Brooks v. A.S.

2015 UT 35, 345 P.3d 709, 2015 Utah LEXIS 83, 2015 WL 500898

• Court: Utah Supreme Court
• Decided: February 6, 2015
• Docket: No. 20120683
• Status: Published

Opinions

Justice LEE,

opinion of the Court:

1 1 This case, like Nevares v. M.L.S., 2015 UT 34, 345 P.3d 719, presents questions concerning the applicability and constitutionality of Utah Code section 78B-6-111. That provision forbids a biological father from challenging an adoption when his child was conceived as a result of conduct that would constitute any sexual offense? described in the Utah Criminal Code. In this case and in Nevares, the statutory question presented is whether this provision can properly be construed to encompass sexual conduct in another state that would have been criminal if engaged in Utah. And in both cases the biological father also asserts that such application of section 111 would violate his constitutional right to due process of law.

1 2 We resolve this case on the basis of our opinion in Nevares. We hold that the sexual offense[s]? described in section 111 do not encompass activities outside of Utah involving non-Utahns. And on the basis of that conclusion, we reverse the denial of the father's petition to intervene and remand for further proceedings not inconsistent with this opinion.

I

18 Jacob David Brooks and the birth mother, both Pennsylvania residents, conceived a child together in Pennsylvania. At the time, Brooks was eighteen and the birth mother was fourteen. Due to this age difference, the sexual relationship between the two of them was prohibited by Pennsylvania criminal law. See 18 Pa. Cons. Stat. § 3122.1 (2014) (statutory sexual assault); id. § 3128(a)(7) (involuntary deviate sexual intercourse); id. § 3126(a)(8) (indecent assault). Brooks was later charged in Pennsylvania with statutory sexual assault and corruption of minors, but pled guilty to indecent assault, a misdemeanor.

T4 Meanwhile, the birth mother made preparations to place the child for adoption in Utah. Brooks objected to these designs, though it is unclear whether he knew the planned location for the adoption. In time, the child was born and then relinquished for adoption twenty-four hours later. The adoptive parents filed an adoption petition in Utah, which Brooks became aware of two weeks later. Brooks subsequently filed pa ternity documents in both Utah and Pennsylvania, as well as a motion to intervene in the Utah adoption proceedings.

T5 The Fourth District Court denied Brooks's motion to intervene, citing Utah Code section 78B-6-111. This section states,

A biological father is not entitled to notice of an adoption proceeding, nor is the consent of a biological father required in connection with an adoption proceeding, in cases where it is shown that the child who is the subject of the proceeding was conceived as a result of conduct which would constitute any sexual offense described in Title 76, Chapter 5, Part 4, regardless of whether the biological father is formally charged with or convicted of a eriminal offense.

Id. (Emphasis added). According to the district court, Brooks's conduct constituted a sexual crime under Utah Code section 76-5-401, placing his conduct within section 78B-6-111's reach. For this reason, the district court found that Brooks had no right to contest the adoption. It thus denied his motion to intervene on that basis.

T6 Brooks filed this appeal. In challenging the denial of his motion to intervene, Brooks raises legal questions concerning the interpretation and constitutionality of section 111. Our review is accordingly de novo. See Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35, ¶ 41, 308 P.3d 382.

II

T7 A threshold question is whether the interpretation and constitutionality of section 111 are properly before us on appeal. That question implicates the law of preservation and of adequate briefing. For reasons set forth below, we hold that Brooks preserved these issues in the district court and adequately briefed them on appeal to this court.

18 First, both the statutory and constitutional aspects of Brooks's case were presented to the district court. In a memorandum filed with the district court, Brooks asserted that the key question is "whether Utah or Pennsylvania law applies" and argued that "Pennsylvania law should apply to this case." Later, at his hearing, Brooks argued that section 111 was "unconstitutional from a due process standpoint." And although he framed his constitutional arguments generally in terms of a concern about "forum shopping," he also asserted that a statute employed to "cut him out" of his parental rights was a "violation of due process."

¶ 9 Brooks's counsel's statutory and constitutional arguments in the district court were relatively superficial, Thus, instead of presenting a careful analysis of the questions of statutory and constitutional interpretation presented, Brooks's counsel devoted most of his energy to developing a factual record of what he saw as the misdeeds of the adoption agency officials involved in the case. Specifically, in the district court and again on appeal, counsel presented extensive transcripts of telephone calls to the adoption agency, highlighting what counsel saw as the overly aggressive assertions and positions taken by the agency's representatives.² That tack was unproductive. Counsel would have been far better served staying focused on the legal questions at issue; the attempt to smear an opponent with a sideshow based on a sting operation was unhelpful.

1 10 That said, the legal questions presented are important, and counsel adequately preserved them below. Brooks raised both statutory and constitutional questions in the district court, and we therefore deem them preserved for purposes of appeal.

{11 We likewise find these issues adequately briefed on appeal. In his opening brief on appeal, Brooks asserted that "the essence of the case" is that "[alppellees should not be permitted to rely on 78B-6-111, when Pennsylvania law should apply." And appellees, in their brief, responded to his statutory argument at some length. They asserted that "nothing in the language of Section T8B-6-111 limits its application to cases where the child was conceived in Utah," while insisting that "[what is important is whether the father's sexual relationship with the birth mother consists of the type of conduct described under Title 76, Chapter 5, Part 4 of the Utah Code." That is the key statutory question in this case (and in Nevares ).

{12 The constitutional arguments were also advanced on appeal. Brooks asserted that even if his relationship could constitute a sexual offense in Utah, "he nevertheless has a due process right and other constitutionally protected rights relating to his rights to parent his biological child." The point was made even more forcefully at oral argument, where counsel asserted that "[this case really revolves around ... whether or not a sex crime . obviates any need whatsoever to give notice and an opportunity to be heard to an out-of-state biological father," and that denying Brooks's right to intervene "violates ... due process" because "none of the parties had any connection whatsoever to Utah."

T 13 The briefing on the constitutional implications of section 111 was by no mean robust. But the constitutional question was presented, and an analysis of that issue aids our analysis of the threshold statutory question, which is properly preserved and argued on appeal. We accordingly proceed to the merits.

III

T14 The threshold question presented is whether Utah Code section 78B-6G-111 applies to the sexual activity between Brooks and the birth mother of J.M.S. That provision forecloses the parental rights of a biological father where "the child who is the subject of the proceeding was conceived as a result of conduct which would constitute any sexual offense described in Title 76, Chapter 5, Part 4, regardless of whether the biological father is formally charged with or convicted of a criminal offense." Urax Copz § 78B-6-111. The district court denied Brooks's motion to intervene on the ground that his child was "conceived as a result of conduct which would constitute" a sexual offense under Utah law.

115 We reverse on the ground that section 111 does not apply in this case. This conclusion follows from our analysis in Nevares v. M.L.S., 2015 UT 34, ¶¶ 27-43, 345 P.3d 719. As we concluded there, "section 111 is not implicated where, as here, the conduct in question could not have 'constitute[d] a sexual offense' under the referenced part of the Utah code because the activity involved non-Utahns outside of Utah, and thus could not have sustained a criminal charge under Title 76, Chapter 5, Part 4." Id. 1 28 (alteration in original).

{ 16 Our Nevares opinion based that determination on three grounds: "(1) the statute's 'regardless' clause, which suggests - (when read in light of semantic canons of construction) that all matters sufficient to sustain a 'formal[ ] charge[ I or 'conviet[ion]' must be established to trigger section 111; (2) the well-settled presumption against extraterritorial application of statutory provisions, which counsels in favor of limiting section 111 to offenses committed in Utah even if the statute were silent regarding its application to conduct outside of Utah;³ and (8) the canon of constitutional avoidance, which counsels in favor of limiting section 111 to offenses committed in Utah in light of the grave due process problems ⁴ associated with" the contrary construction.⁵ Id. ¶¶ 30-46 (alterations in original).

17 This analysis suffices to reverse the district court's determination in this case. Because section 111 has no application to Brooks's sexual activity in Pennsylvania, the district court erred in denying his motion to intervene under this provision.

IV

1 18 We reverse and remand on the basis of the above conclusions. In so doing, we do not hold that Brooks's motion should have been granted,. We simply conclude that Utah Code section 78B-6-111 should not be read to foreclose his parental rights. And because we interpret section 111 not to apply to sexual conduct lacking any jurisdictional nexus to Utah, we need not and do not reach the substantive due process question addressed by the dissent. Infra ¶ 33.

[ 19 In Nevares, we acknowledged the existence of legal means other than section 111 for a birth mother or adoptive parent to seek to terminate a father's parental rights on the basis of sexual misconduct. 2015 UT 34, ¶¶ 48-50, 345 P.3d 719. We concluded, specifically, that the law of the state in which a child was conceived could apply insofar as it provides for the termination of parental rights of a father of a child conceived as a result of criminal misconduct.⁶ Id. ¶¶ 48-49. Here the applicable law would be a Pennsylvania statute, 28 Pa. ConsStar § 2511 (2014). That provision has not yet been invoked in this case, but we flag it as potentially applicable if the parties should wish to raise it on remand.

T20 For this reason, we see no basis for the dissent's conclusion that "Mr. Brooks's sexual contact with J.M.S.'s mother was a serious felony where it occurred." Infro 133. Brooks has never been afforded any due process on that matter. He pled guilty to a lesser offense in Pennsylvania. But no court has ever determined whether he committed an offense triggering 28 Pa. Cons. Strat. § 2511 (2014). We leave the matter for further proceedings on remand. And, if the parties raise this question, we note that the matter would be subject to proof by clear and convincing evidence. See Santosky v. Kramer, 455 U.S. 745, 756-57, 102 S.Ct. 1388, 71 LEd.2d 599 (1982) (requiring proof of grounds for termination of parental rights by "clear and convincing evidence").

1 21 In remanding, we express no view as to the viability of any challenge raised under the cited Pennsylvania provision. And we resoive no other issues and express no view as to any other grounds that respondents may advance in response to Brooks's motion or that may arise in any subsequent proceedings regarding the adoption of the child in question.⁷

2 . Brooks's counsel apparently saw this as an opportunity to sway judicial sympathy in his favor. That was a misjudgment on his part. This is a court of law. And as judges we decide the cases that come before us in accordance with the governing provisions of the law, and not based on our sympathy for one of the parties or hostility toward another. Blatant attempts to stir bias against an opponent will often backfire.

3 . The concurrence asserts that section 111 "is not being applied extraterritorially" because it is "being applied within the state of Utah to a Utah adoption proceeding." Infra ¶ 25. But the conclusion does not follow from the premise. Most any question of extraterritoriality arises in a case in which a litigant is seeking to apply the forum state's law to another litigant's extraterritorial activity. See Nevares, 2015 UT 34, ¶ 35, 345 P.3d 719 (citing U.S. Bond & Fin. Corp. v. Nat'l Bldg. & Loan Ass'n of Am., 80 Utah 62, 17 P.2d 238, 239 (1932) (declining to apply Utah securities laws to "a contract made and executed in another state"); Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247, 262-65, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010) (holding that anti-fraud provision of federal securities statute did not apply extraterritorially to case involving foreign plaintiffs suing foreign and American defendants in federal court); State v. Reed, 709 P.2d 391, 392 (Utah 1985) (declining to give extraterritorial effect to Utah sentencing provision regarding concurrent sentences in case involving defendant subject to simultaneous sentence in California). Our holding, moreover, does not at all foreclose the application of Utah "adoption statutes" to a case involving "non-resident parents." Infra 125. Instead, as explained in Nevares, Utah adoption law remains intact and is properly applicable. See Nevares, 2015 UT 34, ¶ 49 & n. 19, 345 P.3d 719. We simply construe section 111-a "law regulating sexual activity''-not to apply. Id. 149. And in its place we conclude that Pennsylvania law could be invoked, and that Utah adoption law would govern in all other respects. See id; infra ¶ 18.

4 . The dissent misperceives our analysis on this point. We reach no firm due process holding in Nevares; our point is simply that the application of section 111 to conduct lacking any jurisdictional nexus to Utah would introduce serious due process concerns. 2015 UT 34, 345 P.3d 719. Our approach here is identical. Thus, we do not hold that the extraterritorial application of section 111 violates the Due Process Clause, much less that "the state of Utah may be unable to make its own judgment as to whether Mr. Brooks's crime should disqualify him from intervening." Infra 137 (Durham, J., dissenting). Our holding is rooted in our interpretation of section 111. We leave for another day the question of the legislature's constitutional authority to dictate the effect of criminal activity on a father's right to intervene. And, as explained below, we identify provisions of Pennsylvania and Utah law that may operate in cases, like this one, where section 111 is inapplicable. See infra ¶ 18; Nevares, 2015 UT 34, ¶¶ 48-49, 345 P.3d 719 (articulating a choice of law basis for application of provisions of Utah law and of the state in which the father's sexual activity occurred).

5 . The concurrence criticizes our approach-of offering both an interpretation of the terms of section 111 and a constitutional avoidance argument as an alternative-as somehow a "disservice" to the "legal community." Infra ¶ 27. We see it differently. Alternative arguments have long been a standard convention in judicial opinions. They often aid in elucidating multiple points that combine to persuade the court of the basis for its conclusion. We present them in that spirit here.

6 . Our holding does not "ignore[] the weighty interests at stake for the state of Utah" in an adoption proceeding, or foreclose the possibility of an amendment to section 111 aimed at protecting the interests identified by the dissent. Infra ¶ 36. Our holding here and in Nevares is based purely in statutory interpretation. So we do not foreclose the legislature's right to legislate in this important field. The legislature may make amendments as it sees fit-subject, of course, to the limitations of the constitution (which we do not resolve conclusively in these cases).

7 . See, e.g., Utah Code § 78B-6-133(1) (calling for assessment of "whether proper grounds exist for the termination of ... [parental] rights" of a person "whose consent for an adoption is required"); id. § 78B-6-133(2)(b), (3) (if parental rights are not terminated, calling for "an eviden-tiary hearing to determine who should have custody of the child" based on "the child's best interest," and considering "evidence of psychological or emotional bonds that the child has formed with a third person, including the prospective adoptive parent," and "any detriment that a change in custody may cause the child"); id. § 78B-6-133(5) (noting that a "custody order entered pursuant to this section may ... (a) include provisions for: (i) parent-time; or (i) visitation by an interested third party; and (b) provide for the financial support of the child").