In re J.E. , 2023 UT App 3 ( 2023 )

2023 UT App 3THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF J.E.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
D.E.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20210921-CA
Filed January 20, 2023
Third District Juvenile Court, Salt Lake Department
The Honorable Annette Jan
No. 1198329
D.E., Appellant Pro Se
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Julie J. Nelson, Debra M. Nelson, Alexandra
Mareschal, and Kirstin Norman, Attorneys for
Amicus Curiae Utah Indigent Appellate
Defense Division
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER
concurred.
HARRIS, Judge:
¶1 D.E. (Father) obtained—at least for a while—parental
rights regarding J.E. (Child) when he and Child’s mother (Mother)
duly signed and filed a voluntary declaration of paternity (the
In re J.E.
VDP). Later, however, genetic testing revealed that Father is not
Child’s biological father. Based on those test results, the guardian
ad litem (the GAL) appointed to represent Child raised a
challenge to the VDP, which the juvenile court sustained, later
issuing an order invalidating the VDP and declaring it “void.”
¶2 Father now challenges that order, asserting that the GAL
(on behalf of Child) had no right under applicable law to
challenge the VDP. We first determine that we have jurisdiction
to consider Father’s appeal. And on the merits, we conclude that
the juvenile court correctly determined that, under the
circumstances presented here, Child has statutory standing to
challenge the VDP. On that basis, we affirm the court’s decision
to reach the merits of Child’s challenge and to sustain that
challenge. But the court should not have declared the VDP “void,”
and we remand for correction of the language used in the court’s
order and for such other proceedings as might be appropriate.
BACKGROUND 1
¶3 In 2021, Father and Mother were residing together—but
not married—with three children: then-one-year-old Child and
his two older siblings. All three children are Mother’s biological
children, and Father’s paternity had been established as to the
older two children. At the time, both Mother and Father were
uncertain whether Father was the biological father of Child,
because they were both aware that Mother had engaged in sexual
activity with both Father and another man in 2019, around the
time Child had been conceived. But neither Father nor any other
man had established paternity with regard to Child.
1. “We recite the facts in a light most favorable to the juvenile
court findings.” In re K.J., 2013 UT App 237, ¶ 2 n.2, 327 P.3d 1203(quotation simplified).
20210921-CA 2 2023 UT App 3In re J.E.
¶4 In early 2021, Father was arrested and charged with
aggravated assault involving domestic violence, as well as
commission of domestic violence in front of a child, related to an
incident in which Mother accused him of attempting to smother
her with a pillow in front of the children. The charging document
labeled Father a “habitual violent offender,” explaining that he
had previously been convicted of domestic violence against
Mother in connection with a 2019 incident. Father remained
incarcerated on these new charges for several weeks. Mother also
obtained a civil protective order against Father, which remained
in effect for several months, until she asked for it to be dismissed.
¶5 A few weeks after Father’s arrest, Mother was arrested and
incarcerated on charges of drug possession. Mother later admitted
that she had been using methamphetamine. At that point, the
Department of Child and Family Services (DCFS) filed a petition
seeking custody of the children, and the court granted that request
at a subsequent shelter hearing.
¶6 A month later, in May 2021, Mother remained
incarcerated—she was eventually released in August—but Father
had been released from jail after the criminal charges against him
were dismissed. The record before us does not disclose the
reasons for the dismissal of the criminal case, but the dismissal
occurred on the date set for preliminary hearing, and it was
entered without prejudice. Neither the State nor the juvenile court
viewed the dismissal of the criminal charges as an exoneration of
Father; indeed, the court eventually scheduled an evidentiary
hearing to consider whether Father had committed domestic
violence against Mother and, at the conclusion of that hearing,
found that all three children were “neglected by” Father.
¶7 After his release from jail, Father requested that the
children be returned to his custody. The court denied that request,
but did order that Father be allowed supervised visitation with at
least some of the children.
20210921-CA 3 2023 UT App 3In re J.E.
¶8 At another hearing a couple of weeks later, the GAL first
raised the issue of Child’s paternity, and asked that the court
order genetic testing to determine whether Father was indeed
Child’s biological father. Neither Father nor Mother opposed this
request, and the court therefore ordered that genetic testing take
place, an order that necessarily required that Father, Mother, and
Child all separately submit to genetic testing.
¶9 On August 5, 2021, Father submitted a biological sample
for genetic testing. Mother and Child, however, did not submit
biological samples until August 19. On August 18, the day before
Mother and Child submitted their samples, Father and Mother
signed and filed the VDP. On that form, they both swore that they
“believe[d]” that Father was Child’s biological father. And Father
answered “no” to a question asking whether “the birth mother,
child, and biological father” had “submitted to genetic testing.”
The Utah Office of Vital Records and Statistics accepted the VDP
as valid, and that same day issued an amended birth certificate
for Child, listing Father as Child’s father.
¶10 Following the filing of the VDP, Father (through counsel)
filed a motion seeking visitation with Child, alleging that DCFS
had been “not allowing” him to have visitation because the GAL
“is opposed to the visits.” The GAL filed a response that asked the
court to postpone its decision on visitation with Child until the
results of the genetic testing were known. In that same opposition
memorandum, the GAL raised a challenge to the VDP, specifically
invoking sections 78B-15-302 and -307 of the Utah Code. In
particular, the GAL asserted that Father had fraudulently
answered some of the questions on the VDP, and asserted that, if
the pending genetic testing excluded Father as Child’s biological
father, the VDP could also be challenged on the ground that there
had been a material mistake of fact. In reply, Father asserted that
the VDP, which had been accepted by the Office of Vital Records
and Statistics, gave him parental rights as Child’s father, and that
he was therefore entitled to visitation. He also requested a hearing
regarding the GAL’s challenge to the VDP.
20210921-CA 4 2023 UT App 3In re J.E.
¶11 In late September 2021, while Father’s motion for visitation
was pending, the genetic test results came back and demonstrated
that Father is not Child’s biological father.
¶12 Eventually, the court held an evidentiary hearing to
consider Father’s motion for visitation. At that hearing, the court
heard brief testimony, under oath, from both Father and Mother.
After their testimony, the GAL asserted that Father should be
denied visitation because, among other reasons, Father was not
Child’s biological father. In connection with that argument, the
GAL pressed the challenge to the VDP that she had raised in her
opposition brief and asked for the VDP to “be declared void and
be rescinded,” specifically asking for that relief to be “entered
pursuant to [section] 78B-15-623” of the Utah Code (referred to
herein as “Section 623”), a statutory provision the GAL had not
mentioned in her opposition brief. Section 623 provides, in
relevant part, that “[a] child is not bound by a determination of
parentage” unless “the determination was based on an
unrescinded declaration of paternity and the declaration is
consistent with the results of genetic testing.” See Utah Code Ann.
§ 78B-15-623 (LexisNexis 2018). The GAL asserted that the VDP
was subject to a challenge by Child because the results of the
genetic testing indicated that Father was not Child’s biological
father. In addition, the GAL pressed the arguments that had been
raised in her brief, asserting that the VDP was fraudulent because
Father had allegedly been less than candid when he stated that he
“believe[d]” that he was Child’s father and when he answered
“no” to the question on the form about genetic testing.
¶13 At the conclusion of the hearing, and after a brief recess,
the court in an oral ruling granted the GAL’s request to invalidate
the VDP, relying on Section 623 and on the fact that the genetic
testing had conclusively determined that there was no biological
relationship between Father and Child. Addressing Father, the
court stated, “[Y]ou are not the father of [Child] at this point.”
And the court declined Father’s invitation to order that he receive
visitation with Child but, given Father’s established biological
20210921-CA 5 2023 UT App 3In re J.E.
relationship with the other two children and given the fact that
Father was “probably the only parental figure on the male side
that [Child] has know[n],” the court nevertheless left the door
open for DCFS to “allow” Father to have visitation with Child if
DCFS believed that visitation would serve Child’s best interest.
The court later signed a minute entry reflecting its oral ruling,
therein declaring that the VDP “is void.”
ISSUES AND STANDARDS OF REVIEW
¶14 Father appeals the juvenile court’s decision to invalidate
the VDP and to declare it void. At the center of Father’s challenge
is his assertion that Child, by and through the GAL, does not
possess statutory standing to challenge the VDP. This question is
one of statutory interpretation, and on such matters we afford no
deference to trial courts’ decisions. See State v. Outzen, 2017 UT 30,
¶ 5, 408 P.3d 334 (“We review questions of statutory
interpretation for correctness, affording no deference to the [trial]
court’s legal conclusions.” (quotation simplified)).
¶15 But before reaching the merits of Father’s appeal, we must
first determine whether we have jurisdiction to adjudicate it. 2
“Questions about appellate jurisdiction are questions of law” that,
2. After recognizing this jurisdictional question, we issued a Sua
Sponte Motion for Summary Disposition, explaining that this
appeal was being considered for summary disposition “on the
basis that this court lacks jurisdiction because the order appealed
from was not a final, appealable order.” We then ordered the
parties to submit briefing on the jurisdictional question, which
they did. Later, we also provided the parties the opportunity to
submit supplemental briefing on the statutory standing question.
Father and the GAL submitted supplemental briefs, and an
amicus curiae submitted a brief on this topic as well. We
appreciate the assistance of the parties and the amicus curiae in
submitting supplemental briefing.
20210921-CA 6 2023 UT App 3In re J.E.
by definition, arise for the first time in the appellate setting. See
Zion Village Resort LLC v. Pro Curb U.S.A. LLC, 2020 UT App 167,
¶ 21, 480 P.3d 1055 (quotation simplified); see also Powell v. Cannon,
2008 UT 19, ¶ 9, 179 P.3d 799 (“The question of whether an order
is final and appealable is a question of law.” (quotation
simplified)).
ANALYSIS
I. Jurisdiction
¶16 Before we may reach the merits of Father’s appeal, we must
first assess whether we have jurisdiction to adjudicate it. For the
reasons discussed, we conclude that we do.
¶17 “As a general rule, an appellate court does not have
jurisdiction to consider an appeal unless the appeal is taken from
a final order or judgment that ends the controversy between the
litigants.” Copper Hills Custom Homes LLC v. Countrywide Bank,
FSB, 2018 UT 56, ¶ 10, 428 P.3d 1133 (quotation simplified); see also
Williams v. State, 716 P.2d 806, 807 (Utah 1986) (noting that one of
the “traditional principles of appellate review” is “the final
judgment rule,” which generally (subject to a few exceptions)
prevents appellate courts from reviewing an appeal unless it
comes “from a final judgment concluding all of the issues in the
case”). The final judgment rule promotes efficiency by preventing
the piecemeal litigation and seriatim appeals that would result if
litigants were permitted, by right, to immediately appeal any
adverse ruling by a trial court.
¶18 Conceptually, “the finality of an order in juvenile
proceedings is determined the same way as the finality of an order
in other courts.” In re A.F., 2007 UT 69, ¶ 3, 167 P.3d 1070(quotation simplified). Indeed, in juvenile courts, as in other
courts, a “final order is one that ends the current . . . proceedings,
leaving no question open for further judicial action.” Id.20210921-CA 7 2023 UT App 3In re J.E.
(quotation simplified). Certainly, an order in a juvenile court case
that completely resolved all matters as to all parties would be a
final order, just as a similar order would be in a district court case.
¶19 But it is fair to say that, in appeals from juvenile court,
finality is viewed somewhat more flexibly than in the district
court context. “In the child welfare arena, the determining factor
in deciding if an order is final and appealable is whether it effects
a change in the permanent status of the child.” Id. Because a
child’s status can change more than once, and because a “juvenile
court frequently retains jurisdiction over cases [even] after some
of the issues have been finally resolved,” see In re K.F., 2009 UT 4,
¶ 36, 201 P.3d 985 (quotation simplified), “in child welfare
proceedings, unlike traditional civil cases, appeals may be heard
from more than one final judgment,” In re A.F., 2006 UT App 200,
¶ 8, 138 P.3d 65, aff’d, 2007 UT 69, 167 P.3d 1070 (quotation
simplified). Therefore, a determination of whether a juvenile
court order is final and appealable “requires pragmatic analysis
of the order itself.” Id. ¶ 9.
¶20 Under this “pragmatic analysis,” “it is the substance, not
the form, of the . . . order that matters . . . because the
determination whether an order is final and appealable turns on
the substance and effect of the order.” Id. (quotation simplified).
Any order that effects a “permanent change in the child’s status
vis-à-vis the child’s parent” is considered final. See In re K.F., 2009
UT 4, ¶ 36. Particular types of orders that are considered final
include those “entered upon disposition of an adjudicated
petition of abuse, neglect, or dependency” and those “terminating
parental rights,” see id. (quotation simplified), as well as “orders
that otherwise relieve a party from further litigation,” see In re
A.F., 2006 UT App 200, ¶ 10. On the other hand, shelter orders and
orders that “merely terminate reunification services and change
the child’s permanency goal to adoption” are not considered final
because they contemplate “further judicial action” regarding the
parent and the child. See In re K.F., 2009 UT 4, ¶ 37.
20210921-CA 8 2023 UT App 3In re J.E.
¶21 Father asserts that the juvenile court’s order declaring the
VDP void is final and appealable because it “effectively
terminated the parental rights statutorily conferred upon him”
through the VDP. We agree with Father, as does the State. From a
finality perspective, the court’s order declaring the VDP void is
analogous to an order terminating parental rights, because the
order canceled theretofore-valid parental rights that Father had
(at least temporarily) acquired by virtue of filing a voluntary
declaration of paternity that was accepted by the Office of Vital
Records and Statistics. See Scott v. Benson, 2021 UT App 110, ¶ 22
n.4, 501 P.3d 1148 (“A [voluntary declaration of paternity] is valid
and effective if it meets all the basic statutory requirements and is
accepted by the Office of Vital Records.”), cert. granted, 509 P.3d
196 (2022). In analogous contexts, we have determined that
similar orders are final and appealable. See In re A.S., 2007 UT App
72U, para. 1 (per curiam) (holding that an order dismissing a
putative father “from the termination case and denying a motion
for genetic testing” was final and appealable because it
“dismissed [the putative father] as a party and relieved him from
further litigation”); see also In re A.F., 2006 UT App 200, ¶ 10
(stating that “orders that otherwise relieve a party from further
litigation” are appealable).
¶22 The fact that litigation regarding Child continues in the
juvenile court is not dispositive of the question of appealability of
the subject order. See In re E.L.F., 2011 UT App 244, ¶ 5, 262 P.3d
1196 (recognizing that a “juvenile court’s retention of jurisdiction
over a child does not necessarily defeat finality”); see also In re K.F.,
2009 UT 4, ¶ 36 (stating that a “juvenile court frequently retains
jurisdiction over cases [even] after some of the issues have been
finally resolved” (quotation simplified)). The fact that the juvenile
court left the visitation door slightly ajar for Father likewise does
not defeat finality, under the unique circumstances presented
here; the court’s order deprived Father of all parental rights,
leaving DCFS with sole discretion to determine whether, and to
what extent, Father may visit Child.
20210921-CA 9 2023 UT App 3In re J.E.
¶23 Applying a pragmatic analysis here, we conclude that the
subject order, by eliminating all of Father’s claimed parental
rights, effected a “permanent change in the child’s status vis-à-
vis” Father, see In re K.F., 2009 UT 4, ¶ 36, and effectively ended
Father’s involvement in the case. Under these circumstances, the
order from which Father appeals must be considered final, and
we therefore have jurisdiction to consider the merits of his
appellate challenge.
II. The Merits of Father’s Appeal
¶24 We begin our analysis of the merits of Father’s appeal with
a discussion of voluntary declarations of paternity, and by
explaining how Father did—at least for a time—secure valid
parental rights regarding Child. We then list some of the ways in
which voluntary declarations of paternity can be challenged, and
conclude that Child (through the GAL) had standing to raise one
such challenge, and that Child’s challenge has merit. Accordingly,
we conclude that the juvenile court correctly sustained Child’s
challenge to the VDP, but should not have referred to it as “void.”
A
¶25 There are a number of ways for a parent to establish a
legally valid parent-child relationship, many of which are “based
on the notion that parents should generally have parental rights
regarding their biological children.” See Scott v. Benson, 2021 UT
App 110, ¶ 18, 501 P.3d 1148, cert. granted, 509 P.3d 196 (2022); see
also Lehr v. Robertson, 463 U.S. 248, 256–57 (1983) (recognizing
“[t]he intangible fibers that connect parent and child”); Stanley v.
Illinois, 405 U.S. 645, 651 (1972) (holding that a biological father’s
interest “in the children he has sired and raised, undeniably
warrants deference and, absent a powerful countervailing
interest,” constitutional protection). “In most cases, parental
status is established, based on an assumed biological connection,
simply by presumption of circumstance.” Scott, 2021 UT App 110,
¶ 19. For example, in the absence of a valid gestational agreement,
20210921-CA 10 2023 UT App 3In re J.E.
a mother establishes a parental relationship with any child to
whom she gives birth. See Utah Code Ann. § 78B-15-201(1)(a)(i)
(LexisNexis 2018).
¶26 Some fathers also obtain parental rights by presumption of
circumstance. For instance, a father-child relationship is
established when a man “and the mother of the child are married
to each other” when the child is born. Id. §§ 78B-15-
201(2)(a), -204(1)(a). But a father who is not married to the mother
of the child must take additional steps to establish his paternity.
¶27 One avenue open to unmarried biological fathers is to
establish paternity by declaration, an option that—crucially—
requires the written consent of the child’s mother. See id. §§ 78B-
15-301, -302. A successful declaration of paternity, “duly signed
and filed, has the same effect as a judicial determination of
paternity.” In re S.H., 2005 UT App 324, ¶ 15, 119 P.3d 309. To be
effective, both the mother and declarant father must sign the
declaration “in the presence of two witnesses” and make several
statements “under penalty of perjury.” See Utah Code Ann. § 78B-
15-302(1). Of particular relevance here, the parties must also attest
that the child “whose paternity is being declared” does not have
a presumed, adjudicated, or declarant father, and they must “state
whether there has been genetic testing and, if so, that the declarant
man’s paternity is consistent with the results of the testing.” See
id. § 78B-15-302(1)(d), (e). “A declaration of paternity shall be
considered effective when filed and entered into a database
established and maintained by the Office of Vital Records.” Id.
§ 78B-15-302(9).
¶28 Father chose this avenue; he and Mother jointly signed and
filed the VDP on August 18, 2021, after answering several written
questions under penalty of perjury. As already noted, they both
averred that they “believe[d]” Father to be Child’s biological
father, and Father answered “no” to a question asking whether
“the birth mother, child, and biological father [had] submitted to
genetic testing.” The Office of Vital Records and Statistics
20210921-CA 11 2023 UT App 3In re J.E.
accepted the VDP as valid, and that same day issued an amended
birth certificate for Child, listing Father as Child’s father. At that
point, Father’s parental rights regarding Child were definitively
established. See id. § 78B-15-305(1) (LexisNexis 2018) (stating that
“a valid declaration of paternity filed with the Office of Vital
Records is equivalent to a legal finding of paternity of a child and
confers upon the declarant father all of the rights and duties of a
parent”); see also Scott, 2021 UT App 110, ¶ 22 n.4 (“A declaration
is valid and effective if it meets all the basic statutory
requirements and is accepted by the Office of Vital Records.”); In
re S.H., 2005 UT App 324, ¶ 15 (stating that a declaration of
paternity “duly signed and filed, has the same effect as a judicial
determination of paternity”).
B
¶29 Declarations can, however, be challenged after they
have been accepted by the Office of Vital Records and Statistics.
See Scott, 2021 UT App 110, ¶ 23 (“Voluntary declarations of
paternity are, however, subject to challenge.”). Applicable
statutes permit several different types of challenges to validly
filed declarations. For example, a declaration may be challenged
as “void” if it fails to meet certain threshold criteria regarding the
existence of another potential father. See Utah Code Ann. § 78B-
15-302(3) (referred to herein as “Section 302”). Alternatively, a
“signatory” of a declaration may rescind it within sixty days,
without specifying any reason. Id. § 78B-15-306(1) (referred to
herein as “Section 306”). Further, after the rescission period has
expired, a declaration may be challenged by certain parties “on
the basis of fraud, duress, or material mistake of fact.” See id.
§ 78B-15-307 (referred to herein as “Section 307”). And as relevant
here, Section 623 provides that “[a] child is not bound by a
determination of parentage . . . unless . . . the determination was
based on an unrescinded declaration of paternity and the
declaration is consistent with genetic testing.” See id. § 78B-15-
623(2).
20210921-CA 12 2023 UT App 3In re J.E.
¶30 Before the juvenile court, the GAL raised a challenge to the
VDP and, by the time of the hearing, had elected to ground that
challenge largely in Section 623. 3 The court accepted the GAL’s
Section 623 argument, and Father challenges that decision here on
appeal. For the reasons that follow, we conclude that the juvenile
court correctly found merit in the GAL’s Section 623 challenge.
¶31 Section 623 begins by stating that “a determination of
parentage is binding on . . . all signatories to a declaration . . . of
paternity . . . and . . . all parties to an adjudication [of parentage]
by a tribunal.” Id. § 78B-15-623(1). The next section of the statute
provides as follows:
3. As noted already, the GAL’s pre-hearing briefing before the
juvenile court invoked Sections 302 and 307, but not Section 623.
In their briefing on appeal, the parties include some discussion of
other potential avenues for challenge. No party invokes Section
306, and both the State and the GAL appear to concede that the
GAL—apparently because Child is not a “signatory” to the
VDP—does not have statutory standing to challenge the VDP
under Section 307. But the State does appear to invoke Section 302
in connection with its argument that the VDP was “fraudulently
executed,” and on that basis appears to ask us to affirm the
juvenile court’s ruling on this alternative ground. We have serious
doubts about the merits of this argument, primarily because none
of the three criteria for voidness set forth in Section 302 are present
here, but also because any evidence of fraud on the part of Father
or Mother is thin at best: they were not sure whether Father was
Child’s biological parent, but had a basis to “believe” that he was,
and Father’s answer about the state of genetic testing was
technically correct, because on August 18 neither Mother nor
Child had yet submitted samples for genetic testing. But we need
not delve deeper into the State’s alternative argument, because we
affirm the substance of the court’s ruling under Section 623.
20210921-CA 13 2023 UT App 3In re J.E.
(2) A child is not bound by a determination of
parentage under this chapter unless:
(a) the determination was based on an
unrescinded declaration of paternity and the
declaration is consistent with the results of
genetic testing;
(b) the adjudication of parentage was based on a
finding consistent with the results of genetic
testing and the consistency is declared in the
determination or is otherwise shown; or
(c) the child was a party or was represented in
the proceeding determining parentage by a
guardian ad litem.
Id. § 78B-15-623(2). The precise question presented is whether
Section 623 gives a child the right to challenge a putative father’s
duly filed declaration of paternity on the basis that the declaration
is inconsistent with genetic testing results. We hold that it does.
¶32 The question before us is, at root, one of statutory
interpretation. “When interpreting a statute, our primary
objective is to ascertain the intent of the legislature, the best
evidence of which is the plain language of the statute itself.”
Taylor v. Taylor, 2022 UT 35, ¶ 28, 517 P.3d 380 (quotation
simplified). In examining the language of a statute, “we do not
view individual words and subsections in isolation; instead, our
statutory interpretation requires that each part or section be
construed in connection with every other part or section so as to
produce a harmonious whole.” Penunuri v. Sundance Partners Ltd.,
2013 UT 22, ¶ 15, 301 P.3d 984 (quotation simplified); see also State
v. Bess, 2019 UT 70, ¶ 25, 473 P.3d 157 (“We read the plain
language of the statute as a whole and interpret its provisions in
harmony with other statutes in the same chapter and related
chapters.” (quotation simplified)). And if this exercise “provides
20210921-CA 14 2023 UT App 3In re J.E.
a workable result, we need not resort to other interpretive tools,
and our analysis ends.” Torrie v. Weber County, 2013 UT 48, ¶ 11,
309 P.3d 216 (quotation simplified). In accordance with these
principles, we begin our analysis with an overview of the relevant
statute’s structure.
¶33 The statute in question is the Utah Uniform Parentage Act
(the Act), codified at Title 78B, Chapter 15 of the Utah Code. See
Utah Code Ann. §§ 78B-15-101 to -902 (LexisNexis 2018). Section
623’s reference to “a determination of parentage under this
chapter,” then, refers to any determination of parentage made
under any of the various parts of the Act. See id. § 78B-15-623(2)
(emphasis added). Part 3 of the Act governs voluntary
declarations of paternity, see id. §§ 78B-15-301 to -313, and Part 6
of the Act governs judicial adjudications of parentage, see id.
§§ 78B-15-601 to -623. Indeed, the term “determination of
parentage,” as used in Section 623, has a specific statutory
definition: our legislature has provided that a “determination of
parentage” means either (a) “the establishment of the parent-child
relationship by the signing of a valid declaration of paternity
under Part 3,” or (b) “adjudication [of parentage] by a tribunal”
under Part 6. See id. § 78B-15-102(9).
¶34 In this case, any parental rights claimed by Father are
derived not from any judicial adjudication of paternity but, rather,
from the VDP. Indeed, the Act is clear with regard to the effect of
a properly filed declaration of paternity: “a valid declaration of
paternity filed with the Office of Vital Records is equivalent to a
legal finding of paternity of a child and confers upon the declarant
father all of the rights and duties of a parent,” without the
necessity of initiating judicial proceedings or obtaining a court
order. See id. § 78B-15-305(1); see also In re S.H., 2005 UT App 324,
¶ 15 (stating that a declaration of paternity “duly signed and filed,
has the same effect as a judicial determination of paternity”).
Phrased in the language of Section 623, then, the “determination
of parentage” at issue here took place pursuant to Part 3, not Part
6, and it occurred not in any courtroom but at the front counter
20210921-CA 15 2023 UT App 3In re J.E.
(or its metaphorical online equivalent) at the Office of Vital
Records and Statistics.
¶35 As noted, Section 623 provides that “[a] child is not bound
by a determination of parentage” unless at least one of three
criteria are met. See Utah Code Ann. § 78B-15-623(2). With regard
to the specific “determination of parentage” at issue here, none of
the three listed criteria are met.
¶36 First, the “determination of parentage” at issue in this case
was not “based on an unrescinded declaration of paternity” that
is “consistent with genetic testing.” See id. § 78B-15-623(2)(a). To
be sure, the determination of parentage here was based on an
“unrescinded declaration of paternity”; after all, Father’s only
claim to paternity was made through the VDP, and neither Father
nor Mother had exercised any rights they had, pursuant to Section
306, to rescind the VDP within sixty days of signing it. See id.
§ 78B-15-306. But the unrescinded VDP at the heart of Father’s
paternity claim turned out to be entirely inconsistent with the
genetic test results that came back in September 2021. For this
reason, the “determination of parentage” at issue here was not
based on a declaration of paternity that was “consistent with the
results of genetic testing.” Id. § 78B-15-623(2)(a) (emphasis
added). Thus, the first criterion is inapplicable.
¶37 The second criterion is likewise inapplicable, for two
reasons. First, this criterion applies only to an “adjudication of
parentage,” see id. § 78B-15-623(2)(b), and no such adjudication
occurred here, where Father’s parental rights, if any, are derived
under Part 3, from the VDP, rather than through a judicial process.
And second, this criterion also depends upon “genetic testing”
being “consistent with” the adjudication of parentage and, as
already noted, the genetic testing in this case excluded Father
from any biological relationship with Child. See id.
¶38 Finally, the third criterion has no application either. That
criterion applies if “the child was a party or was represented in
20210921-CA 16 2023 UT App 3In re J.E.
the proceeding determining parentage by a guardian ad litem.”
Id. § 78B-15-623(2)(c). To be sure, Child was represented by the
GAL in the proceedings before the juvenile court, and is
represented by the GAL in this appeal. But Child was not
involved, in any way, in the “proceeding determining parentage”
at issue here. Again, that “proceeding” occurred on August 18,
2021, when Father and Mother appeared at the Office of Vital
Records and Statistics to fill out the VDP, and when that office
accepted the VDP they filed. That proceeding took place entirely
outside of court, and Child had no voice or representation therein.
Accordingly, the third criterion is likewise inapplicable.
¶39 Because none of the three exceptional criteria apply here,
Section 623 provides that Child is “not bound by [the]
determination of parentage” in this case. See id. § 78B-15-623(2)
(emphasis added). In our view, this language must necessarily
mean that Child has the right to challenge the VDP. 4
¶40 The words “not bound by” are not defined in the Act. In
such a situation, we “interpret the statutory language according
to the plain meaning of its text.” See O’Hearon v. Hansen, 2017 UT
App 214, ¶ 24, 409 P.3d 85 (quotation simplified). And in doing
so, we give the words the meaning they are given in ordinary
daily usage. See State v. Rincon, 2012 UT App 372, ¶ 10, 293 P.3d
1142 (“When construing a statute, words that are used in
common, daily, nontechnical speech, should, in the absence of
evidence of a contrary intent, be given the meaning which they
have for laymen in such daily usage.” (quotation simplified)).
¶41 In our view, the words “not bound by” must include a right
to challenge the determination of parentage. A child who has no
4. After all, Part 6 of the Act expressly provides that “the child”
may maintain “a proceeding to adjudicate parentage,” and
thereby challenge a parent’s paternity. See Utah Code Ann. § 78B-
15-602(1). All parties to this appeal agree that a child has statutory
standing under Part 6 to challenge a parent’s paternity.
20210921-CA 17 2023 UT App 3In re J.E.
right to challenge the determination in question, even in a case
where none of the three statutory criteria applied, would
effectively be bound by it. Stated another way, in order to be “not
bound by” something, there must exist a way to get out from
under its obligations. After all, the words “not bound by” would
be deprived of all effective meaning if a child had no right to
challenge the determination of parentage at issue. Even Father
and the amicus curiae both acknowledge, in recently filed briefs,
that Child has statutory standing to challenge the VDP under Part
6. For these reasons, we conclude that Section 623 provides Child
the right to challenge the VDP—an unrescinded declaration of
paternity upon which Father’s claim to paternity is based—on the
ground that the declaration is inconsistent with “the results of
genetic testing.” See Utah Code Ann. § 78B-15-623(2)(a).
¶42 Once it is established that Child has the right to mount a
challenge to the VDP, we must turn to the merits of that challenge.
And Father, here on appeal, does not seriously contest the merits
of Child’s attack on the VDP. Father instead acknowledges, as he
must, that the genetic testing excluded him as Child’s biological
father, and that the genetic testing is, therefore, inconsistent with
his claims to paternity under the VDP. Accordingly, the juvenile
court correctly determined that Child’s Section 623 challenge to
the VDP was meritorious.
¶43 But while the juvenile court’s ruling is correct on its merits,
the court used incorrect nomenclature to describe the effect of its
ruling. The court ruled that the VDP “is void,” thereby apparently
purporting to invalidate it ab initio and render it without force or
effect from the date it was filed. This was incorrect. A challenge to
a declaration of paternity based on inconsistency with genetic
testing is a challenge alleging “a material mistake of fact.” See id.
§ 78B-15-307(5) (stating that “genetic test results that exclude a
declarant father . . . constitute a material mistake of fact”). And as
we explained in Scott, the effect of a successful challenge on this
basis—as opposed to a challenge grounded in Section 302 or
Section 306—is “not that the declaration of paternity is rendered
20210921-CA 18 2023 UT App 3In re J.E.
void from its inception” but, instead, that the “declaration will be
set aside, on a going-forward basis.” See 2021 UT App 110, ¶ 40.
¶44 In our view, a challenge brought by a child under Section
623 alleging that genetic testing is inconsistent with a declarant
father’s declaration is substantively similar to the type of
challenge we examined in Scott. Neither challenge is grounded in
Sections 302 or 306, statutory provisions that expressly provide
that voidness will result from a successful challenge. And both
challenges arise from the same set of circumstances, namely,
genetic testing that does not match a putative father’s claims to
paternity. We therefore hold that, where a child makes a
successful Section 623 challenge to a declaration of paternity, the
result is that the declaration “will be set aside, on a going-forward
basis,” and will not be declared void from the date of its inception.
See id. As applied to this case, these principles dictate that Father
had legal parental rights for some three months, from August 18
through November 16, 2021, but that his parental rights ended,
prospectively, with entry of the court’s order sustaining Child’s
Section 623 challenge.
¶45 Finally, both Father and the amicus curiae—in recently
filed supplemental briefs—raise the potential applicability of
section 78B-15-608 of the Utah Code (referred to herein as “Section
608”), a statutory section that allows a court, under certain
conditions, to “disregard genetic test results that exclude the . . .
declarant father.” Father asserts, for the first time in his
supplemental brief, that he should be entitled to a hearing to
determine whether the genetic test results eliminating him as
Child’s biological father should be “disregarded” pursuant to
Section 608. But Father makes this request for the first time in this
recent brief; he did not raise a Section 608 defense to the GAL’s
challenge before the juvenile court, nor did he mention Section
608 in either his opening or reply brief on appeal. Under these
circumstances, Father has raised this legal theory far too late for
us to consider it in the context of this appeal. Cf. Viertel v. Body
Firm Aerobics LLC, 2022 UT App 96, ¶ 11, 516 P.3d 79120210921-CA 19 2023 UT App 3In re J.E.
(“Appellants are not permitted to raise matters for the first time
in a reply brief.” (quotation simplified)).
¶46 The amicus curiae, for its part, asserts that it was
“mandatory” for the juvenile court to have conducted a Section
608 inquiry, including a “best interest of the child” analysis, even
in the absence of a request by Father for it to do so; in this vein,
the amicus curiae argues that the juvenile court committed plain
error by not engaging in that analysis sua sponte. In particular,
the amicus curiae rests its argument on statutory language stating
that the court “shall consider the best interest of the child.” See
Utah Code Ann. § 78B-15-608(2) (emphasis added). But in our
view, the amicus curiae overreads the statute.
¶47 As we interpret it, Section 608 does not compel a juvenile
court, in every instance in which any challenge to a VDP is
sustained, to undertake a Section 608 analysis even if none of the
parties request it. Litigants are entitled to select the specific
defenses they raise to an opponent’s claim. The general rule,
applicable in both district and juvenile courts, is that parties must
request specific relief in order for a court to award it. Our judicial
process ordinarily does not require courts to step in and examine
legal theories that the parties have not themselves raised. See State
v. Johnson, 2017 UT 76, ¶ 14, 416 P.3d 443 (“Under our adversarial
system, the parties have the duty to identify legal issues and bring
arguments before an impartial tribunal to adjudicate their
respective rights and obligations.”). In this case, Father—who was
represented by counsel at the time—elected to defend against the
GAL’s challenge to the VDP by calling into question the GAL’s (or
Child’s) right to even mount the challenge. Father did not raise
Section 608 as a possible defense, and he did not ask the juvenile
court—in the event it concluded that the GAL had standing to
challenge the VDP—to disregard the results of the genetic testing
pursuant to Section 608.
¶48 We take the amicus curiae’s point that, whenever a party
does specifically invoke Section 608 and ask a court to disregard
20210921-CA 20 2023 UT App 3In re J.E.
genetic test results, that court must “consider the best interest of
the child” in determining whether to do so. See Utah Code Ann.
§ 78B-15-608(2). But courts do not have an obligation to sua sponte
raise Section 608, and undertake its concomitant best-interest
analysis, in every case in which they are asked to consider a
challenge to a VDP. 5 See Utah Stream Access Coal. v. VR
Acquisitions, LLC, 2019 UT 7, ¶ 41, 439 P.3d 593 (stating that
“judges are neutral arbiters—not advocates,” and that judges
“keep [themselves] out of the business of second-guessing the
pleading decisions of the parties”); cf. Scott, 2021 UT App 110, ¶
43 (noting that the lower court, in that case, turned to a Section
608 analysis only at the “request” of one of the parties). If a
putative parent wants a court to take the rather drastic and
5. The amicus curiae runs into the same problem with its other
best-interest related argument. It points out that guardians ad
litem have authority created by statute, and that they are
appointed “to represent the best interest of a minor.” See Utah
Code Ann. § 78A-2-803(1)(a)(i) (LexisNexis Supp. 2022). It asserts
that the GAL in this case, by challenging Father’s paternity, acted
outside Child’s best interest, pointing out that Child has no other
father figure in his life, and offering its view that “it is difficult to
see how it can be in a child’s best interest to challenge the
paternity of the only father figure participating in the case.” We
acknowledge this argument, and agree with the amicus curiae
that guardians ad litem have a statutory obligation to carefully
consider whether the actions they take on a child’s behalf are in
the child’s best interest. But ordinarily any challenge to a guardian
ad litem’s actions as being outside a child’s best interest must
come from one of the parties rather than from a court sua sponte,
and must be raised in the first instance in the district or juvenile
court. No such challenge was levied here by any party before the
juvenile court, rendering the merits of any such challenge
inappropriate for appellate review.
20210921-CA 21 2023 UT App 3In re J.E.
unusual step of disregarding the results of genetic testing, it will
ordinarily be the parent’s responsibility to raise the issue.
¶49 And even assuming, for the purposes of the discussion,
that plain error review is available here, see Kelly v. Timber Lakes
Prop. Owners Ass’n, 2022 UT App 23, ¶ 42 n.10, 507 P.3d 357(suggesting that plain error review may be available in certain
types of civil cases, including termination of parental rights cases),
we reject the amicus curiae’s assertion that, on the record before
us, the juvenile court committed plain error by not invoking
Section 608 sua sponte. Plain error occurs only when a court
commits an obvious prejudicial error. See Johnson, 2017 UT 76,
¶ 20. Here, the juvenile court committed no obvious error.
Nothing in Section 608 indicates that it is to be applied in every
case, even sua sponte, regardless of whether any party ever
invokes it. And the amicus curiae cites no appellate court case that
so indicates. Where the law is not clear, a court does not commit
obvious error. See State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276 (“To
establish that the error should have been obvious to the trial court,
[a litigant] must show that the law governing the error was clear
at the time the alleged error was made.”).
¶50 For these reasons, the juvenile court did not plainly err by
not sua sponte undertaking an analysis pursuant to Section 608.
And because Father did not raise that issue either before the
juvenile court or in his initial brief, we decline to address Father’s
argument that the court should have conducted such an analysis.
We offer no opinion, however, regarding whether the issue could
properly be raised after remand, especially given the fact that the
juvenile court left the door open to Father’s involvement in the
case going forward.
CONCLUSION
¶51 We have jurisdiction to consider the merits of Father’s
appeal, because the juvenile court’s order canceled the parental
20210921-CA 22 2023 UT App 3In re J.E.
rights that Father had temporarily acquired by filing the VDP and
thereby effected a permanent change in Child’s status regarding
Father. But on the merits of that appeal, we conclude that the
juvenile court correctly sustained the GAL’s Section 623 challenge
to the VDP, even if the court should not have used the word
“void” to describe the result of its ruling. We therefore affirm the
juvenile court’s decision to sustain the GAL’s challenge to the
VDP, but remand with instructions for the court to modify its
order to indicate that it has prospective effect only, and for such
other proceedings as may be appropriate.
20210921-CA 23 2023 UT App 3