In re Adoption of T.B.

2010 UT 42
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
In the matter of the adoption 	No. 20090074
of T.B., a person under eighteen
years of age.
________________________________
T.M.,
Appellant,
v.
F I L E D
B.B. and S.B.,
Appellees. 	May 14, 2010
---
Second District, Ogden Dep’t
The Honorable Roger S. Dutson
No. 072900020
Attorneys: 	Michael J. Boyle, Daniel S. Drage, Ogden, for
appellant
Larry S. Jenkins, Lance D. Rich, Salt Lake City, for
appellees
---
On Certification from the Utah Court of Appeals
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	This appeal from the district court’s denial of a
putative father’s motion to set aside the adoption of T.B., his
biological daughter, was certified to this court by the court of
appeals. 	We must determine whether the district court possessed
jurisdiction to rule on the putative father’s motion and assess
the as-applied constitutionality of the provisions of Utah’s
adoption code that establish the circumstances under which an
unwed natural father has the right to consent to an adoption.

1 Because all the parties to this case are juveniles, we
refer to them throughout this opinion either by initials or by
their relationship to T.B., the adopted child.
No. 20090074 	2
¶2 	We determine that the putative father’s challenge to
T.B.’s adoption was properly before the district court and that
the district court correctly concluded that the application of
Utah’s adoption code to the putative father did not violate his
constitutional rights. 	Accordingly, we affirm the district
court’s dismissal of the putative father’s motion to set aside
the adoption decree.
BACKGROUND
¶3 	As a result of a sexual relationship between A.B.,
T.B.’s natural mother, and T.J.M., T.B.’s putative father, 1 the
natural mother became pregnant with T.B. in 2006. 	The natural
mother and the putative father never married, and their
relationship ended prior to T.B.’s birth.
¶4 	The putative father was aware of the pregnancy and made
attempts to obtain receipts from the natural mother and her
parents so that he could assist with prenatal medical expenses.
He also requested that the natural mother sign a release allowing
him access to T.B.’s medical information so that he could monitor
T.B.’s progress during the pregnancy. 	The natural mother and her
parents refused these requests.
¶5 	On the day T.B. was born, the natural mother, despite
having promised the putative father that she would coordinate
with him to allow him to be present at T.B.’s birth, registered
in a different hospital than originally planned as a “silent
patient.” 	The putative father was nevertheless able to locate
the room and visited T.B. and the natural mother on the day T.B.
was born. 	T.B.’s maternal grandparents, who were present in the
hospital room during the putative father’s visit, disapproved of
his association with T.B., and T.B.’s maternal grandfather
offered the putative father a “$120,000 walking ticket” if he
would depart from T.B.’s life. 	The putative father characterizes
this as an offer to pay him off; the grandfather claims he was
merely calling his attention to the expenses he could avoid by
not raising T.B.
¶6 	Whatever the nature of the maternal grandfather’s
offer, the putative father declined the invitation, and insisted
on remaining involved in T.B.’s life. 	He came to an informal
agreement with the natural mother and her parents under which he

3 	No. 20090074
would help pay monthly child support expenses and be allowed some
visitation rights.
¶7 	The putative father had contact with T.B. during the
first five months of her life. 	He spent parent-time with T.B.
for three to five hours, two times a week, usually at his
parents’ home. 	He also had family pictures taken with T.B. and
held a baby shower for her. 	Occasionally, the putative father or
his parents would take T.B. to daycare. 	For a time, the maternal
and paternal grandparents coordinated daycare schedules. 	The
putative father also purchased child care supplies so that when
he was with T.B. he, or his parents, would be able to care for
her needs.
¶8 	Shortly after T.B.’s birth, and unbeknownst to the
putative father, the natural mother and her parents initiated
adoption proceedings. 	The natural mother’s parents, who were
T.B.’s maternal grandparents, filed a petition to adopt T.B. on
February 23, 2007--sixteen days after T.B. was born. 	The case
was assigned to Judge Roger S. Dutson of the Second District. 	On
April 2, 2007, the natural mother consented to the adoption and
relinquished her parental rights before the district court.
¶9 	On June 20, 2007, the natural mother’s parents informed
the putative father that they were in the process of adopting
T.B. and that the adoption would extinguish his parental rights.
Approximately one month later, on July 18, 2007, the putative
father filed a Verified Petition for Order of Paternity, Custody
and Child Support in the district court, naming the natural
mother as a defendant. 	The paternity action was assigned to
Judge Ernest W. Jones. 	After July 29, 2007, just over a week
following the putative father’s filing of his paternity action,
the natural mother and her parents refused to allow the putative
father to have any further contact with T.B. 	The adoption decree
was entered on August 16, 2007.
¶10 	On August 20, 2007, the natural mother filed a motion
to dismiss the putative father’s paternity action, arguing that
the district court lacked subject matter jurisdiction over T.B.
since both of the natural parents’ rights had been terminated by
T.B.’s adoption. 	Judge Jones dismissed the putative father’s
paternity action with prejudice on September 4, 2007. 	The
putative father filed a motion to set aside the dismissal on
September 20, 2007, which Judge Jones granted on December 12,
2007. 	Judge Jones subsequently transferred the paternity action
to Judge Dutson, who ordered it consolidated with the adoption
proceedings.

No. 20090074 	4
¶11 	Shortly after the putative father’s paternity action
was transferred to Judge Dutson, the putative father filed a
motion to have the adoption decree set aside. 	The motion was
filed under the same case number as the original adoption
proceeding, even though the putative father was not named as a
party in that proceeding and had not filed a motion to intervene.
The putative father argued that (1) the adoption was void because
the adoptive parents had not strictly complied with the adoption
code, (2) the application of the adoption code to terminate his
parental rights unconstitutionally violated his rights to due
process and equal protection, and (3) the termination of his
parental rights was contrary to public policy given his
commitment to fatherhood.
¶12 	The natural mother responded to the merits of the
putative father’s claims, arguing that his motion failed to
satisfy the requirements of rule 60(b) for obtaining relief from
a final judgment. 	She also argued that, in any event, the
adoption decree was proper because the adoption code was
constitutional and the putative father had failed to adequately
comply with the statutory requirements for obtaining a right to
consent to the adoption of T.B. 	The natural mother’s opposition
memorandum did not contain any objection to the court’s
jurisdiction, aside from a brief statement in a footnote noting
that the putative father’s motion “seem[ed] premature” because he
was not a party to the adoption action and had not attempted to
intervene.
¶13 	The natural mother subsequently filed a notice to
submit for decision and the district court denied the putative
father’s motion to set aside the adoption on July 3, 2008. 	The
court held that “present law” required it “to sustain the
adoption” because it was undisputed that the putative father had
failed to comply with the requirements of the adoption code. 	The
court also stated, in dicta, that it appeared that the putative
father’s motion to set aside was insufficient because “[t]here
appear[ed] to be no grounds within Rule 60 that would support
[the putative father’s] attack” and because “[the putative
father] ha[d] failed to act timely in his effort to have the
judgment set aside.” 	Finally, the district court opined that
while this case raised questions regarding whether the Utah
appellate courts’ strict construction of the adoption code was
consistent with the constitutional rights of natural fathers,
these issues were best reviewed by appellate courts.
¶14 	The putative father timely appealed the district
court’s ruling, and the court of appeals certified the case to

2 H.U.F. v. W.P.W., 2009 UT 10, ¶ 19, 203 P.3d 943.
5 	No. 20090074
this court. 	We have jurisdiction pursuant to Utah Code section
78A-3-102(3)(b) (2008).
STANDARD OF REVIEW
¶15 	The putative father’s challenge to the adoption decree
presents questions of constitutional law and statutory
interpretation, which we review for correctness. 2
ANALYSIS
¶16 	On appeal, the putative father argues that the adoption
code is unconstitutional as applied to him in that it violates
his rights to due process and equal protection under the federal
constitution. 	The natural mother responds by arguing that the
district court lacked jurisdiction to rule on the putative
father’s motion to set aside the adoption decree because he never
intervened in the adoption proceedings. 	She also contends that,
even if the district court did properly reach the merits of the
putative father’s motion, its decision to deny the motion should
be affirmed because (1) there is no dispute that the putative
father failed to obtain the right to consent through compliance
with the requirements of the adoption code and (2) our prior case
law establishes that the adoption code is constitutional as
applied in this case.
¶17 	We first analyze whether the district court was correct
in reaching the merits of the putative father’s motion, and,
because we conclude that it was, we then address the district
court’s ruling on the merits.
I. 	THE DISTRICT COURT PROPERLY REACHED THE MERITS OF THE
PUTATIVE FATHER’S MOTION BECAUSE THE MOTION QUALIFIED AS A
COLLATERAL ATTACK ON THE ADOPTION DECREE PERMITTED UNDER UTAH
CODE SECTION 78B-6-133(7)
¶18 	On appeal, the natural mother argues that the district
court lacked jurisdiction to address the merits of the putative
father’s motion because he failed to intervene in the adoption
proceeding. 	Although she acknowledges that the district court
consolidated the putative father’s paternity action with the
adoption proceeding, the natural mother asserts that while
“consolidation is permitted as a matter of convenience and
economy in administration, [it] does not merge the suits into a
single case . . . or make those who are parties in one suit
parties in another.” 	Because the putative father never sought to

3 See Ostler v. Buhler, 1999 UT 99, ¶ 7, 989 P.2d 1073.
4 Utah Code Ann. § 78B-6-133(7)(c)(i) (2008).
5 Id. § 78B-6-133(7)(a).
6 Id. § 78B-6-133(7)(b).
7 Id. § 78B-6-133(7)(d) (emphasis added).
No. 20090074 	6
intervene in the adoption proceeding, the natural mother contends
that he is not a party to the adoption and that both this court
and the district court are jurisdictionally barred from reaching
the merits of his motion. 3 	We need not address the natural
mother’s arguments regarding intervention, however, because we
conclude that, even if the putative father did not intervene, his
motion qualified as a collateral challenge to the adoption decree
as permitted by Utah Code section 78B-6-133.
¶19 	Although section 78B-6-133 does not set forth a
particular vehicle for mounting a collateral attack to an
adoption decree, it clearly contemplates that such an attack may
be made. 	Section 78B-6-133(7) imposes limitations on the right
to contest adoptions, “regardless of whether the adoption is
contested directly or collaterally.” 4 	Specifically, the statute
prohibits three groups of persons--parties to the adoption
proceeding, persons served with notice of the adoption
proceeding, and persons who have executed a consent to the
adoption or a relinquishment of parental rights--from contesting
adoptions at all (other than by appeal in the adoption proceeding
itself) 5 and imposes a one-year limit on the time during which
any challenge to a decree of adoption may be made. 6
¶20 	By expressly negating the right of these three specific
categories of persons to challenge an adoption by a means other
than direct appeal, it is clear that the statute contemplates
that a person not within these categories may bring a challenge
to an adoption decree--so long as the challenge is brought within
one year of the entry of the decree of adoption. 	This conclusion
is further supported by subsection 78B-6-133(7)(d), which makes
clear that an appeal may be taken from both a district court’s
entry of a “final decree of adoption” and a court’s decision “in
an action challenging an adoption.” 7
¶21 	And although the statute does not name the specific
procedural vehicle for mounting a collateral challenge,
subsection 78B-6-133(7)(d) suggests that a separate action
challenging the adoption, on whatever ground, is a proper means

8 See In re San Rafael River Drainage Area, 844 P.2d 287,
291-92 (Utah 1992) (“‘Except where provided by statute, a
consolidation in equity does not merge the suits and they
maintain their separate identity in so far as the parties,
issues, and proof are concerned.’” (quoting 1A C.J.S. Actions
§ 217, 690 (1985))).
9 Indeed, the putative father filed the paternity action
prior to the entry of the adoption decree, so, at the time the
action was filed, he could not have expressly sought to have the
decree set aside.
7 	No. 20090074
of challenging an adoption decree. 	Therefore, so long as the
putative father (1) does not fall within the categories expressly
excluded from challenging an adoption decree and (2) mounted a
collateral challenge to T.B.’s adoption within a year of the
entry of the decree, the district court had jurisdiction under
section 78B-6-133(7) to entertain the merits of the putative
father’s challenge.
¶22 	Here, the natural mother does not dispute that the
putative father is not a party to the adoption proceeding.
Indeed, she strenuously argues that he is not. 	Although his case
was consolidated with the adoption, the natural mother correctly
notes that the consolidation did not merge the two actions or
make him a party to the adoption proceeding. 8 	The record also
does not indicate that the putative father was served with notice
of the adoption proceeding or that he had either consented to
T.B.’s adoption or executed a relinquishment of his parental
rights. 	Therefore, we conclude that the putative father falls
within the class of individuals who the statute contemplates may
mount a collateral attack on an adoption decree.
¶23 	We further determine that the putative father’s
paternity action, as well as his motion to set aside, qualify as
timely collateral challenges to the adoption. 	Both the paternity
action and the motion to set aside were filed within one year of
the entry of T.B.’s adoption decree. 	Additionally, the substance
of both make clear that they are direct challenges to T.B.’s
adoption. 	The challenge is made explicit in the putative
father’s motion to set aside the adoption, where he seeks to have
the adoption decree rendered void and his parental rights
reinstated. 	And in his paternity action, the putative father,
while not expressly calling for the adoption to be set aside, 9
sought relief from the district court--including an order
changing T.B.’s last name and an order of custody and parent-
time--that was clearly incompatible with the termination of his
parental rights. 	Because the putative father brought these

10 Utah Code Ann. § 78B-6-121(1) (2008).
11 Id. § 78B-6-121(3).
No. 20090074 	8
collateral challenges to the adoption within the allowed one-year
time period, we hold that the putative father’s challenge was
properly before the district court. 	We must now resolve the
questions certified to us by the court of appeals.
II. 	THE DENIAL OF THE PUTATIVE FATHER’S RIGHT TO CONSENT
PURSUANT TO SECTION 78B-6-121 IS CONSTITUTIONAL
¶24 	Although he acknowledges the facial constitutionality
of the adoption code, the putative father asserts that its
application to him is unconstitutional, both under the Due
Process and Equal Protection clauses of the United States
Constitution. 	Specifically, the putative father argues that the
statutory provisions denying him the right to consent to T.B.’s
adoption are unconstitutional as applied to him because he had
acquired, by virtue of the substantial relationship he developed
with T.B. prior to the entry of the adoption decree, a
fundamental parental liberty interest--including the right to
consent to T.B.’s adoption--protected by the Due Process clause.
¶25 	He also contends that the adoption code is an
unconstitutional violation of his right to equal protection
because it unjustifiably differentiates between unwed natural
fathers based solely on the age of their child. 	Utah’s adoption
code provides that, for children six months and older, the extent
of an unwed natural father’s relationship with his child should
be considered in determining whether he has the right to consent
to that child’s adoption. 10 	The statute requires no similar
consideration for fathers of children under six months of age. 11
The putative father argues that it is irrational for the
legislature to draw this distinction. 	We address each of his
arguments in turn.
A. 	Denial of the Putative Father’s Right to Consent in T.B.’s
Adoption Is Not an Unconstitutional Deprivation of Liberty
Without Due Process of Law Because the Putative Father Has Not
Acquired a Fundamental Parental Right in the Care, Custody, and
Control of T.B.
¶26 	Utah’s adoption code provides that an unwed natural
father may acquire the right to consent to an adoption by
satisfying certain statutory requirements. 	Absent this, the
statute states that “consent of an unmarried biological father is

12 Id.
13 Id. § 78B-6-121(3)(a)-(d).
14 Id. § 78B-6-121(3). 	In this case, these acts occurred on
April 2, 2007. 	Thus, the putative father could have taken the
statutory steps necessary to preserve his parental rights at any
time prior to this date. 	This time period includes not only the
weeks following T.B.’s birth, but also the nine months during
which the natural mother was pregnant.
9 	No. 20090074
not required.” 12 	According to statute, the father must (1)
initiate paternity proceedings; (2) file notice that he has
commenced paternity proceedings with the state registrar of vital
statistics; (3) file a sworn affidavit with the district court
stating that he is willing and able to take full custody of the
child, setting forth his plans to care for the child, and
agreeing to a court order of child support and payment of medical
expenses; and (4) offer to assist, and actually assist, with
expenses associated with the pregnancy and birth. 13 	Each of
these requirements must be satisfied prior to the time that the
natural mother executes her consent to adoption or relinquishes
the child for adoption. 14 	It is undisputed that the putative
father did not comply with a number of these requirements, if for
no reason other than his failure to initiate paternity
proceedings until July 18, 2007--more than three months after the
natural mother executed her consent to T.B.’s adoption.
¶27 	But the putative father does not argue that he has
acquired the right to consent to T.B.’s adoption by statute;
rather, he contends that he acquired a constitutional parental
right of consent by virtue of voluntarily assuming parental
obligations and developing a substantial relationship with his
daughter. 	He asserts that, based on his interactions with T.B.
in between her birth and when she was adopted, he obtained
fundamental parental rights--including the right to consent to
her adoption--which cannot be taken away by statute absent a
compelling state interest.
¶28 	Although he acknowledges that the adoption code
generally serves the compelling interest of realizing speedy and
final adoptive placements, the putative father contends that the
code does not serve that compelling interest in his case because
T.B.’s adoption was an in-home placement. 	Since an in-home
placement does not change the day-to-day living circumstances of
the adopted child--because the child continues to live in the
same home and continues to be cared for by the same people as
before--he argues that there is no compelling need for the

15 Troxel v. Granville, 530 U.S. 57, 65-66 (2000) (“[I]t
cannot now be doubted that the Due Process Clause of the
Fourteenth Amendment protects the fundamental right of parents to
make decisions concerning the care, custody, and control of their
children.”).
16 Lehr v. Robertson, 463 U.S. 248, 257 (1983).
17 Id. at 260 (emphasis and internal quotation marks
omitted).
No. 20090074 	10
premature termination of an unwed natural father’s parental
rights based solely on procedural noncompliance. 	The putative
father characterizes T.B.’s in-home placement as a “sham
adoption,” made solely for the purpose of “excising” him from his
daughter’s life. 	Regardless of whether the state interest served
by the statutory denial of a right to consent in the context of a
traditional adoption would be sufficient to override his parental
rights, the putative father argues that a “sham adoption” does
not justify such an infringement.
¶29 	We first address the putative father’s argument that he
has acquired fundamental parental rights based on the
relationship he developed with T.B. prior to her adoption.
Because we conclude that the putative father did not acquire a
constitutional right to consent prior to the natural mother’s
relinquishment of T.B. for adoption, we need not address the
putative father’s contention that in-home adoptive placements do
not serve the compelling interests that could justify infringing
on such a fundamental parental right.
¶30 	While the United States Supreme Court has recognized
that the Fourteenth Amendment provides parents a protectable
liberty interest in “the care, custody, and control of their
children,” and that such an interest is a fundamental right, 15
the Court has not extended this same fundamental right to unwed
natural fathers based solely on the existence of a biological
connection. 	Instead, the Court has stated that “the rights of
the parents are a counterpart of the responsibilities they have
assumed.” 16 	As a result, constitutionally protectable
“[p]arental rights do not spring full-blown from the biological
connection between parent and child. 	They require relationships
more enduring.” 17
¶31 	In Lehr v. Robertson, the Court determined that what
the Due Process clause protects, at least as far as an unwed
natural father is concerned, is the “opportunity” to develop a
relationship, by taking a responsible role in the life of his

18 Id. at 262.
19 Thurnwald v. A.E., 2007 UT 38, ¶ 25-26, 163 P.3d 623
(“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. . . . 	In Lehr, the United States Supreme Court
recognized that individual states may define when an unwed father
has grasped that opportunity.” (alteration in original)
(citations and internal quotation marks omitted)).
20 Lehr, 463 U.S. at 261.
21 Utah Code Ann. § 78B-6-121(3).
11 	No. 20090074
child. 18 	So long as a state’s adoption code contains procedures
that provide a putative father a meaningful chance to preserve
his opportunity to develop a relationship with his child, due
process is satisfied. 19 	If an unwed father develops that
relationship, his parental rights go from being purely statutory
to having “substantial” constitutional protection. 20
¶32 	In this case, the putative father contends that he has
obtained a constitutionally protected right to consent to T.B.’s
adoption by virtue of his having “fully assumed the
responsibilities of parenthood,” and having “established a loving
bond and substantial relationship” with his daughter. 	We
disagree. 	We first note that, in support of his claim that he
has assumed parental responsibilities and established a
substantial relationship, the putative father references actions
he took from the day of T.B.’s birth, on February 7, 2007,
through July 29, 2007, when the natural mother and T.B.’s
maternal grandparents cut off his access to his daughter. 	But
the relevant period of time, at least so far as assessing the
merits of his constitutional challenge is concerned, is from the
day T.B. was born until the day the natural mother consented to
T.B.’s adoption. 	After the natural mother had given her consent,
the putative father’s opportunity to acquire the right to consent
was eliminated by statute. 21 	If he had failed to acquire a right
of consent by that day, the putative father has no valid
constitutional objection to the operation of the statute.
¶33 	In this case, the natural mother consented to T.B.’s
adoption on April 2, 2007--fifty-four days after T.B.’s birth.
We find nothing in the Supreme Court’s past decisions or our own
prior case law suggesting that less than two months of

22 The prior cases in which this court has found due process
violations have been situations in which the putative father had
no reasonable opportunity to comply with the statutory procedures
through which he could protect his provisional parental rights.
See, e.g., In re Adoption of Baby Boy Doe, 717 P.2d 686 (Utah
1986) (finding an unwed natural father’s due process rights
violated by application of the adoption code where the mother hid
the fact that she would deliver her baby in Utah, the baby was
born prematurely, and the father did not know the child had been
born in Utah until after relinquishment for adoption); Thurnwald
v. A.E., 2007 UT 38, 163 P.3d 623 (stating that if Utah Rule of
Civil Procedure 6 had not extended time for unwed fathers to file
a paternity suit, the due process rights of an unwed father would
have been violated where the father was unable to meet the
statutory deadline because his child was born over the weekend
when the courts were closed). 	We have not specifically addressed
the exact nature and length of the relationship required to
obtain constitutional parental rights under Lehr. 	But the cases
in which the United States Supreme Court has found that an unwed
father acquired constitutionally protected parental rights have
involved fathers whose involvement with their children had been
both active and sustained over a number of years prior to the
statutory termination of their parental rights. 	See, e.g.,
Stanley v. Illinois, 405 U.S. 645 (1972) (finding that a father
who had lived with his children all their lives had a due process
right to present evidence regarding his fitness as a parent prior
to the termination of his parental rights); Caban v. Mohammed,
441 U.S. 380 (1979) (finding that an unwed father who lived with
his children for several years, was listed as their father on
their birth certificates, and had continued to keep in close
contact with the children was entitled to consent to their
adoption). 	This case is readily distinguishable from both this
court’s and the Supreme Court’s prior case law, in that the
putative father had ample time to comply with the statutory
requirements for obtaining a right to consent and had only
sporadic, short-term involvement with T.B. prior to the natural
mother’s consent to the adoption.
23 Lehr, 463 U.S. at 260 (internal quotation marks omitted).
No. 20090074 	12
interaction between an unwed natural father and his child is
sufficient to confer full-blown constitutionally protected
parental rights on a putative father. 22 	While we recognize the
significance that even this short period of interaction may hold
for a putative father, as the Supreme Court stated in Lehr, the
constitution does not confer fundamental parental rights absent a
relationship and commitment that is “more enduring.” 23

24 Id. at 261 (quoting Caban, 441 U.S. at 392).
25 Id. at 262.
26 See infra ¶¶ 53, 56.
27 Lehr, 463 U.S. at 249-50.
28 Id. at 261.
29 Id. (internal quotation marks omitted).
13 	No. 20090074
¶34 	We acknowledge that the Supreme Court has not examined
how long a relationship must endure before it will be deemed the
kind of “substantial relationship” that gives rise to the liberty
interest asserted by the putative father in this case. 	Some of
the language in Lehr suggests that a substantial relationship can
be developed as long as the father merely “‘[comes] forward to
participate in the rearing of his child,’” 24 or takes “some
measure of responsibility for the child’s future.” 25 	The dissent
relies on this language to conclude that a putative father need
merely start down a path toward parental responsibility in order
to attain the right to veto an adoptive placement of his child. 26
¶35 	For a number of reasons, however, these statements from
Lehr cannot be read to give rise to parental rights every time an
unwed father develops some relationship with his child. 	First,
the father in Lehr had “never supported and rarely seen” his
daughter in the two-year time period between his daughter’s birth
and when he filed a petition for the child’s adoption. 27 	Given
these facts, it is unsurprising that the Court would call
attention to the father’s failure to meet even the lowest of
requirements. 	But saying that the father in Lehr could not
invoke constitutional protection because he failed to take “some
measure of responsibility” is not the same as saying that such
protection attaches to every father who takes any measure of
responsibility. 	Indeed, in Lehr, the Court described the
“difference between the developed parent-child relationship . . .
and the potential relationship” as “both clear and
significant.” 28 	The former requires the father to “demonstrate[]
a full commitment to the responsibilities of parenthood by coming
forward to participate in the rearing of his child” and to “act[]
as a father toward his children.” 29 	In the words of the Court,
“[t]he importance of the familial relationship . . . stems from
the emotional attachments that derive from the intimacy of daily
association, and from the role it plays in promoting a way of

30 Id. (internal quotation marks omitted).
31 See id.
32 441 U.S. 380, 392 (1979).
33 Id. at 382.
34 Id. at 392.
35 The father in Stanley v. Illinois lived with the mother
of his children for eighteen years. 	During this time, they had
three children, all of whom he had raised and lived with for
their entire lives. 	405 U.S. 645, 646, 650 n.4. 	In Caban, the
father had lived with his two children until they were,
respectively, two and four years old. 	441 U.S. at 381-82.
No. 20090074 	14
life.” 30 	Read in this context, the Court’s statements about
taking “some measure of responsibility” and “coming forward to
participate in the rearing of [a] child” 31 should not be
construed as identifying the event that will trigger
constitutional protection. 	They are better understood as an
articulation of the failures of the father in that case.
¶36 	This conclusion is reinforced by the fact that the
first time the Supreme Court addressed the requirement that a
father “come forward to participate in the rearing of his child”
was in Caban v. Mohammad.32 	In that case, the father had lived
with and supported his two children for several years. 33 	Those
facts prompted the Court to find that he had developed a
substantial relationship with his children--a relationship the
Court contrasted with cases where a father “never has come
forward to participate in the rearing of his child.” 34 	This
statement was meant to identify those situations where
constitutional protection will certainly not apply, not to
suggest that constitutional protection always applies in every
other case.
¶37 	The proposition that constitutionally protected
substantial relationships must be developed over a period of time
is supported by comparison of relevant Supreme Court cases. 	In
Stanley v. Illinois and Caban v. Mohammed, two cases where the
parental rights of unwed fathers were found to warrant
constitutional protection, the fathers had assumed responsibility
for their children for years. 35 	In contrast, in Lehr the
father’s interests were found not to garner constitutional

36 Lehr, 463 U.S. at 249-50.
37 434 U.S. 246 (1978).
38 Id. at 247.
39 Id. at 250-51 (internal quotation marks omitted).
40 Id. at 249, 252-53.
41 Id. at 253.
42 Id. at 256 (emphasis added).
15 	No. 20090074
protection where he had taken no responsibility for his daughter
in the two years following her birth. 36
¶38 	Also instructive is Quilloin v. Walcott.37 	In that
case, a father sought the right to refuse to consent to the
adoption of his daughter by the child’s stepfather. 38 	The father
had “provided support only on an irregular basis,” but had “given
toys and gifts” to his child “from time to time,” and had “on
many occasions” visited with the child. 39 	This relationship,
such as it was, persisted for eleven years after the child’s
birth before the stepfather initiated adoption proceedings. 40
The father argued that state statutes that treated him
differently from a married father violated federal equal
protection standards. 41 	In rejecting his argument, the Court
characterized his relationship with his daughter as follows:
“[H]e has never exercised actual or legal custody over his child,
and thus has never shouldered any significant responsibility with
respect to the daily supervision, education, protection, or care
of the child.” 42
¶39 	These hallmarks of parental responsibility differ from
the factors that the dissent proposes should be used to measure
the substance of the relationship between T.B. and the putative
father in this case. 	The dissent proposes that the putative
father’s relationship garners full-blown constitutional
protection because: 	he was aware of the pregnancy and made an
effort to assist with prenatal expenses; he sought to monitor the
progress of the pregnancy and was present on the day of T.B.’s
birth; he entered an agreement to pay child support; he visited
T.B. regularly before T.B. was relinquished for adoption; he
purchased child-care supplies for T.B.; and he had pictures taken

43 Infra ¶ 57.
44 Quilloin, 434 U.S. at 256.
45 Thurnwald v. A.E., 2007 UT 38, ¶ 25-26, 163 P.3d 623.
46 Infra ¶ 57.
No. 20090074 	16
with T.B. 43 	While we do not intend to discount the value of
these actions, they strike us as falling short of “shoulder[ing]
any significant responsibility with respect to the daily
supervision, education, protection, or care of the child.” 44
Admittedly, the relevant Supreme Court cases do not definitively
address how much responsibility a father must bear to acquire the
right to veto an adoptive placement. 	But they do provide
valuable guidance regarding whether a relationship is so
“enduring” and “substantial” that the state must, in spite of its
statutory scheme, grant the father the right to withhold his
consent to an adoptive placement of the child.
¶40 	Although an unwed natural father may be fully willing
to take the actions that would establish such a relationship--and
may even attempt to do so--the constitution itself does not
require that adoption be postponed (or re-evaluated) in order to
guarantee him enough time to develop a substantial relationship
with his child. 	Instead, the constitution requires that the
state provide meaningful procedures through which the father may
protect his opportunity to do so. 	As we have recognized in the
past, due process guarantees an unwed natural father the right to
preserve his parental opportunity by following state
procedures. 45 	If he fails to comply with the procedures
available to protect his right to develop an enduring, committed
relationship with his child, a putative father risks the
possibility that the natural mother’s relinquishment of the child
may eliminate his opportunity to acquire constitutionally
protectable parental rights before he has been able to obtain
them.
¶41 	Although the dissent questions what more the putative
father in this case could have done to safeguard his rights, 46
the answer to that question is not elusive–-he could have
complied with the statutory scheme established by the Utah
Legislature for acquiring the right to withhold consent to an
adoption, even in the absence of a constitutionally protected
substantial relationship. 	In Utah, a father can protect his
opportunity to develop a relationship with his child by complying
with the relevant statutory provisions--whether the child’s
mother cooperates or not--at any time after the father learns the

47 Utah Code section 78B-6-121(3)(d)(i) (2008) provides that
a father’s failure to comply with the statutory requirements will
not cut off his rights to notice and consent if “he did not have
actual knowledge of the pregnancy.” 	Because it is undisputed
that T.B.’s putative father knew of the pregnancy, we have no
need to examine the operation of this statutory provision.
48 717 P.2d 686, 691 (Utah 1986) (holding that “[u]nder the
circumstances of [that] case,” representations of the mother,
combined with actions of her family, a premature birth of which
the putative father was unaware, and the putative father’s
absence from the state at the time of birth rendered the
termination of the putative father’s parental rights “contrary to
basic notions of due process”).
17 	No. 20090074
mother is pregnant. 47 	In this case, T.B.’s putative father had
more than fifty days after T.B’s birth, in addition to the time
during which T.B.’s natural mother was pregnant, to take the
necessary statutory steps to protect his interest.
¶42 	Here, we have not been presented with a statutory
scheme that permits a child’s mother to control whether a
putative father’s parental rights will be extinguished. 	Rather,
Utah’s statutory scheme permits a father to protect himself by
invoking statutory procedures before the child is relinquished
for adoption. 	The putative father in this case has simply failed
to do so. 	He does not dispute that he was aware of the natural
mother’s pregnancy. 	Indeed, he communicated with the natural
mother prior to T.B.’s birth and was able to locate her in the
hospital the day T.B. was born. 	At any time prior to T.B.’s
birth, the putative father could have complied with Utah’s
statutory requirements for obtaining a right to consent to T.B.’s
adoption. 	Furthermore, he had an additional fifty-four days from
T.B.’s birth to the natural mother’s consent to the adoption
during which he could have obtained a right to consent by
fulfilling the requirements of section 78B-6-121. 	This is not
the “exceptional” case, as was In re Adoption of Baby Boy Doe,
where a combination of factors denied the putative father a
reasonable opportunity to preserve his chance to develop a
relationship with his child. 48
¶43 	Nor is it a case where state law has overlooked the
liberty interests of a father who has developed a relationship
with his children over the course of years. 	In Stanley v.

49 405 U.S. 645 (1972).
50 441 U.S. 380 (1979).
51 See Stanley, 405 U.S. at 646 (father lived with his three
children and their mother intermittently for eighteen years);
Caban, 441 U.S. at 389, 392-93 (father “participate[d] in the
rearing of his child” and “established a substantial
relationship” over the course of several years).
No. 20090074 	18
Illinois 49 and Caban v. Mohammed 50 the state statutes examined by
the Supreme Court were constitutionally infirm because they
failed to account for years of parental responsibility and
financial support undertaken by biological fathers. 51 	While we
do not mean to discount the relationship between the putative
father and T.B., it is not the kind of relationship deemed
“substantial” in those cases. 	As such, the United States
Constitution does not require that these adoption proceedings be
overturned in spite of the opportunity to preserve his rights
that was afforded to, but not seized by, the putative father.
¶44 	Accordingly, we determine that the putative father
failed to secure the statutory right to consent to the adoption
because he did not comply with the statutory requirements.
Furthermore, we hold that the putative father’s constitutional
rights were not violated where he had an adequate opportunity to
comply with these statutory requirements. 	Because the putative
father failed to do so, and because the relationship he developed
over two months is insufficient to give rise to constitutional
protection independent of state law, the denial of the putative
father’s right to consent pursuant to section 78B-6-121(3) did
not operate to deny him liberty without due process of law.
B. 	The Denial of the Putative Father’s Right to Consent Without
Consideration of His Relationship to T.B. Does Not Violate His
Right to Equal Protection Because There Is a Rational Basis for
the Statutory Distinction Between Fathers of Children Based on
the Age of Their Adopted Child
¶45 	The putative father also argues that the application of
Utah’s adoption code violates his right to equal protection
because it does not provide for consideration of his relationship
with T.B. simply because T.B. happened to be under six months old
at the time the natural mother executed her consent to the
adoption.
¶46 	The Equal Protection clause of the federal constitution
requires that similarly situated individuals be treated

52 ABCO Enters. v. Utah State Tax Comm’n, 2009 UT 36, ¶ 14,
211 P.3d 382.
53 Clark v. Jeter, 486 U.S. 456, 461 (1988).
54 Gallivan v. Walker, 2002 UT 89, ¶ 40, 54 P.3d 1069
(“Where a legislative enactment implicates a fundamental or
critical right or creates classifications which are considered
impermissible or suspect in the abstract, we apply a heightened
degree of scrutiny.” (internal quotation marks omitted)).
55 See id. ¶¶ 82-83.
56 See Swayne v. L.D.S. Soc. Servs., 795 P.2d 637, 643 (Utah
1990) (“‘[T]he state has a strong interest in speedily
identifying those persons who will assume the parental role over
[illegitimate] children . . . .’” (quoting Wells v. Children’s
Aid Soc’y of Utah, 681 P.2d 199, 203 (Utah 1984) (second
alteration in original))).
57 In the context of an equal protection challenge based on
the statutory distinctions made between mothers and fathers, we
have thoroughly examined this state interest:
“It is and should be the policy of the law to
(continued...)
19 	No. 20090074
similarly. 52 	Whenever a legislative classification treats two
groups differently, the constitution requires that the
classification must be rationally related to a legitimate
government interest. 53 	Additionally, the law is required to pass
heightened scrutiny when it either classifies based on a suspect
criterion--such as race--or burdens a fundamental right. 54 	In
these cases, the constitution demands that the classification be
a narrowly tailored means of advancing a compelling government
interest. 55 	Thus, in order to prevail on his equal protection
claim, the putative father must either show that (1) the
distinction between fathers based on the age of their child is
not rationally related to a legitimate state interest or (2) the
distinction burdens one of his fundamental rights and fails to
pass strict scrutiny.
¶47 	As we have noted in our prior cases, the state has a
strong interest in placing children with adoptive parents who
will take responsibility for their care and custody. 56 	And in
order not to diminish the pool of potential adoptive parents, the
state has a related interest in making these proceedings speedy
and final and in mitigating the contentiousness and uncertainty
that might undermine an adoptive placement. 57 	In order to

57 (...continued)
so operate as to encourage the finding of
suitable homes and parents for children in
that need. 	It is obvious that persons who
might be willing to accept a child for
adoption will be more reluctant to do so if a
consenting parent is permitted to arbitrarily
. . . [change] her mind and revoke the
consent, and thus desolate the plan of the
adoptive parents and bring to naught all of
their time, effort, expense and emotional
involvement . . . . 	A moment’s reflection
will reveal that to the degree that such
commitments are given respect and solidarity,
so they can be relied upon, persons desiring
children will be willing to accept and give
them homes. Conversely, to the degree that
such commitments can easily be withdrawn and
the adoptive plan thus destroyed, such
persons will tend to be discouraged from
doing so.”
Wells, 681 P.2d at 203 (alteration in original) (quoting In re
Adoption of F, 488 P.2d 130, 134 (Utah 1971)). 	This reasoning is
equally applicable here.
No. 20090074 	20
advance this interest, the legislature has determined that it
will not permit an unwed father to contest an adoption if his
child is under six months of age and if the father has otherwise
failed to meet the relevant statutory obligations. 	Later in the
child’s life, the state’s interests may change--because the
father-child relationship becomes substantial, because older
children are harder to place with adoptive parents, or because an
older child is more likely to suffer emotional trauma by being
placed with a new family. 	In light of these considerations, we
cannot conclude that this statutory distinction is an irrational
way of advancing the state’s interests at differing stages of a
child’s life.
¶48 	Furthermore, in light of our determination that the
putative father failed to obtain any fundamental parental rights
in T.B. prior to the natural mother’s consent to the adoption,
the adoption code’s classification of fathers does not burden one
of the putative father’s fundamental rights. 	Because the
classification does not implicate a fundamental right, as applied
to the putative father, there is no need to subject it to
heightened scrutiny in this case.

21 	No. 20090074
¶49 	Accordingly, we find that the provisions of the
adoption code denying the right of consent to the putative father
without consideration of the extent of his relationship with T.B.
are not unconstitutional in violation of his right to equal
protection.
CONCLUSION
¶50 	We affirm the district court’s denial of the putative
father’s motion to set aside the adoption decree because,
although we determine that the motion was properly before the
district court as a collateral challenge, we find that the
statutory provision denying the putative father the right to
consent to T.B.’s adoption did not violate his rights to due
process and equal protection.
---
¶51 	Justice Wilkins and Justice Parrish concur in Associate
Chief Justice Durrant’s opinion.
---
NEHRING, Justice, dissenting:
¶52 	I respectfully dissent. 	Unlike the majority, I
conclude that the putative father’s conduct and his interactions
with T.B. were sufficient to establish a constitutionally
protected substantial relationship under the Due Process Clause
of the United States Constitution.
¶53 	The majority correctly identifies the standard
established by the United States Supreme Court for an unwed
biological father to gain constitutional protection for his
relationship with his child. 	The majority states that “[i]n Lehr
v. Robertson, the Court determined that what the Due Process
Clause protects, at least as far as an unwed natural father is
concerned, is the opportunity to assume a responsible role in the
future of his child.” 	Supra ¶ 31. 	While the majority also
correctly states that in a vast number of cases, state laws
adequately protect this opportunity, “[i]n some cases . . . the
Federal Constitution supersedes state law” to provide greater
protection for certain parent-child relationships. 	Lehr v.
Robertson, 463 U.S. 248, 257 (1983). 	This parental right “[does]
not spring full-blown from the biological connection between
parent and child,” but “require[s] relationships more enduring.”
Id. at 260 (emphasis and internal quotation marks omitted).
Indeed, it is only “[w]hen an unwed father demonstrates a full

1 To bolster its assertion that years are required to
develop a substantial relationship, the majority relies heavily
on Stanley v. Illinois, 405 U.S. 645 (1972) and Caban v.
Mohammed, 441 U.S. 380 (1979), two cases where the United States
Supreme Court recognized a substantial relationship between an
unwed father and his child after years of interaction. 	The
majority also relies on Lehr v. Robertson, 463 U.S. 248 (1983)
and Quilloin v. Walcott, 434 U.S. 246 (1978) to argue that the
relationship between T.B.’s father and his child more closely
mirrors the facts in cases where the Court has declined to
recognize a substantial relationship warranting federal
constitutional protection.
While T.B.’s father did not assume responsibility for his
daughter for a period spanning “years,” it is also inaccurate to
characterize T.B.’s father as taking “no responsibility” at all,
like the father in Lehr, 463 U.S. at 262, or as being only
sporadically and irregularly involved from “time to time” like
the father in Quilloin, 434 U.S. at 251. 	Rather, T.B.’s father
falls somewhere on the spectrum between these cases. 	While the
majority finds nothing that confirms that two months of weekly
parental responsibility is enough to create an enduring
relationship worthy of constitutional protection, I find nothing
in the relevant United States Supreme Court precedent that
prevents recognition of a substantial relationship under these
circumstances.
No. 20090074 	22
commitment to the responsibilities of parenthood by coming
forward to participate in the rearing of his child,” that his
relationship “with his child acquires substantial protection
under the Due Process Clause.” 	Id. at 261 (internal quotation
marks omitted).
¶54 	Although the majority correctly concludes that federal
constitutional protection may arise to protect a father’s
substantial relationship with his child, according to the
majority, this constitutional right is only triggered if the
father’s relationship with his child is for “years.” 	Supra ¶ 33
n.22. 	Indeed, the majority states that “less than two months of
interaction between an unwed natural father and his child is
[in]sufficient to confer full-blown constitutionally protected
parental rights on a putative father.” 1 	Supra ¶ 33.
¶55 	Contrary to the majority’s statement, there is nothing
in the relevant Supreme Court jurisprudence that so much as
suggests that the Court has endorsed any minimum time period for
the creation of a more “enduring” relationship worthy of
constitutional recognition, much less that it must be a
relationship over a period of years. 	In fact, the majority

2 The majority also relies substantially on Quilloin, 434
U.S. 246, to assert that a father must take more action than
T.B.’s father did in this case in order to trigger a federal
constitutional liberty interest requiring substantial protection.
See supra ¶ 38. 	Quilloin involved the constitutionality of a
state statute that authorized adoption of a child born out of
wedlock without the consent of the natural father. 	434 U.S. at
247. 	In the eleven years preceding the adoption, the father
never sought to legitimize his child, nor did he, at any point,
seek custody over him. 	Id. at 249. 	The father had notice of the
adoption proceedings and participated in a hearing where he was
allowed to address “any issue” he desired. 	Id. at 250. 	At the
hearing, extensive testimony from the parties established that
the father “provided support only on an irregular basis,” “[gave]
toys and gifts” to his child “from time to time,” and visited his
child sporadically for the first eleven years of the child’s
life. 	Id. at 250-51. 	Further, the mother testified that the
contacts with the father “were having a disruptive effect on the
child” and “[t]he child himself expressed a desire to be adopted
by [his step-father] and to take on [his stepfather’s] name.”
Id. at 251. 	From this evidence, the trial court found that an
adoptive placement with the child’s stepfather was in the best
interest of the child. 	Id.
On appeal, the father made both an equal protection and a
due process argument that his substantive rights were violated by
the application of the best interests of the child standard. 	Id.
at 254. 	The Court rejected the father’s claims and stated the
father “never exercised actual or legal custody over his child,
and thus . . . never shouldered any significant responsibility
with respect to the daily supervision, education, protection, or
care of the child.” 	Id. at 256.
T.B.’s case is factually distinguishable from Quilloin.
First, unlike the father in Quilloin, T.B.’s father had no
knowledge, notice, or opportunity to participate in the adoption
proceedings and was thus not presented with the same
opportunities to be heard as the father in Quilloin. 	Compare
supra ¶ 8 with Quilloin, 434 U.S. at 249-50.
Second, unlike Quilloin, T.B.’s father had a very short time
period to interact with T.B. before his parental rights were
(continued...)
23 	No. 20090074
itself recognizes that “the Supreme Court has not examined how
long a relationship must endure before it will be deemed the kind
of ‘substantial relationship’ that gives rise to [a] liberty
interest” worthy of constitutional protection, supra ¶ 34, nor
has the Supreme Court definitively addressed “how much
responsibility a father must bear to acquire the right to veto an
adoptive placement.” 2 	Supra ¶ 39. 	Thus, while the Supreme Court

2 (...continued)
terminated, and thus his opportunity to demonstrate his intent to
parent T.B. was significantly more limited. 	In spite of this
limitation, and unlike the father in Quilloin, T.B.’s father
sought to be T.B.’s parent and at all times “insisted” on being
involved in T.B.’s life. 	In his two-month period with T.B.,
T.B.’s father took on several parental-like responsibilities
relative to the care and protection of his child. 	See supra
¶¶ 6-7. 	Although T.B.’s father never exercised actual or legal
custody of his daughter, his multiple visits each week and his
contribution of time and money to the child’s upbringing
establishes an interaction that was significantly greater than
the isolated and sporadic contacts and support of the father in
Quilloin.
Finally, while throughout the majority’s opinion it
emphasizes the need for an enduring relationship for “years,”
Quilloin demonstrates that it is the substance and quality of the
father’s actions that is most critical to the analysis, not the
duration of the relationship. 	Indeed, a focus on the duration
contributes to the cruel irony that, while here, the father’s
claims fail because his parental relationship with T.B. was too
brief, in Quilloin, the father’s relationship fails because it
was too long.
No. 20090074 	24
cases offer guidance on how to define a substantial relationship,
whether a substantial relationship between father and child
exists depends on the particular facts of each case.
¶56 	I recognize that the child’s age in this case presents
a perplexing problem: 	the United States Supreme Court precedent
protects an unwed father’s opportunity to assume a responsible
role in the life of his child, and yet, in this case, the
father’s parental rights were terminated before the father had
much of an opportunity to do so. 	But the fact that a father has
had little time to develop this relationship does not
conclusively preclude a relationship from arising. 	Lehr only
requires that the putative father take “some measure of
responsibility for the child’s future,” which can be accomplished
even over a short duration of time. 	See Lehr, 463 U.S. at 262.
¶57 	When I examine the facts of the present case, short of
strict compliance with our statutory mandates, it is difficult to
imagine what additional measures the father could have undertaken
to secure a constitutionally protected parent-child bond with his
daughter. 	As the majority noted, “[t]he putative father was
aware of the pregnancy and made attempts to obtain receipts” in
an effort to assist with prenatal medical expenses. 	Supra ¶ 4.
He “requested that the natural mother sign a release allowing him

25 	No. 20090074
access to T.B.’s medical information so that he could monitor
T.B.’s progress during the pregnancy.” 	Id. ¶ 4. 	Despite active
efforts by the family to exclude him, the father found the mother
the day of T.B.’s birth, and was present in the hospital the day
his child was born. 	Id. ¶ 5. 	After T.B.’s birth, the father
entered into an agreement to pay child support, visited the child
for several hours multiple times a week, “purchased child care
supplies,” took family pictures with T.B., and at all times
“insisted on remaining involved in T.B.’s life.” 	Id. ¶¶ 6-7.
¶58 	T.B.’s father concedes that he did not comply with the
four statutory filing requirements that are conditions to
including an unwed biological father within the class of persons
whose consent must be obtained before a child may be adopted. 	I
would not find the statutory requirements to be unconstitutional,
but neither would I make it impossible for a father to establish
a constitutionally recognized relationship simply because he
failed to strictly comply with the statute. 	See Osborne v.
Adoption Ctr. of Choice, 2003 UT 15, ¶ 70, 70 P.3d 58 (Durham,
J., dissenting) (“To terminate [this father’s] fully developed
parental rights without notice and a hearing, based on strict
application of statutory requirements, violates notions of
fundamental fairness.”). 	I believe that T.B.’s father “did what
was reasonably possible in the time he had. . . . 	The law does
not intend that impossible requirements be met.” 	See Escobedo v.
Nickita, 231 S.W.3d 601, 618-19 (Ark. 2006) (Hannah, J.,
dissenting) (citation omitted). 	It is for these reasons that I
decline to join the majority’s opinion.
---
¶59 	Chief Justice Durham concurs in Justice Nehring’s
dissenting opinion.