E.G. v. C.C.D.

2010 UT App 114, 233 P.3d 517, 655 Utah Adv. Rep. 43, 2010 Utah App. LEXIS 111

• Court: Court of Appeals of Utah
• Decided: May 6, 2010
• Docket: No. 20090101-CA
• Status: Published

Opinions

OPINION

VOROS, Judge:

€ 1 C.C.D. challenges the adoption of Baby Girl, arguing that the district court erred in allowing the adoption without his consent. The adoptive parents defend the district court's order. They contend that C.C.D.'s consent to the adoption was not necessary, because he failed to comply with relevant provisions of the Utah Adoption Act (the Act). We affirm. -

BACKGROUND

12 C.C.D. is the unmarried biological father of Baby Girl. He had a relationship with the birth mother for several months but was not in a relationship with her at the time Baby Girl was born. Three and a half months before Baby Girl was born, C.C.D. filed a Petition for Paternity and an Affidavit as required by Utah Code section 78B-6-121(8). See Utah Code Ann. § 78B-6-121(8) (Supp.2009). Both the Petition and the Affidavit stated C.C.D.'s desire for full custody of his child and his ability to provide a home for the child. He explained that he had been working two jobs in order to save money but that he planned to quit his second job when the baby was bora. He had saved money to buy clothes, a car seat, a crib, and other necessary baby items. He also offered to help the birth mother with expenses. He explained that his sister-in-law would care for the baby while he was at work, but that he would care for it the rest of the time. He also stated that he had met with various professionals to educate himself about chil-drearing and that he had experience with children. In the Petition, he proposed a division of some financial responsibilities between himself and the birth mother, but generally stated that he intended to provide full financial support for the child and would not request child support payments from the birth mother. C.C.D. also filed a Notice of Commencement of Paternity Proceedings with the Utah Department of Health Office of Vital Records and Statistics, as required by Utah Code section 7T8B-6-121(8)(c). See id. § T8B-6-121(8)(c).

{38 Baby Girl was born August 6, 2008. The birth mother signed a Consent for Adoption two days later. C.C.D. learned of the birth four days after that, when his attorney received a letter from the birth mother stating that she had given birth and consented to adoption. C.C.D. filed an objection to the adoption along with two affidavits again stating his desire to have full custody of the child and stating the efforts he had made to provide financial support to the birth mother.

T4 The district court determined that C.C.D. had not strictly complied with the provisions of Utah Code section 78B-6-121(8)(b) and (d) and therefore had failed to preserve his right to contest the adoption. C.C.D. appeals.

ISSUE AND STANDARD OF REVIEW

{T5 On appeal, C.C.D. contends that the district court erred in ruling that he failed to strictly comply with the requirements in Utah Code section 78B-6-121(8)(b) and (d) and, consequently, erred in coneclud-ing that the adoption could proceed without C.C.D.'s consent. First, C.C.D. argues that the district court misapplied subsection (b)(ii), which requires an unmarried biological father to "set[ ] forth his plans for care of the child," id. § 78B-6-121(8)(b)@j). C.C.D. contends that the district court violated his constitutional rights by requiring him to state how he planned to care for Baby Girl if he were deported. Next, C.C.D. argues that the district court misapplied subsection (b)(iii), which requires an unmarried biological father to "agree[] to a court order of child support and the payment of expenses incurred in connection with the mother's pregnancy and the child's birth," id. § 78B-6-121(8)(b)(iii), by finding that he did not agree to a court order of child support. Finally, C.C.D. argues that the district court misapplied subsection (B)(d). That subsection requires an unmarried biological father to aver that he has "offered to pay and paid a fair and reasonable amount of the expenses incurred in connection with the mother's pregnancy and the child's birth." Id. $ 78B-6-121(8)(d). C.C.D. contends that the district court misapplied this subsection and violated his due process rights by ruling that he did not pay any money to the birth mother prior to the birth. Because of our disposition, we consider only whether the district court erred in determining that C.C.D. failed to strictly comply with Utah Code section 78B-6-121(8)(b). "We review a district court's interpretation of a statute for correctness." O'Dea v. Olea, 2009 UT 46, ¶ 15, 217 P.3d 704.

ANALYSIS

T6 The State of Utah "has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner, in preventing the disruption of adoptive placements, and in holding parents accountable for meeting the needs of children." Utah Code Ann. § 78B-6-102(5)(a) (2008). In addition, "adoptive children have a right to permanence and stability in adoptive placements." Id. § 78B-6-102(5)(c). An unmarried biological father's consent to an adoption is not required unless he "demonstrates a timely and full commitment to the responsibilities of parenthood, both during pregnancy and upon the child's birth." Id. § 78B-6-102(5)(e). The Act specifies how he must demonstrate that commitment:

[Clonsent of an unmarried biological father is not required unless, prior to the time the mother executes her consent for adoption or relinquishes the child for adoption, the unmarried biological father:

(a) initiates proceedings in a district court of Utah to establish paternity under Title 78B, Chapter 15, Utah Uniform Parentage Act;

(b) files with the court that is presiding over the paternity proceeding a sworn affidavit:

(i) stating that he is fully able and willing to have full custody of the child;

(ii) setting forth his plans for care of the child; and

(ii) agreeing to a court order of child support and the payment of expenses incurred in connection with the mother's pregnancy and the child's birth;

(c) consistent with Subsection (4), files notice of the commencement of paternity proceedings, described in Subsection (8)(a), with the state registrar of vital statistics within the Department of Health, in a confidential registry established by the department for that purpose; and

(d) offered to pay and paid a fair and reasonable amount of the expenses incurred in connection with the mother's pregnancy and the child's birth, in accordance with his financial ability, unless:

(i) he did not have actual knowledge of the pregnancy;

(i) he was prevented from paying the expenses by the person or authorized agency having lawful custody of the child; or

(ii) the mother refuses to accept the unmarried biological father's offer to pay the expenses described in this Subsection (8)(d).

See id. § T8B-6-121(8) (Supp.2009). This language clearly requires an unmarried biological father seeking to preserve his parental rights to comply with every subsection of this statute, including subparts (b)G), (b)Gi), and A father who fails to satisfy even one of these requirements may not block the adoption of his biological child.

T7 Furthermore, our statutory scheme "is very clear that an unmarried putative father cannot maintain a right to consent to the adoption of his child unless he strictly complies with Utah law." O'Dea, 2009 UT 46, ¶ 3, 217 P.3d 704. His consent is required "ouly if he fully and strictly complies with the [statutory] requirements." Utah Code Ann. § 78B-6-120(1)(f) (Supp. 2009). Moreover, he "is presumed to know that the child may be adopted without his consent unless he strictly complies with the provisions of this chapter, manifests a prompt and full commitment to his parental responsibilities, and establishes paternity." Id. § 78B-6-102(6)(f) (2008). Finally, an unmarried parent "is not excused from strict compliance with the provisions of this chapter based upon any action, statement, or omission of the other parent or third parties." Id. § 78B-6-106(1) (2008). In sum, until an unmarried biological father "has complied precisely with the procedural requirements necessary to challenge an adoption proceeding, Utah courts have an overriding interest in facilitating adoption." Osborne v. Adoption Ctr. of Choice, 2003 UT 15, ¶ 32, 70 P.3d 58.

I. Subsection (b)Gi): Child Care Plans

T8 C.C.D. challenges the district court's ruling that he failed to strictly comply with subsection (b)@Gi). That subsection requires an unmarried biological father seeking to assert his parental rights to "set[ ] forth his plans for care of the child." Utah Code Ann. § 78B-6-121(8)(b)@ii). We recently reviewed this provision in In re adoption of Baby Boy Doe, 2008 UT App 449, 199 P.3d 368 (mem.), where we determined that an unmarried biological father had not strictly complied with the statutory requirements, because he submitted an unsigned, unverified filing that did not amount to "'a sworn affidavit'" Id. T1 4-5 (quoting Utah Code Ann. § 78B-6-121(8)(b)). We further concluded that the biological father's filing, which requested only that he "be awarded the permanent care, custody, and control of the minor child ... and assume all financial responsibilities," id. 15 (omission in original), did not adequately "set[ ] forth his plans to care for the child," Utah Code Ann. § 78B-6-121(8)(b)(i). We noted that a putative father must at a minimum specify that he has a source of income and identify the child's caretakers:

Although not expressly stated in the Utah Adoption Act, a plan for the care of a child logically must specify, at a minimum, how the putative father will financially care for the child and provide some glimpse into how he will meet daily care-giving responsibilities.

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While this may not require a detailed, day-to-day plan for the child's care, we believe the legislature intended that the putative father at least specify that he has a source of income and identify who will care for the child while he is working to earn that income.

Id. 15 & n. 2. In a concurring opinion, Judge Davis expressed concern that subsection (b)(ii) contains "absolutely no guidance ... as to what, exactly, is a satisfactory 'plan[ ] for care of the child. " Id. 1 11 (Davis, J. coneur-ring) (alteration in original) (quoting Utah Code Ann. § 78B-6-121(8)(b)(@i)).

1 9 C.C.D. contends that his affidavit, filed in support of his petition for paternity, strictly complied with the minimal requirements of subsection (b)(i). In it, he described generally his plan to care for Baby Girl:

a. I have saved money in order to be able to buy clothes, a car seat, a crib and other necessary items for the child.

b. I have made arrangements with my employer to take a few weeks off from work immediately after the child is born to care for the child and allow the child to adjust and bond with me.

c. I have made arrangements with my family to provide assistance and surrogate care for our minor child, after the initial bonding period, while I am working. My sister-in-law does not work and has two children at home. She has agreed to assist me in caring for the minor child while I work.

d. I will provide the majority of care for the minor child other than during the time period I am working.

£10 The affidavit did not mention that C.C.D. is not a legal resident, nor did it state how Baby Girl would be cared for if C.C.D. were deported. The district court ruled that C.C.D. had not strictly complied with subsection (b)(i) because "he failed to disclose how he would care for the child if legal action is taken against him by federal immigration or customs enforeement agencies."

{11 In so ruling, the district court required more of C.C.D. than the statute itself does. By its own terms, subsection (b)) requires no detail and certainly no contingency plans, even where a contingency may be foreseeable. All that is required is a plan describing, "at a minimum, how the putative father will financially care for the child and provid[ing] some glimpse into how he will meet daily care-giving responsibilities." In re Baby Boy Doe, 2008 UT App 449, ¶ 5, 199 P.3d 368. C.C.D.'s affidavit met this low threshold. We "will not 'require more of a claimant than is required by the pertinent statutory language'" Mecham v. Frazier, 2008 UT 60, ¶ 18, 193 P.3d 630 (quoting Xiao Yang Li v. University of Utah, 2006 UT 57, ¶ 18, 144 P.3d 1142). This is especially so where strict compliance is the standard. C.C.D.'s affidavit, though admittedly short on specifics, included all the information called for by the statute as interpreted by this court in In re Baby Boy Doe. In requiring more, the district court erred.

II. Subsection (b)@ii): Court Order of Child Support

112 C.C.D. also challenges the district court's ruling that he failed to strictly comply with subsection (b)). Unlike subsection (b)(i), subsection (b)Gii) is explicit: the petitioner must file a sworn affidavit "agreeing to a court order of child support and the payment of expenses incurred in connection with the mother's pregnancy and the child's birth." Utah Code Ann. § 78B-6-121(8)(b)(iif) (Supp.2009).

€{13 The requirement that an unmarried biological father agree to court-ordered child support differs in one key respect from the other requirements in subsection (b). The other requirements assume that the petitioner will be awarded full custody of the child. For example, subsection (b)) requires him to swear that he is "fully able and willing to have full custody of the child." Utah Code Ann. § 78B-6-121(8)(b)(). But the requirement that the father agree to court-ordered child support seems to assume that he will mot be awarded custody. Custodial parents are not ordered to pay child support. Consequently, the requirement that the unmarried biological father agree to court-ordered child support addresses the contingency that he will establish paternity and thereby succeed in blocking the adoption, but nevertheless not be awarded custody of the child. In other words, the statute requires not only that the unmarried biological father declare under oath his willingness and ability to support the child if he is awarded custody but also his willingness to pay court-ordered child support if he is not. See generally id. § T8B-12-105 (2008) (stating that every child is presumed to be in need of the financial support of both parents, regardless of the parents' marital status); id. § T78B-12-108 (2008) (stating that the parent without physical custody of a child shall be required to pay child support).

T14 We understand that an unmarried biological father such as C.C.D. might assume-or be led to believe-that a mother who has consented to an adoption has categorically decided not to raise the child herself. But a mother willing to relinquish her rights in favor of adoptive parents might nevertheless be unwilling to relinquish her rights in favor of the biological father. Recognizing this possibility, subsection (b)(iii) requires the unmarried biological father to agree under oath to pay court-ordered child support in the event he wins the paternity battle but loses the custody battle.

{15 C.C.D.'s Affidavit contains no such assurance. It states that he is prepared to fully support Baby Girl in the event he is awarded, in his words, "sole custody, care and control of the parties' minor child":

9. I am ready willing and able to take responsibility for our unborn child and to help [the birth mother] with expenses.

10. I am fully able and willing to have full custody of our minor child.

11. I bave been working two jobs in order to save additional money to prepare for the birth of our minor child and to pay legal fees to pursue my parental rights.

But nowhere in the Affidavit, or in any other court filing, does C.C.D. agree to a court order of child support or otherwise express a willingness to assume financial responsibility for Baby Girl in the event that he is not awarded custody.

1 16 C.C.D. contends that subsection (b)) should not be construed to require that "exact language" be used in order to fulfill its requirements. He argues that by seeking full custody, he was in effect "asking that the court enter an order requiring him to support his child." We agree that reciting the statutory language is not necessary to ensure strict compliance, see State v. Visser, 2000 UT 88, ¶ 11, 22 P.3d 1242 ("Strict compliance ... does not mandate a particular seript or rote recitation."), although it would surely suffice. However, the flaw in C.C.D.'s affidavit is not that he fails to recite the words of the statute, but that he fails in any words to agree to a court order of child support. In fact, he never mentions court-ordered child support. As explained above, because a parent awarded full custody would rarely if ever be ordered to pay child support, C.C.D.'s agreeing to care for Baby Girl in the event he is awarded full custody is not tantamount to agreeing to pay court-ordered child support in the event he is not.

T17 At most, C.C.D.'s affidavit achieved substantial compliance with the statute. "However, substantial compliance with the statute is not enough." In re Adoption of W., 904 P.2d 1113, 1121 (Utah Ct.App.1995). The Act expressly and repeatedly demands strict compliance. See generally Hutter v. Dig-It, Inc., 2009 UT 69, ¶ 32, 219 P.3d 918 ("When interpreting a statute, we assume, absent a contrary indication, that the legislature used each term advisedly according to its ordinary and usually accepted meaning.").

18 Just as we will not require an unmarried biological father to do more than the pertinent statutory language demands, neither will we require less. Accordingly, we affirm the district court's conclusion that C.C.D. did not satisfy the requirements of subsection (b)(ii). This case thus joins "multiple Utah cases extinguishing the rights of unwed fathers for failure to strictly comply with Utah law, sometimes on very minor issues of noncompliance." In re adoption of K.C.J., 2008 UT App 152, ¶ 12, 184 P.3d 1239.

{19 We are aware that adhering to the exacting requirements of the Act may in individual cases yield unsatisfying results. But Utah courts have long recognized that holding unmarried biological fathers to strict compliance with clear rules advances the "foremost concern" of the adoption system, which is the best interest of the child. See Utah Code Ann. § 78B-6-102(1) (2008). For example, in Sanchez v. L.D.S. Social Services, 680 P.2d 753 (Utah 1984), a case that reviewed the timing of an unmarried biological father's attempt to assert his rights, our supreme court wrote that "[i]t is of no constitutional importance that [the father] came close to complying with the statute." Id. at 755. The Sanches court explained, "Because of the nature of subject matter dealt with by the statute, a firm cutoff date is reasonable, if not essential." Id. It continued, "the actual and potential disruption of the adoption system by protracted litigation of such cases" would "hold[ ] the rights of putative adoptive parents, and the rights of the natural mother, . in limbo." Id. "The [resulting] damage ... would be especially incaleulable as to the children involved." Id.

120 A decade later, this court declared that "[the policy reasons for the statutory bright-line rule are compelling. If, in each adoption case, the putative father's diligence to establish his parental rights had to be individually assessed, the finality of our adoption system would be seriously undermined." Beltran v. Allon, 926 P.2d 892, 897 (Utah Ct.App.1996). Accordingly, we stated that "the statutes demand strict compliance with the notice of paternity requirement and not even substantial compliance will suffice." Id. at 896.¹

21 To protect his parental rights, C.C.D. was required to strictly comply with all statutory requirements. However meritorious his remaining claims of error may be-a question on which we express no opinion-because he failed to comply with at least one, subsection (b)(iii), he cannot prevail on appeal. We therefore affirm the decision of the district court.²

CONCLUSION

1 22 We conclude that C.C.D. strictly complied with Utah Code section 78B-6-121(8)(b)(i). That subsection requires only that an unmarried biological father "set[ ] forth his plans for care of the child." Utah Code Ann. § 78B-6-121(8)(b)(@®) (Supp.2009). C.C.D.'s affidavit minimally, but adequately, set forth his plans for care of Baby Girl. The statute does not require an unmarried biological father to set forth contingency plans. In requiring this of C.C.D., the district court erred.

123 However, we affirm the district court's ruling that C.C.D. did not fully and strictly comply with subsection (b)). He did not agree under oath to a court order of child support as required by that provision. Because the Act and Utah case law interpreting it require strict compliance, the district court correctly ruled that C.C.D. did not satisfy the statute. We thus affirm the district court's ruling that, pursuant to Utah Code section 78B-6-122(2)(b), C.C.D. failed to preserve his right to contest Baby Girl's adoption. See id. § T8B-6-122(2)(b) (2008). We do not reach the remaining issues.

[ 24 Affirmed.

€25 I CONCUR: GREGORY K. ORME, Judge.

1 . However unforgiving the current Act may appear, it represents a liberalization of the historical approach. From 1898 to 1965, adoption of a child born out of wedlock in Utah required consent of the mother only. See In re Adoption of W., 904 P.2d 1113, 1116-17 (Utah Ct.App.1995).

2 . The dissent expresses concern that "requiring strict compliance with the affidavit-content requirements of section 78B-6-121(3), with no opportunity for a putative father to amend or correct deficiencies in his pleadings and affidavits after a mother's consent to adoption, could very well run afoul of the strong constitutional protections afforded to parental rights." See infra 137. We do not treat this constitutional issue because it was not properly preserved, framed, or briefed in this case. See Brigham City v. Stuart, 2005 UT 13, ¶ 14, 122 P.3d 506 ("[Wle are resolute in our refusal to take up constitutional issues which have not been properly preserved, framed and briefed ...."), rev'd on other grounds, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). The district court did reject C.C.D.'s offer to file a supplemental affidavit on the question of how he would raise Baby Girl in the event he was deported. But on this issue we agree with C.C.D. that the affidavit he filed strictly complied with the statute. C.C.D. did not seek, and the district court did not deny, the opportunity to amend or supplement his affidavit on any other issue. Most importantly, C.C.D. did not argue below, nor does he argue on appeal, that denial of a putative father's motion to amend his affidavit after the birth mother has consented to adoption would offend due process. Accordingly, we express no opinion on this question.

The constitutional claims that C.C.D. does raise do not bear on our holding. The district court ruled that C.C.D. failed to satisfy subsection (3)(b)(ii), subsection (3)(b)(iii), and subsection (3)(d). C.C.D. contests all three rulings on appeal, Since he is required to comply with all statutory requirements, if he loses any of these three challenges on appeal we must affirm. C.C.D. challenges the district court's subsection (3)(b)(ii) ruling on statutory, due process, and equal protection grounds, and he challenges its subsection (3)(d) ruling on statuiory and due process grounds. But he challenges the district court's subsection (3)(b)(iii) ruling on statutory grounds only. Because we reject his statutory challenge, we must affirm, irrespective of the merits of his constitutional challenges to the other subsections, on which we express no opinion. "'Under our jurisprudence, if a case may be resolved on statutory grounds, we are obliged to resist the temptation to render unnecessary advisory opinions about constitutional issues, even if they interest us." Pohl, Inc. v. Webelhuth, 2007 UT App 225, ¶ 20, 164 P.3d 1272 (Orme, J., dissenting) rev'd, 2008 UT 89, 201 P.3d 944; accord Hoyle v. Monson, 606 P.2d 240, 242 (Utah 1980) ("[A] constitutional question is not to be reached if the merits of the case in hand may be fairly determined on other than constitutional issues."); see also Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944) ("If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.").

Our affirmance of the district court on the statutory ground that C.C.D. failed to comply with subsection (3)(b)(iti) disposes of this appeal. We accordingly decline to address C.C.D.'s constitutional claims.