the Federal Constitution supersedes state law" to provide greater protection for certain parent-child relationships. Lehr v.Robertson, 463 U.S. 248, 257, 103 S.Ct. 2985,77 L.Ed.2d 614 (1983). This parental right "[does] not spring full-blown from the biological connection between parent and child," but "require[s] relationships more enduring." Id. at 260,103 S.Ct. 2985 (emphasis and internal quotation marks omitted). Indeed, it is only "[w]hen an unwed father demonstrates a full commitment to the responsibilities of parent-hood by coming forward to participate in the rearing of his child," that his relationship "with his child acquires substantial protection under the Due Process Clause." Id. at 261,103 S.Ct. 2985 (internal quotation marks omitted).

¶ 54 Although the majority correctly concludes that federal constitutional protection may arise to protect a father's substantial relationship with his child, according to the majority, this constitutional right is only triggered if the father's relationship with his child is for "years."Supra ¶ 33 n. 22. Indeed, the majority states that "less than two months of interaction between an unwed natural father and his child is [in]sufficient to confer full-blown constitutionally protected parental rights on a putative father."¹ Supra ¶ 33.

¶ 55 Contrary to the majority's statement, there is nothing in the relevant Supreme *Page 1039 Court jurisprudence that so much as suggests that the Court has endorsed any minimum time period for the creation of a more "enduring" relationship worthy of constitutional recognition, much less that it must be a relationship over a period of years. In fact, the majority itself recognizes that "the Supreme Court has not examined how long a relationship must endure before it will be deemed the kind of `substantial relationship' that gives rise to [a] liberty interest" worthy of constitutional protection, supra ¶ 34, nor has the Supreme Court definitively addressed "how much responsibility a father must bear to acquire the right to veto an adoptive placement."² Supra ¶ 39. Thus, while the Supreme Court cases offer guidance on how to define a substantial relationship, whether a substantial relationship between father and child exists depends on the particular facts of each case.

¶ 56 I recognize that the child's age in this case presents a perplexing problem: the *Page 1040 United States Supreme Court precedent protects an unwed father's opportunity to assume a responsible role in the life of his child, and yet, in this case, the father's parental rights were terminated before the father had much of an opportunity to do so. But the fact that a father has had little time to develop this relationship does not conclusively preclude a relationship from arising. Lehr only requires that the putative father take "some measure of responsibility for the child's future," which can be accomplished even over a short duration of time. SeeLehr, 463 U.S. at 262, 103 S.Ct. 2985.

¶ 57 When I examine the facts of the present case, short of strict compliance with our statutory mandates, it is difficult to imagine what additional measures the father could have undertaken to secure a constitutionally protected parent-child bond with his daughter. As the majority noted, "[t]he putative father was aware of the pregnancy and made attempts to obtain receipts" in an effort to assist with prenatal medical expenses. Supra, ¶ 4. He "requested that the natural mother sign a release allowing him access to T.B.'s medical information so that he could monitor T.B.'s progress during the pregnancy." Id. ¶ 4. Despite active efforts by the family to exclude him, the father found the mother the day of T.B.'s birth, and was present in the hospital the day his child was born. Id. ¶ 5. After T.B.'s birth, the father entered into an agreement to pay child support, visited the child for several hours multiple times a week, "purchased child care supplies," took family pictures with T.B., and at all times "insisted on remaining involved in T.B.'s life." Id. ¶¶ 6-7.

¶ 58 T.B.'s father concedes that he did not comply with the four statutory riling requirements that are conditions to including an unwed biological father within the class of persons whose consent must be obtained before a child may be adopted. I would not find the statutory requirements to be unconstitutional, but neither would I make it impossible for a father to establish a constitutionally recognized relationship simply because he failed to strictly comply with the statute.See Osborne v. Adoption Ctr. of Choice, 2003 UT 15, ¶ 70, 70 P.3d 58 (Durham, J., dissenting) ("To terminate [this father's] fully developed parental rights without notice and a hearing, based on strict application of statutory requirements, violates notions of fundamental fairness."). I believe that T.B.'s father "did what was reasonably possible in the time he had The law does not intend that impossible requirements be met." See Escobedo v. Nickita,365 Ark. 548, 231 S.W.3d 601, 618-19 (2006)(Hannah, J., dissenting) (citation omitted). It is for these reasons that I decline to join the majority's opinion.

¶ 59 Chief Justice DURHAM concurs in Justice NEHRING'S dissenting opinion.

¹ To bolster its assertion that years are required to develop a substantial relationship, the majority relies heavily on Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208,31 L.Ed.2d 551 (1972) and Cuban v. Mohammed,441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), two cases where the United States Supreme Court recognized a substantial relationship between an unwed father and his child after years of interaction. The majority also relies on Lehr v.Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) and Quilloin v. Walcott, 434 U.S. 246,98 S.Ct. 549, 54 L.Ed.2d 511 (1978) to argue that the relationship between T.B.'s father and his child more closely mirrors the facts in cases where the Court has declined to recognize a substantial relationship warranting federal constitutional protection.

While T.B.'s father did not assume responsibility for his daughter for a period spanning "years," it is also inaccurate to characterize T.B.'s father as taking "no responsibility" at all, like the father in Lehr, 463 U.S. at 262,103 S.Ct. 2985, or as being only sporadically and irregularly involved from "time to time" like the father inQuilloin, 434 U.S. at 251, 98 S.Ct. 549. Rather, T.B.'s father falls somewhere on the spectrum between these cases. While the majority finds nothing that confirms that two months of weekly parental responsibility is enough to create an enduring relationship worthy of constitutional protection, I find nothing in the relevant United States Supreme Court precedent that prevents recognition of a substantial relationship under these circumstances.

² The majority also relies substantially onQuilloin, 434 U.S.' 246, 98 S.Ct. 549, to assert that a father must take more action than T.B.'s father did in this case in order to trigger a federal constitutional liberty interest requiring substantial protection. Seesupra ¶ 38. Quilloin involved the constitutionality of a state statute that authorized adoption of a child born out of wed-lock without the consent of the natural father.434 U.S. at 247, 98 S.Ct. 549. In the eleven years preceding the adoption, the father never sought to legitimize his child, nor did he, at any point, seek custody over him. Id. at 249,98 S.Ct. 549. The father had notice of the adoption proceedings and participated in a hearing where he was allowed to address "any issue" he desired. Id. at 250, 98 S.Ct. 549. At the hearing, extensive testimony from the parties established that the father "provided support only on an irregular basis," "[gave] toys and gifts" to his child "from time to time," and visited his child sporadically for the first eleven years of the child's life. Id. at 250-51, 98 S.Ct. 549. Further, the mother testified that the contacts with the father "were having a disruptive effect on the child" and "[t]he child himself expressed a desire to be adopted by [his step-father] and to take on [his stepfather's] name." Id. at 251,98 S.Ct. 549. From this evidence, the trial court found that an adoptive placement with the child's step-father was in the best interest of the child. Id.

On appeal, the father made both an equal protection and a due process argument that his substantive rights were violated by the application of the best interests of the child standard.Id. at 254, 98 S.Ct. 549. The Court rejected the father's claims and stated the father "never exercised actual or legal custody over his child, and thus . . . never shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the child." Id. at 256, 98 S.Ct. 549.

T.B.'s case is factually distinguishable fromQuilloin. First, unlike the father inQuilloin, T.B.'s father had no knowledge, notice, or opportunity to participate in the adoption proceedings and was thus not presented with the same opportunities to be heard as the father in Quilloin. Compare supra 18 withQuilloin, 434 U.S. at 249-50, 98 S.Ct. 549.

Second, unlike Quilloin, T.B.'s father had a very short time period to interact with T.B. before his parental rights were terminated, and thus his opportunity to demonstrate his intent to parent T.B. was significantly more limited. In spite of this limitation, and unlike the father inQuilloin, T.B.'s father sought to be T.B.'s parent and at all times "insisted" on being involved in T.B.'s life. In his two-month period with T.B., T.B.'s father took on several parental-like responsibilities relative to the care and protection of his child. See supra ¶¶ 6-7. Although T.B.'s father never exercised actual or legal custody of his daughter, his multiple visits each week and his contribution of time and money to the child's upbringing establishes an interaction that was significantly greater than the isolated and sporadic contacts and support of the father inQuilloin.

Finally, while throughout the majority's opinion it emphasizes the need for an enduring relationship for "years,"Quilloin demonstrates that it is the substance and quality of the father's actions that is most critical to the analysis, not the duration of the relationship. Indeed, a focus on the duration contributes to the cruel irony that, while here, the father's claims fail because his parental relationship with T.B. was too brief, in Quilloin, the father's relationship fails because it was too long.