Bolden v. Doe (In re Adoption of J.S.)

Decision Date04 November 2014
Docket NumberNo. 20120751.,20120751.
CourtUtah Supreme Court
PartiesIn the Matter of the ADOPTION OF J.S., a minor child. William E. Bolden, Appellant and Intervenor, v. John and Jane Doe, Appellees and Petitioners.

Mark W. Wiser, Scott B. Wiser, Salt Lake City, for appellant.

Larry S. Jenkins, Lance D. Rich, Salt Lake City, for appellees.

Justice LEE announced the judgment of the court and authored the opinion of the court with respect to Parts I, II.A.1, II.A.2.a-b, and II.B, and a plurality opinion with respect to Parts II.A.2.c and II.A.3

Chief Justice DURRANT joined JUSTICE LEE's opinion in full.

Judge ORME concurred in the judgment and joined Justice LEE's opinion with respect to Parts I, II.A.1, II.A.2.a–b, and II.B.

Associate Chief Justice NEHRING filed a dissenting opinion.

Justice PARRISH filed a dissenting opinion.

Having recused herself, Justice DURHAM does not participate herein; Court of Appeals Judge GREGORY K. ORME sat.

Opinion

Justice LEE, opinion of the Court in part:

¶ 1 William Bolden is the putative father of a child (J.S.) born in 2011. The case before us on appeal is an adoption proceeding involving John and Jane Doe, the would-be adoptive parents of J.S. Bolden tried to intervene in and object to the Does' adoption of J.S. He was barred from doing so because he failed to preserve his legal rights as a father by filing a paternity affidavit within the time prescribed by Utah Code section 78B–6–121(3).

¶ 2 This provision of the Utah Adoption Act prescribes the requirements that an unwed father must meet in order to secure the right to assert his parental rights and object to an adoption. It is aimed at protecting the best interests of children born out of wedlock—to ensure that such children have the benefit of a parent committed to preserving their well-being. Unwed mothers acquire parental rights—and the accompanying right to object to an adoption—as a result of the objective manifestation of the commitment to the child that is demonstrated by their decision to carry a child to term. An unwed father's legal obligation to file the paternity affidavit is a rough counterpart to the mother's commitment. When a child is born out of wedlock, the mother, the father, or both may assert their parental rights and thereby foreclose an adoption. But if the mother and father choose to waive that right—or, in the case of a father, fails to assert the right by filing the paternity affidavit in a timely fashion—then the child may be placed for adoption.

¶ 3 Utah law is roughly in line with the adoption laws of all states across the country. In every state unwed fathers are required to fulfill legal requirements not imposed on unwed mothers—most commonly, a filing aimed at establishing the father's paternity. See infra ¶ 79 n.35. In Utah and elsewhere, the failure to fulfill such requirements in the timeframe required by law amounts to a waiver of the unwed father's right to object to an adoption. This consequence is essential to the goal of protecting children by facilitating adoption. Without a requirement of a timely paternity filing, adoptions would be inhibited by being left in limbo.

¶ 4 The affidavit requirement in Utah law takes the matter of a paternity filing a minor step further—by requiring the father not just to assert and establish paternity, but also to attest under oath that he is able and willing to provide for the child. Utah Code § 78B–6–121(3). But this is a simple, straightforward hurdle—one that countless unwed fathers have cleared, in a manner preserving their parental rights and their prerogative of foreclosing adoption.

¶ 5 Bolden failed to fulfill this requirement, and in this case he challenges it as unconstitutional. We reject his constitutional challenges and therefore affirm the district court's denial of his motion to intervene in the Does' adoption of J.S.

¶ 6 First, we uphold the affidavit requirement against Bolden's due process challenge. Bolden does not claim that the Adoption Act infringes his procedural due process right to notice and an opportunity to be heard; nor could he, as his failure to file the affidavit is a result of his own procedural misstep (allegedly in accordance with the misadvice of counsel) and not some procedural defect in the law. And Bolden fails to establish an infringement of a fundamental right of substantive due process, as he fails to present evidence that the right he asserts (to preserve his rights as an unwed father without filing an affidavit) is a matter deeply rooted in established history and tradition.

¶ 7 Second, we also uphold the affidavit requirement against Bolden's equal protection challenge. We do so by recognizing the importance of the state's interests in protecting children by facilitating the adoption process, and by concluding that those interests are substantially advanced by the statutory affidavit requirement. We likewise reject Justice Nehring's assertion that this requirement is an indication of invidious discrimination or sex-based stereotyping. See infra ¶¶ 93–98, 111.

¶ 8 There is doubtless room for disagreement about whether our legislature has struck the best balance as a matter of policy. But we see no basis for deriding our law as a product of “invidious gender stereotypes.” Infra ¶ 88. At some level all adoption laws discriminate against unwed fathers—by requiring of them some legal filing not required of unwed mothers. Such requirements are not an indication of stereotype or discrimination. They are simply an element of a legal scheme aimed at assuring that any parent who would block an adoption has manifested a commitment to the child's best interests. And we uphold the Utah Adoption Act as constitutional on the basis of its advancement of those important interests.

I

¶ 9 In the summer of 2010, Bolden was involved in a sexual relationship with S.B. The two were not married. S.B. eventually got pregnant. Approximately two weeks before the baby was born, Bolden filed a petition in the district court seeking to adjudicate paternity and to establish custody, parent time, and child support.

¶ 10 Bolden's unsigned, unverified petition asserted that he was “a fit and proper parent.” It sought “sole physical and legal care, custody, and control of [his] unborn child should [S.B.] decide not to raise the child and attempt to put the child up for adoption.” In the petition Bolden also asserted that “a child support order should enter, effective immediately,” consistent with statutory guidelines, including an obligation to obtain health insurance for the child.

¶ 11 One week later, Bolden filed in Utah's putative father registry a sworn and notarized notice that he had commenced paternity proceedings regarding S.B.'s unborn child. But he did not file a separate affidavit asserting his willingness to assume custody of the child and to submit to a child support order, or disclosing his childcare plans, as required by Utah Code section 78B–6–121(3)(b). Bolden attributes his deficiency in this regard to his attorney's failure to advise him that such an affidavit was required. Though Bolden offered—both before and after the birth of the child—to pay S.B.'s pregnancy-related medical expenses, S.B. refused to accept anything from Bolden, believing that her insurance would cover all costs.

¶ 12 The child, a boy, was born on March 26, 2011. Bolden initially visited the child in the hospital twice, but was thereafter refused access and thus prevented from having any further contact. Three days after the birth, S.B. determined that she wanted to proceed with an adoption and executed a consent to adoption before Judge Lyon of the Second District Court.1 S.B. relinquished the child to the prospective adoptive parents (the Does), who commenced an adoption proceeding that same day. Though their adoption petition acknowledged that they knew the identity of the child's father and that the father had made some effort to establish parental rights, they asserted that the father's failure to file an affidavit along with his paternity petition was determinative of his rights—in short, that he had none.

¶ 13 The Does thereafter notified Bolden of their intent to adopt J.S. without Bolden's consent. Bolden moved to intervene in the adoption proceeding, seeking to prevent the adoption and to assert his parental rights. Between receiving the Does' Notice of Adoption Proceedings and filing his motion to intervene, Bolden also filed the affidavit required by section 78B–6–121(3).

¶ 14 The adoptive parents opposed Bolden's motion to intervene, arguing that Bolden could not prevent the adoption because he had not complied with the statute by filing an affidavit before S.B. relinquished the child. Bolden acquired new counsel and challenged the constitutionality of section 78B–6–121(3)'s affidavit requirement, moving for summary dismissal of the adoption petition on federal and state constitutional grounds. Bolden also sought dismissal on the ground that he was the undisputed father of J.S., that he did not consent to the adoption, and that he had strictly and timely complied with most of the applicable statutory requirements.

¶ 15 The district court heard oral argument on the motions and issued a memorandum decision rejecting Bolden's constitutional challenges. It concluded that Bolden had no right to contest the adoption because he had not filed the affidavit required under Utah Code section 78B–6–121(3). In rejecting Bolden's constitutional claims, the district court found that the affidavit requirement related directly to the state's interests in requiring unwed fathers to demonstrate a full commitment to their parental responsibilities, in minimizing the risk of disrupting adoptions, and in protecting the rights of unwed mothers.

¶ 16 Upon issuance of a final order dismissing Bolden's intervention and summary judgment motions, Bolden filed this appeal. Bolden's appeal challenges the district court's judgment on legal grounds. Our review is accordingly de novo. S...

To continue reading

Request your trial
13 cases
  • Adoption B.B. v. R.K.B.
    • United States
    • Supreme Court of Utah
    • August 31, 2017
    ...child falls on a holiday or weekend. Thurnwald v. A.E. , 2007 UT 38, ¶ 4, 163 P.3d 623, abrogated on other grounds by In re Adoption of J.S., 2014 UT 51, 358 P.3d 1009.¶ 43 The prospective adoptive parents' interpretation contorts the plain language of ICWA—had Congress intended to count by......
  • Adoption B.B. v.
    • United States
    • Supreme Court of Utah
    • August 31, 2017
    ...falls on a holiday or weekend. Thurnwald v. A.E., 2007 UT 38, ¶ 4, 163 P.3d 623, abrogated on other grounds by In re Adoption of J.S., 2014 UT 51, 358 P.3d 1009. ¶ 43 The prospective adoptive parents' interpretation contorts the plain language of ICWA—had Congress intended to count by hours......
  • V.B. v. A.S.A. (In re K.T.B.)
    • United States
    • Supreme Court of Utah
    • July 21, 2020
    ...that the requirements had violated the father's due process rights.37 ¶28 In contrast to our decision in Ellis is our decision in In re Adoption of J.S.38 In that case, the district court barred a putative father from intervening in an adoption because he failed to file a required paternity......
  • L.E.S. v. C.D.M. (In re K.A.S.)
    • United States
    • Supreme Court of Utah
    • December 6, 2016
    ...for their clients. And on that basis we generally deem clients responsible for the decisions they make on advice of counsel." In re Adoption of J.S., 2014 UT 51, ¶ 63, 358 P.3d 1009cert. denied sub nom. Bolden v. Doe, ––– U.S. ––––, 136 S.Ct. 31, 193 L.Ed.2d 24 (2015). Thus, L.E.S. did have......
  • Request a trial to view additional results
1 books & journal articles
  • Sex Equality's Irreconcilable Differences.
    • United States
    • Yale Law Journal Vol. 132 No. 4, February 2023
    • February 1, 2023
    ...or all men or no men; there must be a zero or a hundred on one side of the sex equation or the other"). (23.) See In re Adoption of J.S., 358 P.3d 1009,1030-31 (Utah 2014) (stating that an unwed mother's connection to her child is objectively established by her decision "to carry the child ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT