Thurnwald v. A.E.

1 See Utah Code Ann. §§ 78-30-4.13(3)(a), -4.14(6) (Supp.
2006); accord id. § 78-30-4.13(3)(a) (Supp. 2004), amended by ch.
137, § 6 & ch. 150, § 5, 2005 Utah Laws 894-96, 1017-18; Utah
Code Ann. § 78-30-4.14(2)(b) (Supp. 2004), repealed and reenacted
by ch. 186, § 3, 2006 Utah Laws 835-37.
2 Utah Code Ann. §§ 78-30-4.13(3)(d), -4.14(6) (Supp. 2006);
(continued...)
2007 UT 38
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Nikolas L. Thurnwald, 	No. 20050721
Plaintiff and Appellant,
v.
F I L E D
A.E.,
Defendant and Appellee. 	May 8, 2007
---
Second District, Farmington
The Honorable Rodney S. Page
No. 044701480
Attorneys: 	Michael J. Boyle, Daniel S. Drage, Ogden, for
plaintiff
David M. McConkie, David J. Hardy, Salt Lake City,
for defendant
---
On Certification from the Utah Court of Appeals
DURRANT, Justice:
INTRODUCTION
¶1 	By statute, an unwed father must, in order to preserve
his paternal rights, file a paternity petition in court and
register a notice of that petition with the Department of
Health. 1 	These documents may be filed before the child’s birth,
but must be filed before the mother consents to adoption or
relinquishes the child to an adoption agency. 2 	The mother is

2(...continued)
accord id. §§ 78-30-4.13(3)(a), -4.14(2)(b) (Supp. 2004).
3 Id. § 78-30-4.19(1) (Supp. 2006).
No. 20050721 	2
required to wait twenty-four hours after the child’s birth before
consenting to adoption or relinquishing the child. 3 	Thus, the
typical unwed father is allowed a period that extends until
twenty-four hours following the child’s birth to file the
requisite petition and to register a notice--or risk losing all
rights to the child.
¶2 	The question posed in this case is whether the period
provided by statute in which unwed fathers may preserve their
rights by filing a paternity action and registering notice should
be enlarged when it expires on a weekend or holiday. 	More
specifically, the question is whether rule 6 of the Utah Rules of
Civil Procedure applies to enlarge these statutory deadlines. 	In
this case, Nikolas Thurnwald did not file his paternity petition
and register notice prior to his child’s premature birth on
Saturday morning of Labor Day weekend, and he was thereafter
unable to file until the next Tuesday because the courts and
state offices were closed. 	Meanwhile, the mother, A.E.,
relinquished their child to L.D.S. Family Services for adoption
on Sunday morning, at the expiration of the twenty-four-hour
waiting period. 	Thurnwald’s paternity petition was dismissed by
the district court because he had not filed his petition and
registered with the state prior to A.E.’s relinquishment.
Thurnwald argues on appeal that we should apply rule 6 and deem
his petition timely.
¶3 	This case presents us with two alternatives for
interpreting the statutes: (1) we could conclude, as did the
district court, that the twenty-four-hour postbirth period is
designed solely for the benefit of the mother and that the unwed
father’s obligation is tied in all instances to the mother’s
relinquishment--not to any time period to which rule 6 applies;
or (2) we could conclude that the effect of the statutes is to
create a minimum filing period extending to twenty-four hours
after the child’s birth in which the unwed father has a right to
file and register, and that this period is subject to extension
under rule 6.
¶4 	We hold that the first of these two alternatives, the
one selected by the district court, is unconstitutional because
it denies unwed fathers a postbirth time period in which to file
and register if the birth falls on a weekend or holiday. 	When
faced with two plausible interpretations of a statute, one

4 Johnson v. Hermes Assocs., Ltd., 2005 UT 82, ¶ 2, 128 P.3d
1151 (“When reviewing a rule 56(c) motion for summary judgment,
we recite the facts in the light most favorable to the non-moving
party.”).
3 	No. 20050721
constitutional and the other not, we are obligated to select the
constitutional interpretation. 	Accordingly, we hold that rule 6
applies to enlarge the filing period until the end of the next
business day in cases where the unwed father would not otherwise
receive a full business day to file postbirth because part or all
of the twenty-four-hour period falls on a holiday or weekend.
BACKGROUND
¶5 	The district court dismissed Thurnwald’s petition after
granting summary judgment against him; so we recite the facts in
the light most favorable to Thurnwald. 4
¶6 	Thurnwald and A.E. were involved in a romantic
relationship for more than three years, and they lived together
from August 2003 to April 2004. 	They were living together in
Davis County in early 2004 when A.E. became pregnant with their
child. 	Thurnwald and A.E. initially discussed marriage and
continued to live together. 	But in April 2004, A.E. moved out
and went to live with her grandparents. 	During most of the
pregnancy, A.E. was covered by her grandmother’s health
insurance.
¶7 	After A.E. moved out, she and Thurnwald continued to
date. 	They also had discussions about how to best prepare for
the birth of their child. 	About a month after A.E. went to live
with her grandmother, Thurnwald and A.E. agreed that Thurnwald
should move to Fruitland to work with his grandfather’s company
so he would have better working hours and be better able to
afford to buy a house and support the child. 	In accordance with
this plan, Thurnwald moved to Fruitland to start working and find
a place to live. 	While there, he talked with A.E. on the phone
daily and visited on the weekends. 	Approximately three weeks
later, A.E. decided that she did not want to move to Fruitland;
so Thurnwald moved back to Davis County.
¶8 	The parties also discussed raising the child together
and moving in with Thurnwald’s parents. 	About a month before the
child’s birth, they discussed Thurnwald joining the military to
provide a steady job and insurance for the family. 	And they
discussed purchasing family insurance.

No. 20050721 	4
¶9 	During A.E.’s pregnancy, Thurnwald went to all but one
of her doctor appointments. 	He went shopping with A.E., and
together they purchased several outfits for the baby. 	Thurnwald
also purchased a car seat, bassinet, crib, diaper bag, diapers,
and some blankets.
¶10 	On approximately August 17, 2004, A.E. told Thurnwald
that, with her grandmother’s encouragement, she had gone to an
appointment at L.D.S. Family Services to talk about adoption.
The next day, Thurnwald and A.E. went to the L.D.S. Family
Services office along with Thurnwald’s mother. 	Thurnwald was
told at that meeting that nothing was finalized but that A.E. had
signed papers stating that L.D.S. Family Services would take care
of the baby’s birth if A.E. decided to give the baby up for
adoption. 	The representative told Thurnwald and his mother to
stop pressuring A.E. and let her make her own decision.
¶11 	After the meeting at L.D.S. Family Services, A.E. told
Thurnwald that she did not want to give the baby up for adoption
and that he did not have anything to worry about. 	Nonetheless,
between August 18 and the child’s birth, Thurnwald’s mother made
several calls on Thurnwald’s behalf to determine his rights
regarding the child, including calls to a lawyer and to the
Department of Health. 	The Department of Health told them to get
a lawyer if they thought the baby might be placed for adoption.
The lawyer told them he would look into it and get back to them.
¶12 	On August 21, approximately two weeks before the
child’s birth, Thurnwald and A.E. together attended a baby shower
for the child and received gifts to help care for a newborn.
Approximately two days before the child’s birth, Thurnwald and
A.E. talked about selling his car and getting a car more suitable
for the child.
¶13 	On Saturday, September 4, 2004, A.E. went into
premature labor. 	The child was born that day at 9:24 a.m. in
Layton, Utah. 	Neither A.E. nor her family notified Thurnwald.
¶14 	Thurnwald found out about the birth from one of A.E.’s
co-workers at approximately 10:30 a.m. that same day when he
called A.E.’s workplace to see if she wanted to go with him to a
movie that night. 	Upon hearing that A.E. had given birth,
Thurnwald called A.E. at the hospital. 	She told him that she was
giving their child up for adoption. 	Thurnwald left work
immediately and drove to the hospital. 	When he got there, A.E.
refused to see him. 	Hospital personnel told Thurnwald that A.E.
had registered as a “silent” patient and that he could not visit
or speak with her or the child.

5 Fericks v. Lucy Ann Soffe Trust, 2004 UT 85, ¶ 10, 100
P.3d 1200.
5 	No. 20050721
¶15 	That same day, Thurnwald contacted his lawyer. 	But
Thurnwald was unable to file the required paternity petition with
the court and register with the Department of Health on Sunday or
Monday because it was Labor Day weekend and state offices and
courts were closed. 	Instead, he filed a paternity petition with
the court on Tuesday, September 7, at 12:05 p.m., and filed a
notice with the registrar of vital statistics on the same day.
In conjunction with the petition for paternity, he also filed an
Order to Show Cause to stop any adoption proceedings.
¶16 	In the meantime, A.E. waited twenty-four hours as
required by statute and then, on Sunday morning, relinquished
custody of the child to L.D.S. Family Services for adoptive
placement.
¶17 	At a hearing on the paternity petition, the parties
agreed to continue the matter based on an agreement with L.D.S.
Family Services that it would not finalize the adoption until
this matter was concluded. 	Thereafter, on July 22, 2005, the
district court granted summary judgment against Thurnwald because
he did not file his paternity petition and notice before A.E.’s
relinquishment. 	The district court concluded that, because it
was not “impossible for him to comply with the filing
requirements of the statute,” Thurnwald’s right to due process
was not violated. 	The district court then dismissed the
paternity petition in an order dated August 17, 2005. 	Thurnwald
originally appealed this case to us, but we transferred it to the
court of appeals because we lacked original appellate
jurisdiction over the case. 	After the parties filed their
appellate briefs, the court of appeals certified this case back
to us. 	We have jurisdiction pursuant to Utah Code section
78-2-2(3)(b).
STANDARD OF REVIEW
¶18 	Because Thurnwald appeals from the district court’s
grant of summary judgment, this case presents only questions of
law that we review for correctness, “giv[ing] no deference to the
district court’s legal decisions.” 5

6 Some of the relevant adoption statutes have been amended
since 2004 when Thurnwald filed his petition for paternity. 	We
cite the current statutes, but also reference the statutes then
in effect. 	Unless otherwise noted, the amended statutes contain
only organizational and stylistic changes, and have the same
practical effect as those in effect in 2004.
7 Utah Code Ann. §§ 78-30-4.13(3)(a), -4.14(6) (Supp. 2006);
accord id. § 78-30-4.13(3)(a) (Supp. 2004), amended by ch. 137,
§ 6 & ch. 150, § 5, 2005 Utah Laws 894-96, 1017-18; Utah Code
Ann. § 78-30-4.14(2)(b) (Supp. 2004), repealed and reenacted by
ch. 186, § 3, 2006 Utah Laws 835-37.
The current version of section 78-30-4.13(3) reads as
follows:
(a) In order to preserve any right to notice
and consent, an unmarried biological father
may, consistent with Subsection 3(d):
(i) initiate proceedings to establish
paternity . . . ; and
(ii) file a notice of the initiation of
the proceedings described in Subsection
(3)(a)(i) with the state registrar of
vital statistics within the Department
of Health.
. . . .
(d) The action and notice described in
Subsection (3)(a):
(i) may be filed before or after the
child’s birth; and
(ii) shall be filed prior to the
mother’s:
(A) execution of consent to
adoption of the child; or
(B) relinquishment of the child for
adoption.
The predecessor of this section in effect in 2004 when Thurnwald
filed his paternity petition reads as follows:
(3)(a) In order to preserve any right to
notice and consent, an unmarried biological
father may initiate proceedings to establish
(continued...)
No. 20050721 	6
ANALYSIS
¶19 	Utah’s adoption statutes 6 require unwed fathers who
desire to preserve their paternal rights to both file a paternity
petition in court and register a notice of that petition with the
state registrar of vital statistics in the Department of Health. 7

7 (...continued)
paternity . . . and file a notice of the
initiation of those proceedings with the
state registrar of vital statistics within
the Department of Health prior to the
mother’s execution of consent or her
relinquishment to an agency. 	That action and
notice may also be filed prior to the child’s
birth.
Utah Code Ann. § 78-30-4.13(3)(a) (Supp. 2004).
Thurnwald cites the 2004 version of this statute in his
brief; A.E. cites the 2006 version in hers. 	Neither party
addresses whether the changes in this statute are relevant to our
analysis. 	We therefore assume that the parties agree that the
statute in effect in 2004 and the current statute require the
same actions of unwed fathers who wish to establish paternity to
a child.
8 Utah Code Ann. §§ 78-30-4.13(3)(d), -4.14(6) (Supp. 2006);
accord id. §§ 78-30-4.13(3)(a), -4.14(2)(b) (Supp. 2004).
9 Id. § 78-30-4.19(1) (Supp. 2006).
10 Id. § 78-30-4.14(11); accord id. § 78-30-4.14(5) (Supp.
2004).
11 Id. § 78-30-4.14(11) (Supp. 2006); accord id.
§ 78-30-4.14(5) (Supp. 2004).
7 	No. 20050721
Both of these documents must be filed prior to either the birth
mother’s consent to adoption or her relinquishment of the child
to an adoption agency, 8 but the mother may not consent “until at
least 24 hours after the birth of her child.” 9 	The unwed
father’s strict compliance with the statute is mandated. 10 	The
consequence of failing to timely file a paternity petition and
register is the loss of “any right in relation to the child,”
including the right to notice of adoption proceedings and the
right to consent or withhold consent to the child’s adoption. 11
¶20 	In effect, the adoption statutes give an unwed father
until twenty-four hours after the birth of his child to file a
paternity petition and register--or risk losing all rights to his
child. 	After the twenty-four-hour postbirth waiting period, the
birth mother may consent to adoption or may relinquish the child
to the custody of an adoption agency at any time and in so doing
immediately deprive the father of any rights to the child.

12 Utah R. Civ. P. 6.
No. 20050721 	8
¶21 	Thurnwald argues that because the twenty-four-hour
postbirth period expired on a holiday weekend, rendering him
unable to preserve his paternal rights after the birth of the
child, the district court should have applied rule 6 of the Utah
Rules of Civil Procedure to enlarge the time for filing to the
end of the next business day after the child’s birth. 	Rule 6
provides:
In computing any period of time prescribed or
allowed by . . . any applicable statute,
. . . [t]he last day of the period so
computed shall be included, unless it is a
Saturday, a Sunday, or a legal holiday, in
which event the period runs until the end of
the next day which is not a Saturday, a
Sunday, or a legal holiday. 12
If rule 6 applies, Thurnwald argues, his petition was timely
because it was filed before the end of the first full business
day after his child’s birth. 	Further, Thurnwald asserts that if
rule 6 does not apply, the statutes unconstitutionally deprive
him of his right to due process.
¶22 	On the other hand, A.E. argues that the twenty-four-
hour waiting period is intended to benefit the birth mother, not
the unwed father, and that rule 6 cannot be used to enlarge the
time for filing because the relevant statutory deadline is
ultimately the time of the mother’s consent or relinquishment.
According to A.E., the statute governing the time period for
filing a paternity petition “reveals an unambiguous legislative
intent to require that unmarried biological fathers demonstrate a
commitment to parenthood prior to a mother’s relinquishment.”
¶23 	In sum, we are presented with two alternative
interpretations of the statutes controlling fathers’ parental
rights: (1) that the twenty-four-hour postbirth period is
designed solely for the benefit of the mother and that the unwed
father’s filing period is tied in all instances to the mother’s
relinquishment, so that rule 6 is inapplicable; or (2) that the
statutes create a minimum filing period that extends to twenty-
four hours after the child’s birth and may be enlarged in
accordance with rule 6 of the Utah Rules of Civil Procedure if
the last day of the period occurs on a weekend or holiday.
¶24 	The district court adopted the first interpretation in
granting summary judgment against Thurnwald. 	We hold, however,

13 Lehr v. Robertson, 463 U.S. 248, 261 & n.17 (1983)
(alteration in original) (internal quotation marks omitted);
accord In re adoption of B.B.D., 1999 UT 70, ¶ 11, 984 P.2d 967.
14 463 U.S. 248.
15 Id. at 262.
9 	No. 20050721
that application of the statutes in accordance with the district
court’s interpretation is unconstitutional because it would
prematurely terminate an unwed father’s opportunity to assert
paternity when the child’s birth occurs on a weekend or holiday.
We first discuss the due process rights of unwed fathers and the
constitutionality of Utah’s adoption statutes, holding that unwed
fathers cannot be denied a postbirth filing opportunity. 	We then
address rule 6 of the Utah Rules of Civil Procedure and determine
that it can be used to enlarge the deadline for filing when the
twenty-four-hour postbirth period falls on a weekend or holiday.
I. 	UTAH’S STATUTES VIOLATE DUE PROCESS IF THEY ARE INTERPRETED
TO DEPRIVE UNWED FATHERS OF CHILDREN BORN ON WEEKENDS AND
HOLIDAYS OF A POSTBIRTH OPPORTUNITY TO PRESERVE PATERNAL RIGHTS
¶25 	Under both federal and state law, an unwed biological
father has an inchoate interest in a parental relationship with
his child that acquires full constitutional protection only when
he “demonstrates a full commitment to the responsibilities of
parenthood by [coming] forward to participate in the rearing of
his child.” 13 	As explained by the United States Supreme Court in
Lehr v. Robertson,14
The significance of the biological connection
is that it offers the natural father an
opportunity that no other male possesses to
develop a relationship with his offspring.
If he grasps that opportunity and accepts
some measure of responsibility for the
child’s future, he may enjoy the blessings of
the parent-child relationship and make
uniquely valuable contributions to the
child’s development. 	If he fails to do so,
the Federal Constitution will not
automatically compel a State to listen to his
opinion of where the child’s best interests
lie. 15
¶26 	In Lehr, the United States Supreme Court recognized
that individual states may define when an unwed father has

16 Id. at 263-65.
17 See, e.g., Swayne v. L.D.S. Social Servs., 670 F. Supp.
1537, 1541 (D. Utah 1987) (noting that “[s]ome courts and
commentators have determined that the potential interest
recognized in Lehr may require greater constitutional protection
if it is asserted, as in this case, at or near the time of birth
rather than after a significant lapse of time as in Lehr,” but
holding that “[t]hat question need not be resolved [here]”); In
re Steve B.D., 730 P.2d 942, 945 (Idaho 1986) (“Lehr indicated
both that the state may not deny due process and equal protection
to unwed fathers who enjoyed established relationships with their
children, and that the state may not deny unwed fathers the
opportunity to establish such relations--what the Court described
as ‘the inchoate interest in establishing a relationship with
[the child] . . . .’ 	Lehr establishes no measure of time
constituting an adequate opportunity. 	However, because of a
child’s urgent need for permanence and stability, the unwed
father must act quickly . . . .” (quoting Lehr, 463 U.S. at 262-
65)); In re X., 559 N.E.2d 418, 424 (N.Y. Ct. App. 1990)
(considering whether unwed fathers must ever be accorded “the
full measure of constitutional protection--the right to a
continued parental relationship absent a finding of unfitness--
. . . where a child is placed for adoption before any real
relationship can exist,” and concluding as a matter of federal
law “that such an interest must be recognized in appropriate
circumstances”).
No. 20050721 	10
grasped that opportunity. 	It upheld the constitutionality of New
York’s paternity statute against a challenge by an unwed father
of a two-year-old who had failed in the two years since his
child’s birth to legally claim his paternity by mailing a
postcard to the state’s registry. 16
¶27 	The United States Supreme Court has not, however,
determined the rights of an unwed father of a newborn child or
considered whether the United States Constitution places
additional restrictions on the laws a state may enact to
terminate unwed fathers’ opportunities to assert their rights to
newborns. 	Some courts have interpreted Lehr to herald greater
protection of the father’s opportunity interest in cases
involving newborns, reasoning that in those cases the unwed
father has not yet had the opportunity to fully demonstrate the
level of his commitment to the child. 17

18 681 P.2d 199 (Utah 1984).
19 Id. at 206.
20 Id.
21 Id. at 206-07.
22 Utah Code Ann. § 78-30-4(3) (Supp. 1983), repealed by
Adoption Act Amendments, ch. 245, § 24, 1990 Utah Laws 1173,
1178.
23 Utah Code Ann. § 78-30-4(3)(b).
24 Id.
25 Swayne v. L.D.S. Social Servs., 795 P.2d 637, 641 (Utah
1990).
11 	No. 20050721
¶28 	In Wells v. Children’s Aid Society of Utah, 18 we
applied a due process analysis under the Utah Constitution to
give greater protection to the rights of unwed fathers of
newborns. 	We described an unwed father’s opportunity interest in
developing a relationship with his newborn as a “provisional
right” that is itself protected by the due process clause of the
Utah Constitution. 19 	And we said that “[w]e measure the
statutory specifications for the termination of that provisional
right against the tests of compelling state interest and narrowly
tailored means.” 20 	But because of the state’s compelling
interest in assuring speedy identification of the newborn’s legal
parents and the narrow tailoring of the statute, we held that
section 78-30-4(3), the predecessor of the adoption statutes at
issue in this case, was facially constitutional. 21
¶29 	Under the old Utah Code section 78-30-4(3), 22 an unwed
father was required to preserve his rights by registering a
notice of claim to paternity with the Department of Health. 23
That section provided that the notice “may be registered prior to
the birth of the child but must be registered prior to the date
the illegitimate child is relinquished or placed with an agency
licensed to provide adoption services.” 24 	The intent of the
statute was “to facilitate permanent and secure placement of
illegitimate children whose unwed mothers wish to give them up
for adoption and whose unwed fathers take no steps to officially
identify themselves and acknowledge paternity.” 25 	Specifically,
“[t]he registration requirement was viewed as a procedure that
would protect the putative father’s parental rights if he timely

26 In re adoption of W., 904 P.2d 1113, 1117 (Utah Ct. App.
1995) (citing Recording of Utah Floor Debates, 41st Leg.,
February 6, 1975).
27 In re adoption of Baby Boy Doe, 717 P.2d 686, 691 (Utah
1986).
28 See Wells, 681 P.2d at 207.
No. 20050721 	12
claimed his paternity.” 26 	Thus, the registration statute was
intended to strike a balance between two competing interests:
“the significant state interest in speedily placing infants for
adoption and the constitutionally protected rights of putative
fathers.” 27
¶30 	In Wells, the unwed father challenged the
constitutionality of this statute. 28 	We held the statute
“facially valid,” stating as follows:
[T]he state has a compelling interest in
speedily identifying those persons who will
assume a parental role over newborn
illegitimate children. 	Speedy identification
is important to immediate and continued
physical care and it is essential to early
and uninterrupted bonding between child and
parents. 	If infants are to be spared the
injury and pain of being torn from parents
with whom they have begun the process of
bonding and if prospective parents are to
rely on the process in making themselves
available for adoptions, such determinations
must also be final and irrevocable.
Section 78-30-4(3) is narrowly tailored
to achieve the purposes identified above. 	No
infringement of the unwed father’s rights not
essential to the statute’s purposes has been
identified. 	Due process does not require
that the father of an illegitimate child be
identified and personally notified before his
parental right can be terminated. 	In the
common cases of unwed fathers without desires
to assume the responsibilities and to claim
the rights of parenthood, such a requirement
would frustrate the compelling state interest

29 Id. at 206-07.
30 In re B.B.D., 1999 UT 70, ¶ 18, 984 P.2d 967; Swayne v.
L.D.S. Social Servs., 795 P.2d 637, 641-43 (Utah 1990); In re
Adoption of Baby Boy Doe, 717 P.2d 686, 689 (Utah 1986); Sanchez
v. L.D.S. Social Servs., 680 P.2d 753, 755 (Utah 1984).
31 Wells, 681 P.2d at 207.
32 Id. at 201.
33 Id.
34 Id.
35 Id. at 207-08.
36 Id. at 202.
13 	No. 20050721
in the speedy determination described
above. 29
In subsequent cases, we continued to uphold the constitutionality
of the old section 78-30-4 without engaging in additional
analysis. 30
¶31 	In Wells, we additionally held that the unwed father’s
as-applied due process challenge could not succeed because it had
been possible for him to register before the birth mother
consented to their child’s adoption. 31 	Wells’s biological child
was born in Salt Lake City on September 23, 1981. 32 	Wells, who
lived in Moab, Utah, mailed his registration form to the
Department of Health in Salt Lake City on that same day, but the
form did not reach the Department of Health until September 30. 33
In the meantime, on September 24, the birth mother consented to
the child’s adoption. 34 	Thus, Wells’s registration was seven
days late. 	In rejecting his as-applied challenge, we noted that
Wells could not show that it had been impossible for him to file
because he had “ample advance notice of the expected time of
birth and the fact that the mother intended to relinquish the
child for adoption, advice of counsel on filing the required
form, and a copy of the form provided by a social worker for the
department.” 35 	Wells had signed the form on September 18, but he
said that he did not mail it until September 23 because he was
waiting to ensure that the baby was his; if it was born any later
he would have believed that someone else was the father. 36

37 See, e.g., Adoption Amendments, ch. 187, 2006 Utah Laws
834; Adoption Amendments, ch. 137, 2005 Utah Laws 891; Adoption
Amendments, ch. 122, 2004 Utah Laws 546; Adoption Act Revision,
ch. 168, 1995 Utah Laws 531; Adoption Act Amendments, ch. 245,
1990 Utah Laws 1173; see also In re adoption of W., 904 P.2d
1113, 1118-19 (Utah Ct. App. 1995) (explaining 1990 overhaul of
adoption statutes).
38 Wells, 681 P.2d at 207.
39 See Utah Code Ann. § 78-30-4.13(11) (Supp. 2006); accord
id. § 78-30-4.13(11) (Supp. 2004), amended by ch. 137, § 6 & ch.
150, § 5, 2005 Utah Laws 894-96, 1017-18.
No. 20050721 	14
¶32 	Our decision in Wells is in many respects relevant to
our analysis of the constitutionality of the adoption statutes
and their effect in this case. 	Although the adoption code has
been overhauled several times since we decided Wells, 37 the
statutory language at issue in that case was very similar to the
language in the present statutes that requires unwed fathers to
file prior to the mother’s consent or relinquishment. 	But in
Wells we did not consider the issue raised here--whether the
statute can be constitutional if it completely cuts off postbirth
rights of unwed fathers when the child is born on a weekend or
holiday. 	In upholding the old section 78-30-4, we said only that
“[n]o infringement of the unwed father’s rights not essential to
the statute’s purposes has been identified.” 38
¶33 	In this case, we therefore consider whether the
infringement upon the unwed father’s provisional right caused by
interpreting the statutes to make it impossible for unwed fathers
of children born on weekends or holidays to preserve their rights
postbirth is necessary to achieve the state’s compelling
interests. 	While in the past the adoption statutes required only
that unwed fathers register with the state before the mother
consented to adoption or relinquished the child, the adoption
statutes now require an unwed father to both register notice and
file a paternity petition before the child is relinquished. 	In
addition, if the unwed father of a newborn desires to establish a
right to withhold consent to his child’s adoption (rather than
simply to receive notice of the adoption and an opportunity to
present evidence regarding the child’s best interests), 39 he must
file in the paternity action 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

40 Utah Code Ann. § 78-30-4.14(6)(b) (Supp. 2006); accord
id. § 78-30-4.14(2)(b)(i) (Supp. 2004), repealed and reenacted by
ch. 186, § 3, 2006 Utah Laws 835-37.
41 Utah Code Ann. § 78-30-4.14(6)(d) (Supp. 2006); accord
id. § 78-30-4.14(2)(b)(iii) (Supp. 2004).
42 Id. § 78-30-4.14(6) (Supp. 2006); accord id.
§ 78-30-4.14(2) (Supp. 2004).
43 Wells, 681 P.2d at 203.
44 Id. at 206. 	Since we held in Wells that the paternity
statutes then in effect were necessitated by compelling state
interests, the Legislature enacted section 78-30-4.12, codifying
the compelling interests that we previously discussed and adding
findings that “[t]he state has a compelling interest in requiring
unmarried biological fathers to demonstrate [a full commitment to
the responsibilities of parenthood] by providing appropriate
medical care and financial support and by establishing legal
paternity, in accordance with the requirements of this chapter”
as well as a compelling interest “in holding parents accountable
for meeting the needs of children.” 	Utah Code Ann.
§ 78-30-4.12(2)(a), (e) (Supp. 2006). 	We are not bound in our
constitutional analysis by the Legislature’s statements in
support of the constitutionality of the laws that the Legislature
has enacted.
15 	No. 20050721
the child’s birth.” 40 	He must also have “offered to pay and paid
a fair and reasonable amount of the expenses incurred in
connection with the mother’s pregnancy and the child’s birth, in
accordance with his financial ability.” 41 	These actions must all
be taken before the mother consents to adoption or relinquishes
the child. 42
¶34 	As we previously held in Wells, it is beyond dispute
that “the state must . . . have legal means to ascertain within a
very short time of birth whether the biological parents (or
either of them) are going to assert their constitutional rights
and fulfill their corresponding responsibilities, or whether
adoptive parents must be substituted.” 43 	The state also has
compelling interests in promoting “early and uninterrupted
bonding between child and parents” and in facilitating final and
irrevocable adoptions. 44
¶35 	Yet we are persuaded that as interpreted by the
district court in this case, the statute’s effect of cutting off
postbirth weekend and holiday filing opportunities for unwed

45 Utah Code Ann. § 78-30-4.14(6) (Supp. 2006); accord id.
§ 78-30-4.14(2)(b) (Supp. 2004).
No. 20050721 	16
fathers is not necessary to achieve the state’s compelling
interests, nor is such an interpretation a narrowly tailored
means of achieving those interests. 	Under the adoption statutes
as interpreted by the district court, the unwed father whose
child is born on a weekend or holiday would have no opportunity
to assert his paternity after the birth of the child.
Accordingly, no unwed father could be certain of when he must
file a paternity action and register with the Department of
Health in order to preserve his rights. 	He could not be certain
that he will have time after the birth of his child to file
because his child may be born on a weekend or holiday.
¶36 	The lack of certainty presents particular problems for
unwed fathers because they must not only register by filing a
simple form with the state, but also file a paternity action in
which they profess a willingness to take custody of the child,
“set[] forth . . . plans for care of the child,” and pay for
birth expenses, all before the mother signs her consent and
relinquishment. 45 	On one hand, because an unwed father could not
be assured of even a minimal amount of time to file after the
child’s birth under the district court’s interpretation of the
statute, there would be an incentive for the unwed father to
commence an action and file early to preserve his rights. 	But on
the other hand, the Legislature may have intended under the
adoption statutes for the unwed father to reach a certain
maturity in the decision-making process regarding the care of the
child after birth before filing a paternity action. 	Therefore,
the unwed father also has an incentive to wait until he is ready
to finally decide what is best for the child before taking the
actions required by the adoption statutes.
¶37 	This is not a problem that we previously contemplated
in Wells because in that case we were not presented with a
situation where the father’s rights were effectively cut off as
of the time of the child’s birth, leaving the father no postbirth
opportunity to assert his rights. 	Wells was aware of his baby’s
birth that same day and presumably could have filed before the
mother relinquished the baby the next day. 	In this case,
although Thurnwald had the right--and opportunity--to assert his
paternal rights prior to the birth of the child, the district
court’s interpretation of the statute has the effect of
eliminating Thurnwald’s postbirth opportunity altogether,
essentially requiring him to have asserted his rights prebirth.

46 The parties do not cite any such case from other
jurisdictions and our own research has not uncovered any such
case. 	In a recent case from Arkansas where a statute would have
cut off a father’s right to notice when he failed to file prior
to his child’s birth, the court found that the father’s due
process rights were not violated, but it rested its conclusion on
the fact that the father had actual notice, which allowed him to
participate in the proceeding, and thus was not prevented from
asserting a paternity claim. 	See Escobedo v. Nickita, 2006 Ark.
LEXIS 178 *1.
47 740 P.2d 292 (Utah Ct. App. 1987).
48 Id. at 296 (quoting Sanchez v. L.D.S. Social Servs., 680
P.2d 753, 756 (Utah 1984) (Durham, J., dissenting)).
49 Id. at 293.
50 Id. at 296.
17 	No. 20050721
¶38 	Neither this state nor any other state that we know of
has held it constitutionally permissible to cut off a father’s
right to assert his paternity interest at a time before the
child’s birth. 46 	When the court of appeals was presented with a
similar problem under the old section 78-30-4 in In re K.B.E.,47
it held the statute unconstitutional as applied, stating that the
statute was “‘not created to encourage a “race” for placement to
cut off the rights of fathers who are identified and present.’” 48
In that case, the unwed father registered on the afternoon of the
same day of his child’s birth, but his registration was preempted
by the actions of the mother who filed an adoption petition that
morning. 49 	The court explained that “[t]o deprive both [the
unwed father] and [the child] of the possible benefits of their
relationship simply because [the unwed father] filed his notice
just a few hours after [the mother] filed [her] petition for
adoption . . . [flies] in the face of fundamental fairness and
due process.” 50
¶39 	In short, the lack of a guaranteed filing period after
the child’s birth under the district court’s interpretation of
the adoption statutes would create great uncertainty for unwed
fathers and a risk of a sudden and unintentional loss of the
opportunity to file that is unnecessary to the state’s compelling
interests. 	The statute already explicitly provides that the
Legislature’s concern for the mother’s relationship with the
child is important enough to require her to wait twenty-four
hours before the relinquishment. 	In most instances when the
mother relinquishes the child after the twenty-four-hour waiting

51 680 P.2d 753 (Utah 1984).
52 Id. at 755.
53 See In re Adoption of Baby Boy Doe, 717 P.2d 686, 690-91
(Utah 1986).
No. 20050721 	18
period expires, the parties to the adoption will not know for
certain if the father has filed an adequate legal claim until
they consult the state registry. 	In the meantime, the child
usually goes home with a prospective adoptive family. 	Further,
in cases involving a relinquishment on a holiday or weekend, the
parties to an adoption already have to wait until the next
business day to be certain that the father did not file an
appropriate paternity petition and register his claim. 	In this
case, L.D.S. Family Services contacted the registry the Tuesday
after Labor Day weekend. 	Given these practical realities, the
addition of a single business day in which the father may file
does not unduly burden the state’s compelling interest in prompt
resolution of parental rights.
¶40 	Additionally, the uncertain filing period that the
statute would provide to unwed fathers under the district court’s
interpretation actually works against, rather than promotes, the
state’s compelling interest in permanent adoptions. 	If the
rights of unwed fathers are well defined, it will be more
difficult for fathers to mount as-applied constitutional
challenges to the deprivation of their rights. 	As we said in
Sanchez v. L.D.S. Social Services,51 “a firm cutoff date is
reasonable, if not essential.” 52 	That firm cutoff date benefits
all parties if it is tied to a certain time period after the
child’s birth rather than being left to the uncertainty of
nature. 	In at least one case involving an as-applied challenge
to the statute, we have expressed significant concern over an
unwed father’s unexpected loss of the opportunity to assert
paternity where the child was born prematurely. 53 	Such cases
would be less troubling under an interpretation of Utah law that
allows unwed fathers a guaranteed window after the child’s birth
to assert paternity without risk that the mother’s actions will
deprive him of that right.
II. 	RULE 6 APPLIES TO ENLARGE THE TIME THAT AN UNWED FATHER OF
A CHILD BORN ON A WEEKEND OR HOLIDAY HAS TO FILE AND REGISTER
¶41 	Having determined that the district court’s
interpretation of the statutes unconstitutionally deprives unwed
fathers of due process, we now consider whether that
unconstitutionality may be avoided by applying rule 6 of the Utah

54 Thiele v. Anderson, 1999 UT App 56, ¶ 15, 975 P.2d 481.
55 See id. ¶¶ 15-16 & n.6.
56 See id. ¶¶ 16-17 & n.6.
57 Evans v. State, 963 P.2d 177, 184 (Utah 1998).
58 Ellis v. Soc. Servs. Dep’t of the Church of Jesus Christ
of Latter-day Saints, 615 P.2d 1250, 1255-56 (Utah 1980).
59 Pleasant Grove City v. Holman, 202 P. 1096, 1098 (Utah
1921).
60 Utah Code Ann. § 78-30-4.13(3)(d)(ii) (Supp. 2006);
accord id. § 78-30-4.13(3)(a) (Supp. 2004), amended by ch. 137,
(continued...)
19 	No. 20050721
Rules of Civil Procedure to enlarge the time in which an unwed
father may file when the twenty-four-hour postbirth period falls
on a weekend or holiday. 	As the Utah Court of Appeals has
recognized, because the statutes controlling adoption do not
“purport to contain[] a complete set of procedural guidelines to
govern adoptions,” 54 the rules of civil procedure are generally
applicable to adoption proceedings. 55 	Therefore, we will apply
rule 6 to the relevant adoption statutes unless we conclude that
its application would be inconsistent with those statutes. 56
¶42 	In determining whether application of rule 6 would be
inconsistent with the adoption statutes defining the filing
deadlines imposed on unwed fathers, we apply standard canons of
statutory construction. 	“[O]ur primary goal is to give effect to
the legislature’s intent in light of the purpose the statut[es
were] meant to achieve.” 57 	Additionally, because “no act should
be declared unconstitutional unless it is clearly and palpably
so,” we read the statutes in a manner “consistent with basic
constitutional rights.” 58 	Therefore, we follow the fundamental
rule of statutory construction that “if a legislative act is
susceptible of two constructions, one conformable to the
constitutional provision on the subject and the other not, [we]
will adopt the one that is conformable, and reject the one that
is not.” 59
¶43 	We initially agree with A.E. that the adoption statutes
requiring unwed fathers to file a paternity petition, register,
and take other actions “prior to the mother’s . . . execution of
consent to adoption of the child[,] or . . . relinquishment of
the child for adoption” 60 are generally intended to cut off the

60 (...continued)
§ 6 & ch. 150, § 5, 2005 Utah Laws 894-96, 1017-18.
61 In Indiana, a statutory scheme that differentiates
between minimum and maximum time periods controls an unwed
father’s filing rights, where the unwed father must register by
the later of thirty days after the child’s birth or the filing of
a petition for the child’s adoption. 	Ind. Code Ann. § 31-19-5-12
(LexisNexis 2006).
No. 20050721 	20
unwed father’s right to intervene at the same time that the
mother’s rights to the child are cut off. 	But as we noted above,
the adoption statutes work in concert to give most unwed fathers
twenty-four hours, covering a total of one business day after the
birth of a child, to file a paternity petition and register--or
risk losing all rights to his child. 	If we determine that the
Legislature intended through this statutory scheme to create a
minimum filing period for unwed fathers that is connected to a
calculable time period after the child’s birth, rule 6 of the
Utah Rules of Civil Procedure would apply to enlarge the filing
period when the last day falls on a holiday or weekend. 	And
unwed fathers would essentially be given a minimum period of one
business day to file a petition for paternity and to register
with the state after the child’s birth--but beyond that point the
unwed father could file only prior to the mother’s consent or
relinquishment. 61
¶44 	The question before us is, therefore, whether as a
matter of statutory construction we should interpret the minimum
filing period ending a total of one day after birth to be a time
period allowed by statute subject to enlargement by rule 6, or
whether the filing period must in all cases be attached to the
mother’s relinquishment. 	A.E. argues that the Legislature
intended that unwed fathers demonstrate the appropriate
commitment prior to the mother’s relinquishment, whenever it
occurs, and that the twenty-four-hour waiting period was enacted
solely for the benefit of the mother. 	She cites for support to a
treatise on family law, which suggests that such waiting periods
derive
from the view that a woman cannot fully
comprehend the significance of relinquishing
all rights to her child until she has had the
actual experience of giving birth. 	She needs
time to reflect upon the wisdom of an earlier
expressed intention to relinquish the child,

62 Joan H. Hollinger, Adoption Law & Practice § 2.11[1][a]
(2006).
63 Utah Code Ann. § 78-30-4.12(1) (Supp. 2006).
64 Id. § 78-30-4.12(3)(a).
21 	No. 20050721
or to reconsider an earlier reluctance to
relinquish. 62
¶45 	That the Legislature likely intended section 78-30-4.19
to give the mother sufficient time to consider her decision in
light of the events of childbirth does not, however, rule out the
probability that the Legislature was also concerned with defining
the unwed father’s rights. 	And as we described in the previous
section, under the Utah Constitution, an unwed father must also
be given a reasonable opportunity to decide whether he will take
the legal actions necessary to assert his paternal rights.
Section 78-30-4.19 is part of a section of the Code that
establishes procedures that strike a balance between “the rights
and interests of all parties affected by an adoption
proceeding.” 63 	In fact, the Legislature states in section
78-30-4.12(3)(a) that “[i]n enacting Sections 78-30-4.12 through
78-30-4.21, the Legislature prescribes the conditions for
determining whether an unmarried biological father’s action is
sufficiently prompt and substantial to require constitutional
protection.” 64 	Thus, the statutes are subject to two possible
interpretations: one where the statutes are intended to set a
minimum filing period for unwed fathers and where that period is
subject to enlargement by rule 6; and one where the filing period
is linked only to the mother’s relinquishment, whenever it
occurs.
¶46 	Where two interpretations of a statute are possible, we
adopt the interpretation that is constitutional. 	Therefore, in
this case, we interpret the adoption statutes to provide unwed
fathers with a minimum filing period that in most cases extends
until a total of twenty-four hours after the child’s birth. 	In
the ordinary case, this gives the unwed father a total of one
full business day after his child’s birth to complete the
requirements (although the business day may be split, for
example, between Monday afternoon and Tuesday morning). 	This is
a period of time that can be calculated before the end of the
period and thus is one to which rule 6 of the Utah Rules of Civil
Procedure applies. 	To assure that the unwed father always gets
one business day after the child’s birth, we apply rule 6 any
time the occurrence of a weekend or holiday means that the father
is not afforded a full business day. 	In those cases, the filing

65 We recognize that the application of rule 6 to the
postbirth filing period may give some unwed fathers more than
twenty-four hours after a child’s birth to file a paternity
petition. 	If the twenty-four-hour postbirth period falls
exclusively on weekdays, the unwed father has one full business
day in which to file his petition. 	But if any portion of the
postbirth period falls on a weekend or holiday, the unwed father
has until the end of the next business day to file his petition,
which may result in a postbirth filing period of more than
twenty-four hours even exclusive of the weekend or holiday hours.
For example, if the child is born at noon on Friday, the unwed
father will have until the end of the business day on Monday to
file his petition. 	This result is a consequence of rule 6
allowing for a time period to run “until the end of the next day
that is not a Saturday, a Sunday, or a legal holiday.” 	Utah R.
Civ. P. 6. 	When rule 6 has no application because no portion of
the relevant time period falls on a weekend or holiday, there is
no basis for enlarging the time for filing.
No. 20050721 	22
period is extended to the end of the next business day. 65 	In
this case, because A.E. gave birth on Saturday morning, Thurnwald
had until the end of the day on Tuesday to file.
CONCLUSION
¶47 	We hold that unwed fathers have a constitutional right
to a postbirth opportunity to assert paternity that is unduly
infringed upon if Utah’s adoption statutes are interpreted to
eliminate that opportunity when a child is born on a weekend or
holiday. 	Accordingly, we interpret Utah’s adoption statutes to
provide unwed fathers with a minimum period of twenty-four hours
after the child’s birth to file a paternity claim. 	And in
instances where unwed fathers do not receive a full business day
after the birth to file their claims because part or all of the
period falls on a holiday or weekend, we apply rule 6 of the Utah
Rules of Civil Procedure to enlarge the filing period to the end
of the next business day. 	Because Thurnwald’s child was born on
Saturday of Labor Day weekend and he filed his paternity petition
and notice on Tuesday, the next business day, we hold that
Thurnwald’s petition was timely. 	We therefore reverse the
district court’s grant of summary judgment against him and remand
for further proceedings consistent herewith.
---
¶48 	Justice Parrish, Justice Nehring, and Judge Barrett
concur in Justice Durrant’s opinion.

23 	No. 20050721
¶49 	Having disqualified herself, Chief Justice Durham does
not participate herein; District Judge William A. Barrett sat.
---
WILKINS, Associate Chief Justice, dissenting:
¶50 	I respectfully differ with my colleagues. 	It appears
clear that the Legislature intended to give an unmarried
biological father a strictly limited but adequate period of time
within which to take the legal steps necessary to assert any
claim he intends to make as a legal father. 	The period begins at
the moment of conception and ends at the time the biological
mother executes her consent to adoption. 	If he fails to act
promptly, his claim to the child ends with the mother’s. 	The
usual biological processes result in a window of at least eight
or nine months within which the unmarried biological father is at
liberty to file the necessary legal action and notice. 	The only
obstacle to successful preservation of this right is totally
within the control of the father: delay.
¶51 	The limitation placed by statute on the legally
effective consent to adoption by the biological mother is not
linked to, nor does it appear to be intended to limit, action by
the unmarried biological father. 	The father has until the mother
consents to the adoption of the child. 	The mother is prohibited
from consenting to the adoption for a period of 24 hours after
the birth of her child. 	Although these two limitations are
interrelated factually, they are independent legally. 	No direct
reference to the “additional 24 hours, or one business day”
relied upon by my colleagues appears in the statute relating to
the father’s limitations.
¶52 	No predictable cut-off date for the father’s filing is
discernible in advance. 	It is subject to calculation only in
retrospect, and only when and if the mother gives her consent to
adoption of the child. 	As a result, Rule 6 of the Rules of Civil
Procedure (extending to the next business day an act required by
a designated date) has no application. 	An unmarried biological
father cannot possibly rely on Rule 6 in waiting until Monday.
Only after it is too late can he even know that the deadline has
arrived.
¶53 	This result, harsh as it may at times appear, is in
keeping with the policy set by the Legislature. 	Those who elect
to father a child without benefit of marriage must take steps to
assert their legal relationship with the child, or they risk
losing it altogether. 	The policy of the law is to give the

No. 20050721 	24
greatest benefit to the child, the innocent party in the overall
situation, by encouraging either responsible parenting or prompt
and early adoption. 	A father who waits the full gestation period
before taking the necessary action to ensure his continued legal
relationship with his child, does so at his own risk. 	The law
acts to cut him off, in favor of his child, when prompt and legal
adoption is the alternative.
¶54 	I find no constitutional impediment to the statutory
process established by the Legislature in this regard. 	I would
affirm the decision of the trial court.
---