O'Dea v. Olea

• Decision Date: 28 July 2009
• Docket Number: No. 20070818.,20070818.
• Citation: 217 P.3d 704,2009 UT 46
• Parties: Cody M. O'DEA, Petitioner and Appellant, v. Ashley OLEA, Respondent. Adoption Center of Choice, Third-Party Intervenor and Appellee.
• Court: Utah Supreme Court

217 P.3d 704

2009 UT 46

Cody M. O'DEA, Petitioner and Appellant, v. Ashley OLEA, Respondent Adoption Center of Choice, Third-Party Intervenor and Appellee.

No. 20070818.

Supreme Court of Utah.

July 28, 2009.

Michael J. Boyle, Daniel S. Drage, Ogden, for appellant.

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

On Certification from the Utah Court of Appeals

NEHRING, Justice:

INTRODUCTION

¶ 1 Petitioner Cody O'Dea appeals the district court's order dismissing his claim to establish paternity. The underlying issue in this case is whether the district court erred when it concluded that Mr. O'Dea waived any rights in relation to his child, including the right to assert paternity, the right to notice of any judicial proceeding in connection with the adoption of his child, and the right to consent to the adoption of his child. The district court concluded that Mr. O'Dea did not strictly comply with the criteria set forth in Utah Code section 78-30-4.14 (Supp. 2006)¹ after he was made aware that the birth mother was in Utah and therefore had no standing to assert any rights in relation to his child. Accordingly, the district court granted the Adoption Center for Choice's motion to dismiss.

¶ 2 Mr. O'Dea raises four issues on appeal. These are (1) whether the district court had an obligation to give full faith and credit to Mr. O'Dea's registration with the putative father registry in Wyoming; (2) whether a choice of law analysis should be used in applying Wyoming law since the most significant contacts during the relationship between Mr. O'Dea and the mother of his child were in Wyoming; (3) whether sections of the Utah Adoption Act unconstitutionally extend personal jurisdiction over out-of-state putative fathers, including Mr. O'Dea; and (4) whether sections of the Utah Adoption Act are facially unconstitutional because they do not provide immediate notice or a pre-deprivation hearing to putative fathers before preliminary placement of the child.

¶ 3 Mr. O'Dea did not raise any of these issues before the district court, and therefore they are not preserved on appeal. Furthermore, Utah Code section 78-30-4.14(11) 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. Mr. O'Dea failed to comply strictly with Utah Code section 78-30-4.14(6) and has therefore waived all rights he may have had in relation to his child. The decision of the district court to grant the Center's motion to dismiss is affirmed.

BACKGROUND

¶ 4 While living in Sheridan, Wyoming, Mr. O'Dea and Ms. Olea were involved in an intimate relationship that resulted in Ms. Olea becoming pregnant in the fall of 2005. Sometime after learning she was pregnant, Ms. Olea moved to Buffalo, Wyoming. It was not until after Ms. Olea moved to Buffalo that Mr. O'Dea became aware of the pregnancy. Mr. O'Dea visited Ms. Olea in October and learned that she was considering an abortion. He attempted to change her mind and offered to help pay medical expenses and to provide a home for Ms. Olea.

¶ 5 Three weeks later, Ms. Olea contacted Mr. O'Dea and told him that she miscarried the child. At the time Mr. O'Dea believed this statement to be true, but in mid-May of the next year, Mr. O'Dea learned from a friend that Ms. Olea was possibly still pregnant. Mr. O'Dea contacted Ms. Olea and discovered that she was still pregnant and was planning on placing the child for adoption. On May 24, Mr. O'Dea indicated to Ms. Olea his desire to maintain a relationship with the child. Mr. O'Dea also contacted LDS Family Services in Montana, the agency with which he believed Ms. Olea would place the child, and notified them of his intent to maintain a relationship with the child. As a result, LDS Family Services in Montana terminated its adoption placement services to Ms. Olea.

¶ 6 By early June, Mr. O'Dea had placed his name on the putative father registries in both Wyoming and Montana.² Mr. O'Dea also sent a letter to Dennis Ashton of LDS Family Services in Utah informing him of his intent to maintain a relationship with the child on the belief that Mr. Ashton was the regional director of LDS Family Services in Montana, Wyoming, and Utah. At some point thereafter Ms. Olea traveled to Utah. On June 15, 2006, Mr. O'Dea received a call from Ms. Olea that originated from a blocked number. During the conversation, Ms. Olea told Mr. O'Dea,

You will listen and you will not speak. First of all I want you to stop harassing me and that includes your mother. I am in Utah. You will not father this child. You will pay child support until the child is in college. You will never see this baby. Do you understand?

Mr. O'Dea stated that he did not understand, and Ms. Olea asked again if he understood. Mr. O'Dea again stated that he did not and asked if Ms. Olea meant that she was not placing the child for adoption. Ms. Olea responded, "If you understand what I have told you, that is all I have to say." She then terminated the call. Since the number was blocked, Mr. O'Dea could not call back.

¶ 7 Mr. O'Dea took this conversation to mean that Ms. Olea was not placing the child for adoption because she referred to him having to pay child support. As a result of the conversation, Mr. O'Dea was both "relieved" and "encouraged." Mr. O'Dea doubted the truth of Ms. Olea's statement regarding her residence in Utah because of her past misstatements and thus did not take any further action at the time to assert his parental rights in Utah.

¶ 8 Ms. Olea gave birth to a girl later that same day. The next day, she signed a document of Birth Mother Relinquishment.

¶ 9 Prior to the birth, the Adoption Center of Choice had begun preparing the legal framework for the adoption and sought to determine if notice of paternity for the child had been filed in the state of Wyoming. On June 15, the Center received a letter from Wyoming's Department of Family Services notifying the agency that Mr. O'Dea had filed a notice with Wyoming's putative father registry. The Center also regularly contacted the Utah Department of Health until July 6 to determine if proceedings to establish paternity had been initiated in Utah. The department's response was always negative.

¶ 10 Mr. O'Dea claims that he continued to search for Ms. Olea. He left multiple messages that were not returned and eventually asked the Buffalo police to investigate. The police informed Mr. O'Dea that they eventually spoke to Ms. Olea but that the baby was not with her. On July 23, Mr. O'Dea and his family created an Internet Website seeking information about the infant. Six days later, Ms. Olea's mother left a message on the Website that the child was born in Utah, placed for adoption, and the attorney was Larry S. Jenkins. The next day, July 30, Mr. O'Dea sent a letter to Mr. Jenkins requesting information regarding the adoption. Mr. Jenkins responded that an adoption had taken place but that Mr. O'Dea's action was too late because, under Utah law, he was required to file a paternity action in Utah within twenty days after becoming aware of a "qualifying circumstance," which in this case was that Ms. Olea temporarily resided in Utah. Mr. Jenkins informed Mr. O'Dea that because he failed to take the necessary action to establish paternity following Ms. Olea's phone call, no more information about the child could be provided.

¶ 11 On August 14, Mr. O'Dea filed proceedings in the state of Utah along with an affidavit stating his plan to parent the child as required by Utah Code section 78-30-4.14(6)(b) (Supp.2006). The following day, Mr. O'Dea signed a Notice of Commencement of Paternity Proceedings form that he intended to send to the state registrar of vital statistics within the Utah Department of Health. The acquaintance he charged with mailing the form, however, neglected to send it. On September 5, Mr. O'Dea signed a new form, which was received by the Utah Department of Health on September 8. The receipt of the form was more than eighty days after the birth of the child.

¶ 12 Shortly thereafter, Mr. O'Dea served a subpoena upon the Adoption Center to appear and testify in an October deposition. The subpoena requested that the Center reveal the attorneys who represented Ms. Olea in the adoption and any other documents or information it had concerning the adoption. The Center moved to quash the subpoena on the basis that the information sought was privileged and that Mr. O'Dea had waived his paternity rights by not strictly complying with the requirements found in section 78-30-4.14(6) within the twenty-day window prescribed in section 78-30-4.14(10)(b)(ii)(B)(I).

¶ 13 A hearing on the motion to quash was held January 10, 2007. Commissioner Arnett, who heard the motion, recommended that the motion be granted because Mr. O'Dea had waived his rights by not strictly complying with Utah's legal requirements. Mr. O'Dea filed an objection, but the district court adopted the recommendation at the end of January. Mr. O'Dea requested oral arguments on February 21. The Center opposed the motion and maintained that the district court's order was a final ruling.

¶ 14 In April, the district court held a status conference in which it heard arguments on the issue. Based on the arguments, the district court issued an order stating that the commissioner's recommendation to quash was not itself dispositive of Mr. O'Dea's parental rights. The court set the matter for evidentiary hearing to determine the Center's status as a party and to consider a proper motion to dismiss. The next day, the Center filed a motion to intervene as a party in the proceedings in order to move to dismiss the petition. The court granted the petition to intervene since Ms. Olea had relinquished her parental rights and the Center was an interested party. At the end of August, the court heard arguments regarding the motion to dismiss. The district court granted the...