In re Baby Q.

This opinion is subject to revision before final
publication in the Pacific Reporter
2016 UT 29
IN THE
SUPREME COURT OF THE STATE OF UTAH
In the matter of the Adoption of
BABY Q.
________________________________________________
PHILLIP J. JAMES,
Appellant,
v.
D.Q. and S.Q.,
Appellees.
No. 20150143
Filed July 1, 2016
On Certification from the Court of Appeals
Second District, Farmington
The Honorable Robert J. Dale
No. 142700107
Attorneys:
Asa E. Kelley, Park City, for appellant
Troy L. Booher, Derek J. Williams, Julie J. Nelson,
Salt Lake City, for appellees
JUSTICE PEARCE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM, and JUSTICE HIMONAS joined.
JUSTICE PEARCE, opinion of the Court:
¶ 1 Phillip J. James, according to a voluntary acknowledgment of
paternity, is the biological father of Baby Q. (Child), a girl who has
now been adopted by D.Q. and S.Q. (Adoptive Parents). James
sought to intervene in the adoption proceeding, but the district court
denied his motion. The district court found that James had failed to
take the actions needed to preserve his ability to contest the adoption
In re BABY Q.
Opinion of the Court
within thirty days of receiving a prebirth notice informing him that
Child’s mother (Mother) intended to place Child for adoption. James
appealed from the district court’s order denying his intervention. On
April 7, 2016, we entered an order reversing the district court’s order
and remanding this matter for further proceedings. We now issue
this opinion explaining the rationale underlying our April 7 order.
BACKGROUND
¶ 2 James and Mother engaged in a relationship that resulted in
a pregnancy with an anticipated September 2014 due date. As early
as March 2014, Mother contacted LDS Family Services (LDSFS) to
explore an adoptive placement for Child. In June, Mother
participated in a phone conference with prospective adoptive
parents, their attorney, and the local LDSFS director. During the
telephone conference, the attendees discussed sending James a
prebirth notice of Mother’s intent to place Child for adoption,
pursuant to Utah Code section 78B-6-110.1 (the Prebirth Notice
Statute or the Statute). According to Mother, the prospective
adoptive parents were not comfortable placing their names on the
notice, so “[i]t was decided that it was to be issued with [Mother’s]
name on it.” On July 11, 2014, a process server personally delivered
the prebirth notice, titled “Notice of Adoption” (the Notice), to James
at his home.
¶ 3 The Notice informed James that Mother intended to place
Child for adoption and instructed him that if he wished to contest
the adoption he needed to “take steps to assume responsibility for
the child and to establish rights . . . within 30 days of the date you
received this notice.” The Notice identified the required steps as:
(1) initiating a paternity proceeding in district court; (2) filing an
affidavit outlining James’s ability to care for Child and his plans for
doing so; and (3) filing a notice of commencement of paternity
proceedings with the Utah Department of Health.
¶ 4 The Notice advised James that he “may lose all rights
relating to [Child],” including the right to withhold his consent to
Child’s adoption, if he did not take the steps within thirty days. The
Notice also advised James that he could consent to the adoption
within thirty days if he wished, that communications between James
and Mother (or anyone else) could not change James’s rights and
responsibilities “as indicated in this notice,” and that Mother was not
obligated to proceed with an adoption. Finally, the Notice indicated
that it was “provided to you by” Mother and listed Mother’s name,
address, and telephone number. Neither Mother nor anyone else
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signed the Notice. The Notice did not reference the Prebirth Notice
Statute nor any other provision of the Utah Code.
¶ 5 James immediately contacted Mother, who denied sending
the Notice. He also took the Notice to the Utah Department of Vital
Records, where an “adoption specialist” advised him that the Notice
was not a legal document because it was not signed, not notarized,
and not filed with a court. 1 The adoption specialist also informed
James that he had until twenty-four hours after Child was born to
preserve his parental rights.
¶ 6 On August 22, forty-two days after he received the Notice,
James filed a paternity action and affidavit with the district court. He
also telephoned the prospective adoptive parents to inform them
that he intended to contest the adoption. The prospective adoptive
parents decided that they would not proceed with the adoption.
¶ 7 At this point, according to James, he and Mother had
“meaningful discussions” about one or both of them raising Child.
Yet unbeknownst to James, Mother continued to search for
prospective parents to adopt Child. On August 28, Mother spoke
with Adoptive Parents for the first time. She did not tell James
because she did not want him to interfere. On September 4, again
unbeknownst to James, Adoptive Parents petitioned to adopt Child.
¶ 8 Mother gave birth to Child by induced delivery on
September 5, four days earlier than her originally scheduled
inducement date. That same day, unaware that Child had been born,
James filed a notice of paternity proceedings with the Department of
Health. Mother returned home with Child, and on September 7,
James arrived at Mother’s home to discover Child had been born.
Mother allowed James to spend time with Child. On September 11,
James and Mother executed and filed a voluntary declaration of
paternity naming James as Child’s father. On September 12, Mother,
without notifying James, relinquished her parental rights and
surrendered Child to Adoptive Parents.
¶ 9 James learned of the relinquishment on September 14. About
a week later, he filed a motion to intervene in Child’s adoption
proceeding. The district court denied James’s intervention motion,
reasoning that James had received notice under the Prebirth Notice
_____________________________________________________________
1 This appeal does not ask us to address the advice James alleges
he received from the Department of Vital Records.
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Opinion of the Court
Statute but had failed to take the required steps to pursue his rights
within the Statute’s thirty-day time period. The district court
concluded that James had therefore lost any right to contest Child’s
adoption. James appealed. We reversed the district court’s order and
remanded for further proceedings. We now explain the basis of our
decision.
ISSUES AND STANDARD OF REVIEW
¶ 10 We resolve this appeal based on James’s arguments that
the Notice he received did not meet the requirements of the Prebirth
Notice Statute.2 These arguments require us to interpret the Statute,
and they therefore present questions of law, which we review for
correctness. See 2 Ton Plumbing, L.L.C. v. Thorgaard, 2015 UT 29, ¶ 17,
345 P.3d 675.
ANALYSIS
¶ 11 The Utah Adoption Act (the Adoption Act or the Act)
governs Utah adoptions. See UTAH CODE §§ 78B-6-101 to -146. The
Act balances the interests of unmarried biological fathers, mothers,
children, adoptive parents, and other parties. See id. § 78B-6-102(3)
(“The Legislature finds that the rights and interests of all parties
affected by an adoption proceeding must be considered and
balanced in determining what constitutional protections and
processes are necessary and appropriate.”). Generally, the Act
provides that an unmarried biological father who fails to take certain
enumerated steps to substantiate his parental rights loses the ability
to contest the adoption of his child upon the mother’s
relinquishment of the child for adoption. See id. § 78B-6-121(3).
However, a mother’s relinquishment—and the resulting deadline for
the unmarried father’s actions—cannot occur until after the child is
born. Id. § 78B-6-125(1) (“A birth mother may not consent to the
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2 James’s appeal also raises multiple constitutional challenges to
the Prebirth Notice Statute. Because we resolve this appeal on
statutory interpretation grounds, we do not reach James’s
constitutional arguments. See World Peace Movement of Am. v.
Newspaper Agency Corp., 879 P.2d 253, 257 (Utah 1994) (“Although
the parties urge myriad constitutional claims and defenses upon us,
‘[i]t is a fundamental rule that this Court should avoid addressing
constitutional issues unless required to do so.’” (alteration in
original) (citation omitted)).
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adoption of her child or relinquish control or custody of her child
until at least 24 hours after the birth of her child.”).
¶ 12 In 2012, the Utah Legislature amended the Act to include
the Prebirth Notice Statute. See Amendments to Adoption Code, ch.
340, § 4, 2012 Utah Laws 1633, 1636–37. The Prebirth Notice Statute
allows an expectant mother, a child placement agency, or an attorney
representing either the mother or a prospective adoptive parent to
provide formal notice to an unmarried biological father that the
mother is considering an adoptive placement for the child. See UTAH
CODE § 78B-6-110.1(2). Upon receipt of statutory notice, the father
must take certain steps to substantiate his parental rights within
thirty days or lose the ability to contest an adoption. Id. § 78B-6-
110.1(4)–(5). The Prebirth Notice Statute is intended to increase the
certainty of the unborn child’s future by requiring the father to take
prompt steps to substantiate his parental relationship and by
precluding the father from subsequently interfering with an
adoption proceeding if he fails to comply with the Statute.
¶ 13 It is undisputed that James did not take the steps the
Prebirth Notice Statute requires within thirty days of receiving the
Notice. Indeed, the record reflects that although James appears to
have eventually complied with the statutory requirements, he did
not do so until after thirty days had elapsed. James did not file a
paternity action and affidavit until forty-two days after he received
the Notice, and he did not file notice with the Department of Health
for another two weeks after that. James would therefore have lost the
ability to contest Child’s adoption if the Notice triggered the Prebirth
Notice Statute’s thirty-day compliance period. See id.
¶ 14 James argues that the Notice did not trigger the Prebirth
Notice Statute’s thirty-day period, because the Notice did not
comply with the requirements the Statute imposes. Specifically,
James argues that the Notice did not come from Mother or any of the
other persons the Prebirth Notice Statute authorizes to provide
notice. James also argues that the Notice did not comply with the
Statute because it informed him that he “may,” rather than “shall,”
lose his parental rights if he did not take the required steps within
thirty days.
I. MOTHER, A STATUTORILY AUTHORIZED PARTY,
ISSUED THE NOTICE
¶ 15 James argues that the Notice was invalid because it had not
been sent by an individual authorized to give such notice under the
Prebirth Notice Statute. The district court ruled that Mother had
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issued the Notice because the Notice recited that it came from
Mother and Mother had participated in the conference call where it
was decided that the Notice would be provided in her name. James
nevertheless argues that the Notice did not come from Mother or any
other individual authorized under the Statute. We disagree.
¶ 16 The Prebirth Notice Statute provides,
Before the birth of a child, the following individuals
may notify a birth father of the child that the mother of
the child is considering an adoptive placement for the
child: (a) the child’s mother; (b) a licensed child placing
agency; (c) an attorney representing a prospective
adoptive parent of the child; or (d) an attorney
representing the mother of the child.
UTAH CODE § 78B-6-110.1(2). Any of the four named individuals can
provide effective notice if the notice identifies the person giving
notice and includes that person’s address and phone number. Id.
§ 78B-6-110.1(4).
¶ 17 Here, the Notice stated, “This notice has been provided to
you by [Mother] . . . .” The Notice also listed Mother’s address and
phone number. This is all the Statute requires to identify the
provenance of a notice. See UTAH CODE § 78B-6-110.1(4).
¶ 18 James testified by affidavit that the lack of additional
information caused him to question the Notice’s validity: “I was
unclear of what to do or how to address the Pre-Birth Notice because
the name on the top of the Notice was the private investigator that
served me. When I contacted [Mother], she told me she did not know
because she had not issued the Notice.” Mother also provided an
affidavit stating,
8. In June 2014, I had a conference call with [the
prospective adoptive parents, their counsel, and
LDSFS]. I was told that a Pre-Birth Notice could be
issued to [James]. The [prospective adoptive parents]
stated that they did not feel comfortable putting their
names on it. It was decided that it was to be issued
with my name on it.
9. I received a copy of the Pre-Birth Notice on July 29,
2014.
10. I did not sign the Pre-Birth Notice.
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11. I did not prepare or issue the Pre-Birth Notice. I was
told the Notice was to go out with my name on it. I did
not know the contents of the Pre-Birth Notice.
12. I did not find the private investigator who served
the Pre-Birth Notice, nor did I pay for his services.
Relying on Mother’s affidavit, James argues that Mother “did not
send [the Notice], authorize it or sign it,” and that Mother “denies
issuing it, seeing it or acknowledging what it is when asked about
it.”
¶ 19 The district court read Mother’s affidavit differently. The
district court found that Mother had agreed to give the Notice and
that the decision to issue the Notice in Mother’s name was made
with her “input and involvement.” For these reasons, and in light of
the plain language of the Notice identifying Mother as its source, the
district court concluded that the Notice came from Mother.
¶ 20 We agree with the district court. Although Mother’s
affidavit appears to have been carefully worded to downplay her
role, it does not disguise the fair inference that she consented to the
Notice being sent in her name. Mother conceded that she
participated in the telephone conversation wherein “[i]t was
decided” that the Notice would be provided in her name. She also
conceded that she was told the Notice would issue with her name on
it. Mother never testified that she objected to the Notice issuing
under her name. Nor did she testify that she had any qualms about
the plan developed at the meeting. It was reasonable for the district
court to infer that Mother had agreed to the Notice being issued in
her name and on her behalf.
¶ 21 Mother’s involvement satisfies the Prebirth Notice Statute’s
requirement that one of four enumerated parties “notify” the birth
father of the birth mother’s intention to adopt. See UTAH CODE
§ 78B-6-110.1(2). As long as a notice originates with one of the parties
authorized by the Statute and contains the required contact
information for that person, we see no statutory requirement that the
notice-provider be the person who drafts the notice, approves its
precise wording, or serves it on the birth father. See id.
§ 78B-6-110.1(2), (4).
¶ 22 James also suggests that the Prebirth Notice Statute
contains—or at least should contain—a requirement that the notice-
provider sign the notice. Although the Prebirth Notice Statute’s plain
language contains no such requirement, James points out that rule 11
of the Utah Rules of Civil Procedure requires pleadings, motions,
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and “other paper[s]” to be signed by either an attorney of record or
by an unrepresented party. See UTAH R. CIV. P. 11(a). Without a
signature, James argues, the Notice he received “does not even meet
the standards of foundation to be entered as a legal document or
evidence for any trial purpose.” James does not appear to be
suggesting that prebirth notices must qualify as court documents or
be admissible as evidence to be effective; rather, his concern seems to
be that unmarried biological fathers receive some assurance from the
face of a notice that it in fact has come from the person named as the
source of the notice. 3
¶ 23 This is a legitimate concern. And the Legislature could
have placed more formal requirements, including a signature
requirement, into the Prebirth Notice Statute. Indeed, it may have
even been advisable to add that requirement. However, the
Legislature did not do so, and we are not at liberty to insert a
substantive term into a statute. This is true even when we are
convinced that sound policy would support its inclusion. See Chris &
Dick’s Lumber & Hardware v. Tax Comm’n, 791 P.2d 511, 515 n.2 (Utah
1990) (“It is not for us to add the legislation that Congress
pretermitted.” (quoting United States v. Monia, 317 U.S. 424, 430
(1943))).
¶ 24 For these reasons, we hold that the Notice was not
rendered invalid by Mother’s failure to personally prepare and
arrange service of the document that was issued in her name. It is
enough that the Prebirth Notice Statute authorized Mother to
provide the Notice, which she agreed to the Notice going out under
her name, and that the Notice included her contact information as
the Statute required.
_____________________________________________________________
3 James also suggests that a signature requirement is necessary so
that notice recipients can identify and “seek a remedy” from the
sender. However, upon receipt of a notice under the Prebirth Notice
Statute, an unmarried biological father’s “remedy” derives from the
Statute and not from any interaction with or action against the
notice-provider.
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II. THE NOTICE DID NOT INCLUDE REQUIRED
INFORMATION CONCERNING THE CONSEQUENCES
OF THE BIRTH FATHER’S NONCOMPLIANCE
¶ 25 James also argues that the Notice was invalid because it
stated that he might—as opposed to would—lose certain rights
relating to Child, including any right to withhold consent to Child’s
adoption, if he did not comply with the Prebirth Notice Statute’s
requirements within the thirty-day period. We agree with James. We
also agree that James’s receipt of the defective Notice did not trigger
the running of the Statute’s thirty-day clock.
¶ 26 The Prebirth Notice Statute specifies what information a
valid notice must contain. It mandates that a notice “shall include
. . . the consequences for failure to comply with [the Statute’s
requirements], including that: (i) the birth father’s ability to assert
the right, if any, to consent or refuse to consent to the adoption is
irrevocably lost.” UTAH CODE § 78B-6-110.1(4)(d).
¶ 27 The Notice did not inform James that his right to withhold
consent to Child’s adoption “is irrevocably lost” if he fails to comply
with the Prebirth Notice Statute. Nor did it tell him that by failing to
comply, he “will lose the ability to assert the right to contest any
future adoption” and that he “will lose” the right to notice of the
adoption. Rather, the Notice listed the steps that the Statute requires
of birth fathers and then stated, “If you do not take these steps
within 30 days of receiving this notice you may lose all rights relating
to [Child]. This includes the right to consent or to withhold your
consent to the adoption . . . .” (Emphasis added.)
¶ 28 The district court concluded that the Notice “contained all
of the proper content and information required by the statute to be
in such notice.” This conclusion is incorrect. By informing James only
that he “may” lose his rights, the Notice did not include information
that the Prebirth Notice Statute requires—that James would lose his
rights. See UTAH CODE § 78B-6-110.1(4)(d).
¶ 29 The Statute can strip a birth father of his rights only if the
father is a “recipient of the notice described in Subsection (2)” of that
statute. Id. § 78B-6-110.1(5). The Statute provides that “[t]he notice
described in Subsection (2) shall include” certain information,
including the consequences for failing to comply with the Statute
within thirty days. Id. § 78B-6-110.1(4) (emphasis added). Without
the required information, a notice is not a “notice described in
Subsection (2)” and does not start the thirty-day clock for a birth
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father to secure his rights under the Statute. See id. § 78B-6-110.1(4),
(5).
¶ 30 Adoptive Parents argue that the Notice complies with the
Prebirth Notice Statute because the Statute “requires only that the
issuer inform the birth father of the risks of failing to perfect his
rights, but does not require any particular words to describe those
potential consequences.” Adoptive Parents misread the Statute. The
Statute does not contemplate “risks” or “potential consequences”;
instead, it limns definite, actual consequences, including important
rights being “irrevocably lost.” UTAH CODE § 78B-6-110.1(4)(d)(i).
¶ 31 We agree with Adoptive Parents that the Prebirth Notice
Statute does not mandate any particular verbiage. However, the
statutory requirements cannot be satisfied by substituting the
speculative “you may lose” for definite language such as “you will
lose.” The Prebirth Notice Statute is intended to provide certainty by
requiring a birth father to make a knowing choice to either pursue
his parental rights, or waive those rights and thereby facilitate the
mother’s announced intention to place the child for adoption. By
suggesting that the consequences of non-compliance with the Statute
were only possible instead of certain, the Notice failed to convey the
gravity of the situation to James in the stark terms that the
Legislature has mandated.
¶ 32 Adoptive Parents also argue that the Notice was factually
more accurate than the notice the Prebirth Notice Statute envisions
because there was a possibility that Mother might have elected not to
place Child for adoption. Even if we were to agree with Adoptive
Parents that more speculative wording could be characterized as
“more accurate” than that the Statute requires, the Notice would still
not satisfy the Statute’s express requirements. In enacting the Statute,
the Legislature created a mechanism to shorten the generally
applicable timeframe for a birth father to pursue his rights. Compare
id. § 78B-6-110.1(5) (requiring action by the biological father within
thirty days of receiving prebirth notice), with id. § 78B-6-121(3)
(requiring action by the biological father prior to the time the mother
executes her consent for adoption or relinquishes the child for
adoption). We presume that when enacting that mechanism, the
Legislature balanced the competing interests of birth fathers, birth
mothers, adoptive parents, and adopted children.
¶ 33 In striking this balance, the Legislature concluded that a
prebirth notice must contain certain information to give birth fathers
the ability to know and protect their interests. For example, a birth
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father must have the ability to determine from the face of a notice
whether it starts the statute’s thirty-day clock running or not. See id.
§ 78B-6-110.1(4). In exchange, the father is prohibited from relying on
any representations that the mother or third parties might make
about the notice. Id. § 78B-6-106(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.”). Similarly, the Statute requires that a birth
father be informed of the rights that he will lose if he fails to act
timely. Id. § 78B-6-110.1(4). The Legislature—perhaps in recognition
that words like “will lose” might light a fire that words like “may
lose” might not—requires a prebirth notice to inform a father that he
will lose the statutorily enumerated rights if he fails to comply with
the Statute.
¶ 34 Here, the Notice did not contain information that the
Prebirth Notice Statute expressly requires. The Notice therefore did
not start the thirty-day clock for James to pursue his rights.
CONCLUSION
¶ 35 The district court correctly concluded that the Notice came
from Mother for purposes of the Prebirth Notice Statute. However,
the district court erred in concluding that the Notice contained all of
the information the Statute requires. Because the Notice did not
contain all of the information the Statute mandates, the thirty-day
clock did not begin to tick and James’s failure to comply within that
time frame did not deprive him of his ability to contest Child’s
adoption. For these reasons, we reversed the district court’s order
denying James’s intervention motion and remanded to the district
court.
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