A Procedurally Defective Notice of Adoption does not Start the Time to Contest the Adoption
Phillip J. James and Mother became pregnant with an expected due date of September 2014. Around March 2014, Mother looked into an adoptive placement for the child by contacting LDS Family Services (LDSFS). A few months later, Mother had a phone conference with prospective adoptive parents, their attorney, and the local LDSFS director where they discussed sending James a prebirth notice of Mother’s intent to place the child for adoption, pursuant to Utah Code section 78B-6-110.1. The prospective adoptive parents were uncomfortable putting their names on the notice, so it was issued with Mother’s name and delivered to James on July 11, 2014.
The notice told James that Mother was going to place the child for adoption and that if he wants to contest the adoption he needs to take steps to assume responsibility for the child and that he needs to establish rights within 30 days of the date he received the notice. The notice also stated that if he does not take steps within 30 days, then he “may” lose all rights relating to the child, including the right to withhold his consent to the child’s adoption. Right after receiving this notice, James contacted Mother, but she denied sending the notice.
James filed a paternity action and affidavit with the district court 42 days after he received the notice. He also called the prospective adoptive parents to tell them that he will be contesting the adoption, which made them decide to not proceed with the adoption. Without telling James, Mother searched for prospective parents again and spoke with them for the first time on August 28. Again without James knowing, the adoptive parents petitioned to adopt the child on September 4. The next day the child was born, which was 4 days before the original scheduled date. James was unaware that his child was born, so the same day he filed a notice of paternity proceedings. A week later, Mother relinquished her parental rights and surrendered the child to the adoptive parents, again without informing James. Shortly thereafter, James filed a motion to intervene in the child’s adoption proceeding, which he was denied because he failed to take the required steps to pursue his rights within the statute’s time period. James appealed, and the Supreme Court of Utah reversed the district court’s order and remanded for further proceedings.
The Utah Adoption Act governs Utah adoptions; it generally provides than an unmarried, biological father who fails to take certain steps to substantiate his parental rights loses the ability to contest the adoption. See Utah Code §§ 78B-6-101 to -146. This law also states that before the birth of a child, the child’s mother, a licensed child placing agency, an attorney representing a prospective adoptive parent, or an attorney representing the mother of the child may notify a birth father that the mother is considering an adoptive placement for the child. Any of the above listed individuals can provide effective notice if the notice includes the identification of the person giving notice and includes their address and phone number. In this case, the notice said it was provided by Mother and listed her address and phone number. The district court concluded that the notice came from mother because she had agreed to give the notice and the decision to issue the notice in her name was made with her input and involvement.
James made the argument that the Prebirth Notice Statute contains or should contain a requirement that the notice-provider sign the notice. The Court concluded that his concern seems to be that unmarried biological fathers receive assurance on the face of the notice that it is actually from the person named on the notice. This is a legitimate concern, but the Legislature did not put a signature requirement into the Statute, and the Court was not at liberty to insert such a term into a statute. In addition, James argued that the notice was invalid because it said he might, as opposed to would, lose certain rights if he did not comply with the Statute’s requirements within the 30-day period. The Court agreed, saying that the notice failed to convey the gravity of the situation to James in the clear terms of the statute by suggesting that the consequences of non-compliance were only possible rather than certain.
In sum, the notice did come from Mother, but it did not contain information that the Prebirth Notice Statute expressly requires. Therefore, the notice did not start the 30-day clock for James, and he was not deprived of his ability to contest his child’s adoption.