In Re Adoption of K.C.J.

2008 UT App 152, 184 P.3d 1239, 603 Utah Adv. Rep. 6, 2008 Utah App. LEXIS 151

Opinions

OPINION

THORNE, Associate Presiding Judge:

T1 C.J. and AJ. (Petitioners) bring this interlocutory appeal from the district court's order that T.C., an unmarried biological father residing outside of Utah, be given notice of any further adoption proceedings regarding the child K.C.J. Petitioners claim that even in light of an apparently valid adjudication of T.C.'s paternity of K.C.J. by an Oklahoma court, T.C. failed to strictly and timely comply with Utah's statutory requirements for unmarried biological fathers and thereby waived any right he may have had in relation to K.C.J.'s adoption proceeding. We affirm the order of the district court.

BACKGROUND¹

T2 K.M. (Mother) became pregnant with K.C.J. during a week-long visit to Oklahoma around Christmas 2005. Mother believed T.C. to be the father and, in March 2006, informed T.C. that she was pregnant. At the same time, she also informed T.C. that she was living in Utah and intended to place the baby for adoption. Mother further informed T.C. that she was going to deliver the baby in Utah and that the baby was due in September 2006. Mother spoke with T.C. several times after that and told T.C. where and how to contact her in Utah. T.C. was never married to Mother, and at no time did they ever live in the same household.

I 3 Mother gave birth to K.C.J. in Utah on September 8, 2006. T.C. was not listed as the father on the birth certificate. Mother relinquished her parental rights to K.C.J. on September 12, 2006, and that same day, K.C.J. was placed in the custody of LDS Social Services. LDS Social Services conducted two paternity searches with the state registrar of vital statistics at the Utah Department of Health, and the state registrar confirmed that there had been no registration of paternity rights pertaining to K.C.J. After receiving the results of the searches, also on September 12, LDS Social Services placed K.C.J. with Petitioners.

T4 On September 15, 2006, T.C. filed a petition to determine K.C.J.'s paternity in the state of Oklahoma and completed a Notice of Commencement of Paternity Proceedings for filing with the state registrar of vital statistics at the Utah Department of Health. The Utah state registrar accepted T.C.'s notice on September 18, 2006. On October 17, 2006, Petitioners filed a Verified Petition for Adoption in Utah district court, alleging that K.C.J.'s biological father had failed to "register any paternity rights as required by Utah law."

15 At the adoption finalization hearing on March 14, 2007, the district court declined to hear the petition for adoption because of the pending paternity action in Oklahoma. On April 30, 2007, an Oklahoma court issued an order establishing that T.C. was the biological father of K.C.J. (the Oklahoma order). Shortly thereafter, the Oklahoma court dismissed T.C.'s petition regarding child eusto-dy, citing a lack of jurisdiction.

16 On June 12, 2007, the Utah district court ruled that T.C. was entitled to notice before any further proceedings could be held with respect to K.C.J.'s adoption. The district court concluded that T.C. "must be treated in a manner consistent with the Oklahoma [order] as an unmarried biological father of [K.C.J.] and provided notice of any further adoption proceedings." Upon Petitioners' request for reconsideration of this ruling, the district court clarified that T.C. was being allowed notice to address the "conflicts of laws question presented when it appears that [T.C.] has complied with the law of Oklahoma rather than the law of Utah." Petitioners then sought permission to bring this interlocutory appeal, which this court granted.

ISSUE AND STANDARD OF REVIEW

17 Petitioners claim that the district court erred in ruling that T.C. was entitled to notice of any further adoption proceedings. Petitioners argue that despite the existence of the Oklahoma order, T.C.'s failure to strictly and timely comply with Utah's statutory requirements for unmarried biological fathers constitutes a waiver of any right he may have had to notice of K.C.J.'s adoption. The district court's order and Petitioners' challenge thereto present questions of standing and intervention. See generally In re E.H., 2006 UT 36, 137 P.3d 809 (analyzing a mother's right to intervene in adoption proceedings after relinquishing parental rights). We review such questions for correctness, applying minimal deference to a district court's application of the law to the facts. See Jones v. Barlow, 2007 UT 20, ¶ 10, 154 P.2d 808 ("Determinations of the legal requirements for standing are reviewed for correctness. However, we give deference to the district court on factual determinations that bear upon the question of standing. Finally, we give minimal discretion to the district court in its application of the facts to the law." (citations omitted)); cf. In re Marriage of Gonzalez, 2000 UT 28, ¶ 16, 1 P.3d 1074 (adopting de novo standard of review for questions of intervention as of right under Utah Rule of Civil Procedure 24(a)).

ANALYSIS

18 T.C. may ultimately be deemed to have waived any rights he may have to object to K.C.J.'s adoption. However, whether or not he has waived those rights is, at this stage of the proceeding, a matter of dispute that requires adjudication. Until the district court has an opportunity to examine both the factual presentation and legal arguments involved in an adjudication of T.C.'s substantive rights, T.C. has the procedural right to participate in "'the adversarial process that our system counts on to produce just results." " See State v. King, 2006 UT App 355, ¶ 16, 144 P.3d 222 (citation omitted), cert. granted, 153 P.3d 185 (Utah 2007). Accordingly, we affirm the district court's order allowing T.C.'s limited participation in this matter.

19 We first note that, despite the characterizations of both the parties and the district court, this case does not present a "notice of adoption proceedings" question under Utah Code section 78-30-4.18. See Utah Code Ann. § 78-80-4.18 (Supp.2006).² The notice that section 78-80-4.18 refers to is akin to service of process under the Utah Rules of Civil Procedure. See id. § 78-80-4.13(2) ("Notice of an adoption proceeding shall be served on each of the following persons ...." (emphasis added)); Utah R. Civ. P. 8, 4 (governing commencement of civil actions and service of process as required for the initiation of an action). In other words, section 78-80-4.13 governs who must be affirmatively sought out and notified of the impending action such that the action may properly proceed.

{10 This case presents a different question-here, T.C. is already aware of the proceeding and has presented himself to the court, seeking to be allowed to establish his right to contest K.C.J.'s adoption.³ Clearly, Utah Code section 78-30-4.18 does not require the parties to an adoption proceeding to search out and identify fathers in T.C.'s position. However, where, as here, the district court becomes aware of a putative father's interest and desire to participate in the proceeding, the question becomes whether the father has standing to intervene in the proceeding. Under the cireumstances of this case, the district court properly allowed T.C. to participate in the action for purposes of litigating the effect of the Oklahoma order.

T11 "[The presence or absence of parental rights does not determine whether a person has standing to intervene in an adoption proceeding." In re E.H., 2006 UT 36, ¶ 50, 137 P.3d 809. Rather, what is required is a person's "direct interest in the subject matter of the litigation such that [his or her] rights may be affected, for good or for ill," id. 151, and this interest may arise from the intervenor's status or cireumstances, see id. Here, T.C. filed his paternity petition in Oklahoma court one week after K.C.J.'s birth ⁴ and obtained a paternity order prior to a finalization of K.C.J.'s adoption. Petitioners' adoption action seeks to eut off whatever parental rights the Oklahoma order may have granted or recognized as belonging to T.C. Thus, T.C. has a "protectable interest in the litigation," see Gedo v. Rose, 2007 UT App 154, ¶ 7, 163 P.3d 659, cert. denied, 168 P.3d 1264 (Utah 2007), and is entitled to have his right to further participation adjudicated after presenting relevant evidence and legal arguments in support of his claims, see id. T1 7-8 (mandating the allowance of a parent's participation in a proceeding intended to eut off parental rights); see also Utah R. Civ. P. 19(a) (stating that, absent jurisdictional problems, a trial court "shall order" the joinder of persons with a protectable interest in litigation). Thus, the district court's order requiring notice to T.C. in order for him to be allowed to litigate the effect of the Oklahoma order was entirely proper.⁵

12 In so holding, we are aware of the longstanding general rule that an unwed biological father must comply with Utah law to perfect his parental rights unless he can show that it was impossible for him to do so through no fault of his own. See Wells v. Children's Aid Soc'y, 681 P.2d 199, 207-08 (Utah 1984). We are also aware of the multiple Utah cases extinguishing the rights of unwed fathers for failure to strictly comply with Utah law, sometimes on very minor issues of noncompliance. See, e.g., Sanchez v. L.D.S. Soc. Servs., 680 P.2d 753, 755 (Utah 1984) ("It is of no constitutional importance that [the father] came close to complying with the statute."); Beltran v. Allon, 926 P.2d 892, 896 (Utah Ct.App.1996) ("[The statutes demand strict compliance with the notice of paternity requirement and not even substantial compliance will suffice."). Here, however, T.C. has actually obtained a court order from a sister state establishing his paternity of K.C.J. As recognized by the district court, the existence of the Oklahoma order potentially creates a conflict with Utah law and T.C. must be allowed to argue for the resolution of that conflict in his favor.

118 We are also mindful of the various constitutional problems that could arise were T.C. to be denied an opportunity to argue the effect of the Oklahoma order before the district court. The most obvious of these infirmities would be the potential denial of T.C.'s procedural due process rights. "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner'" Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). As Wells v. Children's Aid Society, 681 P.2d 199 (Utah 1984), makes clear, due process is not violated every time an unwed father's child is adopted without giving him notice or an opportunity to contest the adoption. See id. at 207 ("Due process does not require that the father of an illegitimate child be identified and personally notified before his parental right can be terminated."). Nevertheless, in the cireumstances of this case, T.C. has obtained whatever rights inure in the Oklahoma order and must be allowed to defend those rights if they are to be terminated by a Utah court.

T 14 Any violation of T.C.'s procedural due process rights in this case would be particularly acute in light of the number of constitutional issues of first impression potentially presented by the conflict between the Oklahoma order and Utah statute. First and foremost of these would be the implication of the United States Constitution's Full Faith and Credit Clause. See U.S. Const. art. IV, § 1 ("Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."). T.C. may also possess substantive due process rights in these cireumstances that could be violated if he were to be excluded from this proceeding. See Wells, 681 P.2d at 204 ("Substantive due process concerns the content of the rules specifying when a right can be lost or impaired." (emphasis omitted)); see also Lehr v. Robertson, 463 U.S. 248, 262-63, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) {applying due process analysis to the protection of an unwed father's "opportunity to form [a parent-child] relationship"); Thurnwald v. A.E., 2007 UT 38, ¶ 28, 163 P.3d 623 (stating that a father's "opportunity interest in developing a relationship with his newborn [is] a 'provisional right' that is itself protected by the due process, clause of the Utah Constitution" (citation omitted)). The Utah Constitution also contains an open courts provision that could potentially bear on the proper result in this case. See Utah Const. art. I, § 11 ("All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.").

1 15 Further, as much as this case is about T.C.'s right to be a parent to K.C.J., K.C.J. also has an interest in, and arguably even a right to, a parent-child relationship with T.C. See Utah Code Ann. § 78-80-1.5(1) (2002) ("It is the intent and desire of the Legislature that in every adoption the best interest of the child should govern and be of foremost concern in the court's determination."); Lehr, 463 U.S. at 258, 103 S.Ct. 2985 (noting the Court's prior concern with the rights of the children born out of wedlock); see also Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) (addressing child's inheritance rights); Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974) (addressing social security benefits for child); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972) (addressing worker compensation benefits payable to child). Termination of T.C.'s parental rights, such as they may be, will have numerous effects on K.C.J., not all of them positive. Not only does K.C.J. face the removal of a biological parent from her life, but she will also be denied such diverse benefits as inheritance rights and access to genetic information. Denying K.C.J. a relationship with her biological father, with all of the consequences that such denial will entail, should take place only upon the district court's appraisal of all potentially relevant legal and factual considerations. Without T.C.'s participation in at least the initial stages of this proceeding, that cannot properly happen.

116 We refrain from speculating on the substance or merits of these or other constitutional arguments but note that T.C.'s sue-cessful procurement of a paternity declaration shortly after K.C.J.'s birth makes this a more difficult case than most. While the Utah Supreme Court has repeatedly upheld the short post-birth window that Utah law provides to unwed fathers in order to claim their rights, that court has also recognized that the United States Supreme Court has not "determined the rights of an unwed father of a newborn child or considered whether the United States Constitution places additional restrictions on the laws a state may enact to terminate unwed fathers' opportunities to assert their rights to newborns." Thurnwald, 2007 UT 38, ¶ 27, 163 P.3d 623 (emphasis added). Indeed, the case underlying our entire jurisprudence on this issue, Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), addressed only the situation of an unwed father who waited over two years from the child's birth to assert his legal interest. See Thurnwald, 2007 UT 38, ¶ 26, 163 P.3d 623; see also Lehr, 463 U.S. at 250, 103 S.Ct. 2985. T.C. waited just one week, a delay that apparently did not preclude the exercise of his paternity rights under Oklahoma law. If nothing else, the potential for T.C. to make constitutional arguments under these facts would render any denial of his procedural due process rights even more problematic.

17 Although we affirm the district court's order allowing notice to T.C., we are not unaware of the problems that T.C. will likely face in attempting to establish that his consent or relinquishment is required before Petitioners may adopt K.C.J. As a matter of Utah statutory law this question is governed by Utah Code section 78-80-4.14, see Utah Code Ann. § 78-80-4.14 (Supp.2006), and we have previously acknowledged that statute's harsh results for unwed fathers who delay in asserting their legal interests, see, e.g., Pearson v. Pearson, 2006 UT App 128, ¶ 34, 134 P.3d 173 ("A father who fails to comply with the requirements of section 78-80-4.14(2) has no standing to object to [an] adoption and permanently loses his parental rights to the child."), aff'd, 2008 UT 24. In this case however, T.C. apparently complied with the law of a sister sovereign, Oklahoma, where he resided and where it is claimed the child was conceived. More than any other factor in this case, it is this valid sister-state order that persuades us that the district court properly ordered that T.C. be allowed his day in court. Once the district court has heard both sides' factual and legal arguments, it will make a ruling and the case will proceed with T.C.'s rights established or disestablished as the case may be.

CONCLUSION

1 18 T.C. acted promptly-within a week of K.C.J.'s birth-to obtain the Oklahoma order establishing his biological parentage of K.C.J. Although, based solely on the facts presented by Petitioners, T.C. may have failed to comply with Utah law governing unmarried biological fathers, he apparently acted within the laws of the state of Oklahoma. The district court correctly found that T.C. has an interest in K.C.J.'s adoption proceeding, at least to the extent of addressing the conflict between the Oklahoma order and Utah law.

T19 The dissenting opinion presents a compelling legal argument for a resolution of the merits of this case in favor of the Petitioners. However, the ultimate question of K.C.J.'s future is not the question presented on appeal. Rather, the question on appeal is whether T.C. is to be allowed to present his own, possibly equally compelling, legal and factual arguments to the district court. On this narrow question, we agree with the district court that TC. is entitled to an opportunity to attempt to identify and defend whatever parental rights he may have obtained under Oklahoma law. Accordingly, we see no error in the district court's order allowing T.C.'s de facto intervention in this matter to litigate the existence of his parental interest in K.C.J.-indeed, fundamental fairness demands no less. We therefore affirm the district court's order and remand this matter for further proceedings.

1 20 I CONCUR: JUDITH M. BILLINGS, Judge.

1

. The district court made no factual findings below, and we take the facts largely from the verified petition and materials, including Mother's affidavit that Petitioners provided in support of their opposition to T.C.'s involvement in the case. We note that T.C. has not yet been allowed to introduce factual evidence and that such evidence could potentially conflict with these sources.

2

. -We refer to the statutory provisions in effect at the time the adoption petition was filed, although the Utah Adoption Act has since been recodified. See Utah Code §§ 78B-6-101 to -145 (2008). We also note that the district court did not rely directly on Utah Code section 78-30-4.13, but rather on section 78-45g-403, which incorporates section 78-30-4.13 by reference. See Utah Code Ann. § 78-45g-403 (Supp.2006) ("Notice of an adoption proceeding shall be given to unmarried biological fathers pursuant to Section 78-30-4.13.") (recodified as Utah Code § 78B-15-403 (2008)).

3

. T.C. did not formally file a motion to intervene in this proceeding in the district court. Although the record is sparse, it appears that the district court's request for briefing and its ultimate notification order were undertaken sua sponte upon becoming aware of T.C.'s Oklahoma paternity action. If T.C.'s failure to file a motion to intervene is of any import, Petitioners have not alleged as much in their appellate brief. We also note that TC. entered an appearance through counsel before this court and participated in the appellate briefing and oral argument.

4

. The record does not indicate when T.C. received notice of K.C.J.'s birth, but his petition in Oklahoma court indicates an awareness that K.C.J. had been born on September 8, 2006.

5

. Given the lack of a motion to intervene by T.C., we express no opinion on whether the district court would have erred had it failed to act sua sponte in this matter.