Brooks v. A.S.

Justice DURHAM,

dissenting:

182 As I explained in my concurrence in Nevares v. M.L.S., Utah Code section 78B-*7186-111 applies to all fathers whose paternal rights are based on a sex crime, regardless of whether they are subject to Utah's criminal jurisdiction. 2015 UT 34, ¶¶ 53-84, 345 P.3d 719 (Durham, J., concurring in the result). It therefore applies to Mr. Brooks.

133 However, unlike the conduct of the father in Nevares, Mr. Brooks's sexual contact with J.M.S.'s mother was a serious felony where it occurred. 18 Pa. Cons.Stat. § 8122.1 (2014) (making statutory sexual assault a second-degree felony when the perpetrator is between four and eleven years older than the victim). For this reason, he cannot appeal to the same constitutional doctrines that protected the father in Nevares. As the Seventh Circuit explained in Peña v. Mattox,

[NJlo court has gone so far as to hold that the mere fact of fatherhood, consequent upon a criminal act ... [and] not cemented ... by association with the child, creates an interest that the Constitution protects in the name of liberty.... The criminal does not acquire constitutional rights by his crime other than the procedural rights that the Constitution confers on criminal defendants.

84 F.3d 894, 900 (7th Cir.1996). Thus, denying Mr. Brooks the right to contest J.M.S.'s adoption does not infringe any of his constitutionally protected liberties and, therefore, does not violate the Due Process Clause.

134 The majority disagrees, suggesting that it may violate the Due Process Clause for Utah's criminal law to punish Mr. Brooks for the sexual assault he committed in Pennsylvania Supra ¶ 16 & nn. 3-5. This is correct and entirely sensible. Criminalizing Mr. Brooks's conduct, and punishing it, involved a host of difficult policy decisions: where to set the age limits on statutory rape, what penalty statutory rape should carry, whether people in Mr. Brooks's circumstances should be prosecuted, and what sort of plea deals they should be offered. Because Mr. Brooks's crime took place in Pennsylvania and affected-at the time-primarily citizens of Pennsylvania, these policy decisions rightfully belong to Pennsylvania.

35 But we are not deciding whether Mr. Brooks should be punished for the sexual assault he committed in Pennsylvania. Rather, we are deciding whether Mr. Brooks has a right to contest J.M.S.'s adoption, and this decision involves a very different set of policy questions. Should a father like Mr. Brooks be barred from contesting an adoption because of any sexual offense, or merely because of a violent one? Should an actual conviction be required to foreclose his rights, or is it sufficient for the adoption court to find, by clear and convincing evidence, that his paternal rights rest on criminal conduct? What if he is convicted of a misdemeanor on a plea bargain, as Mr. Brooks was here, but the undisputed facts clearly satisfy the elements of a serious felony?

136 The majority seems to suggest that, as a matter of constitutional law, all of these policy decisions must belong to Pennsylvania because that is where Mr. Brooks committed his crime. But in doing so, it ignores the weighty interests at stake for the state of Utah. Usually, a father like Mr. Brooks will be just one of four parties whose lives would be forever changed by an adoption: the father, the mother, the would-be adoptive parents, and the child. At the time of the adoption proceedings, at least two of these parties-the adoptive parents and the child-will usually be citizens of Utah, and frequently the child's mother will have become a Utah citizen as well. Further, the adoption proceedings will be taking place in a Utah court, and they will usually involve a Utah adoption agency that also has an interest in the outcome.

I 37 But according to the majority, despite the immense importance of this adoption to these Utahns, the state of Utah may be unable to make its own judgment as to whether Mr. Brooks's erime should disqualify him from intervening. Rather, it must simply accept the judgment of the Commonwealth of Pennsylvania-no matter how repugnant that judgment might be to the people of Utah, and no matter that Pennsylvania has no more jurisdiction over the adoption of J.M.S. than Utah had over the prosecution of Jacob Brooks.

138 The legislature's manifest intent in section 111 was to protect people like J.M.S. and J.M.S's mother from fathers like Mr. *719Brooks. If Mr. Brooks had a constitutionally protected liberty at stake, the Due Process Clause would restrict the legislature's ability to carry out its intent-procedural due process would guarantee Mr. Brooks notice and a hearing, and substantive due process would limit the legislature's power to cut off his paternal rights. But Mr. Brooks has no such liberty at stake, so nothing prevents the legislature's will from being carried out. Mr. Brooks should be barred from intervening in this adoption.