Nevares v. M.L.S. ( 2015 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2015 UT 34
IN THE
SUPREME COURT OF THE STATE OF UTAH
BOBBY L. NEVARES,
Appellant,
v.
M.L.S. and THE ADOPTION CENTER OF CHOICE, INC.,
Appellees.
No. 20120763
Filed February 6, 2015
Fourth District, Provo Dep’t
The Honorable Claudia Laycock
No. 104402485
Attorneys:
Joshua K. Peterman, Salt Lake City, for appellant
Larry S. Jenkins, Lance D. Rich, Salt Lake City, for appellees
William C. Duncan, Salt Lake City, for amicus curiae
JUSTICE LEE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, JUSTICE PARRISH, and JUDGE PEARCE joined,
and in which JUSTICE DURHAM joined with respect to Part II.A.
JUSTICE DURHAM authored a concurring opinion.
ASSOCIATE CHIEF JUSTICE NEHRING does not participate herein;
COURT OF APPEALS JUDGE JOHN A. PEARCE sat.
JUSTICE LEE, opinion of the Court:
¶1 This is a paternity proceeding filed by the father of a child
conceived in Colorado but born in Utah and placed for adoption
here. The father, Bobby Nevares, had no idea his child might be
placed for adoption in Utah. And if an adoption had been initiated
(as anticipated) in Colorado, Nevares’s parental right to withhold
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consent to adoption would have remained intact. Yet the mother and
the adoption agency claim that Utah law required Nevares to take
affirmative steps to perfect his parental rights, see UTAH CODE § 78B-
6-122, which Nevares failed to fulfill. And they also assert that the
child was conceived as a result of criminal activity, and thus that
Nevares’s parental rights are foreclosed under another provision of
the Utah Code, see UTAH CODE § 78B-6-111.
¶2 The district court agreed with the mother and the adoption
agency on the first point, and thus granted summary judgment
against Nevares. We reverse. We first hold that Utah Code section
78B-6-122 merely required Nevares to fulfill the requirements of
Colorado law to protect his interests as a father. And because
Nevares’s parental rights would have remained intact under
Colorado law unless and until he was given notice and an
opportunity to be heard, we conclude that his parental rights are
likewise preserved under Utah law. Second, we interpret Utah Code
section 78B-6-111 not to apply to sexual activity between non-Utahns
outside of Utah, and thus conclude that this provision has no
application here.
I. BACKGROUND
¶3 From December 2009 to January 2010, Bobby Nevares was
involved in a sexual relationship with M.L.S. in Colorado. The two
were not married, and their relationship was brief. But at some time
during this period M.L.S. became pregnant.
¶4 In August, M.L.S. told Nevares that she was pregnant and
intended to place the child for adoption. Nevares knew nothing of
the pregnancy before then, and he soon took steps toward contesting
the anticipated adoption. He visited a Colorado adoption agency and
filled out an “Anticipated Relinquishment Reply Form,” checking a
box that indicated his intent both to contest the termination of his
parental rights and to petition the court to make a determination as
to his parental relationship with the child.
¶5 M.L.S. later traveled to Utah, where she gave birth to her child
(on September 29) and also placed it for adoption. She never told
Nevares of her plans to come to Utah to deliver the child or to
proceed with an adoption. Nor did Nevares have any idea of these
plans.
¶6 Two days after learning of the child’s birth in Utah, Nevares
filed a petition to establish paternity in a Utah district court. He had
not previously made a parallel filing in Colorado. His only act in
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Colorado was his visit to the adoption agency to fill out the Reply
Form.
¶7 Respondents, M.L.S. and The Adoption Center of Choice,
moved for summary judgment on Nevares’s petition on two
grounds. First, they alleged that Nevares lacked standing to contest
the adoption under Utah Code section 78B-6-111 because the child
was conceived “as a result of conduct which would constitute [a]
sexual offense” in Utah. Second, they asserted that Nevares had
failed to establish parental rights in the child in Colorado prior to the
mother placing the child for adoption, as purportedly required by
Utah Code section 78B-6-122(1)(c)(i).
¶8 The district court rejected respondents’ first argument. It
found Utah Code section 78B-6-111 inapplicable to sexual activity in
Colorado, and thus deemed respondents’ reliance on this provision
“not well founded.” But the district court granted summary
judgment on the basis of respondents’ second point. Specifically, the
court interpreted Utah Code section 78B-6-122 to require Nevares to
affirmatively establish parental rights in the child, and held that his
failure to do so foreclosed his parental rights in Utah. Citing
Colorado Revised Statutes sections 19-4-105 to -107, the district court
identified various affirmative steps that Nevares could have taken to
establish his paternity in Colorado. And while conceding that
Colorado law does not require a father to follow these steps, the
district court interpreted Utah law to require a father to affirmatively
establish paternity before acquiring any right to notice of an
adoption proceeding. Thus, because Nevares failed to follow these
steps under Colorado law to establish paternity, the district court
concluded that he had forfeited any rights he may have had to
contest the adoption under Utah law.
¶9 Nevares filed this appeal. Our review of the district court’s
summary judgment decision is de novo. Bahr v. Imus, 2011 UT 19, ¶¶
12–18, 250 P.3d 56.
II. DISCUSSION
¶10 The threshold question on appeal concerns the meaning of
Utah Code section 78B-6-122(1)(c)(i). The district court construed this
provision to require Nevares to take affirmative steps to establish his
paternity in Colorado. We read the statute differently. We interpret it
merely to incorporate Colorado law by reference, and thus find this
provision not to bar Nevares’s establishment of paternity.
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¶11 That determination requires us to consider respondents’
assertion that Nevares’s parental rights are foreclosed under Utah
Code section 78B-6-111. On this question we agree with the district
court. We interpret this provision not to apply to sexual activity
between non-Utahns outside of Utah, and thus reject this alternative
ground for respondents’ motion for summary judgment.
A. The Standard for Establishing Parental Rights Under Colorado Law
Under Section 122(1)(c)(i)(B)
¶12 As a general rule, the consent of an unmarried biological
father is not required when a child who is six months of age or less is
placed for adoption. UTAH CODE § 78B-6-121(3). Our law recognizes
exceptions to this rule. See, e.g., (requiring the father’s consent if,
before the mother consents to adoption, the father files paternity
proceeding, submits an affidavit required by statute, and offers to
pay and pays expenses). One such exception is implicated here. It
arises when the father did not know and could not reasonably have
known that the child would be placed for adoption in Utah. See id. §
78B-6-122(1)(c)(i).
¶13 The code identifies as “qualifying circumstances” a list of
conditions indicating a mother’s likelihood of placing the child for
adoption in Utah. Id. § 78B-6-122(1)(a) (listing as conditions (i)
residence of the mother or the child in Utah for at least 30
consecutive days, (ii) the mother’s intent to give birth to the child in
Utah, (iii) the child’s birth in Utah, or (iv) the mother’s intent to
consent to adoption in Utah or under Utah law). And it provides that
the consent of the father is required if the father did not know and
could not reasonably have known of a qualifying circumstance and if
the father “fully complied with the requirements to establish
parental rights in the child, and to preserve the right to notice of a
proceeding in connection with the adoption of the child, imposed by:
(I) the last state where the unmarried biological father knew, or
through the exercise of reasonable diligence should have known,
that the mother resided in before the mother executed the consent to
adoption.” Id. § 78B-6-122(1)(c).
¶14 The parties agree that Nevares did not know and could not
reasonably have known of a qualifying circumstance in this case.
Thus, the question presented concerns the meaning of the provision
requiring a father to have “fully complied” with the “requirements”
of the law of Colorado (the “last state” where he knew that M.L.S.
resided) “to establish parental rights in the child, and to preserve the
right to notice of a proceeding in connection with the adoption of the
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child.” Respondents contend (and the district court agreed) that this
provision contemplates proactive, affirmative efforts by Nevares to
“establish” his “parental rights.” And because Nevares failed to avail
himself of opportunities under Colorado law to perfect his rights in
paternity, see infra ¶ 20 (discussing paternity proceedings under
Colorado law), the district court concluded that he had failed to
satisfy section 122(1)(c)(i)(B).
¶15 We reject the district court’s reading of the statute on two
grounds. First, we consider the verb “establish” in the broader
context in which it appears in the statute, and conclude that section
122(1)(c)(i)(B) merely incorporates by reference the “requirements”
of the mother’s home state law for establishing parental rights. And
we note that the paternity option identified by respondents is not a
requirement of Colorado law, but only an option for establishing
paternity. Second, and in any event, we note that the district court’s
contrary construction of the Utah statute would implicate serious
due process concerns, as it would require an unwed father in
Colorado who had no idea of any plans for a Utah adoption to
construe Colorado law through the lens of the Utah statute.
¶16 For these reasons we conclude that section 122(1)(c)(i)(B)
cannot stand as a bar to the paternity petition on respondents’
motion for summary judgment. We hold, specifically, that Nevares’s
petition cannot be dismissed on the ground that he failed to fulfill
any “requirements” of Colorado law for establishing his parental
rights.
1. Statutory context
¶17 The reference to “establish[ing]” parental rights must be
interpreted in context. And in context the statute speaks not of a
general requirement of establishing parental rights, but of “fully
compl[ying] with the requirements to establish parental rights”
prescribed by the laws of the mother’s last state of residence or the
state where the child was conceived. UTAH CODE § 78B-6-
122(1)(c)(i)(B) (emphasis added). The reference to “requirements” of
the mother’s home state laws is significant. In context this is an
unmistakable incorporation of the laws of the “last state” of the
mother’s residence. And it is a clear reference to laws that go to
“requirements” for establishing parental rights.
¶18 That context makes a significant difference in this case. Under
Colorado law an unwed father’s parental rights are presumptively
preserved intact in the face of an impending adoption. Before an
adoption may proceed, the “agency or person having custody of the
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child” must “file a petition . . . to terminate the parent-child legal
relationship of the other parent, unless the other parent’s
relationship to the child has been previously terminated or
determined by a court not to exist.” COLO. REV. STAT. § 19-5-105(1).
And before terminating a father’s parental rights, courts are required
to inquire as to his identity, id. § 19-5-105(2), and must give him
notice of the impending proceeding, id. § 19-5-105(3). 1 Once the court
identifies the father, it “shall set a hearing, as expeditiously as
possible, to determine” whether his parental rights should be
terminated. Id. At the hearing, the father is required to appear to
assert his rights and to show that he can “personally assume legal
and physical custody, taking into account the child’s age, needs, and
individual circumstances.” Id. § 19-5-105(3).
¶19 This context and background weigh heavily against the
district court’s construction of section 122(1)(c)(i). The question
under the Utah statute concerns not just Colorado law for
“establish[ing]” parental rights in general, but the “requirements” of
that state law for doing so. And the requirements of Colorado law are
simple and straightforward: An unwed father anticipating a planned
adoption need only await notice of the required petition for
termination of his (presumptively intact) parental rights, and then
appear at the termination proceeding and show that he can
“personally assume legal and physical custody” of the child. Id.
¶20 As respondents indicate, there are other mechanisms in
Colorado law for an unwed father to proactively “establish” his
parental rights—as by filing a paternity petition. See COLO. REV.
STAT. § 19-4-104 (providing that “[t]he parent and child relationship
may be established . . . between a child and the natural father” by
filing a paternity petition); id. § 19-4-105.5 (setting forth procedures
for filing paternity petition, which “may be commenced prior to the
birth of a child”). But these are options, not requirements of Colorado
law. For an unwed father anticipating an adoption, the requirements
of Colorado law appear to be limited to compliance with section 19-
5-105(3) (appearance in the termination proceeding and showing
that he can personally assume legal and physical custody).
1 Even if the father’s identity is unknown, some notice is required.
Colorado law requires publication notice in such circumstances in
order to give the father a chance to step forward and assert his
rights. COLO. REV. STAT. § 19-5-105(5).
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¶21 This conclusion is not undermined, as respondents assert, by
the conjunctive “and” in Utah Code section 122(1)(c)(i)(B). Granted,
the conjunction suggests that Utah law contemplates that the notion
of a father “fully compl[ying] with the requirements to establish
parental rights in the child” is distinct from the concept of the father
“preserv[ing] the right to notice of a proceeding in connection with
the adoption of the child.” Id. But to some extent those concepts
merge under Colorado law, which is significant given our view that
section 122(1)(c)(i)(B) merely incorporates the requirements of
Colorado law by reference. And in any event the statute speaks only
of requirements, and again the only requirement for establishing
parental rights under Colorado law was to appear and make a
showing in the termination proceeding required in anticipation of an
adoption. Nevares cannot be faulted for not appearing and not
making the anticipated showing, as no Colorado adoption was ever
initiated and thus no termination proceeding ever proceeded.
¶22 It is likewise beside the point that Nevares failed to file a
paternity claim within twenty-one days of receiving notice from a
Colorado adoption facility of M.L.S.’s plan to pursue expedited
relinquishment of the child in Colorado. Respondents point to
Nevares’s failure to file a response to this notice as a basis for
questioning his fulfillment of his obligations under Colorado law to
establish his parental rights. But this argument fails as a matter of
law on the face of the governing Colorado statute. The cited
provision requires the recipient of a notice like that sent to Nevares
to file a paternity claim “[n]o later than twenty-one days after the
date of notice . . . or before a relinquishment petition is filed with the
court, whichever occurs later.” COLO. REV. STAT. § 19-5-
103.7(4)(a)(V)(B) (emphasis added). This limitations provision has no
application in this case because no relinquishment petition was ever
filed with a court in Colorado. So again Nevares cannot be charged
with falling short in any way under Colorado law, as the cited
provision never came into play given that the anticipated Colorado
adoption proceeding never went forward.
2. Due process
¶23 Even if the statutory reference in Utah Code section 78B-6-
122(1)(c)(i)(B) to fulfilling the laws of the mother’s last home state for
“establish[ing]” parental rights could plausibly be read to
incorporate Colorado paternity procedures, that construction would
fail on the ground that it would raise grave concerns under the Due
Process Clause. The essence of due process is reasonable notice and
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an opportunity to be heard. Salt Lake Legal Defender Ass’n v. Atherton,
2011 UT 58, ¶ 2, 267 P.3d 227. That right is a significant protection
against the arbitrary extinguishment of important rights—in a cause
of action, in property, or otherwise. Here the right at stake—of a
parent in establishing a relationship with his child—is a matter of
great significance. So Nevares has a constitutional right to reasonable
notice of a proceeding in which such parental right might be
terminated. And the district court’s construction of the statute would
effect a serious incursion on that right to notice and an opportunity
to be heard. See infra ¶¶ 38–46 (discussing a parallel due process
concern with extraterritorial application of Utah criminal law
through Utah Code section 78B-6-111).
¶24 Under the district court’s approach, Nevares would have been
required to proactively seek out opportunities made available to him
for establishing his parental rights under Colorado law. The problem
with this approach is that those opportunities are merely permissible
options for a putative father in Colorado. They are not prerequisites
to preserving or fixing a father’s parental rights. See supra ¶ 20.
¶25 Therein lies the due process problem. If we construed Utah
law to require Nevares to fulfill requirements not imposed on him
by Colorado law, we would be holding him to a legal regime to
which he could not reasonably have expected to be bound. Nevares,
after all, did not know and could not reasonably have known that his
child would be placed for adoption in Utah. So he would reasonably
have expected Colorado law to control his parental rights in the
context of an anticipated adoption. In these circumstances, Nevares
could not reasonably have been charged with following a directive
of Utah law—to proactively pursue a paternity case that Colorado
law allowed but did not require—because he had no basis for
anticipating the applicability of Utah law.
¶26 This is another ground for our construction of Utah Code
section 122(1)(c)(i)(B). We interpret this provision simply to
incorporate the “requirements” of the mother’s last home state for
the establishment of the father’s parental rights. And we note that
this approach has the significant virtue of avoiding a substantial due
process problem.
B. Applicability of Section 111
¶27 Under the Utah Adoption Act, a biological father is barred
from contesting an adoption where “the child who is the subject of
the proceeding was conceived as a result of conduct which would
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constitute any sexual offense described in Title 76, Chapter 5, Part 4,
regardless of whether the biological father is formally charged with
or convicted of a criminal offense.” UTAH CODE § 78B-6-111.
Respondents invoked this provision as an alternative basis for their
motion for summary judgment. They noted that when the child in
question was conceived Nevares was twenty years old and M.L.S.
was only fifteen, and thus asserted that the child was conceived as a
result of conduct amounting to statutory rape under Utah law. See
UTAH CODE § 76-5-401 (describing the crime of “unlawful sexual
activity with a minor”; defining “minor” as a “person who is 14
years of age or older, but younger than 16 years of age at the time
[of] the sexual activity”; and identifying unlawful sex acts, including
“sexual intercourse with a minor”).
¶28 The district court rejected this argument as “not well
founded.” We agree. For reasons set forth below, we hold that
section 111 is not implicated where, as here, the conduct in question
could not have “constitute[d] a sexual offense” under the referenced
part of the Utah code because the activity involved non-Utahns
outside of Utah, and thus could not have sustained a criminal charge
under Title 76, Chapter 5, Part 4.
¶29 Section 111 is aimed at “conduct which would constitute a[]
sexual offense described in Title 76, Chapter 5, Part 4, regardless of
whether the biological father is formally charged with or convicted
of a criminal offense.” UTAH CODE § 78B-6-111. The question
presented is the basis for establishing “conduct” that would
“constitute a[] sexual offense” under Utah law. Two alternatives are
presented: (a) respondents’ view—that section 111 requires only
proof that the father engaged in conduct fulfilling the actus reus and
mens rea elements of a Utah crime; and (b) Nevares’s position—that
section 111 requires proof of those elements and also the
jurisdictional prerequisite to a criminal charge or conviction, see
UTAH CODE § 76-1-201(1) (providing that person is subject to
prosecution under Utah law only if he commits an offense “wholly
or partly” in Utah); id. § 76-1-501(3) (providing that “jurisdiction”
must be established by the prosecution “by a preponderance of the
evidence”). Admittedly, this is a difficult question, as the evidence of
the text’s meaning is not overwhelmingly apparent at first blush.
That said, we adopt the latter reading on three grounds: (1) the
statute’s “regardless” clause, which suggests (when read in light of
semantic canons of construction) that all matters sufficient to sustain
a “formal[] charge[]” or “convict[ion]” must be established to trigger
section 111; (2) the well-settled presumption against extraterritorial
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application of statutory provisions, which counsels in favor of
limiting section 111 to offenses committed in Utah even if the statute
were silent regarding its application to conduct outside of Utah; and
(3) the canon of constitutional avoidance, which counsels in favor of
limiting section 111 to offenses committed in Utah in light of the
grave due process problems associated with respondents’ approach.
1. The “regardless” clause and semantic canons of construction
¶30 Section 111 speaks to the limitations on its application in the
“regardless” clause. There we are told that the statute is implicated
“regardless of whether the biological father is formally charged with
or convicted of a criminal offense.” UTAH CODE § 78B-6-111. Under
this clause, it is clear that a father’s rights are foreclosed under
section 111 even without a “formal[] charge[]” by a prosecutor or a
“convict[ion]” in court. That formulation, moreover, also conveys a
negative implication. Because the “regardless” clause is the only
express limitation on the face of this statute, we can also infer that
there are no other limitations. Thus, the implication is that all
preconditions to a “formal[] charge[]” or “convict[ion]” must be
fulfilled to trigger section 111.
¶31 That implication follows from established canons of statutory
construction. One such canon is the expressio unius principle of
interpretation—the notion that the statutory expression of one term
or limitation is understood as an exclusion of others. See Penunuri v.
Sundance Partners, Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984. Section 111
articulates a single limitation on the proof of “conduct” constituting
a criminal “offense”: Such proof does not require a “formal[]
charge[]” or “convict[ion].” And under the expressio unius canon, the
expression of that limitation is an implied rejection of others. 2
2 This canon, like most all others, is by no means ironclad. See
Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 19, 248 P.3d 465. “Canons
of construction . . . are not formulaic, dispositive indicators of
statutory meaning. They are merely tools that guide our construction
of statutes” in accordance with rules of thumb as to “ordinary usage
and understanding of language.” Id. Such canons are always subject
to—and sensitive to—context. Id. (noting that canons “must be
understood as one of several contextual indicators of meaning”)
(emphasis added).
For these reasons, the concurring opinion falls short in its efforts
to repudiate this canon as a “formal propositional fallacy.” Infra ¶ 61,
(Continued)
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¶32 The reference to a “formal[] charge” is significant. Each term of
a statute has significance, 3 and this one appears to underscore that
all but an actual—“formal[]”—charge is required. And under Utah
law, as noted above, the proof necessary to sustain a charge of and
conviction on a criminal offense includes not only the actus reus and
mens rea elements of a crime, but also the jurisdictional basis for a
criminal charge. 4 See UTAH CODE § 76-1-201(1); id. § 76-1-501(3).
¶33 The concurrence reads the statute differently. To establish
“conduct which would constitute a[] sexual offense” under Utah
law, the concurrence would require proof of only the actus reus and
mens rea “elements” of a crime. Infra ¶ 65. But that approach ignores
n.1 (quoting BLACK’S LAW DICTIONARY for the proposition that
expressio unius is not “lexicographically accurate”). The point of
invoking the canon is not to offer it as an ironclad rule. Thus, we
understand and agree that “[s]ometimes” the expression of one
limitation “implies the denial of the equivalent right or privilege in
other kinds” and “sometimes it does not.” Id. And we agree that
“whether it does or does not depends on the particular
circumstances of context.” Id. But that does not render the canon
invalid. It simply makes it sensitive to context. And here we find the
context to sustain its invocation.
3 Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d
863.
4 This is true even in light of UTAH CODE 76-1-501(3), which states
that jurisdiction is not an “element” of an offense in the sense of
being subject to proof beyond a reasonable doubt. For present
purposes that is a distinction without a difference. The point is that
the prosecution bears the burden of asserting and proving
jurisdiction to sustain a “formal[] charge” or “convict[ion]” of an
offense under the Utah criminal code. And that sustains the
applicability of section 111 under the “regardless” clause, regardless
of whether jurisdiction is to be proven beyond a reasonable doubt or
merely by a preponderance of the evidence.
The notion that jurisdiction is a matter not of substantive criminal
law but of criminal procedure, infra ¶ 13, n. 3, is also a red herring.
Jurisdiction is a matter that must be proven by the prosecution under
the Utah criminal code. And in that sense—the only sense that
matters here— jurisdiction is substantive, not procedural.
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the expressio unius implications of the “regardless” proviso of section
111. 5
¶34 It also runs afoul of a related canon: It reads into the statute a
limitation not expressly stated on its face. 6 Thus, instead of requiring
proof of all matters other than those covered by the “regardless”
clause (no “formal[] charge” or “convict[ion]”), the concurring
justices draw an arbitrary line short of those standards. They
interpret the statute, in other words, to include an additional
limitation. In their view, the statute really means to say “regardless
of whether the biological father is formally charged with or
convicted of a criminal offense and regardless of whether the prosecution
could establish a jurisdictional prerequisite to make such a charge or sustain
a conviction.” We find no room in section 111 for that limitation, and
we deem it foreclosed by the terms expressly stated therein. We
accordingly conclude that section 111 is not implicated where there
is no jurisdictional basis for a formal charge under Title 76, Chapter
5, Part 4 of the code because the sexual conduct at issue was not
“wholly or partly” in Utah.
2. The presumption against extraterritorial effect
¶35 That conclusion would hold even if section 111 were silent on
the question whether jurisdiction is a part of establishing “conduct
which would constitute a[] sexual offense” under Utah law. Under a
deeply rooted and longstanding canon of construction, statutes are
presumed not to have extraterritorial effect. See U.S. Bond & Fin.
Corp. v. Nat’l Bldg & Loan Ass’n of America, 17 P.2d 238, 239 (Utah
1932) (“It is fundamental that a statute can have no extraterritorial
effect.”). This presumption is a gap-filler, operating under a “clear
5 The “statute’s subjunctive phrasing—‘conduct which would
constitute’”—is admittedly “less than perfectly clear.” Infra ¶ 59. But
there is a “plausible interpretation of that phrasing that supports”
our approach. Infra ¶ 59. The subjective “would” is an apparent
reference to the “regardless” clause: It emphasizes that the statute is
implicated even without a “formal[] charge[]” or “convict[ion].”
6 See Berrett v. Purser & Edwards, 876 P.2d 367, 370 (Utah 1994)
(“[C]ourts are not to infer substantive terms into the text that are not
already there.”); Olsen, 2011 UT 10, ¶ 18 (applying this canon to
conclude that Utah Code section 52-6-201(1) “leaves no room for this
court to add conditions to the right of reimbursement that are not set
forth expressly by legislation”).
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statement” rule. It provides that unless a statute gives a “clear
indication of an extraterritorial application, it has none.” Morrison v.
Nat’l Austl. Bank Ltd., 561 U.S. 247, 262–65 (2010); see also State v. Reed,
709 P.2d 391, 392 (Utah 1985) (invoking the presumption “absent
legislative enactment to the contrary”).
¶36 When the Utah legislature enacted section 111, it did so
against the backdrop of this longstanding presumption. We should
respect this presumption in our effort to discern the legislature’s
intent. By following the presumption in interpreting the statute,
moreover, we also protect the legitimate expectations and reliance
interests of those who are bound by its terms. A person in Nevares’s
shoes could not reasonably have anticipated that section 111 would
foreclose his parental rights if a child conceived as a result of his
sexual activity in Colorado were brought to Utah to be placed for
adoption here. Had Nevares considered section 111, he would
reasonably have understood it to apply only to sexual offenses with
a jurisdictional connection to Utah. 7 That conclusion, moreover,
would doubtless have been informed by an intuitive sense of the
presumption against extraterritoriality, as even non-lawyers have a
sense that criminality is the domain of the separate states, and that
activity wholly in one state cannot properly be subject to criminal
charges in another.
¶37 The presumption against extraterritoriality is a sufficient basis
for our decision limiting section 111 to conduct satisfying the
jurisdictional prerequisites to a formal charge or conviction of a
criminal offense. At the very least, we can conclude that section 111
gives no “clear indication of an extraterritorial application.”
Morrison, 561 U.S. at 255. At a minimum, it can be said that the
statute is silent on the question whether sexual conduct between
non-Utahns outside of Utah could “constitute a[] sexual offense”
7 Respondents effectively conceded this point at oral argument. In
response to questions from the court, counsel acknowledged that
Nevares’s sexual contact with M.L.S. was not a violation of Utah
criminal law at the time of the subject child’s conception, and that it
did not become a crime when the child was subsequently born in or
placed for adoption in Utah. Nevares undoubtedly viewed the
matter the same way, and his reliance interests under the
presumption against extraterritoriality are accordingly entitled to
respect.
13
NEVARES v. M.L.S et al.
Opinion of the Court
under Utah law. And the lack of statutory clarity on that matter is
sufficient to foreclose its application to conduct bearing no
jurisdictional connection to Utah. 8
3. The canon of constitutional avoidance
¶38 Finally, the same conclusion holds under the canon of
constitutional avoidance. Under this canon the courts may “reject[]
one of two plausible constructions of a statute on the ground that it
would raise grave doubts as to its constitutionality.” Utah Dep’t of
Transp. v. Carlson, 2014 UT 24, ¶ 23, 332 P.3d 900. Thus, if there are
grave doubts about section 111’s constitutionality if it applies
without regard to any jurisdictional nexus to Utah, we may reject
that construction in favor of a plausible alternative that avoids such
doubts. We do so for reasons explained below.
¶39 The Due Process Clause has long been understood to establish
limits on the arbitrary extension of the power of the state on persons
not within its territorial bounds or jurisdiction. One familiar
application of this principle is found in constitutional limitations on
8 It is no answer to assert that section 111 does not criminally
penalize Nevares for his sexual conduct in Colorado. Infra ¶ 73.
Presumably Mr. Nevares views the potential loss of his parental
rights as a substantial punishment (perhaps greater than a criminal
fine or temporary term of confinement). See Santosky v. Kramer, 455
U.S. 745, 756–57 (1982) (observing that parental rights termination
proceedings “are both particularly important and more substantial
than mere loss of money,” while holding that proof must be made on
“clear and convincing evidence” notwithstanding “the state’s civil
labels and good intentions,” given that such proceedings “threaten
the individual involved with a significant deprivation of liberty or
stigma” (internal quotation marks omitted)). But in any event the
point is that section 111’s bar on a father’s rights is tied to the
establishment of “conduct which constitutes a[] sexual offense”
under Utah law. And the concurring opinion would read that
provision to have extraterritorial effect—in a manner running afoul
of the above-stated presumption.
Our conclusion does not infer an “exception” on the Adoption
Act’s extraterritorial application, or add an exemption that is “not
apparent on the statute’s face,” as the concurrence charges. Infra
¶ 64. We simply read section 111 not to impose consequences for
extraterritorial conduct.
14
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Opinion of the Court
the territorial jurisdiction of our courts. In this area, it is well-settled
that “[d]ue process requires that a defendant be haled into court in a
forum State based on his own affiliation with the State, not based on
the random, fortuitous, or attenuated contacts he makes by
interacting with other persons affiliated with the State.” Walden v.
Fiore, 134 S. Ct. 1115, 1123 (2014) (internal quotation marks omitted);
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294 (1980)
(“[T]he Due Process Clause ‘does not contemplate that a state may
make binding a judgment in personam against an individual or
corporate defendant with which the state has no contacts, ties, or
relations.’”) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 319
(1945)).
¶40 Yet this is not the only application of this principle of due
process. In a range of decisions involving the extraterritorial
application of federal law (to conduct outside the United States), the
federal courts have held that “the Government [must] demonstrate
that there exists a sufficient nexus between the conduct condemned
and the United States such that the application of the statute would
not be arbitrary or fundamentally unfair to the defendant.” United
States v. Medjuck, 156 F.3d 916, 918 (9th Cir. 1998) (internal quotation
marks omitted). This principle has likewise been extended to the
arbitrary extraterritorial application of state law. See Becton,
Dickinson & Co. v. Dep’t of Revenue, 422 N.E.2d 1350, 1352 (Mass.
1981) (explaining that state taxation of income generated by
interstate activities requires “a minimal connection or nexus between
the interstate activities and the taxing State”). The essential premise
of these decisions is the notice principle at the heart of the due
process guarantee, which gives rise to a prohibition of arbitrary state
action in the absence of such notice. 9
9 We also acknowledge that this due process argument is far from
conclusive. For reasons identified in the concurrence, infra ¶¶ 69, 72,
the application of Utah law to a father of a child placed for adoption
here is by no means arbitrary. Utah certainly has an interest in
regulating adoptions, and in so doing in determining the rights of
fathers. Thus, our analysis here is presented only as a matter of
constitutional avoidance—of identifying grave constitutional
questions, and not of making a conclusive determination of
constitutionality. As noted below, infra ¶ 50, n.16, we leave open the
legislature’s prerogative of amending section 111, subject to the
(Continued)
15
NEVARES v. M.L.S et al.
Opinion of the Court
¶41 If section 111 is construed to encompass Nevares’s
extraterritorial conduct, serious due process questions would arise
under these cases. Under respondents’ view of the statute, a father’s
parental rights may be cut off by a consequence prescribed by Utah
law for conduct lacking any nexus with the state. If that is what
section 111 says, a serious due process question would arise.
¶42 A putative father in Nevares’s position—engaging in sexual
activity in Colorado, without any connection to Utah—may not
reasonably anticipate that Utah law could penalize his behavior by
cutting off his parental rights in a child conceived as a result of such
sexual activity. Instead, an individual in Nevares’s position would
arguably look to Colorado law on the matter. See infra ¶ 49
(concluding that Colorado law should apply on remand). And
Colorado law, as we understand it, would not have foreclosed
Nevares’s parental rights based on his sexual relationship with
M.L.S. See infra ¶ 48; COLO. REV. ST. § 19-5-105.5(3) (authorizing a
victim of rape or sexual assault to file a petition “to terminate the
parent-child legal relationship” of the father of a child “conceived as
a result of an act that led to the parent’s conviction for sexual assault
or for a conviction in which the underlying factual basis was sexual
assault” (emphasis added)). Thus, interpreting section 111 to extend
to Nevares’s conduct in Colorado would impose on him a significant
consequence that he could not have anticipated under the law that
he would have presumed to apply at the time he engaged in sexual
activity in Colorado. This would introduce serious due process
concerns under the above-cited cases. 10 And that is a further basis for
interpreting section 111 the other way, to avoid this constitutional
question.
limitations of the constitution (which we highlight but do not resolve
here).
10 In so noting, we do not contend “that legislatures may never
attach civil consequences to criminal conduct without notice.” Infra
¶ 71, n.4. The point is simply that the consequence of this application
of section 111—the loss of the parental right to object to an
adoption—is sufficiently significant to implicate serious due process
concerns. And that concern is heightened where, as here, the father’s
sexual activity was arguably legal in the state in which it took place,
and would not have led to the loss of his parental right to object to
an adoption.
16
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Opinion of the Court
¶43 The concurring opinion’s objections to this analysis are
unpersuasive. First, we have no quarrel with the notion that the Utah
courts have territorial jurisdiction over the adoption case. Infra ¶ 69
(Durham, J., concurring). The constitutional question presented,
however, is not the territorial jurisdiction of the Utah courts, but the
due process basis for applying substantive Utah law herein. And on
this matter, there is at least a grave constitutional doubt concerning
the extraterritorial application of section 111—an application that
would impose a substantial penalty (a per se bar on a father’s right to
object to an adoption) for conduct wholly in Colorado and bearing
no nexus to Utah.
¶44 It is no answer to note that “this is not a criminal case.” Infra
¶ 69. Granted, the due process question highlighted here would be
greatest in the field of criminal law. But it is not necessarily limited
to that field. 11 And the penalty in question—a per se bar on a father’s
parental right to object to an adoption—is a matter that at least some
would perceive as more significant than a criminal fine or prison
term. 12 There is significant constitutional doubt as to whether the
consequence prescribed by section 111 can be imposed on the basis
of conduct lacking any jurisdictional nexus to Utah.
¶45 In so noting, we are by no means foreclosing the applicability
of Utah adoption law in a Utah adoption proceeding. For most
questions arising in the course of a Utah adoption, Utah law would
apply—even as to the matter of a father’s parental rights, and even
absent a substantial nexus between the father and the forum state.
11 See Quill Corp. v. North Dakota, 504 U.S. 298, 308 (1992)
(explaining that whether the Due Process Clause permits a state to
tax a corporation depends on the “magnitude of [the corporation’s]
contacts” with the taxing state); Bigelow v. Old Dominion Copper
Mining & Smelting Co., 225 U.S. 111, 137 (1912) (giving a New York
surety statute extraterritorial effect “would operate as a denial of due
process of law”).
12 See Santosky, 455 U.S. at 756–57 (observing that parental rights
termination proceedings “are both particularly important and more
substantial than mere loss of money,” while holding that proof must
be made on “clear and convincing evidence” notwithstanding “the
state’s civil labels and good intentions,” given that such proceedings
“threaten the individual involved with a significant deprivation of
liberty or stigma” (internal quotation marks omitted)).
17
NEVARES v. M.L.S et al.
Opinion of the Court
See infra ¶ 69. But section 111 is different. It is a law regulating sexual
activity—by imposition of a substantial penalty aimed at
disincentivizing such activity. And for reasons noted above, the
extension of that provision to activity bearing no jurisdictional nexus
to Utah would raise serious due process concerns. 13
13 The concurring opinion acknowledges that “a person cannot be
held criminally liable for conduct unless she has notice that the
conduct is criminal.” Infra ¶ 70. But while conceding that “[n]otice of
the conduct’s criminality would be necessary,” the concurrence
insists that “perfect notice of the conduct’s consequence would not.”
Infra ¶ 70. And in an effort to support this conclusion, the
concurrence asserts that “[i]f this were not the case, then . . . a statute
establishing a sex offender registry could not apply to someone who
committed his sexual offense before it was enacted, or to someone
who committed his offense in a jurisdiction without such a law.”
Infra ¶ 71.
We are troubled by this premise and find the example
distinguishable. The proposed distinction between “criminality” and
“consequences” of criminal behavior is overbroad. Granted, a felon
who moves to a new state may find himself subject to new
regulations and restrictions. But he may not be subject to new
punishment, and is entitled to notice before the “consequence” of
such punishment is imposed. Sex offender registries, moreover, are
distinguishable. Such registries have been upheld against
constitutional attack on the ground that they constitute a “regulatory
scheme” that is “civil” and “nonpunitive,” see Smith v. Doe, 538 U.S.
84, 105 (2003) (upholding Alaska sex offender registry against ex
post facto challenge), not because sex offenders lack a due process
right to “perfect notice” of the “consequences” of their behavior,
infra ¶ 18. The permanent loss of a parental right is a significant
consequence of criminal behavior. The arbitrary imposition of this
consequence—without any notice—is at least questionable as a
matter of due process.
In so stating, we do not hold that the consequence of a loss of the
parental right to object to an adoption amounts to criminal
punishment for the underlying behavior. Our point is more
limited—that the consequence is significant enough to raise serious
doubts about the constitutionality of section 111 under the Due
Process Clause if applied to conduct lacking a jurisdictional nexus to
Utah. See Santosky, 455 U.S. at 756.
18
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Opinion of the Court
¶46 We interpret section 111 to avoid that problem. We do so,
moreover, without conclusively resolving this due process
problem—by noting, instead, that the constitutional question
presented is sufficiently “grave” to merit our avoidance of it.14 See
Utah Dep’t of Transp., 2014 UT 24, ¶ 23.
III. CONCLUSION
¶47 For the above reasons we reverse the decision dismissing
Nevares’s paternity petition on summary judgment. And we remand
for further proceedings in the district court.
¶48 In so doing, we emphasize the limited nature of our holding.
First, we do not conclude that a biological father whose child is
conceived as a result of sexual misconduct in another state is
immune from any bar to his parental rights in an adoption
proceeding in Utah. Our analysis of this issue is based on our
construction of Utah Code section 78B6-111, which we find
inapplicable in this case. That conclusion, however, may still leave
room for the application of other laws affecting a father’s rights, such
as laws authorizing a victim of rape or sexual assault to file a petition
“to terminate the parent-child legal relationship” of the father of a
child “conceived as a result of an act that led to the parent’s
conviction for sexual assault or for a conviction in which the
underlying factual basis was sexual assault.” See COLO. REV. ST. § 19-
5-105.5(3) (emphasis added).
¶49 Nevares contends that this provision should govern any
determination whether his sexual conduct in Colorado would
operate as a bar on the assertion of his parental rights. We agree. The
premise of this holding is in the terms of section 111 (which does not
apply to this case for reasons noted above) and in the language of the
Colorado statute (which plainly does apply). 15
14 In light of our interpretation of section 111, which is informed
by procedural due process concerns, we need not and do not reach
the substantive due process question addressed by the concurrence.
See infra ¶¶ 74–76.
15 Utah law, of course, would regulate an adoption proceeding in
Utah courts. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 289
(1971). But the cited Colorado provision is not an adoption
provision; it is a law regulating sexual activity—by prescribing a
penalty (termination of parental rights) aimed at disincentivizing
(Continued)
19
NEVARES v. M.L.S et al.
Opinion of the Court
¶50 Nevares’s parental rights would appear to be unaffected by
the cited Colorado provision, as he was never convicted of sexual
assault. But provisions like the cited Colorado statute are the answer
to the concern that our construction of section 111 could allow a man
who fathers a child in another state as a result of a rape to assert his
parental rights in an adoption taking place in Utah. See infra ¶ 79–81.
And, in any event, such laws are not the only recourse. In Utah as
elsewhere, a petition to terminate parental rights may be granted
upon a showing of a parent’s unfitness or incompetence, based, for
example, on “a history of violent behavior.” See UTAH CODE § 78A-6-
508(2)(f). A petition along these lines could also be filed in the Utah
courts in a proceeding like this one. 16
such behavior. On that matter Colorado law would apply, for
reasons noted above.
16 The concurrence rejects this approach on policy grounds,
asserting that it yields “inadequate protection for Utah citizens who
have been impregnated by sexual abuse in other states.” Infra ¶ 78.
Specifically, the concurring opinion complains that some states
“have no statutes restricting paternal rights of fathers who conceive
children through rape,” while also insisting that of the states that do
have such laws, “many provide less protection for rape survivors
than is needed.” Infra ¶ 79. The question presented, however,
concerns the proper interpretation of the relevant statutes—of Utah
Code section 78B-6-111 and of section 19-5-105.5(3) of the Colorado
Code. And in this statutory realm, it is not our role to make policy.
We must instead implement the policies reflected in the governing
statutes as we understand them.
The concurrence sees the applicable Colorado provision as
inadequate—even as supplemented by governing Utah laws. Infra ¶
78 (contesting the wisdom of Colorado’s requirement of a rape
conviction, by warning that a rape victim would be “defenseless” if
there is no conviction due to “police mistakes” or an “understaffed
prosecutor’s office”); ¶ 79 (asserting that Utah law providing for
termination of parental rights upon a showing of unfitness is
“inadequate because it underestimates the harm done when a sexual
abuser is permitted even to intervene in adoption proceedings”). But
these are questions for the respective legislatures. Colorado could
consider amending its statute to address the concern highlighted by
the concurrence. And the same goes for our Utah legislature: Subject
to the limitations of the constitution, the Utah legislature could
(Continued)
20
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Opinion of the Court
¶51 Second, we do not foreclose challenges to Nevares’s parental
rights that were not presented for our decision on this appeal. Our
conclusion is simply that the grounds advanced by respondents are
insufficient as a matter of law to foreclose Nevares’s right to grant or
withhold his consent to an adoption under Utah Code section 78B-6-
122(1)(c). In remanding, we resolve no other issues, and express no
view as to any other grounds that respondents may advance in
response to Nevares’s petition or that may arise in any subsequent
proceedings regarding the adoption of the child in question. 17
consider amending section 111. Unless and until that happens, we
are bound by the terms of these statutes.
The concurrence’s discomfort with our holding is premised on the
belief that the legislature’s ability to protect mothers and children
“should not depend on the laws of other states.” Infra ¶ 81. But that
prospect is not our doing. It is an inevitable feature of our federal
system. And it is likewise inherent in the concurring opinion’s
approach. Under the concurrence, section 111’s constitutionality
would depend on whether Nevares’s conduct was criminal in
Colorado. Infra ¶ 76. Yet that analysis, of course, also hinges on “the
laws of other states,” as each state classifies criminal conduct
differently. Colorado sets the age of consent at fifteen. COLO. REV.
STAT. § 18-3-405(1). And because M.L.S. was fifteen at the time of her
relationship with Nevares, that relationship was not illegal. But other
states set a higher age of consent. Pennsylvania, for instance, sets it at
sixteen. 18 PA. CONS. STAT. § 3122.1. Thus, if Nevares had been a
Pennsylvanian, the concurrence would come out the other way,
despite no difference in the nature of the relationship. See Brooks v.
A.S. (In re J.M.S.), 2015 UT __, ¶ 34, __ P.3d __ (Durham, J.,
dissenting). Thus, the legislature’s ability to protect mothers and
children will “depend on the laws of other states” under both
approaches, and that prospect is accordingly no basis for rejecting
our opinion.
17 See, e.g., UTAH CODE § 78B-6-133(1) (calling for assessment of
“whether proper grounds exist for the termination of . . . [parental]
rights” of a person “whose consent for an adoption is required”); id.
§ 78B-6-133(2)(b), (3) (if parental rights are not terminated, calling for
“an evidentiary hearing to determine who should have custody of
the child” based on “the child’s best interest,” and considering
“evidence of psychological or emotional bonds that the child has
formed with a third person, including the prospective adoptive
(Continued)
21
NEVARES v. M.L.S et al.
Opinion of the Court
¶52 Finally, we also highlight an important implication of our
decision for adoptions in cases where an unwed father did not know
and could not reasonably have known of a qualifying circumstance
under Utah Code section 122(1)(c)(i). The implication emanates from
such a father’s statutory right to assert his parental rights even
afterthe mother confers her consent under Utah Code § 78B-6-
122(1)(c). In light of that right, an adoption that is otherwise final
may nonetheless be subject to an unwed father appearing later to
assert his parental rights in a child placed for adoption. To forestall
that eventuality, the mother and the adoption agency may be well-
advised to inform the unwed father of the mother’s qualifying
circumstances. That proactive step is not legally required, but as this
case indicates, it could still be advisable if the goal is to minimize the
risk of an unwed father stepping forward at a later date.
———————
parent,” and “any detriment that a change in custody may cause the
child”); id. § 78B-6-133(5) (noting that a “custody order entered
pursuant to this section may . . . (a) include provisions for: (i) parent-
time; or (ii) visitation by an interested third party; and (b) provide
for the financial support of the child”).
22
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JUSTICE DURHAM, concurring in the result
JUSTICE DURHAM, concurring in the result:
¶53 I concur in the result the majority reaches, and I also concur
with the reasoning in Part II.A of its opinion. I disagree, however,
with the majority’s reasoning in Part II.B. Utah Code section 78B-6-
111 does not limit its application to sexual conduct that occurred in
Utah or between Utahns; rather, it applies to all fathers whose
paternal rights are based on sexual conduct that would be illegal if it
occurred in Utah. It therefore applies to Mr. Nevares.
¶54 However, although Mr. Nevares’s sexual conduct with M.L.S.
would constitute a felony under Utah law, it was legal where it
occurred. Because Mr. Nevares did not commit a crime by
conceiving a child with M.L.S., he has a constitutionally protected
right to participate in the child’s upbringing that can only be
foreclosed if he fails to assert it or if he is unfit to be a parent. For this
reason, I would hold that section 111 is unconstitutional as applied
to Mr. Nevares as a matter of substantive due process.
I. SECTION 111 APPLIES TO SEXUAL CONDUCT
OUTSIDE OF UTAH
¶55 Utah Code section 78B-6-111 provides as follows:
[T]he consent of a biological father [is not] required
in connection with an adoption proceeding, in cases
where it is shown that the child who is the subject of
the proceeding was conceived as a result of conduct
which would constitute any sexual offense described
in Title 76, Chapter 5, Part 4, regardless of whether
the biological father is formally charged with or
convicted of a criminal offense.
The application of this statute to Mr. Nevares thus depends on a
single question: “would [Mr. Nevares’s conduct] constitute any
sexual offense described in Title 76, Chapter 5, Part 4”?
¶56 Turning to Title 76, Chapter 5, Part 4, I find a sexual offense
titled “unlawful sexual activity with a minor.” The statute
“describe[s]” this offense quite straightforwardly:
A person commits unlawful sexual activity with a
minor if, under circumstances not amounting to [a
more serious sexual crime], the actor:
(a) has sexual intercourse with the minor . . . .
UTAH CODE § 76-5-401(2). The statute defines “minor” as “a person
who is 14 years of age or older, but younger than 16 years of age.” Id.
§ 76-5-401(1).
23
NEVARES v. M.L.S et al.
JUSTICE DURHAM, concurring in the result
¶57 Five years ago, M.L.S. was fifteen, and Mr. Nevares had
sexual intercourse with her. Having sex with a fifteen-year-old
“constitute[s]” unlawful sexual activity with a minor. Therefore,
under section 111, Mr. Nevares’s consent is not “required in
connection with [this] adoption proceeding.” Id. § 78B-6-111.
A. Canons of Construction
¶58 The above plain-language reading of the statute is simple,
clear, faithful to the text, not absurd, and fully consistent with the
express purposes of the Utah Adoption Act. See id. § 78B-6-102. It is
simply the best reading of the statute, and I have no doubt that,
insofar as the legislature considered this issue at all, my reading is
the one it intended.
¶59 The majority disagrees. I cannot call it irrational for doing so. I
acknowledge that section 111 does not explicitly state that the
location of the father’s conduct is irrelevant. I also acknowledge that
the statute’s subjunctive phrasing—“conduct which would
constitute”—is less than perfectly clear, though I do not see any
plausible interpretation of that phrasing that supports the majority’s
conclusions.
¶60 Ultimately, the majority and I agree on the outer boundaries
of what the statute might mean. We agree that, at a minimum, a
father’s conduct must satisfy the elements a sexual offense—both
actus reus and mens rea—for section 111 to apply. On the other
extreme, we agree that a father does not need to be convicted of a
sexual offense for section 111 to apply. Our dispute concerns
whether the statute requires something more than the elements of
the offense, but less than actual prosecution and conviction. The
majority insists that it does, and it defends this position with a whole
battery of canons: expressio unius, the canon against extraterritorial
effect, and the constitutional avoidance canon. I find none of them
persuasive.
¶61 I find the expressio unius argument unpersuasive simply
because expressio unius is an unpersuasive canon. 1 In fact, it is a
1 “Far from being a rule, [expressio unius] is not even
lexicographically accurate, because it is simply not true, generally,
that the mere express conferral of a right or privilege in one kind of
situation implies the denial of the equivalent right or privilege in
other kinds. Sometimes it does and sometimes it does not, and
whether it does or does not depends on the particular circumstances
of context.” BLACK’S LAW DICTIONARY 661–62 (9th ed. 2009) (quoting
(Continued)
24
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JUSTICE DURHAM, concurring in the result
formal propositional fallacy, 2 and its forensic weakness is on full
display here. In the majority’s hands, expressio unius turns a clause
saying “prosecution and conviction are not required” into a clause
saying “everything short of prosecution and conviction is required.”
See supra ¶¶ 30–34. These two clauses are neither logically nor legally
equivalent, and there is no reason to presume that a legislature that
enacted the one also intended to enact the other.
¶62 The presumption against extraterritorial effect is a stronger
argument, as applying section 111 would indisputably attach legal
consequences to Mr. Nevares’s conduct outside Utah. And if this
were the first time the effect of the Utah Adoption Act on out-of-state
fathers had come into question, I would seriously consider the
notion that the Act should be read in light of the background
principle of law expressed by this canon.
¶63 That said, however, this canon is not constitutionally required
but merely a guide to the legislature’s intent, and I see no reason to
imagine that the legislature intended us to apply a clear statement
rule to determine the Adoption Act’s extraterritorial application.
Why should it have? We have never applied a “clear statement of
extraterritoriality” requirement to its statutes before, and we have
certainly never done so in an adoption case. To do so now, after the
Adoption Act’s substantial history of interpretation and amendment,
would be like a child deciding in the middle of his chores that if his
mother had really wanted him to take out the trash, she would have
said, “Simon says.”
¶64 Reading the Utah Adoption Act as a whole, I find it clear that
(1) the legislature understands the Act to apply to out-of-state fathers
whose children are adopted in Utah, (2) that it is aware that the Act’s
application to such fathers gives rise to due process problems, and
(3) that in order to avoid these due process problems, while still
pursuing its goal of speed and finality in adoptions, it has exempted
some out-of-state fathers (not all) from some of the Adoption Act’s
provisions (but not all). These exemptions do not include an
exemption from section 111, and to create one would violate one of
REED DICKERSON, THE INTERPRETATION AND APPLICATION OF STATUTES
234–35 (1975)).
2 Under expressio unius, “if A, then B” implies “if not A then not B.”
Logicians refer to this fallacy as “denying the antecedent.” To be
sure, outside the realm of formal logic, there are contexts in which “if
A then B” is strong evidence for “if not A then not B,” but I see no
reason to believe this is one of those contexts.
25
NEVARES v. M.L.S et al.
JUSTICE DURHAM, concurring in the result
the majority’s own canons: the canon against reading limitations into
a statute that are not apparent on the statute’s face. We should not
upset the compromises the legislature has reached on this issue
unless they are actually unconstitutional.
¶65 Thus, leaving constitutional issues aside for a moment, section
111 has a single best reading: its application does not require
anything more than that a father’s conduct satisfies the elements of a
sexual offense under Utah’s substantive criminal law. It does not
incorporate any of the procedural law that would apply if Utah
attempted to prosecute Mr. Nevares, and the procedural law that it
does not incorporate includes the law governing Utah’s criminal
jurisdiction. 3 The text of Utah’s jurisdictional statute further supports
this conclusion: it does not purport to establish jurisdiction as an
element of every offense or to limit, in some abstract way, the
applicability of Utah law to conduct in other states. Rather, it merely
defines the class of persons who are “subject to prosecution” in Utah.
UTAH CODE § 76-1-201(1).
B. Constitutional Avoidance
¶66 I am persuaded that the real reason for the majority’s decision
is the constitutional avoidance canon. And again, I cannot call the
majority’s decision irrational. The procedural due process issue that
concerns the majority was raised only in the last pages of Mr.
Nevares’s reply brief, and the respondents have had no opportunity
to refute it in writing. Even if I shared the majority’s constitutional
concerns about section 111, I would certainly hesitate to invalidate it
on the basis of such minimal argument.
¶67 Nevertheless, I think the majority’s constitutional concerns are
misplaced. That is not to say that section 111 can constitutionally
apply to Mr. Nevares—it cannot, see infra Part II—but that the
3 The majority claims that, in the relevant sense, “jurisdiction is
substantive, not procedural” because it must be proven by the
prosecution in order for the prosecution to obtain a conviction. Supra
¶ 32 n.4. If the majority means that the prosecution must always
present evidence of jurisdiction to the jury in order to obtain a
conviction, it is incorrect: the Utah Code establishes that “[i]f no
jurisdictional issue is raised, the pleadings are sufficient to establish
jurisdiction.” See UTAH CODE § 76-1-201(5)(a). Jurisdiction is clearly a
matter of procedure—no part of a substantive criminal offense could
be presumed satisfied based merely on the pleadings.
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JUSTICE DURHAM, concurring in the result
majority is wrong about the reasons for its unconstitutionality in this
case and about the scope of the constitutional problem.
¶68 By my reading, the majority’s constitutional analysis is based
less on any relevant precedent than on two broad principles of due
process law: that Utah may not punish Mr. Nevares for conduct
lacking “a significant nexus” with our state, and that section 111
should not apply to Mr. Nevares because he had no notice of it when
he had sex with M.L.S. Neither of these principles is groundless, but
I believe the majority misapplies them. If it did not, I would not
believe they were relevant to this case.
¶69 As to the majority’s “significant nexus” principle, I agree that
Utah “[must] demonstrate that there exists a sufficient nexus
between the conduct condemned and [the state of Utah] such that
the application of the statute would not be arbitrary or
fundamentally unfair to the defendant.” Supra ¶ 40 (first alteration in
original) (quoting United States v. Medjuck, 156 F.3d 916, 918 (9th Cir.
1998)). But this is not a criminal case, and Mr. Nevares is not a
“defendant.” Rather, because Utah has jurisdiction over the child to
be adopted, its law governs the adoption, regardless of whether the
parties with interests at stake have ever heard of Utah. See
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 289 (1971) (“A court
applies its own local law in determining whether to grant an
adoption.”).
¶70 As to the majority’s “notice” principle, I agree that a person
cannot be held criminally liable for conduct unless she has notice
that the conduct is criminal, and this is among the reasons why
section 111 cannot constitutionally apply to Mr. Nevares. See infra
Part II. But a different father, whose sexual conduct was criminal
where it occurred, would not be able to avoid section 111 by
showing he lacked notice of it. Notice of the conduct’s criminality
would be necessary, but perfect notice of the conduct’s consequences
would not.
¶71 If this were not the case, then (for example) a statute
establishing a sex offender registry could not apply to someone who
committed his sexual offense before it was enacted, or to someone
who committed his offense in a jurisdiction without such a law. The
same would be true of laws prohibiting felons from carrying
weapons or from voting. In each of these cases, the law attaches
consequences to people’s actions even though they had no notice of
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JUSTICE DURHAM, concurring in the result
the law when they acted. And yet, in each of these cases, due process
allows courts to enforce the consequences. 4
¶72 Ultimately, my disagreement with the majority on these
points boils down to a difference of opinion over the purpose and
effect of section 111. The majority sees section 111 as a “law
regulating sexual activity” that “impos[es] a substantial penalty
aimed at disincentivizing such activity.” Supra ¶ 45. It is no such
thing. The legislature has made the purposes of the Utah Adoption
Act quite clear, see UTAH CODE § 78B-6-102, and those purposes do
not include regulating, penalizing, or disincentivizing sexual
conduct. Rather, they have primarily to do with the best interests of
the child, with the finality of adoptions, and with balancing “the
rights and interests of all parties affected by an adoption
proceeding.” Id. § 78B-6-102(3).
¶73 Read in this light, section 111 is not a penal statute at all.
Rather, it is a statutory enactment of the constitutional principle the
Seventh Circuit applied in Peña v. Mattox: that criminal conduct does
not give rise to legal rights, and that a man who becomes the
biological father of a child through criminal conduct does not
thereby gain a right to a relationship with the child. 84 F.3d 894, 900
(7th Cir. 1996). Section 111 does not purport to deprive Mr. Nevares
of rights he already possesses, the way a penal statute might deprive
him of liberty or property. Rather, section 111 denies that
Mr. Nevares has any rights at all in this context, the way our
property law might deny that he owns a particular house. And had
Mr. Nevares actually committed a crime by conceiving a child with
M.L.S., this denial would be perfectly constitutional.
II. SECTION 111 IS UNCONSTITUTIONAL AS
APPLIED TO MR. NEVARES
¶74 Ultimately, the reason section 111 cannot constitutionally be
applied to Mr. Nevares is much simpler than the very abstract
principles the majority appeals to. In a sentence: substantive due
process gives Mr. Nevares a constitutionally protected right to
4 I do not mean here to endorse a general principle that legislatures
may attach whatever consequences they wish to criminal conduct,
without notice, so long as there is notice that the conduct is criminal.
But the opposite general principle—that legislatures may never
attach civil consequences to criminal conduct without giving
advance notice of those specific consequences—is clearly false, and it
is this general principle on which the majority’s reasoning depends.
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JUSTICE DURHAM, concurring in the result
participate in his child’s upbringing, and Utah may only extinguish
that right if Mr. Nevares fails to assert it, or if he is unable or unfit to
exercise it.
¶75 Although the precise boundaries of unmarried fathers’ due
process rights are much disputed, those boundaries do not concern
us here. Section 111, correctly interpreted, would allow Mr. Nevares
no rights whatsoever with respect to the adoption of his child. If Mr.
Nevares had actually committed a crime by having sexual relations
with M.L.S., rather than merely engaging in “conduct which would
constitute” a sexual offense in Utah, Utah Code § 78B-6-111, then this
denial of rights would be perfectly constitutional. “[N]o court has
gone so far as to hold that the mere fact of fatherhood, consequent
upon a criminal act . . . [and] not cemented . . . by association with
the child, creates an interest that the Constitution protects in the
name of liberty.” Peña v. Mattox, 84 F.3d 894, 900 (7th Cir. 1996); see
also In re J.M.S., 2015 UT ___, ¶¶ 32–38, ___ P.3d ___ (Durham, J.,
dissenting).
¶76 But Mr. Nevares’s conduct cannot be considered a crime
because, though prohibited by Utah, it was legal where it occurred.
The present case is therefore governed by a doctrine the U.S.
Supreme Court applied in Quilloin v. Walcott: the state may not
terminate an unwed father’s rights in his child “without some
showing of unfitness,” 434 U.S. 246, 255 (1978), unless the father has
had an opportunity to assert those rights and has failed to do so, see
id. at 255–56. Mr. Nevares has not slept on his rights, and he has not
been determined unfit. He must therefore be allowed to contest the
adoption.
III. UTAH LAW SHOULD APPLY
¶77 The majority seeks to soften the effect of its decision by
allowing the victims of sexual abuse to contest their abusers’
paternal rights using the laws of the states where they were abused.
Supra ¶¶ 48–49. It also points out that such an abuser’s paternal
rights could potentially be terminated upon a showing that he was
unfit for parenthood. Supra ¶ 50.
¶78 This is better than nothing, I suppose, even if the basis for
applying Colorado law is weak. But it is ultimately inadequate
protection for Utah citizens who have been impregnated by sexual
abuse in other states.
¶79 To begin with, it is inadequate because not all states have laws
like Colorado’s. Nineteen states and the District of Columbia have
no statutes restricting the paternal rights of fathers who conceive
children through rape. Moriah Silver, The Second Rape: Legal Options
for Rape Survivors to Terminate Parental Rights, 48 FAM. L.Q. 515, 526–
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JUSTICE DURHAM, concurring in the result
27 (2014). Of the thirty-one states that do, many provide less
protection for rape survivors than is needed—in particular, many
states (like Colorado) require the father to be convicted of sexual
assault before a court may cut off his paternal rights. Id. at 529–31. In
such states, the ability of a rape victim to protect her child from her
rapist depends on the willingness and ability of police and
prosecutors to secure a conviction. If police mistakes lead to the
exclusion of vital evidence, or an understaffed prosecutor’s office
offers a lenient plea bargain, she is left defenseless.
¶80 To deal with situations where laws protecting victims are
inadequate or absent, the majority points to a failsafe: a court’s
ability to terminate a father’s rights upon a showing of unfitness for
parenthood. Supra ¶ 47. Beyond its optimistic assumption that rapist
fathers will easily be found unfit, this failsafe is inadequate because
it underestimates the harm done when a sexual abuser is permitted
even to intervene in adoption proceedings. The ability to hold up the
adoption, with the threat that he might block it entirely, gives the
abuser powerful leverage to extract concessions from his victim. At
the least, it allows him to force his victim into repeated contact with
him so long as litigation continues.
¶81 The legislature, perceiving these problems, drew a bright line:
no father who has conceived a child through sexual assault may
contest that child’s adoption, regardless of whether he is fit for
parenthood, and regardless of whether his guilt can be established
under the stricter procedures and higher burden of proof of a
criminal trial. See UTAH CODE § 78B-6-111. Moreover, the legislature
has every right to draw this line, at least where the child and its
mother are citizens of Utah whom the state has a responsibility to
protect. Its ability to protect them should not depend on the laws of
other states.
IV. CONCLUSION
¶82 Because the majority has grave constitutional concerns, it
turns a statute applying to “conduct that would constitute an offense
in Utah” into a statute applying only to conduct that “could . . .
sustain[] a criminal charge” in Utah. Supra ¶ 28. In order to do so, it
turns a clause stating that section 111 does not require formal
prosecution and conviction into a clause stating that section 111
requires everything but formal prosecution and conviction. Further,
it pretends that the legislature assumed we would apply a canon that
we nearly never apply.
¶83 But for all that, I acknowledge the wisdom of the majority’s
decision to apply the constitutional avoidance canon in this case
rather than decide the constitutional issues it finds so worrying.
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JUSTICE DURHAM, concurring in the result
True, its worries are unnecessary, as a clear and straightforward
answer is available: substantive due process clearly protects Mr.
Nevares from section 111, while no constitutional doctrine at all
protects a father whose paternal rights result rest entirely from on a
sex crime. But I nevertheless applaud the majority for penciling its
concerns into a state statute, where the legislature can erase them if it
desires, instead of chiseling them in federal constitutional stone.
¶84 When this issue returns to us, as I suspect it will, I hope the
court will keep in mind Part III of my opinion above. Utah has
compelling reasons to protect its citizens who have been victims of
sexual abuse, regardless of where they were abused. An
interpretation of the Due Process Clause under which this
compelling interest must always bow to rapists’ right to “notice”—
that is, their imaginary right to know before they commit rape
whether they will be able to raise the resulting offspring—is, to put it
mildly, unlikely to be correct.
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