Al-Bahadli v. LDS Fam. Servs.

----ooOoo----

Mahaoud Al-Bahadli,
Appellant,

v.

LDS Family Services
and Jill Lecheminant,
Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000605-CA

F I L E D
February 7, 2002 2002 UT App 34 -----

Third District, Salt Lake Department
The Honorable William B. Bohling

Attorneys:
Steven C. Russell, Salt Lake City, for Appellant
David M. McConkie and Merrill F. Nelson, Salt Lake City, for Appellees

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Before Judges Jackson, Bench, and Orme.

JACKSON, Presiding Judge:

Appellant challenges the district court's grant of summary judgment, which dismissed his complaint and concluded that he "has no rights, and is entitled to no relief, in relation to" the adoption of his biological child (Child). We affirm.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When reviewing summary judgment, we review the facts in the light most favorable to the losing party. Because summary judgment is granted as a matter of law, we review the trial court's ruling on legal issues for correctness. "'We determine only whether the trial court erred in applying the governing law and whether the trial court correctly held that there were no disputed issues of material fact.'"

Beltran v. Allan, 926 P.2d 892, 895 (Utah Ct. App. 1996) (citations omitted).

Appellant challenges the district court's application of Utah Code Ann. § 78-30-4.14 (1996).(1) Specifically, Appellant argues that the district court should have applied the "impossibility" exception when considering whether he complied with section 78-30-4.14. The "impossibility" exception allows a putative father to "'be deemed to have complied with [section 78-30-4.14]'" if he can show that it was impossible for him to comply "'prior to the statutory bar, through no fault of his own'" and that he later complied "'within a reasonable time after the baby's birth.'" In re Adoption of W., 904 P.2d 1113, 1118 (Utah Ct. App. 1995) (quoting Ellis v. Soc. Servs. Dept. of the Church of Jesus Christ of Latter-day Saints, 615 P.2d 1250, 1256 (Utah 1980)). Appellant contends that the district court should have concluded that "'impossibility' or lack of 'reasonable opportunity'" to comply with the statute, In re Adoption of Baby Boy Doe, 717 P.2d 686, 690 (Utah 1986), excuses his failure to comply because Child's biological mother "misled [Appellant] about her intentions to give up their child for adoption."(2)

Even assuming the "impossibility" exception applied, Appellant's challenge fails because, as the district court noted, even after learning of the adoption, he still did not comply with the statute as he is required to do "'within a reasonable time after the baby's birth.'"(3) Adoption of W., 904 P.2d at 1118 (citation omitted); accord Beltran, 926 P.2d at 896. "[T]he statutes demand strict compliance . . . and not even substantial compliance will suffice." Beltran, 926 P.2d at 896. Thus, even with the benefit of the "impossibility" exception, Appellant cannot successfully claim "lack of 'reasonable opportunity'" to comply with the statute.(4) Baby Boy Doe, 717 P.2d at 690.

Affirmed.
 
 

______________________________
Norman H. Jackson,
Presiding Judge -----

I CONCUR:
 
 

______________________________
Russell W. Bench, Judge

1. This section requires Appellant to strictly compl[y] with the [following] requirements[:]
. . . . (b) . . . [Appellant] shall have manifested a full commitment to his parental responsibilities by performing all of the acts described in this subsection prior to the time the mother executes her consent for adoption or relinquishes the child to a licensed child-placing agency. [He] shall: (i) initiate proceedings to establish paternity under Title 78, Chapter 45a, Uniform Act on Paternity, and file with that court a sworn affidavit stating that he is fully able and willing to have full custody of the child, setting forth his plans for care of the child, and agreeing to a court order of child support and the payment of expenses incurred in connection with the mother's pregnancy and the child's birth;

(ii) file notice of the commencement of paternity proceedings with the state registrar of vital statistics . . .; and

(iii) . . . [have] paid a fair and reasonable amount of the expenses incurred in connection with the mother's pregnancy and the child's birth . . . . Utah Code Ann. § 78-30-4.14(2) (1996) (emphasis added).

2. Our review of the record reveals no misrepresentation by the biological mother.

3. Nothing in the record indicates that Appellant: (1) filed a sworn affidavit stating that he is fully able and willing to have full custody of the child, setting forth his plans for care of the child, and agreeing to a court order of child support and the payment of expenses incurred in connection with the mother's pregnancy and the child's birth; Utah Code Ann. § 78-30-4.14(2)(b)(i) (1996), or (2) "paid a fair and reasonable amount of the expenses incurred in connection with the mother's pregnancy and the child's birth." Id. § 78-30-4.14(2)(b)(iii).

Moreover, Appellant filed his complaint about three weeks after Child's biological mother executed her consent for adoption and relinquished Child, and filed his notice with the Utah Department of Health more than a year after he became aware of the adoption. We cannot conclude Appellant attempted to comply with the statute "'within a reasonable time after the baby's birth.'" Adoption of W., 904 P.2d at 1118 (citation omitted).

4. Appellant also challenges the constitutionality of Utah Code Ann. § 78-30-4.15. However, he has not adequately briefed this issue. Thus, we decline to address it. See Utah R. App. P. 24(a)(9); State v. Thomas, 961 P.2d 299, 304-05 (Utah 1998); Christensen v. Munns, 812 P.2d 69, 72-73 (Utah Ct. App. 1991).

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ORME, Judge (dissenting):

I cannot agree that this case was properly decided on summary judgment. The facts of this case leave open the question of whether appellant was denied a reasonable opportunity to comply with the requirements of Utah Code Ann. § 78-30-4.14 (Supp. 1999) and justify at least an evidentiary hearing. As the Utah Supreme Court explained in In re Adoption of Baby Boy Doe, 717 P.2d 686 (Utah 1986), the statute becomes unconstitutional as applied when the cause of a birth father's failure to comply with the statute is his having been misled by the birth mother or the adoption agency regarding the possibility of his child being placed for adoption. See id. at 690-91.

As Chief Justice Hall explained in Swayne v. LDS Social Services, 795 P.2d 637 (Utah 1990) (plurality opinion), the Utah Supreme Court, in a series of prior cases, "rel[ied] on similar factors in determining whether it was impossible for a father to make a timely filing." Id. at 642. Chief Justice Hall further explained that the common denominator in these cases "is simply whether an unwed father was aware of the need to protect his parental rights." Id. The factors identified by Chief Justice Hall include: [(1)] whether the unwed father was a Utah resident; [(2)] whether he was aware of the mother's intent to place the child for adoption; [(3)] whether the parties involved were aware of the father's desire to rear the child; [(4)] whether the couple intended to marry or live together; [(5)] whether the father was absent at the time of birth; and [(6)] whether the father was misled concerning the need to protect, or prevented from asserting, his parental rights. Id.

We should apply these factors to the facts of this case, as viewed in the light most favorable to appellant. See Cook v. Zions First Nat'l Bank, 919 P.2d 56, 58 n.1 (Utah Ct. App.), cert. denied, 925 P.2d 963 (Utah 1996); White v. Blackburn, 787 P.2d 1315, 1316 (Utah Ct. App. 1990). According to appellant, he consistently made clear his desire to rear the child and was never told of any intention on the mother's part to place the child for adoption. Discussions between appellant and the child's mother included talk of marriage.(5) The father attended the birth, regularly visited the mother and child while they were hospitalized,(6) and purchased gifts for the baby. Given the limited record before us, it is at least possible that the discussions of marriage, coupled with the mother's mischaracterization of the focus of her prenatal classes and the thrust of the social worker's comments,(7) misled appellant and "alleviated any concern [he] might otherwise have had as to his need to protect his parental rights," leaving him with "no reason to believe an adoption would be attempted." Baby Boy Doe, 717 P.2d at 690. In Baby Boy Doe, the Supreme Court explained that "where a father does not know of the need to protect his rights, there is no 'reasonable opportunity' to assert or protect parental rights. In such a case, the operation of the statute fails to achieve the desired balance and raises serious due process concerns." Id. at 691.

Faced with this precedent and the facts of record, I am persuaded that summary judgment was inappropriate. As this court indicated in In re K.B.E., 740 P.2d 292 (Utah Ct. App. 1987), "the statute was 'not created to encourage a "race" for placement to cut off the rights of fathers who are identified and present.'" Id. at 296 (quoting Sanchez v. LDS Soc. Servs., 680 P.2d 753, 756 (Utah 1984) (Durham, J., dissenting)).

Appellant was undisputedly the father, and he was present during and following the birth. He hoped to marry the child's mother and was never told of any plan to have the baby placed for adoption. That much is clear, or at least it is clear when the facts are viewed in the light most favorable to appellant. It is also clear that the statutory scheme is designed to facilitate adoption at the behest of single mothers rather than to protect the rights of single fathers. And in this regard, its text unfortunately does not distinguish between fathers in a monogamous relationship who are led to believe mother, father, and baby will form a family unit, and ne'er-do-wells who have nothing to do with the mother after a casual fling that culminates in conception. That simplistic approach is, in my judgment, the genesis of the due process concerns identified in Baby Boy Doe and subsequent cases. Whether those concerns have been satisfied in this case should not have been decided summarily.(8) I would remand for an evidentiary hearing.
 
 
 

______________________________
Gregory K. Orme, Judge
 

1. At oral argument, counsel for appellant represented that the two did, in fact, eventually marry.

2. Because the baby was born prematurely, these visits extended over the course of several weeks.

3. While both appellant and LDS Family Services concede that a phone call was made by the social worker, they disagree about what was said. Appellant contends that, at a minimum, it was not made clear to him that an adoption of his child was about to take place.

4. I must agree with the majority that appellant, upon learning of the adoption, did not act as promptly as he might have to comply with the requirements of the statute. However, while his delay is indeed problematic, I am not prepared to say, given all the circumstances, that he failed to act "within a reasonable time" as a matter of law.