In re: D.A.; D.D.A. v State

2009 UT 83
222 P.3d 1172
AMENDED OPINION*
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, in the 	No. 20071015
interest of D.A., a person
under eighteen years of age.
____________________________
D.D.A.,
Appellant,
v.
F I L E D
State of Utah,
Appellee. 	December 15, 2009
---
Third Juvenile, Salt Lake
The Honorable Frederic M. Oddone
No. 534301
Attorneys: 	S. Grace Acosta, Salt Lake City, for appellant
Mark L. Shurtleff, Att’y Gen., Carol L.C. Verdoia,
Asst. Att’y Gen., Salt Lake City, for appellee
Kelly Ryan, Salt Lake City, for the Office of the
Guardian ad Litem
---
On Certification from the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1 	This appeal requires us to determine whether the
juvenile court erred by failing to grant Daniel Dean Austin (“Mr.
Austin”) an evidentiary hearing on his motion to determine his
* Corrections were made in paragraphs 4, 24, and 35. 	An
addition was made to paragraph 42.

1 Utah’s Adoption Statute was amended and renumbered in
2008, however, we cite to the 2007 version in effect at the time
Mr. Austin filed his motion to determine his right to notice and
consent.
No. 20071015 	2
right to notice of and consent to the adoption of D.A., a minor
child, under Utah Code section 78-30-4.14 (Supp. 2007). 1 	Section
78-30-4.14 broadly addresses when consent to an adoption is
necessary and specifically sets forth the requirements an
unmarried biological father must satisfy before his consent to an
adoption is required.
¶2 	In determining whether the juvenile court erred, we
address the following four issues: 	(1) did the juvenile court
substantively adjudicate Mr. Austin’s paternity?; (2) do
principles of res judicata bar Mr. Austin from seeking the right
to notice of and consent to any adoption of D.A.?; (3) did Mr.
Austin waive his right to notice and consent by failing to
establish paternity before D.A.’s mother relinquished her
parental rights?; and (4) is establishment of paternity a
prerequisite to asserting rights under section 78-30-4.14?
¶3 	We hold that: (1) there was no final adjudication of
Mr. Austin’s paternity; (2) principles of res judicata do not
apply; (3) Mr. Austin did not waive his right to notice and
consent; and (4) establishment of paternity is not a prerequisite
to asserting rights under section 78-30-4.14. 	Therefore, the
juvenile court erred by failing to grant Mr. Austin an
evidentiary hearing and we remand for further proceedings
consistent with this opinion.
BACKGROUND
¶4 	On January 3, 2007, A.R. (“Mother”) gave birth to D.A.
Mr. Austin asserts that he was originally named as the father on
D.A.’s birth certificate, but his name was removed from the birth
certificate after he failed to confirm paternity with the
Department of Vital Statistics due to his incarceration at the
time of D.A.’s birth. 	Nevertheless, he proffers a birth
announcement that was published in the newspaper indicating that
a son had been born to “[Mother] and AUSTIN, Daniel.” 	Both
before and after D.A.’s birth, Mr. Austin claims that he wrote
numerous letters to his parents indicating that Mother was
pregnant with his child and that he desired to raise the child.
¶5 	In late July 2007, at approximately seven months of
age, D.A. was placed in the protective custody of the Division of
Child and Family Services (“DCFS”). 	During the shelter hearing,

3 	No. 20071015
Mother informed the juvenile court that Mr. Austin was D.A.’s
biological father, and the juvenile court appointed legal counsel
to represent Mr. Austin as the putative father. 	At about the
same time, DCFS filed a petition seeking a determination that
D.A. was an abused and/or neglected child pursuant to Utah Code
section 78-3a-301.
¶6 	Mr. Austin appeared before the juvenile court for the
first time on August 9, 2007. 	At the August 9 hearing, the State
and Mr. Austin agreed that paternity would be established through
DNA testing to be arranged by Mr. Austin. 	Because of a
misunderstanding about who would obtain the testing, Mr. Austin
failed to obtain the testing before the next hearing on October
2, 2007. 	During the October 2 hearing, the court informed Mr.
Austin that a trial had been set for October 18 on the State’s
petition to terminate Mother’s parental rights. 	Mr. Austin’s
counsel represented that Mr. Austin would be fine if the
termination of Mother’s parental rights proceeded without him.
Counsel for Mr. Austin also indicated that she would contact the
court if Mr. Austin decided otherwise. 	No written order was
entered memorializing this hearing.
¶7 	After the October 2 hearing, Mr. Austin indicated to
his counsel that he wanted to acknowledge and establish
paternity. 	On October 17, Mr. Austin filed a motion to intervene
as a party and for paternity testing. 	Mr. Austin also requested
that his motion be heard before or at the trial of the State’s
Petition to terminate Mother’s parental rights. 	The juvenile
court accepted Mother’s voluntary relinquishment of her parental
rights during the October 18 hearing without considering Mr.
Austin’s motion.
¶8 	On October 25, the juvenile court held a hearing to
consider Mr. Austin’s motion to intervene as a party and for
paternity testing. 	Mr. Austin argued that his Due Process rights
had been violated when the court appointed him counsel and
treated him as a party but refused to permit him to establish
paternity within the proceedings to terminate Mother’s parental
rights. 	The State argued that Mr. Austin failed to timely
establish paternity and was therefore never a party to the
action. 	The State also argued that Mr. Austin had never been
entitled to appointed counsel and that Mr. Austin could not be
made a party because Mother had already relinquished her parental
rights and there was no longer a pending action in which he could
intervene.
¶9 	On October 26, the juvenile court entered an order
denying Mr. Austin’s motion and finding that: 	(1) the burden of

2 Prior to appealing the October 26 order, Mr. Austin filed
a Motion for review and modification of the October 26 order and
a formal petition for paternity with the juvenile court. 	The
juvenile court denied Mr. Austin’s motion, finding that Mr.
Austin was not a party to the proceedings and did not have
standing because he never established paternity. 	The juvenile
court also indicated that it no longer had jurisdiction to hear
Mr. Austin’s paternity petition.
Mr. Austin also filed a Notice of Commencement of Paternity
Proceedings with the Utah Department of Health and Office of
Vital Records & Statistics and an affidavit of Paternity with the
juvenile court.
No. 20071015 	4
establishing paternity belonged to Mr. Austin; (2) paternity had
not been established; (3) because Mr. Austin had not established
paternity, he was never a party to the termination proceedings
and therefore was not entitled to any due process protections;
and (4) there was no longer an action in which Mr. Austin could
intervene. 	After his motion was denied, Mr. Austin fired his
court appointed counsel, hired his own attorney, and timely
appealed the October 26 order. 	However, he voluntarily dismissed
his appeal just two weeks after filing. 2
¶10 	On December 3, 2007, Mr. Austin filed a motion asking
the juvenile court to determine that he had satisfied the
requirements of Utah Code section 78-30-4.14 (Supp. 2007) and was
therefore entitled to notice of and consent to any adoption of
D.A. 	Specifically, Mr. Austin argued that he satisfied section
78-30-4.14(4), which provides the requirements that an unmarried
biological father must meet when a child is placed with adoptive
parents after six months of age. 	The juvenile court summarily
denied Mr. Austin’s motion on December 18, 2007, finding that Mr.
Austin had previously failed to establish paternity, was not the
legal father of D.A., and therefore his consent was not required
before D.A. could be adopted.
¶11 	Mr. Austin appealed the juvenile court’s December 18
order. 	The court of appeals certified the matter to this court
and we have jurisdiction pursuant to Utah Code section 78A-3-
102(3)(b)(2008).
ISSUES AND STANDARDS OF REVIEW
¶12 	The primary issue on appeal is whether the juvenile
court erred in failing to provide Mr. Austin with an evidentiary
hearing in conjunction with his December 3, 2007, motion to
determine his right to notice of and consent to D.A.’s adoption
under Utah Code section 78-30-4.14 (Supp. 2007). 	To determine

5 	No. 20071015
whether the juvenile court erred, we address the following
questions:
¶13 	First, did the juvenile court substantively adjudicate
Mr. Austin’s paternity before it lost jurisdiction to do so?
Whether Mr. Austin’s paternity was substantively adjudicated by
the juvenile court is a mixed question of law and fact. 	We
review findings of fact for clear error and conclusions of law
for correctness. 	The juvenile court “is afforded some discretion
in applying the law to the facts.” H.M. v. State (State in re
C.B.), 1999 UT App 293, ¶ 5, 989 P.2d 76.
¶14 	Second, do principles of res judicata preclude Mr.
Austin from asserting rights under Utah Code section 78-30-4.14?
“The application of res judicata is a question of law, reviewed
for correctness with no deference given to the [juvenile] court.”
J.M. v. State (State in re H.J.), 1999 UT App 238, ¶ 15, 986 P.2d
115.
¶15 	Third, did Mr. Austin waive his right to notice and
consent by failing to establish paternity before Mother
relinquished her parental rights? 	Resolution of this question
turns on issues of statutory interpretation, which we review for
correctness with no deference to the conclusions of the juvenile
court. 	Deseret News Publ. Co. v. Salt Lake County, 2008 UT 26,
¶ 12, 182 P.3d 372.
¶16 	Finally, is the establishment of paternity a
prerequisite to the assertion of rights under section 78-30-4.14?
This question also presents issues of statutory interpretation
that we review for correctness, giving no deference to the
determination of the juvenile court. 	Id.
¶17 	We address each of these questions in turn.
ANALYSIS
I. 	THE JUVENILE COURT DID NOT SUBSTANTIVELY DETERMINE MR.
AUSTIN’S PATERNITY
¶18 	The State argues that Mr. Austin cannot challenge the
juvenile court’s December 18 order because the juvenile court
substantively adjudicated Mr. Austin’s paternity in its October
26 order from which Mr. Austin failed to appeal. 	Mr. Austin
argues that the juvenile court made only procedural findings
regarding his status as a party and that it never substantively
determined his paternity. 	We agree with Mr. Austin.

3 The juvenile court asked the State to prepare a short
finding and order at the October 2 hearing, but the State never
did so. 	The State now argues that the October 26 order
encompassed both the October 25 hearing and the October 2
hearing. 	However, this simply is not the case. 	The October 26
order does not even purport to memorialize the October 2 hearing.
No. 20071015 	6
¶19 	Under the Utah Uniform Parentage Act, both the district
court and the juvenile court are authorized to adjudicate
paternity. 	See Utah Code Ann. § 78-45g-104(1) & (2) (Supp.
2007). 	The juvenile court, however, is a court of limited
jurisdiction and has jurisdiction to adjudicate paternity only in
proceedings involving abuse, neglect and dependency, or
termination of parental rights. 	See Utah Code Ann. § 78-3a-
105(1)(b) (Supp. 2007).
¶20 	In this case, the State filed an abuse and neglect of a
child claim against Mother in juvenile court and later initiated
proceedings to terminate Mother’s parental rights. 	Thus,
pursuant to section 78-3a-105, the juvenile court had
jurisdiction to determine Mr. Austin’s paternity so long as it
did so within either the abuse and neglect or termination
proceedings. 	But the juvenile court did not substantively
adjudicate Mr. Austin’s paternity at the October 2 hearing and
lacked jurisdiction to do so at the October 25 hearing.
A. 	The Juvenile Court Did Not Determine Mr. Austin’s Paternity
at the October 2 Hearing
¶21 	The October 2 hearing did not adjudicate Mr. Austin’s
paternity. 	Rather, it established only that Mr. Austin had yet
to establish paternity. 	Because there is no order memorializing
the October 2 hearing, 3 we look to the record, including the
transcript of the hearing and the minutes of the juvenile court,
to determine the substance of what occurred.
¶22 	The purpose of the October 2 hearing was to follow up
on genetic testing that the court had ordered Mr. Austin to
arrange at his initial appearance in August. 	Due to a
misunderstanding of Mr. Austin’s counsel, however, genetic
testing to establish Mr. Austin’s paternity had not taken place
by the date of the hearing.
¶23 	At the hearing, Mr. Austin and his counsel were
informed that a trial to terminate Mother’s parental rights was
set for October 18. 	Thereafter, Mr. Austin’s counsel indicated
that Mr. Austin would not attempt to assert his paternity within

7 	No. 20071015
the proceeding to terminate Mother’s parental rights. 	However,
counsel for Mr. Austin also indicated that she would contact the
court before October 18 if Mr. Austin changed his mind. 	Given
counsel’s statements, the court indicated that it “would find
that there is no affidavit of paternity or assertion of
paternity,” and that if Mr. Austin “wants to proceed differently
he will contact [the court] before October 18.”
¶24 	A review of the record indicates that rather than
adjudicating Mr. Austin’s paternity on October 2, the juvenile
court merely found that: 	(1) paternity had not yet been
established; (2) Mr. Austin had not then asserted paternity; and
(3) the State could proceed without Mr. Austin in terminating
Mother’s parental rights. 	Further, it appears that the court was
disposed to let Mr. Austin have until October 18 to assert his
paternity claim. 	Therefore, we conclude that the October 2
hearing did not result in any substantive adjudication of Mr.
Austin’s paternity.
B. 	The Juvenile Court Did Not Have Jurisdiction to Determine Mr.
Austin’s Paternity at the October 25 Hearing
¶25 	The juvenile court may only adjudicate paternity in an
abuse, neglect and dependency proceeding, or a proceeding to
terminate parental rights. 	See Utah Code Ann. § 78-3a-105(1)(b)
(Supp. 2007). 	Thus, the juvenile court had jurisdiction to
determine Mr. Austin’s paternity prior to the termination of
Mother’s rights.
¶26 	On October 17, while the juvenile court had
jurisdiction, Mr. Austin filed his motion to intervene as a party
and for paternity testing. 	Mr. Austin asked that his motion be
heard at or before the October 18 trial on the State’s petition
to terminate Mother’s parental rights. 	On October 18, without
first considering Mr. Austin’s motion, the juvenile court
accepted Mother’s voluntary relinquishment of her parental
rights. 	Mother’s relinquishment of her rights resulted in the
dismissal of the State’s petition to terminate her parental
rights and effectively ended both the neglect proceeding and the
proceeding against Mother to terminate her parental rights.
Thereafter, even if the juvenile court had attempted to
adjudicate Mr. Austin’s paternity, the adjudication would be void
because the court lacked jurisdiction. 	In any event, as
discussed below, the juvenile court did not attempt to adjudicate
Mr. Austin’s paternity.
¶27 	At the October 25 hearing, Mr. Austin argued that he
should be allowed to intervene as a party and establish his

4 The State also argues that because Mr. Austin initially
appealed the October 26 order and then voluntarily dismissed that
appeal, he waived any right to appeal the determination that he
is not D.A.’s legal father, and thus effectively waived the
opportunity to establish paternity. 	As explained above, the
State misconstrues the substance of the juvenile court’s October
26 order. 	Because the juvenile court never made a final
substantive determination of Mr. Austin’s paternity, we also hold
that Mr. Austin has not waived any right to an adjudication of
his paternity by a court of competent jurisdiction.
The juvenile court no longer has jurisdiction to adjudicate
(continued...)
No. 20071015 	8
paternity, and that his due process rights had been violated
because he was denied the opportunity to participate in
proceedings pertaining to the termination of Mother’s parental
rights. 	In rebuttal, the State argued that Mr. Austin was never
a party to the action because he had not yet established
paternity, that Mr. Austin’s motion to intervene should be denied
because there was no longer a pending action in which to
intervene, and that Mr. Austin had failed to secure his rights in
a timely manner.
¶28 	On October 26, the juvenile court denied Mr. Austin’s
motion and entered an order stating that Mr. Austin “had not
established paternity” before “mother voluntarily relinquished
her parental rights” and therefore, “there [was] no action before
the Court to grant Mr. Austin’s motion to intervene.”
Additionally, the juvenile court found that Mr. Austin “was not a
legal parent to [D.A.]” and therefore was not entitled to due
process protections.
¶29 	The October 26 order did not constitute a final
substantive determination of Mr. Austin’s paternity. 	Rather, the
juvenile court found only that Mr. Austin had not established
paternity before Mother relinquished her rights, thereby
terminating the action before the juvenile court and rendering
moot Mr. Austin’s motion to intervene. 	Further, the court’s
determination that Mr. Austin was not “a legal parent to [D.A.]”
did not result in a substantive determination of Mr. Austin’s
paternity; rather it merely indicated that because Mr. Austin had
yet to establish paternity, he was not entitled to due process
protections within the proceedings to terminate Mother’s parental
rights.
¶30 	In summary, neither the October 2 nor the October 25
hearing resulted in a substantive determination of Mr. Austin’s
paternity. 4 	We now address whether principles of res judicata

4 (...continued)
Mr. Austin’s paternity, therefore, any further determination of
his paternity must take place in the district court. 	However,
because we find that establishment of paternity is not a
prerequisite to the assertion of rights under section 78-30-4.14,
it is not necessary for Mr. Austin to establish his paternity in
the district court before seeking the right to notice of and
consent to the adoption of D.A. within any pending adoption
proceeding.
9 	No. 20071015
prevent Mr. Austin from asserting his right to notice and consent
under section 78-30-4.14.
II. 	RES JUDICATA DOES NOT APPLY
¶31 	The State argues that principles of res judicata bar
Mr. Austin from re-litigating his paternity claim. 	Specifically,
the State argues that the doctrine of claim preclusion bars Mr.
Austin’s motion to declare his rights under Utah Code section 78-
30-4.14 (Supp. 2007).
¶32 	Res judicata “refer[s] to the overall doctrine of the
preclusive effects to be given to judgments,” and includes “two
branches: claim preclusion and issue preclusion.” 	Brigham Young
Univ. v. Tremco Consultants, Inc., 2005 UT 19, ¶ 25, 110 P.3d 678
(internal quotation marks omitted). 	Here we are concerned only
with claim preclusion.
¶33 	“[C]laim preclusion bars a party from prosecuting in a
subsequent action a claim that has been fully litigated
previously.” 	Id. ¶ 26 (internal quotation marks omitted). 	Claim
preclusion applies if the following three requirements are met:
“(1) The subsequent action must involve the
same parties, their privies, or their assigns
as the first action, (2) the claim to be
barred must have been brought or have been
available in the first action, and (3) the
first action must have produced a final
judgment on the merits of the claim.”
Id. (internal quotation marks omitted). 	The State’s argument
fails because Mr. Austin was never a party to the prior action
and the juvenile court did not render a final judgment on the
merits of Mr. Austin’s paternity claim.

No. 20071015 	10
A. 	Mr. Austin Does Not Meet The “Same Parties” Requirement
¶34 	“[T]he ‘general consensus in Anglo-American
jurisprudence [is that] one is not bound by a judgment in
personam in a litigation in which he is not designated as a party
or to which he has not been made a party by service of process.’”
Id. ¶ 28. (quoting Richards v. Jefferson County, 517 U.S. 793,
798 (1996)). 	In this case, it is clear from the record that the
juvenile court never considered Mr. Austin a party to either the
neglect and abuse proceedings against Mother or the State’s
petition to terminate Mother’s parental rights. 	The juvenile
court’s October 26 order specifically states “that the initial
action before the Court did not involve Mr. Austin as he had not
established his paternity and had no parental rights before the
Court[,]” and “[t]he action against the mother was separate from
any proceedings regarding Mr. Austin.”
¶35 	While the State was aware of Mr. Austin’s status as the
“putative father,” it never asserted any allegations of abuse or
neglect against Mr. Austin or initiated any proceedings to
terminate Mr. Austin’s parental rights. 	Furthermore, while Mr.
Austin was appointed counsel, he was only present and represented
at two hearings before Mother voluntarily relinquished her
parental rights. 	And both of these hearings left open the
possibility of Mr. Austin becoming a party to the action by
demonstrating his paternity. 	Because Mr. Austin was never a
party to the prior action, we hold that the first requirement of
claim preclusion is not met.
¶36 	While failure of any one of the three requirements is
sufficient to prevent the application of claim preclusion, we
also address the requirement of a final judgment on the merits.
B. 	The Court Entered No Final Judgment on the Merits
¶37 	The juvenile court erred by interpreting its October 26
order as a final judgment on the merits of Mr. Austin’s paternity
claim. 	We previously have stated that “‘[o]n the merits’ is a
term of art that means that a judgment is rendered only after a
court has evaluated the relevant evidence and the parties’
substantive arguments.” 	Miller v. USAA Cas. Ins. Co., 2002 UT 6,
¶ 42 n.6, 44 P.3d 663 (citing Black’s Law Dictionary 1117 (7th
ed. 1999)). 	In Penrod v. Nu Creation Creme, Inc., we held that a
claim dismissed for lack of subject matter jurisdiction does not
constitute an adjudication on the merits. 	669 P.2d 873, 876-77
(Utah 1983). 	Relying on the reasoning in Penrod, the court of
appeals has stated that “[d]efault for inaction of a party
involves no more discussion of the merits than a judgment based

11 	No. 20071015
on jurisdiction. 	Both are matters of form rather than
considerations of substance and legal rights.” 	State v.
Ruscetta, 742 P.2d 114, 116 (Utah Ct. App. 1987).
¶38 	Here, the October 26 order was not an adjudication on
the merits of Mr. Austin’s paternity claim. 	Instead it was a
procedural finding that determined that Mr. Austin had yet to
establish himself as the legal father of D.A. and that the
juvenile court no longer had jurisdiction to entertain his
paternity claim.
¶39 	Because Mr. Austin was never made a party to the
termination proceedings, the “same parties” requirement is not
met. 	In addition, the final judgment on the merits requirement
is not met. 	Therefore, the juvenile court erred in relying on
principles of res judicata to deny Mr. Austin’s motion to
determine his rights pursuant to Utah Code section 78-30-4.14.
We now address whether Mr. Austin waived his right to notice and
consent by failing to establish paternity before Mother
relinquished her parental rights.
III. 	MR. AUSTIN DID NOT WAIVE HIS RIGHT TO NOTICE AND CONSENT BY
FAILING TO ESTABLISH PATERNITY BEFORE MOTHER RELINQUISHED HER
PARENTAL RIGHTS
¶40 	Relying on Utah Code section 78-30-4.13(3), the State
argues that a putative father’s failure to establish legal
paternity before a biological mother relinquishes her rights,
results in a complete waiver of his rights. 	Mr. Austin agrees
that an unmarried biological father may waive his rights to
notice and consent if he fails to initiate paternity proceedings
before the mother relinquishes her rights and the child is placed
with adoptive parents before the child reaches six months of age.
However, in the case of a child who is placed with adoptive
parents after six months of age, Mr. Austin argues that an
unmarried biological father has until the adoption is final to
assert his rights as long as he can demonstrate that he can meet
the requirements of section 78-30-4.14(4). 	We agree with Mr.
Austin.
¶41 	Utah Code section 78-30-4.13 states in relevant part:
(3)(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 under Title 78,

No. 20071015 	12
Chapter 45g, Utah Uniform Parentage Act;
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.
. . . .
(3)(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.
Utah Code Ann. § 78-30-4.13(3)(a) & (d) (emphases added).
¶42 	The use of the word “may” in subsection (3)(a)
indicates an acceptable manner in which an unmarried biological
father can preserve his right to notice and consent. 	But
compliance with this portion of the statute is not mandatory to
preserve the biological father’s right to notice and consent
because the statute does not indicate that this is the only
manner in which an unmarried biological father can preserve his
right to notice and consent. 	While subsection (3)(d) uses the
term “shall,” it is merely in reference to the permissive action
allowed in section (3)(a). 	Thus, based on the plain language of
section 78-30-4.13, an unmarried biological father can elect to
preserve his right to notice and consent by initiating a
paternity action. If he chooses this route, he must do so before
the mother relinquishes her parental rights. 	However, an
unmarried biological father may instead choose to rely on his
substantial relationship with a child who is older than six
months of age in order to assert his right to notice and consent.
See Utah Code Ann. § 78-30-4.14(4). 	In such a case, the court
need not require a DNA test unless there is a dispute about
whether the man who seeks notice and consent as the unmarried
biological father of a child being placed for adoption is, in
fact, the child’s biological father.
¶43 	Here, it is undisputed that Mr. Austin did not
establish paternity before Mother relinquished her parental
rights. 	However, given the above analysis, we find that this did
not result in a waiver of Mr. Austin’s right to notice of and

13 	No. 20071015
consent to D.A.’s adoption because Mr. Austin may alternatively
rely on a substantial relationship with his child in order to be
entitled to notice and consent.
IV. 	ESTABLISHMENT OF PATERNITY IS NOT A PREREQUISITE TO THE
ASSERTION OF RIGHTS AS AN “UNMARRIED BIOLOGICAL FATHER” UNDER
SECTION 78-30-4.14(4)
¶44 	When a child is placed with adoptive parents after six
months of age, an unmarried biological father is not required to
establish paternity before seeking the right to notice of and
consent to any adoption. 	Utah Code section 78-30-4.14 governs
when consent to adoption is required and from whom. 	The State
argues that the juvenile court did not err in declining to hold
an evidentiary hearing on Mr. Austin’s motion to declare his
rights pursuant to section 78-30-4.14 because he never
established that he was D.A.’s “unmarried biological father”. 	In
other words, the State argues that an unmarried biological father
must establish paternity as a prerequisite to asserting any
rights under section 78-30-4.14 and, therefore, because Mr.
Austin had not established paternity he could not assert any
rights under this section. 	We disagree.
¶45 	“Under our rules of statutory construction, we look
first to the statute’s plain language to determine its meaning.”
State v. Gallegos, 2007 UT 81, ¶ 12, 171 P.3d 426 (internal
quotation marks omitted). 	“Furthermore, the plain language of a
statute is to be read as a whole, and its provisions interpreted
in harmony with other provisions in the same statute and with
other statutes under the same and related chapters.” 	State v.
Schofield, 2002 UT 132, ¶ 8, 63 P.3d 667 (internal quotation
marks omitted). 	As demonstrated below, the plain language of
Utah Code section 78-30-4.14 indicates that an unmarried
biological father need not establish paternity before asserting
the right to notice of and consent to the adoption of a child
where the child is placed with adoptive parents more than six
months after birth.
¶46 	The term “unmarried biological father” is defined in
the statutory scheme as “a person who: 	(a) is the biological
father of a child; and (b) was not married to the biological
mother of the child . . . at the time of the child’s: 	(I)
conception; or (ii) birth.” 	Utah Code Ann. § 78-30-1.1(6). 	The
State argues that this definition requires a putative father to
affirmatively establish that he “is the biological father” before
he may assert any right to notice and consent under section 78-
30-4.14. 	Under the State’s interpretation, a paternity test
would always be required before a putative father could assert

No. 20071015 	14
any right to notice and consent, regardless of the age of the
child.
¶47 	The State’s proposed interpretation of an “unmarried
biological father” cannot be read in harmony with the plain
language of section 78-30-4.14. 	Section 78-30-4.14(1)(f) states
that “consent to adoption of a child . . . is required from . . .
an unmarried biological father of an adoptee, only if he strictly
complies with the requirements of Subsections (4) through (8) and
(10).” 	Thereafter, the statute draws a clear distinction between
the requirements for an unmarried biological father of a child
placed with adoptive parents prior to six months of age and the
unmarried biological father of a child placed after six months of
age. 	Specifically, Subsection (4) applies when a child is placed
with adoptive parents after six months of age, while Subsection
(6) applies when a child is placed with adoptive parents prior to
six months of age. 	See id. § 78-30-4.14 (4) & (6).
¶48 	Subsection (4) does not require an unmarried biological
father to establish paternity before seeking the right to notice
and consent. 	Rather the requirements of Subsection (4) focus on
the putative father’s relationship with and commitment to a child
who is placed with adoptive parents after six months of age. 	Id.
§ 78-30-4.14(4)(a)-(b). 	If the unmarried biological father can
demonstrate compliance with the requirements of Subsection (4),
his right to notice and consent must be honored, regardless of
whether he has previously established paternity.
¶49 	Although Subsection (6) of section 78-30-4.14
specifically requires that the unmarried biological father
“initiate[] proceedings . . . to establish paternity,” this
subsection only applies “with regard to a child who is six months
of age or less at the time the child is placed with adoptive
parents.” 	Id. § 78-30-4.14(6). 	Further, Subsection (6) does not
mandate that paternity be established, rather, it only requires
that a paternity proceeding be “initiate[d]” prior to seeking
rights under section 78-30-4.14.
¶50 	This distinction between biological fathers of infants
placed before six months of age and those of infants placed after
six months of age conforms to the United States Supreme Court’s
requirement that “due process considerations be different
depending on the level of parental relationship established by
the unmarried biological father.” 	John A. Bluth, Can an
Unmarried Biological Father Recover His Child and Damages?, 2002
Utah L. Rev. 577, 589 (2002); see Lehr v. Robertson, 463 U.S.
248, 261 (1983) (“When an unwed father demonstrates a full
commitment to the responsibilities of parenthood by [coming]

5 Utah Code section 78-30-4.24 (Supp. 2007) provides the
standing requirement for one seeking a determination of any
rights to a child who is placed for adoption and states that
“[a]ny interested party may petition a court having jurisdiction
over adoption proceedings for a determination of the rights and
interests of any person who may claim an interest in a child
under this chapter, at any time prior to the finalization of the
adoption.” 	Utah Code Ann. § 78-30-4.24 (emphasis added). 	While
we have not specifically addressed this in the main body of the
opinion, we note that Mr. Austin has always held himself out to
be the biological father of D.A., has filed an affidavit of
paternity with both the juvenile court and the district court,
and has attempted to initiate paternity proceedings within the
district court. 	Therefore, he surely qualifies as an “interested
party” under the broad language of this standing statute.
15 	No. 20071015
forward to participate in the rearing of his child, his interest
in personal contact with his child acquires substantial
protection under the Due Process Clause.” (internal quotation
marks omitted)(alteration in original)).
¶51 	Under the plain language of Utah Code section 78-30-
4.14, we hold that establishment of legal paternity is not a
prerequisite to an unmarried biological father’s right to notice
and consent in cases where the child is older than six months of
age when placed with adoptive parents. 5 	There is no dispute that
D.A. was older than six months of age when he was placed with
adoptive parents. 	Therefore, the juvenile court erred by denying
Mr. Austin an evidentiary hearing to determine whether he had
complied with the requirements of section 78-30-4.14(4).
CONCLUSION
¶52 	The juvenile court erred in failing to hold an
evidentiary hearing to determine whether Mr. Austin established a
substantial relationship with D.A. sufficient to entitle him to
notice and consent under Utah Code section 78-30-4.14. 	The
juvenile court’s October 26, 2007 order was not a final
substantive determination of Mr. Austin’s paternity, rather it
was a procedural finding that Mr. Austin had not yet established
paternity. 	As such, the October 26, 2007, order does not have
any waiver or res judicata effect. 	Mr. Austin did not waive his
right to notice and consent by failing to establish paternity
prior to Mother’s relinquishment of her parental rights. 	And
establishment of paternity is not a prerequisite to asserting the
right to notice of and consent to an adoption in cases where the
child is older than six months of age when placed with adoptive
parents. 	We therefore remand this matter to the juvenile court

No. 20071015 	16
with instructions that it hold an evidentiary hearing to
determine whether Mr. Austin has complied with the requirements
of section 78-30-4.14.
¶53 	Chief Justice Durham, Associate Chief Justice Durrant
and Justice Nehring concur in Justice Parrish’s opinion.
---
WILKINS, Justice, dissenting:
¶54 	I respectfully dissent. 	I would affirm the decision of
the juvenile court.
¶55 	As the majority opinion notes, only the order of
December 18, 2007, is before us on appeal. 	That order correctly
denied Mr. Austin’s “Motion for Determination of Rights Pursuant
to Utah Code § 78-30-4.14” by which he attempted to revive his
lost opportunity to establish a legal right to participate in the
adoption proceeding then before the juvenile court. 	At the time
of the December motion, Mr. Austin had taken no effective steps
to preserve his claimed standing as the biological father of the
child, and had failed to avail himself of the opportunities given
him by the juvenile court.
¶56 	On the record before it, the juvenile court could not
have found Mr. Austin to have been the biological parent of the
child, nor could it have found him to be the legal parent of the
child. 	To have done so would have been without evidentiary
support, and error.
¶57 	Mr. Austin was not a party to the abuse, neglect and
dependency proceeding against the child’s biological mother.
When he was named by the mother as the child’s biological father,
the juvenile court appointed counsel to protect Mr. Austin’s
interests as the putative biological father and offered Mr.
Austin the opportunity to establish his biological relationship
to the child through DNA testing. 	Mr. Austin failed to do so in
a timely manner, and the juvenile court, in accord with various
statutory mandates, proceeded to resolve the matter as to the
only recognized parent, the mother, accepting her voluntary
relinquishment of any claim of parental rights.
¶58 	Again, as the majority opinion notes, on the
termination of the biological mother’s parental rights, the
juvenile court lost jurisdiction to determine Mr. Austin’s
paternity of the child. 	Consequently, Mr. Austin’s motion filed
the day prior to the termination trial date seeking to intervene

17 	No. 20071015
as a party and for paternity testing was untimely. 	Without
establishing his legal relationship with the child, Mr. Austin
had no standing to participate in the termination trial against
the mother. 	And since the juvenile court had already ordered
paternity testing for Mr. Austin, testing he could have availed
himself of anytime after August 9, 2007 when the State and Mr.
Austin agreed to it, his October motion was fatally untimely.
¶59 	Notwithstanding the majority’s suggestion that the
juvenile court should have somehow heard and resolved Mr.
Austin’s October 17 motion prior to the October 18 termination
trial, no such mandate exists for the juvenile court. 	To the
contrary, a motion filed on October 17, if considered at all,
must allow all parties notice and a chance to respond.
Appropriately, the juvenile court held a hearing one week later
to consider and resolve Mr. Austin’s motion.
¶60 	The juvenile court’s ruling was factually and legally
correct, in all regards: 	The burden to establish his legal claim
on the child rested on Mr. Austin; he had failed to do so; as
such, he was a ‘legal stranger’ to the child and the termination
proceedings and could not be admitted as a party from which might
accrue the due process rights he claimed; and finally, since the
termination proceeding was concluded, no termination action
remained in which Mr. Austin could intervene, and the juvenile
court was without jurisdiction to act further on his request as
it applied to establishing paternity.
¶61 	Mr. Austin elected to not appeal this order. 	The order
was final in that it resolved all remaining issues related to Mr.
Austin’s participation in any fashion in the child welfare case.
¶62 	In December 2007, Mr. Austin filed a new motion in the
adoption proceeding before the juvenile court, asking the
juvenile court to determine that he was entitled to notice and
hearing in the adoption proceeding because he had met the
requirements of Utah Code section 78-30-4.14 (Supp. 2007). 	The
juvenile court denied the motion on December 18, 2007 on the
basis that Mr. Austin had still failed to establish his paternity
and was therefore still a ‘legal stranger’ to the child;
therefore his consent was not required for any adoption. 	This
order Mr. Austin appeals.
¶63 	The juvenile court was absolutely correct in its order
of December 2007. 	Mr. Austin had not established his paternity,
or for that matter any other legally cognizable relationship with
the child, and as such was entitled to no more notice than any
other stranger to the child. 	The operative fact found by the

No. 20071015 	18
juvenile court is that Mr. Austin had not established his
paternal relationship with the child. 	On appeal, Mr. Austin does
not dispute this factual finding. 	He argues that he has yet to
be given the opportunity to do so. 	This, of course, is
incorrect. 	As Mr. Austin indicated at argument before us, a
paternity action was pending in the district court at that very
time. 	Nothing prevented Mr. Austin from filing such an action at
any time from conception of the child until the present. 	In
August of 2007 the juvenile court made clear that establishing a
legal father-to-child relationship was necessary for Mr. Austin
to participate in the proceedings, and by extension, to receive
any process, due or otherwise, in the course of those
proceedings.
¶64 	In my view, the language of 78-30-4.14 is not ambiguous
in any meaningful way. 	The clear intention of the statute, and
the overall title, is to provide an unambiguous way for a man
claiming fatherhood to protect himself from just such
consequences as Mr. Austin now faces. 	However, because of the
exceptionally strong federal and state policies on the speed with
which children must be placed in a permanent and healthy
relationship, biological parents and putative biological fathers
have a very restricted time within which to take legal steps to
protect any claim to parental rights. 	The statute here requires
a putative father to take action sooner if a child is less than
six months old when placed for adoption. 	However, it clearly
does not permit the putative father of a child more than six
months old when placed for adoption to enjoy an unending
opportunity to establish paternity. 	When, as here, a putative
father delays the completion of an adoption for a period of
years, the majority would interpret the statute to allow any act
seeking to establish paternity during that period to be legally
effective, so long as it is complete prior to the adoption
becoming final. 	I do not agree with this interpretation.
¶65 	I read 78-30-4.13 to require any action by the putative
father to be “consistent with Subsection (3)(d)” in that it must
be filed within the time specified in (3)(d). 	In this, I differ
from my colleagues.
¶66 	I would affirm the judgment of the juvenile court. 	Mr.
Austin’s failure to act timely to establish his claim of
fatherhood has denied him that chance. 	The right of the child to
a permanent set of parents with which to build a life is
paramount.
---