Swayne v. L.D.S. Social Services , 136 Utah Adv. Rep. 18 ( 1990 )

ON CERTIORARI TO THE UTAH COURT OF APPEALS

HALL, Chief Justice:

Plaintiff Steven Swayne challenges the constitutionality of Utah Code Ann. § 78-30-4(3) (1981), which terminates the parental rights of the father of an illegitimate child if the father fails to file a timely notice of paternity. Defendant L.D.S. Social Services seeks review of the Utah Court of Appeals decision holding that its acts constituted state, rather than private, action.

Plaintiff and a friend, Penny, began dating and engaging in sexual intercourse in 1985. In September 1986, Penny discovered she was pregnant. When plaintiff learned of Penny’s pregnancy, he was shocked, upset, and confused and initially denied that he was the father of the expected child. In the last trimester of Penny’s pregnancy, however, he orally acknowledged his paternity. His family held a shower to acquire gifts for the baby, and plaintiff eventually made a small payment toward Penny’s doctor bill.

Plaintiff and Penny both resided in Salt Lake County immediately before and during the pregnancy. They did not live together, however, and plaintiff dated other women during Penny’s pregnancy and engaged in sexual relations with them. He indicated that it was not his intention to marry Penny or live with her and the child as a family, although he did arrange for Penny to move into his mother’s apartment conditioned on Penny’s supporting herself and paying half the rent. Plaintiff’s sister offered to care for the child while Penny was at work.

In March 1987, Penny told plaintiff that her parents wanted her to relinquish the child for adoption. Plaintiff protested and indicated that adoption was plaintiff’s and Penny’s decision and that if she did not want the child, she should give it to him.

The child was born on June 4, 1987. Plaintiff was present in the delivery room and visited Penny and the child every day they were in the hospital. During Penny’s recovery, a hospital clerk told her that in order to have plaintiff’s name appear on the birth certificate, it was necessary for him to sign a form before a notary. When plaintiff visited Penny, she told him about the form, but he did not see fit to sign it. Both plaintiff and Penny now claim that they were unaware that the form was for the purpose of registering a claim of paternity, requiring plaintiff’s signature to preserve his parental rights.

On June 6, 1987, Penny was discharged from the hospital. On the late afternoon of June 8, at the instigation and in the company of her parents, she met with defendant L.D.S. Social Services to discuss placing the child for adoption. During that meeting, a counselor phoned the Utah Department of Health and found that plaintiff had not filed a notice of claim of paternity. The counselor explained to Penny that the decision to place the baby for adoption was hers alone. Penny said that she would sign papers relinquishing her parental rights, but not that evening. The counsel- or indicated that it was best to sign the papers then, before plaintiff had an opportunity to file paternity. Penny signed relinquishment papers that evening, June 8, 1987. Although she later claimed she was pressured,¹ the document she signed indicates that her relinquishment was voluntary and not coerced.

Plaintiff filed a notice of claim of paternity on the first day possible after discovering Penny’s relinquishment.² In June 1987, plaintiff brought suit in federal district court, seeking custody of the child. The federal court held that defendant’s acts constituted state, rather than private, action, thus invoking plaintiff’s rights to due process and equal protection of the laws, but abstained from considering the constitutionality of section 78-30-4, electing to allow state court review of that issue.³

Plaintiff filed an action in state court in September 1987. The trial court granted defendant’s motion for summary judgment, finding that (1) there was no genuine issue as to any material fact, (2) defendant’s acts did not constitute state action, and (3) section 78-30-4 was constitutionally valid on its face and as applied to plaintiff. In March 1988, plaintiff filed an appeal before the Utah Court of Appeals. That court reversed in part, holding that defendant’s acts constituted state action, and affirmed in part, holding that section 78-30-4 was constitutionally valid on its face and as applied to plaintiff.⁴

I. STATE ACTION

The fourteenth amendment to the United States Constitution states in part: “No state shall make or enforce any law which shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.) The termination of parental rights is the deprivation of a liberty interest worthy of constitutional protection.⁵ These protections, however, are only affected if the deprivation of the interest is the result of state, rather than private, action.⁶

The general test for determining whether state action is involved in a deprivation was cited by both the federal district court and the Utah Court of Appeals. First, the deprivation must be caused by the exercise of a state-created right or privilege. Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor.⁷ The first portion of the state action test is fulfilled since plaintiff’s deprivation was caused by defendant’s reliance on section 78-30-4, a statute which is clearly a product of the state. The more difficult question is whether defendant may fairly be said to be a state actor.

Suffice it to say that we agree with the logic of the two opinions that have already addressed this issue. Section 78-30-4 is self-operative. When an illegitimate child is relinquished by its mother, the rights of the father are automatically terminated unless he has previously filed an acknowledgment of paternity. A parent’s rights may only be so terminated through the power of the state.⁸ When a private party facilitates a mother’s relinquishment, as was the case here, the party becomes a state actor if it also effectuates the state’s termination of the father's rights.

II. EQUAL PROTECTION

Plaintiff claims that section 78-30-4 discriminates on the basis of gender in violation of the equal protection clause of the fourteenth amendment to the United States Constitution. The statute requires the consent of the mother of an illegitimate child to the child’s adoption, but does not require the consent of the father unless he files an acknowledgment of paternity with the Utah Department of Health. We have previously held under an equal protection analysis that “there are reasonable bases for the classifications in the statute (between unwed mothers and fathers and between fathers who file and fathers who do not) and that these classifications are reasonably calculated to serve a proper governmental objective.”⁹

Utah’s registration statute was designed to facilitate permanent and secure placement of illegitimate children whose unwed mothers wish to give them up for adoption and whose unwed fathers take no steps to officially identify themselves and acknowledge paternity.¹⁰ Because the identity of a mother of an illegitimate child is usually readily ascertainable, an unwed mother is forced to either immediately assume legal responsibility for the physical care of her child or relinquish her parental rights. Paternity, however, is more difficult to establish.¹¹ Even a father who informally acknowledges his responsibility for a pregnancy may later deny paternity and possibly avoid legal liability for his child’s care. Thus, a reasonable basis for the different classification of unwed fathers and unwed mothers in section 78-30-4 is the fact that while identification of both parents of an illegitimate child is necessary, identification of a child’s mother is automatic because of her role in the birth process, while identification of the father is not. A reasonable basis for the different classification of filing and nonfiling fathers is the state’s need to distinguish those fathers who have accepted legal responsibility for the care of their children from those fathers who have not. Whether section 78-30-4 utilizes the best means for accomplishing this purpose involves policy issues which lie within the prerogative of the legislature to address. Nevertheless, we are sufficiently convinced that there are reasonable bases for the classifications in section 78-30-4 and that the classifications are reasonably calculated to serve a proper governmental objective.

Plaintiff also claims that section 78-30-4 violates the uniform operation of the laws provision of the Utah Constitution.¹² He contends that this is so because article IV, section 1 of the Utah Constitution¹³ defines gender as an inherently suspect classification and thus gender-based discrimination of a fundamental right requires a compelling state interest — rather than a rational governmental objective — to pass constitutional muster. However, since plaintiff makes little effort to set forth an independent analysis of the appropriate state constitutional provisions, we are not bound to address his state constitutional argument.¹⁴ Nevertheless, even if we were to accept the proposition that the Utah Constitution defines gender as an inherently suspect classification, defendant’s claim would fail since “the mere existence of a biological link” by itself has not been deemed to create a fundamental right in an unwed father to parent his illegitimate child.¹⁵

Plaintiff also claims that as applied to the facts of this case section 78-30-4 violates his due process rights under both the federal and state constitutions. We have previously considered section 78-30-4 in Ellis v. Social Services Department of the Church of Jesus Christ of Latter-Day Saints,¹⁶ Wells v. Children’s Aid Society of Utah,¹⁷ Sanchez v. L.D.S. Social Services,¹⁸ and In re Adoption of Baby Boy Doe.¹⁹ Although we have held section 78-30-4 to be constitutional on its face, we have nevertheless noted that “a statute fair upon its face may be shown to be void and unenforceable as applied.”²⁰ Ellis held that “when it is impossible for the father to file the required notice of paternity prior to the statutory bar, through no fault of his own[,] ... due process requires that he be permitted to show that he was not afforded a reasonable opportunity to comply with the statute.” ²¹ In Ellis, both parents of an illegitimate child born in Utah were California residents. Shortly before she delivered, the mother came to Utah without telling the child’s father. After the child’s birth, she declared the father unknown, relinquished her parental rights, and gave the child up for adoption. When the father learned of the birth and the mother’s action, he contacted the adoption agency, filed a notice of paternity, and sought custody of the child. We reversed the trial court’s dismissal of the father’s action and noted that if the father could show that it had been impossible for him to comply with section 78-30-4 and he came forward within a reasonable time after the baby’s birth, he should be deemed to have fulfilled the provisions of the statute.

In Wells, we held that the reasonable opportunity standard adopted in Ellis was applicable when “it was ‘impossible’ for the father to file ‘through no fault of his own.’ ” ²² Both Wells and Sanchez held that it was not impossible for the father to file a notice of paternity prior to the mother’s relinquishment. Baby Boy Doe, on the other hand, found that the father had no reasonable opportunity to comply with the provisions of section 78-30-4. Despite their contrary outcomes, Wells, Sanchez, and Baby Boy Doe all rely on similar factors for determining whether it was impossible for a father to make a timely filing of notice of paternity through no fault of his own. Some of these factors include whether the unwed father was a Utah resident; whether he was aware of the mother’s intent to place the child for adoption; whether the parties involved were aware of the father’s desire to rear the child; whether the couple intended to marry or live together; whether the father was absent at the time of birth; and whether the father was misled concerning the need to protect, or prevented from asserting, his parental rights.²³ Summarized, the blanket factor common to all our cases dealing with the due process constitutionality of section 78-30-4 is simply whether an unwed father was aware of the need to protect his parental rights.

In Baby Boy Doe, this court stated:

[W]here a father does not know of the need to protect his rights, there is not “reasonable opportunity” to assert or protect parental rights. In such a case, the operation of the statute ... raises serious due process concerns. Although we have previously established that actual notice is not required prior to termination of parental rights under section 78-30-4(3), that determination was based at least in part on the assumption that “[n]otice requirements may be satisfied when necessarily implied,” i.e., in the usual case where the putative father knows or should know of the birth and can reasonably take the timely action required to avoid the statutory bar.²⁴

While we reaffirm the constitutional validity of the proposition that actual notice is not required prior to termination of parental rights, we recognize that other states require that a putative father be given notice and a hearing prior to the severance of his parental rights or that he consent to the adoption of his child. States requiring consent often allow consent to be waived by the .court after notice and a hearing.²⁵ Some statutes require notice to or the consent of a putative father only if the father has demonstrated a certain degree of involvement in the pregnancy or with the child.²⁶ Some statutes, similar to Utah’s, require paternity registration to preserve parental rights.²⁷ Many statutes, however, allow a putative father a longer registration deadline than Utah’s statute allows.²⁸ And Mississippi accords an unwed father no parental rights.²⁹

In this case, we hold that it was not impossible for plaintiff to timely file a notice of paternity and avoid the statutory bar. He was a Utah resident; he was aware that Penny was under at least some pressure to place the child for adoption; his expressed desire to rear the child was indifferent at best. Indeed, Penny was aware Of another child plaintiff had fathered out of wedlock who had been placed for adoption, apparently with plaintiff’s consent, and at trial in this action, plaintiff admitted that he hoped his sister would provide for his child’s care; he expressed no serious intent to live with or marry Penny nor relied on any representation of Penny’s to marry or live with him; he was present at the time of birth and was even aware that he was required to sign a document to have his name placed on the child’s birth certificate; and he was not misled or prevented from asserting his parental rights. In short, plaintiff should have been aware of the need to protect his parental rights by filing a notice of paternity.

Plaintiff also argues that section 78-30-4 violates his due process rights because “it does not provide adequate protection for the ‘opportunity’ of a biological father” to establish a parental relationship with his child. We have previously recognized that

[t]he state has a strong interest in speedily identifying those persons who will assume the parental role over [illegitimate] children, not just to assure immediate and continued physical care but also to facilitate early and uninterrupted bonding of a child to its parents. The state must therefore have legal means to ascertain within a very short time of birth whether the biological parents (or either of them) are going to assert their constitutional rights and fulfill their corresponding responsibilities, or whether adoptive parents must be substituted.³⁰

The state allows a biological father to assume the legal obligation for the care of his child by filing a notice of paternity. At that time, the biological father stands in the same position as any other legally recognized father and may establish a relationship with his child. In this case, we cannot say that plaintiff’s opportunity interest was not adequately protected by section 78-30-4.

Finally, plaintiff relies on T.R.F. v. Felan³¹ for the proposition that he adopted his child by acknowledgment under Utah Code Ann. § 78-30-12 (1987) and thus his parental rights cannot be terminated. Section 78-30-12 states that when the father of an illegitimate child publicly acknowledges the child as his own, accepts it into his family, and treats it as though it were legitimate, the father adopts the child by acknowledgment and thus the provisions of the adoption statute (including section 78-30-4) do not apply.

The adoption by acknowledgment requirements are not as easily met as plaintiff assumes. In T.R.F., the biological father's name appeared on the child’s birth and baptismal records; he provided substantial support for the child and its mother; he visited or lived with the child and its mother for extended periods of time; and he often took personal custody of the child during the first five years of its life.³² In another case interpreting section 78-30-12, Slade v. Dennis,³³ the biological father was present at the child’s birth, paid for the mother’s medical expenses, placed his name on the child’s birth certificate, registered timely paternity, had frequent custody of the child for the first two years of its life, and named the child a beneficiary of his health and life insurance.³⁴ Suffice it to say that plaintiff does not meet the previously established standard for adoption by acknowledgment.

We conclude, as did the court of appeals, that defendant’s acts constituted state action and that section 78-30-4 is constitutional on its face and as applied to plaintiff. Having considered the parties’ other claims on appeal, we find them to be without merit.

Affirmed; no costs awarded.

DAVIDSON, Court of Appeals Judge, concurs. STEWART, J., concurs in the result.

1 . See Swayne v. L.D.S. Social Servs., 761 P.2d 932, 935 n. 2 (Utah Ct.App.1988).

2 . The record shows that rather than revealing she had given the child up for adoption, Penny told plaintiff that she was taking the baby to California. From California, she called plaintiff's family and told them that the baby had died. These facts are irrelevant since events subsequent to Penny’s relinquishment of the child have nothing to do with the issues before this court. See Swayne, 761 P.2d at 935, 941.

3 . Swayne v. L.D.S. Social Servs., 670 F.Supp. 1537, 1546 (D.Utah 1987).

4 . Swayne, 761 P.2d 932.

6 . Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S.Ct. 2764, 2769, 73 L.Ed.2d 418 (1982); Swayne, 670 F.Supp. at 1540; Swayne, 761 P.2d at 936.

7 . See Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), cited in Swayne, 761 P.2d at 936, and Swayne, 670 F.Supp. at 1541.

8 . Swayne, 670 F.Supp. at 1542.

9 . See Wells v. Children’s Aid Soc'y of Utah, 681 P.2d 199, 204 (Utah 1984) (construing Ellis v. Social Servs. Dep’t, 615 P.2d 1250, 1255-56 (Utah 1980)). We have also held that a lesser degree of protection is warranted "unwed fathers 'whose relationships to their children are merely biological or very attenuated,’ ” compared to the higher degree of protection warranted "fathers who have ‘fulfilled a parental role over a considerable period of time.’ ’’ Wells, 681 P.2d at 203 (quoting In re J.P., 648 P.2d 1364, 1375 (Utah 1982)); Lehr v. Robertson, 463 U.S. 248, 261-62, 103 S.Ct. 2985, 2993-94, 77 L.Ed.2d 614 (1983).

10 . See Wells, 681 P.2d at 203.

11 . Cf. Kofford v. Flora, 744 P.2d 1343 (Utah 1987) (discussion of paternity calculation using HLA test results).

12 . Utah Const. art. I, § 24 (“All laws of a general nature shall have uniform operation.’’).

13 . "The rights of citizens of the State of Utah to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges.”

14 . See State v. Lafferty, 749 P.2d 1239, 1247 n. 5 (Utah 1988).

15 . See Lehr, 463 U.S. at 261, 103 S.Ct. at 2993, quoted in Wells, 681 P.2d at 203; supra note 9. But cf. In re J.P., 648 P.2d at 1372-74 (parental right deemed fundamental in parents who have established parental role over period of time).

16 . 615 P.2d 1250 (Utah 1980).

17 . 681 P.2d 199 (Utah 1984).

18 . 680 P.2d 753 (Utah 1984).

19 . 717 P.2d 686 (Utah 1986).

20 . Ellis, 615 P.2d at 1256.

21 . Id. at 1256.

22 . 681 P.2d at 208.

23 . See Baby Boy Doe, 717 P.2d at 689-91; Sanchez, 680 P.2d at 754-55; Wells, 681 P.2d at 207-08.

24 . Baby Boy Doe, 717 P.2d at 691 (quoting Ellis, 615 P.2d at 1256, n. 16) (citations omitted).

25 . See, e.g., Ala.Code § 26-10-3 (1986); Ariz. Rev.Stat.Ann. § 8-106 (1989); Ind.Code Ann. § 31-3-1-6.1 (Burns Cum.Supp.1989); Mo.Rev. Stat. §§ 453.040 (1986), 453.060 (Supp.1989).

26 . See, e.g., Haw.Rev.Stat. § 578-2 (as amended Supp.1989); Ill.Ann.Stat. ch. 40 ¶ 1510 (Smith-Hurd Cum.Supp.1989).

27 . See, e.g., Neb.Rev.Stat. § 43-104.02 (1988).

28 . See, e.g., Conn.Gen.Stat. §§ 46b-172a, 45-6Id (1989); La.Rev.Stat.Ann. § 9:422.14 (Cum. Supp.1990); Minn.Stat. § 259.261 (1988).

29 . See Miss.Code Ann. § 93-17-5 (1972).

30 . Wells, 681 P.2d at 203.

31 . 760 P.2d 906 (Utah Ct.App.1988).

32 . 760 P.2d at 907-08.

33 . 594 P.2d 898 (Utah 1979).

34 .Id. at 899.