O'DEA v. Olea

DURHAM, Chief Justice,

dissenting:

1 48 I respectfully dissent.

£49 The majority opinion concedes that "[bly placing a telephone call to Mr. O'Dea, Ms. Olea did not create a qualifying cireum-stance." Supra 188 (emphasis added). The opinion also points out that the trial court and the parties "assumed" that Ms. Olea was "residing on a temporary basis in Utah" when she made the call to Mr. O'Dea. The record does not reflect any facts, other than the telephone call, made on the very day Ms. Olea gave birth, to support the conclusion that a qualifying cireumstance actually existed. I assume that a one- to three-day hospital stay in Utah, for the sole purpose of giving birth and relinquishing an infant for adoption, was not what the legislature intended by "resided, on a permanent or temporary basis, in the state of Utah." See Utah Code Ann. § 78-30-4.14(10)(a) (Supp.2006). I further believe there is a legal distinction between the concept of "residence" and that of a "visit" or brief "stay." Absent such a distinction, Utah risks becoming a magnet for those seeking to unfairly eut off opportunities for biological fathers to assert their rights to connection with their children. Not every unmarried biological father is indifferent to or unworthy of such connections. Many would marry the mothers of their children if they could, and many would make suitable and loving parents.

$50 Thus, while I do not necessarily disagree with the conclusion that Mr. O'Dea had "sufficient notice" under our statute, I do conclude that the record in this case is entirely insufficient to establish that the qualifying cireumstance of residence actually existed. I would, therefore, reverse and remand for an evidentiary hearing on that question.

. _ T51 Justice PARRISH concurs in Chief Justice DURHAM'S dissenting opinion.