H.U.F. v. W.P.W.

2009 UT 10
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
H.U.F. and G.F., 	No. 20070610
Petitioners and Appellees,
v.
F I L E D
W.P.W.,
Respondent and Appellant. 	February 10, 2009
---
Fourth District, Provo Dep’t
The Honorable Lynn W. Davis
No. 062400069
Attorneys: 	Hutch U. Fale, Provo, Nathan E. Burdsal, Salt Lake
City, for petitioners
H. Mifflin Williams, III, Salt Lake City, Claudia
McGee Henry, Los Angeles, CA, for respondent
---
On Certification from the Utah Court of Appeals
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	In this case, W.P.W. (“Putative Father”) challenges the
adoption of Baby Girl Stine (“B.G.S.”), arguing that the district
court erred in ordering the adoption of B.G.S. without his
consent. 	H.U.F. and G.F. (“Adoptive Parents”) defend the
district court’s order by arguing that the Putative Father’s
consent to the adoption was not necessary because he failed to
comply with the statutory requirements that give a putative
father the right to contest an adoption.
¶2 	Specifically, the parties raise the following issues on
appeal:

No. 20070610 	2
(1) Whether the Putative Father’s appeal is moot
because he appealed only one of two dispositive orders;
(2) Whether Utah’s statutory scheme for adoptions
violated the Putative Father’s due process and equal
protection rights, and whether these constitutional
challenges were preserved;
(3) Whether the Putative Father complied with Utah Code
section 78-30-4.14, which establishes the requirements
a putative father must meet before he may contest an
adoption;
(4) Whether the district court should have granted full
faith and credit to Arizona’s Paternity Order;
(5) Whether the district court should have held an
evidentiary hearing; and
(6) Whether the Putative Father’s appeal is frivolous,
warranting the award of attorney fees to the Adoptive
Parents.
¶3 	We affirm the district court’s decision.
BACKGROUND
¶4 	On or about September 22, 2005, while the Birth Mother
was pregnant with B.G.S., she served two men with notice that she
intended to place her baby for adoption through LDS Family
Services in Mesa, Arizona. 	The notice stated that if its
recipient wished to assert parental rights to the baby, he was
required to initiate a paternity action pursuant to Arizona
Revised Statute section 8-106 within thirty days of receipt of
the notice. 	The notice also included the full text of Arizona
Revised Statute section 8-106. 	In addition, the Birth Mother
published public notices in Arizona newspapers four times over a
period of four weeks between September and October 2005. 	The
public notices were addressed to, “William Patrick Wilks or
Nathaniel Davis or John Doe.”
¶5 	In response, the Putative Father filed a Notice of
Claim of Paternity with the Arizona Office of Vital Records on
September 29, 2005. 	This filing placed the Putative Father’s
name on the Putative Father Registry in Arizona. 	As a
registrant, the Putative Father had the right to be identified by

1 At first blush, these statements appear contradictory--the
natural father is unknown, yet he received actual notice of the
Birth Mother’s move to Utah. 	They are reconcilable, however.
Because the Birth Mother was having sexual relations with two
(continued...)
3 	No. 20070610
the vital statistics office if the office were to receive a
search letter regarding the child whom the Putative Father
claimed he fathered. 	Thereafter, the entity assisting in the
placement of the child for adoption would be responsible for
notifying the Putative Father of any legal proceedings regarding
the child. 	The vital statistics office indicated in a letter to
the Putative Father that he must follow the provisions of Arizona
Revised Statute section 8-106 to establish paternity.
¶6 	In February 2006, the Birth Mother filed a petition
with an Arizona justice court seeking a protective order against
the Putative Father. 	A hearing was held on the matter on
February 7. 	At the hearing, counsel representing the Birth
Mother stated that the Birth Mother “went to Utah to get away
from [the Putative Father], and to be up there, and that’s where
she is, and there’s no need for [the Putative Father] to be
allowed to harass her.” 	The Putative Father responded, “Yes, um
[the Birth Mother] told me when she moved to Utah.”
¶7 	The Putative Father never registered with the Utah
Office of Vital Statistics as a putative father.
¶8 	On February 15, 2006, one hundred and forty-five days
after being served with notice that the Birth Mother intended to
place her baby for adoption, the Putative Father filed a petition
for paternity with the Superior Court of Arizona, Maricopa
County. 	Because the Putative Father failed to properly serve the
Birth Mother, the petition was not granted.
¶9 	B.G.S. was born in Utah on March 4, 2006. 	Two days
later, in the Fourth Judicial District Court of Utah, the Birth
Mother willingly relinquished all of her parental rights and
responsibilities to the Adoptive Parents. 	The Birth Mother also
stated to the district court that she was not, nor had she ever
been, married to the natural father of B.G.S. and that the
identity of the father was unknown. 	Further, she stated that the
natural father had not initiated a paternity action in Utah,
despite having actual notice that the Birth Mother had moved to
Utah and planned to give birth to the baby in Utah. 1

1 (...continued)
different men around the time she became pregnant, she was unsure
which man was the natural father. 	Because she gave both men
actual notice of her move to Utah, it is accurate to state that
the “unknown” father received “actual” notice of the Birth
Mother’s move to Utah.
No. 20070610 	4
¶10 	On March 15, 2006, the Adoptive Parents filed a
petition for temporary custody and guardianship and a verified
petition for adoption, wherein they indicated that “[p]ursuant to
Utah Code Ann. § 78-30-4.14, the consent of the natural mother is
the only consent required in order for the Court to grant the
instant petition.” 	They further stated that the presumed natural
father had actual notice and knowledge that the Birth Mother
resided in Utah and that she intended to give birth in Utah.
They also stated that the presumed natural father had not
registered with the Office of Vital Statistics in the Utah
Department of Health, nor had he begun a paternity proceeding in
the State of Utah. 	On March 17, 2006, the district court granted
the Adoptive Parents “full and complete custody and guardianship
of [B.G.S.] until such time when the Court issues a final order
concerning Petitioner’s Petition for Adoption.”
¶11 	On April 11, 2006, the Putative Father again petitioned
the Superior Court of Arizona, Maricopa County for a declaration
of paternity. 	Again, he failed to properly serve the Birth
Mother.
¶12 	On July 25, 2006, in the Superior Court of Arizona, the
Putative Father filed a Voluntary Petition for Order of Paternity
signed by the Birth Mother. 	In an order dated August 2, 2006,
the Arizona court “note[d]” that this voluntary petition
“resolv[ed] the paternity issue.” 	The court also noted that it
lacked jurisdiction to determine custody or child support and
ordered that the matter be transferred to Utah for further
proceedings.
¶13 	On July 27, 2006, the Putative Father requested that
the Utah court open the sealed Utah file regarding the adoption
proceedings. 	Then, in the Utah court on September 1, 2006, the
Putative Father filed an intervenor’s response to the petition
for adoption. 	In an affidavit filed with the court, the Putative
Father stated that the Birth Mother told him “verbally and by e-
mail . . . that she would not give affiant’s baby up for adoption

5 	No. 20070610
and that she would always keep in touch with affiant.” 	Further,
the Putative Father stated in the affidavit that he “had no
knowledge whatsoever, and received no notice whatsoever that [the
Birth Mother] resided in Utah and intended to give birth to
[B.G.S.] in Utah.”
¶14 	On August 31, 2006, and again on November 27, 2006, the
Birth Mother submitted an affidavit stating to the Utah court
that she never gave the Putative Father notice that she had moved
to Utah or planned to give birth in Utah. 	With the second
affidavit, the Birth Mother included an e-mail that she had sent
to the Putative Father on February 14, 2006, one week following
the protective order hearing. 	The e-mail stated, “[my parents]
made me tell all my friends and some family that I moved to Utah
when I really didn’t, nor do I have any intentions of moving to
Utah.”
¶15 	On December 12, 2006, the Adoptive Parents moved to
dismiss the Putative Father’s objection to the adoption and
motion to intervene. 	On February 2, 2007, the district court
held a hearing on the matter. 	Counsel for the Putative Father
requested that the matter be argued only on the law and objected
to an evidentiary argument. 	The court declined to determine the
type of hearing and, instead, left the matter up to counsel. 	At
the hearing, the parties did not present any evidence. 	The
Putative Father was present, but his counsel did not call him to
testify.
¶16 	On April 17, 2007, the district court issued one ruling
that granted the Motion to Strike and the Motion to Dismiss. 	In
the ruling, the district court barred the affidavits submitted by
the Birth Mother, finding that they contradicted “the law of the
case” and were obtained unethically. 	Next, the court declined to
give full faith and credit to the Arizona court’s statement
regarding the Putative Father’s paternity, finding that the
Arizona court lacked jurisdiction to issue an order of paternity;
the court also highlighted additional problems with the order
itself. 	Finally, the court ruled that the Putative Father failed
to comply with the Utah statutory requirements for out-of-state
putative fathers. 	Accordingly, the court ruled that the Putative
Father “lack[ed] standing to challenge this adoption,” and
“Petitioners’ Motion to Strike the Objection and to Dismiss the
Motion to Intervene is hereby granted.”
¶17 	The Putative Father appealed, and the court of appeals
heard oral argument in the case. 	After oral argument, but before

2 2008 UT App 152, 184 P.3d 1239.
3 Id. ¶ 10.
4 Peck v. State, 2008 UT 39, ¶ 7, 191 P.3d 4.
5 Glew v. Ohio Sav. Bank, 2007 UT 56, ¶ 18, 181 P.3d 791.
6 In re adoption of S.L.F., 2001 UT App 183, ¶ 9, 27 P.3d
583.
No. 20070610 	6
any decision issued in this case, the court of appeals issued a
split decision in In re K.C.J. 2 	Concerned that its decision in
this case might conflict with its decision in K.C.J., the court
of appeals certified this case for immediate transfer to us,
pursuant to Utah Rule of Appellate Procedure 43(a). 	In K.C.J.,
the court of appeals held that where the district court becomes
aware of a putative father’s interest and desire to participate
in the adoption proceeding, the court should allow the father to
participate, at least to the extent of litigating the legitimacy
of his right to contest the adoption. 3 	We need not reach the
issue presented in K.C.J., however, because the Adoptive Parents
have not challenged the Putative Father’s right to adjudicate
whether he may contest the adoption of B.G.S. 	Rather, the
Adoptive Parents make substantive arguments regarding whether the
Putative Father has the right to contest the adoption.
¶18 	We have jurisdiction pursuant to Utah Code section
78A-3-102(3)(b) (2008).
STANDARDS OF REVIEW
¶19 	The Putative Father challenges the district court’s
interpretation of Utah and Arizona statutes, the district court’s
finding that the Putative Father failed to comply with Utah and
Arizona statutes, and the constitutionality of Utah’s statutory
requirements for putative fathers to establish parental rights.
We review a district court’s interpretation of a statute for
correctness. 4 	We review a district court’s findings of fact
under a clearly erroneous standard. 5 	And we review a district
court’s ruling regarding a statute’s constitutionality for
correctness. 6

7 This statute has been renumbered and revised since the
proceedings of this case. 	Throughout this opinion, we apply the
2005 version of the statute.
8 Black v. Alpha Fin. Corp., 656 P.2d 409, 410 (Utah 1982)
(citations and internal quotation marks omitted).
7 	No. 20070610
ANALYSIS
¶20 	As threshold issues, we first address (1) whether the
Putative Father’s appeal is moot, and (2) whether the Putative
Father preserved a due process and an equal protection challenge.
Holding that the appeal is not moot but that the Putative Father
failed to preserve a due process and an equal protection
challenge, we then address (3) whether the Putative Father
complied with Utah Code section 78-30-4.15 (2005), 7 and (4)
whether the district court should have given full faith and
credit to the Arizona court’s paternity order. 	Finally, we turn
to (5) whether the district court should have held an evidentiary
hearing, and (6) whether the Putative Father’s appeal is
frivolous, warranting attorney fees.
I. THE PUTATIVE FATHER’S CLAIMS ARE NOT MOOT BECAUSE HE
CHALLENGED THE SUBSTANCE OF THE DISTRICT COURT’S ONLY RULING
¶21 	An argument is moot “[i]f the requested judicial relief
cannot affect the rights of the litigants.” 8
¶22 	The Adoptive Parents argue that the Putative Father’s
arguments on appeal are moot because they only address one of two
dispositive orders by the district court. 	Particularly, the
Adoptive Parents argue that the Putative Father only contests the
district court’s order granting the Motion to Dismiss Alleged
Biological Father’s Objection and Motion to Intervene (“Motion to
Dismiss”), without contesting the district court’s order granting
the Motion to Strike the Objection and Motion to Intervene
(“Motion to Strike”). 	The Adoptive Parents state that these
motions served different purposes. 	The Motion to Dismiss
asserted that the Putative Father failed to establish “that he is
entitled to any interest or right to intervene.” 	The Motion to
Strike asserted that the Putative Father’s attempt to intervene

9 The Adoptive Parents claim that the Putative Father
falsely asserted that he did not know that the Birth Mother was
in Utah when in fact he did know she was in Utah.
10 Utah R. App. P. 24(a)(5)(A)-(B) (2008).
11 State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (emphasis
omitted) (citations and internal quotation marks omitted).
12 Id. ¶ 19 (“When a party fails to preserve an issue for
(continued...)
No. 20070610 	8
was based upon a false assertion of a material fact 9 and should
therefore be stricken.
¶23 	The Putative Father argues in his reply brief that in
his opening brief he did challenge the court’s order granting the
Motion to Strike. 	In his opening brief, the Putative Father
challenged the district court’s finding that the Putative Father
had knowledge that the Birth Mother was in Utah. 	Although this
challenge to the Motion to Strike is not explicit--nowhere does
the Putative Father state that he is challenging the Motion to
Strike--the challenge is nonetheless substantively briefed.
Accordingly, we hold that the Putative Father challenged the
Motion to Strike; therefore, the Putative Father’s arguments on
appeal are not moot.
II. 	THE PUTATIVE FATHER FAILED TO PRESERVE HIS DUE PROCESS AND
EQUAL PROTECTION CHALLENGES
¶24 	The Adoptive Parents contend that the Putative Father
failed to preserve a due process challenge and an equal
protection challenge in the district court. 	They are correct.
¶25 	The preservation requirement is found in rule 24(a) of
the Utah Rules of Appellate Procedure, which provides, in
relevant part, that for each issue raised on appeal, an
appellant’s brief must include a “citation to the record showing
that the issue was preserved in the trial court; or a statement
of grounds for seeking review of an issue not preserved in the
trial court.” 10 	To preserve an issue for appeal, the appellant
must have raised “a timely and specific objection” before the
trial court. 11 	We will not address an issue if it is not
preserved or if the appellant has not established other grounds
for seeking review. 12

12 (...continued)
appeal, we will address the issue only if (1) the appellant
establishes that the district court committed plain error, (2)
exceptional circumstances exist, or (3) in some situations, if
the appellant raises a claim of ineffective assistance of counsel
in failing to preserve the issue.” (citation and internal
quotation marks omitted)).
13 The record citation is not at all helpful because it
encompasses the entire record.
9 	No. 20070610
¶26 	Rather than advancing grounds upon which we may review
an unpreserved issue, the Putative Father argues that he
preserved in the trial court all of the issues that he raises on
appeal. 	The Putative Father’s brief makes the following
statement regarding preservation: 	“The issues raised in this
brief were preserved by appellant’s documents filed in the
district court, including his Petition and Motion to Intervene,
and by the issues discussed by the district court in its Ruling
on Motion to Intervene and Motion to Dismiss, dated April 17,
2007.” 	While the brief does not match record citations with
specific issues raised, 13 it does at least reference documents
wherein the issues should be found.
¶27 	Reviewing the documents cited by the Putative Father,
we conclude that the Putative Father did not preserve a due
process challenge or an equal protection challenge. 	The Natural
Father’s Objection and Motion to Intervene as Respondent raises
the following arguments: 	(1) the Putative Father complied with
Utah’s statute that sets guidelines for out-of-state putative
fathers to establish their parental rights; and (2) he complied
with the Arizona requirements for putative fathers to establish
their parental rights. 	In its ruling, the district court
addressed the following issues: 	(1) whether the Birth Mother’s
affidavits should be barred, (2) whether full faith and credit
should be given to Arizona’s statement of paternity, and (3)
whether the Putative Father complied with the Utah requirements
for out-of-state putative fathers to establish paternity rights.
It is clear from our review that neither the Putative Father’s
challenges nor the district court’s rulings consider a due
process or equal protection challenge. 	Accordingly, we will not
address these issues on appeal.

14 Utah Code Ann. § 78-30-4.14 (2005).
15 Id. § 78-30-4.15(4)(a)-(d).
No. 20070610 	10
III. THE PUTATIVE FATHER DID NOT COMPLY WITH THE REQUIREMENTS OF
UTAH CODE SECTION 78-30-4.14
¶28 	Before a putative father may establish the right to
contest an adoption in Utah, he must meet the requirements
outlined in Utah Code section 78-30-4.14 (Supp. 2005). 	One such
requirement is that the putative father register with the Utah
Office of Vital Statistics. 14 	The statute includes an exception
to this requirement, however, if the following circumstances are
satisfied: 	(1) the putative father “resides and has resided in
another state where the unmarried mother was also located or
resided;” (2) “the mother left that state without notifying or
informing the unmarried biological father that she could be
located in the state of Utah;” (3) the putative father “through
every reasonable means, attempted to locate the mother but does
not know or have reason to know that the mother is residing in
the state of Utah;” and (4) the putative father “has complied
with the most stringent and complete requirements of the state
where the mother previously resided or was located, in order to
protect and preserve his parental interest and right in the child
in cases of adoption.” 15
¶29 	The Putative Father admits that he did not comply with
the statute’s general requirements, but he contends that he
qualified for the exception. 	The district court ruled that the
Putative Father did not qualify for the exception because he (1)
did not comply “‘with the most stringent and complete’” Arizona
requirements “‘in order to protect and preserve his parental
interest and right in the child in cases of adoption,’” and (2)
he knew or had reason to know that the Birth Mother could be
located in Utah. 	We address both of the district court’s
findings in turn.
A. The Putative Father Failed to Comply with the Most Stringent
and Complete Arizona Requirements
¶30 	The district court reasoned that the Putative Father
did not comply with the most stringent and complete Arizona
requirements established in Arizona Revised Statute section 8-
106(G) because he did not initiate a paternity action within
thirty days of receiving notice that the Birth Mother intended to

16 Ariz. Rev. Stat. § 8-106(G) (2005).
17 Id. § 8-106(G)(7).
18 Id. § 8-106(G)(3) (emphasis added).
19 Id. § 8-106(G)(7); see also id. § 8-106(I)(8) (suggesting
that the birth mother include the following language in the
notice to the putative father: 	“If you do not file a paternity
action under title 25, chapter 6, article 1, Arizona Revised
Statutes, and do not serve the mother within thirty days after
completion of the service of this notice and pursue the action to
judgment, you cannot bring or maintain any action to assert any
interest in the child.”).
20 Oman v. Davis Sch. Dist., 2008 UT 70, ¶ 35, 194 P.3d 956
(quoting State v. Gallegos, 2007 UT 81, ¶ 12, 171 P.3d 426).
11 	No. 20070610
give B.G.S. up for adoption. 16 	Arizona Revised Statute section
8-106(G) provides, in relevant part, that each potential father
shall be served notice of the planned adoption, and the notice
shall inform the potential father that his “failure to file a
paternity action pursuant to title 25, chapter 6, article 1,” 17
“within thirty days of completion of service” 18 of the notice
prescribed by this section, “bars the potential father from
bringing or maintaining any action to assert any interest in the
child.” 19
¶31 	The Putative Father argues that this language does not
actually impose any time limits on putative fathers because the
language is couched in terms of a requirement that the birth
mother include the language in her notice to the putative father.
He further contends that, for policy reasons, the statute cannot
possibly bar a putative father from establishing paternity at any
time, otherwise if the birth mother decided not to place the baby
for adoption, the putative father would be “off the hook for
child support.” 	Finally, he argues that the notice he received
was ambiguous and therefore did not actually put him on notice of
a mandatory thirty-day limit to initiate a paternity action.
¶32 	The Putative Father’s interpretation of the statute is
unpersuasive because it produces an absurd result and contradicts
the plain language of the statute. 	When we interpret a statute,
“‘we look first to the statute’s plain language to determine its
meaning.’” 20 	We read the plain language of a statute as a whole
and interpret its provisions in harmony with other provisions in

21 Id.
22 Robinson v. Mount Logan Clinic, LLC, 2008 UT 21, ¶ 9, 182
P.3d 333 (citation and internal quotation marks omitted).
23 Section 8-106 is entitled, “Consent to adoption; who shall
consent; waiver; consent to the release of information;
notification to potential fathers.”
No. 20070610 	12
the same statute and with other statutes under the same and
related chapters. 21 	We seek an interpretation that renders all
parts of a statute “relevant and meaningful, and interpretations
are to be avoided which render some part of a provision
nonsensical or absurd.” 22
¶33 	Contrary to the Putative Father’s contention, it would
be absurd for the Arizona legislature to require a birth mother
to give a putative father notice that he had only thirty days to
initiate a paternity action but then give the putative father
unlimited time to initiate the action. 	Such a result would
render meaningless the provision in the required notice section.
Further, the language of section 8-106 is plain and unambiguously
requires a putative father to initiate a paternity action within
thirty days of receiving notice of a planned adoption; otherwise,
he has no right to contest the adoption. 	This interpretation is
not refuted by policy, as the Putative Father contends. 	Limiting
the time in which a putative father may establish the right to
contest an adoption does not limit the putative father’s
financial obligations with respect to that child if the birth
mother chooses not to place the child for adoption. 	Section 8-
106 regards only the right to contest an adoption, not any other
rights or obligations that a putative father may have regarding
his child. 23
¶34 	The Putative Father’s final argument, that the notice
he received was ambiguous, is incorrect and irrelevant. 	He
argues that two paragraphs in the notice “contradict each other
about whether the [Putative Father] must or may initiate a
paternity proceeding in order to establish interest in the
child.” 	We hold that the text of the notice was unambiguous. 	In
one place the notice did read that the Putative Father “may”
initiate a paternity action, and, in another place, it stated
that the Putative Father “must” initiate the action within thirty
days in order to retain a right to contest the adoption. 	This
language is not ambiguous; it simply clarifies that it is not

24 Glew v. Ohio Sav. Bank, 2007 UT 56, ¶ 18, 181 P.3d 791.
13 	No. 20070610
necessary for the Putative Father to initiate a paternity action
if he does not desire to do so. 	However, if he does desire to,
then he must do so within thirty days. 	Even if the notice were
ambiguous, the notice included the text of the statute, which
indicated that the father must initiate a paternity action within
thirty days of receipt of the notice in order to establish the
right to contest the adoption. 	Further, when the Putative Father
registered with the Arizona vital statistics office, he again
received the text of the statute. 	Therefore, the Putative Father
had sufficient notice of the requirement to initiate a paternity
action within thirty days of receipt of the notice of a planned
adoption.
¶35 	We uphold the district court’s finding that the
Putative Father failed to comply with the most stringent and
complete Arizona requirements. 	The Putative Father failed to
initiate a paternity action within thirty days of receiving
notice of a planned adoption, as required by section 8-106.
B. The Putative Father Knew or Had Reason to Know That the Birth
Mother was in Utah
¶36 	The district court reasoned that the Putative Father
knew or had reason to know that the Birth Mother was in Utah
because, at a protective order hearing that was held less than
thirty days before B.G.S. was born, the Birth Mother’s attorney
stated that the Birth Mother “went to Utah to get away from [the
Putative Father], and be up there, and that’s where she is.” 	The
Putative Father responded, “Yes, um [the Birth Mother] told me
when she moved to Utah.” 	We will overturn a district court’s
findings of fact only if they are “clearly erroneous.” 24
¶37 	The Putative Father argues that he did not know that
the Birth Mother was in Utah because he received an e-mail from
the Birth Mother one week following the protective order hearing
stating that she had not moved to Utah. 	To discredit the
attorney’s statement made at the protective order hearing, the
Putative Father argues, “no reasonable unmarried father, seeking
to vindicate his paternity rights, would base his actions on the
representations of the attorney for a woman who has obtained an
order of protection against him.” 	He also argues that he did not
know where the Birth Mother was living because the protective
order prevented him from contacting her.

25 Mori v. Mori, 931 P.2d 854, 856 (Utah 1997) (quoting 	U.S.
Const. art. IV, § 1).
No. 20070610 	14
¶38 	Again, the Putative Father’s arguments are
unpersuasive. 	Utah Code section 78-30-4.14 requires only that a
putative father “have reason to know” that a birth mother was
residing in Utah, not that he have actual knowledge. 	In open
court, the Putative Father testified that the Birth Mother told
him that she had moved to Utah. 	This statement is sufficient for
the district court to find that the Putative Father had reason to
know that the Birth Mother was in Utah. 	Although the Birth
Mother stated a week later in an e-mail to the Putative Father
that she had not moved to Utah, the Putative Father still had
reason to believe she was in Utah because she had previously told
him that she was there, her attorney told him that she was there,
and the Birth Mother’s statement that she had not “moved” to Utah
did not necessarily mean that she was not staying in Utah until
the baby was born and placed for adoption. 	For these reasons,
the district court’s finding that the Putative Father had reason
to know that the Birth Mother was in Utah is not clearly
erroneous.
IV. THE ARIZONA PATERNITY ORDER DOES NOT IMPACT THIS CASE BECAUSE
IT WAS UNTIMELY TO ESTABLISH THE PUTATIVE FATHER’S RIGHT TO
CONTEST THE ADOPTION
¶39 	The Putative Father argues that “the Arizona Order of
Paternity prevents the adoption of B.G.S. without the [Putative
Father’s] permission” and that the district court erred in not
giving full faith and credit to the paternity order. 	We hold
that the district court did err, but the error was harmless
because the Arizona paternity order has no impact on the Putative
Father’s unestablished right to contest the adoption.
A. The District Court Committed Harmless Error When It Failed to
Give Full Faith and Credit to the Arizona Paternity Order
¶40 	“Pursuant to the United States Constitution, ‘Full
Faith and Credit shall be given in each State to the public Acts,
Records, and judicial Proceedings of every other State.’” 25
Specifically, we “give full faith and credit to a declaration of
paternity or denial of paternity effective in another state if

26 Utah Code Ann. § 78B-15-310 (2008).
27 The district court also found two more problems with the
order.
First, the court found that the order was a “nullity”
because it was issued after the Birth Mother relinquished her
rights to B.G.S., and, accordingly the Putative Father lost any
right to contest the adoption. 	We agree. 	The paternity order
was a “nullity” as it pertains to whether the Putative Father may
contest the adoption of B.G.S. 	However, that determination does
not mean that we decline to give the order full faith and credit.
As our analysis indicates, the right to establish paternity is a
separate and distinct right from the right to contest an
adoption. 	The establishment of paternity is only one of many
requirements that a putative father must satisfy before he
establishes the right to contest an adoption. 	In this case, the
Putative Father failed to meet the additional requirements,
therefore it is irrelevant whether he was able to establish
paternity.
Second, the district court stated that the order does not
“solicit[] judicial confidence” for a myriad of technical
reasons. 	Specifically, the court was concerned that the order
was not executed by a judge; the copy provided to the Utah court
was not certified; the copy was handwritten by the Birth Mother;
and the order was amended by the Arizona court, but the Putative
Father failed to present the amended order to the district court.
None of the reasons stated by the district court is supported by
evidence that the order failed to comply with Arizona law, which
is the only requirement we must consider in a full faith and
credit analysis. 	Rule 58(a) of the Arizona Rules of Civil
Procedure requires only that, “all judgments shall be in writing
and signed by a judge or a court commissioner duly authorized to
do so.” 	The Paternity Order in this case was in writing and
signed by the deputy clerk. 	No one has argued that a deputy
clerk is not authorized to sign an order. 	Further, no other
(continued...)
15 	No. 20070610
the declaration or denial has been signed and is otherwise in
compliance with the law of the other state.” 26
¶41 	The district court declined to give full faith and
credit to the Arizona paternity order because the district court
found that “the Arizona Court now recognizes that it lacked
jurisdiction,” and “[t]his Court, not the State of Arizona, has
exclusive jurisdiction regarding custody of [B.G.S.].” 27

27 (...continued)
Arizona requirements have been brought before us. 	Accordingly,
we conclude that the Arizona requirements have been met.
28 In re Complaint Against Smith, 925 P.2d 169, 172 (Utah
1996) (citation and internal quotation marks omitted).
29 Ariz. Rev. Stat. § 25-1002(3)(a) (Supp. 2008).
The Adoptive Parents look to Arizona Revised Statute
sections 25-1031 and 25-1002 to argue that the Arizona court
lacked jurisdiction to issue the paternity order. 	Section 25-
1031(A)(1)-(2) states that Arizona does not have jurisdiction to
“make an initial child custody determination” unless Arizona is
the child’s home state, and a court of another state does not
(continued...)
No. 20070610 	16
¶42 	As to matters of jurisdiction, a judgment is entitled
to full faith and credit “if the same issue as to jurisdiction
was raised in the foreign court and adjudicated therein.” 28 	In
this case, the Arizona court did take testimony and consider its
jurisdiction. 	The Arizona court stated as follows in its order:
After discussion with the parties present, the
Court elicits testimony under oath on the record in
open court that the minor child . . . does not reside
in the state of Arizona and has not resided in the
state of Arizona for the past six (6) months.
Pursuant to A.R.S. § 25-1031, this Court does not
have jurisdiction to determine custody at this time.
(Emphasis added.)
¶43 	However, the Arizona court did not find that it lacked
jurisdiction to issue a paternity order; rather the court stated
that the Voluntary Petition for Order of Paternity “resolv[es]
the paternity issue.” 	The court then ordered the matter
transferred to Utah “for all further proceedings.” 	A lack of
jurisdiction as to a custody determination does not equate to a
lack of jurisdiction as to a paternity determination. 	A “child
custody determination” is “any judgment, decree or other order of
a court, including a permanent, temporary, initial and
modification order, for legal custody, physical custody or
visitation with respect to a child.” 29 	A determination that an

29 (...continued)
have jurisdiction over the child. 	Section 25-1002(4) defines
“child custody proceeding” as “a proceeding, including a
proceeding for divorce, separation, neglect, abuse, dependency,
guardianship, paternity, termination of parental rights and
protection from domestic violence, in which legal custody,
physical custody or visitation with respect to a child is an
issue or in which that issue may appear.” (Emphasis added.)
Thus, the adoptive parents argue that when the Arizona court
stated that it lacked jurisdiction to determine custody, it was
also stating that it lacked jurisdiction to adjudicate paternity
because a custody proceeding is statutorily equivalent to a
paternity proceeding. 	However, the jurisdictional statute
regards a “child custody determination,” not a proceeding. 	Ariz.
Rev. Stat. § 25-1031(A). 	Further, the definition of a “child
custody determination” does not incorporate a paternity
determination: 	a child custody determination is “any judgment,
decree or other order of a court, including a permanent,
temporary, initial and modification order, for legal custody,
physical custody or visitation with respect to a child.” Id. §
25-1002(3)(a). 	Therefore, a lack of jurisdiction over a custody
determination does not equate to a lack of jurisdiction over a
paternity determination.
30 State v. Spillers, 2007 UT 13, ¶ 24, 152 P.3d 315
(alteration in original) (quoting State v. Evans, 2001 UT 22,
¶ 20, 20 P.3d 888).
17 	No. 20070610
individual is the biological father of a child is not a
determination that the biological father has custody or
visitation rights with respect to that child. 	Accordingly, the
Arizona court concluded that it lacked jurisdiction to determine
custody but not to determine paternity.
¶44 	Being aware that the Arizona court had itself concluded
that it had jurisdiction, the Utah district court erred in
addressing the question of whether the Arizona court, in fact,
had jurisdiction. 	However, the error was harmless. 	“‘[H]armless
error is an error that is sufficiently inconsequential that there
is no reasonable likelihood that it affected the outcome of the
proceedings.’” 30 	In this case, the district court’s error in
declining to grant the Arizona paternity order full faith and
credit was harmless because the order has no bearing on the
Putative Father’s right to contest the adoption of B.G.S.

31 Ariz. Rev. Stat. § 8-106(G)(3) (2005).
32 Id. § 8-106(G)(6).
33 Id. § 8-106.
34 This situation should not arise in Utah because here, “a
declaration of paternity may not be signed or filed after consent
to or relinquishment for adoption has been signed.” 	Utah Code
(continued...)
No. 20070610 	18
B. The Arizona Paternity Order Has No Impact on the Putative
Father’s Right to Contest the Adoption of B.G.S.
¶45 	We hold that a declaration of paternity from Arizona
does not necessarily establish the right to contest an adoption
in Arizona. 	Rather, the right to contest an adoption is a more
narrow right that must be established through specified means.
¶46 	In Arizona, a putative father must initiate a paternity
action within thirty days of receiving notice of the planned
adoption in order to establish the right to contest an
adoption. 31 	If the putative father fails to initiate a paternity
action within the time specified, then he is barred “from
bringing or maintaining any action to assert any interest in the
child.” 32 	This language is found within the statute entitled,
“Consent to adoption; who shall consent; waiver; consent to the
release of information; notification to potential fathers.” 33
¶47 	The Putative Father argues that because the Arizona
court, having jurisdiction to do so, issued an order declaring
him to be B.G.S.’s father, he need not meet the thirty-day
requirement. 	This is not the case. 	This interpretation of
Arizona law would render the thirty-day requirement meaningless.
Under Arizona law, the right to contest paternity is distinct
from the right to contest an adoption. 	A putative father may
establish paternity at any time, but he may only establish the
right to contest an adoption if (1) he initiates a paternity
action within thirty days of receiving notice of a planned
adoption and (2) that action results in a paternity order.
¶48 	Accordingly, we can consistently give full faith and
credit to the Arizona paternity order, but nevertheless hold that
the Putative Father did not establish the right to contest the
adoption of B.G.S. 34 	In failing to give the paternity order full

34 (...continued)
Ann. § 78B-15-302(8) (2008).
19 	No. 20070610
faith and credit, the district court committed error. 	But that
error was harmless because the paternity order alone is
insufficient to establish the right to contest the adoption.
V. 	THE DISTRICT COURT DID NOT ERR IN FAILING TO HOLD AN
EVIDENTIARY HEARING
¶49 	The Putative Father contends that the district court
erred in finding facts without holding an evidentiary hearing.
¶50 	Pursuant to rule 43(b) of the Utah Rules of Civil
Procedure, “[w]hen a motion is based on facts not appearing of
record the court may hear the matter on affidavits presented by
the respective parties, but the court may direct that the matter
be heard wholly or partly on oral testimony or depositions.”
¶51 	In this case, the court provided the parties the
opportunity to present evidence. 	On February 2, 2007, the
district court held a hearing on the matter. 	Counsel for the
Putative Father requested that the matter be argued only on the
law and objected to an evidentiary argument. 	The court declined
to determine what type of hearing would be held and left the
matter up to counsel. 	At the hearing, the parties did not
present any evidence. 	The Putative Father was present, but his
counsel did not call him to testify. 	Subsequently, the court
relied on facts in the record to make its findings.
¶52 	We hold that the district court did not err in failing
to hold an evidentiary hearing. 	The court provided the parties
an opportunity to present evidence, but counsel for the Putative
Father declined. 	Further, the court relied only on facts in the
record to make its findings.
VI. 	THE PUTATIVE FATHER’S APPEAL IS NOT FRIVOLOUS
¶53 	The Adoptive Parents argue that the Putative Father’s
“appeal is frivolous as it is not grounded.” 	The Adoptive
Parents base their argument on the following claims: 	(1) the
Putative Father’s claim is moot because he only challenged one of
two dispositive orders; (2) the Putative Father makes arguments
on appeal that he failed to preserve; (3) the Putative Father
challenges findings of fact without fully marshaling the evidence

No. 20070610 	20
that supports those findings; (4) the Putative Father ignores the
essential fact he admitted to the court at the protective order
hearing--that he knew the Birth Mother went to Utah; and (5) the
Putative Father challenges the lack of an evidentiary hearing
when it was counsel for the Putative Father who declined an
evidentiary hearing.
¶54 	The Adoptive Parents’ arguments fail to establish that
the Putative Father filed a frivolous claim. 	A frivolous claim
under rule 33(b) of the Utah Rules of Appellate Procedure “is one
that is not grounded in fact, not warranted by existing law, or
not based on a good faith argument to extend, modify, or reverse
existing law.” 	We address each of the Adoptive Parents’
arguments in turn.
¶55 	First, the Putative Father did challenge the substance
of both the Motion to Strike and the Motion to Dismiss, therefore
his claim is not moot. 	Second, although the Putative Father
failed to preserve two of the issues that he raises on appeal, he
still raises other issues that are properly before us for
consideration. 	Third, the Adoptive Parents have not developed a
marshaling argument, and failure to marshal is not included in
rule 33(b)’s definition of a frivolous appeal. 	Fourth, the
Putative Father has admitted that he stated at the protective
order hearing that he knew, at the time, that the Birth Mother
was in Utah. 	He contends, however, that he did not know or have
reason to know the Birth Mother was actually in Utah because
following the protective order hearing the Birth Mother sent him
an e-mail wherein she stated that she had not moved to Utah.
While this may not be a strong argument, it does not appear to be
a bad faith argument, especially in light of the fact that the
Putative Father has submitted the e-mail for the court’s review.
¶56 	Finally, the Putative Father’s challenge to the lack of
an evidentiary hearing does not appear to be made in bad faith.
The Putative Father contends that the district court ruled on
facts that the Putative Father did not know were in dispute.
Particularly, the district court found that the copy of the
Arizona Paternity Order submitted by the Putative Father was not
properly certified. 	The Putative Father argues on appeal that
the district court should have provided him an opportunity to
submit evidence regarding the validity of the Order before the
court ruled on the Order. 	This appears to be a good faith
argument, although it is irrelevant because, as we have stated
earlier, the validity of the order has no bearing on the outcome
of the case.

21 	No. 20070610
¶57 	Accordingly, we hold that the Putative Father’s appeal
is not frivolous, even though we uphold the district court’s
decision.
CONCLUSION
¶58 	We affirm the district court’s decision. 	Specifically,
we hold that (1) the appeal is not moot because the Putative
Father challenged the substance of the two motions; (2) the due
process issue and the equal protection issue are not properly
before us because the Putative Father failed to preserve them;
(3) the Putative Father failed to comply with Utah Code section
78-30-4.14; (4) the district court committed harmless error when
it declined to give the Arizona Paternity Order full faith and
credit; (5) the district court provided the opportunity for an
evidentiary hearing; and, finally, (6) the Putative Father’s
appeal is not frivolous.
¶59 	Affirmed.
---
¶60 	Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.