H.U.F. v. W.P.W.

• Decision Date: 10 February 2009
• Docket Number: No. 20070610.,20070610.
• Citation: 203 P.3d 943,2009 UT 10
• Parties: H.U.F. and G.F., Petitioners and Appellees, v. W.P.W., Respondent and Appellant.
• Court: Utah Supreme Court

203 P.3d 943

2009 UT 10

H.U.F. and G.F., Petitioners and Appellees, v. W.P.W., Respondent and Appellant.

No. 20070610.

Supreme Court of Utah.

February 10, 2009.

Hutch U. Fale, Provo, Nathan E. Burdsal, Salt Lake City, for petitioners.

H. Mifflin Williams, III, Salt Lake City, Claudia McGee Henry, Los Angeles, CA, for respondent.

On Certification from the Utah Court of Appeals

DURRANT, Associate Chief Justice:

INTRODUCTION

¶ 1 In this case, W.P.W. ("Putative Father") challenges the adoption of Baby Girl Stine ("B.G.S."), arguing that the district court erred in ordering the adoption of B.G.S. without his consent. H.U.F. and G.F. ("Adoptive Parents") defend the district court's order by arguing that the Putative Father's consent to the adoption was not necessary because he failed to comply with the statutory requirements that give a putative father the right to contest an adoption.

¶ 2 Specifically, the parties raise the following issues on appeal:

(1) Whether the Putative Father's appeal is moot because he appealed only one of two dispositive orders;

(2) Whether Utah's statutory scheme for adoptions violated the Putative Father's due process and equal protection rights, and whether these constitutional challenges were preserved;

(3) Whether the Putative Father complied with Utah Code section 78-30-4.14, which establishes the requirements a putative father must meet before he may contest an adoption;

(4) Whether the district court should have granted full faith and credit to Arizona's Paternity Order;

(5) Whether the district court should have held an evidentiary hearing; and

(6) Whether the Putative Father's appeal is frivolous, warranting the award of attorney fees to the Adoptive Parents.

¶ 3 We affirm the district court's decision.

BACKGROUND

¶ 4 On or about September 22, 2005, while the Birth Mother was pregnant with B.G.S., she served two men with notice that she intended to place her baby for adoption through LDS Family Services in Mesa, Arizona. The notice stated that if its recipient wished to assert parental rights to the baby, he was required to initiate a paternity action pursuant to Arizona Revised Statute section 8-106 within thirty days of receipt of the notice. The notice also included the full text of Arizona Revised Statute section 8-106. In addition, the Birth Mother published public notices in Arizona newspapers four times over a period of four weeks between September and October 2005. The public notices were addressed to, "William Patrick Wilks or Nathaniel Davis or John Doe."

¶ 5 In response, the Putative Father filed a Notice of Claim of Paternity with the Arizona Office of Vital Records on September 29, 2005. This filing placed the Putative Father's name on the Putative Father Registry in Arizona. As a registrant, the Putative Father had the right to be identified by the vital statistics office if the office were to receive a search letter regarding the child whom the Putative Father claimed he fathered. Thereafter, the entity assisting in the placement of the child for adoption would be responsible for notifying the Putative Father of any legal proceedings regarding the child. The vital statistics office indicated in a letter to the Putative Father that he must follow the provisions of Arizona Revised Statute section 8-106 to establish paternity.

¶ 6 In February 2006, the Birth Mother filed a petition with an Arizona justice court seeking a protective order against the Putative Father. A hearing was held on the matter on February 7. At the hearing, counsel representing the Birth Mother stated that the Birth Mother "went to Utah to get away from [the Putative Father], and to be up there, and that's where she is, and there's no need for [the Putative Father] to be allowed to harass her." The Putative Father responded, "Yes, um [the Birth Mother] told me when she moved to Utah."

¶ 7 The Putative Father never registered with the Utah Office of Vital Statistics as a putative father.

¶ 8 On February 15, 2006, one hundred and forty-five days after being served with notice that the Birth Mother intended to place her baby for adoption, the Putative Father filed a petition for paternity with the Superior Court of Arizona, Maricopa County. Because the Putative Father failed to properly serve the Birth Mother, the petition was not granted.

¶ 9 B.G.S. was born in Utah on March 4, 2006. Two days later, in the Fourth Judicial District Court of Utah, the Birth Mother willingly relinquished all of her parental rights and responsibilities to the Adoptive Parents. The Birth Mother also stated to the district court that she was not, nor had she ever been, married to the natural father of B.G.S. and that the identity of the father was unknown. Further, she stated that the natural father had not initiated a paternity action in Utah, despite having actual notice that the Birth Mother had moved to Utah and planned to give birth to the baby in Utah.¹

¶ 10 On March 15, 2006, the Adoptive Parents filed a petition for temporary custody and guardianship and a verified petition for adoption, wherein they indicated that "[p]ursuant to Utah Code Ann. § 78-30-4.14, the consent of the natural mother is the only consent required in order for the Court to grant the instant petition." They further stated that the presumed natural father had actual notice and knowledge that the Birth Mother resided in Utah and that she intended to give birth in Utah. They also stated that the presumed natural father had not registered with the Office of Vital Statistics in the Utah Department of Health, nor had he begun a paternity proceeding in the State of Utah. On March 17, 2006, the district court granted the Adoptive Parents "full and complete custody and guardianship of [B.G.S.] until such time when the Court issues a final order concerning Petitioner's Petition for Adoption."

¶ 11 On April 11, 2006, the Putative Father again petitioned the Superior Court of Arizona, Maricopa County for a declaration of paternity. Again, he failed to properly serve the Birth Mother.

¶ 12 On July 25, 2006, in the Superior Court of Arizona, the Putative Father filed a Voluntary Petition for Order of Paternity signed by the Birth Mother. In an order dated August 2, 2006, the Arizona court "note[d]" that this voluntary petition "resolv[ed] the paternity issue." The court also noted that it lacked jurisdiction to determine custody or child support and ordered that the matter be transferred to Utah for further proceedings.

¶ 13 On July 27, 2006, the Putative Father requested that the Utah court open the sealed Utah file regarding the adoption proceedings. Then, in the Utah court on September 1, 2006, the Putative Father filed an intervenor's response to the petition for adoption. In an affidavit filed with the court, the Putative Father stated that the Birth Mother told him "verbally and by e-mail ... that she would not give affiant's baby up for adoption and that she would always keep in touch with affiant." Further, the Putative Father stated in the affidavit that he "had no knowledge whatsoever, and received no notice whatsoever that [the Birth Mother] resided in Utah and intended to give birth to [B.G.S.] in Utah."

¶ 14 On August 31, 2006, and again on November 27, 2006, the Birth Mother submitted an affidavit stating to the Utah court that she never gave the Putative Father notice that she had moved to Utah or planned to give birth in Utah. With the second affidavit, the Birth Mother included an e-mail that she had sent to the Putative Father on February 14, 2006, one week following the protective order hearing. The e-mail stated, "[my parents] made me tell all my friends and some family that I moved to Utah when I really didn't, nor do I have any intentions of moving to Utah."

¶ 15 On December 12, 2006, the Adoptive Parents moved to dismiss the Putative Father's objection to the adoption and motion to intervene. On February 2, 2007, the district court held a hearing on the matter. Counsel for the Putative Father requested that the matter be argued only on the law and objected to an evidentiary argument. The court declined to determine the type of hearing and, instead, left the matter up to counsel. At the hearing, the parties did not present any evidence. The Putative Father was present, but his counsel did not call him to testify.

¶ 16 On April 17, 2007, the district court issued one ruling that granted the Motion to Strike and the Motion to Dismiss. In the ruling, the district court barred the affidavits submitted by the Birth Mother, finding that they contradicted "the law of the case" and were obtained unethically. Next, the court declined to give full faith and credit to the Arizona court's statement regarding the Putative Father's paternity, finding that the Arizona court lacked jurisdiction to issue an order of paternity; the court also highlighted additional problems with the order itself. Finally, the court ruled that the Putative Father failed to comply with the Utah statutory requirements for out-of-state putative fathers. Accordingly, the court ruled that the Putative Father "lack[ed] standing to challenge this adoption," and "Petitioners' Motion to Strike the Objection and to Dismiss the Motion to Intervene is hereby granted."

¶ 17 The Putative Father appealed, and the court of appeals heard oral argument in the case. After oral argument, but before any decision issued in this case, the court of appeals issued a split decision in In re K.C.J.² Concerned that its decision in this case might conflict with its decision in K.C.J., the court of appeals certified this case for immediate transfer to us, pursuant to Utah Rule of Appellate Procedure 43(a). In K.C.J., the court of appeals held that where the district court becomes aware of a putative father's interest and desire to participate in the adoption proceeding, the court should allow the father to participate, at least to the extent of litigating the...