In Re Adoption of B.Y.

This opinion is subject to revision before final
publication in the Pacific Reporter.
2015 UT 67IN THE
SUPREME COURT OF THE STATE OF UTAH
———————
In the Matter of the Adoption of B.Y., a minor child.
_____________________________
JAKE STRICKLAND,
Appellant.
———————
No. 21030088
Filed August 11, 2015
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Second District, Farmington
The Honorable David R. Hamilton
No. 112700011
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Attorneys:
Wesley D. Hutchins, West Jordan, for appellant
Larry S. Jenkins, Lance D. Rich, Salt Lake City, for appellee
———————
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE PARRISH,
and JUDGE BLANCH joined.
JUSTICE NEHRING, due to his retirement, did not participate;
DISTRICT JUDGE JAMES A. BLANCH sat.
JUSTICE HIMONAS became a member of the Court on February 13,
2015, after oral argument in this matter, and accordingly did not
participate.
———————
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 This is an appeal from the denial of a motion to intervene
in an adoption proceeding. The motion was filed by Jake Strick-
land, the putative father of the child in question. The district court
denied the motion on the ground that Strickland had failed to
IN RE B.Y.
Opinion of the Court
strictly comply with the statutory requirements in the Adoption
Act for an unmarried putative father to preserve his right to con-
test an adoption.
¶2 In so doing, the district court also rejected Strickland‘s at-
tempt to excuse his failure to fulfill the requirements of the Act
based on representations made to him by the mother—
specifically, her promise not to place the child for adoption if
Strickland agreed not to file a paternity action. The court‘s rejec-
tion of Strickland‘s reliance on the mother‘s representations was
based on a provision of the Adoption Act providing that a parent
of a child conceived outside of marriage ―is responsible for his or
her own actions and is not excused from strict compliance with
the provisions of this chapter based upon any action, statement, or
omission of the other parent or third parties.‖ UTAH CODE § 78B-6-
106(1). Strickland also challenged the constitutionality of this pro-
vision on various grounds rejected by the district court.
¶3 We affirm. Strickland forfeited his parental rights as a re-
sult of a private bargain he struck with W.P., not because of any
unconstitutional or otherwise unlawful state action. We accord-
ingly hold that Strickland has no viable interest in the child in
question and therefore affirm the denial of his motion to inter-
vene.
I
¶4 In early 2010, Strickland was involved in a sexual relation-
ship with W.P. At that time, W.P. was married to someone else.
She and Strickland were not then married and have never been
married.
¶5 W.P. informed Strickland that she was pregnant in April
2010. She also told him that he was the father. The two of them
remained in substantial contact throughout the pregnancy.
¶6 By August, W.P. had decided, at least tentatively, to place
the child for adoption. Strickland strongly protested. W.P. pro-
posed a deal: If Strickland ―promised to never leave and would
help with anything that [B.Y.] needed or wanted,‖ the two of them
―could raise him together and jointly share custody and costs for
him.‖ Strickland agreed.
¶7 Despite this agreement, Strickland contacted an attorney to
determine what he needed to do to protect his parental rights. The
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attorney advised him to file a paternity action—one of several re-
quirements in the Adoption Act for an unmarried father to protect
his right to object to an adoption. See UTAH CODE § 78B-6-121(3).
But before filing, Strickland told W.P. what he intended to do.
W.P. got upset and threatened to proceed with the adoption if he
filed the action. Strickland caved in to her demands. He promised
not to file ―as long as [she] promise[d] not to go for adoption and
not tell [him].‖ And, true to his word (but unfortunately for him),
Strickland never filed.
¶8 Contrary to their agreement, and without telling Strick-
land, W.P. continued to make arrangements to place the child for
adoption.1 The child, B.Y., was born on December 29. The next
day, W.P. relinquished her parental rights and placed the child for
adoption through LDS Family Services. As required by Utah law,
LDS Family Services then searched the records at Utah‘s Office of
Vital Records and Statistics and determined that, as of January 4,
2011, no paternity action had been filed. LDS Family Services pro-
ceeded with the adoption.
¶9 The record on these points is clear: W.P. represented to
Strickland that she would not place B.Y. for adoption, and Strick-
land believed her. Between the date of B.Y.‘s birth and LDS Fami-
ly Services‘ record search, Strickland asked W.P. multiple times
about the pregnancy, expressing excitement at the prospect of
raising his child. On each occasion, W.P. either dodged his ques-
tions or misled him.2
¶10 When W.P. finally broke the news to Strickland, he
promptly commenced a paternity action. Later, Strickland also
moved to intervene in the pending adoption proceeding. In sup-
1 As the record indicates, placing B.Y. for adoption was not a
last-minute decision. W.P.‘s ex-husband, K.R., signed a form re-
linquishing his parental rights and consenting to adoption on De-
cember 21, 2010, more than a week before the birth, and more
than two weeks before W.P.‘s predicted due date.
2 For example, when Strickland asked, through a text message, if
―we [are] havin‘ a baby yet,‖ W.P. did not respond. And when
Strickland asked W.P. how her doctor appointment went, W.P.
said ―good no change‖ even though she had already had the ba-
by.
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IN RE B.Y.
Opinion of the Court
port of his motion, Strickland raised various federal and state con-
stitutional challenges to the Adoption Act. Strickland also filed a
motion for limited discovery and a motion to disqualify opposing
counsel, based on allegations that the adoptive parents‘ attorney
withheld material information about the adoption from the court.
¶11 The district court rejected Strickland‘s constitutional chal-
lenges and ruled that Strickland had ―no interest in the adoption
proceeding‖ because he failed to strictly comply with the statuto-
ry requirements for contesting B.Y.‘s adoption. In support of this
conclusion, the court stated that ―fraudulent representation is not
. . . an excuse for failure to strictly comply,‖ citing Utah Code sec-
tion 78B-6-106. The district court also rejected Strickland‘s motion
for discovery and to disqualify counsel on the ground that he did
―not have standing to intervene.‖
¶12 Following the district court‘s ruling on his motion to inter-
vene, Strickland filed this appeal. Our review of the district
court‘s ruling on the legal questions presented on Strickland‘s mo-
tion to intervene is de novo. See Manzanares v. Byington (In re
Adoption of Baby B.), 2012 UT 35, ¶ 41, 308 P.3d 382.
II
¶13 To preserve his right to object to an adoption of his biologi-
cal child, Strickland was required to file, among other things, a
paternity petition. UTAH CODE § 78B-6-121(3)(c). He admittedly
failed to do so. To excuse his failure, Strickland points to the as-
surances given by W.P. that she would not place B.Y. for adoption
if he would agree not to assert his parental rights by filing a pa-
ternity action. And because W.P.‘s representations to Strickland
were later shown to be false when given, Strickland asserts his re-
liance on those representations as a basis for excusing his failure
to comply with the terms of the Adoption Act.
¶14 The threshold problem with Strickland‘s position is that it
is incompatible with the express terms of the Adoption Act. The
governing provision provides as follows:
(1) Each parent of a child conceived or born outside
of marriage is responsible for his or her own actions
and is not excused from strict compliance with the
provisions of this chapter based upon any action,
statement, or omission of the other parent or third
parties.
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(2) Any person injured by fraudulent representa-
tions or actions in connection with an adoption is en-
titled to pursue civil or criminal penalties in accord-
ance with existing law. A fraudulent representation
is not a defense to strict compliance with the re-
quirements of this chapter . . . .
UTAH CODE § 78B-6-106(1)–(2).
¶15 Strickland‘s response to this provision is a challenge to its
constitutionality. He claims that the Adoption Act‘s requirement
of strict compliance even in the face of W.P.‘s false representations
infringes his rights on various constitutional fronts—procedural
and substantive due process, equal protection, the Fifth Amend-
ment right against self-incrimination, and the Open Courts Clause
of the Utah Constitution. In addition, Strickland also challenges
section 106 under the Supremacy Clause, asserting that it is
preempted by the Parental Kidnapping Prevention Act, 28 U.S.C.
§ 1738A. Finally, Strickland challenges the district court‘s denial of
his motions for discovery and to disqualify opposing counsel. We
reject each claim on grounds set forth below.
A. Procedural Due Process
¶16 Strickland‘s first claim sounds in procedural due process.
At its core, the due process guarantee is twofold—reasonable no-
tice and an opportunity to be heard. United States v. James Daniel
Good Real Prop., 510 U.S. 43, 48 (1993); Daily Prod. Servs., Inc. v. City
of Wellsville, 2000 UT 81, ¶ 49, 13 P.3d 581. Yet the promise of the
Due Process Clause is limited. It is a protection against state ac-
tion—not a charter aimed at regulating the actions of private par-
ties. Jackson v. Metro. Edison Co., 419 U.S. 345, 349–50 (1974).
¶17 This distinction is of particular relevance in this case. To
some extent, Strickland‘s concerns about his lack of notice and an
opportunity to be heard stem from private activity—from W.P.‘s
misrepresentations and his omissions in reliance thereon. On the
notice claim in particular, we conclude that there is no state action
and thus no viable due process claim. On the opportunity to be
heard claim, on the other hand, there is an element of state ac-
tion—in the provision of the Utah Adoption Act defining the
terms and conditions of an unwed father‘s right to participate or
object to an adoption. See UTAH CODE § 78B-6-121(3). We affirm
the dismissal of this claim on the merits, concluding that the stat-
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IN RE B.Y.
Opinion of the Court
ute in question affords to Strickland the meaningful opportunity
to be heard guaranteed by due process.
1. Notice
¶18 A fundamental guarantee of due process is the right to no-
tice. Before a right of property or other important interest is fore-
closed as a result of state action, reasonable notice must be afford-
ed. Matthews v. Eldridge, 424 U.S. 319, 348 (1976). And Strickland
claims that he was deprived of such notice in this case.
¶19 Yet, to the extent Strickland‘s notice argument centers on
W.P.‘s misrepresentations, it fails at the ―state action‖ threshold.
Strickland is not complaining about the government’s failure to
provide notice of his obligation to file a paternity action. Nor
could he. See Sanchez v. L.D.S. Soc. Servs., 680 P.2d 753, 755 (Utah
1984) (holding that there is no ―constitutional requirement‖ under
the Due Process Clause that the state ―give actual notice of the
statutory requirements for establishing parental rights‖). And to
the extent he is arguing that he did not have adequate notice of
the Adoption Act‘s requirements, his argument also fails. As a
Utahn he had constructive notice of the content and applicability
of the terms of Utah law.3 And in this case, in any event, Strick-
land also had actual notice, as the lawyer he consulted told him
that Utah law required him to file a paternity action.
¶20 As briefed, it appears that Strickland‘s ultimate gripe is not
with the government but with W.P. He claims that W.P.‘s misrep-
resentations effectively ―stripped‖ him of the notice he was given
of his obligations under Utah law. But the due process guarantee
is notice from the government, not from private parties. And the
state afforded Strickland with all the notice he was due. 4 To the
3 See Heien v. North Carolina, 135 S. Ct. 530, 540 (2014) (citing the
―well-known maxim, ‗Ignorance of the law is no excuse‘‖); Cary v.
Curtis, 44 U.S. 236, 252 (1845) (noting that ―all must be presumed
to possess‖ ―notice of the law‖); People v. Monk, 28 P. 1115, 1116
(Utah Terr. 1892) (―[I]n general every person is presumed to know
the law of the country in which he lives.‖).
4 See Steve B.D. v. Swan (In re Steve B.D.), 730 P.2d 942, 947 (Idaho
1986) (per curiam) (asserting, in the context of rejecting a father‘s
due process claim that the mother‘s fraud caused him to lose his
parental rights, that ―the critical fact remains that the opportunity
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extent he was talked out of relying on that notice by W.P., his re-
course is through a civil claim sounding in fraud or misrepresen-
tation. See UTAH CODE § 78B-6-106(2) (recognizing that a ―person
injured by fraudulent representations or actions in connection
with an adoption is entitled to pursue civil or criminal penalties in
accordance with existing law,‖ while providing that a ―fraudulent
representation is not a defense to strict compliance with the re-
quirements of this chapter‖).
¶21 We said nothing to the contrary in Manzanares v. Byington
(In re Adoption of Baby B.), 2012 UT 35, 308 P.3d 382. Strickland
reads that decision as establishing a father‘s right to actual
knowledge of the applicability of Utah law unimpeded by private
conduct. But the Baby B. opinion says nothing of the sort. For one
thing Baby B. isn‘t about the requirements of due process. The por-
tion of the opinion cited by Strickland concerns the interpretation
of Utah Code section 78B-6-121(3)—a provision authorizing an
adoption without a putative father‘s consent if he knew or could
have known of a ―qualifying circumstance‖ and failed to follow
the dictates of Utah law. See In re Baby B., 2012 UT 35, ¶ 37. And in
Baby B. we simply held that mere belief was insufficient under this
provision. Id. ¶ 53–55. That conclusion had nothing to do with the
notice required by the Due Process Clause.
¶22 In this case, moreover, there is no question of Strickland‘s
knowledge of qualifying circumstances under section
122(1)(c)(i)(A). Strickland had ample knowledge of such circum-
stances—that W.P. resided in Utah, UTAH CODE § 78B-6-
122(1)(a)(i), and that she planned to give birth here, id. § 78B-6-
to assert his interest slipped away without any involvement of the
state‖); Friehe v. Schaad, 545 N.W.2d 740, 748 (Neb. 1996) (rejecting
a father‘s due process claim where he relied on the mother‘s
promise not to relinquish the child because ―[h]is own failure to
act upon the notice given to him deprived him of the opportunity
to be heard‖); In re Baby Boy K., 546 N.W.2d 86, 101 (S.D. 1996)
(rejecting a father‘s due process claim where the mother concealed
her pregnancy from the father and the identity of the father from
the court because the ―[m]other‘s alleged dishonesty was a private
act in which the State was also deceived‖ and the father ―cannot
claim illegal state action where the State was itself a victim rather
than a perpetrator‖).
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IN RE B.Y.
Opinion of the Court
122(1)(a)(ii). And, as noted above, he had both constructive and
actual notice of the consequence of his failure to file a paternity
action as dictated by Utah law. Due process required no more no-
tice than that. Certainly it didn‘t entitle Strickland to rely on
W.P.‘s representation as to her intentions not to hold him to the
dictates of our law. W.P. had no legal authority to excuse Strick-
land from the terms of our adoption laws, which are aimed not
just at protecting the birth mother (W.P.) but also other parties un-
represented by her—most importantly the child, and also its
adoptive parents.
2. Opportunity to be heard
¶23 Mere notice is an empty gesture if it is not accompanied by
a meaningful chance to make your case. So the Due Process
Clause also guarantees such a chance—―an opportunity to be
heard at a meaningful time and in a meaningful manner.‖ Gray v.
Netherland, 518 U.S. 152, 182 (1996) (internal quotation marks
omitted).
¶24 Strickland claims that he has been deprived of that oppor-
tunity. He alleges that his opportunity to appear and assert his
parental rights in the adoption of B.Y. was foreclosed in a manner
infringing his right to due process.
¶25 In analyzing this claim, we begin again with the state ac-
tion question. On this claim, as noted above, there is at least an
allegation of state action. Although Strickland concedes that it was
W.P.‘s representations that led to his failure to file a paternity
claim, he also points to a state statute, Utah Code section 78B-6-
106, as the subject of his claim. That statute provides that ―strict
compliance‖ with the Adoption Act is ―not excused . . . based up-
on any action, statement, or omission of the other parent or third
parties.‖ And Strickland seeks to cast his due process claim in
terms that challenge that provision—asserting that the statute ef-
fectively endorsed the effectiveness of W.P.‘s representations, and
that the statute thus deprived him of a meaningful opportunity to
assert his parental rights. We find no merit in that claim and af-
firm its dismissal under the standards and precedents described
below.
¶26 The due process right to an opportunity to be heard is by no
means a blanket prohibition of procedural prerequisites to the
preservation of a legal right. See Bolden v. Does (In re Adoption of
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J.S.), 2014 UT 51, ¶ 21, __ P.3d. __. As we explained in Bolden, our
law leaves ample room for such procedural prerequisites. ―A stat-
ute of limitations . . . may foreclose a cause of action before it is
ever litigated on its merits,‖ and a ―procedural bar‖ may impose a
―similar effect.‖ Id.; see also Logan v. Zimmerman Brush, Co., 455
U.S. 422, 437 (1982) (―The State may erect reasonable procedural
requirements . . . [such as] statutes of limitations . . . . And the
State certainly accords due process when it terminates a claim for
failure to comply with a reasonable procedural . . . rule.‖).
¶27 That is not to say that such procedural prerequisites are
immune from due process scrutiny. ―Applicable standards of pro-
cedural due process do not yield free-wheeling authority for the
courts to second-guess the wisdom or fairness of legislative policy
judgments‖ in this arena. Bolden, 2014 UT 51, ¶ 23 n.9. But they do
leave room for a due process challenge where a procedural bar
can be shown to ―foreclose[] . . . meaningful access to the justice
system.‖ Id. ¶ 23.5
¶28 In past cases, we have found this standard to be met by a
showing of impossibility. In Ellis v. Social Services Department of the
Church of Jesus Christ of Latter-day Saints, 615 P.2d 1250 (Utah
1980), for example, we upheld a procedural due process challenge
to the requirements of our Adoption Act by a putative father
whose compliance with the law was shown to have been rendered
―impossible‖ ―through no fault of his own.‖ Id. at 1256. The facts
of Ellis help to elucidate this standard. In that case the child in
question was conceived in a relationship between two California
residents who were engaged to be married prior to the child‘s
birth. Id. at 1252. About two weeks before the wedding, however,
the mother broke off the engagement. Id. Then, a few days before
the child‘s birth, she traveled from California to Utah without the
father‘s knowledge. Id. And ultimately, upon arriving in Utah, she
placed the child for adoption—after representing to those in-
volved that the father was unknown. Id.
5 See also Logan v. Zimmerman Brush, Co., 455 U.S. 422, 433–34
(1982) (―[T]he state may not finally destroy a property interest
without first giving the putative owner an opportunity to present
his claim of entitlement.‖).
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IN RE B.Y.
Opinion of the Court
¶29 In finding a due process problem in Ellis, we noted that the
putative father ―was not given an opportunity to present evidence
to show as a factual matter that he could not reasonably have ex-
pected his baby to be born in Utah.‖ Id. at 1256. And because due
process requires a ―reasonable opportunity to comply‖ with the
statutory prerequisites to the establishment of a parental right, we
found a due process problem in that circumstance. Id. In so con-
cluding, we first noted the ―usual case,‖ in which ―the putative
father would either know or reasonably should know approxi-
mately when and where his child was born.‖ Id. Yet we also dis-
tinguished the facts in Ellis from this usual case—in that in Ellis it
was ―impossible for the father to file the required notice of pater-
nity prior to the statutory bar, through no fault of his own.‖ Id.
And we held that due process was not afforded in these circum-
stances, given that the father in question had not been given ―a
reasonable opportunity to comply with the statute.‖ Id.
¶30 We reinforced the Ellis ―impossibility‖ standard in our sub-
sequent opinion in Wells v. Children’s Aid Society of Utah, 681 P.2d
199 (Utah 1984). Wells was the more ―usual case.‖ In Wells ―the
birth occurred in the same state as the father‘s residence, and nei-
ther the child‘s mother nor the [adoption] agency was involved in
any effort to prevent him from learning of the birth.‖ Id. at 207.
―All the father needed to do to assert his rights was file his claim
of paternity . . . any time prior to . . . the date the mother relin-
quished the child‖ for adoption. Id. And because the father had
―ample advance notice of the expected time of birth‖ and ―advice
of counsel‖ that he needed to file a paternity claim to preserve his
rights, we concluded that he had ―sufficient opportunity‖ to be
heard as a matter of due process. Id.¶31 In so holding, we emphasized the narrowness of our earlier
decision in Ellis. We noted, in particular, that the requirement of a
―reasonable opportunity‖ to be heard did not require a fact-
intensive, case-by-case evaluation of the reasonableness of impos-
ing a strict compliance requirement on each putative father. Id. at
208. In response to the father‘s argument that Ellis had held that
―due process requires that the father be allowed to show ‗he was
not afforded a reasonable opportunity to comply with the stat-
ute,‘‖ our opinion in Wells gave a limiting construction to Ellis:
―Such an interpretation overlooks the fact that the ‗reasonable op-
portunity‘ referred to in the quoted sentence only applies ‗in such
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a case,‘ i.e., when it is first shown that it was ‗impossible‘ for the
father to file ‗through no fault of his own.‘‖ Id. ―Otherwise,‖ we
emphasized, the requirement of a fact-intensive showing that the
putative father ―had a ‗reasonable opportunity‘ to file the required
notice of paternity would frustrate the statute‘s purpose to facili-
tate secure adoptions by early clarification of status.‖ Id.¶32 In reinforcing that conclusion, we also relied on the United
States Supreme Court‘s opinion in Lehr v. Robertson, 463 U.S. 248(1983). Quoting Lehr, we asserted in Wells that ―‗legitimate state
interests in facilitating the adoption of young children and having
the adoption proceeding completed expeditiously . . . also justify a
trial judge’s determination to require all interested parties to adhere pre-
cisely to the procedural requirements of the statute.‘‖ Wells, 681 P.2d at
208 (quoting Lehr, 463 U.S. at 265). And where the right to notice
and an opportunity to be heard were ―completely within [the pu-
tative father‘s] control,‖ we held that the requirement of strict
compliance was not offended. Id. In so doing, we again distin-
guished Wells from Ellis—noting that the Ellis holding would
come into play only where ―it was (1) ‗impossible‘ for the father to
make a timely filing of the required notice (2) ‗through no fault of
his own.‘‖ Id.¶33 The impossibility inquiry centers on the father‘s factual basis
for anticipating the need to fulfill the requirements of Utah law to
protect his legal rights. A father who lacks a sufficient basis can
establish that he has not been given a meaningful opportunity to
be heard. Under our cases, a father‘s due process right to be heard
is infringed where his rights are foreclosed for failure to comply
with the Adoption Act but he ―could not reasonably have ex-
pected his baby to be born in Utah,‖ Ellis, 615 P.2d at 1256, or he
―did not know and could not reasonably have known that his
child would be placed for adoption in Utah,‖ Nevares v. M.L.S.,
2015 UT 34, ¶ 25, 345 P.3d 719.
¶34 On the other hand, a father who knows of a pregnancy and
has reason to suspect that his child will be born in or placed for
adoption in Utah must fulfill the requirements of the Utah Adop-
tion Act. And such father has a ―sufficient opportunity‖ to be
heard and thus cannot establish impossibility. Wells, 681 P.2d at
207. That conclusion holds, moreover, even if he is talked out of
availing himself of that opportunity by promises or representa-
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Opinion of the Court
tions of a private party (such as the mother).6 See id. at 208 (noting
that a contrary conclusion would ―frustrate the statute‘s purpose
to facilitate secure adoptions by early clarification of status‖); Bol-
den, 2014 UT 51, ¶ 23 (a procedural due process challenge to a re-
quirement of the Adoption Act fails where the putative father
―failed to fulfill it not because it was difficult‖ but because of his
reliance on private conduct—counsel‘s legal advice).7
6 The due process standard described here, and recognized in
our prior decisions, has been incorporated into the Adoption Act.
Utah Code section 78B-6-122(c)(i)(a) protects unwed fathers who
failed to comply with Utah adoption requirements when they
―did not know, and through the exercise of reasonable diligence
could not have known, . . . that a qualifying circumstance exist-
ed.‖ Under this provision, a father‘s right to contest an adoption
remains intact so long as he ―fully complied‖ with the adoption
requirements of the state whose laws he could have expected to
apply. See Nevares v. M.L.S., 2015 UT 34, ¶ 14, 345 P.3d 719. This
statute identifies precisely the same problem addressed in Ellis
and Wells. And it supplies a choice-of-law solution that avoids the
significant due process problems that could follow from holding a
father to the elements of the Utah Adoption Act where the father
lacks a sufficient basis for anticipating its application.
7 See also Lehr v. Robertson, 463 U.S. 248, 265 (1983) (explaining, in
the course of upholding New York‘s adoption scheme, that ―[t]he
Constitution does not require . . . a litigant to give special notice to
nonparties who are presumptively capable of asserting and pro-
tecting their own rights‖); Steve B.D., 730 P.2d at 946 (rejecting a
due process challenge to the procedural requirements of Idaho‘s
adoption act in light of the ―essential fact‖ is that the father
―failed to initiate . . . any legal actions to establish his interest‖); In
re Adoption of A.A.T., 196 P.3d 1180, 1199–1200 (Kan. 2008) (hold-
ing the father responsible for his failure to timely file and adding
that ―[r]arely, however, have the mother‘s actions alone been suf-
ficient to shift the balance of interests to the point the court deter-
mined the State was not justified in [terminating his parental
rights]‖); Heidbreder v. Carton, 645 N.W.2d 355, 373 (Minn. 2002)
(rejecting a father‘s due process challenge despite the mother‘s
fraud when the right to contest the adoption was completely with-
in the father‘s control); Robert O. v. Russell K., 604 N.E.2d 99, 104
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¶35 Strickland falls into this latter category, and his due process
claim fails on that basis. Strickland knew of the pregnancy prior to
his child‘s birth; in fact, he knew about it from the beginning and
had about eight months to file a paternity action. Once he learned
that W.P. had decided to move forward with the adoption, more-
over, Strickland completed and filed the necessary documents
within a single day. So Strickland surely could have fulfilled the
requirements of the Adoption Act before the child was placed for
adoption. He simply chose to forgo that opportunity in reliance
on the representations of a private party.
¶36 The injury stemming from Strickland‘s reliance may sus-
tain a private suit for damages. But it does not sustain a due pro-
cess claim entitling him to intervene in an adoption. Strickland‘s
claim is traceable not to state action but to W.P.‘s private conduct.
And his claim fails on its merits for that reason.
¶37 Strickland objects that this analysis is in tension with this
court‘s decision in In re Adoption of Baby Boy Doe, 717 P.2d 686(Utah 1986). And to some degree it is. In Baby Boy Doe, the puta-
tive father had knowledge of the mother‘s pregnancy and also
knew that the mother was residing in Utah. Id. at 687. And alt-
hough the father was not a Utah resident, it seems apparent that it
was not ―impossible‖ for him to comply with Utah law to protect
his rights.8 Yet the Baby Boy Doe court (a divided 3-2 majority) up-
(N.Y. 1992) (holding that the mother‘s conduct did not prevent
father from protecting his rights); Napier v. Adoption Parents of
Cameron, 795 N.E.2d 707, 713 (Ohio Ct. App. 2003) (rejecting a fa-
ther‘s due process challenge under Lehr); Burns v. Crenshaw, 733
P.2d 922, 925 (Or. Ct. App. 1987) (upholding Oregon‘s scheme as
similar to the scheme in Lehr).
8 See id. at 693 (Stewart, J., dissenting) (asserting that the father
―must have realized that there was a reasonable likelihood‖ that
the child would be born in Utah ―long prior‖ to the birth, and thus
that ―[i]t cannot be said . . . that it was ‗impossible‘ for [him] to
protect his paternal rights‖); id. at 690 (majority opinion) (re-
sponding only that the father was ―unaware of the birth until
three days after the child had been born‖ due to the fact that the
baby had been born ―one or more weeks early‖ and the father
―was traveling between California and Arizona‖ and thus would
have had a difficult time contacting the mother).
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IN RE B.Y.
Opinion of the Court
held the putative father‘s due process challenge to the strict com-
pliance requirements of our Adoption Act. In so doing, moreover,
it emphasized some points that we now deem irrelevant (because
they are causally connected not to state action but to private rep-
resentations).
¶38 Specifically, the Baby Boy Doe court asserted that the moth-
er‘s representations as to her intentions to ―move to Arizona‖
with the father ―alleviated any concern [he] might otherwise have
had as to his need to protect his parental rights because he had no
reason to believe an adoption would be attempted.‖ Id. at 690.
And the majority also emphasized the putative father‘s ―reliance
on the mother‘s representations‖—that he ―traveled to Arizona,
obtained employment [there], found a place to live, and moved
the couple‘s belongings‖ to Arizona. Id. The court‘s holding,
moreover, appears to stem in part from the circumstances sur-
rounding the mother‘s misrepresentations and the putative fa-
ther‘s reliance thereon. In concluding that the putative father had
―successfully shown that the termination of his parental rights
was contrary to basic notions of due process, and that he came
forward within a reasonable time after the baby‘s birth,‖ the Baby
Boy Doe majority relied at least in part on the ―representations
made by the mother.‖ Id at 691.
¶39 These considerations are insufficient to sustain a due pro-
cess challenge to the strict compliance provision of the Utah
Adoption Act. For reasons explained above, a putative father who
knows of a pregnancy and has reason to suspect that his child will
be born in or placed for adoption in Utah is on notice of the ap-
plicability of Utah Code section 78B-6-106. Supra ¶ 34. And be-
cause that provision clearly states that a private representation is
insufficient to excuse compliance with the Adoption Act, a father
who knows of a pregnancy and of a likely birth in Utah but ig-
nores the Utah statute in reliance on a mother‘s representations
has been given all the process that he is due. Such a father pro-
ceeds at his peril if he relies on such representations. And if those
representations are not fulfilled, his recourse is in a civil suit
against the mother, not in an intervention motion asking the dis-
trict court to excuse his noncompliance with our adoption law.
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¶40 We repudiate the elements of the Baby Boy Doe decision
that are in conflict with our opinion in this case.9 And we hold
that Strickland‘s procedural due process claim fails on its merits
and is not sustained by our opinion in that case.
B. Substantive Due Process
¶41 Strickland also challenges the application of the strict com-
pliance provision of the Adoption Act under the substantive com-
ponent of the Due Process Clause. Such a claim is distinct from
the procedural due process challenge analyzed above. ―A proce-
dural due process attack‖ on the statutory requirements of the
Adoption Act ―take[s] the form of an assertion that such a limita-
tion forecloses any meaningful opportunity for the plaintiff to
protect its rights.‖ Bolden, 2014 UT 51, ¶ 22. ―A substantive chal-
lenge,‖ on the other hand, ―involve[s] a broad-side attack on the
fairness of the procedural bar or limitation, on the ground that the
right foreclosed is so fundamental or important that it is protected
from extinguishment.‖ Id.¶42 Strickland advances such a claim here. He concedes that he
failed to file a paternity action as required by the Utah Adoption
Act. But, citing Lehr v. Robertson and related federal precedent,
Strickland asserts that he did enough to ―grasp‖ his ―opportunity
. . . to develop a relationship with his offspring,‖ 463 U.S. at 262,
and thus insists that he perfected a fundamental parental right
that was protected from extinguishment in this adoption proceed-
ing.
9 Our opinion in Wells also included some stray references to
considerations paralleling those in Baby Boy Doe. See Wells, 681
P.2d at 207 (noting, in the course of rejecting the father‘s due pro-
cess argument, that ―neither the child‘s mother nor the agency
was involved in any effort to prevent [the father] from learning of
the birth or from asserting his parental rights‖). Our analysis here
also renders these considerations irrelevant as a matter of due
process. And in fact, the Wells opinion itself suggests that these
considerations are irrelevant, stating that ―[t]hese [factors] ex-
ceed[ed] what is necessary‖ under Ellis and deeming the Ellis ex-
ception ―inapplicable‖ based on differences in the parents‘ resi-
dencies in the two cases. Id.
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IN RE B.Y.
Opinion of the Court
¶43 This claim fails as a matter of law. An unwed father‘s rights
are merely provisional. See Wells, 681 P.2d at 208 (quoting Lehr,
463 U.S. at 265). To perfect such rights a father must comply with
legal prerequisites established by the state. Id. Failure to do so
leaves the father‘s parental rights without any substantive protec-
tion—except in the narrow circumstance in which the prerequi-
sites established by the state are arbitrary. Lehr, 463 U.S. at 263–64.
¶44 The Due Process Clause, moreover, is not a license for
courts to second-guess the prerequisites established by the legisla-
ture for a putative father to perfect his parental rights. Instead, the
well-settled standard yields substantial deference to the state‘s
chosen prerequisites. It does so in light of the state‘s important in-
terest in ―immediate and secure adoptions for eligible newborns.‖
Wells, 681 P.2d at 203.
¶45 As we noted in Wells, the Lehr court rejected a substantive
due process challenge to a New York provision requiring notice of
an adoption proceeding to an unwed father ―only if he had filed a
notice of intent to claim paternity with the putative father regis-
try.‖ Id. at 205 (citing Lehr, 463 U.S. at 264). It did so on the ground
that ―a more open-ended notice requirement would . . . compli-
cate the adoption process, threaten the privacy interests of unwed
mothers, create the risk of unnecessary controversy, and impair
the desired finality of adoption decrees.‖ Lehr, 463 U.S. at 264.
And it upheld the New York requirement of a paternity filing un-
der a deferential standard of scrutiny—rejecting the putative fa-
ther‘s challenge on the ground that the New York requirement
was not ―arbitrary.‖ Id. Our cases have applied this same standard
in upholding a requirement of a paternity filing under Utah law.
See Wells, 681 P.2d at 206 (holding that acknowledgement of pa-
ternity requirement was ―not ‗arbitrary‘‖ and was ―therefore con-
stitutional under the Due Process Clause of the United States
Constitution‖).
¶46 Strickland‘s claim fails under this standard. He does not es-
tablish that the paternity filing requirement is ―arbitrary.‖ Nor
could he. For reasons established in Lehr and Wells, the require-
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ment of a paternity filing is far from arbitrary.10 We therefore af-
firm.
C. Equal Protection
¶47 Strickland next challenges the strict compliance provision
under the Equal Protection Clause of the U.S. Constitution. U.S.
CONST. amend. XIV, § 1 (―. . . nor shall any State deprive any per-
son . . . the equal protection the laws.‖). His equal protection chal-
lenge is twofold. First, Strickland contends that the statute ―does
not sufficiently differentiate between the Involved Father and the
deadbeat dad.‖ Second, he claims that legislative findings in the
Adoption Act impermissibly discriminate on the basis of gender.
Both claims fail as a matter of law.
¶48 The first claim is based on a faulty premise. Equal protec-
tion is a prohibition of suspect classification by government. See
Bolden, 2014 UT 51, ¶ 67 (explaining that equal protection, like its
state law counterpart in the Uniform Operation Clause, begins
with an assessment of ―what classifications, if any, the statute cre-
ates‖); State v. Canton, 2013 UT 44, ¶ 35, 308 P.3d 517 (same). That
prohibition encompasses both inherently suspect classifications,
such as race, and other classifications that are ―presumptively
permissible, and thus subject only to ‗rational basis review.‘‖ Can-
ton, 2013 UT 44, ¶ 36.
¶49 In any case, however, the equal protection inquiry focuses
on the actual classification employed by the government. Id. ¶ 39.
―[C]oncerns of over-inclusiveness . . . are relevant only insofar as
they bear on the question whether the classification that was
made clears the applicable standard of scrutiny.‖ Id. They do not
present a ―viable, standalone basis‖ for an equal protection claim.
Id. Thus, ―litigants whose gripe is that the legislature has imper-
missibly grouped them into a category with other dissimilar indi-
viduals must demonstrate that the classification that put them
there fails constitutional muster.‖ Id.
10 See supra ¶ 45 (quoting the Lehr court‘s analysis concerning
why New York‘s adoption scheme was not arbitrary); Wells, 681
P.2d at 206–07 (describing the state‘s interests in ―speedily identi-
fying those persons who will assume a parental role over new-
born . . . children,‖ in protecting ―the privacy interests of unwed
mothers,‖ and in furthering ―the other interests . . . cited in Lehr‖).
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IN RE B.Y.
Opinion of the Court
¶50 Strickland‘s initial equal protection claim fails on that
ground. He is not complaining about the rationality of the classifi-
cation that was made by the legislature. He is asserting only that
further classification would have been better. That is not a viable
equal protection claim.
¶51 Strickland‘s second claim founders on similar grounds. The
statutory ―findings‖ he questions make no classification at all.
They simply present the legislature‘s take on factual questions of
relevance to Utah Code section 78B-6-106—that there is ―no prac-
tical way to remove all risk of fraud‖ and that ―the unmarried bio-
logical father is in the best position to prevent or ameliorate the
effects of fraud and that, therefore, the burden of fraud shall be
borne by him.‖ UTAH CODE § 78B-6-102(6)(d). Because the findings
provision makes no government classification, it cannot properly
be the subject of any equal protection scrutiny. And the operative
provision, Utah Code section 78B-6-106, is neutral on its face.
¶52 This provision, as noted above, sweeps in broad, gender-
neutral terms. It provides generally that ―[e]ach parent‖—mother
or father—―of a child conceived or born outside of marriage is re-
sponsible for his or her own actions and is not excused from strict
compliance with the provisions of this chapter based upon any
action, statement, or omission of the other parent or third parties.‖
Id. § 78B-6-106(1) (emphasis added). And it states that ―[a]ny per-
son injured by fraudulent representations . . . is entitled to pursue
civil or criminal penalties in accordance with existing law.‖ Id. §
78B-6-106(2) (emphasis added). There is no sex-based classifica-
tion in these provisions, and thus no basis for the equal protection
claim advanced by Strickland.
¶53 At most, Strickland may be asserting that section 78B-6-106
has a disparate impact on men. But if so, his claim falters under
Washington v. Davis, 426 U.S. 229, 243–44 (1976), which requires
that ―purposeful discrimination‖ be established to sustain a dis-
parate impact claim under the Equal Protection Clause. See also
Pers. Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 273–74 (1979)
(articulating the ―settled rule that the Fourteenth Amendment
guarantees equal laws, not equal results‖). Strickland has not es-
tablished the purposeful animus required under Washington v.
Davis and Feeney. Nor is there anything on the record that would
tend to undermine the legislature‘s conclusion that fathers are in
the best place to prevent the effects of fraud. And if we cannot
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even refute this factual assertion, we certainly cannot view it as
evidence of the kind of purposeful animus necessary to sustain
Strickland‘s disparate impact claim.
D. Fifth Amendment Right Against Self-Incrimination
¶54 In his most wide-sweeping constitutional challenge, Strick-
land claims that the requirements of the Adoption Act infringe his
Fifth Amendment right against self-incrimination. The claimed
incrimination is for the crime of fornication—a law still on the
books in our criminal code. See UTAH CODE § 76-7-104. And Strick-
land asserts that the filing requirements of the Adoption Act
would have put him on record as admitting to that crime.
¶55 This claim fails in its basic premise. The ―mere possibility
of incrimination is insufficient‖ to implicate the Fifth Amendment.
California v. Byers, 402 U.S. 424, 428 (1971). Under well-settled
precedent, the Fifth Amendment protects against ―real dangers,
not remote and speculative possibilities.‖ Zicarelli v. New Jersey
State Comm’n of Investigation, 406 U.S. 472, 478 (1972). And Strick-
land has not established a real danger of incrimination. The crime
of fornication has not been prosecuted in Utah in quite some time,
so the incrimination asserted by Strickland is no more than a re-
mote, speculative possibility. We reject his challenge on that basis.
E. Open Courts Clause
¶56 Strickland‘s next claim arises under the Open Courts
Clause of the Utah Constitution. UTAH CONST. art. I, § 11. This
provision guarantees that ―[a]ll courts shall be open,‖ and assures
that ―every person, for an injury done to him in his person, prop-
erty, or reputation, shall have remedy by due course of law.‖ Id.
¶57 The terms of this provision have spawned extensive debate
in our opinions. A central point of discussion has concerned the
question whether the Open Courts Clause conveys ―substantive‖
protection against the abrogation of common law causes of action
or merely a ―procedural‖ guarantee of access to courts for the
vindication of any claims or defenses protected by law generally
(including under statutes overriding common-law principles).11
The court‘s majority has embraced a substantive conception of the
11 Compare Laney v. Fairview City, 2002 UT 79, ¶¶ 30–48, 57 P.3d
1007, with id. ¶¶ 115–131 (Wilkins, J., dissenting).
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IN RE B.Y.
Opinion of the Court
open courts protection since at least Berry ex rel. Berry v. Beech Air-
craft Corp., 717 P.2d 670 (Utah 1985). Yet the court has long been
closely divided on that issue.12
¶58 We have not been asked to revisit that question here. And
this would not be an appropriate case in which to do so given the
shortcomings of Strickland‘s briefing. Although Strickland pur-
ports to invoke the substantive dimension of the Open Courts
Clause, he is not ultimately asserting a substantive claim—that the
Adoption Act has ―abrogate[d] a cause of action‖ existing at
common law without providing a ―reasonable alternative reme-
dy‖ that is ―substantially equal in value or other benefit.‖ Laney v.
Fairview City, 2002 UT 79, ¶¶ 50, 54, 57 P.3d 1007 (internal quota-
tion marks omitted). Strickland is simply not seeking a ―remedy‖
for an ―injury done to him.‖ UTAH CONST. art. I, § 11. He has not
asserted a cause of action for damages. Nor is there anything in
the Adoption Act that would prevent him from pursuing such a
cause of action—by suing the birth mother or any other party who
may be liable to him in tort.
¶59 Accordingly, this is not a case that implicates the substan-
tive open courts standard set forth in Berry and Laney. And Strick-
land has not briefed a procedural open courts claim. We reject
Strickland‘s argument for these reasons.
F. The Parental Kidnapping Prevention Act
¶60 Strickland‘s final claim arises under the Parental Kidnap-
ping Prevention Act (PKPA), 28 U.S.C. § 1738A. He cites this stat-
ute as somehow superseding the terms of the Utah Adoption Act
under the Supremacy Clause. But the PKPA is a full faith and
credit statute; it requires that a court of one state ―shall not exer-
cise jurisdiction in any proceeding for a custody or visitation de-
termination commenced during the pendency of a proceeding in a
court of another State where such court of that other State is exer-
cising jurisdiction consistently with the provisions‖ of the PKPA.
12 See Craftsman Builder’s Supply, Inc. v. Butler Mfg. Co., 1999 UT
18, 974 P.2d 1194 (upholding Berry over lengthy dissent by Justice
Zimmerman, an original supporter of Berry); Day v. State ex rel.
Utah Dep’t of Pub. Safety, 1999 UT 46, 980 P.2d 1171 (same); Laney,
2002 UT 79 (same, with Justice Wilkins and Associate Chief Justice
Durrant dissenting).
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Id. § 1738A(g). Here there is no proceeding pending in another
state, and thus no application for the PKPA.
G. Motions for Discovery and to Disqualify
¶61 Strickland‘s last ground for appeal is his challenge to the
district court‘s denial of his motions for discovery and to disquali-
fy opposing counsel. The discovery motion was aimed at identify-
ing additional factual support for Strickland‘s constitutional
claims. The disqualification motion asserted that opposing coun-
sel had failed to disclose to the adoption court various details con-
cerning the dismissal of Strickland‘s untimely paternity filing. We
affirm the district court‘s decision denying these motions.
¶62 The district court denied the discovery motion on the
ground that Strickland had no right to intervention and thus no
right to discovery. We agree with Strickland that that determina-
tion was circular. But we nonetheless affirm because we conclude
that the material that Strickland was seeking would have made no
difference to the resolution of his constitutional claims.
¶63 The disqualification motion was also rightly denied. As
with the discovery material, the material that Strickland accuses
opposing counsel of withholding would have made no difference
to the resolution of this case. We affirm the denial of this motion
on that basis.
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