(dissenting):
I respectfully dissent as I would reverse the trial court’s granting of summary judgment in favor of the mother and LDS Social Services. Under the facts alleged in this case, I believe the father deserves, at the least, an evidentiary hearing to determine whether the adoption statute as applied to him denied him due process of law.
Utah courts have consistently found Utah’s adoption statute facially constitutional under *899due process standards. See, e.g., Wells v. Children’s Aid Soc’y, 681 P.2d 199, 207 (Utah 1984); In re Adoption of W, 904 P.2d 1113, 1121-22 (Utah App.1995) (plurality opinion). However, in two cases the supreme court has remanded for evidentiary hearings to determine if the statute as applied violated due process. See In re Adoption of Baby Boy Doe, 717 P.2d 686, 689 (Utah 1986) (‘“[A] statute fair upon its face may be shown to be void and unenforceable as applied.’ ”) (citation omitted); Ellis v. Social Servs. Dep’t, 615 P.2d 1250, 1256 (Utah 1980) (“[D]ue process requires that [the father] be permitted to show that he was not afforded a reasonable opportunity to comply with the statute.”). In another case before this court, we recognized that an evidentiary hearing would have benefited an unwed father who untimely filed his notice of paternity and held that the statute, as applied, violated the father’s due process rights as a matter of law. In re K.B.E., 740 P.2d 292, 297 (Utah App.1987). In general, “the standards enunciated in those cases were developed in recognition of the need to balance the competing interests in this type of case: the significant state interest in speedily placing infants for adoption and the constitutionally protected rights of putative fathers.” Adoption of Baby Boy Doe, 717 P.2d at 691.
This court has recognized “the statute was ‘not created to encourage a “race” for placement to cut off the rights of fathers who are identified and present’ ” K.B.E., 740 P.2d at 296 (quoting Sanchez v. LDS Social Servs., 680 P.2d 753, 756 (Utah 1984) (Durham, J., dissenting)). Similarly, the supreme court has recognized the statute “was designed to facilitate permanent and secure placement of illegitimate children whose unwed mothers wish to give them up for adoption and whose unwed fathers take no steps to officially identify themselves and acknowledge paternity.” Swayne v. LDS Social Servs., 795 P.2d 637, 641 (Utah 1990) (emphasis added); see also Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 2993, 77 L.Ed.2d 614 (1983) (“When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘com[ing] forward to participate in the rearing of his child,’ ... his interest in personal contact with his child acquires substantial protection under the Due Process Clause.”) (citation omitted); Swayne, 795 P.2d at 646 (“[W]here the father’s identity was known to all concerned, he had informally acknowledged his paternity, he was readily available, he had indicated a desire to participate in the raising of the child, but he had failed to file a formal acknowledgment of paternity,” the adoption statute violates equal protection.) (Zimmerman, J., concurring and dissenting).
In this case, the nineteen-year-old, admitted father clearly asserted his interest in having custody of his child immediately upon being told of his girlfriend’s pregnancy. Throughout the mother’s pregnancy, whenever he was contacted by the mother or LDS Social Services, he continued to express his opposition to an adoption and his desire to have custody of his child. As soon as the father discovered the mother had relocated to Utah to give birth to the child, he filed a paternity action in California. In this action, he admitted paternity and asked for sole legal and physical custody. He also requested a restraining order to prevent the mother from placing the child for adoption. Furthermore, almost two weeks before the child was born, the father notified both the mother and LDS Social Services by certified mail that he had filed this action and was seeking custody of the child.
Two days after the father had instituted his paternity action, he received the following letter from LDS Social Services:
This letter is to inform you that Denise Allan is being assisted by this agency in making an adoption plan for her child which is due to be delivered the end of November 1994. She has named you as a possible father of her unborn child....
Thank you for the background information you have already completed. It would be helpful if you could complete the family history pages and the WAIVER (duplicate) signed in the presence of a notary....
This letter well could have misled the father into believing his rights were protected as long as he did not sign and return the waiver. The father immediately responded by mailing LDS Social Services the following *900letter along with a copy of the action he had filed in California:
Please be advised that I have filed a Complaint to Establish a Paternal Relationship requesting custody of our unborn child in the Superior Court of California, Case No. PF000505.
I do not intend to give up any of my paternal rights to this child, and ... I intend to pursue custody of my child as vigously [sic] as possible.
I am enclosing a copy of the action filed here on October 26,1994, and [the mother] will be served with this action as quickly as that can be arranged.
If you have any questions, please contact me.
He received no response. The father also called Beverly R. Becker, the person at LDS Social Services who had sent him the letter. He told her that he intended to take custody of the child rather than permit the mother to place the child for adoption. Ms. Becker hung up on the father.1
Defendant’s temporary move to Utah put the father at a distinct disadvantage in attempting to assert his parental rights. Our case law, as well as the recent amendments to the adoption statute, recognize that an unwed father who resides out of state is in a more difficult position to strictly comply with Utah’s statutory procedures. See Utah Code Ann. § 78-30-4.15(4) (Supp.1996) (“The Legislature finds that an unmarried biological father who resides in another state may not, in every circumstance, be reasonably presumed to know of, and strictly comply with, the requirements of this chapter.”); Swayne, 795 P.2d at 642 (Utah 1990) (listing father’s out-of-state residency as a factor for determining whether it was impossible for father to file timely notice of paternity); Adoption of Baby Boy Doe, 717 P.2d at 691 (same).
In this case, both the mother and LDS Social Services were fully aware of the father’s opposition to the adoption, his desire for custody of his child, and his initiation of legal steps to protect his parental rights in a California paternity action. All this was known before the child was born and before the mother relinquished the child for adoption. Unlike the unwed fathers in other cases dealing with this issue, the father initiated a paternity action and notified all parties involved of such action before the birth of his child. See, e.g., Adoption of Baby Boy Doe, 717 P.2d at 691 (remanding for eviden-tiary hearing because father was not Utah resident and all parties knew of his intent to keep child even though father had not filed notice of paternity or paternity action before child was born or placed for adoption); Adoption of W, 904 P.2d at 1115, 1122-23 (plurality opinion) (affirming termination of father’s parental rights where father, a resident of Indiana, filed paternity action in Indiana after child was bom but did not notify any other parties of action until two months later). Moreover, the father was without the benefit of counsel. He proceeded pro se in his California paternity action. This action and his consistent communication with the mother and LDS Social Services appears to be the only avenues the father knew of to protect his rights to his child.
The majority contends our recent decision in In re Adoption of W, 904 P.2d 1113 (Utah App.1995) (plurality opinion), compels the conclusion that the father’s due process rights were not violated. First, I note that the analysis in this case is not controlling legal precedent as both Judge Davis and I merely concurred in the result. Id. at 1123. Further, I believe there are significant factual differences between these cases. Although in both cases the father filed a paternity action in another state, in Adoption of W the father filed his action after the adoption petition was filed and did not notify anyone of his action until two months later. Id. at 1115. In contrast, the father in this case filed his paternity action and notified both *901the mother and LDS Social Services before the child was born or placed for adoption. Also, throughout this case, the father persistently and diligently corresponded with the mother and the agency, attempting to assert his parental rights in his child. In Adoption of W, the father repeatedly went months between sporadic actions. Id. It was this inconsistent behavior which allowed me to concur in the result in Adoption of W.
The majority concludes the Adoption of W father had a stronger case than the father in the present case because he eventually filed a notice of paternity over eight months after he learned the child was the subject of adoption proceedings in Utah. However, here, the father instituted an action in Utah besides his California action within two months of the child’s birth and immediately upon learning the California action may not be effective in protecting his rights. Under these facts, relying on the filing of a notice of paternity requirement elevates form over substance in an area where fundamental constitutional rights are involved. Moreover, I agree with the father that once the statutory period had elapsed and it was clear all parties knew of his objection to the adoption and his desire to have custody of his child, a late filing of the notice would have been futile. It is well established that the law does not require litigants to do a futile or vain act. See, e.g., Jenkins v. Equip. Ctr., Inc., 869 P.2d 1000, 1003 (Utah App.1994). Additionally, the putative father in Adoption of W was given an evidentiary hearing. 904 P.2d at 1116. Whereas, in this case, the father has been denied a hearing to establish that his constitutional rights were denied.
Further, the facts of this case demonstrate why a prompt evidentiary hearing should have been granted and why the purpose of the adoption statute should govern over rigid form. The statutory registration bar should not be imposed to “protect” the newborn child and adoptive parents from an unwed father who has timely identified himself to the mother, the agency, and the court, and who has repeatedly, before the birth of the child, expressed to all parties involved his desire for custody of his child. Justice White characterized this type of strict compliance with a registration statute, when a father is known to the parties involved, as “a grudging and crabbed approach to due process.” Lehr v. Robertson, 463 U.S. 248, 275, 103 S.Ct. 2985, 3000, 77 L.Ed.2d 614 (1983) (White, J., dissenting). When an unwed father has “effectively made himself known by other means, ... it is the sheerest formalism to deny him a hearing because he informed the State in the wrong manner.” Id. (White, J., dissenting).
The majority claims strict compliance with the adoption statute is necessary to “provide certainty and finality to adoptions so that the parties involved, especially the child, are not compromised.” I acknowledge that the statutory scheme is necessary and good public policy in the normal situation where it is applied to promptly terminate the parental rights of an unknown or disinterested unwed father. I also have great sympathy for the adoptive parents involved in this ease and consider them, along with the child, innocent victims of a misapplication of the statutory scheme. My concern for each of the parties in this action reinforces my belief that when the identity of the father is known and his desire for custody expressed before the child is relinquished for adoption, a strict application of the registry statute and denial of notice and a hearing to the father fails to promote finality. In Lehr, Justice White similarly opined,
denying notice and a hearing to such a father may result in years of additional litigation and threaten the reopening of adoption proceedings and the vacation of the adoption. Here, the Family Court’s unseemly rush to enter an adoption order after ordering that cause be shown why the filiation proceeding should not be transferred and consolidated with the adoption proceeding can hardly be justified by the interest in finality. To the contrary, the adoption order entered ... has remained open to question until this very day.
Lehr, 463 U.S. at 276, 103 S.Ct. at 3001 (1983) (White, J., dissenting).
Certainly it was not the intent of our legislature to create a procedure which works against the speedy establishment of perma*902nent homes for children of unwed parents. The application of the adoption statute in this ease has led to two years of prolonged and expensive litigation. Furthermore, the strict application of our statute urged by the majority goes against the better judgment of many of our sister states.2
Further, LDS Social Services’ disregard for the rights of known unwed fathers is troubling. The majority responds to the father’s argument that the agency should have mailed him a notice of paternity form or at least notified him of the filing requirements in Utah, by stating that such notice is not constitutionally required and ignorance of the law is never an excuse. However, I believe this view confuses the use of the term “notice.” The case law relied on by the majority are cases stating the father did not properly file his claim of paternity form and thus was not entitled to notice of the adoption proceedings. Requiring the agency to give notice of the adoption proceedings is different than a duty to make the notice of paternity forms available to known unwed fathers objecting to an adoption or the duty to inform a young, out-of-state, unwed father of his legal rights. Utah Code Ann. § 78-30-4.8(1) (1992) provides: “The Department of Health shall provide forms for the purpose of filing the notices of paternity described in this section. Forms shall be made available ... in every licensed child placing agency.” (emphasis added). When a state licensed child placement agency that is required to make paternity notice forms available, fails to mention such a requirement to an unwed father, who is in regular contact with them and attempting to assert his interest in his unborn child, the purpose of the statute is frustrated and litigation becomes almost certain.
LDS Social Services responds to the father’s argument by claiming it has a duty of loyalty to the mother and thus it should not provide the father with any information. However, this court has stated “[t]he general legislative intent of Utah’s adoption statute is ‘that in every adoption the best interest of the child should govern and be of foremost concern.’” In re Adoption of C.M.G., 869 P.2d 997, 998 (Utah App.1994) (citation omitted). Also, “[w]hen a private party facilitates a mother’s relinquishment, as was the case here, the party becomes a state actor if it also effectuates the state’s termination of the father’s rights.” Swayne, 795 P.2d at 640. I believe it is in the child’s best interest for an adoption agency to fully inform the father of his rights, for a father to be able to make an informed choice, and for a prompt evidentia-*903ry hearing to be held so that the child may expeditiously be placed in a stable, permanent home.
LDS Social Services clearly could have avoided the litigation we have before us by simply informing the father that these forms were available through their agency and were necessary for him to assert his rights. Even if mailing the form to the presumably small number of out-of-state fathers timely expressing interest in their children would be too burdensome, a single sentence in the letter sent to the father requesting background information and asking that he waive his parental rights could have informed the father of the statutory requirements in Utah to protect his parental rights. Had the father received this form, he could have mailed it in, received notice of the adoption proceedings, and had the best interests of the child promptly determined at an evidentiary hearing. Instead, the parties involved, and most importantly the child, are enduring years of exhausting litigation and uncertainty.
In my view, the father is entitled to, at least, an evidentiary hearing to determine whether the statute as applied to the facts of this case denied him due process. I would further conclude that, if the facts develop as the father alleges, the application of the adoption statute to terminate his parental rights denied him due process of law. I therefore respectfully dissent.
. The majority discounts the father’s affidavit recalling this event by relying on a subsequent deposition response that appears to contradict his affidavit. However, " '[a]ffidavits and depositions submitted in support of and in opposition to a motion for summary judgment may be used only to determine whether a material issue of fact exists, not to determine whether one party's case is less persuasive than another's.’ ” Ron Shepherd Ins. v. Shields, 882 P.2d 650, 655 (Utah 1994) (citation omitted). In my view, these are precisely the sort of pivotal facts that should have been determined in an evidentiary hearing before the trial court.
. In each of these states, when an identified father is affirmatively attempting to establish paternity and gain custody, the basic due process requirement of notice is required. Such notice balances the rights of the known father with the ultimate purpose of our statute—the prompt and permanent placement of the child. This system is operating successfully in at least eight states. In three states, an initial notice of a pending adoption must be given to all putative fathers before the child is relinquished to the adoption agency. See Ariz.Rev.Stat.Ann. § 8-106(G) (Supp.1995) (requiring initial notice to all potential fathers of intended adoption, of father’s right to consent or withhold consent, of father’s responsibility to initiate paternity proceedings, of father's right to seek custody, and of father's responsibility to provide financial support when paternity is established); Cal.Fam.Code §§ 7662, 7664 (West 1994) (requiring termination of parental rights if putative father has not denied paternity, waived his right to notice by failing to respond to initial notice that alleges him as putative father, and adoption of child is planned); NJ.Stat.Ann. § 9:3-45 (West Supp.1996) (requiring putative father to respond within twenty days if resident and thirty-five days if nonresident to initial notice informing father of intention to place child for adoption and need to respond to notice to object to adoption). In three other states notice must be given to or consent obtained from any father whose identity is known, and in one of these states, when the father’s identity is ascertainable. See Conn.Gen.Stat. Ann. §§ 45a-717, 46b-172a (West 1995 & Supp. 1996) (allowing putative father to receive notice if mother has identified him); Ind.Code Ann. § 31-3-1-6.1 (Bums Supp.1996) (providing if mother has identified putative father to adoption agency on or before she gives consent for adoption, named father is entitled to notice of adoption proceedings); Mo.Ann.Stat. §§ 453.030, 453.040 (Vernon 1986 & Supp.1996) (requiring consent if parent’s identity is known or ascertainable). Two other states do not require putative fathers to file a claim of paternity if they have instituted a paternity action. Minn.Stat.Ann. § 259.51 (West Supp.1996) (requiring putative father to file claim of paternity within ninety days of child’s birth or sixty days of placement for adoption, unless he has instituted paternity action); Ohio Rev.Code Ann. § 3107.06(F) (Page 1996) (allowing putative father to receive notice if at any time before child is relinquished for adoption, he has alleged to be the father in paternity action).