In re Adoption of B.B. , 2020 UT 52 ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 52
IN THE
SUPREME COURT OF THE STATE OF UTAH
In the Matter of the Adoption of B.B.,
a person under eighteen years of age
S.A.S.,
Appellant,
v.
K.H.B. and K.R.B.,
Appellees.
No. 20180239
Heard November 12, 2019
Filed July 23, 2020
On Certification from the Court of Appeals
Fourth District, Provo
The Honorable James Brady
No. 162400166
Attorneys:
Mark L. Shurtleff, Sandy, for appellant
K. Paul MacArthur, Stephanie L. O’Brien, Provo, for appellees
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and
JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 This is a biological father’s appeal from the entry of an
adoption decree. The father (S.A.S.) initially objected to the adoption
of his biological daughter (B.B.) but eventually consented and signed
a relinquishment of parental rights. He later changed his mind and
filed a motion to revoke his relinquishment, asserting that he had
signed it under duress. The district court denied the motion on the
IN RE ADOPTION OF B.B.
Opinion of the Court
ground that S.A.S. had failed to identify an evidentiary basis for his
bare allegation that his relinquishment was involuntary. It also
rejected his contentions that he had a due process right to have his
relinquishment invalidated by the adoptive parents’ failure to notify
him of his statutory right to receive counseling in connection with his
relinquishment, and that he had an equal protection right to the same
strict relinquishment requirements applicable to a birth mother.
¶2 We affirm. First, S.A.S. has identified no basis for a conclusion
that his relinquishment was involuntary. Second, any failure to notify
him of his statutory right to receive counseling did not invalidate the
relinquishment. Finally, S.A.S. lacks standing to assert an equal
protection challenge to the relinquishment requirements that apply to
biological fathers.
I
¶3 B.B. was born out of wedlock in September 2016. Shortly after
B.B.’s birth, the birth mother relinquished B.B. to K.H.B. and K.R.B.,
who filed a petition to adopt the child. S.A.S. initially objected to the
adoption and filed an action seeking to establish his paternity and
gain custody. He successfully established paternity and followed all
statutory requirements for preserving his parental rights, including
those found in Utah Code sections 78B-6-121 and 78B-6-122 (requiring
birth fathers to, among other things, file an affidavit setting forth their
commitment to provide for the child).
¶4 Later on, however, S.A.S. decided to consent to the adoption.
On June 16, 2017, he texted K.H.B. about a letter sent by S.A.S.’s lawyer
representing that he would sign a relinquishment of his parental
rights if K.H.B. and K.R.B. would pay his attorney fees. S.A.S. said that
he “regret[ted]” making that demand and told the prospective
adoptive parents “to refuse to pay any money.” He said he was sorry
it had taken him so long to come to this “most difficult” of decisions
but that he now “fe[lt] very good” about the adoption. He said he was
going with the birth mother “either tomorrow or the beginning of the
week” to “sign the papers,” and emphasized that the “decision [to
sign] was [his] and only [his].” S.A.S. explained that he had
“discovered a lot about [his] family,” including that “the condition
that [his] family [wa]s in would not be the one hundred percent best
place for [his] little girl.” He said he had “had to take a step back [to]
really find that out” but was “very glad” he had because he was “at
peace with [his] decision.”
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Opinion of the Court
¶5 The following day, S.A.S. signed his relinquishment before a
notary public. The birth mother accompanied him. She testified that
S.A.S. was “anxious” to sign and even “considered it urgent for him”
to do so. Before signing, S.A.S. “read through the Consent
thoroughly” and “knew that he was doing something special.” The
birth mother said it “was apparent to [her] that he signed it freely and
voluntarily.” The next day, S.A.S. sent another text message to K.H.B.
saying that he felt “extremely good about [his] decision” and was “at
peace with it.”
¶6 S.A.S. later had yet another change of heart. On July 28, 2017,
he filed a motion to revoke his voluntary relinquishment, asserting
that it had been signed involuntarily—under “undue inducement,
coercion, or fraud.” In support of the motion, S.A.S. asserted that he
had been influenced by K.H.B. and K.R.B.’s promise to provide him
with the same level of contact with B.B. that they had agreed to give
the birth mother. And he claimed that K.H.B. and K.R.B. had not kept
this promise after he signed the relinquishment. Citing these facts,
S.A.S. sought to have the motion to revoke his relinquishment heard
at an upcoming evidentiary hearing.
¶7 S.A.S. also sought to have his relinquishment invalidated on
due process grounds. He claimed his relinquishment should be
invalidated because he had not been notified of his statutory right to
counseling before signing it.1 Relying on the fundamental nature of
his parental rights, S.A.S. asserted that Utah Code section
78B-6-119(4)(c)’s provision of monetary damages as the sole remedy
is unconstitutional because “it denies a birth parent the right to revoke
a relinquishment or consent to adoption when the mandated due
process right of counseling is not provided.”
¶8 Finally, S.A.S. asserted that he had an equal protection right
to the same relinquishment signing requirements binding the birth
mother. Under Utah Code section 78B-6-124(4), a birth mother’s
relinquishment of parental rights may only be taken before a judge or
her designee, who must certify that the relinquishment was signed
“freely and voluntarily.” By contrast, a biological father’s
relinquishment need only be signed before a notary public, without
any certification of voluntariness by the notary public. Id.
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1 The parties dispute whether the adoptive parents in fact notified
S.A.S. of his statutory right to counseling in connection with his
relinquishment of parental rights.
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Opinion of the Court
§ 78B-6-124(3). S.A.S. claimed that there is no important governmental
interest substantially advanced by this differing treatment based on
gender, and asserted that the statute thus violates the Equal Protection
Clause of the United States Constitution.
¶9 The district court rejected each of S.A.S.’s claims. First, it
determined that an evidentiary hearing was unnecessary because
S.A.S. had failed to allege sufficient facts to support his claim or merit
a hearing. In the district court’s view, S.A.S. had only “alleged his
conclusion that his consent was not voluntarily given[] and that he was
subject to undue inducement, coercion, or fraud.” (Emphasis added.)
And his bare assertion that his decision had been influenced by the
prospective adoptive parents’ (allegedly unkept) promise to provide
him with the same level of contact that they had agreed to give the
birth mother was insufficient. In fact, the district court found that the
text messages in the record and affidavits submitted to the court
“provide[d] substantial evidence that Birth Father considered 1) his
claim to be the Birth Father, 2) the [adoptive parents’] desire to adopt
the Child, 3) his contemplation of the best interests of the Child, and
4) his reasons for deciding to sign the Relinquishment after initially
opposing it.” The court thus determined that “[f]rom the evidence
provided, the issue of Birth Father acting freely, knowingly and
voluntarily is not disputed.”
¶10 The district court then rejected S.A.S.’s argument that “the
relinquishment [was] invalid because he was not notified of his right
to paid, independent, unbiased, therapeutic counseling prior to
making a decision to relinquish his parental rights” under Utah Code
section 78B-6-119. The court concluded that any failure to give the
required statutory notice “d[id] not invalidate [S.A.S.’s]
relinquishment” or “form a basis to rescind it,” because Utah Code
section 78B-6-119(4)(c) expressly states that “[f]ailure by a person to
give . . . notice” of the right to counseling “shall not constitute grounds
for invalidating a[] relinquishment of parental rights; or consent to
adoption.”
¶11 The district court thus rejected S.A.S.’s due process claim,
characterizing it as an assertion that “[m]onetary damages for
violation of a requirement designed to protect fundamental
constitutional rights are not [a] sufficient substitute for the loss of a
child, and therefore Utah Code section 78B-6-119(4)(c) as written (and
as applied in this case) is unconstitutional in denying guaranteed
Fourteenth Amendment Due Process Rights.” The court then
determined that the question whether monetary damages is a
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Opinion of the Court
sufficient remedy for violation of a statute protecting due process
rights is “a legislative determination requiring the balancing of
competing public policies.” It pointed to the fact that “[m]oney
damages often are based on violation of fundamental due process
claims” and concluded that S.A.S. had “fail[ed] to develop an
argument why in this case, the legislature [cannot] establish monetary
damages as the remedy for violation of Birth Father’s due process
rights.”
¶12 Finally, the district court rejected S.A.S.’s equal protection
claim. The court reasoned that “the differing requirements for consent
outlined by Section 78B-6-124 are appropriate based upon the
differing circumstances which mothers and fathers face.” The court
concluded that in light of these differences, “the legislature’s
determination that [the birth mother] be afforded additional
safeguards was reasonable” and furthered the important
governmental interest of “the best interests of children.” So the court
found no equal protection violation.
¶13 After making this ruling and allowing the birth mother to
sign a new relinquishment, the district court entered the adoption
decree on March 23, 2018. S.A.S. filed this appeal in the court of
appeals, which certified the case to this court.
¶14 At oral argument in this case we raised the question of
S.A.S.’s standing to assert his equal protection claim. And we issued a
supplemental briefing order asking the parties to address various
questions related to standing.
II
¶15 Three questions are presented for our review: (A) whether
the district court erred in determining that S.A.S.’s relinquishment of
his parental rights was voluntary; (B) whether the district court erred
in concluding that the relinquishment was not invalidated by any due
process right in connection with counseling about a relinquishment or
consent to adoption; and (C) whether the district court erred in ruling
that Utah Code section 78B-6-124’s gender-based requirements do not
run afoul of the Equal Protection Clause. We affirm the district court
on the first two points and decline to reach the third question because
we conclude S.A.S. lacks standing to assert an equal protection claim.
A
¶16 S.A.S. challenges the district court’s determination that he
voluntarily relinquished his parental rights under two sets of legal
authorities: (1) a body of court of appeals cases establishing a right to
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Opinion of the Court
challenge the enforceability of a consent and relinquishment on the
ground that it is involuntary;2 and (2) statutory provisions identifying
the important public policy of protecting the fundamental rights of
biological parents 3 and requiring a determination that the
relinquishment of parental rights and consent to adoption was
“voluntary.”4 We accept the premises of S.A.S.’s arguments but find
them insufficient to rebut the basis of the district court’s holding.
¶17 The cited court of appeals cases are of course not binding on
us. But we hereby endorse the proposition for which they stand. These
cases explain that although the statute says that a consent and
relinquishment is effective when signed and may not be revoked,
there is nonetheless a right to show that the consent “was not entered
into voluntarily but was induced through duress, undue influence, or
under some misrepresentation or deception, or other grounds which
would justify release from the obligations of any contract.” In re
Adoption of Infant Anonymous, 760 P.2d 916, 919 (Utah Ct. App. 1988).
¶18 We agree that this is a background principle of contract law
against which the Utah Adoption Act5 should be interpreted. In other
words, we take no issue with the idea that a party could seek to undo
the enforceability of a consent and relinquishment on grounds that
would allow the party to avoid the enforceability of a contract.6 But
neither did the district court. S.A.S. asserts on appeal that he was
deprived of an opportunity to prove that his relinquishment was
involuntary. But he wasn’t. The district court simply concluded that
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2 See, e.g., In re Adoption of G.A.O., 2005 UT App 140; In re Adoption
of Infant Anonymous, 760 P.2d 916 (Utah Ct. App. 1988).
3 UTAH CODE §§ 78A-6-503, 78B-6-102 (highlighting the
“fundamental right of a parent to rear the parent’s child,” the “public
policy of this state that a parent retain the fundamental right and duty
to exercise primary control over . . . the parent’s child,” and the fact
that “compliance with the [relevant statutory] provisions” provides
“absolute protection of an unmarried biological father’s rights,” etc.).
4 Id. § 78B-6-112(5)(a).
5 UTAH CODE § 78B-6-101 et seq.
6 Presumably there would be a time limit for such a showing—
perhaps it would need to take place before the entry of the adoption
decree. But we do not pass on this question since it is not presented
and its answer is unnecessary to the resolution of this case.
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Opinion of the Court
S.A.S. failed to allege any facts sufficient to sustain the vague assertion
that his relinquishment was involuntary. And S.A.S. hasn’t challenged
that decision on appeal. In fact, the briefs don’t speak to the district
court’s reason for rejecting S.A.S.’s voluntariness argument. This is
fatal to S.A.S.’s appeal.7 We thus see no basis for overruling the district
court’s conclusion that S.A.S.’s relinquishment of parental rights was
in fact voluntary.
¶19 S.A.S.’s statutory authorities are similarly unavailing. Under
Utah Code sections 78A-6-503 and 78B-6-102, it was admittedly
incumbent on the district court to “consider, acknowledge, and
dutifully protect” S.A.S.’s fundamental rights. But the Adoption Act
also provides that a biological father’s consent and relinquishment “is
effective when it is signed and may not be revoked.” UTAH CODE
§ 78B-6-126. Clearly the code contemplates that S.A.S.’s parental
rights—fundamental and worthy of protection—may be waived. And
the specific provision establishing the irrevocability of the waiver
upon its execution controls over general provisions acknowledging
the fundamental nature of the father’s parental rights.8
¶20 As S.A.S. notes, Utah Code section 78B-6-112(5)(a) requires a
showing that a relinquishment and consent was “truly ‘voluntary.’”
But this provision simply authorizes a court to terminate parental
rights if a parent “executes a voluntary consent” or relinquishment “in
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7 See ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 2013 UT 24, ¶ 27,
309 P.3d 201 (declining to disturb a district court’s evidentiary rulings
because the appellant had “not explained why the district court
excluded or admitted the evidence or why the[] rulings were in error”
and had thus inadequately briefed the argument for reversing the
rulings); Utah Physicians for a Healthy Env’t v. Exec. Dir. of the Utah Dep’t
of Envtl. Quality, 2016 UT 49, ¶ 3, 391 P.3d 148 (dismissing an appeal
of an agency director’s decision because the appellant’s “failure to
address the Executive Director’s decision constitute[d] inadequate
briefing”); see also Johnson v. Johnson, 2014 UT 21, ¶ 20, 330 P.3d 704
(explaining that this court “ha[s] repeatedly warned that [appellate
courts] will not address arguments that are not adequately
briefed”(second alteration in original) (citation omitted)).
8See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 183 (2012) (“If there is a conflict
between a general provision and a specific provision, the specific
provision prevails.”).
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Opinion of the Court
accordance with . . . the requirements of this chapter.” Id. The statute
nowhere requires a separate hearing or proceeding on whether the
consent was “truly voluntary.” And in any event, the district court
correctly found that S.A.S. had failed to make a credible factual
allegation sufficient to necessitate an evidentiary hearing—it held that
“the facts alleged by Birth Father [were] insufficient to constitute
duress, undue influence or misrepresentation.” So S.A.S. wasn’t
denied an opportunity to prove involuntariness. He just failed to do
so.
B
¶21 S.A.S. next contends that the district court erred in
determining that any failure to notify him of his statutory right to
receive counseling did not invalidate his relinquishment of parental
rights on due process grounds. He asks that we “rule that Utah Code
78B-6-119(4)(c) is unconstitutional” because “it denies a birth parent
the right to revoke a relinquishment or consent to adoption when the
mandated due process right of counseling is not provided.”9
¶22 In support of this view, S.A.S. cites a dissenting opinion in In
re Adoption of J.S. for the proposition that “a natural parent’s desire for
and right to the companionship, care, custody, and management of
his or her children is an interest far more precious than any property
right.” 2014 UT 51, ¶ 122, 358 P.3d 1009 (Nehring, A.C.J., dissenting)
(citation omitted). And he cites various cases that establish the
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9 In his briefing, S.A.S. asserts that “Utah Code 78B-6-119 violates
Birth Father’s Procedural/Substantive Due Process Facially and as
Applied.” In so doing, he effectively alludes to four distinct due
process arguments. But his briefing ignores our established due
process frameworks for each of these types of arguments and instead
presents a single due process claim. So we can and do address only
the argument that S.A.S. made. Any other arguments referred to, but
not actually made, are rejected as inadequately briefed. See UTAH R.
APP. P. 24(a)(8) (requiring a party to “explain, with reasoned analysis
supported by citations to legal authority and the record, why the party
should prevail on appeal”); see also Utah Physicians for a Healthy Env’t
v. Exec. Dir. of the Utah Dep’t of Envtl. Quality, 2016 UT 49, ¶ 27, 391
P.3d 148 (explaining that if this court were to “supplement the
[party’s] inadequate brief with our own research and arguments, we
would be abandoning our proper judicial function”).
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Opinion of the Court
fundamental nature of parental rights.10 Finally, he cites Utah Code
section 78B-6-119, which grants parents the right to be “informed” of
a “right to participate in” paid, independent counseling to assist in the
difficult decision of whether to waive parental rights. “To be truly
voluntary,” S.A.S. contends, “a decision must be well informed.”
S.A.S. acknowledges that the same section of the code states that the
“[f]ailure by a person to give [such] notice” “shall not constitute
grounds for invalidating a relinquishment of parental rights or
consent to adoption,” but instead provides only a cause of action for
damages. See UTAH CODE § 78B-6-119(4)(c). But he “asks this Court to
rule in the spirit of Justice Nehring’s dissent in In re Adoption of J.S.”
and hold that “Utah Code 78B-6-119(4)(c) as written (and as applied
in this case) is unconstitutional” because “damages for violation of a
requirement designed to protect fundamental constitutional rights are
not [a] sufficient substitute for the loss of a child.”
¶23 In support of that view, S.A.S. essentially advances a policy
argument. Because it “is in the public’s interest to provide
independent, unbiased, professional counseling to help . . . parent[s]
make one of the most difficult, and life-altering decisions they will
ever make,” and because his parental rights are fundamental, S.A.S.
asserts there must be a constitutional right to the remedy he seeks.11
In his view there is “no reasonable or rational state public policy
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10 See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982); Lassiter v.
Dep’t of Soc. Servs., 452 U.S. 18, 24 (1981); and In re J.P., 648 P.2d 1364,
1376–77 (Utah 1982).
11 In support of this view, S.A.S. also points to cases holding that
an unwed father who “demonstrates a full commitment to the
responsibilities of parenthood by com[ing] forward to participate in
the rearing of his child . . . acquires substantial protection under the
due process clause,” Lehr v. Robertson, 463 U.S. 248, 261 (1983) (first
alteration in original) (citation and internal quotation marks omitted),
and holding that “decrees forever terminating parental rights” fall
within the “category of cases in which” substantive and procedural
due process issues arise. M.L.B. v. S.L.J., 519 U.S. 102, 124 (1996).
This is insufficient. S.A.S. merely asserts that he is in a position that
could implicate due process—both by virtue of his status as an unwed
father who has demonstrated commitment to parenthood and by
being subject to a decree “forever terminating parental rights.” And
that does not tell us anything about why S.A.S.’s position does in fact
implicate due process in the way that he imagines.
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Opinion of the Court
interest in refusing the right to revoke that decision if the birth parent
is denied” the right to counseling. S.A.S. sees the right to sue the
adoptive parents for money as a mere “booby prize.” And he asks us
to declare Utah Code section 78B-6-119(4)(c) unconstitutional on that
basis.
¶24 This falls far short. Parental rights are admittedly “more
precious than any property right” in many respects. In re Adoption of
J.S., 2014 UT 51, ¶ 122 (Nehring, A.C.J., dissenting) (citation omitted).
They are also indisputably fundamental. See supra ¶ 16 n.3. But that
doesn’t tell us that the Due Process Clause guarantees the remedy that
S.A.S. prefers—or that we might endorse if we were exercising our
common-law power. The constitution is “not a license for
common-law policymaking.” State v. Lujan, 2020 UT 5, ¶ 5, 459 P.3d
992. It is a written document that enshrines only the rights and
protections established by the people who ratified it—interpreted “in
accordance with the public understanding” of the written text when
it was voted on. Id.
¶25 It is thus not enough for S.A.S. to assert that parental rights
are fundamental, or that their importance is not outweighed by
sufficient policy interests on the other side of the scale. This is not our
mode of constitutional interpretation. Under our case law, S.A.S. bears
the burden of showing that the specific right and remedy he asserts is
guaranteed by the original public meaning of the Due Process Clause.
“[T]he Due Process Clause is not a free-wheeling constitutional
license” for this court to “assure fairness on a case-by-case basis.” In re
Steffensen, 2016 UT 18, ¶ 7, 373 P.3d 186. It is a guarantee of rights
“measured by reference to traditional notions of fair play and
substantial justice.” Lujan, 2020 UT 5, ¶ 26 (citation omitted).
¶26 S.A.S. has ignored this settled mode of constitutional
interpretation. He has made no attempt to establish an originalist
basis for his proposed due process right and remedy. And his appeal
fails on that basis.
C
¶27 S.A.S.’s final contention on appeal is his challenge to the
dismissal of his equal protection claim. This claim is aimed at the
Adoption Act’s differential treatment of fathers and mothers in the
procedure for execution of a relinquishment and consent to adoption.
Under Utah Code section 78B-6-124(4), a birth mother’s
relinquishment must be signed in front of a judge or court-appointed
representative who must certify in writing that the birth mother “read
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and understands” the relinquishment and “signed it freely and
voluntarily.” Yet a biological father is not subject to this requirement.
A biological father’s relinquishment need only be signed in front of a
notary—without any written, third-party certification of
voluntariness. See id. § 78B-6-124(3).
¶28 S.A.S. challenges these provisions on equal protection
grounds. He asserts that the statutory framework effects differential
treatment on the basis of sex, triggering intermediate scrutiny. And he
asks us to strike down such treatment—to impose on biological
fathers the same standards imposed on birth mothers—on the ground
that there is no important governmental interest that is substantially
advanced by these provisions.12
¶29 We decline to reach the merits of this claim because we
conclude that S.A.S. lacks standing to assert it. Our law of standing in
Utah is an outgrowth of the doctrine of “separation of powers.” Alpine
Homes, Inc. v. City of West Jordan, 2017 UT 45, ¶ 30, 424 P.3d 95. The
requirement of standing is jurisdictional in the sense that it defines the
limits of the judicial power in our “tripartite” system of government.
Id. (quoting Jenkins v. Swan, 675 P.2d 1145, 1149 (Utah 1983)). It should
thus be “raised sua sponte by the court” in the face of any doubt on the
matter. Id. ¶ 2. We explored some doubts about S.A.S.’s standing at
oral argument and subsequently asked the parties to submit
supplemental briefing addressing this issue.
¶30 The traditional test for standing requires proof that (1) the
claimant has suffered a “distinct and palpable injury” that is
(2) causally connected to the challenged actions and is
(3) “substantially likely” to be redressed by the requested judgment.
Id. ¶ 34 (citation omitted). Our supplemental briefing order asked the
parties to address these elements as applied to this case. We asked the
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12 S.A.S. also seeks to advance a second equal protection claim on
this appeal—a challenge to the district court’s decision to afford the
birth mother a second opportunity to attest to the voluntariness of her
consent. See supra ¶ 13. S.A.S. notes that the district court finalized the
adoption decree only after “appointing an official to again query (and
certify) Birth Mother’s knowledge, understanding and voluntariness”
of her relinquishment. And he asserts that he should have been
afforded the same opportunity as a matter of equal protection. But this
claim was not preserved in the district court. We decline to reach it on
that basis.
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parties to evaluate whether S.A.S.’s standing to assert an equal
protection claim depends on a showing of a “causal connection
between the differential treatment in Utah Code section 78B-6-124 and
the forfeiture of parental rights”—proof that he would not have
relinquished his parental rights if he had been subject to the same
statutory requirements imposed on mothers—or whether it would be
enough for him to show that he “was subjected to differential
treatment.” In addition, we asked the parties to indicate whether
S.A.S. could show a causal connection between the differential
treatment and his relinquishment of parental rights on the current
record, or whether further factual development was necessary.
¶31 S.A.S.’s supplemental brief asserts that he has standing based
on the mere fact of differential treatment—that no causal connection
to the forfeiture of his parental rights is required. Alternatively, if
proof of a causal connection between his differential treatment under
the Adoption Act and his loss of parental rights is necessary, S.A.S.
contends that he has established it through the affidavit he submitted
in the district court. That affidavit, in his view, is enough “to raise the
causal connection . . . and [the] probability that he would not have
executed a consent or relinquishment if he had been subject to the
statutory requirements imposed on birth mothers.” It does so, S.A.S.
contends, by showing that he relinquished his parental rights “under
extreme duress and undue influence, as well as fraud,
misrepresentation and deceit.” S.A.S. stands on this factual record. He
makes no request for further factual development.
¶32 These arguments fall short. S.A.S. has alleged a cognizable
injury in the loss of his parental rights. But he has not established a
causal connection to the challenged action—the differential treatment
of biological fathers and mothers under the Adoption Act—or shown
that the judgment he seeks would redress his injury. And that is fatal
to his standing.
¶33 The elements of standing in our courts are a matter of state
law. But S.A.S.’s underlying claim is federal, so federal law informs
the question whether S.A.S. has identified a cognizable injury that is
causally connected to the action challenged under the Equal
Protection Clause and redressable by a judgment in his favor. Two
United States Supreme Court cases are controlling: Northeastern
Florida Chapter of Associated General Contractors of America v. City of
Jacksonville, 508 U.S. 656 (1993), and Texas v. Lesage, 528 U.S. 18 (1999).
¶34 These cases set forth the basis for a plaintiff to establish a
cognizable injury that is causally connected to a discriminatory
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governmental program under the Equal Protection Clause. They hold
that the existence of a cognizable injury with a causal connection to a
challenged program depends on the nature of the alleged
discrimination and the form of relief sought by the plaintiff. Under
General Contractors, a plaintiff who seeks forward-looking relief by
challenging a governmental barrier that makes it “more difficult for
members of one group to obtain a benefit” than for another can
establish a cognizable injury by showing that the plaintiff is “able and
ready” to seek the relevant benefit but that “a discriminatory policy
prevents it from doing so on an equal basis.” 508 U.S. at 666. In other
words, such a plaintiff need not show that he “would have obtained”
the benefit he was seeking in the absence of the discriminatory
policy—the ongoing interference with the right to seek the benefit on
an equal basis itself constitutes a cognizable injury causally connected
to the policy. Id. The plaintiffs in General Contractors were contractors
looking to submit bids under an allegedly discriminatory
governmental program. Id. at 659. They had standing because their
injury (inability to bid on equal footing with others) was caused by the
ongoing existence of the allegedly discriminatory program and could
be redressed by the judgment they were seeking—a decision to strike
down the discriminatory elements of the program going forward. See
id.
¶35 Under Lesage, a plaintiff who seeks only backward-looking
relief under a challenge to a “discrete governmental decision” must
show that the government would not “have made the same decision
regardless” of the discriminatory action. 528 U.S. at 21. In other words,
such a plaintiff must show that he would have obtained the benefit he
sought in the absence of the discriminatory action. The plaintiff in
Lesage was an applicant seeking admission to a state university with a
race-conscious admissions program. Id. at 19. He was in a different
position from the contractor-plaintiffs in General Contractors who
sought only forward-looking relief in a judgment striking down a
program that they were “able and ready” to participate in. The Lesage
plaintiff primarily sought backward-looking relief for an alleged
injury he suffered as a result of the application of discriminatory
admissions criteria to his past application.13 Id. The court held that for
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13 The plaintiff in Lesage also asserted a claim for injunctive relief
in the district court, alleging that the state university continued to
maintain a discriminatory admissions program. Texas v. Lesage, 528
(continued . . .)
13
IN RE ADOPTION OF B.B.
Opinion of the Court
this retrospective claim, he could not establish a “cognizable injury”
where the defendant established that the plaintiff would not have
been admitted even under race-neutral criteria. Id.
¶36 S.A.S. lacks standing under these cases. He is not seeking
forward-looking relief under an ongoing discriminatory program.
Unlike the bidding contractors in General Contractors, S.A.S. is not
“able and ready” to participate in the ongoing operation of a program
but inhibited in so doing by a discriminatory practice. Conceivably, if
S.A.S. had other children in whom he was “able and ready” to
relinquish his parental rights, he could seek “forward-looking” relief
and challenge his “ongoing” differential treatment under General
Contractors. But that is not this case.
¶37 S.A.S. is like the plaintiff in Lesage. He is challenging a
“discrete governmental decision”—the acceptance of the
relinquishment of his parental rights—“as having been based on an
impermissible criterion.” Id. at 21. In other words, his challenge
concerns the effect of differential treatment on a single, retrospective
event—with no threat of a continuing or imminent constitutional
violation. S.A.S. thus has no stake going forward in the terms and
conditions of the statutes concerning relinquishment. For this reason,
S.A.S. must show that absent section 78B-6-124’s differential
treatment, he would not have relinquished his parental rights.
¶38 S.A.S. has failed to make that showing. He asserts that his
affidavit establishes the requisite “causal connection” by showing that
he relinquished his parental rights under duress and undue influence.
That assertion fails for reasons explained above. Supra ¶ 18. But it is
also nonresponsive to the standing questions raised in our
supplemental briefing order. S.A.S. nowhere explains how a showing
of involuntariness could establish that the loss of his parental rights
was caused by the alleged equal protection violation rather than by
the alleged duress, or how his loss is redressable by the judgment he
requests.
¶39 Nor does S.A.S. indicate a need for further factual
development to make those connections. We opened the door to that
possibility in our supplemental briefing order. But S.A.S. chose to rest
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U.S. 18, 21 (1999). But it was unclear whether that claim was preserved
on appeal, and the Supreme Court did not address it.
14
Cite as: 2020 UT 52
Opinion of the Court
on the facts in the record—asserting vaguely that his “[a]ffidavit is
enough to raise the causal connection.”
¶40 We disagree. The affidavit comes nowhere close to
establishing that the differential treatment of fathers and mothers
caused his injury (that he would not have relinquished his parental
rights if he had been subjected to the requirements imposed on birth
mothers) or that a judgment in his favor would redress his injury (that
a decision to strike down the statute by imposing the same
requirements on mothers and fathers would be a remedy for his lost
rights). We dismiss the equal protection claim for lack of standing on
this basis.
III
¶41 The district court correctly concluded that S.A.S’s
relinquishment of parental rights was voluntary. And the Due Process
Clause does not invalidate a relinquishment that a biological parent
signs without being notified of his statutory right to counseling in
connection with the decision. We do not address the merits of S.A.S.’s
equal protection claim. Instead, we dismiss it for lack of standing.
15