In Re Adoption of Doe

2008 UT App 449, 199 P.3d 368, 619 Utah Adv. Rep. 3, 2008 Utah App. LEXIS 441, 2008 WL 5173323

• Court: Court of Appeals of Utah
• Decided: December 11, 2008
• Docket: 20071013-CA
• Status: Published

Opinions

MEMORANDUM DECISION

BENCH, Judge:

T1 N.T. appeals the trial court's dismissal of his motions to intervene and to dismiss a petition for adoption of the minor Baby Boy Doe. The issues now before us are the result of the Utah Supreme Court's remand of this case to the trial court based on procedural issues not pertinent to the instant appeal. A full recitation of the underlying facts can be found in the supreme court's decision. See Thurnwald v. A.E., 2007 UT 38, ¶¶ 6-17, 163 P.3d 623.

2 N.T. contends that he has strictly complied with the requirements statutorily placed upon him as an unmarried biological father and that his consent is necessary for the adoption of Baby Boy Doe. An unmarried biological father's consent for the adoption of a minor is not required unless, within one business day of the child's birth, he

(a) initiates proceedings in a district court ... to establish paternity ...;

(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;

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

(iii) 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) ... files notice of the commencement of paternity proceedings ... with the state registrar of vital statistics within the Department of Health ...; 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, ... 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

(Hii) the mother refuses to accept the unmarried biological father's offer to pay the expenses....

Utah Code Ann. § 78B-6-121(8)(a)-(d) (Supp.2008);¹ see also Thurnwald, 2007 UT 38, ¶ 46, 163 P.3d 623 (granting an unmarried biological father "one business day after the birth of his child to complete the statutory requirements"). Further, an unmarried biological father's consent is required "only if he strictly complies" with the above requirements. Utah Code Ann. § (Supp.2008).

¶ 3 As a result of the supreme court's decision, see Thurnwald, 2007 UT 38, ¶¶ 46-47, 163 P.3d 623, the parties now agree that N.T. timely initiated proceedings to establish his paternity and properly filed notice with the Department of Health. For the purposes of our decision we will assume, without deciding, that (1) a verified petition for determination of paternity qualifies as the statutorily required sworn affidavit; (2) rule 15 of the Utah Rules of Civil Procedure applies to adoption proceedings, thereby permitting amendment of a verified petition for determination of paternity; and (8) N.T. was justified in not paying for the mother's expenses.

¶ 4 Despite these assumptions, N.T.'s Amended Verified Petition for Determination of Paternity (the Amended Petition) cannot be construed as strictly complying with the statutory requirements. First, even if rule 15 can be used to allow N.T. to amend his original petition, the Amended Petition cannot qualify as a sworn affidavit because N.T. did not sign it and it was not notarized. In essence, N.T. asks us to allow the content of the Amended Petition to relate back to the date of the original petition while at the same time allowing the verifying attributes of the original petition to relate forward to the amended version. N.T.'s unsigned, unverified filing cannot be considered "a sworn affidavit." See Utah Code Ann. § 78B-6-121(8)(b).

¶ 5 Second, regardless of which document is considered, N.T. fails to set forth any plan for the care of the child. The language in both documents is so lacking in specifics regarding how N.T. will care for the child that neither document strictly complies with the statute. On appeal, N.T. claims that the pleading found in both versions of the document-requesting that he "be awarded the permanent care, custody, and control of the minor child ... and assume all financial responsibilities"-adequately sets forth his plan. We disagree. 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.² N.T.'s petitions are utterly deficient in "setting forth his plans for care of the child." Id. § 78B-6-121(8)(b)G).

¶ 6 Because of these two deficiencies, N.T. has not strictly complied with the statute. The trial court therefore properly denied N.T.'s motions to intervene and to dismiss the petition for adoption.

T7 Affirmed.

T8 I CONCUR: CAROLYN B. McHUGH, Judge.

1 . We cite to the current, recodified Title 78B for convenience throughout this decision. The cited provisions have not substantively changed from the comparable versions in effect at the time of Baby Boy Doe's birth in 2004.

2 . While this may not require a detailed, day-today 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.