Beltran v. Allan , 302 Utah Adv. Rep. 23 ( 1996 )

BENCH, Judge:

Plaintiff appeals the trial court’s grant of summary judgment to defendants and denial of plaintiff’s cross motion for summary judgment. We affirm.

FACTS

Plaintiff and defendant Allan were both single residents of California when they began dating in 1993. As a result of that relationship, Allan became pregnant. In March of 1994, Allan informed plaintiff of her pregnancy and that he was the father. Shortly thereafter, the parties stopped dating and Allan expressed her intent to place the child for adoption. Plaintiff was not agreeable to the adoption and voiced interest in raising the child himself.

Allan contacted LDS Social Services in California about placing the baby for adoption. At Allan’s request, plaintiff completed background information forms which were returned to LDS Social Services, although plaintiff indicated thereon that he had not agreed to the adoption. In August of 1994, Allan moved to Provo, Utah, to stay with her aunt until the child’s expected birth in November. While in Provo, Allan communicated with plaintiff and his mother by telephone and mail, continually maintaining her intent to place the child for adoption.

Plaintiff consulted with three different California attorneys about stopping the Utah adoption, but they told plaintiff that they did not know Utah law and could not help him.¹ In late October 1994, plaintiff filed a paternity action in California seeking blood tests to determine whether he was the father and, if determined to be the father, requesting sole legal and physical custody of the child. Plaintiffs complaint alleged that Allan had “moved to Utah and plans to release the child for adoption.” The complaint, summons, and restraining order were mailed to Allan in Provo asking her to sign a Notice of Acknowledgment and Receipt accepting service of the documents, which she did not do.²

Also in late October 1994, LDS Social Services in Provo mailed a letter to plaintiff informing him that Allan intended to place the child for adoption through the agency and encouraging plaintiff to provide the agency with additional information. Plaintiff did not comply with this request.³ On November 14, 1994, Allan gave birth to a child in a Utah County hospital. Three days later, Allan executed a relinquishment and consent to adoption and the agency placed the child with the adoptive parents that same day. The adoptive parents are the only parents the child has ever known.

At no time has plaintiff filed an acknowledgment of paternity with the Utah Department of Health, registrar of vital statistics. Instead, eight weeks after the child was relinquished by the mother and placed with the adoptive parents, plaintiff filed the instant action wherein he sought custody and various damages and costs. After discovery, defendants filed a motion for summary judgment, to which plaintiff filed an objection and a cross motion for summary judgment seeking custody of the child. The trial court granted summary judgment to defendants. Plaintiff appeals the trial court’s decision, claiming: (1) there were disputed issues of fact that precluded summary judgment; (2) he was excused from filing an acknowledgment of paternity because his situation satisfied the statutory impossibility exception; and (3) the statutory requirement to file a notice of acknowledgment of paternity is unconstitutional as applied to him.

STANDARD OF REVIEW

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56(c); Warburton v. Virginia Beach Fed. Sav. & Loan Ass’n, 899 P.2d 779, 781 (Utah App.1995). When reviewing summary judgment, we review the facts in the light most favorable to the losing party. Id. Because summary judgment is granted as a matter of law, we review the trial court’s ruling on legal issues for correctness. Id. “We determine only whether the trial court erred in applying the governing law and whether the trial court correctly held that there were no disputed issues of material fact.’ ” Berenda v. Langford, 914 P.2d 45, 50 (Utah 1996) (citation omitted).

ANALYSIS

To establish any interest in a child born outside of marriage, the putative father must file a notice of paternity with the Department of Health. Utah Code Ann. § 78-30-4.8(2) (Supp.1994).⁴ The notice of paternity may be filed prior to the birth of the child, but must be filed prior to the time the child is relinquished by the mother to a licensed child placement agency or prior to' the filing of a petition by adoptive parents. Id. § 78-30-4.8. If the putative father fails to file a notice of paternity, he is “barred from thereafter bringing or maintaining any action to assert any interest in the child.” Id. § 78-30-4.8(3). “[Fjailure to file a timely notice of paternity shall be deemed to be a waiver and surrender of any right to notice of any hearing in any judicial proceeding for adoption of the child, and the consent of that person to the adoption of the child is not required.” Id. § 78-30-4.8(4). To meet constitutional requirements, the statute provides for an exception to the strict filing requirement. The exception exists when the putative father can prove by clear and convincing evidence that, through no fault of his own, it was not possible for him to file a notice of paternity within the specified period, and he filed a notice of paternity within ten days of when it became possible for him to file. Id. § 78-30-4.8(3)(a)-(c).

Material Issues of Fact

Plaintiff claims there were material issues of fact in dispute precluding summary judgment. However, none of the material facts in this case are disputed. Plaintiff knew that Allan was pregnant, that she intended to place the child for adoption in Utah, and that she went to Provo to reside with her aunt until the child’s birth when she would place the child for adoption. Despite this knowledge, plaintiff did not file a notice of paternity prior to the child’s birth, or prior to the child’s placement with the adoption agency. In fact, plaintiff has never filed a notice of paternity. Plaintiff is therefore statutorily precluded from maintaining any action to assert any interest in the child. See id. § 78-30-4.8(3); see also In re Adoption of W, 904 P.2d 1113, 1120 (Utah App.1995).

Impossibility Exception

Plaintiff claims, however, that his situation satisfies the statutory “impossibility” exception. See Utah Code Ann. § 78-30-4.8(3)(a)-(c) (Supp.1994). We disagree. Plaintiff cannot say that it was impossible for him to file a timely notice of paternity through no fault of his own when, by his own admission, he knew of the pregnancy and that the mother was in Utah to place the child for adoption. The extent of his knowledge is reflected in the action he filed in California nearly three weeks prior to the child’s birth, wherein he affirmatively alleged that he knew Allan was in Utah and that she planned to place the child for adoption. Plaintiff has never, even to this date, bothered to file the notice of paternity required by the statute. See id. § 78-3(ML8(3)(c).

Plaintiff contends that his efforts in expressing opposition to the adoption to Allan and the adoption agency, together with his filing of the California action and the instant action, should relieve him from the statutory notice of paternity requirements. However, the statutes demand strict compliance with the notice of paternity requirement and not even substantial compliance will suffice. Adoption of W, 904 P.2d at 1120-21.

In Adoption of W, the biological parents were unmarried and residents of Indiana when they conceived a child. Id. at 1115. The mother thereafter went to Nevada, where the child was born and immediately placed with an adoption agency. The mother first claimed that she did not know who the father was because she had been raped, but later admitted to knowing the father’s identity. The father claimed that he did not know the mother went to Nevada to place the child for adoption, professing that he and the mother had made plans to marry and raise the child together. One day after the child’s birth, the father filed a paternity action in Indiana. About one week later, the child was placed with the adoptive parents who had filed an adoption petition in Utah. Shortly after the child’s birth, the mother told the father of the adoption. The father and his Indiana attorney both contacted the adoptive parents’ attorney by telephone more than one month later. After another two months had passed, the father’s Utah attorney called the adoptive parents’ attorney stating his objection to the adoption, and later filed an objection in Utah. Eight months after learning the child had been placed for adoption, the father filed a notice of paternity. Id.

This court held in Adoption of W that because the father had not filed his notice of paternity until eight months after learning of the adoption: (1) the father’s consent was not required for the adoption to take place; (2) the father had not preserved his right to object to the adoption; and (3) the father failed to meet the requirements of the impossibility exception. Id. at 1120-21. Filing a paternity action in another state did not establish the putative father’s parental rights where he failed to timely file a notice of paternity in Utah. Id.

The facts in Adoption of W were much more favorable to the putative father’s position than those in the instant ease. The putative father in Adoption of W had been told by the mother that she would marry him and they would raise the child together. Id. at 1115. Further, he did not know the mother’s whereabouts or her intent to place the child for adoption but, upon finding out, he eventually filed the required notice of paternity. Id. By comparison, plaintiff in this case knew all along of Allan’s intent to place the child for adoption and knew she was in Utah for that purpose. Plaintiff was not surprised by the adoption, nor was he misled into believing there would be no adoption. Furthermore, plaintiff never filed a notice of paternity in Utah.

The Utah Supreme Court has rejected alternative means for establishing paternal rights that fall short of the statutory requirement of filing a timely notice of paternity. Sanchez v. LDS Social Servs., 680 P.2d 753, 755 (Utah 1984). In Sanchez, the putative father maintained his opposition to adoption when communicating with the child’s mother and a counselor at LDS Social Services, although he failed to file a timely notice of paternity. Id. at 754. A majority of the supreme court held that the father forfeited any interest he had in the child. Id. at 755-56. One dissenting justice urged, under notions of fairness and due process, that the father had taken sufficient steps, short of filing a notice of paternity, to assert his rights and therefore should not be statutorily barred from challenging the adoption. Id. at 756-57 (Durham, J., dissenting). In response, the majority held as follows:

The consequence of the position asserted by the dissent would be to promote litigation in a number of adoption cases, thereby holding the rights of putative adoptive parents, and the rights of the natural mother, whatever they may be, in limbo while the courts undertake to make a decision based on criteria nowhere articulated by the dissent, but which would, no doubt, involve the degree of the father’s diligence and sincerity in trying to establish his parental rights, factors which are foreign to the statutory provisions. The damage done by the actual and potential disruption of the adoption system by protracted litigation of such cases would be especially incalculable as to the children involved. The harm caused to infants, who need stable relationships with adults for the psychological bonding necessary for their well-being and character development, could be incurable.

... It is not too harsh to require that those responsible for bringing children into the world outside the established institution of marriage should be required either to comply with those statutes that accord them the opportunity to assert their parental rights or to yield to the method established by society to raise children in a manner best suited to promote their welfare.

Id. at 755-56.

The policy reasons for the statutory bright-line rule are compelling. If, in each adoption case, the putative father’s diligence to establish his parental rights had to be individually assessed, the finality of our adoption system would be seriously undermined. Wells v. Children’s Aid Soc’y, 681 P.2d 199, 208 (Utah 1984) (holding analysis of whether father had “reasonable opportunity” in each individual adoption ease to comply with statutory requirements “would frustrate the statute’s purpose to facilitate secure adoptions by early clarification of status”). Because of the unique nature of adoptions, “a firm cutoff date is reasonable, if not essential.” Sanchez, 680 P.2d at 755.

Unconstitutional as Applied to Plaintiff

Plaintiff next argues the statutes that require the filing of a notice of paternity are unconstitutional as applied to him. In support of this claim, plaintiff cites In re Adoption of Baby Boy Doe, 717 P.2d 686 (Utah 1986). In Adoption of Baby Boy Doe the supreme court reversed the trial court’s termination of a putative father’s paternal rights because everyone involved knew of the father’s opposition to adoption, the father was not a Utah resident and was absent at the time of birth, the mother had falsely represented she would not place the child for adoption, and her family had “deliberately withheld information” from the father about the mother’s plans for adoption. Id. at 690. Because of the mother’s misrepresentations and the actions of her family, the father did not know of his need to protect his rights. Id. at 691. The facts in the instant ease are very different from Adoption of Baby Boy Doe in that Allan never told plaintiff she would abandon her adoption plans. Allan continually maintained her intent to place the child for adoption. Plaintiff, therefore, cannot argue that he was deceived or lulled into believing he did not need to take proper steps to protect his rights.

Plaintiff also asserts that an adoption agency licensed by the State should have the duty to mail a blank notice of paternity form to the putative father with instructions on where and how to file it in order to establish his parental rights and defeat the adoption. Giving actual notice of statutory requirements to putative fathers is clearly not constitutionally required. Lehr v. Robertson, 463 U.S. 248, 265, 103 S.Ct. 2985, 2995, 77 L.Ed.2d 614 (1983) (holding no violation of due process where putative father was not given special notice, even though court and mother knew he had filed an action in another court, because father was capable of asserting and protecting his own rights); Wells, 681 P.2d 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.”); Sanchez, 680 P.2d at 755 (holding “there is no constitutional requirement that § 78-30-1 give actual notice of the statutory requirements for establishing paternal rights”).

Ignorance of the law does not relieve a putative father from having to comply with the statutory requirement to register a notice of paternity. Lehr, 463 U.S. at 264, 103 S.Ct. at 2995. In upholding a similar statutory scheme from New York, the United States Supreme Court stated:

By mailing a postcard to the putative father registry, he could have guaranteed that he would receive notice of any proceedings to adopt [the child]. The possibility that he may have failed to do so because of his ignorance of the law cannot be a sufficient reason for criticizing the law itself.

Id. An adoption agency is therefore not legally required to alert the putative father of what he must do to establish his rights. As a matter of good business practice, however, the agency may choose to refer to the controlling statutes in correspondence it may have with the putative father.⁵ Such a practice would undoubtedly reduce the litigation expenses of the agency.

We are not unsympathetic to plaintiffs plight as an unwed father. However, the legislature has made the policy decision that the father of a child born outside of wedlock must comply with the strict requirements of Utah law in order to establish his parental rights. As support for her dissent, Judge Billings quotes the dissenting opinions in some of the pertinent case law and refers to statutes from other states. However, it is the Utah statute, as interpreted by majority holdings of the Utah Supreme Court, which controls the outcome of this case. This court is bound to follow controlling decisions of the Utah Supreme Court. State v. Menzies, 889 P.2d 393, 399 n. 3 (Utah 1994) (holding vertical stare decisis “compels a court to follow strictly the decisions rendered by a higher court”) (citation omitted), cert. denied, — U.S. -, 115 S.Ct. 910, 130 L.Ed.2d 792 (1995). Utah law requires strict compliance to provide certainty and finality to adoptions so that the parties involved, especially the child, are not compromised. Sanchez, 680 P.2d at 755-56.

CONCLUSION

The undisputed facts in this case establish that plaintiff knew of Allan’s intent to place the child for adoption in Utah, and that she was residing here for that purpose, and yet he failed to file the requisite notice of paternity. There is no dispute to these facts, and an evidentiary hearing would be of no benefit. These facts also preclude plaintiff from claiming refuge in the impossibility exception provided by statute because he cannot show that, through no fault of his own, he was unable to file a timely notice of paternity, but that upon being able to file, he did so within ten days. Finally, the applicable adoption statutes are not unconstitutional as applied to plaintiff given his knowledge of Allan’s intent to place the child for adoption, his ability to protect his rights by filing a notice of paternity, and the absence of misrepresentations or withholding of evidence by Allan.

We therefore affirm the summary judgment.

JACKSON, J., concurs.

1 .This information comes from excerpts of plaintiff’s deposition, which were quoted by Allan in a memorandum submitted to the trial court. Allan moved the trial court to admit the entire deposition, but there is no order in the record either granting or denying the motion. Nonetheless, because the quoted excerpts of the deposition were presented to the trial court without objection, they are part of the record on appeal. Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 899 n. 3 (Utah 1992) (holding excerpts of depositions argued to trial court were part of the record on appeal where there were no objections below); see also Utah R.CÍV.P. 32(d) ("Use of a deposition under Subsection (a) of this rule shall have the effect of publishing the deposition unless the court orders otherwise in response to objections.”).

2 . The California action was later dismissed by stipulation of the parties and exclusive jurisdiction for this case was determined to be in Utah.

3 . Plaintiff asserts that, in response to this letter, he called LDS Social Services and they hung up on him. In his deposition, excerpts of which were included in defendants' memorandum to the trial court, see note 1, supra, plaintiff admits he never talked on the phone with anyone from LDS Social Services in Utah. The dissent suggests that plaintiff is entitled to an evidentiary hearing on these "pivotal facts." In view of the controlling law in this jurisdiction, however, whether plaintiff actually attempted to speak with LDS Social Services in Utah is not a "genuine issue as to any material fact.” Utah RXiv.P. 56(c) (emphasis added).

4 . The relevant statutes have been amended and revised since this case, but we review the statutes as they existed when the action was filed. However, the result would be no different under the amended law because even though the parties came from out of state, plaintiff knew Allan was in Utah to place the child for adoption. See Utah Code Ann. § 78-30-4.15(4) (Supp.1996).

5 . The dissent refers to the letter sent by the Provo office of LDS Social Services in this case, wherein it requested additional information from plaintiff. The record contains a copy of the letter that states, "It would be helpful if you could complete the family history pages and the WAIVER (in duplicate) signed in the presence of a notary.” The dissent surmises that the waiver requested was a waiver of parental rights. However, the waiver could have been a waiver of the confidentiality of the family history information. We simply cannot say what the waiver in the form referred to because it is not part of the record.