3 Ways for Unwed Biological Father to Establish Paternity

In Re: R.M., L.M. v. J.B and A.B., 2013 UT App 27, Utah Court of Appeals, January 31, 2013

L.M. is the biological Father of R.M. He filed a voluntary declaration of paternity signed by Mother with the State Office of Vital Statistics.  Mother married J.B. and J.B. filed a Petition for adoption. The adoption was granted.  Father motion to set aside the Decree of Adoption was granted because Father was not provided notice.  The trial court later found that Father’s filing of a declaration of paternity was insufficient to establish his right to without consent to the adoption.  Trial Court allowed the interlocutory appeal.

The Court of Appeals found that simply because a party may fall into more than one category in U.C.A. 78B-6-120(1), does not mean that the person must follow all the requirements of each category he falls.  (e.g. An unwed biological father does not have to file a declaration of paternity and also strictly comply with U.C.A. §78B-6-121(1)(d)-(f)).

The Court found that there are three ways for an unwed biological father to establish paternity and be entitled to consent to adoption: (1) File a voluntary declaration (2) be adjudicated as the child’s father, or (3) strictly comply with U.C.A. §78B-6-121(1)(d)-(f).

The Court made a special note that since

In this case, Father filed a declaration of paternity and is entitled to withhold consent.  Reversed and Remanded.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/rm006013113.pdf

Unwed Biological Father Cannot Be Held Responsible for Negligence of State Agency.

In re: Baby T, R.C.A. v. A.O.L., 2012 UT 78, Utah Supreme Court, November 23, 2012

Shaud submitted a paternity action with the State Office of Vital Statistics 5 days prior to Mother’s relinquishment, however his documents were not filed by the clerk until 45 minutes after Mother relinquished the child for adoption.  Shaud was found by the trial court not to have fully complied with Utah law §78B-6-121 because the statute places on the unwed biological Father the who responsibility and requires him to be responsible for third parties. and was therefore denied the opportunity to withhold consent and intervene in the adoption action of Baby Girl T.  Shaud appeals.

The Supreme Court found that the Statute as Applied to Shaud violates his Constitutional right to Due Process.  Because Shaud had no control of the documents after they were filed the Supreme Court found that his documents should be deemed filed at the time there were sent to the Office of Vital Statistics because at that point Shaud had completed with all that he could do to comply with Utah Code §78B-6-121.

Reversed and Remanded.

Justice Lee dissents arguing that the Due Process argument was not properly preserved.

Full opinion available at:  http://www.utcourts.gov/opinions/supopin/BabyGirlT1278112312.pdf

Default Divorce Decree ≠ Adjudication of Paternity and If Set Aside Also Sets Aside Paternity Finding

Reller v. Reller, Intervenor Argenziano, 2012 UT App 323, Utah Court of Appeals, November 16, 2012

Argenziano fathered Wife’s child.  Wife divorced Husband by default decree in which Wife alleged that Husband was the father.  Nine months after the default decree was entered, Husband filed a Petition to Modify.  Wife responded, and for the first time alleged that Husband was not the father of the minor child.   

The parties stipulated to set aside the Decree in regards to the minor child and Wife moved to join Argenziano.  Argenziano intervened and moved to dismiss the order setting aside alleging that Husband had already been adjudicated as the father.  The Court denied the motion and ordered Argenziano to undergo genetic testing.  Argenziano was shown to be the, Father.  Argenziano appealed arguing that because Husband had already been adjudicated Father, the parties could not now challenge the adjudication. See U.C.A. §78B-15-607(1)(a).

The Court of Appeals affirmed the trial court decision and agreed that a default decree once set aside is not an adjudication.  They further found that because Argenziano was not a party in the Divorce , he has no standing to challenge the setting aside of the Decree because he was not a party to the action. 

Affirmed.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/reller111612.pdf

Unwed Father’s Defective Paternity Action Cannot be Amended After Mother’s Relinquishment

DonJuan v. McDermott, 2011 UT 72, Utah Supreme Court November 22, 2011

DonJuan an unwed father of filed a paternity action in Utah prior to the birth of his child.  Father failed to include a sworn statement in compliance with Utah Code 78B-6-121(3) as required by 78B-6-120.   78B-6-120 also requires strict compliance with the requirements.  When DonJuan was made aware of the defect, he filed an amended petition.  The trial court dismissed the action.  DonJuan appealed.  The Court of Appeals certified the matter to the Supreme Court. 

The Supreme Court found that in spite of DonJuan’s near completion of all the statutory requirements (filed paternity action, filed with vital statistics, even filed in Georgia where the parties were living prior to the child’s birth), DonJuan failed to strictly comply, his pleadings did not include a sworn statement attesting to his ability and willingness and plans to have custody and provide for the minor child.  Because he failed to include such statements, his affidavit did not strictly comply and was properly dismissed.  PKPA and constitutional claims were not preserved in the trial court.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/Donjuan112211.pdf

Two Month Relationship with Biological Child is Insufficient for Constitutional Protection

In Re Adoption of T.B.

T.M. v. B.B. & S.B., 2010 UT 42, (Utah Supreme Court May 14, 2010).

From birth, unwed biological father, T.M. (Father) maintained a relationship with his daughter.  He offered to pay expenses for the pregnancy, delivery, and had an informal agreement with Mother regarding care and custody of their daughter.  Prior to Mother’s relinquishment of parental rights to her parents, Father filed a Paternity action and filed a motion to set aside the adoption decree in the adoption case.  The paternity action was consolidated with the adoption action, and his motion to set aside and his petition for paternity were denied.  Father appealed. 

The Supreme Court found that while Father made several steps toward obtaining a right to withhold consent, it was not enough.  He failed to strictly comply with the statute; and his relationship, however regular and important to the child, was insufficient for full blown constitutional protection.  The Supreme Court stated that Father should have complied with strictly the statute.  He had not only the 50 days after Daughter’s birth to comply, but also had the time during the pregnancy.  Because he did not strictly comply, he has no right to withhold consent. Affirmed.

Dissent: Justice Nehring joined by the Chief Justice dissented finding that his relationship with Daughter was sufficient for constitutional protection.  Father did all he could

Special Note: 3-2 Decision

Full Decision available at http://www.utcourts.gov/opinions/supopin/TB051410.pdf

Unwed Biological Fathers Must Strictly Comply With the Statute to Be Entitled to Contest an Adoption

E.G. and N.G. v. C.C.D., 2010 UT App. 114, (Utah Court of Appeals, May 6, 2010).

C.C.D. challenges the adoption of his biological daughter, which took place without his consent.  The trial court found that C.C.D. did not strictly comply with Utah Code § 78B-6-121 because he failed to plan what he would do if he was deported.  The Court Appeals found that when strict compliance with the statute is required, the trial court shall not require more than the statute, therefore requiring a contingency plan for deportation was in error.  However, Because C.C.D. did not agree to pay child support in his affidavit he did not strictly comply with that provision of the statute.  Because of this failure, the Court Affirmed the trial court’s denial.  The Court also noted C.C.D. failed to properly raise and preserve the constitutional claims raised on appeal.

DISSENT: Judge Thorne opined that C.C.D. did strictly comply with the statute by agreeing to “assist Mother in taking responsibility for the unborn child, and to help mother with expenses.”  Judge Thorne also expressed concerns about the current policies expressed by the statute to divest unwed biological fathers of parental rights with very little due process and strict compliance. 

Full Decision available at http://www.utcourts.gov/opinions/appopin/babygirl101050610.pdf