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Category: Utah Supreme Court Decisions

Family Law Legislation for the 2024 Utah State Legislative Session

Here is a list of the current proposed family law legislation for the 2024 Utah State Legislative session, along with a (very) brief description of the proposed legislation. If you want to read the complete bill, I have provided the links each of them.

Next month, I will provide my comments and those of others who have expressed their opinions on whether and why these bills should or should not be passed into law.

House Bills

House Bill 20

Title:  Parental Rights Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0020.pdf

Purpose: This bill: clarifies the requirements and procedure for an individual to consent to the termination of parental rights or voluntarily relinquish parental rights.

House Bill 81

Title: Domestic Violence Modifications

https://le.utah.gov/~2024/bills/hbillint/HB0081.pdf

Purpose: This bill adds the crime of propelling a bodily substance or material to the list of crimes that qualify as a domestic violence offense in certain circumstances; and makes technical and conforming changes.

House Bill 110

Title:  Sex and Kidnap Offender Registry Amendments

https://le.utah.gov/~2024/bills/static/HB0110.html

Purpose: This bill changes references from the Department of Corrections to the Department of Public Safety; clarifies the purpose of the Department of Public Safety keeping certain information for individuals on the Sex and Kidnap Offender Registry; and clarifies the requirements the Bureau of Criminal Identification and the Department of Corrections must check for when an individual petitions to be removed from the registry.

House Bill  129

Title:  Child Support Requirements

Purpose: This bill provides that a parent or other obligated individual is not responsible for child support for a child who is in the custody of the Division of Child and Family Services; and makes technical and conforming changes.

House Bill  131

Title:  Clergy Child Abuse Reporting Requirements

https://le.utah.gov/~2024/bills/hbillint/HB0131.pdf

Purpose:  This bill clarifies that a member of the clergy may report suspected child abuse or neglect in certain circumstances; and makes technical corrections.

House Bill  134

Title:  Marriage Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0134.pdf

Purpose: This bill addresses the validation and recognition of a marriage regardless of the race, ethnicity, or national original of the parties to the marriage; repeals a provision on interracial marriage; and makes technical and conforming changes

House Bill  140

Title:  Parental Notification Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0140.pdf

Purpose: This bill amends the advisory guidelines for a custody and parent-time arrangement to allow for parental notification when a parent is residing with an individual, or providing the individual access to the parent’s child, and the individual has been convicted of certain crimes; amends the advisory guidelines for a custody and parent-time arrangement in regard to notification of a parent in the event of a medical emergency; and makes technical and conforming changes.

House Bill  157

Title:  Child Custody Factors Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0157.pdf

Purpose: This bill provides that a parent’s approval or disapproval, in itself, of a child’s gender identity, is not a factor to be considered: in a Division of Child and Family Services determination regarding removal of a child from parental custody; and when determining child custody as part of a divorce or other family law proceeding.

House Bill  194

Title:  Child Placement Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0194.pdf

Purpose: This bill amends the definition of “relative” for purposes of child placement, including adoption; and addresses when a court holds a hearing concerning a contested adoption.

House Bill  198

Title:  Child Welfare Placement Review Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0198.pdf

Purpose: This bill addresses the analysis a juvenile court undertakes when evaluating whether to terminate parental rights; and makes technical and conforming changes.

House Bill  199

Title: Child Welfare Revisions

https://le.utah.gov/~2024/bills/hbillint/HB0199.pdf

Purpose: This bill amends definitions related to child welfare in the Utah Juvenile Code

House Bill  200

Title:  Order for Life Sustaining Treatment

https://le.utah.gov/~2024/bills/hbillint/HB0200.pdf

Purpose: This bill modifies professional conduct standards for physicians, advance practice registered nurses, and physician assistants to include obtaining a parent or guardian signature when completing an order for life sustaining treatment for a minor; and makes technical and conforming changes.

House Bill  219

Title:  Divorce Imputed Income Requirements

https://le.utah.gov/~2024/bills/hbillint/HB0219.pdf

Purpose: This bill provides standards for imputing income to a spouse who will be receiving alimony payments from another spouse; provides potential limitations on imputation of income for alimony purposes in some circumstances where the recipient spouse has no recent full-time work history or has been diagnosed with a disability; excludes situations where the recipient spouse has been determined to be at fault; and makes technical and conforming changes.

House Bill  220

Title:  Divorce Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0220.pdf

Purpose: This bill adds factors to be considered when determining the standard of living that existed during a marriage; requires a specific look-back period for information provided to demonstrate the financial conditions and needs of a spouse seeking to be awarded alimony; places restrictions on when a court can reduce a showing of need related to alimony; provides alternative means for demonstrating income and the standard of living during a marriage; and  modifies provisions related to when a court may elect to equalize income between parties by means of an alimony award.

House Bill  234

Title:  Birth Certificate Modifications

https://le.utah.gov/~2024/bills/hbillint/HB0234.pdf

Purpose: This bill requires an individual when petitioning the court for a name or sex designation change on the birth certificate to indicate on the petition whether the individual is registered with the Sex and Kidnap Offender Registry; and authorizes the court to obtain additional information from an individual that is registered with the Sex and Kidnap Offender Registry to determine whether to grant a name or sex designation change petition.

House Bill  272

Title:  Child Custody Proceedings Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0272.pdf

Purpose: This bill defines terms; in certain proceedings involving child custody: specifies requirements for the admission of expert evidence; and  requires a court to consider evidence relating to domestic violence or abuse by a parent; imposes certain requirements and limitations regarding orders to improve the relationship between a parent and a child; requires the state court administrator to make recommendations regarding the education and training of court personnel involving child custody and related proceedings;  requires that certain protective order proceedings comply with specific standards; and makes technical and conforming changes.

SENATE BILLS

Senate Bill 70

Title:  Judiciary Amendments

https://le.utah.gov/~2024/bills/sbillint/SB0070.pdf

Purpose: This bill increases the number of district court judges in the Third Judicial District, Fourth Judicial District, and Fifth Judicial District; increases the number of juvenile court judges in the Third Judicial District and the 15 Fourth Judicial District; and makes technical and conforming changes.

Senate Bill 88

Title:  Juvenile Justice Amendments

https://le.utah.gov/~2024/bills/sbillint/SB0088.pdf

Purpose: This bill defines terms; clarifies requirements regarding the collection of a DNA specimen from a minor adjudicated by the juvenile court; provides that a minor may not be placed in a correctional facility as an alternative to detention; provides a time period in which an agency is required to send an affidavit to an individual who is the subject of an expungement order by the juvenile court; and makes technical and conforming changes.

Senate Bill 95

Title:  Domestic Relations Recodification

https://le.utah.gov/~2024/bills/sbillint/SB0095.pdf

Purpose: This bill recodifies Title 30, Husband and Wife, to Title 81, Utah Domestic Relations Code; recodifies Title 78B, Chapter 12, Utah Child Support Act, to Title 81, Chapter 6, Child Support; defines terms; clarifies provisions related to a claim of a creditor when the joint debtors divorce or are living separately under an order of separate maintenance; clarifies the validation of a marriage to an individual subject to chronic epileptic fits who had not been sterilized; clarifies the validation of an interracial marriage; clarifies the validation of a marriage to an individual with acquired immune deficiency syndrome or other sexually transmitted disease; clarifies provisions regarding the rights and obligations during a marriage; clarifies provisions regarding the dissolution of a marriage, including: an order for separate maintenance; an annulment; and a divorce; clarifies provisions regarding child support, including: the requirements for a child support order; the general requirements for calculating child support; and the requirements for calculating child support for a sole physical custody case, a joint physical custody case, and a split physical custody case; clarifies provisions regarding custody, parent-time, and visitation; repeals statutes related to domestic relations, including a statute on the appointment of counsel for a child; and makes technical and conforming changes.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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In re R.G. – 2023 UT App 144 THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF R.G., A PERSON UNDER EIGHTEEN YEARS OF AGE.

G.G.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220635-CA

Filed November 24, 2023

Second District Juvenile Court, Ogden Department

The Honorable Tasha Williams

No. 1183589

Keith Andrew Fitzgerald, Attorney for Appellant

Sean D. Reyes and John M. Peterson,

Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 G.G. (Father) appeals the juvenile court’s order terminating his parental rights to R.G. (Child). Father argues the juvenile court erred in finding that termination of his parental rights was strictly necessary, because placement of Child with Father’s sister in another state was an option. Because Father has not persuaded us that the court committed reversible error, we affirm its order terminating Father’s parental rights.

BACKGROUND[1]

¶2        Child was born in January 2020. The following day, the Division of Child and Family Services (DCFS) received a referral indicating that Child’s mother (Mother)[2] had tested positive for illegal substances both at the time of Child’s birth and during her pregnancy. Thereafter, a DCFS caseworker put a safety plan in place and Child was allowed to leave the hospital and return home with Father and Mother.

¶3        Almost exactly one month later, the juvenile court held a pretrial shelter hearing, which Father did not attend. Following the hearing, the court entered an order removing Child from Father’s and Mother’s custody and placing Child in the temporary custody of DCFS. That same day, a DCFS caseworker (Caseworker) held a kinship meeting to discuss placement options for Child. Despite being informed of the meeting, neither Father nor Mother chose to attend. Nevertheless, Caseworker identified an in-state kinship placement with a foster family (Foster Family) that had previously adopted two of Child’s biological half-siblings.

¶4        A verified petition for custody and legal guardianship was filed one day after the shelter hearing. A few days later, Mother told Caseworker that she wanted Child to be placed with Father’s sister (Aunt), who lived in Georgia. Father made the same request.

¶5        In March 2020, Father attended a pretrial hearing on the verified petition. Based on Father’s admissions to the allegations in the petition, the juvenile court adjudicated Child neglected as to Father.[3] Child was placed in DCFS’s custody, and the court set Child’s permanency goal as reunification with a concurrent goal of adoption. The court ordered that reunification services be provided to Father and that Father comply with a child and family plan.

¶6        In May 2020, Caseworker contacted Aunt to begin the placement process provided by the Interstate Compact on the Placement of Children (the ICPC).[4] Caseworker explained that the next step was to fill out paperwork to send to the Utah state office. She noted that the time required to complete the paperwork would depend on how soon she could obtain the necessary documents, including Child’s social security card and birth certificate. Because Caseworker did not have those documents for Child on file, she requested them from the parents and from the social security office.

¶7        For the remainder of 2020, the juvenile court held periodic review hearings as required by statute. At the first hearing in June,

the court ordered DCFS “to move forward with the ICPC.” At a hearing in August, the State informed the court that “the ICPC has been put on hold due to [DCFS] not having a social security number, or birth certificate for [Child].”

¶8        After multiple failed attempts to obtain Child’s social security card and birth certificate from the parents, Caseworker was finally able to obtain the documents from the social security office, which had taken several extra months due to closures related to the COVID-19 pandemic. On November 6, 2020, DCFS informed the juvenile court that it had completed its portion of the ICPC paperwork and asked the court to send the paperwork to Georgia so that the Georgia state office could complete its part. The juvenile court signed the order on November 10.

¶9        Reunification services to Father were terminated in February 2021 due to Father’s noncompliance with the child and family plan. In June, the State filed a petition to terminate Father’s parental rights.

¶10 In September 2021, the juvenile court held a pretrial hearing on the termination petition, during which the status of the ICPC was discussed. Father’s counsel indicated that Aunt had “completed and submitted” to Georgia all the required paperwork. However, DCFS reported that Caseworker had contacted the Georgia state office regarding the ICPC but there had been no information provided as to its status. Father then addressed the court. He explained that Aunt notified him that morning that she had completed the ICPC paperwork. Father also informed the court that he was willing to relinquish his rights to Child if Aunt could adopt her, and he reminded the court that his desire “from the get-go” had been to place Child with Aunt. Based in part on the unresolved questions related to the status of the ICPC, the court scheduled a second pretrial hearing to take place in October.

¶11      At the October pretrial hearing, the State reported the status of the ICPC:

[DCFS] was able to get an update from the state of Georgia and that update was filed with the Court. It does show that there were some additional documents that need to be turned in. There was a deadline of July 30th for those to be submitted and as of the date of the report which is dated September 13th, they have not been turned in. I don’t think we have anything more current than that as far as what’s happening with the ICPC but it appears that is stalled until the family turns in the necessary documents.

In response to this update, Aunt told the court that she had submitted the completed ICPC paperwork, completed a required class, and was currently participating in a home study. After discussing the status of the ICPC, the parties discussed its relevance. The guardian ad litem (the GAL) and the State indicated that the ICPC was a “backup plan” because Child was in a kinship placement with Foster Family and had been there for a “long” time. Mother and Father disagreed with this assessment. Counsel for both parents stated that the original reason for requesting the ICPC was to allow Aunt to be the primary placement. Following this discussion, the court concluded that regardless of Child’s placement goal, the parties were in “a holding pattern” and Child could not yet be placed with Aunt because “the home study hasn’t been approved” and the ICPC was therefore not complete.

¶12      Trial on the State’s petition to terminate parental rights began in November 2021. Despite having proper notice, Father failed to appear at the termination trial. Father’s counsel moved to be released due to this failure, and the juvenile court granted counsel’s motion. The trial then proceeded by proffer. At the close

of trial, the court entered an order terminating Father’s parental rights, which Father subsequently appealed. Thereafter, the State, the GAL, Father, and Mother filed a stipulated motion for summary reversal. This court granted the motion and accordingly vacated the termination order and remanded the matter for a new trial.

¶13 The second termination trial occurred over the course of three days in April 2022. The juvenile court heard testimony from Caseworker, Father, and Child’s foster parents (Foster Parents). Caseworker testified that at the beginning of the case, Father expressed interest in having Child placed with Aunt in Georgia. Caseworker explained that because Aunt lives out-of-state, DCFS cannot place Child with Aunt unless Aunt has an approved ICPC. Caseworker testified that she started the ICPC process in April 2020 and that she completed the ICPC paperwork and sent it to Georgia in November 2020. Caseworker stated that she would have been able to submit the paperwork sooner had Father provided Child’s social security card and birth certificate to her directly, but because he did not, Caseworker had to obtain the documents from the social security office, which had been closed due to the COVID-19 pandemic.

¶14 Caseworker testified that since submitting the ICPC paperwork, she had received “minimal updates” from Georgia— despite the fact that she had followed up “[a]bout every month” —and that she did not have any control over the Georgia state office. She explained that she did not contact Aunt directly during the ICPC process because the “proper channel” for all communication related to an ICPC is between the state offices; however, Caseworker testified that had Aunt contacted DCFS and requested visitation, DCFS “would have given it to her.” Caseworker noted that the most recent ICPC update from Georgia was given on February 3, 2022, which stated, “Home study is being written with an expected completion date of 2/14/2022. Will be sent for approval at that time.” At the time of trial, however,

Caseworker had not been informed whether the home study had been approved or not, nor had she received any kind of final report on the ICPC.

¶15      Lastly, Caseworker testified that under DCFS guidelines, Child was considered to be in a kinship placement because she was placed with Foster Family—the family that had adopted two of Child’s biological half-siblings. Caseworker also noted that DCFS has no “level of preference” for different kinship placements. Therefore, even if the approved ICPC had been received, DCFS had already satisfied its “internal standards” by placing Child with kin.

¶16 Regarding placement options, Father testified that although Child “is in good hands” with Foster Family, he wanted her to be placed with Aunt, a desire that he had expressed since the beginning of the case. Father acknowledged that Aunt has never met Child and that removing Child from Foster Family would be a “disruption.” However, Father blamed DCFS for the delay in the ICPC approval, claiming that Aunt had done “everything she possibly could.”

¶17 Foster Parents both testified about Child’s strong relationship with Foster Family. Child’s foster mother (Foster Mother) stated that Child is “almost inseparable” from her foster sibling and that Child and her biological half-siblings “have a great relationship.” Foster Parents expressed their desire to adopt Child, and Foster Mother explained that it would be “devastating” for the entire family, including Child, if Child were to be removed from their home.

¶18      In addition, Foster Mother testified that allowing Child to remain in contact with Father might not be in her best interest because “[t]here’s just a lot of anxiety that happens with [Child] after visits.” Specifically, Child “was having night terrors . . . when we were doing visits. She would wake up crying, but you couldn’t actually wake her up. She was just crying . . . .” Foster

Mother stated that the night terrors stopped when the visits with Father stopped.

¶19      Moreover, Father had a history of engaging in violent and threatening behavior. Specifically, Father threatened Caseworker when she canceled a visit after Father failed to check in, and from then on, DCFS was required to provide extra security during Father’s visits. Father also threatened Foster Parents and had been found looking up Foster Parents’ contact information. And Father admitted to committing violent acts against Mother on several occasions.

¶20 On June 28, 2022, approximately two months after the termination trial, the juvenile court entered a thirty-page order terminating Father’s parental rights to Child. The court found that DCFS made “reasonable efforts” in pursuing the ICPC, including that Caseworker had worked to obtain the necessary documentation and complete the ICPC paperwork as quickly as possible, that Caseworker followed up on the status of the ICPC “about every month,” that Georgia had provided “minimal updates” on the ICPC throughout the case, and that Father’s testimony that Aunt had completed the ICPC and was “cleared” was not credible. Further, the court found that it was in Child’s best interest to remain with Foster Family because Child had become “integrated” into Foster Family, because Child had developed strong bonds with her foster sibling and half-siblings, and because removing Child from her existing placement would be difficult. Moreover, the court found that Aunt “did not request contact with [Child] and has not met her.” Based on these findings, the court concluded that termination was strictly necessary to protect Child’s best interest. It explained:

[T]his Court must consider all the permanency options for [Child] and whether she can be equally protected and benefitted by an option other than termination. One option is for a placement with

[Aunt] in Georgia. However, at the time of trial the ICPC had not been approved, legally barring such placement. Further, at this point, the placement is not in [Child’s] best interest. [Child] has never met [Aunt] and [Aunt] has never requested visits with her. [Child] has no familial relationship with [Aunt]. . . . When viewed from [Child’s] point of view, as required by statute, termination is strictly necessary so that the loving family attachments she has made with [Foster Family] and her biological [half-siblings] can be preserved through adoption.

¶21      Father filed a notice of appeal of the juvenile court’s termination order on July 7, 2022. On July 18, the court held a post-termination review hearing. Because Father’s parental rights had been terminated, he did not attend the hearing; only the State, Caseworker, and the GAL were present. The parties discussed Child’s welfare as well as the status of the ICPC. Following the hearing, the court issued an order indicating that the ICPC had been approved but declining to alter Child’s placement. The court reasoned as follows:

[DCFS’s] court report indicates that [Child] continues to do well in the foster placement with her biological siblings. In June, 2022 [DCFS] received an approved ICPC from Georgia for [Aunt]. [Aunt] has never met [Child] and has no relationship with her. She never requested contact or updates during the case. It would not be appropriate or in [Child’s] best interest to change placements at this point in the case so [DCFS] sent a Case Closure Form to Georgia.

ISSUE AND STANDARDS OF REVIEW

¶22 Father appeals the juvenile court’s order terminating his parental rights to Child, arguing that the court erred in concluding it was strictly necessary to terminate his parental rights. “We review deferentially a lower court’s best-interest determination and will overturn it only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.”[5] In re J.J.W., 2022 UT App 116, ¶ 18, 520 P.3d 38 (quotation simplified)However, Father acknowledges that he did not raise this issue below, and he therefore asks us to review the court’s strictly necessary determination for plain error.[6] To succeed on a claim of plain error, Father must show that “(1) an error exists; (2) the error should have been obvious to the juvenile court; and (3) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome.” In re S.T., 2022 UT App 130, ¶ 14, 521 P.3d 887 (quotation simplified).

ANALYSIS

¶23      Father argues the juvenile court erred in determining that

it was strictly necessary to terminate his parental rights because the court did not adequately consider other feasible placement options for Child. Father’s challenge largely concerns the court’s consideration of the ICPC and whether Aunt was a feasible placement option. Because Father did not raise this issue below, to succeed on appeal he must show that a harmful error exists and that the error should have been obvious to the juvenile court. See In re J.A.L., 2022 UT 12, ¶ 12, 506 P.3d 606.

¶24 “Because the relationship between parent and child is constitutionally protected, a court may only terminate parental rights upon a finding that termination is strictly necessary to the best interest[] of the child.”[7] In re S.T., 2022 UT App 130, ¶ 33, 521 P.3d 887 (quotation simplified). Here, the juvenile court determined it was strictly necessary to terminate Father’s parental rights because there was no option available, short of termination and adoption, that would equally protect and benefit Child. In

 

making this determination, the court considered, among other options, permanent guardianship with Foster Parents and permanent guardianship with Aunt. Ultimately, the court decided against placement with Aunt for two reasons. First, Aunt was in Georgia, and “at the time of trial the ICPC had not been approved, legally barring such placement.” Second, placement with Aunt was not in Child’s best interest because Child “has never met [Aunt] and [Aunt] has never requested visits with her. [Child] has no familial relationship with [Aunt].”

¶25      Father assails the juvenile court’s reasoning on both points. As to the first, Father contends the ICPC was approved before termination was ordered and therefore it should have been adjudicated with the termination petition. And as to the second, Father contends the court’s analysis was inadequate and based on categorical concerns. For the reasons discussed below, his attack is unavailing.

¶26      First, Father mischaracterizes the record regarding the ICPC. Father asserts that the ICPC “was definitively completed before the written order of termination of parental rights [was] entered” but that the results were “concealed by DCFS until post-termination proceedings.”[8] But Father’s position on this point is undermined by his concession that “[n]one of the parties can conclusively state [when the ICPC was approved] because [DCFS] never presented this information.” Indeed, it is unclear from the record whether DCFS received the approved ICPC before or after the court entered its final order terminating Father’s parental rights. The only definitive information available in the record is that the termination trial was held in April 2022; the court entered its termination order on June 28; and on July 18, the court held a post-termination review hearing, during which DCFS reported that in June 2022 it had “received an approved ICPC from Georgia” for Aunt. Therefore, while the approved ICPC may have been received by DCFS while the matter was still under advisement by the court, Father has not demonstrated that this was absolutely the case.

¶27 Furthermore, regardless of whether the approved ICPC was presented to the juvenile court pre- or post-termination, on the facts of this case, Father cannot demonstrate that the court’s strictly necessary determination would have been any different had it received the ICPC earlier.[9] As an initial matter, it is undisputed that DCFS informed the court about the approved ICPC and the court considered the implications of that approval during a post-termination review hearing. Indeed, during the review hearing, the court stated that although the ICPC for Aunt had been approved, “[i]t would not be appropriate or in [Child’s] best interest to change placements at this point in the case.” The court reasoned that Child “continues to do well in the foster placement with her biological [half-]siblings,” whereas Aunt “has never met [Child] and has no relationship with her. [Aunt] never requested contact or updates during the case.” Because the court’s decision to not change Child’s placement post-termination rested at least in part on Aunt’s lack of engagement throughout the duration of the years-long case—including after the ICPC was approved—there is no indication that an earlier receipt of the approved ICPC would have had any bearing on the court’s reasoning. See In re G.D., 2021 UT 19, ¶ 81, 491 P.3d 867 (finding that a juvenile court’s strictly necessary analysis was not deficient where the court declined to “admit and consider the evidence [the appellants] presented after trial” because neither Utah law nor Utah caselaw “requires a juvenile court to consider supplemental evidence that merely elaborates on a factor the court already considered in its ‘strictly necessary’ analysis—especially when that evidence does not address or refute the considerations on which the court relied to reach its conclusion”).

¶28 Relatedly, Father glosses over the import of an approved ICPC. While an approved ICPC is a precursor to any out-of-state placement, an approved ICPC does not guarantee placement. After a child is removed from a parent’s custody, the juvenile court must “determine whether there is a relative . . . who is able and willing to care for the child.” Utah Code § 80-3-302(6)(a). If the court identifies an out-of-state relative as a potential placement, the court must comply with the procedures and requirements outlined in the ICPC before ordering that the child be placed in another state. See id. § 80-2-905. Following the approval of an ICPC, the court “shall give preferential consideration to a relative’s . . . request for placement of the child, if the placement is in the best interest of the child.” Id. § 80-3-302(7)(a)(i) (emphasis added). In other words, the plain language of the statute “does not guarantee that an identified relative . . . will receive custody of the child.” Id. § 80-3-302(18). Accordingly, the court was not required to place Child with Aunt if doing so was not in Child’s best interest. And as discussed below, the court’s best interest analysis was adequate to foreclose placement with Aunt.

¶29      Moreover, contrary to Father’s assertion, the juvenile court properly considered feasible placement options other than termination and adoption. As stated above, the court articulated two reasons in support of its strictly necessary determination. In addition to concluding that Aunt was legally barred as a placement option because the ICPC was still pending, the court found that placement with Aunt was not in Child’s best interest because Child “has never met [Aunt] and [Aunt] has never requested visits with her. [Child] has no familial relationship with [Aunt].” On the facts of this case, this determination was not erroneous.

¶30      Our legislature has expressed a strong preference for maintaining familial bonds. To that end, a court may terminate a parent’s rights only if termination is strictly necessary to promote a child’s best interest. Courts ordering termination “must start the best interest analysis from the legislatively mandated position that ‘[w]herever possible, family life should be strengthened and preserved.’” In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827 (quoting Utah Code § 80-4-104(12)(a)). However, once a parent is found to be unfit, a court may terminate the parent’s rights if doing so “is strictly necessary for the welfare and best interest of the child.” Id. ¶ 62. At this stage, the court must “consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered.” Utah Code § 80-4-104(12)(a).

¶31      In evaluating whether termination is strictly necessary, a juvenile court must consider, “among other relevant factors,” whether “the efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” Id. § 80-4-104(12)(b)(ii). This requires the court to “explore whether other feasible options exist that could address

the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). This inquiry cannot be satisfied merely by relying on the “categorical concern” that adoption offers the highest degree of permanency.” In re J.A.L., 2022 UT 12, ¶ 25. Instead, the court must analyze the “particularized circumstances of the case” and explore whether an alternative arrangement “can equally protect and benefit the children in the case before it.” Id. (quotation simplified). And “when two placement options would equally benefit a child, the strictly necessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.” In re G.D., 2021 UT 19, ¶ 75.

¶32 Father contends the juvenile court erred in finding that termination was strictly necessary because the court ignored that Aunt “was the preferred placement” and instead relied on “categorial concerns” to support its determination. However, neither point is well taken, and the court’s rationale is sufficient to justify its decision to terminate Father’s parental rights.

¶33 Father asserts that Aunt “was the preferred placement” because “[t]his is a case where both placement options would equally benefit” Child and “placement with [Aunt] did not necessitate termination of parental rights.” This assertion is without merit. Our caselaw is clear that the preferential status afforded to a placement option that does not necessitate termination exists only where the two placement options “equally benefit” the child. See id. But here, there is no evidence to suggest that placement with Aunt would “equally benefit” Child.

¶34 Indeed, the juvenile court’s comprehensive termination order included multiple findings concerning Aunt. Specifically, the court found that Caseworker had contacted Aunt in May 2020 to start the ICPC process. Despite this contact, at the time of trial approximately two years later, Aunt had “not request[ed] contact

with [Child] and [had] not met her.” Although Aunt may have not been available as a placement option prior to approval of the ICPC, nothing was preventing her from contacting Child and forming a relationship with her. And given the duration of the proceedings, Aunt was given ample time to do so.

¶35      Conversely, the juvenile court found that Child was in an appropriate adoptive placement with Foster Family. Among other things, Child had been living with Foster Family since “shortly before she turned one month old,” and Child had developed strong bonds with her foster sibling and two half-siblings. Yet Father does not grapple with the import of these relationships. Notably, Child is in a kinship placement with Foster Family since Child’s biological half-siblings were adopted into Foster Family. Moreover, as this court has recently recognized, “the biological connection between siblings matters.” See In re A.H., 2022 UT App 114, ¶ 42, 518 P.3d 993 (“The importance of sibling relationships is well recognized by courts and social science scholars, because a sibling relationship can be an independent emotionally supporting factor for children in ways quite distinctive from other relationships, and there are benefits and experiences that a child reaps from a relationship with his or her brother(s) or sister(s) which truly cannot be derived from any other. Such bonds are often especially important to children who experience chaotic circumstances like abuse or neglect, because in such circumstances, they learn very early to depend on and cooperate with each other to cope with their common problems.” (quotation simplified)), cert. granted, 525 P.3d 1279 (Utah 2023). Given the court’s competing findings about each potential placement, we cannot say that placing Child with Aunt—an individual she has never met—would equally benefit Child where Child is already in a kinship placement with her half-siblings. As a result, Aunt was not a preferred placement.

¶36 Moreover, the juvenile court did not merely rely on categorical concerns when determining that termination was strictly necessary. On this point, Father contends the court’s decision was based on the categorical concern that removing a child from a foster family with whom the child is bonded will disrupt and negatively impact the child’s life. See id. ¶ 56. To be sure, the court’s determination hinged in large part on Child’s attachments to Foster Family, including to her two biological half-siblings, and the potential detriment to Child that would result from removal from that placement. However, the court’s conclusion was also based on the fact that Aunt’s relationship with Child was nonexistent and that placing Child with Aunt would therefore be particularly destabilizing. Consideration of the effects of a potential disruption, when based on case-specific facts, is entirely proper. Indeed, courts are statutorily required to consider continuity of care when determining whether to terminate parental rights. See Utah Code § 80-4-303(1)(a) (requiring courts to consider “the physical, mental, or emotional condition and needs of the child”); id. § 80-4-304(5) (requiring courts to consider “the length of time the child has lived in a stable, satisfactory foster home and the desirability of the child continuing to live in that environment”). And this court has recently recognized as much, noting that the potential effect of changing a placement is “a legitimate concern, and one that courts should take into account.” In re A.H., 2022 UT App 114, ¶ 56. In sum, the court’s determination here was not based on a categorical concern inasmuch as the court considered case-specific facts such as the impact of the potential disruption in light of Child’s nonexistent relationship with Aunt.

¶37 Finally, and very importantly, even if Father is correct in his assertion that the ICPC was completed before the termination trial, the ICPC approval and resulting potential for placement with Aunt was not the lynchpin of the juvenile court’s strictly necessary determination. As discussed above, placement with Aunt was not in the best interest of Child because of the shortcomings in that option as identified by the court. And a permanent guardianship with Foster Parents put in place to preserve Father’s residual parental rights and ensure Child’s connection to her half-siblings was also not in Child’s best interest as the court identified significant problems with Father’s continued parental connection to Child vis-à-vis Foster Family. Specifically, the court found that Child had “already experienced anxiety and night terrors during visits” with Father and that Father’s “threats toward [Foster Family] and his propensity for violence puts [Child and Foster Family] at risk.”

CONCLUSION

¶38 Father has not shown the juvenile court clearly erred in determining that it was strictly necessary to terminate his parental rights. Regardless of when the court received the approved ICPC, it adequately considered the results. Further, an approved ICPC does not guarantee placement, and Father has not demonstrated that the court plainly erred when considering other feasible placement options. Accordingly, we affirm the court’s order terminating Father’s parental rights.

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

 

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After Over Four Hours of Arguments, the People of Utah Now Await the Utah Supreme Court Ruling in the Planned Parenthood Association v. State of Utah Case

Read the following article from the Salt Lake Tribune written by Emily Anderson Stern to learn what happened at the Utah supreme court on Tuesday, August 8, 2023 in the Planned Parenthood Association V. State Of Utah Case.

Equality in Utah’s constitution didn’t include the right to abortion, state’s attorneys argue to Utah Supreme Court – https://www.sltrib.com/news/politics/2023/08/08/equality-utahs-constitution-didnt/

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2023 UT App 65 – State v. Meyer – Parent Charged With Child Abuse

2023 UT App 65 – State v. Meyer

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,

v.

ELIZABETH LYDIA MEYER,

Appellant.

Opinion

No. 20210718-CA

Filed June 15, 2023

First District Court, Brigham City Department

The Honorable Spencer Walsh

No. 181100556

Wendy M. Brown, Debra M. Nelson, and Benjamin Miller, Attorneys for Appellant

Blair T. Wardle, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

MORTENSEN, Judge:

¶1        Elizabeth Lydia Meyer’s[1] ex-husband (Father) discovered bruising on their daughter (Child) after picking her up from Meyer’s home. The State charged Meyer with child abuse and, at a bench trial, used a process-of-elimination approach to argue that Meyer was the only possible cause of the bruising. The district court convicted Meyer, and she now appeals. Meyer asserts that the court erred in admitting the preliminary hearing testimony of her now-husband. We agree that this action was erroneous and prejudiced Meyer, so we vacate her conviction.

BACKGROUND

¶2          One Wednesday in July 2018, Father picked up Child, then two years old, from Meyer’s home for a regular midweek visit. Meyer and Father had been through a “fairly contentious” divorce, and their relationship was sometimes “volatile,” so Father had made it a habit to record via cellphone his pickups of Child. His video recording from this day shows marks on the upper portions of both of Child’s arms. But Father did not notice the marks until later, when he was at a restaurant with Child. Father exchanged texts with Meyer about the marks:

Father: I noticed that [Child] has what looks like bruises on her arm. Is she okay?

Meyer: Yes, she’s fine.

Father: How did she get those marks?

Meyer: How do children get the majority of their bruises? What direction are you trying to go with this?

Father: I’m just concerned because the bruising pattern is not consistent with normal childhood injuries.

Meyer: Since when did you become an expert in that matter? I understand that you want to pretend to care about my daughter, but I do not wish to have you go on a third witch hunt and falsely accuse someone like you already have done twice, even though we both know you’re dying to. You do not make any of her medical appointments. And the last I knew you have not completed any courses in the direction. So please leave your harassing comments to yourself.

¶3          After dinner, Father drove to the police station and asked for an officer to examine Child’s arms. An officer (Officer) and a caseworker (Caseworker) from the Division of Child and Family Services (DCFS) met with Father and photographed Child’s arms approximately two hours after Father had picked up Child.

¶4          Officer and Caseworker then visited Meyer’s home. Outside, they met Michael Glenn, Meyer’s then-boyfriend whom she married before the case went to trial. Glenn was initially “defiant” and did not want them to enter the house, but when they showed him photos of Child’s bruises, he was concerned and let them in.

¶5          Officer and Caseworker entered the house and spoke with Meyer, who was very upset. Officer asked Meyer what could have caused bruising on Child’s arms, and Meyer gave multiple possible explanations, including Child falling out of the car when she arrived home from daycare, Child playing with hair ties that were like rubber bands (which she snapped on her arms), or Child playing roughly with her older brother and sometimes getting rug burns from the roughhousing. Caseworker asked Meyer how she had picked Child up when Child fell out of the car after returning from daycare, and Meyer responded along the lines that she picked Child up like any mother would and cleaned her face. Meyer also reported that she had caused a mark on Child’s upper arm when Child ran into the street and Meyer pulled her back. Caseworker showed Meyer photos of Child’s bruises, and Meyer was very surprised, saying, “They were not like that.”

¶6          Glenn gave Officer contact information for Child’s daycare provider (Daycare Provider). When Officer spoke to Daycare Provider on the phone, she confirmed that Child had been in her care that day. Daycare Provider also confirmed that she had asked Meyer about a mark on Child’s arm when Meyer picked Child up that day and that Meyer told her she had grabbed Child to prevent her from running into the street.

¶7          The next day, Father took Child for a physical exam, which was completed by a forensic nurse examiner (Nurse). In her report, Nurse identified “[p]ositive physical findings of injury to bilateral upper arms and left forearm” and described the upper arm injuries as “circumferential and linear with equal spacing between” them and stated that the bruises were “highly indicative for a squeezing mechanism and physical abuse.” Child was not returned to Meyer’s care.

¶8          The case was transferred to a detective (Detective), who called Meyer two days after the alleged incident and recorded the phone call. During the call, Meyer implied that Father was the source of Child’s bruises because, according to her, Child had no bruises until she was in Father’s care and Meyer believed that “[h]e [was] trying to get [her] daughter away from [her].” Meyer was very upset during the call and indicated that she had been previously accused of child abuse, presumably by Father. Meyer also stated that she did not see any bruises or marks on Child— other than the mark from the incident she reported of grabbing Child to stop her from running into the road—before giving Child to Father. But she explained that Child would sometimes scratch herself, leaving marks, and hit and bite things. Meyer also spoke about Glenn’s whereabouts on the day of the incident, indicating that Glenn was asleep when Child came home and remained asleep until after Father had picked Child up.

¶9          Detective wrote in his police report that Child’s older brother, then four years old, “was asked where his sister got the marks on her arm and he said that it was from someone who had power and squeezed hard.” Detective spoke to Daycare Provider, though he did not inspect her home; perform a background check on her; or speak with the parents of other children she babysat or with the three children she had living with her, who were ages fourteen, ten, and eight and may have had access to Child. Detective later testified that he didn’t really consider Daycare Provider a suspect after speaking with her. He also ruled out Glenn as a suspect based on Meyer’s statement that Glenn had been asleep between the time Child came home from daycare and the time Father picked up Child. However, in his report he wrote that he told Meyer he didn’t think the incident causing the bruising had happened on that day. But at trial he testified that, based on his investigation, the timeline he established was that there were no visible bruises—other than the one caused by Meyer stopping Child from running into the street—until the time between Meyer picking Child up from daycare and Father picking her up from Meyer within the next forty-five minutes.

¶10 In August 2018, another officer (Sergeant) interviewed Meyer in person at Detective’s request. Meyer’s statements were consistent with those she had made previously. Specifically, Meyer again stated that Glenn was asleep when Child returned from daycare and did not wake up until after Child left with Father.

¶11        In December 2018, the State charged Meyer with one count of child abuse, a class A misdemeanor.

¶12        The district court held a preliminary hearing in May 2019. Among other witnesses, the State subpoenaed Glenn to testify at the hearing. When he was called to testify, he was hostile, and the court threatened to hold him in contempt and take him into custody. But Glenn ultimately did testify. While he first declared that it was “100 percent incorrect” that he told Officer and Caseworker that the marks had not been on Child in the morning, after reviewing Officer’s bodycam footage, he admitted that he did say that. He also testified that after waking up that morning, he went straight to the car and didn’t notice any marks on Child’s arms, but he said he was busy “concentrating on driving and getting to and from.” He described how he went with Meyer to drop Child off at daycare in the morning. He testified that he was asleep when Meyer brought Child home. And he declared that he did not cause Child’s bruising.

¶13 Sometime after the preliminary hearing, Meyer married Glenn, and Meyer’s defense counsel (Defense Counsel) informed the State via email that Glenn intended to invoke his spousal privilege related to testifying at trial. The State told Defense Counsel that Glenn was “still required to show up to court to produce evidence that he [was], in fact, married . . . and take the stand to actually invoke the privilege.” The prosecutor insisted, “This is important because then he will become an unavailable witness. As an unavailable witness, I will then be able to play his preliminary hearing audio in lieu of his testimony.” Defense Counsel indicated that she “had anticipated that [the State] would be able to get Glenn’s preliminary hearing testimony in at trial.”

¶14        When Defense Counsel later informed the State that Glenn would be on bed rest following surgery on the date of trial (which had been continued multiple times), they discussed the possibilities of Glenn testifying via video during trial or of filing stipulated facts related to his testimony. But Glenn filed a motion to quash the subpoena against him. The State then sent Defense Counsel a transcript and redacted audio file of Glenn’s preliminary hearing testimony that it intended to have admitted at trial, and Defense Counsel responded, “I would absolutely object to both the transcript and the audio coming in at trial. . . . Glenn’s testimony is hearsay[,] and to introduce it would also be a violation of my client’s confrontation rights.” Defense Counsel explained, “The Utah Supreme Court has ruled that because there is a different motive for examining witnesses at a preliminary hearing than that at a trial, said testimony is inadmissible.”

¶15        The State then filed a motion to admit Glenn’s preliminary hearing testimony. After receiving briefing and hearing oral argument, the court found that Glenn’s testimony fell under the exception to hearsay in rule 804(b)(1) of the Utah Rules of Evidence for former testimony of an unavailable witness. The court acknowledged caselaw indicating that defendants are restricted in developing testimony at preliminary hearings, see State v. Goins, 2017 UT 61, ¶¶ 32–33, 423 P.3d 1236, but it distinguished that caselaw from the facts of this case and admitted the testimony.

¶16 The court held a bench trial in May 2021. In its opening statement, the State indicated that “through the process of elimination,” it would “show beyond a reasonable doubt that it was . . . Meyer who committed child abuse.”

¶17 In addition to Glenn’s testimony, Daycare Provider testified at trial that Child had been in her care from roughly 9:00 a.m. to 4:45 p.m. that day. She stated that she did not see any marks or injuries on Child when Child was dropped off and she never saw marks like those photographed, but she did notice a different mark on Child’s arm later in the day, and this was the mark she asked Meyer about. She also testified that on the day of the bruising, she did not take Child to the park, she did not know of any equipment Child could have accessed that would have caused the injuries, Child did not get injured playing with toys, Child did not receive any injuries while in her care, and Child did not cry or appear to be in pain while in her care. She admitted, though, that she was aware that Child had been “kicked out of her previous day care . . . for playing too rough” and that Child “play[ed] really rough with toys and hit[] dolls a lot.”

¶18        Nurse testified that after examining Child, she “speculated . . . that because of the spacing, and the shape, and the location of the injuries, the colors that [she] saw, they were most definitely bruises,” the spacing of which “could fit a hand.” She said, “I’m not telling you it’s fitting a hand because—you know, I can’t say it was a hand unless I watched it happen, but I can tell you that those are bruises that are in a linear form that you don’t just get from falling down.” She further testified that based on the location, direction, and shape of the bruising, she did not believe that the incidents Meyer had described as possible accidental sources of injury had caused Child’s bruises. She also testified that the marks were “fresher bruises” that, based on coloration, could have been caused within hours of when Officer and Caseworker photographed Child’s injuries. But she acknowledged that “there’s no scientific way to date a bruise” and said that while it was “likely that it occurred” that day, “literally there is no way to determine when it happened.”

¶19 The State played a clip from the recorded interview between Meyer and Sergeant, in which Meyer stated that Child had a temper tantrum after arriving home from daycare and that Child tried to get out of being held and Meyer needed to grab her arm from the side.

¶20        In its closing argument, the State asked, “[W]ho caused the abuse?” and answered that “this is where we get into the process of elimination.” The State then explained its theory that the evidence proved that no one else could have caused the bruising, including Glenn, who “slept through the whole thing.”

¶21 The court ultimately found Meyer “guilty of a lesser-included offense of [c]lass B misdemeanor, child abuse, for having inflicted this injury on [Child] in a reckless manner.” The court provided its rationale, explaining in part that it “found highly credible the testimony” of Nurse that the “bruising was consistent with the types of bruising she has seen in her child abuse conferences and trainings.” The court ruled out Glenn as a potential source of the injuries by saying, “You know, . . . Glenn is asleep by the time [Child] gets home and doesn’t really interact at all. And then we know for a fact that the injuries took place . . . definitively prior to when [Father] arrive[d] based off of the video.” The court concluded, “And so there’s just no doubt in the [c]ourt’s mind that Mom, you lost your cool, you crossed a line, you squeezed your daughter’s arms, and it left that injury. It couldn’t have been anyone else.” The court sentenced Meyer to 180 days of jail but suspended 179 days. It also ordered a fine and probation.

¶22        Meyer subsequently filed a motion for a new trial through Defense Counsel. Defense Counsel then withdrew from representing Meyer. Meyer appeared pro se and asked the court to appoint counsel, but the State objected, and the court decided that Meyer did not qualify for appointed counsel based on her income. The court ultimately denied Meyer’s motion for a new trial. Meyer now appeals.

ISSUE AND STANDARD OF REVIEW

¶23        Meyer argues on appeal that Glenn’s “preliminary hearing testimony should not have been admitted at trial” under an exception to the bar on hearsay.2 “When reviewing rulings on hearsay, [appellate courts] review legal questions regarding admissibility for correctness, questions of fact for clear error, and the final ruling on admissibility for abuse of discretion.” State v. Leech, 2020 UT App 116, ¶ 31, 473 P.3d 218 (cleaned up), cert. denied, 481 P.3d 1039 (Utah 2021). But even “if we determine that the hearsay testimony should not have been admitted, we will reverse only if a reasonable likelihood exists that absent the error,

  1. Meyer also argues that the district court “committed plain error by failing to obtain a valid waiver of counsel before having [Meyer] represent herself on her motion for a new trial.” Because we rule in her favor on the first issue, we need not address this argument.

the result would have been more favorable to the defendant.” Id. (cleaned up).

ANALYSIS

  1. Similar Motive and Opportunity

¶24 Meyer argues that the district court erred in admitting Glenn’s preliminary hearing testimony. She asserts that Glenn’s testimony fails to qualify for the rule 804 exception to the evidentiary bar on hearsay. This exception applies when “the declarant is unavailable” and the declarant’s testimony was “given . . . at a trial, hearing, or lawful deposition” and is now “offered against a party who had . . . an opportunity and similar motive to develop it by direct, cross-, or redirect examination.” Utah R. Evid. 804(b)(1). Meyer argues that caselaw on this point “compels the conclusion that the admission of Glenn’s preliminary hearing testimony was erroneous” because that caselaw indicates that the motive to develop an adverse witness’s testimony at a preliminary hearing differs from the motive to do so at trial.

¶25        In State v. Goins, 2017 UT 61, 423 P.3d 1236, our supreme court discussed the effect of the 1994 amendment to Article I, Section 12 of the Utah Constitution, which limited “the function of preliminary examination to determining whether probable cause exists,” id. ¶ 31 (cleaned up) (discussing Utah Const. art. I, § 12). The court stated that, “by and large,” this provision “places most credibility determinations outside the reach of a magistrate at a preliminary hearing.” Id. ¶ 33. Therefore, “[o]ur constitution specifically limits the purpose of preliminary hearings in a manner that can undercut defense counsel’s opportunity to cross-examine witnesses at a preliminary hearing and thereby modify the interest counsel has in developing testimony on cross-examination.” Id. ¶ 41. But the court “eschewed a blanket rule” of inadmissibility for preliminary hearing testimony because it could “envision scenarios where, for whatever reason, defense counsel possesses the same motive and is provided the same opportunity to cross-examine as she would have at trial.” Id. ¶¶ 36–37. However, the court indicated that “such cases might prove rare.” Id. ¶ 36.

¶26 The Goins court then analyzed the motive for cross-examining a witness at the preliminary hearing by considering the facts of the case, which included the defendant allegedly brandishing a knife and accusing the later-unavailable witness of stealing his phone, after which the witness fled and the defendant assaulted the witness’s acquaintance. Id. ¶¶ 3–6. The court held that it was “apparent on the record . . . that [the defendant’s] counsel did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial” because the witness’s “testimony referenced concerns with [the defendant] and a prior incident between” the pair, so the defendant’s “counsel had a motive to develop this testimony and question [the witness’s] credibility” at trial “that went beyond a preliminary hearing’s constitutionally limited purpose.” Id. ¶ 46.

¶27 Subsequent cases have reached similar conclusions. In State v. Ellis, 2018 UT 2, 417 P.3d 86, a defendant faced a charge of aggravated robbery for allegedly robbing a cupcake shop at gunpoint, id. ¶¶ 1, 4. The store clerk testified at trial as to the events within the store, id. ¶ 19, but another witness—a witness who saw the perpetrator leave the scene, run across the road, and get into a car whose license plate she then reported—was not able to be in court on the day of the trial, id. ¶¶ 7–8, 16. The court admitted her preliminary hearing testimony, id. ¶ 19, but our supreme court held that this was improper, id. ¶ 40. It stated that in Goins, it had “conditioned the admissibility of preliminary hearing testimony on a showing that defense counsel really did possess the same motive and was permitted a full opportunity for cross-examination at the preliminary hearing.” Id. ¶ 39 (cleaned up). And it said that “Goins foreclose[d] the admissibility of the . . . preliminary hearing testimony” because, “as in Goins, . . . [the court had] no basis to conclude that [the defendant’s] counsel’s preliminary hearing motive to cross-examine was similar to what would have existed at trial.” Id. ¶ 40 (cleaned up).

¶28        Similarly, in State v. Leech, 2020 UT App 116, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah 2021), this court applied the holding of Goins where a defendant faced charges related to the alleged kidnapping of two men and murder of one of them, id. ¶¶ 22–24. The court considered the admissibility of preliminary hearing testimony from a man who helped tie up the victims, drove the group to the murder site, supplied the gun, and observed the murder. Id. We noted that “whether the defense had a similar motive to develop prior testimony for purposes of rule 804(b)(1) will often turn on the nature of a witness and her testimony.” Id. ¶ 40 (cleaned up). Where the witness in question “was not only a critical eyewitness, but also an accomplice to each of the crimes,” we determined that “[t]he opportunity to cross-examine this type of witness at a preliminary hearing will likely be a poor substitute for confronting the witness at trial, where the jury can observe [the witness’s] demeanor and assess . . . credibility firsthand.” Id. Accordingly, we held that “the State did not demonstrate that [the defendant] had an adequate opportunity and similar motive to cross-examine [the witness] at the preliminary hearing as he would have had at trial.” Id. ¶ 41.

¶29 The district court believed that the present case was distinguishable from Goins because that case involved an “incident that could have caused motive for [the witness] to fabricate or fashion . . . testimony in such a way that would be damaging to [the defendant].” See Goins, 2017 UT 61, ¶ 46. On the other hand, the court stated, “in the case before the [c]ourt, there’s nothing that has been pointed to specifically that would indicate that there is a similar motive for . . . Glenn to have fabricated any of his testimony.” But the court’s analysis on this point was inadequate, as a witness’s motive for fabrication is not the only circumstance that might impact a defendant’s motive for questioning a witness at a preliminary hearing. This is obvious from Ellis, where the witness had no motive to fabricate testimony and our supreme court still held that it had “no basis to conclude that [the defendant’s] counsel’s preliminary hearing motive to cross-examine was similar to what would have existed at trial.” 2018 UT 2, ¶ 40 (cleaned up).

¶30 The district court erred in concluding that the motives at the preliminary hearing and at trial were the same. The court stated that during the preliminary hearing “there was an opportunity to cross-examine [Glenn] as to whether he was the source of . . . the injuries, whether he abused [Child].” “In fact,” it pointed out, “the State specifically questioned him on that.” It continued, “[The preliminary hearing judge] would have never shut that down and said, ‘No, even though the State had questioned specifically, did you cause the injuries, [d]efense you’re prohibited from going after him to follow up on that question.’ Certainly that would have been permitted by . . . the [j]udge.” But this analysis does not align with our supreme court’s in Goins. The Goins court specifically addressed the reality that a per se rule of admissibility for preliminary hearing testimony of unavailable witnesses “places magistrates in the uncomfortable position of choosing between conducting preliminary hearings in fidelity with article I, section 12 and permitting the type of examinations” that were standard before the constitutional amendment limited the scope of preliminary hearings. 2017 UT 61, ¶ 34. The district court fails to accept that, as the supreme court suggests, Defense Counsel could have reasonably expected the court to limit questioning to that which was necessary for probable cause and prepared to cross-examine Glenn accordingly. See id. We reasoned similarly in Leech, where the defendant’s “counsel admitted that he did not pose a question during his cross-examination of [the witness] that was objected to and sustained, but he maintained that he did not have the same opportunity and motive to cross-examine [the witness] as he would have had at trial because he understood the limited scope of the hearing.” 2020 UT App 116, ¶ 28 (cleaned up). Accordingly, the district court erred in determining that Meyer had the same motive and opportunity to question Glenn in the preliminary hearing as she did at trial because the judge would— presumably—not have prevented follow-up questions to those that were asked.

¶31        Instead, the court should have recognized that the motives changed with respect to questioning witnesses at the preliminary hearing versus at trial. The State was clear that its case was based on a process of elimination. This point is hardly significant at a preliminary hearing, which seeks to determine if there was probable cause—a low standard—for a jury to conclude Meyer caused the bruising. See id. ¶ 20 (reciting the magistrate’s explanation at the defendant’s preliminary hearing that “different standards of proof apply at a probable cause hearing than apply at trial” and that “probable cause means enough evidence that the court is convinced that a reasonable jury could find, not that they necessarily would, but that they could find the offenses charged were committed and that [the defendants] were the individuals who committed them” (cleaned up)). Moreover, at a preliminary hearing, the facts are construed in the light most favorable to the State’s case. See id. (indicating that the magistrate informed the defendant that “one of the most important [differences] is that any doubts or questions about evidence at a preliminary hearing get resolved in favor of the State and against the defendants” and explained that “the benefit of the doubt goes to the State in a preliminary hearing” (cleaned up)). On the other hand, at trial the State must prove a defendant’s guilt beyond a reasonable doubt, see, e.g.id. ¶ 64, and here the State needed to eliminate all other possible suspects beyond a reasonable doubt during trial. So the motive in questioning each witness at the preliminary hearing was to show lack of probable cause that Meyer was the source of Child’s bruises, while the motive at trial was to introduce reasonable doubt as to Meyer causing the bruises by convincing the court that someone else may have done so. In other words, with respect to Glenn, the motive shifted from showing that Glenn was the more likely source of the bruising to showing that Glenn could have caused the bruising such that there was reasonable doubt that Meyer caused it. Therefore, we hold, as did the Goins court, that it was “apparent on the record . . . that [Meyer] did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial” because at trial Meyer “had a motive to . . . question [Glenn’s] credibility that went beyond a preliminary hearing’s constitutionally limited purpose.” See 2017 UT 61, ¶ 46.

  1. Prejudice

¶32 “A determination of error in admitting [Glenn’s] preliminary hearing testimony is not alone enough to sustain a reversal. We must also find that error prejudicial. Prejudice in this setting requires a showing of a reasonable likelihood that the decision to admit [Glenn’s] preliminary hearing testimony altered the . . . verdict.” See State v. Ellis, 2018 UT 2, ¶ 41, 417 P.3d 86 (cleaned up).

¶33 The relevant caselaw indicates that errors in admitting preliminary hearing testimony are sometimes harmless. In Goins, the court held that the error was prejudicial as to one charge but harmless as to another because on the first charge, the “testimony was the primary evidence admitted in support of” that charge but on the second charge, the testimony did not address the major underlying facts and the guilty verdict was supported by other witness testimony and corroborating photographs. State v. Goins, 2017 UT 61, ¶¶ 50–51, 423 P.3d 1236.

¶34        Similarly, in Leech, this court identified prejudice with respect to one count but not as to three others. State v. Leech, 2020 UT App 116, ¶ 48, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah 2021). For the first, we determined that the “charge could not be proven without crediting” the testimony of the kidnapping victim who wasn’t killed and “there [was] a reasonable likelihood that the jury would not have believed” this person “without the corroboration [the unavailable witness’s] testimony provided.” Id. ¶ 63. But we held that two of the convictions were independently supported by three other witnesses. Id. ¶ 52. And for the final charge, one of its elements “was not disputed at trial” and the other two elements “did not depend on the veracity of the [unavailable witness’s] account of the murder itself.” Id. ¶ 62.

¶35        In Ellis, the court found prejudice where “the preliminary hearing testimony in this case was central to the prosecution’s case on this charge.” 2018 UT 2, ¶ 2. The court so concluded because the witness “provided key pieces of evidence that the jury likely credited,” including her being “the only witness who could testify that the robber fled in a car”—making her “the crucial link for what occurred after [the clerk] lost sight of the robber.” Id. ¶¶ 43, 45.

¶36 Here, the court’s error in admitting Glenn’s testimony prejudiced Meyer because there is a “reasonable likelihood that the decision to admit [Glenn’s] preliminary hearing testimony altered the . . . verdict.” See id. ¶ 41 (cleaned up). The State’s presentation of the case against Meyer as a “process of elimination” impacts the fact-finder’s weighing of the evidence such that, for Glenn’s testimony to have been prejudicial, Meyer need show only that without the testimony, the court would have had a reasonable doubt that she was the source of the injuries. Meyer points us to this helpful insight offered by the Supreme Court of Illinois: “[I]f [the prosecution] intend[s] to obtain a conviction by the process of elimination by showing that no one else but [the] defendant could have been guilty, the burden [is] upon it to show that there was no one else in the other room.” People v. Boyd, 161 N.E.2d 311, 315 (Ill. 1959).

¶37        We agree with Meyer that removing Glenn’s erroneously admitted testimony makes a finding of reasonable doubt as to Meyer’s guilt much more likely. While Meyer’s own testimony corroborated Glenn’s account from the preliminary hearing that he was sleeping during the time Child was home from daycare until Father picked her up, that is not the only information Glenn provided. Glenn also testified that he did not cause the bruising. And he testified that, on the morning in question, he woke up and went directly to the car to drive Child to daycare, giving him no opportunity to interact with Child such that he could have caused her bruising that day.

¶38        The court, in providing the rationale for its conviction of Meyer, explained that it “found highly credible the testimony of” Nurse that the “bruising was consistent with the types of bruising she has seen in her child abuse conferences and trainings.” And it said, “You know, . . . Glenn is asleep by the time [Child] gets home and doesn’t really interact at all. And then we know for a fact that the injuries took place . . . definitively prior to when [Father] arrive[d] based off of the video.” The court clearly found that the bruises were caused before Father arrived, but it did not make a specific finding that the bruises could not have been caused earlier in the day. And Nurse, whose testimony the court found “highly credible,” testified multiple times that she could not provide a timeline for the cause of the bruising. When asked if it was “possible to at least rule out certain time frames,” Nurse responded, “What we were trained was that a fresher bruise is red or purple. . . . Red or purple means that this happened probably fairly close to the time that I saw her because of the darkness of the color, but . . . there’s no scientific way to date a bruise.” Nurse agreed that the bruises could have been caused “within hours.” But when Defense Counsel pressed, asking, “You testified a minute ago that you—it’s your opinion that with bruising, from what you observed, it’s more likely that it occurred like four hours before?” Nurse answered, “That day.” Defense Counsel stated, “That day. Two hours before, five hours before.” Nurse responded, “Purple-red is the colors you see first with bruising and there is—literally there is no way to determine when it happened.”

¶39 Given that removing Glenn’s testimony would have heightened the possibility that Glenn caused the injuries at some time outside the window between Child’s return from daycare and Father’s arrival, we conclude that Meyer was prejudiced. The State’s process-of-elimination approach makes Glenn’s preliminary hearing statements that he did not cause the bruising and did not have the opportunity to cause the bruising before Child went to daycare all the more significant. The State admitted as much when it argued for the admission of Glenn’s testimony, saying that “his testimony [was] necessary to the State to prove the case at trial.” We are hard-pressed to conclude that the testimony’s faulty admission was harmless when the State was so adamant that the testimony was essential in the first place. And the State fails to argue that Meyer was not prejudiced by the faulty admission or to point us to other evidence corroborating these key points of Glenn’s testimony. So without the preliminary hearing testimony, Glenn was not excluded—or at least not as easily excluded as he would have otherwise been. The State’s theory required it to eliminate all other possible suspects; without Glenn’s preliminary hearing testimony, it did not do so, and it is likely that the court would have concluded as much. In this respect, Glenn’s testimony is like that at issue in Ellis, because it was “central to the prosecution’s case” and “provided key pieces of evidence” under the State’s process-of-elimination approach. See 2018 UT 2, ¶¶ 2, 43. And this testimony is unlike that deemed nonprejudicial in Goins and Leech because Meyer’s conviction did “depend on the veracity of [Glenn’s] account.” See Leech, 2020 UT App 116, ¶ 62. Accordingly, the court’s error in admitting Glenn’s preliminary hearing testimony prejudiced Meyer.

CONCLUSION

¶40 The district court erred in admitting Glenn’s preliminary hearing testimony, and Meyer was prejudiced by that error. We therefore vacate Meyer’s conviction and remand this matter for further proceedings consistent with this opinion.

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

 

[1] Since the time of her charges, the defendant has remarried. She uses a different last name but still accepts the use of “Meyer.” We continue to use “Meyer” for simplicity and for consistency with the case name.

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2023 UT 11 – In Re C.D.S. And W.E.S – Appeal of Termination Parental Rights

2023 UT 11 – In re C.D.S. and W.E.S

IN THE SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH, in the interest of C.D.S. and W.E.S.,

persons under eighteen years of age.

A.S.,

Petitioner,

v.

STATE OF UTAH,

Respondent.

No. 20220580

Heard February 10, 2023

Filed June 8, 2023

On Certiorari to the Utah Court of Appeals

Eighth District Juvenile, Uintah County

The Honorable Ryan B. Evershed

Nos. 1178352, 1184710

Utah Court of Appeals, Salt Lake

No. 20220100

Attorneys:

K. Andrew Fitzgerald, Moab, for petitioner,

Sean D. Reyes, Att’y Gen., Carol L. C. Verdoia, John M. Peterson,

Asst. Atty’s Gen., Salt Lake City, for respondent

Martha Pierce, Salt Lake City, Guardian ad Litem for C.D.S.

and W.E.S.

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court,

in which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN,

JUSTICE POHLMAN, and JUDGE CORNISH joined.

Having recused herself, JUSTICE HAGEN does not participate herein;

DISTRICT COURT JUDGE RITA M. CORNISH sat.

 

ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 The juvenile court terminated the parental rights of a mother and father. They each had fifteen days to appeal. Father appealed within that window. Mother filed her notice of appeal on the wrong side of the deadline. The court of appeals dismissed Mother’s appeal as untimely.

¶2 Mother argues that the court of appeals erred for a couple of reasons. We reject Mother’s argument that a minute entry that came after the court signed the final order restarted the clock on her time to appeal. But we agree with her that Utah Rule of Appellate Procedure 52(c)—together with Father’s timely appeal—extended her time to file a notice of appeal. We reverse and remand to the court of appeals.

BACKGROUND

¶3 In September 2019, the Division of Child and Family Services (DCFS) petitioned the juvenile court to remove two-year-old Chester from Mother and Father’s custody. At the time, Mother was pregnant with their second child, Winnie.[1]

¶4 The juvenile court placed Chester in the temporary custody of his aunt and uncle. The court also ordered DCFS to provide Mother and Father with reunification services.

¶5 After Winnie was born, DCFS initially allowed Winnie to stay with Mother and Father. A few months after Winnie’s birth, however, DCFS filed a “Motion for Expedited Placement and Temporary Custody” for Winnie. From the beginning of 2020 to the beginning of 2021, the juvenile court conducted several permanency and review hearings for the children. At the end of 2020, the court authorized Chester to live with Mother and Father in a trial home placement.

¶6 At a hearing a few months later, the juvenile court determined that, while Mother and Father had substantially complied with the reunification plan, reunification was not likely to be appropriate within the next ninety days. The court terminated DCFS’s reunification services and changed the children’s primary permanency goal from reunification to adoption.

¶7 In November 2021, the juvenile court held a trial. At the trial’s conclusion, the court indicated that it would enter an order terminating Mother’s and Father’s parental rights.

¶8 The juvenile court entered the written termination order (Termination Order) on January 7, 2022, which terminated Mother’s and Father’s parental rights. In it, the court detailed the grounds it relied upon to terminate Mother’s and Father’s parental rights. The juvenile court found that DCFS made reasonable efforts to provide reunification services to Mother and Father, and found that it was in the best interest of the children for Mother’s and Father’s parental rights to be terminated and for the children to be adopted.

¶9 The Termination Order stated: “This is a final and appealable order. There will be no further order after this as related to the parent’s [sic] parental rights.” It also informed Mother and Father that they had “15 days from the signing of this order to file a Notice of Appeal with the Juvenile Court.”[2]

¶10 On January 10, 2022, the juvenile court filed a minute entry titled “Minutes.”[3] The Minutes contained a condensed recitation of what had occurred at trial. Among other particulars, it detailed who was present in the courtroom, the names of those who testified, and the exhibits the court entered into evidence. The Minutes also contained several findings of fact and ordered the termination of Mother’s and Father’s parental rights.

¶11 On January 24, 2022, Father filed his notice of appeal.[4] On January 25, Mother’s trial counsel filed a notice of appeal.

¶12 The court of appeals determined that Mother’s appeal was not filed within fifteen days of the Termination Order, as Utah Rule of Appellate Procedure 52(a) requires. The panel dismissed the appeal for lack of jurisdiction. This court granted certiorari review.

¶13 Mother contends that her appeal was timely filed for at least one of two reasons. Mother first points to the Minutes that the court filed several days after it entered the written termination order. Mother argues that the minute entry constitutes a new appealable order and that she had fifteen days from the entry of that order to file her notice of appeal. The State and the guardian ad litem disagree.

¶14 Mother next asserts that the Utah Rules of Appellate Procedure allow her to file a notice of appeal within five days of Father’s timely filed notice. Rule 52(c) states that after a party files a notice of appeal, “any other party” may file its notice of appeal within five days. Mother asserts that she is “any other party” within the rule’s meaning. The State largely agrees with Mother’s argument. The guardian ad litem does not.

STANDARD OF REVIEW

¶15 “Whether jurisdiction is proper is a legal question that we review for correctness . . . .” State ex rel. A.C.M., 2009 UT 30, ¶ 6, 221 P.3d 185. The court of appeals based its decision on an interpretation of the Utah Rules of Appellate Procedure. “The interpretation of a rule of procedure is a question of law that we review for correctness.” Arbogast Family Tr. v. River Crossings, LLC, 2010 UT 40, ¶ 10, 238 P.3d 1035 (cleaned up).

ANALYSIS

I. THE MINUTE ENTRY DID NOT EXTEND MOTHER’S TIME TO APPEAL

¶16 The court of appeals held that it lacked jurisdiction over Mother’s appeal because it was filed outside the fifteen-day timeframe that Utah Rule of Appellate Procedure 52(c) provides. Mother argues that the court of appeals erred when it calculated the fifteen-day period from the entry of the Termination Order and not the subsequently entered Minutes. Mother argues that she is entitled to appeal from the Minutes and that her notice of appeal of that ruling was timely filed.

¶17 The State and the guardian ad litem argue that the court of appeals correctly held that the minute entry was not a separately appealable order. The State claims that the Minutes were “a mere ministerial document from which the judgment must be drawn” and that the minute entry was not an appealable order because it “was a belated entry that did not modify or change the substance of the Termination Order.” The guardian ad litem similarly argues that the Termination Order “triggered the timing for the notice of appeal” and that the minute entry was an inconsequential “after-the-fact ministerial document[].”

¶18 The clock to file a notice of appeal starts when “the court directs that no additional order need be entered.” Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 35, 201 P.3d 966. There can be no doubt that the Termination Order met this test. The Order stated: “There will be no further order after this as related to the parent’s [sic] parental rights,” and informed Mother and Father that they had fifteen days to appeal.[5]

¶19 This statement in the Termination Order alone, of course, does not answer the question this case presents. Mother asks what the effect is of a subsequently entered order on the same topic as a final appealable order. This is a question that we answered long ago. If one order starts to run the time for appeal, the entry of another order does not restart the clock if the later entry does not change the substance of the first.

¶20 For example, in Adamson v. Brockbank, we held that the defendants could file their appeal from an order amending an original judgment, even though the date to file a timely appeal from the original order had already passed. Adamson v. Brockbank, 185 P.2d 264, 268 (Utah 1947). The amended order corrected an inconsistency in the original judgment. Id. This correction clarified the liability of a defendant, an alteration we held was significant enough to change the character of the judgment. Id. We articulated the principle that, “where a belated entry merely constitutes an amendment or modification not changing the substance or character of the judgment, such entry . . . relates back to the time the original judgment was entered.” Id.

¶21 We relied on this holding in State v. Garner, 2005 UT 6, 106 P.3d 729. There, a modification to an original judgment clarified the nature of the defendant’s conditional plea in greater detail. Id. ¶ 12. But this was “a redundant addition, not a material change” and thus did not extend the time for Garner’s appeal. Id.¶¶ 11, 13.

¶22 Here, the Minutes did not amend or modify the substance of the Termination Order. The Minutes recited short findings of fact and repeated the conclusion that the parental rights be terminated. It did not change the parents’ rights or the children’s status. The minute entry did not amend or modify the Termination Order, so the time to appeal ran from the entry of the Termination Order. The court of appeals did not err when it rejected Mother’s argument.

II. RULE 52(C) EXTENDED MOTHER’S TIME TO APPEAL

¶23 Mother also argues that the court of appeals incorrectly concluded that Father’s appeal, filed one day before Mother’s, did not extend Mother’s time to appeal. The court of appeals held that rule 52(c) of the Utah Rules of Appellate Procedure “relates to cross-appeals, i.e., appeals filed by someone who has already been made a party to the appeal.” The court, therefore, held that Mother was “required to file her own timely appeal” because she “was not a party to Father’s appeal.”

¶24 Mother argues that rule 52(c) allows a party five days to file a notice of appeal from the date another party to the case files its notice of appeal.[6] The State agrees with Mother and contends the court of appeals incorrectly determined that “rule 52(c) did not render Mother’s notice of appeal timely.”[7] The State expresses uncertainty on whether Mother has initiated her own appeal or must be limited to the issues presented in Father’s appeal, but it still concludes that the “plain language of appellate rule 52(c) means that Mother has, at least, successfully initiated a cross-appeal.”[8]

¶25 “When we interpret a procedural rule, we do so according to our general rules of statutory construction.” Arbogast Family Tr. v. River Crossings, LLC, 2010 UT 40, ¶ 18, 238 P.3d 1035. In statutory construction, “our primary goal is to evince the true intent and purpose of the Legislature,” the “best evidence” of which “is the plain language of the statute itself.” Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, ¶ 18, 506 P.3d 509 (cleaned up). Thus, “[w]e interpret court rules, like statutes and administrative rules, according to their plain language.” Arbogast Family Tr., 2010 UT 40, ¶ 18 (cleaned up). Although we do this with the added wrinkle that, when we interpret the Utah Rules of Procedure, the intent we most often attempt to discern through the text is ours, and not the Legislature’s.

¶26 Rule 52(c) is straightforward: “If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 5 days after the first notice of appeal was filed.” UTAH R. APP. P. 52(c). Nothing in the language of the rule itself limits the phrase “any other party” the way the court of appeals did. That is, nothing in the plain text limits the rule’s reach to a party who is already part of the appeal.

¶27 The court of appeals’ reading of rule 52(c) appears to have been influenced by the rule’s title. We put the label “Time for cross-appeal” on that subsection. However, we have noted that “[t]he title of a statute is not part of the text of a statute, and absent ambiguity, it is generally not used to determine a statute’s intent.” Blaisdell v. Dentrix Dental Sys., Inc., 2012 UT 37, ¶ 10, 284 P.3d 616 (cleaned up). We are in what some would consider good company with that proposition. A prominent treatise on the topic counsels that a “title or heading should never be allowed to override the plain words of a text.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 222 (2012).[9]

¶28 It nevertheless appears the court of appeals relied on this title and imported the language “party to this appeal” into the rule, such that it would read: “If a timely notice of appeal is filed by a party, any other party [who was made party to the appeal] may file a notice of appeal within 5 days after the first notice of appeal was filed.” UTAH R. APP. P. 52(c).

¶29 As Mother points out, “[t]he rules do not define ‘a party’ as something different than those who were parties to the proceedings before the district or juvenile court.” The court of appeals’ dismissal incorrectly “would define ‘a party’ in the lower courts as different than ‘a party’ before the appellate courts on the same matter.”

¶30 Our reading of the rule is buttressed by how we understand rule 52(c) came to be. It is based on rule 4 of the Utah Rules of Appellate Procedure, which is, in turn, based on rule 4(a)(3) of the Federal Rules of Appellate Procedure.[10] See UTAH RULES OF APPELLATE PROCEDURE: WITH NOTES OF THE SUPREME COURT ADVISORY COMMITTEE 14 (1984) (on file with the Utah State Law Library) (stating that rule 4(d) “adopts substantially the time period and concept of cross-appeal in Rule 4(a)(3)” of the Federal Rules of Appellate Procedure).

¶31 Rule 4(a)(3) of the Federal Rules of Appellate Procedure gives a party fourteen days after another party appeals to file its appeal.[11] Wright and Miller’s treatise on federal procedure explains that rule 4(a)(3) allows any party to take advantage of the additional time to file a notice of appeal. “The 14-day provision is not limited to cross-appeals, and plainly encompasses appeals by other parties such as co-parties or third-party defendants.” 16A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE: JURISDICTION § 3950.7 (5th ed. 2022) (Westlaw).[12]

¶32 This interpretation reflects the views of the advisory committee. When the committee recommended a substantive amendment to this rule, it noted:

The added time which may be made available by the operation of the provision is not restricted to cross appeals in the technical sense, i.e., to appeals by parties made appellees by the nature of the initial appeal. The exception permits any party to the action who is entitled to appeal within the time ordinarily prescribed to appeal within such added time as the sentence affords.

Advisory Committee Note to 1966 Amendments to Federal Rule of Civil Procedure 73(a), 39 F.R.D. 69, 131 (1966) (amending then rule 73(a) of the Federal Rules of Civil Procedure, a rule later incorporated into the appellate rules).

¶33 In other words, if Mother were in federal court, or in a non-child welfare case in a Utah court, her appeal would undoubtedly be timely filed under rules that in all aspects—other than title and time frame—mirror rule 52(c). The only part of rule 52(c) that suggests a different result is the title, and, as we have noted, we don’t use titles that way.

¶34 And here, there is additional reason to believe that we did not intend to use the rule’s title to work a substantive limitation on the rule’s text. In 2003, the Advisory Committee on the Utah Rules of Appellate Procedure heard from an assistant attorney general in the Child Welfare Division who “described child welfare proceedings and the need to expedite appeals from parental rights terminations” to “help stabilize” children’s lives. Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE ON THE UTAH RULES OF APPELLATE PROCEDURE, ADMINISTRATIVE OFFICE OF THE COURTS (hereinafter Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE) (Nov. 19, 2003).

¶35 The need for speed was reiterated at a 2017 committee meeting, which discussed amendments to rule 52 and other child welfare appellate rules. The minutes of that meeting laid out that “[t]he purpose of these amendments is to expedite adoption and termination of parental rights appeals from the district courts and put them on the same footing as appeals from child welfare proceedings in the juvenile courts.” Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE (Sept. 7, 2017).

¶36 The rules committee also discussed the relationship between rule 52 and rule 4 when a member “proposed, and the committee agreed, that Rule 52 should be amended to make it consistent with the recent changes that were approved to Rule 4(b).” Approved Minutes, SUPREME COURT’S ADVISORY COMMITTEE (May 5, 2016). Thus, it appears the drive behind these rules was not to have rule 52(c) exclude certain appeals that rule 4 includes but to maintain the structure of rule 4 while expediting child welfare proceedings.[13]

¶37 The guardian ad litem offers a different interpretation of the rule than Mother, the State, and the court of appeals. She avers that Mother was a party to her own termination proceedings but was never, even at the district court level, a party to Father’s termination proceedings. The guardian ad litem thus contends that Mother was not “any party” in the context of the rule because she was not a party to the proceedings Father appealed.

¶38 The guardian ad litem supports this argument with something we said in State ex rel. A.C.M. There, we noted that we “treat the termination of each parent’s rights separately for purposes of finality and appealability.” State ex rel. A.C.M., 2009 UT 30, ¶ 12, 221 P.3d 185. The guardian ad litem in A.C.M. claimed that the order terminating the father’s parental rights was not a final order because the mother’s rights had not yet been terminated. Id. We reasoned that the order terminating the father’s rights was “final and appealable because it constitute[d] a change in the child’s status” with respect to the father. Id. That also prompted the observation on which the guardian ad litem relies.

¶39 We stand by the observation that we can treat the termination of each parent’s rights separately for the purposes of finality and appealability. But that is not to say that parents cannot be parties to the same case. And A.C.M. says nothing about the applicability of rule 52(c) when the system adjudicates both parents’ rights in the same action and addresses them in the same order.

¶40 The guardian ad litem claims that there was one termination proceeding for Father and a separate one for Mother—and that the juvenile court consolidated these cases without making either parent party to the other’s case. The record before us does not bear that out. A separate case was initiated relating to each child. Mother and Father were parties in both cases. The juvenile court consolidated Chester’s case and Winnie’s case, though each case maintained its own case number. The court did not—indeed, it could not— consolidate the parents’ cases, because those cases did not exist. The court conducted a single trial in which both Mother and Father presented evidence and arguments. That trial resulted in a single order that lists both Mother and Father as parties.

¶41 On these facts, we have no trouble concluding that Mother was “another party” within the meaning of Utah Rule of Appellate Procedure 52(c) and is entitled to the additional five days to file a notice of appeal.[14]

III. WE DECLINE TO ADDRESS MOTHER’S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL

¶42 Mother spends a considerable portion of her brief arguing that her appeal should be considered timely because her counsel was ineffective for filing past the fifteen-day deadline. Mother also argues she was prejudiced by her denial of the right to appeal.

¶43 Mother asked us to grant certiorari review on this issue. We did not. We note for future reference that an order that does not grant certiorari on an issue is a pretty good signal that we do not intend to address the question.[15]

CONCLUSION

¶44 The court of appeals correctly ruled that the time for Mother to file her appeal ran from the entry of the Termination Order and not the subsequent Minutes. The court of appeals erred when it concluded that Utah Rule of Appellate Procedure 52(c) only applied to parties filing a cross-appeal. Mother timely filed her notice of appeal. We reverse and remand to the court of appeals to consider Mother’s appeal.

Utah Family Law, LC | divorceutah.com | 801-466-9277

 

[1] Chester and Winnie are pseudonyms.

[2] The Utah Rules of Appellate Procedure provide the fifteen-day timeline in child welfare proceedings. Rule 52(a) states that in this setting, a notice of appeal “must be filed within 15 days of the entry of the order appealed from.” UTAH R. APP. P. 52(a).

[3] As we march through our analysis, we will refer to this document as both the minute entry and the Minutes.

[4] The fifteenth day was Saturday, January 22, 2022. By operation of rule 22(a) of the Utah Rules of Appellate Procedure, which does not require parties to file on Saturdays and Sundays, the time for filing the petition was extended to the following Monday, January 24. See UTAH R. APP. P. 22(a).

[5] Mother questions whether our precedent on the finality of orders applies to child welfare proceedings. It generally does, though our rules and precedent make some distinction between child welfare and non-child welfare cases. For example, rule 58A of the Utah Rules of Civil Procedure requires that “[e]very judgment and amended judgment must be set out in a separate document.” There is no such requirement in child welfare proceedings. See UTAH R. APP. P. 52(a); State ex rel. A.C.M., 2009 UT 30, ¶ 10, 221 P.3d 185. But no rule or precedent alters the conclusion that a belated entry or modification that does not change the substance of a final order does not create a new final and appealable order.

[6] Rule 52(c) of the Utah Rules of Appellate Procedure, titled “Time for cross-appeal,” reads:

If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 5 days after the first notice of appeal was filed, or within the time otherwise prescribed by paragraphs (a) and (b) of this rule, whichever period last expires.

[7] The State—both in its briefs and during oral argument— acknowledges that rule 52(c)’s plain language supports Mother’s argument. We commend the State for its candor.

[8] The guardian ad litem disagrees for reasons we will discuss and dismiss in a page or two.

[9] That is not to say that titles are irrelevant. When “we need help understanding an ambiguous provision, titles are persuasive and can aid in ascertaining the statute’s correct interpretation and application.” Graham v. Albertson’s LLC, 2020 UT 15, ¶ 24, 462 P.3d 367 (cleaned up). We just don’t use titles to create ambiguity. This is because titles are generally shorthand descriptions of what is to follow and can miss some of the complexities of the text to come.

[10] Utah Rule of Appellate Procedure 4 states, in relevant part: “If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed.” UTAH R. APP. P. 4(d). Unlike rule 52(c), it gives “any other party” fourteen days (instead of five) to file an appeal. In addition, rule 4(d) is titled “Additional or cross-appeal” rather than “Time for cross-appeal.” Compare UTAH R. APP. P. 4(d), with UTAH R. APP. P. 52(c).

[11] The federal rule bears the title “Multiple Appeals.” FED. R. APP. P. 4(a)(3).

[12] Other treatises echo this understanding. See, e.g., JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE: CIVIL § 304.11 (2023) (LexisNexis) (“This provision is not restricted, however, to parties named as appellees in the initial appeal.”); 18 BENDER’S FEDERAL PRACTICE FORMS, COMMENT ON APPELLATE RULE 4 (2022) (LexisNexis) (“This provision is not restricted to parties named as appellees in the initial appeal. Any party to the action is entitled to the benefit of the additional 14-day period.”). This is also the way several federal cases have interpreted the rule. See, e.g.N. A,ii. Sav. Ass’n v. Metroplex Dev. P’ship, 931 F.2d 1073, 1077–78 (5th Cir. 1991); Melton v. Frank, 891 F.2d 1054, 1056 n.1 (2d Cir. 1989); Jackson Jordan, Inc. v. Plasser A,ii. Corp., 725 F.2d 1373, 1374–76 (Fed. Cir. 1984).

[13] We encourage the Advisory Committee on the Utah Rules of Appellate Procedure to look at clarifying the title so it better reflects the rule’s language and intent.

[14] 14 There is logic underlying rule 52(c). There may be occasions when a party’s calculus on whether to file an appeal may be impacted by another party’s decision to appeal. Using the facts of this case, for example—and we stress that this is a hypothetical and not a reflection of what we think actually occurred—it is entirely possible that a person in Mother’s position might decide not to appeal the termination of her parental rights if she thinks it will only delay adoption of the children. Mother’s thinking could dramatically change if her co-parent appeals and the possible outcomes include not only adoption, but restoration of Father’s parental rights and not hers. In that case, it makes sense that our rules would give Mother a few additional days to assess the changed landscape and decide whether to appeal.

[15] The guardian ad litem advocates that we task our rules committee with considering a new rule that would “reinstate the time for appeal in child welfare cases where a parent’s right to effective counsel is implicated.” We have previously recognized that a trial court may extend the time for appeal in a proceeding on termination of parental rights if a parent was denied effective assistance of counsel. State ex rel. M.M., 2003 UT 54, ¶¶ 6, 9, 82 P.3d 1104. But this is not the same as a rule that says the court shall reinstate the time for appeal when a parent can show that they have been denied effective representation. We encourage the Advisory Committee on the Utah Rules of Appellate Procedure to explore such a rule, and we thank the guardian ad litem for the excellent suggestion.

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Scott v. Benson – 2023 UT 4 – Fraudulent Voluntary Declaration of Paternity

2023 UT 4

IN THE

SUPREME COURT OF THE STATE OF UTAH

TAYLOR LYNN SCOTT,

Respondent,

v.

SARAH CATHERINE BENSON,

Petitioner.

No. 20210922

Heard October 3, 2022

Filed April 20, 2023

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake

The Honorable Richard D. McKelvie

No. 194903038

Attorneys:

Jeremy G. Jones, Jeffrey C. Jensen, Sandy, for respondent

Julie J. Nelson, Millcreek, Alexandra Mareschal, Salt Lake City,

for petitioner

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court in

which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN, JUSTICE HAGEN, and

JUDGE REUBEN RENSTROM joined.

Having recused herself, JUSTICE POHLMAN did not participate;

DISTRICT COURT JUDGE REUBEN RENSTROM sat.

ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 Utah law permits parents to establish the paternity of their child by signing and filing a voluntary declaration of paternity (VDP) with the Office of Vital Records and Statistics. UTAH CODE §§ 78B-15-301-302. Sarah Benson and Taylor Scott, an unmarried couple, signed a VDP in which they both represented that Scott was the father of Benson’s child (Child). Problem was, Scott was not Child’s biological father, and both Scott and Benson knew that when they signed the VDP.[1]

¶2 After they submitted the VDP to the state, Benson continued to allow Scott to act as a father to Child, much as she had since Child’s birth. But she eventually cut off contact between Scott and Child. Scott filed a complaint, asserting he was Child’s father and asking the court for joint legal and physical custody. Benson challenged the VDP and asked the court to declare that Scott was not Child’s father.

¶3 The district court applied the Utah Uniform Parentage Act and concluded that the VDP should be set aside because of the parties’ fraud and a mutual mistake. See id. § 78B-15-307(1). But it also concluded that, under the Act, Scott should be adjudicated to be Child’s father. See id. § 78B-15-608. Benson appealed, and the court of appeals affirmed.

¶4 Before us, Benson argues that the court of appeals misinterpreted the Act because once the district court concluded that the VDP was the product of fraud and mistake, the Act did not provide a path for Scott to continue to assert that he should be deemed to be Child’s father.

¶5 We reject Benson’s reading of the Act and affirm.

BACKGROUND

¶6 Benson was pregnant with Child when she met and began dating Scott. Scott knew that Benson was pregnant with Child while they were dating and that he was not Child’s biological father.

¶7 But Scott attended Child’s birth and played a substantial role as a parental figure in Child’s life for the next seven years. Child’s biological father passed away shortly after Child’s birth.

¶8 During their dating relationship, Benson became pregnant with Scott’s biological child (Sibling). Before Sibling was born, Benson and Scott—who had never married—split up.

¶9 Because the couple never married, Utah law did not consider Scott to be Sibling’s “presumed father.” Benson initiated a paternity action, which established that Scott was Sibling’s biological father. See supra ¶ 31 n.7. Scott and Benson settled that action by agreeing to sign a voluntary declaration of paternity (VDP)—in which Scott acknowledged that he was Sibling’s father—and by obtaining an order that gave Scott joint custody of and required him to pay child support for Sibling.[2] Under their custody agreement, Scott enjoyed near-equal parent-time with Sibling.

¶10 Scott often cared for Child at the same time and in the same manner that he cared for Sibling. This pattern continued even after Scott married someone other than Benson.[3]

¶11 At some point, Benson was arrested and charged with driving under the influence. Benson pleaded guilty, and her driving privileges were suspended. For the next several months, Scott—at Benson’s request—was the primary caregiver to both Child and Sibling.

¶12 Benson suffered from mental health issues during this period. She wanted a plan to ensure that both of her children would be cared for if she were no longer around. This thinking culminated in Scott and Benson signing and submitting a VDP that represented to the state that Scott was Child’s biological father, even though both Scott and Benson knew that representation was false. The Office of Vital Records updated Child’s birth certificate to reflect Scott’s paternity.

¶13 For a year or so after signing the VDP, Scott and Benson maintained contact and shared parenting responsibilities for both children. Eventually Benson—who had married and whose husband wanted to adopt Child—cut off contact between Scott and Child.

¶14 Scott filed a paternity action, seeking to be declared Child’s legal father and asking for joint legal and physical custody of Child. Benson counter-petitioned, challenging Scott’s paternity and asking to have the VDP set aside.

¶15 The district court treated Benson’s counter-petition as an action to invalidate the VDP under the Utah Uniform Parentage Act. The Act provides that a VDP can be challenged because of fraud, duress, or material mistake of fact. UTAH CODE § 78B-15-307. Benson also filed a motion asking the court to compel Scott to submit to genetic testing, which she asserted would demonstrate that Scott was not Child’s biological father.

¶16 Scott agreed that a genetic test would prove he was not Child’s biological father, and the parties stipulated to that fact. But Scott asked the court to disregard the biological reality under section 608 of the Act—a provision that allows a court to disregard genetic test results in certain circumstances.[4]

¶17 Benson moved for summary judgment and asked the court to set aside the VDP because the parties had made a “material mistake of fact,” a term statutorily defined to include situations in which “genetic test results . . . exclude a declarant father.” Id. § 78B­15-307(5). Benson’s motion also asked the court to find that Scott and Child did not have a father-child relationship because the VDP had been “successfully challenged.”

¶18 The court denied the motion, reasoning that, even though genetic test results would show Scott was not Child’s father, there was no “mistake” because both parties knew Scott was not Child’s biological father when they signed the VDP, and because they “chose at the time to jointly raise a child.”

¶19 After denying Benson’s summary judgment motion, the court held a three-day evidentiary hearing. The district court found that Scott and his witnesses were “generally credible” and that Scott’s description of his relationship with Child was “particularly credible.” The court found that Benson’s own testimony was also “generally credible” but rejected her testimony regarding some aspects of Scott and Child’s relationship.

¶20 The district court reversed the reasoning it had employed to deny summary judgment and concluded that the parties had been operating under a “material mistake of fact” when they signed the VDP. The court also found that Scott and Benson did not defraud each other but that the VDP was still the product of fraud because it committed “fraud against the Utah State Division of Vital Statistics.” The district court determined that the VDP should be set aside and that it was void ab initio and had “no legal force or effect.”

¶21 The district court also accepted the parties’ stipulation that Scott was not Child’s biological father as the “genetic testing” the Act references. The district court also accepted that this “testing” confirmed Scott was not Child’s biological father.[5]

¶22 But the district court ultimately determined that Scott was Child’s legal father, reasoning that its conclusion that the VDP should be set aside “draws the court to [section 608].” The court determined that Benson’s conduct estopped her from denying Scott’s parentage and that it would be inequitable to disrupt Scott and Child’s relationship. The district court also concluded that, after a review of the factors in section 608, it was in Child’s best interest for Scott to be Child’s legal father. The court found that Scott “played a substantial role in [Child’s] life for the first seven years of [Child’s] life, and that role was involuntarily terminated” by Benson. The court also found that “[t]here is and has been a strong bond and attachment between [Scott] and [Child], and there has been since [Child’s] birth.”

¶23 Benson appealed to the court of appeals, which upheld the district court’s ruling. Scott v. Benson, 2021 UT App 110, ¶ 1, 501 P.3d 1148. Like the district court, the court of appeals concluded that Scott was Child’s legal father even though Benson successfully challenged the VDP under section 307 of the Act. See id. ¶¶ 31–32. But, unlike the district court, the court of appeals reasoned that a successful 307 challenge did not render the VDP void from its inception. Id. ¶ 40. The court of appeals instead held that a successful 307 challenge meant that a VDP could be “set aside, on a going-forward basis,” but only as long as section 608 “does not counsel otherwise.” Id. And it concluded that section 608 did not demand a different conclusion than the one the district court reached. See id. ¶¶ 40, 43.

¶24 Benson petitioned for certiorari review contending that the court of appeals misinterpreted the Act.

STANDARD OF REVIEW

¶25 “We review questions of statutory interpretation for correctness, affording no deference to the lower court’s legal conclusions.” Cardiff Wales, LLC v. Washington Cnty. Sch. Dist., 2022 UT 19, ¶ 16, 511 P.3d 1155 (cleaned up).

ANALYSIS

¶26 Benson first claims that the court of appeals wrongly opined that the Act permitted the district court to conduct a section 608 analysis after it concluded that the VDP was fraudulent and based on a material mistake of fact. According to Benson, the court of appeals erred because once a VDP is successfully challenged, the court’s analysis should end in favor of the challenger. Benson also claims that the court of appeals’ interpretation of the statute raises constitutional issues, leads to absurd results, and promotes bad policy.

I. THE COURT OF APPEALS DID NOT ERR WHEN IT APPLIED
SECTION 608 TO DISREGARD THE GENETIC TEST RESULTS

A. The Court of Appeals Correctly Upheld the District Court’s
Decision to Apply Section 608

¶27 Benson first argues the court of appeals incorrectly upheld the district court’s decision to set aside the genetic test results that showed that Scott was not Child’s biological father.[6] Benson argues that section 608 “does not apply to every proceeding commenced under 307” and that, in this case, section 608 “has no application that is consistent with the language of the statute.”

¶28 The Act outlines two ways a VDP can be set aside. It allows either of the signatories to rescind a VDP by filing a voluntary rescission within sixty days of the date the VDP became effective or before “the date of notice of the first adjudicative proceeding to which the signatory is a party, before a tribunal to adjudicate an issue relating to the child, including a proceeding that establishes support,” whichever is earlier. UTAH CODE § 78B-15-306(1). If neither signatory rescinds the VDP—as in this case—they must look to section 307 to challenge the VDP.

¶29 Section 307 provides:

After the period for rescission . . . has expired, a signatory of a declaration of paternity or denial of paternity, or a support-enforcement agency, may commence a proceeding to challenge the declaration or denial only on the basis of fraud, duress, or material mistake of fact.

Id. § 78B-15-307(1).

¶30 In other words, after the VDP has been signed, either of the signatories can rescind it before the earliest of sixty days or notice of an adjudicative proceeding. Id. § 78B-15-306(1). After the statutory rescission period passes, either a signatory or a support-enforcement agency can challenge the validity of the VDP. This challenge can be based on fraud, duress, or material mistake of fact. Id. § 78B-15­307(1). A challenge based on fraud or duress can be brought at any time. Id. § 78B-15-307(3). A challenge based on material mistake of fact can only be brought within four years after the declaration is filed. Id. § 78B-15-307(4).

¶31 The Act also contemplates that, in some situations, a court can ignore genetic test results when determining paternity. Id. § 78B­15-608. Section 608 permits the district court to do this when “the conduct of the mother or the presumed or declarant father estops that party from denying parentage” and “it would be inequitable to disrupt the father-child relationship between the child and the presumed or declarant father.” Id. § 78B-15-608(1).[7]

¶32 Subsection 608(2) outlines factors a court must consider to determine whether disregarding test results is in the best interest of the child. These factors include how long a presumed or declarant father acted as a child’s father, the nature of the relationship between the child and potential father, and harm to the child if the relationship between the child and potential father is disrupted.[8]

¶33 Benson argues that the court of appeals misread the statute when it endorsed the district court’s decision to conduct the section 608 analysis after it set aside the VDP under section 307. She claims that genetic testing, and therefore section 608, is “irrelevant” to this inquiry “because the ground to set aside the VDP was already established: fraud.” In Benson’s view, the district court starts with the section 307 inquiry and cannot look to section 608 if the court finds that the VDP is the product of fraud, duress, or mistake of fact.

¶34 The court of appeals disagreed with Benson’s argument and held that the district court appropriately applied section 608 because, while other provisions of the Act state when the VDP should be considered “invalid from its inception,” section 307 does not. Scott v. Benson, 2021 UT App 110, ¶¶ 34, 37–38, 501 P.3d 1148. The court of appeals concluded the central question was about “the consequence of a successful Section 307 challenge.” Id. ¶ 36. The court of appeals determined that “the Act’s silence on this point must be viewed in tandem with the specific instructions” given for successfully voiding or rescinding a VDP in other sections of the Act. Id. ¶ 38.

¶35 The court of appeals reasoned that “there is no statutory basis for concluding that a declaration of paternity is void simply because a Section 307 challenge is successful.” Id. ¶ 32. The court of appeals therefore concluded that a district court may look to section 608 to decide whether to disregard genetic testing even after the district court finds a ground to set the VDP aside under section 307.

¶36 In other words, the court of appeals sees the process to challenge a VDP as requiring two steps. In the first step, the district court examines the VDP under section 307 and determines if a challenge to its validity is successful. Id. ¶ 40. If the challenge is successful, the district court moves to step two and applies section 608 to assess whether principles of equity and estoppel should prevent the court from allowing the declaration to “be set aside, on a going-forward basis.” Id. Benson also appears to see this as a two-step process, but she reads the Act to end the inquiry after the first step if the section 307 challenge is successful.

¶37 The aim of statutory interpretation “is to ascertain the intent of the legislature,” and the “best evidence of the legislature’s intent is the plain language of the statute itself.” Castro v. Lemus, 2019 UT 71, ¶ 17, 456 P.3d 750 (cleaned up). We “read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters.” State v. Barrett, 2005 UT 88, ¶ 29, 127 P.3d 682 (cleaned up). Occasionally, “statutory text may not be plain when read in isolation, but may become so in light of its linguistic, structural, and statutory context.” Bryner v. Cardon Outreach, LLC, 2018 UT 52, ¶ 12, 428 P.3d 1096 (cleaned up).

¶38 When we read the statute’s plain language, we see a different structure than Benson and the court of appeals did. The Act does not contemplate the sequential inquiry that the court of appeals describes and that Benson wants. Rather, when a party challenges a VDP, the Legislature intends that, in appropriate cases, the section 608 factors be considered as part of the question of whether the VDP should be invalidated.

¶39 Section 308, titled “Procedure for rescission or challenge,” sets forth the procedure a court must employ to decide whether to set aside a VDP. UTAH CODE § 78B-15-308. Among the instructions section 308 provides to the district court is the mandate that a “proceeding to rescind or to challenge a declaration of paternity or denial of paternity must be conducted in the same manner as a proceeding to adjudicate parentage under Part 6, Adjudication of Parentage.” Id. § 78B-15-308(4) (emphasis added).

¶40 This means that when Benson challenged the VDP under section 307, the procedure to challenge the VDP had to be conducted in the same manner as adjudication of parentage under Part 6.[9] And, under Part 6, section 608, a district court can ignore genetic test results in appropriate circumstances. Thus, by section 308’s plain language, the court must follow the procedures of Part 6, which, in appropriate cases, incorporates the section 608 analysis into a proceeding challenging a VDP’s validity. This causes us to read the statute as calling for a single-step rather than a two-step inquiry.[10]

¶41 This reading resolves the first problem that Benson identifies. Benson claims that the district court erred (and the court of appeals erred in blessing the district court’s decision) because it looked to section 608’s factors after it concluded that the VDP was the product of mutual mistake and fraud on the state. Benson claims that the district court should not have moved to “step two” (a section 608 analysis), because the inquiry ended after “step one” (a conclusion under section 307 that the VDP was the product of fraud and mutual mistake)[11]

¶42 That problem does not arise when the statute is read correctly. A district court conducts a proceeding on a section 307 challenge in the same manner it conducts a proceeding on a challenge to paternity. Thus, in a proceeding challenging a VDP, the court can consider whether or not to set aside genetic testing based on the factors in section 608, just as it could in a proceeding to challenge paternity.[12]

B. Benson’s Argument that the Court of Appeals’ Reading Creates a
Conflict with Other Provisions of the Act Is Unavailing

¶43 Benson next argues that the court of appeals erred because its reading of the statute creates a conflict between section 608 and section 617.[13]

¶44 Section 617 states:

The tribunal shall apply the following rules to adjudicate the paternity of a child:

The paternity of a child having a presumed, declarant, or adjudicated father may be disproved only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child.

Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man identified as the father of a child under Section 78B-15-505 must be adjudicated the father of the child, unless an exception is granted under Section 78B-15-608.

. . . .

(4) Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man properly excluded as the father of a child by genetic testing must be adjudicated not to be the father of the child.

UTAH CODE § 78B-15-617.

¶45 Benson argues that Scott was “properly excluded” as Child’s father and therefore must “be adjudicated not to be the father of the child” without the section 608 analysis, because subsection 617(2) mentions section 608, and subsection 617(4) does not. Id. § 78B-15­617.

¶46 The court of appeals “acknowledge[d] the apparent inconsistency between subsections (2) and (4) of Section 617,” but held that, if they followed Benson’s interpretation, “Section 608— which exists only to give courts an opportunity to disregard genetic evidence in appropriate circumstances—would be effectively excised from the Act.” Scott, 2021 UT App 110, ¶ 38 n.9. Because the court did “not perceive therein a legislative intent to abrogate Section 608,” it held that Benson’s reading was unpersuasive. Id.

¶47 We see neither the conflict Benson perceives nor the inconsistency the court of appeals described. Section 617(2) refers to “a man identified as the father” and requires that a man whom genetic testing identifies as the father must be adjudicated the father unless the district court disregards the test results under section 608. UTAH CODE § 78B-15-617(2).

¶48 Section 617(4) refers to a man “properly excluded as the father of a child by genetic testing.” Id. § 78B-15-617(4). That subsection also provides that a man properly excluded by genetic testing must be adjudicated to not be the father. Id. Although subsection 617(4) does not explicitly reference section 608, it does so implicitly by referring to a man “properly excluded” by genetic testing. A man is not “properly excluded” by genetic testing if the district court disregards that testing under section 608.

¶49 Here, Scott was identified as the non-genetic father. But he was not “properly excluded as the father” of Child because the genetic testing in this case was set aside as the statute contemplates. There is no conflict between sections 608 and 617.

II. BENSON’S CONSTITUTIONALITY, ABSURDITY, AND PUBLIC POLICY RGUMENTS DO NOT DICTATE A DIFFERENT RESULT

¶50 For her next set of arguments, Benson strays from the text and contends that we should reject the court of appeals’ interpretation because it raises constitutional issues, leads to absurd results, and is contrary to public policy.

A. Benson Has Not Demonstrated that the Court of Appeals’ Reading

of the Statute Raises Constitutional Concerns That Require

a Different Interpretation

¶51 Benson contends that the court of appeals interpreted the Act in a way that raises constitutional concerns. She further argues that the court of appeals’ reading of section 608 is one that “allows a legal and genetic stranger to take advantage of its provisions” and thus “diminish[es] a mother’s fundamental right to ‘direct the upbringing of [her] children,’” (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). Benson asserts that we should apply the constitutional avoidance canon and reverse the court of appeals.

¶52 The constitutional avoidance canon permits a court to “reject[] one of two plausible constructions of a statute on the ground that [one interpretation] would raise grave doubts as to [the statute’s] constitutionality.” Utah Dep’t of Transp. v. Carlson, 2014 UT 24, ¶ 23, 332 P.3d 900. But when we can, we “decide cases on the preferred grounds of statutory construction, thereby avoiding analysis of underlying constitutional issues unless required to do so.” Id. ¶ 24 (cleaned up).

¶53 Moreover, we do not usually invoke the canon just because we have “doubts about the constitutionality” of a statute. Id. ¶ 25. Nor can we use the canon to “break faith with the statute’s text” and “rewrite the statute” to save an unconstitutional statute. State v. Garcia, 2017 UT 53, ¶ 59, 424 P.3d 171. We simply recognize that where there are two plausible constructions of a statute, and one steers clear of constitutional problems, we presume that the Legislature intended to enact the constitutional interpretation.[14] See Carlson, 2014 UT 24, ¶ 23.

¶54 We take Benson’s point that the Act has the potential to tread into constitutional territory. This court has recognized that “parents have a fundamental right to make decisions concerning the care and control of their children.” Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 73, 250 P.3d 465. Section 608, in which the Legislature provides a path to declare a person who is not genetically related to the child a parent, has the potential to compromise the genetic parent’s constitutional right.

¶55 But Benson does not offer us a plausible reading of the Act that avoids the potential constitutional concern. Instead, Benson’s proffered solution is to read the Act so that section 608 does not apply to most non-biological fathers. This would require us to rewrite the statute, something that we cannot do.

¶56 Where Benson cannot offer a plausible interpretation of the text that avoids the constitutional concern, Benson’s obligation is to demonstrate that the statute is unconstitutional. Benson has not made that argument.

¶57 That is not to say that we do not understand Benson’s concern. The Act allows someone who is not a genetic parent to gain parental rights and to potentially exercise them at the expense of the genetic parent’s rights. But Benson does not explain how, under the circumstance before us, this would violate her constitutional rights. She does not discuss the impact of her own role in seeking to defraud the State by conspiring to sign a VDP she knew was inaccurate. Nor has she analyzed the impact on her parental rights of permitting Scott to exercise parental-like rights for a number of years. Nor has she explained the impact of the district court’s unchallenged finding that it was in Child’s best interest to not set the VDP aside.

¶58 With neither a plausible interpretation of the statute that both adheres to the text and avoids the constitutional concerns, nor briefing aimed at demonstrating that sections of the Act should be struck as unconstitutional, we reject Benson’s challenges.

B. The Court of Appeals’ Interpretation Does Not Lead to Absurd Results in This Case

¶59 Benson asks us to employ the absurd consequences canon to overturn the court of appeals’ interpretation of the statute. According to Benson, holding that Scott was the “declarant father,” after the district court found the VDP was successfully challenged, leads to absurd results. As an initial matter, for the reasons we outline above, we do not agree that the VDP was “successfully challenged.” But even assuming we could accept that premise, the absurd consequences canon does not require a different interpretation. Benson claims, by way of example, that it would be absurd for a woman who was coerced into signing a VDP to have to endure a section 608 analysis where a district court would consider whether it was in the best interests of her child to set aside the VDP she was coerced to sign.

¶60 The absurd consequences canon allows us to “resolve an ambiguity by choosing the reading that avoids absurd results when statutory language plausibly presents us with two alternative readings.” Utley v. Mill Man Steel, Inc., 2015 UT 75, ¶ 47, 357 P.3d 992 (Durrant, C. J., concurring in part on behalf of the majority) (cleaned up). We conclude that statutory language yields absurd results when those results are “so overwhelmingly absurd no rational legislator could have intended them.” Id. ¶ 46.

¶61 Even if we can conceive of scenarios where the statute the Legislature enacted might produce an absurd result, we do not stray from the statute’s text in a case where the application of the Act in the case before us does not lead to an absurd result. See, e.g.State v. Sanders, 2019 UT 25, ¶ 54 n.13, 445 P.3d 453.

¶62 In Sanders, for example, we upheld Sanders’ conviction for illegal possession of a firearm. Id. ¶ 2. Sanders argued that the State’s proffered statutory construction—which did not leave room for an innocent possession defense—was absurd because there were circumstances where the application of that construction could yield an absurd result. Id. ¶ 51. We agreed with Sanders that it was “not difficult to conceive of factual scenarios where the lack of an innocent possession defense might lead to an absurd result,” such as a felon taking a gun from a toddler to place it safely out of reach. Id. ¶ 54. But the potential for an absurd result in a hypothetical case did not help Sanders, because this was “not the case before us.” Id. Sanders’ arguments were unavailing because they did not demonstrate absurd legislative policy or “that the application of that policy to [Sanders], under the circumstances presented [in that case], yielded an absurd result.” Id. ¶ 51.

¶63 As in Sanders, Benson does not meet her burden of demonstrating that the court of appeals’ statutory interpretation led to absurd results in her case. A rational legislature could have intended the result the district court ordered. At least, Benson has not convinced us that a rational legislature could not have intended that the district court look to the real-world effects on Child if it divested Scott of the parental relationship Benson had allowed to grow.

C. Benson’s Policy Arguments Do Not Allow Us to Ignore or Modify the Statute’s Text

¶64 Benson also advances policy arguments to support a different reading of the Act. Benson claims that conducting a section 608 analysis after a VDP is successfully challenged ignores “a statutory preference for genetic paternity” and would thereby “undermine[] the purposes and policies that form the basis of the comprehensive statutory scheme.”[15] She also claims this interpretation would encourage fraudulent VDPs, possibly at the expense of biological fathers.

¶65 When we can glean the Legislature’s intent from the statute’s text, we have no reason to entertain arguments that we might be able to enact better policy by placing judicial glosses on the text. We have advised that “[w]here the legislature has spoken[,] our role is limited. In the face of duly-enacted legislation we no longer have a primary policymaking role. We are left only to interpret the terms of the statute and then to implement them.” M.J. v. Wisan, 2016 UT 13, ¶ 69, 371 P.3d 21 (cleaned up). Benson may have legitimate policy concerns and may even be able to articulate a statutory scheme that better promotes public policy than the one on the books. But “we have repeatedly declined invitations to interpret statutes contrary to their plain language even when a party offers an interpretation that might better advance the Legislature’s purpose.” Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, ¶ 40, 506 P.3d 509. We do so again.

CONCLUSION

¶66 The court of appeals correctly concluded that the district court did not err when it looked to the factors in Utah Code section 78B-16-608 to disregard the genetic test results that would have excluded Scott as Child’s father.

¶67 We affirm the court of appeals’ decision and remand the case to the district court for further proceedings.

 

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[1] The record refers to the appellant as both Benson and Cooper— Cooper being the last name she took when she married. To remain consistent with the court of appeals’ opinion, we refer to the appellant as Benson.

[2] Utah Code section 78B-15-301 creates and authorizes the use of VDPs. Utah law permits the “mother of a child and a man claiming to be the genetic father of the child . . . [to] sign a declaration of paternity to establish the paternity of the child.” Id. The VDP must be signed or authenticated “under penalty of perjury, by the mother and by the declarant father.” Id. § 78B-15-302(1)(b). By signing, the mother and declarant father aver that “the child whose paternity is being declared: (i) does not have a presumed father, or has a presumed father whose full name is stated; and (ii) does not have another declarant or adjudicated father.” Id. § 78B-15-302(1)(d). The VDP is effective once it is “filed and entered into a database established and maintained by the Office of Vital Records.” Id. § 78B­15-302(9).

[3] Benson and Scott disagree on the extent to which Scott had equal parenting time with both Sibling and Child, but Benson’s brief concedes that Scott “continued to have a relationship with Child.”

[4] Under section 608, a court can disregard genetic test results that exclude a declarant father from genetic parentage if the behavior of one of the VDP signatories estops that party from denying parentage and if disrupting the child and declarant-father relationship would be inequitable. Id. § 78B-15-608(1). When a court decides whether to ignore genetic testing, the Act instructs it to focus on the child’s best interest by examining several factors, including the bond between the declarant father and child, and the potential harm to a child if paternity is disestablished. Id. § 78B-15-608(2).

[5] The Act provides a detailed description of what constitutes genetic testing. See id. § 78B-15-102(13). Notably, that definition does not include a stipulation concerning what the genetic tests would show had a test been performed. The district court nevertheless concluded: “Genetic testing has confirmed that Petitioner is not the biological father of [Child].” This conclusion was not directly challenged on appeal, so we do not address it further other than to emphasize that we explicitly offer no opinion on whether a stipulation can be the genetic testing the Act contemplates.

[6] Benson also argues that genetic tests were unnecessary because the parties agreed Scott was not Child’s biological father, so section 608, which only allows the court to set aside genetic testing (or deny a motion for testing), does not apply. But Benson does not directly challenge the district court’s conclusion that the stipulation qualifies as genetic testing for the purposes of section 608. Because Benson has not mounted a challenge to the district court’s conclusion, we accept, without comment, the district court’s decision that the stipulation was the equivalent of a genetic test. See supra ¶ 21 n.5.

[7] A “presumed father” must be someone who, at one point, was married to the mother. See id. § 78B-15-204(1) (defining when a man is a presumed father). Because Benson and Scott were never married, Scott is not and never was Child’s presumed father.

[8] The full list of factors is

(a) the length of time between the proceeding to adjudicate parentage and the time that the presumed or declarant father was placed on notice that he might not be the genetic father;

(b) the length of time during which the presumed or declarant father has assumed the role of father of the child;

(c) the facts surrounding the presumed or declarant father’s discovery of his possible nonpaternity;

(d) the nature of the relationship between the child and the presumed or declarant father;

the age of the child;

(f) the harm that may result to the child if presumed or declared paternity is successfully disestablished;

(g) the nature of the relationship between the child and any alleged father;

(h) the extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child; and

(i) other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or declarant father or the chance of other harm to the child.

Id. § 78B-15-608(2).

 

 

[9] Although Benson sometimes references “section 307” in her briefs, it bears noting that section 307 does not outline what a party must show to successfully challenge a VDP. Rather, section 307 details the circumstances in which a party can bring a challenge after the sixty-day period has expired. Id. § 78B-15-307. Section 308 contains the Legislature’s instructions on how to proceed with a VDP challenge, and that section directs a court to proceed in the same manner as any other adjudication of parentage under Part 6.

[10] It is not difficult to envision why the Legislature would structure the statute this way. In many—if not most—cases, a party will use genetic test results to prove the fraud or mutual mistake of fact that could be used to set aside the VDP.

[11] The court of appeals also opined that a successfully challenged VDP “is subject to being declared ineffective on a forward-looking basis.” Scott, 2021 UT App 110, ¶ 31. The Act itself is largely silent on the effects of setting aside a VDP. We know that the Legislature told us that a declarant father whose VDP is rescinded cannot claw back child support he paid. See UTAH CODE § 78B-15-308(6) (“If the declaration is rescinded, the declarant father may not recover child support he paid prior to the entry of an order of rescission.”). And we know that the Legislature has declared that at “the conclusion of a proceeding to rescind or challenge a declaration of paternity, . . . the [court] shall order the Office of Vital Records to amend the birth record of the child, if appropriate.” Id. § 78B-15-308(5). But the Act does not tell us what other consequences might flow from setting a VDP aside. Since we don’t need to answer that question to resolve this case, we vacate the court of appeals’ conclusion that a successfully challenged VDP may be “ineffective on a forward-looking basis.” See Scott, 2021 UT App 110, ¶ 31. And we leave the question for a case where that determination matters to the outcome and is specifically briefed.

[12] Benson also argues that the district court erred when it applied section 608 because that section applies to declarant fathers, and “[o]nce the court granted [Benson’s section 307] challenge, Child was no longer a child ‘having a declarant father.’” Benson additionally claims that Scott was not a declarant father because subsection 201(2) of the Act, the provision on father-child relationships, means a successful VDP challenge disestablishes a father-child relationship. UTAH CODE § 78B-15-201(2). As we have explained, if the section 307 challenge is conducted in the same manner as a paternity determination—as the statute requires—the district court applies section 608 as part of the determination to set the VDP aside. And someone in Scott’s position does not lose his declarant father status unless the court invalidates the VDP.

[13] 13 Benson also argues that the court of appeals erred because the Act should be interpreted in light of the Act’s purported purpose— favoring the recognition of genetic parentage. Benson argues that the court of appeals’ interpretation of the statute “which would allow the signatory to a successfully challenged VDP to nonetheless rely on section 608, undermines the purposes and policies that form the basis of the comprehensive statutory scheme.” But we don’t normally interpret the statute in light of its supposed purpose when the plain text tells us how the Legislature intended the statute to operate. See Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, ¶ 31, 506 P.3d 509 (“In general, where a statute’s language is unambiguous and provides a workable result, we need not resort to other interpretive tools, and our analysis ends.” (cleaned up)). Sticking to the text helps us avoid “the peril of interpreting statutes in accordance with presumed legislative purpose” as “most statutes represent a compromise of purposes advanced by competing interest groups, not an unmitigated attempt to stamp out a particular evil.” Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 23 n.6, 248 P.3d 465. Thus, in a case like this, where the statutory language is plain, we have no need to start poking around the statute’s purposes in hopes of finding a gloss to put on the text.

 

[14] In State v. Garcia, for example, we employed the canon to choose between two interpretations of “unlawful user” in determining how to read a statute. We chose the interpretation that “comport[ed] better with the statute’s text” because following the text of the statute best “preserve[d] the legislative intent.” Garcia, 2017 UT 53, ¶ 61.

[15] We again note that we do not agree with Benson that the VDP had been “successfully challenged.” We nevertheless engage with the substance of her arguments.

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In re J.L… 2022 UT 12 – termination of parental rights

2022 UT 12 

IN THE SUPREME COURT OF THE STATE OF UTAH 

STATE OF UTAH, in the Interest of J.A.L. and J.O.L.,
Persons Under Eighteen Years of Age 

J.L. and J.A.,
Appellants, 

STATE OF UTAH,
Appellee. 

No. 20200271 

Heard September 16, 2021
Filed February 24, 2022 

On Certification from the Court of Appeals 

Fifth District Juvenile, Iron County
The Honorable Troy A. Little
No. 1161641, 1161642 

Attorneys:1  

Alexandra Mareschal, J. Frederic Voros, Jr., Julie J. Nelson, Salt Lake
City, Christa G. Nelson, Cedar City, for appellant J.L. 

Colleen K. Coebergh, Salt Lake City, Candice N. Reid, Cedar City,
for appellant J.A. 

Sean D. Reyes, Att’y Gen., Carol L. C. Verdoia, John M. Peterson,
Asst. Att’ys Gen., Salt Lake City, for appellee 

Martha Pierce, Salt Lake City, Guardian ad Litem
for J.A.L. and J.O.L. 

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and
JUSTICE PETERSEN joined. 

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court: 

¶1 This is an appeal from a juvenile court order terminating the parental rights of the mother and father of two children. The Division of Child and Family Services has been engaged with this family since at least July 2018. A range of support services has been provided over time. The children were removed from the mother’s custody in December 2018 and placed in foster care. And at various times both the father and mother have been subject to a court order prohibiting contact between them and to orders requiring treatment for domestic violence, substance abuse, and mental health issues. 

¶2 The Division initially pursued a permanency goal of reunification with the parents. When reunification failed, the Division petitioned to change the goal to adoption. After a hearing and an order granting the new permanency goal, the children were moved to a kinship placement with the father’s brother in Arkansas. The uncle had agreed to adopt the children. And after a subsequent hearing on the termination of parental rights, the juvenile court entered an order terminating the parental rights of both the mother and father. 

¶3 In the termination proceeding, the juvenile court found that both parents were “unfit” and had “neglected” the children. The court based its determination on factors listed in Utah Code section 78A-6-508(2)—concluding that the children were “abused and neglected” by “[t]he domestic violence perpetrated by the Father and the Mother’s failure to protect the children,” and that the parents’ substance abuse “render[ed] [them] unable to care for the children.” 

¶4 After finding statutory grounds to terminate, the court determined that termination was “strictly necessary” in the “best interest” of the children. It concluded that the children could not be returned home “today”—or “at this point”—because the mother and father had failed to sufficiently rehabilitate themselves. And it held that the children’s “tremendous need for permanency and stability” could not be met while preserving the parents’ rights within a permanent custody and guardianship arrangement. 

¶5 Six weeks after the termination order was entered, the adoptive placement with the uncle failed. The children returned to state custody in Utah. 

¶6 After the kinship placement failed, the father and mother filed motions for post-judgment relief. The mother sought 60(b)(6) relief in light of the “extraordinary circumstances” of the failure of the kinship placement. The father filed a 60(b)(6) motion on the same grounds. He also sought relief under 60(b)(5), asserting that the failed kinship placement meant that the judgment was “no longer equitable.” The juvenile court denied the motions. 

¶7 The mother and father appealed. The court of appeals certified the matter to this court based on a perceived need for our review of “a challenge to the current appellate standard of review in child welfare proceedings” and to consider “an issue regarding the effect of statutory changes on supreme court case law.” 

¶8 The mother and father raise different claims of error on appeal. The mother challenges only the juvenile court’s findings, made at an evidentiary permanency hearing and allegedly at a subsequent review hearing, that she appeared “under the influence” at various hearings. She asserts that a judge is not qualified to make such findings without expert testimony. And she contends that the court denied her due process of law by making the findings without giving her notice and an opportunity to be heard. 

¶9 The father challenges the juvenile court’s best interest determination2 and the court’s denial of his motions for post-judgment relief. As an initial matter, the father asks us to conduct de novo review of termination proceedings—and overturn the deferential standard of review established in State ex rel. B.R., 2007 UT 82, 171 P.3d 435. He also asks us to require specific factual findings and legal conclusions in parental rights termination orders. Regardless of our decision on the appropriate standard of review, the father contends that the juvenile court erred in concluding that termination of the father’s rights was “strictly necessary” to promote the “best interest” of the children. 

¶10 We affirm in part and reverse and vacate in part. First, we note that the mother’s claims are unpreserved and hold that she has failed to carry the burden of establishing plain error. Second, we reject the father’s request that we abandon a deferential standard of review of a best interest determination but find threshold legal errors in the juvenile court’s best interest analysis—in the assessment of whether the father had made sufficient progress in his rehabilitation under Utah Code section 78A-6-509(1)(b), and in the assessment of whether termination of parental rights is “strictly necessary” under Utah Code section 78A-6-507. Third, we vacate and remand for a new best interest determination under the law as clarified in this opinion. In so doing, we note that the mother failed to highlight the legal errors identified by the father in her briefs on appeal but conclude that the mother’s rights should be on the table on remand in the unique circumstances of this case. 

I 

¶11 The mother challenges the juvenile court’s findings that she appeared “under the influence” at court hearings. She asserts that the judge is not qualified to make such findings without expert testimony. And she claims that the court infringed her right to due process by making these findings without notice that the observations were being made and without affording her an opportunity to respond. 

¶12 None of these points was preserved in the juvenile court, however. To succeed on appeal, the mother would therefore need to make a showing of plain error—that “(1) an error exists; (2) the error should have been obvious to the trial court; and (3) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome.” State v. Low, 2008 UT 58, ¶ 20, 192 P.3d 867 (citations and internal quotation marks omitted).3 And the mother has failed to carry that burden. 

¶13 We have previously upheld a juvenile court’s legal conclusions based on observations of “outbursts” made in open court. In re T.E., 2011 UT 51, ¶¶ 44–45, 266 P.3d 739. And the juvenile court in this case did not even go so far as to make a legal conclusion. It relied on its observation of the mother in court to require her to be subjected to testing for substance use—a follow-up under a standing order requiring ongoing substance abuse testing.4 So we do not see how it could have been error—and certainly not an obvious error—for the court to use its observations as a basis for such testing where the mother’s sobriety was already at issue. 

¶14 Nor do we see a basis for concluding that any alleged error was prejudicial. In the termination order, the court refers to its “personal observations” of the mother only once—as a single consideration in a set of reasons supporting one of the five grounds for termination found by the court. And earlier in the proceedings, the court continued reunification services for the mother despite making a concurrent finding that “[t]hree quarters of the times the Mother is in court it appears she [is] under the influence of drugs”— and despite terminating reunification services as to the father in the same evidentiary permanency hearing. The mother has not established that there is any likelihood that her parental rights would not have been terminated if the juvenile court had not ordered testing on the basis of its observations, or if it had afforded the mother the right to respond that she asserts as a matter of due process. 

II 

¶15 The father challenges the termination of his parental rights on two grounds. He contends that the juvenile court erred in (a) concluding that termination of his rights was “strictly necessary” in the “best interest” of the children; and (b) denying his motions for post-judgment relief. We reverse on the first ground and decline to reach the second because it is mooted by our threshold decision. 

A 

¶16 The father prefaces his challenge to the juvenile court’s best interest analysis with a request that we overrule our longstanding case law on the standard of review of parental rights termination orders—requesting that we replace the established deferential standard of review with a de novo review for correctness. But we rejected parallel requests in two recent decisions. See In re G.D., 2021 UT 19, ¶¶ 1, 3, 491 P.3d 867; State ex rel. E.R., 2021 UT 36, ¶ 13, 496 P.3d 58. And the father has not identified a persuasive ground for reconsidering these decisions. 

¶17 In E.R. we clarified that the best interest inquiry is a fact-like “mixed determination of law and fact” that is subject to deferential review. 2021 UT 36, ¶¶ 17, 22. Appellate deference, of course, is not absolute. The juvenile court’s best interest analysis may be set aside if it is “against the ‘clear weight of the evidence.’” Id. ¶ 6. It is also subject to reversal where it is premised on a threshold legal error. See id. ¶ 16 (noting that we “afford [n]o deference” to the juvenile court’s “analysis of abstract legal questions” (alteration in original) (citation and internal quotation marks omitted)). 

¶18 We reverse the juvenile court’s termination of the father’s parental rights on this basis. The juvenile court’s order was infected by two legal errors. And those errors foreclose the usual basis for deference to the conclusion that termination of the father’s rights was “strictly necessary” in the “best interest” of the children under Utah Code section 78A-6-507(1) (2020).5 See Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 2020 UT 47, ¶ 78, 469 P.3d 1003 (citation omitted) (holding that a district court’s findings were not owed deference where they were “infected by legal error”). 

1 

¶19 In terminating the father’s parental rights, the juvenile court concluded that it would be “neglectful” to “[r]eturn[] the children to the Father today.” (Emphasis added.) It also found that a reunification of the children with the father would introduce a significant “safety risk” “at this time.” (Emphasis added.) And it raised the concern that the father might not “be successful outside of treatment” given the lack of “any indication of future success” based on “the Father’s past.” 

¶20 These statements are premised on legal error. In a case where the child is not in the parent’s physical custody, the court must consider a set of “specific considerations” in assessing whether termination is strictly necessary in the best interest of children. UTAH CODE § 78A-6-509. And the listed considerations include “the effort the parent or parents have made to adjust their circumstances, conduct, or conditions to make it in the child’s best interest to return [the child to the] home after a reasonable length of time.” Id. § 78A-6509(1)(b) (emphasis added). 

¶21 The statute does not establish a specific timeframe for parents to “adjust their circumstances, conduct, or conditions.” But it does afford a parent a “reasonable length of time” to make any necessary adjustments. And that requires the court to consider whether any needed adjustments were made within a reasonable time. 

¶22 The court retains a measure of discretion in deciding on the length of the “reasonable” time.6 But by statute it must exercise that discretion. And the juvenile court failed to do so here. It held that the father “ha[d] failed to appropriately adjust” his “circumstances, conduct, or conditions to make return in the children’s best interest.” In so doing, it failed to consider whether he had had a “reasonable length of time” to do so.7 And it exacerbated the problem by focusing on static assessments that it would be “neglectful” to “[r]eturn[] the children to the Father today” and would introduce a significant “safety risk” if they returned to him “at this time.” 

2 

¶23 The juvenile court also premised its termination decision on concerns about the “tremendous need for permanency and stability” of the children. It considered the possibility of preserving the father’s legal rights while awarding permanent custody to a guardian. But it rejected that move on the ground that it “would not . . . offer the same degree of permanency as an adoption,” given that a permanent guardianship could be terminated at the request of the guardian or at least subject to visitation by the father. And it held that this “lack of stability would be harmful for the children.” 

¶24 This too was error. The court was right to consider the feasibility of a permanent guardianship. See In re B.T.B., 2020 UT 60, ¶¶ 66–67, 472 P.3d 827 (explaining that the “strictly necessary” analysis requires consideration of the possibility of “feasible options” like awarding custody to a permanent guardian (citation and internal quotation marks omitted)). But it fell into legal error in concluding that this option would not provide the “same degree of permanency as an adoption.” That is not the question under our law. A permanent guardianship by definition does not offer the same degree of permanency as an adoption. And there is always some risk that the permanent guardianship could come to an end, or be affected by visitation by the parent. If these categorical concerns were enough, termination and adoption would be strictly necessary across the board. But such categorical analysis is not in line with the statutory standard. 

¶25 By statute, the juvenile court must assess whether a permanent guardianship can “equally protect[] and benefit[]” the children in the case before it. G.D., 2021 UT 19, ¶ 75 (citation omitted). That standard is not met by the categorical concern that a permanent guardianship is not as stable or permanent as an adoption. It requires analysis of the particularized circumstances of the case before the court. No such analysis is presented here. And the court’s categorical dismissal of the possibility of a permanent guardianship is a further ground for reversal of the juvenile court’s decision. 

B 

¶26 The above legal errors undermine our confidence in the juvenile court’s basis for terminating the father’s parental rights. They also foreclose the need for us to consider the father’s challenge to the denial of his motions for post-judgment relief. The correctness of the denial of those motions is mooted by our decision to reverse in light of the legal errors in the parental termination order. 

III 

¶27 The father has established that the juvenile court’s termination order was infected by the above-noted legal errors. That leaves the question of the effect of those errors on our disposition on appeal. We conclude that a remand to the juvenile court is appropriate. And we hold that both parents’ legal rights should be on the table on remand. 

A 

¶28 The juvenile court’s threshold legal errors foreclose the usual basis for deference to its factual findings and mixed determinations. In the face of such errors, an appellate court has at least two options. It may reverse and remand to the lower court for rehearing under a correct legal standard.8 Or it may review the lower court’s findings under a non-deferential standard of review.9 We take the former course of action here in light of the important role that our juvenile courts play in applying a complex body of law to a matter encompassing an extensive factual and procedural record. 

B 

¶29 In the parties’ briefing on appeal, only the father identified the above-noted legal errors as a basis for reversal. The mother’s appeal was limited to her challenge to the juvenile court’s findings that she appeared “under the influence” in court. 

¶30 The father urges this as a basis for concluding that the mother is foreclosed from participating in the proceedings on remand, or from having her rights on the table in a new “best interest” analysis in line with the refinements in our law set forth above. See supra ¶¶ 21–22, 24–25. He notes that a claim is generally waived if not raised on appeal. See State v. Johnson, 2017 UT 76, ¶¶ 15–16, 416 P.3d 443. And he asks us to hold that the mother forfeited her stake in a remand under claims of legal error that she failed to advance on appeal. 

¶31 The father’s position finds some threshold footing in our law. As a general rule, our courts respect the prerogatives of the parties in deciding which claims to pursue (or forgo) in litigation. See Utah Stream Access Coalition v. VR Acquisitions, LLC, 2019 UT 7, ¶¶ 36–37, 439 P.3d 593. In deference to those prerogatives, and in the interest of judicial economy and repose, the parties are generally stuck with the moves they make in litigation. Patterson v. Patterson, 2011 UT 68, ¶¶ 15–17, 266 P.3d 828. Our courts do not lightly second-guess the parties by reviving a claim they have forfeited by their pleading or briefing decisions.10  

¶32 The mother presumably would be foreclosed from participating in the proceedings on remand if she had failed to file an appeal.11 But the mother did file an appeal. And the father has cited no case law that controls in the unusual circumstances presented here—where two appellants filed briefs on appeal and one of them has identified a legal error that affected not just both of the appellants but also the interests of other parties to this proceeding (the children). 

¶33 In these circumstances, we are reluctant to give conclusive, controlling effect to the briefing decisions of the parties. The juvenile court’s legal missteps infected its decision to terminate both the father’s and the mother’s legal rights.12 And those missteps may bear significant consequences not just for the parents but for their children. The rights and interests of the parents and the children are not only substantial but intertwined. On remand, the decision whether to terminate one parent’s rights could be affected by the decision whether to terminate the other’s rights. And the decision whether one or both parents should retain their rights may have substantial bearing on the analysis of the best interest of the children.13  

¶34 With these concerns in mind, we conclude that the mother’s briefing decisions should not foreclose her from participating in the case on remand. Both parents’ legal rights should be on the table. 

¶35 In remanding, we are not foreclosing the possibility that concerns expressed in the juvenile court’s order—such as the risk and effects of domestic violence—may be a sufficient basis for termination of the parents’ legal rights. Nor are we suggesting that the parents have not yet had a “reasonable length of time” to adjust their “circumstances, conduct, or conditions.” On these and other points, we are simply holding that the juvenile court’s opinion is too affected by legal error to merit deference on appeal. And we are sending the matter back to the juvenile court to exercise its discretion under a correct formulation of the law. 

IV 

¶36 We vacate the juvenile court’s order terminating the parental rights of the parents. In so doing, we leave in place any threshold orders not challenged on appeal—such as the court’s order establishing the parents’ unfitness. But we remand the case for rehearing on the question whether termination of their parental rights is strictly necessary in the best interest of the children, under the governing legal standard as clarified in this opinion. 

http://www.utcourts.gov/opinions/view.html?court=supopin&opinion=In re J.L…20220224.pdf 

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McQuarrie v. McQuarrie – 2021 UT 22 – termination of continuation of alimony

MCQUARRIE v. MCQUARRIE – 2021 UT 22

In the Supreme Court of Utah.

Melvin C. MCQUARRIE, Appellant,

v.

Janette Colledge MCQUARRIE aka Janette Kendall, Appellee.

No. 20190902-SC

Heard March 5, 2021

Filed June 17, 2021

 

On Petition for Writ of Certiorari to the Utah Court of Appeals

Third District, Salt Lake

Honorable Robert P. Faust

No. 084904419

Attorneys:

Julie J. Nelson, Erin B. Hull, James A. McIntyre, Richard R.

Golden, Salt Lake City, for appellant

David L. Arrington, Douglas B. Thayer, Melinda H. Birrell, Lehi,

for appellee

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in

which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE

AND JUSTICE PETERSEN joined

Associate Chief Justice Lee, opinion of the Court:

*1 ¶1 As a general rule, a stipulated divorce decree is interpreted in accordance with the law of contract interpretation—with the goal of discerning the intentions of the parties, as reflected in the ordinary meaning of the terms of the decree as a whole. But that general rule is subject to a specific statutory exception. If a divorce decree calls for payment of alimony, the payment is presumed to terminate upon remarriage of the receiving spouse, and the presumption is rebutted only if the divorce decree “specifically provides otherwise.” Utah Code § 30-3-5(9) (2015).

¶2 As the district court and the court of appeals in this case noted, the divorce decree at issue included provisions that, taken as a whole, could be interpreted to suggest that the parties contemplated that alimony would continue upon remarriage. But that is insufficient. Under the above-quoted statute as interpreted in our case law, the presumption that alimony terminates upon remarriage is rebutted only by a “specific[ ]” alimony provision that expressly “provides otherwise.” There was no such specific, express provision in the decree at issue here. And we reverse the decision of the court of appeals on that basis.

I.

¶3 Melvin McQuarrie and Janette Colledge McQuarrie (now known as Janette Kendall) married in 1980 and divorced in 2008. The district court entered a divorce decree detailing the terms of their mediated stipulation for divorce.

¶4 Under paragraphs 9 and 10 of the stipulated decree, Melvin1 was required to pay alimony to Janette in two phases. First, during the period in which Melvin was required to pay child support, he was required to make a $2,000 monthly alimony payment (subject to cost-of-living increases) “until the first of any of the following occurrences: a. [Melvin’s] death; or b. [Janette’s] death.” Second, after the child support obligation ended, Melvin was required to make an increased alimony payment to Janette “until the first of any of the following occurrences: c. [Melvin’s] death; d. The expiration of 372 months from the signing of the decree of divorce; or e. [Janette’s] death.”

¶5 The alimony provisions of the decree do not explicitly address the effect of Janette’s remarriage. But other provisions of the decree do refer to the possibility of her remarriage, either expressly or by implication.

¶6 In paragraph 11, the decree requires Melvin to pay $1 million to an annuity underwriter of Janette’s choice, with Janette “irrevocably designated as the beneficiary of the annuity during her lifetime with the power to designate any blood relative as the beneficiary of any death benefit provided by the annuity.” The power to designate a beneficiary of a death benefit is expressly limited, however. “[I]n the event [Janette] remarries, she may not designate her spouse or his children as beneficiaries, even if she were to adopt them.” The expressed “intention of the parties” was “that the annuity is solely for the benefit of [Janette] and no one else.” It was “anticipated that the annuity [would] provide a stream of income to [Janette] for her lifetime sufficient to supplement what [Melvin] pays as alimony.”

¶7 A footnote to the annuity provision states that Janette is “ordered to be responsible for her utilities, maintenance, taxes and insurance on the marital home” (which was awarded to Janette) after she “is eligible to receive the annuity.” It also provides for a meeting, to be held every three years, to allow the parties “to review their respective standard of living” and to make any necessary “upward” adjustment of “alimony beyond the” Consumer Price Index. “The standard of living [was] ordered to be equal.” And the meeting was aimed at facilitating an exchange of information of relevance to the assessment and equalization of the parties’ standard of living. Each party was required “to update any new documentation to the mediation binder, including new property holdings/assets, increased earnings, bonuses, and/or royalties, and business to debt ratio.” Melvin and Janette were to meet “without spouses or attorneys,” but “if necessary,” they could “agree upon a mediator” to be present.

¶8 The decree also makes reference to remarriage in a few provisions addressing division of property. It states that Melvin is required to “pay the first deed of trust” on the marital home and to pay for “utilities, lawn care, snow removal, upkeep, maintenance, [and] a housekeeper” for the home, while providing that Melvin is relieved of the latter responsibilities (but not the payment of the first deed of trust) if Janette remarries. It also requires Melvin to purchase or lease a car for Janette every five years, but provides that that obligation ceases if Janette remarries. And it orders Melvin and Janette to “enter into a prenuptial agreement prior to any remarriage,” while prohibiting them from divesting assets to future spouses and restraining them from disclosing the terms of the decree to such spouses.

¶9 Janette remarried in 2014. Later that year, she filed a petition to modify the divorce decree, asserting that Melvin had defrauded her in failing to disclose certain assets and misrepresenting the value of the marital home. She also filed a motion seeking to have Melvin held in contempt for failing to make certain payments required under the decree.

¶10 Melvin filed a counter-petition to modify the decree. In the counter-petition, Melvin asserted that Janette’s remarriage constituted a “substantial and material change in the parties’ circumstances” justifying a termination of the alimony obligation. Citing Utah Code section 30-3-5(9) (2015), Melvin contended that the alimony obligation terminated as a matter of law upon Janette’s remarriage because the decree did not “specifically provide” that alimony would continue after her remarriage.

¶11 The district court denied both parties’ motions. In denying Melvin’s motion, the court considered “all the language in” the decree and concluded that the alimony provisions “were not something that would be terminated or eliminated based upon the remarriage” of Janette. And it held that the decree “language specifically provides that the alimony/child support payments would continue beyond remarriage and were structured to provide the appropriate division of the marital assets” to Janette.

¶12 Melvin challenged that decision on appeal, again citing Utah Code section 30-3-5(9) (2015) and again asserting that his alimony obligation terminated because the divorce decree did not “specifically provide” that the alimony payment was to continue after Janette’s remarriage. The court of appeals affirmed. See McQuarrie v. McQuarrie, 2019 UT App 147, 450 P.3d 1133. It acknowledged that “[a]limony is presumed to terminate upon the remarriage of the receiving spouse” and noted that this presumption “is now codified in” Utah Code section 30-3-5(9) (2015). Id. ¶ 28 (citation omitted). But it did not elaborate on the requirement of a decree provision that “specifically provides” that alimony payments are to continue after remarriage. Like the district court, it turned instead to the terms of the decree “as a whole.” Id. ¶ 31. And it stated that its role was to “ascertain the intentions of the parties” to the decree with regard to the payment of alimony. Id. ¶ 29 (citation omitted). Citing not just the alimony provisions but the terms of other provisions of the divorce decree, the court of appeals concluded that the decree “specifically provides that alimony would survive Janette’s remarriage.” Id. ¶ 31.

¶13 The court noted that the decree provided that Melvin’s obligation to provide a car allowance and to pay certain household expenses would terminate upon Janette’s remarriage. Id. It also credited the footnote calling for a meeting between the parties to review their standard of living and make any necessary adjustment to alimony payments—noting that that provision prohibited the attendance of the parties’ “spouses,” which the court viewed as an acknowledgement of the possibility that both Melvin and Janette might have remarried at a time when they would be meeting to discuss an adjustment to alimony payments. Id. ¶ 33. And it cited other provisions of the decree referring to the possibility of Janette’s remarriage—including the prohibition on naming a future spouse as beneficiary of the annuity and the requirement that Melvin continue to pay the mortgage on Janette’s home even if she were to remarry. Id. ¶ 35.

¶14 As to the alimony provisions themselves, the court of appeals noted that they identified Janette’s death, but not her remarriage, as an event that would terminate the alimony payment. In the court of appeals’ view, these provisions would be “meaningless” if they were interpreted to allow for termination of alimony upon Janette’s remarriage. Id. ¶ 32.

¶15 On these grounds, the court of appeals concluded that “the parties considered Janette’s potential remarriage and specifically agreed on how that event would affect their respective rights and obligations” under the decree. Id. ¶ 35. It held that “the only ‘reasonable’ interpretation” of the decree “as a whole is that alimony terminates only as expressly provided”—upon Janette’s death, Melvin’s death, or 372 months from the date of execution of the decree. Id. The cited “provisions,” in the court’s view, “strengthen an inference that the parties intentionally omitted remarriage” from the list of events that would terminate Melvin’s alimony obligation. Id. ¶ 31. And on that basis, the court of appeals held that the decree as a whole “specifically provides” that alimony was to continue despite Janette’s remarriage. Id. ¶ 36.

¶16 Melvin filed a petition for writ of certiorari, which we granted. We review the court of appeals’ decision de novo, according no deference to its decision. State v. Lujan, 2020 UT 5, ¶ 18, 459 P.3d 992.

¶17 We consider first Melvin’s challenge to the court of appeals’ determination that the divorce decree “specifically provides” for payment of alimony after remarriage. We then take up a further request made by Melvin—that we enter an order disgorging the alimony payments he has made in the period after Janette’s remarriage. We reverse the court of appeals, decline to enter an order of disgorgement, and remand to the district court for any further proceedings that that court may deem appropriate.

II.

¶18 As a general rule, a stipulated divorce decree is interpreted as if it were a contract between the parties. Parties to a divorce are bound by the terms of their stipulated agreement. See Thayer v. Thayer, 2016 UT App 146, ¶ 17, 378 P.3d 1232; see also Higley v. McDonald, 685 P.2d 496, 499 (Utah 1984) (parties bound by terms of stipulated agreement in property boundary dispute). And the court’s goal in interpreting such a document is to credit the agreed-upon terms of the stipulation under “established rules of contract interpretation.” Thayer, 2016 UT App 146 ¶ 17, 378 P.3d 1232 (citation omitted). In so doing, a court should consider each provision of a decree “in relation to all others, with a view toward giving effect to all and ignoring none.” Id. (citation omitted).

¶19 We see a basis for the court of appeals’ decision under this standard of interpretation. Several of the terms of the divorce decree make reference to the possibility of Janette’s remarriage. And the alimony provisions themselves list conditions other than remarriage (death of one of the parties or expiration of a 372-month period) as grounds for termination of Melvin’s alimony obligation. With this in mind, we can see why the court of appeals found a basis for an “inference that the parties intentionally omitted remarriage” from the list of events that would terminate Melvin’s alimony obligation. By stating that alimony would terminate upon Melvin’s or Janette’s death or after a period of 372 months, it is entirely possible that the parties to the decree were contemplating that there were no other events (such as Janette’s remarriage) that would cut off the alimony payment.

¶20 This inference, moreover, may be strengthened by other provisions of the decree. A key provision, as the court of appeals noted, is the footnote calling for a meeting—without “spouses”—to review the parties’ standard of living and make any necessary alimony adjustments. That provision implicitly seems to contemplate the possibility of an alimony adjustment made after Janette remarried, since it prohibits the attendance of “spouses” (plural).

¶21 For these reasons, we likely would be affirming the court of appeals if we agreed that the effect of remarriage on the alimony payment were a matter of discerning the parties’ likely intentions as reflected in the terms of the divorce decree interpreted as a whole. But that is not the standard. By statute, a party’s obligation to make alimony payments is distinct from other terms and conditions of a divorce decree. If a decree sets forth an obligation to pay alimony, the payment obligation is legally presumed to terminate upon remarriage of the receiving spouse. See Utah Code § 30-3-5(9) (2015). And the presumption is rebutted not by a showing of the parties’ contrary intentions as evidenced by the terms of the divorce decree as a whole, but by a specific proviso to the contrary in a provision addressed to the payment of alimony. See id.

¶22 This follows from the governing text of the controlling statute. “Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse.” Id. The statute prescribes the presumptive effect of the terms of an “order of the court that a party pay alimony to a former spouse.” Such terms are to be interpreted to “automatically terminate[ ] upon the remarriage or death” of the former spouse. This presumption is rebuttable. But the rebuttal must be in the manner set forth by statute: The “decree of divorce” must “specifically provide[ ] otherwise.”

¶23 A divorce decree “specifically provides otherwise” only if there is a provision that speaks directly to the alimony payment in terms that explicitly prescribe a payment obligation that persists despite remarriage. This is clear from the language and structure of the statute. A divorce decree “specifically” overrides the statutory presumption only where it speaks specifically to the alimony payment obligation. And it “provides otherwise” only in a provision of the decree that contradicts the presumption—in stating otherwise (contrary to the statutory presumption) that alimony will continue despite remarriage.

¶24 This interpretive standard is reinforced in Utah case law. In Lord v. Shaw, we considered a divorce decree stating that “alimony [was] to run for a period of three years,” entered under a statute essentially identical to the provision at issue here. 682 P.2d 853, 855 (Utah 1984)), (citing Utah Code § 30-3-5(2) (Supp. 1983)), abrogated on other grounds by Bailey v. Sound Lab, 694 P.2d 1043 (Utah 1984). After remarriage, the receiving spouse asserted a right to continued alimony during the agreed-upon three-year period. She contended that the parties understood that alimony was to continue “for three years regardless of her marital status.” Id. And she asserted that the three-year period was aimed at “assist[ing] her with her education, which would take three years.” Id.

¶25 In Lord we nowhere refuted the receiving spouse’s assertions about the parties’ intentions under the divorce decree, or denied the inference that could be drawn from the decree’s proviso that alimony would continue “for a period of three years.” But we noted that the duty to pay alimony is presumed to terminate upon remarriage unless the divorce decree “specifically provides otherwise.” Id. (citing Utah Code § 30-3-5(2) (Supp. 1983)). And we held that the decree did not “provide for an exception to the general rule that alimony terminates upon remarriage” because it did not include a specific proviso calling for payment of alimony after the receiving spouse’s remarriage. Id.

¶26 The divorce decree at issue in this case is admittedly more detailed than the one presented in Lord. And in some ways, the decree at issue here may provide an even stronger basis for an inference that the parties may have contemplated the possibility of alimony payments continuing after remarriage of the receiving spouse. But the controlling statute does not provide for rebuttal of the underlying presumption by inference. It requires a specific proviso that alimony continues after remarriage. And the absence of such proviso is as controlling here as it was in Lord.

¶27 In so holding, we are not requiring the inclusion of talismanic phrases or magic words. We are simply following the dictates of the statute as interpreted in the case law. And we are accordingly holding that the presumption that alimony terminates upon remarriage is not rebutted by inference but only by a specific proviso that such payments will continue after the receiving party remarries.

¶28 Janette warns of the possibility of a “trap” for the “unwary” if “technical” words are required to rebut the statutory presumption. And she asserts that there is “no discussion” in the legislative history indicating that the legislature “intended” to “require elevated precision in language or the placement of such language in a dedicated ‘proviso.’ ”

¶29 We accept some of the threshold premises of Janette’s arguments. But we do not view them as undermining our holding.

¶30 As to the first point, we again emphasize that the governing standard does not require any particular precision or use of technical language. It just requires a specific proviso that alimony payments are to continue despite remarriage. Perhaps some parties to a divorce will be unaware of the governing legal standard. But the statute states the governing standard. And the public is charged with knowledge of its terms and conditions—ignorance of the law is no excuse. See In re Adoption of B.Y., 2015 UT 67, ¶ 19 n.3, 356 P.3d 1215.

¶31 On the second point, we concede that the requirement of a “dedicated ‘proviso’ ” is nowhere articulated in the legislative history. But “[l]egislative history is not law.” Graves v. N. E. Servs., Inc., 2015 UT 28, ¶ 64, 345 P.3d 619. The law is set forth in the statutory text that was voted on by the legislature. See id. ¶¶ 64–65 (stating that the law is the “statutory text” as “duly enacted” by the legislature). And we cannot foreclose an interpretation of the text on the ground that there is no evidence that it was considered openly on the legislative record. Such a decision would invert the premises of the legislative process, giving “primacy to legislative history, and only secondary significance to the duly enacted statute.” Id. ¶ 65 (explaining that this would “turn a core principle of statutory construction on its head”).

¶32 Janette’s objections ultimately are matters to be taken up, if at all, by the legislature. Perhaps that body could be persuaded that the effect of remarriage on an alimony clause should be a matter controlled purely by an inquiry into the likely intentions of the parties to the divorce decree. And if the legislature so concluded, it certainly could amend the operative statute, and thereby subject alimony provisions to a contract-based standard of interpretation.

¶33 But that is not our law as now written. And we see some wisdom in the law as it stands. The statutory presumption is a gap-filler. It sets a legal presumption based on an educated guess about the likely intentions of the parties to most divorce actions. And it facilitates the process of finalizing the divorce decree by setting a presumptive rule that remains in place unless expressly repudiated.2

¶34 The statutory presumption seems rooted in a fair guess about the likely intentions of the parties to most divorce decrees. And the standard, as stated in our law, provides a clear background rule that parties can negotiate around. If the parties wish to depart from the background presumption, they must do so explicitly in a proviso stating that alimony payments are to continue after remarriage. If they fail to “specifically” so “provide,” the statutory presumption is retained.

¶35 We reverse the court of appeals on this basis. The divorce decree in this case does not include a specific provision stating that alimony is to continue despite remarriage. The alimony provision identifies events other than remarriage that will trigger the termination of alimony. And that, combined with other references to remarriage in the decree, could be viewed to support an inference that the parties contemplated that alimony would continue despite the receiving spouse’s remarriage. But such an inference is insufficient under our law. And we conclude that Melvin’s alimony obligation terminated by operation of law because the decree did not “specifically provide[ ] otherwise.”

III.

¶36 In addition to seeking reversal of the decision of the court of appeals, Melvin asks us to enter an order disgorging the alimony payments he has made to Janette after her remarriage. We decline to consider the disgorgement question in the absence of any analysis of the matter in the proceedings below. Instead, we reverse and remand the matter to the district court for any further proceedings the district court may deem appropriate.

¶37 In remanding, we are taking no position on the propriety or availability of any request for disgorgement or of the proper direction of any further proceedings on remand. We leave the matter to the sound discretion of the district court, with appropriate input from the parties.

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2021 UT 36 – In re E.R.

2021 UT 36 – In re E.R. 

IN THE SUPREME COURT OF THE STATE OF UTAH    

State of Utah, in the interest of E.R., a person under eighteen years of age  

J.R., Petitioner,  

STATE OF UTAHRespondent.  

No. 20200163  

Heard April 8, 2021  

Filed July 29, 2021    

On Certiorari to the Utah Court of Appeals    

Fourth District, Provo  

The Honorable F. Richards Smith  

No. 1012098  

Attorneys: Margaret P. Lindsay, Provo, for petitioner  

Sean D. Reyes, Att’y Gen., Carol L. C. Verdoia, John M. Peterson, Asst. Att’y Gens., Salt Lake City, for respondent  

Martha Pierce, Salt Lake City, Guardian ad Litem for E.R.    

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and JUSTICE PETERSEN joined.  

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:  

¶1 This case arises from the termination of a mother’s parental rights. The juvenile court removed E.R. from his mother’s custody in January 2016, after the Division of Child and Family Services (DCFS) supported a finding of dependency against the mother. The court first set a primary permanency goal of reunification with the mother, with a concurrent goal of permanent custody and guardianship with a relative. After several months of receiving services from DCFS, however, the mother failed to come into substantial compliance with the reunification plan. In November 2016, the juvenile court “terminated reunification services” and “set a primary goal of adoption with a concurrent goal of permanent custody and guardianship.”  

¶2 A year later the state petitioned for termination of the mother’s parental rights. At that point, the court found there were statutory grounds to terminate and determined that it was in E.R.’s best interest to do so. The court concluded that E.R. “has a particular aversion to anything court related” and that he “has a significant need for stability in his placement.” And with that in mind, the court determined that it was “strictly necessary to terminate” the mother’s parental rights to provide E.R. with “true permanency through adoption and so that all court proceedings come to an end.”  

¶3 The mother appealed the termination, asserting that the juvenile court had “exceeded its discretion in terminating her parental rights” and that “termination was not in E.R.’s best interest.” State ex rel. E.R., 2019 UT App 208, ¶ 9, 457 P.3d 389; see UTAH CODE § 78A-6-507 (setting forth grounds for termination and providing that termination is permitted if it is “strictly necessary” “from the child’s point of view”).1 In the mother’s view, the juvenile court had failed to give adequate consideration to reasonable alternatives to termination, as required for the “strictly necessary” inquiry. Id. ¶¶ 10–11; see also In re B.T.B., 2020 UT 60, ¶ 76, 472 P.3d 827 (stating that “a court must specifically address whether termination is strictly necessary to promote the child’s welfare and best interest”). And the mother sought reversal on that basis.  

¶4 The court of appeals affirmed the decision of the juvenile court. Applying the standard of review set forth in State ex rel. B.R., 2007 UT 82, ¶ 12, 171 P.3d 435, the court of appeals stated that “the juvenile court’s decision should be afforded a high degree of deference” and concluded that the result could be overturned only if it is “against the clear weight of the evidence” or leaves the appellate court “with a firm and definite conviction that a mistake has been made.” E.R., 2019 UT App 208, ¶ 8 (quoting B.R., 2007 UT 82, ¶ 12). The court determined that the mother had failed to “demonstrate that the juvenile court’s findings were against the clear weight of the evidence.” Id. ¶ 13. It concluded that the juvenile court had “examined the specific circumstances of this case and the individual needs of E.R.” when making its decision and that its best interest determination was adequate. Id. And the court of appeals thus concluded that the “finding that termination was strictly necessary was not against the clear weight of the evidence.” Id. ¶ 15.  

¶5 The mother filed a petition for certiorari, which we granted. Her briefs filed in our court are aimed at challenging the propriety of the standard of review applied by the court of appeals. She first asks us to rule that the deferential standard of review laid out in B.R. applies only to determinations of parental fitness in termination proceedings, not to best interest determinations. If we conclude that B.R. does apply to best interest determinations, she next asserts that the standard is too deferential, and should be replaced with a non-deferential, de novo standard of review.  

¶6 We affirm. First, we hold that the court of appeals correctly applied the B.R. standard of review to the juvenile court’s best interest determination. Second, we reject the mother’s request that we replace the B.R. standard with a de novo standard of review. Third, we acknowledge some points of imprecision and possible confusion in B.R., and clarify that the governing standard is the same deferential standard that applies to any fact-intensive decision of any lower court—such determinations are upheld unless they are against the “clear weight of the evidence.”  

 

¶7 In State ex rel. B.R., this court stated that a juvenile court’s termination decision “should be afforded a high degree of deference.” 2007 UT 82, ¶ 12, 171 P.3d 435. We noted that the question “[w]hether a parent’s rights should be terminated presents a mixed question of law and fact.” Id. And we held that an appellate court may thus overturn the juvenile court’s decision on termination only where it is “against the clear weight of the evidence or leave[s] the appellate court with a firm and definite conviction that a mistake has been made.” Id. (alteration in original, citation and internal quotation marks omitted). Such a decision may be overturned, in other words, “only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” Id.  

¶8 The mother contends that only determinations of parental fitness, and not determinations of a child’s best interest, are reviewed under the standard set forth in B.R.2 She cites language from B.R. stating that “the legal standard of unfitness is the ultimate question.” Id. And she accordingly insists that B.R. concerned only a parental fitness determination, not a best interest determination. See id.  

¶9 This is a misread of our opinion in B.R. Our opinion addressed the larger question of what level of review to apply to a juvenile court’s analysis of “[w]hether a parent’s rights should be terminated.” Id. And parental termination implicates not just parental fitness but also the child’s best interest—a point made clear by subsequent precedent.  

¶10 In State ex rel. A.C.M., we reiterated the B.R. standard and applied it to a juvenile court’s decision to terminate a father’s rights. We thus applied this standard to two questions—to whether the juvenile court had “sufficient grounds to terminate his rights,” and to whether it had failed to consider the child’s “best interests.” 2009 UT 30, ¶ 8, 221 P.3d 185. In considering these questions, we stated that “[w]e afford great deference to the juvenile court’s findings of fact and overturn the result only if the facts are against the clear weight of the evidence.” Id.  

¶11 Our recent decision in In re G.D. is along the same lines. There we stated that “[w]hen reviewing a fact-intensive mixed question of fact and law, such as whether a particular placement serves a child’s best interests, . . . [a]n appellate court must not overturn the trial court’s decision unless it is against the clear weight of the evidence.” In re G.D., 2021 UT 19, ¶ 72 n.46, __ P.3d __.  

¶12 These cases foreclose the mother’s first argument. The standard of review established in B.R. applies to all aspects of the juvenile court’s termination of parental rights determination, and not just to the parental fitness determination. We have routinely applied the standard to both parental fitness and best interest determinations. The court of appeals was thus correct to apply the B.R. standard to the juvenile court’s best interest determination.  

II  

¶13 The mother asserts that the standard we established in B.R. is too deferential for a best interest determination. But the deferential standard established in B.R. is in line with the standard of review we apply to similar fact-intensive decisions. And the mother has not identified a basis for repudiation of this deferential standard in favor of the de novo standard she asks us to apply.  

¶14 The appropriate standard of review for a lower court’s decision is dependent upon the “nature of the issue.” In re Adoption of Baby B., 2012 UT 35, ¶ 42, 308 P.3d 382. We apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.  

¶15 Factual determinations are accorded a high degree of deference. This is because “a lower court often has a comparative advantage in its firsthand access to factual evidence.” In re United Effort Plan Trust, 2013 UT 5, ¶ 17, 296 P.3d 742 (citation and internal quotation marks omitted). And as factual issues “are unique to each case,” there is “no particular benefit in establishing settled appellate precedent on issues of fact.” Id. (citation omitted). With this in mind, we review determinations of fact with a “highly deferential standard,” overturning the lower court “only when clearly erroneous.” Id. (citation omitted).  

¶16 Our review of conclusions of law is at the other end of the spectrum. We afford “[n]o deference . . . to the lower court’s analysis of abstract legal questions.” Id. ¶ 18 (citation omitted). “[S]ettled appellate precedent is of crucial importance in establishing a clear, uniform body of law.” Id. (citation omitted). And appellate courts have comparative advantages in establishing such precedent. We apply a non-deferential de novo standard to questions of law for that reason.  

¶17 A best interest determination involves neither a pure finding of fact nor an abstract conclusion of law. This is a mixed determination of law and fact—in which the abstract law is applied to a given set of facts.  

¶18 The standard of review for mixed questions “depends on the nature of the issue.” Baby B., 2012 UT 35, ¶ 42. “Law-like mixed questions are reviewed de novo, while fact-like mixed questions are reviewed deferentially.” Sawyer v. Dep’t of Workforce Servs., 2015 UT 33, ¶ 11, 345 P.3d 1253. To determine “whether a mixed question should be deemed law-like or fact-like, we evaluate the ‘marginal costs and benefits’ of conducting either a searching de novo review or a deferential review of a lower tribunal’s resolution of the mixed question.” Id. ¶ 12 (quoting Baby B., 2012 UT 35, ¶ 42).  

¶19 De novo review of mixed questions is appropriate “where a fresh appellate reconsideration of the issues present[s] little downside and significant upside.” Baby B., 2012 UT 35, ¶ 44. Issues that are “law-like” are matters that “lend[] themselves to consistent resolution by uniform precedent.” Id. Appellate courts are in a preferred position on such issues. They can establish a uniform body of precedent establishing “consistent rule[s]” that litigants and lower courts can rely on. Id. And a need to establish such rules cuts against a standard of deference to lower courts.  

¶20 Other mixed questions do “not lend [themselves] to consistent resolution by a uniform body of appellate precedent” because the factual scenarios presented are “so complex and varying that no rule adequately addressing the relevance of all these facts can be spelled out.” Id. ¶¶ 42–43. On these issues, “the trial court is in a superior position” to make a determination and deference is appropriate. Id. ¶ 42.  

¶21 Our cases identify a “cost-benefit” basis for distinguishing “law-like” and “fact-like” mixed determinations through the lens of a three-factor test laid out in State v. Levin. See Sawyer, 2015 UT 33, ¶ 12This test considers:  

(1) the degree of variety and complexity in the facts to which the legal rule is to be applied; (2) the degree to which a trial court’s application of the legal rule relies on facts observed by the trial judge, such as a witness’s appearance and demeanor, relevant to the application of the law that cannot be adequately reflected in the record available to appellate courts; and (3) other policy reasons that weigh for or against granting discretion to trial courts.  

State v. Levin, 2006 UT 50, ¶ 25, 144 P.3d 1096 (citation and internal quotation marks omitted).  

¶22 Under this test, a juvenile court’s best interest determination involves a “fact-like” mixed question subject to deferential review. First, this is a “factually intense . . . inquiry” dependent on the unique circumstances and needs of each child. State ex rel. B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. Each case presents its own complexity and variety. And these considerations stand in the way of appellate development of categorical rules in this field.  

¶23 Second, the juvenile court has a superior perspective in light of its view of the demeanor of both parents and children. We have “previously noted that a party’s demeanor” is a factor that “may be probative in a best interest analysis.” State ex rel. T.E., 2011 UT 51, ¶ 44, 266 P.3d 739. Such evidence “may be probative of a parent’s credibility, a parent’s attitude toward his or her child, and a parent’s attitude in fulfilling parental obligations.” Id. And again this cuts in favor of a standard of deferential review.  

¶24 The mother’s principal counter is her assertion that “policy reasons” are sufficient to outweigh the above. She notes that there are “fundamental interests at stake” in a best interest determination. And she cites recent amendments to the Utah Code that in her view indicate that “the standard of review as to whether termination is in the best interest of the child should be rebalanced between juvenile and appellate courts.”  

¶25 We see no basis in the cited authority for an alteration of our longstanding standard of deference to best interest determinations. A parent certainly has a “fundamental right, protected by the Constitution, to sustain his relationship with his child.” In re J.P., 648 P.2d 1364, 1372 (Utah 1982) (citation omitted). But there is no hard-and-fast rule that any and all determinations affecting a party’s fundamental rights are subject to searching de novo review. And in our view the best interest determination is properly subject to deferential review for reasons set forth above.  

¶26 The mother has identified no persuasive ground for her request that we overrule the standard set forth in B.R. She has made little or no effort to justify a reversal of course as a matter of stare decisisSee Eldridge v. Johndrow, 2015 UT 21, ¶ 22, 345 P.3d 553  

(setting forth factors for consideration in deciding whether to overrule our precedent). And we decline her request and reaffirm the standard set forth in B.R. for reasons set forth above.  

III  

¶27 Although we reinforce B.R., we also take this occasion to refine it. We uphold the central standard of deferential review set forth in that opinion. But we acknowledge some potential points of confusion and inconsistency and clarify the standard going forward.  

¶28 The parties’ briefs have highlighted potential problems with the formulation of the standard as stated in B.R. The mother points to clauses in the opinion that purportedly are viewed as effectively insulating juvenile court decisions from effective review on appeal. And even the State concedes that under B.R., “Juvenile Court judges have long been afforded even greater deference than their district court counterparts.”  

¶29 We see the matter differently, but understand that some of the language in B.R. may be contributing to some misunderstanding. At least two sentences in B.R. may be adding to a sense that juvenile court judges are entitled to an extra measure of deference: (a) the statement that a “juvenile court’s decision should be afforded a high degree of deference,” and (b) the assertion that “[w]hen a foundation for the court’s decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence.” State ex rel. B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.  

¶30 We disavow these sentences, and any other “language in B.R.” that could be read to “suggest[] that there is a different standard of review for juvenile courts.” See In re G.D., 2021 UT 19, ¶ 72 n.46, __ P.3d __ (making a parallel point). And we hereby clarify that the deference afforded to the juvenile court is the same level of deference given to all lower court findings of fact and “fact-like” determinations of mixed questions.  

¶31 There is no universal bar on an appellate court “reweighing” evidence considered by the juvenile courts. And the bare existence of any conceivable “foundation for the court’s decision . . . in the evidence” is no trump card foreclosing appellate review. Instead, any “reweighing” or consideration of “foundation” in the evidence must be guided by the operative deferential standard of review: “[T]he juvenile court’s decision [can] be overturned only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” B.R., 2007 UT 82, ¶ 12. (emphasis added).  

¶32 Under this standard, an appellate court should not perform its own independent “reweighing” of the evidence to decide how it would have resolved the matter in the first instance. A measure of deference is owing. But such deference is not absolute. Not every conceivable “foundation” in evidence is a basis for affirmance. The lower court’s decision should be respected unless the court “failed to consider all of the facts” or reached a decision “against the clear weight of the evidence.” Id.  

¶33 We affirm the court of appeals’ decision in this case under this clarified standard. In affirming the juvenile court’s decision terminating the mother’s parental rights, the court of appeals vaguely noted that “due to ‘the factually intense nature’ of a termination decision, ‘the juvenile court’s decision should be afforded a high degree of deference.’” State ex rel. E.R., 2019 UT App 208, ¶ 8, 457 P.3d 389 (quoting B.R., 2007 UT 82, ¶ 12). But it ultimately applied the correct standard of review. And we affirm on that basis.  

¶34 The court of appeals stated that it would overturn the juvenile court’s decision “only if the result is ‘against the clear weight of the evidence’ or leaves us ‘with a firm and definite conviction that a mistake has been made.’” Id. (quoting B.R., 2007 UT 82, ¶ 12). And in affirming the juvenile court’s decision, the court of appeals did not just consider whether any “foundation for the court’s decision exists in the evidence.” B.R., 2007 UT 82, ¶ 12. It also considered the evidence presented to the juvenile court and determined that the mother’s challenges failed to “demonstrate that the juvenile court’s findings were against the clear weight of the evidence.” E.R., 2019 UT App 208, ¶ 13.  

¶35 This was a correct application of the governing standard of review set forth in B.R. And the mother in this case has identified no other basis for reversal. We accordingly affirm the decision of the court of appeals.  

 

Utah Family Law, LC | divorceutah.com | 801-466-9277 

  

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Can a divorced spouse claim rights to a previous primary residence?

Can a divorced spouse claim rights to a previous primary residence?

A court can, in exceptional circumstances, award a spouse some or all of your premarital and separate property that is clearly not a marital asset. In the jurisdiction where I practice family law (Utah), the rule in caselaw is:

Dunn v. Dunn, 802 P.2d 1314 (Utah Ct.App. 1990):

The general rule is that equity requires that each party retain the separate property he or she brought into the marriage, including any appreciation of the separate property. Burt v. Burt, 799 P.2d 1166, 1168 (Utah Ct.App.1990) (separate property, in this case inherited property, includes “its appreciated value” during the marriage). Exceptions to this general rule include whether the property has been commingled, whether the other spouse has by his or her efforts augmented, maintained, or protected the separate property, and whether the distribution achieves a fair, just, and equitable result. Id.; Noble v. Noble, 761 P.2d 1369, 1373 (Utah 1988).

Elman v. Elman, 245 P.3d 176 (Utah Ct.App. 2002):

In distributing property in divorce proceedings, trial courts are first required to properly categorize the parties’ property as marital or separate. See, e.g., Kelley v. Kelley, 2000 UT App 236,¶ 24, 9 P.3d 171. Generally, trial courts are also required to award premarital property, and appreciation on that property, to the spouse who brought the property into the marriage. See Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App.1990); see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988).

6¶ 19 However, separate property is not “totally beyond [a] court’s reach in an equitable property division.” Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct.App.1990). The court may award the separate property of one spouse to the other spouse in “ ‘extraordinary situations where equity so demands.’ ” Id. (quoting Mortensen, 760 P.2d at 308); see also Rappleye v. Rappleye, 855 P.2d 260, 263 (Utah Ct.App.1993) (“ ‘Exceptions to this general rule include whether … the distribution achieves a fair, just, and equitable result.’ ” (quoting Dunn, 802 P.2d at 1320)).

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Can a divorced spouse claim rights to a premarital primary residence?

Can a divorced spouse claim rights to a premarital primary residence?

A court can, in exceptional circumstances, award a spouse some or all of your premarital and separate property that is clearly not a marital asset. In the jurisdiction where I practice family law (Utah), the rule in caselaw is:

Dunn v. Dunn, 802 P.2d 1314 (Utah Ct.App. 1990):

The general rule is that equity requires that each party retain the separate property he or she brought into the marriage, including any appreciation of the separate property. Burt v. Burt, 799 P.2d 1166, 1168 (Utah Ct.App.1990) (separate property, in this case inherited property, includes “its appreciated value” during the marriage). Exceptions to this general rule include whether the property has been commingled, whether the other spouse has by his or her efforts augmented, maintained, or protected the separate property, and whether the distribution achieves a fair, just, and equitable result. Id.; Noble v. Noble, 761 P.2d 1369, 1373 (Utah 1988).

Elman v. Elman, 245 P.3d 176 (Utah Ct.App. 2002):

In distributing property in divorce proceedings, trial courts are first required to properly categorize the parties’ property as marital or separate. See, e.g., Kelley v. Kelley, 2000 UT App 236,¶ 24, 9 P.3d 171. Generally, trial courts are also required to award premarital property, and appreciation on that property, to the spouse who brought the property into the marriage. See Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App.1990); see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988).

6¶ 19 However, separate property is not “totally beyond [a] court’s reach in an equitable property division.” Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct.App.1990). The court may award the separate property of one spouse to the other spouse in “ ‘extraordinary situations where equity so demands.’ ” Id. (quoting Mortensen, 760 P.2d at 308); see also Rappleye v. Rappleye, 855 P.2d 260, 263 (Utah Ct.App.1993) (“ ‘Exceptions to this general rule include whether … the distribution achieves a fair, just, and equitable result.’ ” (quoting Dunn, 802 P.2d at 1320)).

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Does having the judge interview the children traumatize the children?

Does having the judge interview the children traumatize the children?

 

This post is the second in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

 

Does having the judge interview the children traumatize the children? You may have heard the argument along the lines of, “Having a judge interview children is tantamount to child abuse.” If you haven’t heard it yet, all you have to do to make that happen is propose that the judge interview your children. The same people who claim judges interviewing kids harms kids will, with a straight face, claim that having a child interviewed by a guardian ad litem or custody evaluator is in some way functionally and/or effectively different from and better than being interviewed by a judge. Really?

 

I submit to you that virtually no child knows or cares about the difference between a judge or a guardian ad litem or psychologist interviewing a child. And while I will be among the first to admit that a mental health professional like an LCSW or psychologist may generally be a bit more skilled than the average judge at interviewing children about child custody issues, I submit that the difference is not so great as to justify spending $3,000 to $10,000 or more on a custody evaluation with an LCSW or psychologist, especially when the custody evaluation interview, like the interviews with the GAL, are not on the record, which means there’s no way of knowing how well the interviews were conducted or what said or not said by the child, if in fact the interviews ever took place at all.

Contrastingly, an interview conducted by the judge, as authorized by the Utah legislature/Utah Code § 30-3-10(5), is free of charge to the parents, takes far less time than an interview with a custody evaluator, would take about as much time as an interview would with a GAL, is directly from the child witness’s mouth to the judge’s ear (that way there are no hearsay or other second hand information concerns), and is on the record to ensure that there is no question as to how well the interview was conducted, what the child was and was not asked, and what the child did and did not say in response.

 

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Jensen v. Canon – 2020 UT App – tort of fraudulent nondisclosure and willful intent to deceive

2020 UT App 124

THE UTAH COURT OF APPEALS

JODI JENSEN, Appellant and Cross-appellee,
v.
GARY CANNON, Appellee and Cross-appellant.

Opinion

No. 20190433-CA

Filed August 27, 2020

Third District Court, Salt Lake Department

The Honorable Patrick Corum

No. 160904276

Bruce M. Pritchett Jr. and Robert D. Strieper, Attorneys for Appellant and Cross-appellee

Julianne P. Blanch, Alissa M. Mellem, and Aaron
Worthen, Attorneys for Appellee and
Cross-appellant

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGE DAVID N. MORTENSEN concurred. JUDGE RYAN M. HARRIS
concurred in part and concurred in the result, with opinion.

POHLMAN, Judge:

¶1        Jodi Jensen and Gary Cannon divorced in March 1998. More than a decade later, Jensen filed an independent action seeking relief from the parties’ divorce decree on the basis that Cannon failed to disclose certain assets during the divorce proceedings. The district court largely resolved the dispute in Cannon’s favor through summary judgment and a bench trial. In this appeal and cross-appeal, Jensen and Cannon challenge several of the district court’s rulings resolving Jensen’s claims and denying Cannon’s motions. We affirm the challenged rulings.

BACKGROUND

¶2        Jensen and Cannon married in 1987 and divorced in 1998. Before the parties divorced, they entered into a settlement agreement resolving “any and all disputes” regarding “the distribution of real and personal property acquired by them during the course of their marriage” and dividing identified assets. (Cleaned up.) The agreement was incorporated into the divorce decree.

¶3        Some years later, Jensen began to suspect that Cannon had not disclosed all of his assets during the divorce proceedings. She accordingly filed suit against Cannon in 2009, alleging that Cannon had committed fraud in not disclosing certain assets. After several years, that case was dismissed without prejudice by stipulation. In 2016, within one year of the dismissal, Jensen re-filed her complaint, again alleging that Cannon committed fraud by not disclosing certain assets during the divorce proceedings. She subsequently amended her complaint, adding claims for breach of the covenant of good faith and fair dealing, negligent misrepresentation, unjust enrichment, accounting, and fraudulent nondisclosure.

¶4        As relevant here, Jensen alleged that at the time of their divorce, Cannon held an interest in two assets: a 3.89-acre parcel of real property Jensen has identified on appeal as the Riverton Corners property and an option (the Option Agreement) to purchase a different 3.4-acre parcel of land Jensen has identified as the Green property. Jensen claimed that Cannon did not disclose either asset during the divorce proceedings.

¶5 Cannon moved for summary judgment on all Jensen’s claims. He argued that Jensen’s non-fraud claims should be dismissed because they constituted an “improper[] attempt to modify the divorce decree” and were untimely and improper under rule 60 of the Utah Rules of Civil Procedure. He also argued that Jensen could not prove her fraud-related claims by clear and convincing evidence. And he requested attorney fees pursuant to Utah Code section 78B-5-825, contending that Jensen’s claims both lacked merit and were brought in bad faith.

¶6        The district court granted the motion in part and denied it in part. The court awarded Cannon judgment on some of Jensen’s fraud-based claims but concluded that Jensen could “proceed with her [fraud] and [fraudulent nondisclosure] causes of action” with respect to the Riverton Corners and Green properties. The court also dismissed Jensen’s claims for breach of the covenant of good faith and fair dealing, negligent misrepresentation, accounting, and unjust enrichment. The court rendered no ruling on Cannon’s request for bad faith attorney fees in its summary judgment ruling.

¶7        The case proceeded to a bench trial. At the trial’s conclusion, the court determined that Jensen had not carried her burden of proving her fraud claims by clear and convincing evidence. The court stated that the central issue on the fraud claims was whether Cannon knew the Option Agreement and the Riverton Corners property were assets “that he needed to disclose during the divorce.” The court found that Cannon credibly testified that he did not know he was required to disclose those assets and that he therefore did not have the intent required for fraud.

¶8        The district court also denied Cannon’s request for bad faith attorney fees under Utah Code section 78B-5-825. It determined that the case was “brought in good faith” and on that basis denied the request.

¶9        Finally, the district court also denied a motion filed by Cannon for sanctions against Jensen under rule 11 of the Utah Rules of Civil Procedure.[1] During the proceedings, Jensen had filed a motion in limine requesting that the court sanction Cannon under rule 37 of the Utah Rules of Civil Procedure for spoliation of the Option Agreement. She asked the court to presume that a physical copy of the Option Agreement once existed and to impose an adverse inference in her favor that had the document been disclosed, it would have shown that Cannon “had an ownership interest in the Green Property during the marriage that was not disclosed.” The court denied Jensen’s motion.

¶10      In response, Cannon filed a motion requesting that Jensen be sanctioned under rule 11 for filing the spoliation motion, claiming that at the time Jensen filed the motion she did not have, and was not likely to attain, evidentiary support for her contentions. See Utah R. Civ. P. 11(b)(3), (c) (providing that, by presenting a motion to the court, the attorney certifies that, having conducted a reasonable inquiry, “the allegations and other factual contentions have evidentiary support or . . . are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery,” and that an “appropriate sanction” may be imposed for a violation of subsection (b)). Following trial, the court determined that while there “may not be direct evidentiary support for” the contention that the Option Agreement had been in writing and that Cannon had spoliated the document, “there [were] inferences” supporting the contention, and on that basis denied Cannon’s motion.

¶11      Jensen now appeals the district court’s conclusion that she failed to prove her fraudulent nondisclosure claim with respect to the Option Agreement and the Riverton Corners property. She also appeals the court’s dismissal of her non-fraud claims on summary judgment. Cannon cross-appeals, challenging the court’s denial of his request for bad faith attorney fees and for rule 11 sanctions based on Jensen’s spoliation motion. Cannon also requests attorney fees on appeal under rule 33 of the Utah Rules of Appellate Procedure.

ISSUES AND STANDARDS OF REVIEW

¶12 Jensen first challenges the district court’s determination that she did not prove her fraudulent nondisclosure claim regarding the Riverton Corners property and the Option Agreement, arguing that the court misconstrued the elements of the claim. We review a district court’s legal conclusions for correctness. See Reynolds v. MacFarlane, 2014 UT App 57, ¶ 11, 322 P.3d 755; see also Nielsen v. Spencer, 2008 UT App 375, ¶ 10, 196 P.3d 616 (stating that we review issues concerning the elements of a tort claim for correctness).

¶13    Jensen next challenges the district court’s dismissal of her non-fraud claims on summary judgment. She argues that the district court erroneously dismissed those claims due to its misinterpretation of rule 60(d) of the Utah Rules of Civil Procedure. Summary judgment should be granted “if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). We review a district court’s grant of “summary judgment for correctness, viewing the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Penunuri v. Sundance Partners, Ltd., 2017 UT 54, ¶ 14, 423 P.3d 1150 (cleaned up). And we review a district court’s “interpretation of a rule of civil procedure for correctness.” Lodge at Westgate Park City Resort & Spa Condo. Ass’n Inc. v. Westgate Resorts Ltd., 2019 UT App 36, ¶ 18, 440 P.3d 793 (cleaned up).

¶14 On cross-appeal, Cannon challenges the district court’s denial of his request for attorney fees under Utah Code section 78B-5-825. Under that section, a court in a civil action “shall award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith.” Utah Code Ann. § 78B-5-825(1) (LexisNexis 2018). As relevant here, whether Jensen acted in good faith is a “question of fact,” and we review the district court’s determination on that point for clear error. See Bresee v. Barton, 2016 UT App 220, ¶ 15, 387 P.3d 536 (cleaned up); see also Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 2020 UT 47, ¶ 77 (affording a “substantial measure of discretion” to a district court’s bad faith finding).

¶15 Finally, Cannon challenges the district court’s denial of his motion for sanctions against Jensen under rule 11 of the Utah Rules of Civil Procedure. We review factual findings related to the rule 11 determination for clear error and the court’s legal conclusions for correctness. See Gillmor v. Family Link, LLC, 2012 UT 38, ¶ 9, 284 P.3d 622; Westmont Mirador LLC v. Shurtliff, 2014 UT App 184, ¶ 8, 333 P.3d 369.

ANALYSIS

I. Jensen’s Appeal

A. Fraudulent Nondisclosure

¶16      Jensen challenges the district court’s determination that she did not prove all the elements of her fraudulent nondisclosure claim by clear and convincing evidence. “To prevail on a claim for fraudulent nondisclosure, a plaintiff must prove by clear and convincing evidence that (1) the defendant had a legal duty to communicate information, (2) the defendant knew of the information he failed to disclose, and (3) the nondisclosed information was material.” Anderson v. Kriser, 2011 UT 66, ¶ 22, 266 P.3d 819 (cleaned up); accord Hess v. Canberra Dev. Co., 2011 UT 22, ¶ 29, 254 P.3d 161; Mitchell v. Christensen, 2001 UT 80, ¶ 9, 31 P.3d 572.

¶17      In evaluating Jensen’s fraudulent nondisclosure claim, the district court determined that the “core issue” regarding the Option Agreement and the Riverton Corners property was whether Cannon knew that they were “asset[s] that he needed to disclose during the divorce.” The court found that Cannon credibly testified with respect to both “that he did not know” he needed to disclose them. Regarding the Option Agreement specifically, the court found that Cannon had an “option with the Greens[] to act as their real estate agent,” not an option “to purchase and hold the land,” and that there was no “clear and convincing evidence that [Cannon] knew [the Option Agreement] was an asset that would require disclosure” where, at the relevant time, “he did not believe the real estate option to have value,” given that it “was a potential future interest in land.” And for the Riverton Corners property, the court determined that “there was no evidence” that Cannon “intended to deceive” Jensen about the property. The court found that Cannon “convincingly testified” that he “did not view [the property] as something he needed to disclose as an asset” because he did not believe he owned an interest in it.

¶18      Jensen argues that the court “erred when it extended the element of knowledge” beyond mere knowledge of the asset to Cannon’s knowledge that “he had to disclose the assets.” She faults the court for basing its judgment on Cannon’s “testimony that he did not believe he had to disclose” the Option Agreement and the Riverton Corners property rather than on his knowledge of these properties in the abstract. In this respect, she contends that the relevant issue to prove the fraudulent nondisclosure claim was simply whether Cannon knew of the Option Agreement and the Riverton Corners property, and that it was inappropriate for the court to consider Cannon’s subjective belief about whether they were “assets” that needed to be disclosed.[2]

¶19      Jensen’s argument has some appeal. After all, in articulating the three-part test applied to fraudulent nondisclosure claims, intent to deceive is not identified as an element of the tort. See Anderson, 2011 UT 66, ¶ 22. The test speaks only of duty, knowledge, and materiality. Id. And in that respect, the articulation of the tort is similar to constructive fraud, which does not require a showing of intent to deceive. See Jensen v. IHC Hosps., Inc., 944 P.2d 327, 339 (Utah 1997) (“Constructive fraud requires two elements: (i) a confidential relationship between the parties; and (ii) a failure to disclose material facts.”); d’Elia v. Rice Dev., Inc., 2006 UT App 416, ¶ 51, 147 P.3d 515 (holding that intent to defraud is not an element of constructive fraud), holding modified on other grounds by Jones & Trevor Mktg., Inc. v. Lowry, 2012 UT 39, 284 P.3d 630.

¶20      We also recognize that in other jurisdictions, the tort of fraudulent nondisclosure has been described a variety of ways, some of which do not necessarily depend on establishing a fraudulent intent. For example, some courts separately recognize the tort of fraudulent concealment, which requires an intent to conceal, and the tort of fraudulent nondisclosure, which requires only the breach of a duty to disclose. See United States v. Colton, 231 F.3d 890, 898–900 & n.2 (4th Cir. 2000) (explaining the difference between fraudulent concealment, which requires an intent to deceive, and fraudulent nondisclosure, which requires the failure to disclose when there is a duty to do so, and collecting cases from jurisdictions that recognize a distinction between fraudulent concealment and fraudulent nondisclosure on this basis and those that do not); Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 38 P.3d 12, 21–22, 35–36 (Ariz. 2002) (en banc) (discussing the difference between fraudulent concealment, which requires an intent to conceal, and fraudulent nondisclosure, which requires only a duty to disclose). See generally Restatement (Second) of Torts §§ 550, 551 (Am. Law Inst. 1977) (discussing requirements of concealment versus nondisclosure).

¶21      Utah, however, does not draw a distinction between the torts of fraudulent nondisclosure and fraudulent concealment. In this state, “the elements for fraudulent nondisclosure are essentially the same as those for fraudulent concealment,” and our courts have “sometimes used the names of the two causes of action interchangeably.” Anderson, 2011 UT 66, ¶ 22 n.11. And while intent is not a listed element of fraudulent nondisclosure claims, our supreme court has nevertheless emphasized that “fraudulent nondisclosure is an intentional tort” and that “intent is the hallmark” of intentional torts. Id. ¶ 26.

¶22      In so stating, the Anderson court plainly described the tort of fraudulent nondisclosure as dependent on the actor’s intent. Id. ¶¶ 25–26; see also Marcantel v. Michael & Sonja Saltman Family Trust, No. 2:16-cv-250-DBP, 2019 WL 1262648, at *5–7, *11 (D. Utah Mar. 19, 2019) (discussing Anderson, explaining that fraudulent intent is an element of the tort of fraudulent nondisclosure, and applying the element of intent accordingly to resolve the fraudulent nondisclosure claims at issue). To make this point, the Anderson court contrasted fraudulent nondisclosure with negligent nondisclosure, explaining that the “essential difference” between the two claims “is the mental state of the defendant that the plaintiff must establish in order to prevail.” Anderson, 2011 UT 66, ¶ 25. For fraudulent nondisclosure, a defendant must have “a willful intent to deceive,” while for negligent nondisclosure, the plaintiff “is not required to demonstrate any wrongful intent on the part of the defendant.” Id. (cleaned up); see also Price-Orem Inv. Co. v. Rollins, Brown & Gunnell, Inc., 713 P.2d 55, 59 n.2 (Utah 1986) (explaining that “negligent misrepresentation does not require the intentional mental state necessary to establish fraud”); Shah v. Intermountain Healthcare, Inc., 2013 UT App 261, ¶ 11, 314 P.3d 1079 (“The elements of negligent misrepresentation are similar to those of fraud except that negligent misrepresentation does not require the intentional mental state necessary to establish fraud.” (cleaned up)); Moore v. Smith, 2007 UT App 101, ¶ 36 n.12, 158 P.3d 562 (stating that the “only difference between” claims for negligent misrepresentation and fraudulent concealment is that negligent misrepresentation requires a “lesser mental state”).

¶23      Applying these principles, we conclude that the district court properly considered Cannon’s beliefs—i.e., his mental state—in determining whether Cannon knew of the information he failed to disclose. To be sure, Cannon knew of the Option Agreement and the Riverton Corners property during the divorce proceedings. But importantly, the court credited Cannon’s testimony that he did not know that the Option Agreement and the Riverton Corners property were “asset[s]” responsive to Jensen’s discovery request. And because Cannon did not know they were responsive to Jensen’s discovery, Cannon lacked a “willful intent to deceive,” as is required for fraudulent nondisclosure. See Anderson, 2011 UT 66, ¶¶ 25–26 (cleaned up); see also Marcantel, 2019 WL 1262648, at *6–7 (looking at the circumstances surrounding the alleged fraudulent nondisclosure to conclude that a mere knowledge of an easement and a failure to disclose it did not amount to fraudulent intent).

¶24      In his separate opinion, Judge Harris disagrees with our interpretation of Anderson. He contends that in applying the supreme court’s instruction about willful intent to the circumstances of this case, we have “tack[ed] on a new fourth element never before discussed as such by any Utah appellate opinion.” Infra ¶ 58. We respectfully disagree with Judge Harris’s assessment of our analysis. We have not added a fourth element to the tort of fraudulent nondisclosure any more than the supreme court did in Anderson. Rather, we believe we are merely following the lead of Anderson in recognizing that an intent to deceive must necessarily inform the application of the tort’s three elements.

¶25      The court in Anderson addressed the contours of the second element of the tort: that “the defendant knew of the information he failed to disclose.” 2011 UT 66, ¶¶ 22, 24 (cleaned up). In particular, the court resolved “whether satisfaction of this element requires a showing of actual, or merely constructive, knowledge,” id. ¶ 24, emphasizing that the tort of fraudulent nondisclosure is a tort committed by someone acting with fraudulent intent, or the intent to deceive, id. ¶¶ 25–26. The court then concluded that the tort must require actual knowledge of the undisclosed information, because to conclude otherwise would overlook the intentional nature of the tort. Id. ¶ 26. The court explained it would be “unreasonable and illogical to infer that the defendant intended to conceal [a nondisclosed] fact” if the defendant did not have actual knowledge of it. Id.

¶26      Similarly, here, the three elements of nondisclosure do not answer the specific question the district court (and now this court) have been called on to resolve: whether satisfaction of the knowledge element requires that Cannon knew of the Option Agreement and the Riverton Corners property in the abstract or that he knew that the properties were assets as defined by Jensen’s discovery requests. To answer that question, we do not add a fourth element to the tort. Instead, like the supreme court in Anderson, we resolve that unanswered question by acknowledging that “fraudulent nondisclosure is an intentional tort.” Id. And we conclude that when a defendant like Cannon lacks the knowledge that a particular property is an asset for purposes of discovery (as the district court found), “it is both unreasonable and illogical to infer that [he] intended to conceal that fact.” Id. “Indeed, permitting a plaintiff to state a claim for fraudulent nondisclosure without proving actual knowledge on the part of the defendant would allow a plaintiff to convert merely negligent acts into fraudulent acts.” Id.

¶27      Finally, we take no issue with Judge Harris’s conclusion that fraudulent intent for purposes of a fraudulent nondisclosure claim may be inferred when a plaintiff shows that a defendant had actual knowledge of a material fact and failed to disclose that fact. See infra ¶¶ 60, 63. The supreme court made that clear in Anderson. 2011 UT 66, ¶ 26. But we do not read Anderson as requiring such an inference. And we view it as inconsistent with the designation of fraudulent nondisclosure as an intentional tort to insist that such an inference must be drawn in this case where the court found, as a factual matter, that Cannon did not know the Option Agreement and the Riverton Corners property were assets to be disclosed. Such a conclusion, in our opinion, would render Cannon liable for fraudulent nondisclosure even where the court found that he carried no fraudulent intent. And that is a conclusion we cannot square with Anderson.

¶28      For these reasons, we conclude that the court did not improperly extend or apply the elements of fraudulent nondisclosure in considering Cannon’s beliefs about whether the Option Agreement and the Riverton Corners property had to be disclosed. Accordingly, we affirm the court’s judgment on Jensen’s fraudulent nondisclosure claim.[3]

B. Jensen’s Non-fraud Claims

¶29      In addition to asserting claims for fraud and fraudulent nondisclosure, Jensen sought relief from the divorce decree based on theories of negligent misrepresentation, breach of the implied covenant of good faith and fair dealing, accounting, and unjust enrichment (the non-fraud claims). Cannon moved for summary judgment on these claims, arguing that they were untimely and improper under rule 60(d) of the Utah Rules of Civil Procedure. The district court agreed and granted Cannon’s motion. The court adopted Cannon’s construction of rule 60(d), concluding that “in attacking the underlying settlement agreement,” the “only appropriate actions are the fraud related claims.”

¶30      Jensen challenges the court’s summary judgment decision, contending that the plain language of rule 60(d) permits parties to seek relief from a judgment based on claims other than fraud. Although we agree with Jensen that fraud is not the only theory allowed in an independent action for relief from a judgment, we do not agree that the district court erred in granting summary judgment against Jensen on her particular non-fraud claims.

¶31      Rule 60 recognizes two avenues by which a litigant may seek relief from a final judgment. See Pepper v. Zions First Nat’l Bank, NA, 801 P.2d 144, 150 (Utah 1990) (“[D]espite the doctrine of res judicata, [rule 60] expressly recognizes two different methods for attacking a judgment.”). First, rule 60(b) permits a party to move a district court for relief from a judgment based on several enumerated grounds, such as excusable neglect, newly discovered evidence, and fraud, each of which is subject to time constraints set out in subsection 60(c). See Utah R. Civ. P. 60(b), (c) (requiring a motion for relief from a judgment based on grounds such as excusable neglect, newly discovered evidence, and fraud to be filed within ninety days of the entry of judgment, while a motion based on other reasons under subsection (b) must be filed “within a reasonable time”).

¶32      Second, rule 60(d) separately recognizes a district court’s inherent power to entertain an independent action for relief from a judgment. Id. R. 60(d); see also State v. Boyden, 2019 UT 11, ¶ 39, 441 P.3d 737; St. Pierre v. Edmonds, 645 P.2d 615, 618 (Utah 1982) (recognizing a “court’s historic powers to relieve a party” from judgment and explaining that rule 60 “does not limit the power of a court to entertain an independent action” (cleaned up)). Because the availability of an independent action flows from a “court’s historic powers to relieve a party” from judgment, the time frames set forth in rule 60(c) do not apply. See St. Pierre, 645 P.2d at 618. “Rather, the doctrine of laches and other equitable principles determine the time within which the action must be brought.” Id.

¶33      When Jensen discovered Cannon’s alleged fraud, the window of time for her to seek relief for that fraud under rule 60(b) had long since expired. See Utah R. Civ. P. 60(b)(3), (c) (providing that a motion for relief from a judgment or order on the basis of fraud must be filed “not more than 90 days after entry of the judgment or order”). Thus, her only option was to seek relief from the divorce decree by filing an independent action as endorsed by rule 60(d). And while Jensen originally asserted only fraud claims, she later amended her complaint to add the non-fraud claims, including a claim for negligent misrepresentation.[4]

¶34        Rule 60(d) states, “This rule does not limit the power of a

court to entertain an independent action to relieve a party from a judgment, order or proceeding or to set aside a judgment for fraud upon the court.” Id. R. 60(d). “When we interpret a rule of civil procedure, we look to the express language of the rule and to cases interpreting it.” Drew v. Lee, 2011 UT 15, ¶ 16, 250 P.3d 48. The dispute before us centers on the final phrase of the rule: “for fraud upon the court.” Jensen argues that the phrase modifies only the clause that immediately precedes it—“to set aside a judgment”—and thus the rule permits actions “to relieve a party from a judgment, order or proceeding” based on causes of action other than fraud. The district court and Cannon disagree, concluding that “for fraud upon the court” modifies the entire provision, meaning the only claim recognizable in an independent action for relief from judgment is fraud.

¶35      Neither party dissects the grammar of the sentence; each simply insists his or her interpretation is the right one. And, in fairness, the sentence could perhaps be read either way.[5] But this issue does not come to us on a blank slate. Our supreme court has previously endorsed the viability of independent actions for relief from a judgment on grounds other than fraud. Thus, on this point we agree with Jensen.

¶36      In St. Pierre v. Edmonds, 645 P.2d 615 (Utah 1982), the court acknowledged the district court’s power to entertain an independent action predicated on “duress” arising out of the “physical and mental intimidation” directed at the appellant by the other party in the underlying suit. Id. at 618–20. And in Gillmor v. Wright, 850 P.2d 431 (Utah 1993), the court recognized accident and mutual mistake as grounds on which an independent action may be asserted in equity under rule 60.[6] Id. at 435–36. In fact, the Gillmor court rejected the appellant’s reading of St. Pierre as providing that “an independent action in equity is justified only when particularly egregious behavior has resulted in an unconscionable judgment or order.” Id. at 435. Observing that “St. Pierre involved allegations of fraud upon the court,” the court explained, “The case did not state that an independent action will only lie for such claims or that such an action is no longer viable to remedy errors based on mutual mistakes of fact in legal descriptions.” Id. In support, the court pointed to its reliance in St. Pierre on federal treatises for the proposition that although “relief from a judgment by an independent action on the basis of accident or mistake is less common than relief on the basis of fraud,” “both accident and mistake afford the basis for relief in an appropriate situation.” Id. at 435–36 (cleaned up); see also 11 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2868 (3d ed. 2012) (explaining that under federal rule 60(d), “[r]esort to an independent action may be had only rarely, and then only under unusual and exceptional circumstances,” and that while “[t]he most common ground for an independent action is fraud, . . . the action also will lie on the basis of mistake”).

¶37      Although Gillmor and St. Pierre compel us to conclude that “fraud upon the court” is not the only basis for relief from judgment in an independent action, Jensen has not persuaded us that her negligence-based claims are a viable basis for such relief. Rather, our courts have generally rejected the idea that claims akin to negligence are adequate to wage an independent collateral attack on a judgment.

¶38      In this respect, the decision in Christensen v. Christensen, 619 P.2d 1372 (Utah 1980), is noteworthy. There, the court rejected an appellant’s attempt to set aside an award of property to her former husband based on a claim of negligent misrepresentation. Id. at 1372–74. The appellant had originally argued in her independent action that her ex-husband had fraudulently misrepresented the value of certain property—an apartment complex—during the divorce proceedings. Id. at 1372–73. After the district court ruled against her on the fraud claim, she argued that “even though [the ex-husband’s] conduct did not constitute fraud, the Court should have modified the original decree and given her part of the equity in the apartment complex in light of the disparity between the actual value of the property and the value she was led to believe that it had at that time.” Id. at 1373. The supreme court rejected her claim. Left with only “an alleged nonfraudulent misrepresentation by the [ex-husband],” the court held that “[s]uch facts would not justify . . . overturning a stipulated property settlement and redistributing the property.” Id. The court expressed sympathy for the appellant’s position but affirmed the district court, stating that it “[could not] now upset a stipulated property settlement because of her having relied upon values furnished by her husband in an adversary proceeding.” Id. at 1373–74.

¶39      To the extent Jensen seeks to rely on an alleged negligent misrepresentation during the course of her divorce proceeding, in our view, there is no basis on which to distinguish this case from Christensen. At the very least, we are aware of no case in Utah (nor has Jensen directed us to one) where a court has permitted a collateral attack on a judgment through an independent action raising only negligence-based claims.[7] Like in Christensen, Jensen may have been mistaken as to the value of her stipulated property settlement due to the alleged negligent misrepresentations of her husband, but such facts are inadequate to relieve her from the divorce decree. See id.; see also Pepper, 801 P.2d at 150–51 (explaining that while rule 60(b) “sets forth several grounds for setting aside a judgment by motion,” several of those grounds “would not be an adequate ground for an independent collateral attack on a judgment,” such as relief sought due to excusable neglect); Beagley v. Spurling, No. 981515-CA, 1998 WL 1758335, at *1 (Utah Ct. App. 1998) (per curiam) (stating that rule 60 “does not authorize an independent action asserting the grounds enumerated” in rule 60(b) and that “several grounds for setting aside a judgment by motion would not be an adequate ground for an independent attack on a judgment” (cleaned up)). For these reasons, we conclude that the district court did not err in dismissing Jensen’s non-fraud claims.

II. Cannon’s Cross-appeal

¶40      In his cross-appeal, Cannon challenges the district court’s denial of both his request for bad faith attorney fees under Utah Code section 78B-5-825 and his motion for sanctions under rule 11 of the Utah Rules of Civil Procedure. He also requests an award of attorney fees on appeal pursuant to rule 33 of the Utah Rules of Appellate Procedure. We address each issue below.

A. Bad Faith Attorney Fees

¶41      Cannon challenges the district court’s denial of fees under section 78B-5-825, claiming that the district court’s finding “that the case was brought in good faith” is clearly erroneous. (Cleaned up.) To prove his claim, he characterizes the “entire case” as “a fishing expedition and an excuse to engage [him] in expensive, stressful litigation for a decade.” He also assigns bad-faith motives to Jensen, pointing generally to Jensen’s failure to actively pursue her case for many years following the filing of her first complaint.

¶42      To receive an award of attorney fees under section 78B-5-825, the moving party bears the burden of proving “two distinct elements,” namely, that the claim lacks merit and that the action was not brought in good faith. In re Discipline of Sonnenreich, 2004 UT 3, ¶ 46, 86 P.3d 712. Good faith, for purposes of the latter element, is defined as having “(1) an honest belief in the propriety of the activities in question; (2) no intent to take unconscionable advantage of others; and (3) no intent to, or knowledge of[,] the fact that the activities in question will hinder, delay, or defraud others.” Id. ¶ 48 (cleaned up). “To establish a lack of good faith, or ‘bad faith’ under section [78B-5-825], a party must prove that one or more of these factors is lacking.” Id.

¶43      We conclude that Cannon has not demonstrated that the district court erred by denying his request for attorney fees. As the party requesting fees under section 78B-5-825, Cannon bore the burden of proving that Jensen brought this action in bad faith. And although Cannon posits and ascribes to Jensen bad-faith motives favorable to his position, he relies exclusively on accusation and points to no record evidence demonstrating that Jensen did not believe in the propriety of her claims or that she filed this action with the intent to “hinder, delay, or defraud.” See id. (cleaned up). For example, Cannon complains that Jensen did not meaningfully investigate her claims until filing this action in 2016, but he cites no supporting evidence and fails to tie even the allegation to the applicable standard. Similarly, Cannon’s generic complaints about Jensen’s failure to actively prosecute her 2009 case do little to establish that she filed the present case in bad faith.

¶44      We review the district court’s finding regarding bad faith for clear error, Bresee v. Barton, 2016 UT App 220, ¶ 15, 387 P.3d 536, and will reverse that finding only if it is “against the clear weight of the evidence” or “we otherwise reach a firm conviction that a mistake has been made,” Grimm v. DxNA LLC, 2018 UT App 115, ¶ 12, 427 P.3d 571 (cleaned up). While litigating with Jensen over the course of the last decade has undoubtedly been expensive and frustrating for Cannon, his arguments have not persuaded us that the court clearly erred in finding that Jensen brought this action in good faith.[8]

B. Rule 11 Sanctions

¶45      Cannon next argues that the district court erred in denying his motion for sanctions against Jensen under rule 11 of the Utah Rules of Civil Procedure. He contends that Jensen’s motion in limine regarding spoliation contained a baseless allegation lacking evidentiary support—that the Option Agreement was “in writing at one point,” but “no longer exists” because Cannon “intentionally destroyed [it].” See Utah R. Civ. P. 11(b)(3) (providing that, by filing a motion with the court, the attorney certifies “that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, . . . the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery”).

¶46      The district court denied Cannon’s motion because it determined that while “there may not be direct evidentiary support for the contention” that Cannon spoliated a written version of the Option Agreement, “there are inferences” that could support that position. The court reached this conclusion by considering the circumstances surrounding the Option Agreement, including the parties to the contract and their experience, as well as the type of contract involved and statute of frauds considerations. In this respect, the court stated that while it did not view Jensen’s spoliation motion to be a “good motion,” it did not believe the motion rose to the level of a rule 11 violation.

¶47      On appeal, Cannon assails the court’s denial of his motion, arguing that by accusing him of spoliation, Jensen necessarily asserted that he “intentionally and inappropriately” destroyed the Option Agreement document and that sanctions are merited for such an assertion because it was “baseless.”[9] Cannon also contends that because Jensen “permitted so many years to go by” before actively prosecuting her case, she could not “in good faith” ask the district court to infer that Cannon spoliated a decades-old document. We disagree.

¶48      Our courts have explained that “rule 11(b)(3) sets a relatively low standard requiring some factual basis after a reasonable inquiry, permitting sanctions against plaintiffs only for bringing a claim merely founded on innuendo and suspicion.” Heartwood Home Health & Hospice LLC v. Huber, 2020 UT App 13, ¶¶ 36–37, 39–40, 459 P.3d 1060 (cleaned up) (vacating rule 11 sanctions related to a failure to withdraw certain claims where, despite the fact that the claims were “anemic,” they nevertheless “had not become plainly frivolous or completely lacking in evidentiary support”); see also Morse v. Packer, 2000 UT 86, ¶¶ 28–29, 15 P.3d 1021 (explaining that rule 11 sanctions should not be imposed “whenever there are factual errors” but that they should be reserved for “misstatements” that are “significant” and “critical,” and concluding that sanctions were appropriate where, given the record, “a statement in [a] pleading . . . clearly lacked evidentiary support” (cleaned up)).

¶49      At the outset, we are not persuaded that Jensen’s spoliation motion was tantamount to an accusation of an intentional and inappropriate destruction of the Option Agreement. For one thing, nowhere in her motion in limine, seeking sanctions under rule 37, did Jensen accuse Cannon of acting in bad faith. For another, the premise underlying Cannon’s argument—that a spoliation accusation necessarily implies a bad faith motive—is not sound. As this court has explained, “a party who destroys or conceals relevant evidence need not do so willfully or in bad faith to trigger the penalties outlined in rule 37.” Ockey v. Club Jam, 2014 UT App 126, ¶ 11, 328 P.3d 880; see also Daynight, LLC v. Mobilight, Inc., 2011 UT App 28, ¶ 2, 248 P.3d 1010 (explaining that spoliation “is on a qualitatively different level than a simple discovery abuse” and that a spoliation determination “does not require a finding of willfulness, bad faith, fault or persistent dilatory tactics or the violation of court orders before a court may sanction a party” (cleaned up)).

¶50 We also agree with the district court that given the type of agreement involved—an option related to the sale of real estate involving sophisticated players—Jensen’s allegations of a written Option Agreement and its spoliation did not clearly lack evidentiary support. Rather, the motion presented a colorable argument based on inferences that could be drawn from the circumstances surrounding the agreement’s genesis. And other than suggesting that the court ought to have adopted an inference that Jensen’s dilatory conduct contributed to the destruction of any Option Agreement document and pointing to circumstances he believes to be favorable to his position, Cannon does not engage with the court’s actual reasoning on the issue or the evidence supporting its rule 11 determination. See Federated Cap. Corp. v. Shaw, 2018 UT App 120, ¶ 20, 428 P.3d 12 (explaining that an appellant who “does not meaningfully engage with the district court’s reasoning” necessarily “falls short of demonstrating any error on the part of the district court”). Thus, although her claim was ultimately unsuccessful, we conclude that it was not frivolous of Jensen to argue to the district court that “there would be something in writing” memorializing the Option Agreement and that Cannon had a hand in failing to preserve it.

¶51 Because Cannon has not persuaded us that the district court erred by denying his request for rule 11 sanctions, we affirm the court’s resolution of the motion.

C. Rule 33 Fees on Appeal

¶52     Finally, Cannon requests his attorney fees on appeal pursuant to rule 33 of the Utah Rules of Appellate Procedure. Rule 33(a) provides that when an “appeal taken under these rules is either frivolous or for delay, [the appellate court] shall award just damages, which may include . . . reasonable attorney fees, to the prevailing party.” The imposition of sanctions under rule 33 is a serious matter, “only to be used in egregious cases.” Pyper v. Reil, 2018 UT App 200, ¶ 28 n.3, 437 P.3d 493 (cleaned up). While Jensen may not have prevailed on her appellate claims, this is not an egregious case. Thus, we decline to award Cannon his attorney fees on appeal.

CONCLUSION

¶53 We affirm on the issues raised by Jensen’s appeal. First, we conclude that the district court appropriately determined that Jensen did not establish her fraudulent nondisclosure claims. Second, we conclude that the court properly dismissed Jensen’s negligence-based claims under rule 60 of the Utah Rules of Civil Procedure.

¶54      We also affirm on the issues raised by Cannon’s cross-appeal. Specifically, we affirm the district court’s denial of Cannon’s request for bad faith attorney fees and his motion for sanctions pursuant to rule 11 of the Utah Rules of Civil Procedure.

HARRIS, Judge (concurring in part, and concurring in the result):

¶55      I concur without reservation in Parts I.B. and II of the majority opinion. That is, I agree with the majority’s disposition of Cannon’s cross-appeal, as well as with the majority’s explanation of why the district court was correct to dismiss Jensen’s non-fraud claims on summary judgment. But I cannot sign on to the majority’s analysis in Part I.A., regarding Jensen’s claim for fraudulent nondisclosure, because in my view the majority adds a fourth element to our supreme court’s three-element test for establishing fraudulent nondisclosure under Utah law. Nevertheless, I concur in the result reached by the majority, because I am persuaded that the district court correctly dismissed Jensen’s fraudulent nondisclosure claim on the alternative ground that it was barred by the doctrine of laches.

I.

¶56      In the course of analyzing whether the district court properly dismissed Jensen’s claim for fraudulent nondisclosure, we are called upon to interpret our supreme court’s statements in Anderson v. Kriser, 2011 UT 66, 266 P.3d 819, and apply those statements to the facts of this case. As an introductory matter, I readily acknowledge that Anderson, as applied to the question presented here, is difficult to interpret, and that it may well be that our supreme court intended Anderson to read as the majority has interpreted it. But I read Anderson differently, and perceive therein an intent by our supreme court to set out a broader version of the fraudulent nondisclosure tort, and I write separately in an effort to articulate that interpretation. Ultimately, this may be an instance in which our supreme court may need to take an appropriate opportunity to clarify its intentions regarding the contours of the fraudulent nondisclosure tort.

¶57      In my view, our supreme court has articulated the tort of fraudulent nondisclosure as containing three elements—not four. At the outset of its analysis, the majority correctly recites those elements. See supra ¶ 16 (citing Anderson, 2011 UT 66, ¶ 22). They are as follows: “(1) the defendant had a legal duty to communicate information; (2) the defendant knew of the information he failed to disclose; and (3) the nondisclosed information was material.”[10] Anderson, 2011 UT 66, ¶ 22 (cleaned up). In every case in which our supreme court has discussed fraudulent nondisclosure, it has described the tort as being comprised of these same three elements. See, e.g., Hess v. Canberra Dev. Co., 2011 UT 22, ¶ 29, 254 P.3d 161; Mitchell v. Christensen, 2001 UT 80, ¶ 9, 31 P.3d 572. To my knowledge, the court has never described this tort as containing a fourth element.

¶58      Yet both the district court as well as the majority in this case tack on a new fourth element never before discussed as such by any Utah appellate opinion.[11] According to the majority, a plaintiff who wishes to make out a valid claim for fraudulent nondisclosure must not only satisfy the three listed elements, but in addition must also prove that the defendant had a “willful intent to deceive” the plaintiff. See supra ¶¶ 22–23. In my view, the addition of this fourth element is unsupported by existing Utah Supreme Court precedent.

¶59      I have no quarrel with the majority’s observation— supported by Anderson—that fraudulent nondisclosure is an intentional tort, and that such torts are generally distinguished from non-intentional torts by the “mental state of the defendant that the plaintiff must establish in order to prevail.” See Anderson, 2011 UT 66, ¶¶ 25–26. But I read Anderson as explaining that the three elements, as listed, have an intent requirement already baked into them, and that a plaintiff who satisfies all three listed elements has raised a sufficient inference that the defendant acted intentionally.[12] Id. ¶ 26. In this way, the three listed elements already distinguish the tort from its negligence-based cousin; no unlisted fourth element is necessary for this purpose.

¶60         As the court explained in Anderson, “fraudulent intent is

often difficult to prove by direct evidence” and, “[b]ecause of this difficulty,” in other contexts—citing specifically to criminal theft and bankruptcy nondischargeability cases, see id. ¶ 26 n.26—“fraudulent intent is often inferred based on the totality of the circumstances in a case.” Id. ¶ 26. The court then explained that, in the specific context of a fraudulent nondisclosure claim, “fraudulent intent may be inferred” when the three listed elements of the tort are met, that is, “when a plaintiff demonstrates that a defendant had actual knowledge of a material fact and that the defendant failed to disclose that fact.” Id. The court explained that this formulation of the tort sufficiently distinguishes it from the tort of negligent nondisclosure, which does not require a plaintiff to demonstrate the defendant had actual knowledge of the material information, but instead merely requires a showing that the defendant should have been aware of the material information. See id.

¶61      In my view, this formulation of the tort is not only sufficiently distinct from negligent nondisclosure, but it is also— as the majority acknowledges, supra ¶ 19—consistent with our law’s formulation of other similar intentional torts, such as constructive fraud. See Jensen v. IHC Hosps., Inc., 944 P.2d 327, 339 (Utah 1997) (stating that the tort of constructive fraud contains only “two elements: (i) a confidential relationship between the parties; and (ii) a failure to disclose material facts”). And—as the majority also acknowledges, supra ¶ 20—it is also consistent with the manner in which some other states formulate the elements of the fraudulent nondisclosure tort. See, e.g., Restatement (Second) of Torts §§ 550, 551 (Am. Law Inst. 1977) (describing the tort of “fraudulent concealment” as containing an explicit requirement that the defendant acted “intentionally,” but describing the tort of “fraudulent nondisclosure” as containing no such requirement).

¶62      The majority points out that our supreme court has used the terms “fraudulent concealment” and “fraudulent nondisclosure” more or less interchangeably, and has even noted that the elements of the two torts are “essentially the same,” see supra ¶ 21 (citing Anderson, 2011 UT 66, ¶ 22 n.11), and infers from that fact that the apparently-combined tort must look more like fraudulent concealment than fraudulent nondisclosure, and therefore must have a separate intent requirement. But it is just as easy to draw the opposite inference from the supreme court’s apparent merger of the two torts: that the merged tort looks more like fraudulent nondisclosure, as described in the Restatement, and does not have a separate intent requirement.[13] In my view, this inference is supported by the fact that, as noted above, our supreme court has, without exception, described this merged tort as containing three—and only three—elements, none of which contains an explicit intent requirement. This inference is also supported by the fact that, in certain other jurisdictions, the difference between fraudulent concealment and fraudulent nondisclosure is that the more active concealment tort requires a showing of “intent to mislead” but does not require a showing that there was any “duty to speak,” whereas the more passive nondisclosure tort requires a showing that there is a duty to speak but does not require a showing of intent to deceive. See United States v. Colton, 231 F.3d 890, 899 & n.2 (4th Cir. 2000) (citing cases). Because the tort, as articulated by our supreme court, contains a requirement that there be a duty to disclose, and contains no explicit requirement that there be intent to deceive, to my mind that tort appears a lot more like fraudulent nondisclosure than fraudulent concealment.

¶63      For all of these reasons, I would conclude that the district court erred by requiring Jensen to prove, as part of her fraudulent nondisclosure claim, that Cannon had a specific intent to deceive her. Jensen should only be required to prove the three elements of the tort listed in Anderson. Under my interpretation of that case, Jensen can make out a valid claim by demonstrating that Cannon had a duty to disclose the Riverton Corners property and the Option Agreement to Jensen during the divorce proceedings; that Cannon had actual knowledge of those assets; and that those assets were material. As our supreme court has explained, once those three elements are met, the district court “may . . . infer[]” the requisite level of intent on the part of Cannon. See Anderson, 2011 UT 66, ¶ 26.

¶64      If the majority had adopted my interpretation of Anderson—that the tort of fraudulent nondisclosure does not require a direct showing of intent to deceive—we would have had to confront a number of additional questions regarding the viability of Jensen’s fraudulent nondisclosure claim. First, we would have had to determine whether the “legal duty to communicate information” described in the first element of the tort, see id. ¶ 22 (cleaned up), includes discovery disclosure obligations imposed by rule 26 of the Utah Rules of Civil Procedure. I acknowledge that turning discovery violations into potential torts is something that could have negative unintended consequences, but discovery disclosure obligations are arguably “legal” duties, and other states have determined that pretrial disclosure obligations do qualify as the kind of duty that can trigger the tort, albeit perhaps with additional restrictions. See, e.g., Allstate Ins. Co. v. Dooley, 243 P.3d 197, 204–05 (Alaska 2010) (holding that “a cause of action for fraudulent concealment of evidence may be maintained in Alaska only when a plaintiff lacks another sufficient remedy,” because “most discovery violations can be appropriately addressed with our existing civil rules,” and because “the tort of fraudulent concealment of evidence [should] be available only when evidence is concealed until after judgment is entered and the time for seeking relief from judgment under Civil Rule 60(b) has expired”); Rosenblit v. Zimmerman, 766 A.2d 749, 757 (N.J. 2001) (describing a “slight modification” to the tort when it “occurs in a litigation context”).

¶65      Second, if discovery disclosure obligations qualify as legal duties for the purposes of the tort, we would then have had to determine whether Cannon had a duty to disclose the specific properties at issue here: the Riverton Corners property and the Option Agreement. Because the discovery rules obligated him to disclose his “assets” to Jensen, we would have then had to determine whether the Riverton Corners property and the Option Agreement were “assets” subject to Cannon’s disclosure obligation. That inquiry, in turn—at least with respect to the Riverton Corners property—may have required us to analyze partnership law, given Cannon’s defense that the Riverton Corners property did not belong to him or his partnership but, instead, belonged to his partner.[14]

¶66      Next, we may have had to confront other issues raised by Jensen in her appeal, including whether the district court properly excluded one of Jensen’s expert witnesses, and whether the district court correctly valued the Option Agreement.

II.

¶67      But I need not further explore these issues in this concurring opinion, because in my view the district court’s alternative disposition of Jensen’s claim for fraudulent nondisclosure—that Jensen’s suit was barred by the equitable doctrine of laches—was correct. On that basis, I concur in the result reached by the majority opinion.

¶68      The doctrine of laches “has two elements: (1) a party’s lack of diligence and (2) an injury resulting from that lack of diligence.” Insight Assets, Inc. v. Farias, 2013 UT 47, ¶ 19, 321 P.3d 1021 (cleaned up). As our supreme court has explained, “laches is based upon the maxim that equity aids the vigilant and not those who slumber on their rights.” Id. ¶ 17 (cleaned up). Accordingly, the doctrine of laches punishes plaintiffs whose litigation delays harm the other parties involved in a suit: “not mere delay, but delay that works a disadvantage to another,” is of “legal significance” in a laches analysis. Id. (cleaned up). The doctrine is an equitable one “founded upon considerations of time and injury.” Id. (cleaned up). At its essence, laches “is a negative equitable remedy which deprives one of some right or remedy to which he would otherwise be entitled, because his delay in seeking it has operated to the prejudice of another.” Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 2012 UT 66, ¶ 37, 289 P.3d 502 (cleaned up).

¶69      The language of the two-part laches test, as articulated by our supreme court, is broad. That test requires a defendant to demonstrate the existence of two elements: the plaintiff’s “lack of diligence,” and a resulting injury to the defendant. Insight Assets, 2013 UT 47, ¶ 19. So, although laches cases often turn on whether the plaintiff delayed in bringing suit in the first place, see Veysey v. Veysey, 2014 UT App 264, ¶ 16, 339 P.3d 131 (asking whether “the plaintiff unreasonably delayed in bringing an action” to fulfill the first laches element), the doctrine is not limited in application to only that circumstance. As our supreme court has explained, “laches is designed to shelter a prejudiced defendant from the difficulties of litigating meritorious claims after an unexplained delay,” Horne, 2012 UT 66, ¶ 37, and no Utah case of which I am aware has limited the definition of laches-triggering “delay” to the delay in filing the lawsuit in the first place.

¶70      Other courts have expressly recognized that the equitable doctrine of laches can apply when a litigant who files an otherwise-timely lawsuit takes an inordinately long time to prosecute it. See, e.g., Miller v. Bloomberg, 466 N.E.2d 1342, 1346 (Ill. App. Ct. 1984) (stating that “failure to prosecute an action after its commencement can also constitute laches”); Thompson v. State, 31 N.E.3d 1002, 1007 (Ind. Ct. App. 2015) (holding that the doctrine of laches applies to unreasonable delays in “prosecuting a . . . petition”); see also Atlas One Fin. Group, LLC v. Alarcon, No. 12-23400-Civ-COOKE/TURNOFF, 2014 WL 12570243, at *4 (S.D. Fla. Mar. 31, 2014) (“Under the doctrine of laches, a person otherwise entitled to relief may be barred from recovery if he has failed to bring or, having brought, has failed to prosecute, a suit for so long a time and under such circumstances that it would be inequitable to permit him now to prosecute the suit.”).

¶71      Accordingly, in my view the district court properly determined, as a legal matter, that the doctrine of laches can apply to situations in which a litigant takes an unreasonably long time to prosecute a lawsuit, and is not limited to situations in which a litigant unreasonably delays in filing one. See Veysey v. Nelson, 2017 UT App 77, ¶ 5, 397 P.3d 846 (“Whether laches applies is a question of law, which we review for correctness.”).

¶72      After it is established, as a legal matter, that the doctrine can apply in a particular case, the “application of laches to a particular set of facts and circumstances presents a mixed question of law and fact,” a framework whereunder “we review the [district] court’s conclusions of law for correctness and will disturb its findings of fact only if they are clearly erroneous.” Id. (cleaned up). In my view, the district court’s underlying factual findings regarding laches were not clearly erroneous, and the court did not err by concluding that Cannon was prejudiced by Jensen’s unreasonable delay in prosecuting the case.

¶73      The district court determined that the filing of Jensen’s lawsuit occurred within the applicable statute of limitations, and no party has appealed that determination. Accordingly, the district court does not appear to have held any pre-filing delay against Jensen in connection with its laches analysis. Instead, the court noted that, after the suit was filed, almost nothing occurred for some six years, resulting in multiple order-to-show-cause hearings before the suit was eventually dismissed, without prejudice. Another whole year passed before the suit was refiled, resulting in approximately seven years of post-filing delay that the district court attributed entirely to Jensen. The court found that, during that time, witnesses’ “memories faded and documents were destroyed in the normal course of purging old documents,” with the result that, when trial finally occurred, “the extreme passage of time had taken its toll,” and “witnesses who testified at trial sometimes struggled with remembering things,” including important things like whether certain agreements were ever reduced to writing. Reasoning from these factual findings, the court concluded that “[i]n a case as old as this, prejudice to the defendant can practically be presumed,” but found that, in this case, “there was also actual prejudice,” including witnesses with poor memories and documents that had been lost.

¶74      I discern no error in the district court’s findings or conclusions with regard to laches, and therefore I would affirm the court’s dismissal of Jensen’s fraudulent nondisclosure claim on that basis. I therefore concur in the result reached by the majority.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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[1] We read Cannon’s motion for rule 11 sanctions as against Jensen’s counsel rather than against Jensen herself. However, the parties on appeal treat the motion as though it were filed against Jensen, and we accordingly follow suit.

[2] Jensen also challenges the court’s conclusion regarding the duty element of her fraudulent nondisclosure claim. The court determined that Jensen “did not meet her burden of proof in establishing” that Cannon had a duty “to disclose any of the information she claimed he withheld.” However, because we ultimately affirm the district court’s conclusions with respect to the knowledge element of her claim, we have no need to address Jensen’s arguments regarding the other elements.

[3] On appeal, Jensen also asserts claims of error regarding related aspects of the court’s fraudulent nondisclosure rulings. Jensen challenges the court’s valuation of the Option Agreement, its assessment of Cannon’s ownership in the Riverton Corners property without reference to partnership law, and its exclusion of an amended expert report appraising the value of the Riverton Corners property. She additionally challenges the court’s alternative determination that all Jensen’s claims are barred by the doctrine of laches. However, because we affirm the court’s determination that Jensen did not establish her claims of fraudulent nondisclosure regarding the Option Agreement and the Riverton Corners property by clear and convincing evidence, we have no occasion to reach these other claims of error.

[4] Jensen’s non-fraud claims sound in negligence, contract, and equity. Yet on appeal, she makes no distinction between them and refers to them collectively as “causes of action based in negligence.” Thus, we follow Jensen’s lead and consider her four non-fraud claims collectively as based in negligence.

[5] The federal counterpart to Utah’s rule 60(d) appears to be clearer (at least grammatically) on this point, providing, “This rule does not limit a court’s power to: (1) entertain an independent action to relieve a party from a judgment, order, or proceeding; . . . or (3) set aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d).

[6] Although Gillmor and St. Pierre were decided under a previous version of rule 60, the previous rule’s provision for an independent action is nearly identical to the current rule 60(d). Compare Utah R. Civ. P. 60(d) (“This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding or to set aside a judgment for fraud upon the court.”), with Pepper v. Zions First Nat’l Bank, NA, 801 P.2d 144, 150 n.1 (Utah 1990) (setting forth the previous version of rule 60, which provided, at the end of subsection (b), “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding or to set aside a judgment for fraud upon the court” (cleaned up)).

[7] This view appears to be consistent with federal law interpreting and applying federal rule 60(d). See United States v. Beggerly, 524 U.S. 38, 47 (1998) (determining that allegations that the government “failed to thoroughly search its records and make full disclosure to the Court” regarding a land grant at issue did not “approach [the] demanding standard” such that “allow[ing] the judgment to stand” would work a “grave miscarriage of justice” (cleaned up)); Haik v. Salt Lake City Corp., No. 2:12-CV-997 TS, 2013 WL 968141, at *7–8 (D. Utah Mar. 12, 2013) (concluding that allegations that the defendants “failed to provide allegedly relevant information” with respect to change applications did “not meet the high burden necessary to bring an independent action,” as described in Beggerly), aff’d, 567 F. App’x 621 (10th Cir. 2014). See generally United States v. Buck, 281 F.3d 1336, 1341 (10th Cir. 2002) (stating that the “independent action” for relief under rule 60 is “a narrow avenue” that “should be available only to prevent a grave miscarriage of justice” (cleaned up)).

[8] Cannon also challenges the district court’s denial of bad faith attorney fees by arguing that Jensen’s action was meritless. However, because we have affirmed the court’s good faith determination, it is unnecessary for us to address whether Jensen’s case lacked merit. See Utah Code Ann. § 78B-5-825(1) (LexisNexis 2018) (providing that a district court shall award bad faith attorney fees if it concludes that the case was both without merit and brought in bad faith).

[9] In support of his rule 11 motion, Cannon claimed that Jensen’s “motion in limine accuses [him] of intentionally destroying evidence with the purpose of harming his ex-wife.” In other words, the premise of the rule 11 motion was that Jensen had accused Cannon of intentionally destroying the Option Agreement in bad faith.

[10] The district court did not correctly recite the three elements. It misstated the first element by proclaiming that the duty in question had to be a “fiduciary duty,” which is a contention unsupported by any case law of which I am aware. As our supreme court articulates this element, the duty in question does not necessarily have to be “fiduciary” in nature. See, e.g., Anderson v. Kriser, 2011 UT 66, ¶ 22, 266 P.3d 819. The district court also misstated the third element, articulating that element as an “intentional failure to disclose to plaintiff’s detriment.” As discussed generally herein, our supreme court has never included “intent to deceive” or “intentional failure to disclose” as one of the elements of the tort of fraudulent nondisclosure.

[11] I recognize that one local federal court recently held, like the majority does here, that under Utah law, the tort of fraudulent nondisclosure has a fourth element, holding that—in addition to the three elements recited by the Utah Supreme Court—a plaintiff “must also show clear and convincing proof of intent to deceive.” See Marcantel v. Michael & Sonja Saltman Family Trust, No. 2:16-cv-250-DBP, 2019 WL 1262648, at *5 (D. Utah Mar. 19, 2019). In my view, the federal court’s analysis suffers from the same potential infirmities as the majority’s.

[12] The majority reads Anderson differently, offering its viewpoint that a district court is not required to draw such an inference, even where all three elements are otherwise met. See  supra ¶ 27. But if that’s true, then there exists a separate inquiry, beyond the three listed elements, that a district court must undertake: namely, examining whether an intent inference should be drawn on the facts of the particular case. This looks a lot like a fourth element to me, even though the majority maintains that it has “not added a fourth element to the tort of fraudulent nondisclosure.” See supra ¶ 24.

[13] I also note that our supreme court does not appear to have yet been confronted with a case that required it to squarely address the question of whether, and to what extent, the two torts (fraudulent concealment and fraudulent nondisclosure) are separate under Utah law, and therefore acknowledge the limited utility of the inferences drawn here by both the majority’s opinion and mine.

[14] Both the majority and the district court framed the question as “whether satisfaction of the knowledge element requires that Cannon knew of the Option Agreement and the Riverton Corners property in the abstract or that he knew that the properties were assets as defined by Jensen’s discovery requests.” See supra ¶ 26. But I read Anderson as having answered that question: the “knowledge” necessary to satisfy the second element is simply knowledge “of the information he failed to disclose,” Anderson, 2011 UT 66, ¶ 22 (cleaned up), and not necessarily knowledge of whether the information in question had to be disclosed. Here, Cannon had actual knowledge of the properties, and may therefore be liable under Anderson if the properties actually were his assets and he failed to disclose them.

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In re Adoption of B.H. – 2020 UT 64 – UCCJE and ICPC

This opinion is subject to revision before final publication in the Pacific Reporter

2020 UT 64

IN THE SUPREME COURT OF THE STATE OF UTAH

In the Matter of the Adoption of B.H.,
a person under eighteen years of age

P.H. and A.D., Respondents,

v.

C.S., Petitioner.

No. 20190560
Heard April 10, 2020
Filed September 16, 2020

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake
The Honorable Robert P. Faust
No. 162900039

Attorneys:
Jessica S. Couser, Holladay, Benjamin K. Lusty, Salt Lake City, for respondents
Julie J. Nelson, Salt Lake City, Lisa B. Lokken, Cottonwood Heights, for petitioner

JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.
JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION

¶1 This case involves an interstate adoption. At the time of the child’s birth, the child’s mother (Mother) was a Montana resident and gave birth to the child there. Mother chose to place the child for adoption with two Utah residents, the Respondents (Adoptive Parents). Because the adoption involved an interstate placement of the child, Mother and Adoptive Parents were required to comply with the Interstate Compact on the Placement of Children (ICPC). UTAH CODE §§ 62a-4a-701 to -711.

¶2 Mother and Adoptive Parents followed the ICPC process. However, on a required ICPC request form, Mother did not list the Petitioner (Father) as the child’s father, even though he was her husband at the time and therefore the child’s legal father. Mother and Father had been separated for quite some time, and she believed he was not the child’s biological father. On the request form, she listed as the child’s father the man she believed to be the biological father.

¶3 Adoptive Parents filed an adoption petition in Utah district court. After taking temporary custody of the child in Montana, they returned with the child to Utah. They soon learned that Mother might still be married to Father, and they served him with notice of the adoption petition. Father successfully intervened in the proceeding and sought custody of the child. Adoptive Parents petitioned to terminate Father’s parental rights within the adoption proceeding. In the meantime, a genetic test revealed that Father was not only the child’s legal father, he was the child’s biological father as well.

¶4 The district court held a bench trial and concluded that Father had abandoned the child and was an unfit parent. The court terminated his parental rights and then finalized the adoption. Father appealed.

¶5 Father argued in the court of appeals that the district court lacked jurisdiction over the termination proceeding under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). UTAH CODE §§ 78B-13-101 to –318. Father also argued that Mother’s failure to include him on the ICPC request form invalidated the adoption. The court of appeals rejected both arguments. But it set aside the adoption decree because it did not state that the requirements of the ICPC had been complied with, as required by the Adoption Act.[1] Accordingly, the court of appeals remanded to the district court for the court to address this insufficiency.

¶6 We granted Father’s petition for certiorari. We affirm.
BACKGROUND[2]

¶7 Mother and Father, both residents of Montana, were married in 2008. They eventually separated. Mother planned to file for divorce but had not yet done so when she learned she was pregnant. She was unsure who the biological father was, but she believed it was likely a man named D.G. She ultimately decided to place her child for adoption with Adoptive Parents, who are Utah residents. At the time of the adoption petition, Mother was legally married to Father.

¶8 Adoptive Parents filed a petition for adoption in Utah district court. The child was born in Montana four days later. Adoptive Parents traveled to Montana and were at the hospital within hours of the birth.

¶9 Because the adoption would involve placement of the child across state lines, the parties to the adoption were required to comply with the ICPC. Mother completed ICPC form 100A, titled Interstate Compact on the Placement of Children Request (request form). Notably, on the request form Mother identified D.G. as the child’s father. Both Mother and D.G. voluntarily relinquished their parental rights.

¶10 Mother appointed Adoptive Parents as temporary guardians. Once the child was discharged from the hospital, Adoptive Parents took custody of the child. They stayed for a few days in a Montana hotel before returning to Utah with the child. They moved for temporary custody in the Utah district court in which they had filed the adoption petition. The court granted the motion, effective as of the child’s date of birth.

¶11 Around this time, Adoptive Parents learned that Mother might still be married. They quickly sent notice of the adoption proceedings to Father. Father timely moved to intervene in the case. And the district court granted the motion.

¶12 While the adoption proceeding was pending in Utah, Father filed for divorce in Montana and listed the child “as a child of the marriage.” The Montana court ordered genetic testing of Father and the child pursuant to Montana law. The genetic test revealed that Father was the child’s biological father.

¶13 Adoptive Parents petitioned to terminate Father’s parental rights within the Utah adoption proceeding, pursuant to Utah Code sections 78B-6-112[3] and -133 of the Utah Adoption Act (Adoption Act). The district court held a bench trial on the termination petition. But the court paused before issuing its ruling and asked the parties to brief whether the court had jurisdiction to terminate Father’s parental rights in light of his Montana residency.[4]

¶14 Adoptive Parents argued that the district court had subject matter jurisdiction over the termination proceeding pursuant to the Adoption Act because the termination was “for the purpose of facilitating the adoption of the child.” (Citing UTAH CODE § 78B-6-112(1)).

¶15 In response to the district court’s briefing request, Father contested the court’s subject matter jurisdiction for the first time. He asserted that jurisdiction was governed not by the Adoption Act but by the UCCJEA. And he argued that under the UCCJEA, Montana was the child’s home state and should have jurisdiction over the termination proceeding. Father also asserted that because his name was not on the request form, the placement did not comply with the ICPC. According to Father, this was a jurisdictional defect.

¶16 The district court did not explicitly rule on the parties’ briefing. But it ultimately exercised jurisdiction over the termination proceeding. It ruled on the merits of the termination petition, finding that Father had abandoned the child and was an unfit parent due to his alcohol abuse, drug addiction, and extensive criminal history, among other things. The court then finalized the adoption.

¶17 In the adoption decree and the accompanying findings of fact and conclusions of law, the district court did not explicitly conclude that the requirements of the ICPC had been met, as required by the Adoption Act. See id. § 78B-6-107(1)(a). However, the district court did make some findings relevant to ICPC compliance, including that “[t]he pre-placement and post-placement adoptive evaluations have been filed with the Court, and they confirm that the adopting parents are fit to parent [the child]” and “Mother’s Relinquishment and ICPC forms from Montana have been filed with the court.” The court concluded that “[t]he requirements of [the Adoption Act] have been met.”

¶18 Father appealed. He argued that “Utah cannot terminate a parent’s rights in the context of an adoption without that court having acquired jurisdiction to do so under the UCCJEA.” In re Adoption of B.H., 2019 UT App 103, ¶ 16, 447 P.3d 110. As the court of appeals explained, “Father contends that, under these facts, jurisdiction under the UCCJEA is a prerequisite to jurisdiction under the Adoption Act.” Id.

¶19 The court of appeals rejected this argument. It noted that the UCCJEA explicitly states that it does not govern adoption proceedings. Id. ¶ 17. And it concluded that the Adoption Act “expressly confers subject matter jurisdiction to terminate parental rights for the purpose of facilitating an adoption.” Id. ¶ 12 (citing UTAH CODE § 78B-6-112(1)).

¶20 Father also asserted that the adoption was invalid because Mother failed to comply with the ICPC when she did not list him as the child’s father on the request form. The court of appeals agreed that this was a material deficiency, but it concluded it was not a jurisdictional defect. In re Adoption of B.H., 2019 UT App 103, ¶ 28. The court noted, however, that the Adoption Act requires that a final decree of adoption state that the ICPC “ha[s] been complied with.” Id. ¶ 26. Because the district court failed to make such a conclusion, the court of appeals set aside the decree. Id. ¶ 30. It remanded to the district court for additional factfinding regarding ICPC compliance. Id. It also stated that, if necessary, Adoptive Parents could “still undertake steps to comply with the ICPC prior to reinstating the adoption decree.” Id. ¶ 27 n.7.

¶21 Father petitioned for certiorari, which we granted. We exercise jurisdiction under Utah Code section 78A-3-102(3)(a).

ISSUES AND STANDARD OF REVIEW

¶22 The questions before us are: (1) whether the court of appeals erred in concluding compliance with the UCCJEA is not a prerequisite to a termination of parental rights within an adoption proceeding and in concluding the requirements of the UCCJEA would have been met in this case if it applied, and (2) whether the court of appeals erred in remanding for a determination of compliance with the ICPC.

¶23 “On certiorari, this court reviews the decision of the court of appeals for correctness, giving no deference to its conclusions of law.” State v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650.

ANALYSIS

¶24 Father argues that the court of appeals erred in concluding that the UCCJEA did not apply to the termination petition and the district court had subject matter jurisdiction based solely on the Adoption Act. We agree with the court of appeals that the UCCJEA does not govern jurisdiction over a termination petition brought under the Adoption Act.

¶25 Father also argues that the district court lacked subject matter jurisdiction because Mother failed to comply with the ICPC. Here as well, we agree with the court of appeals. The ICPC deficiency was not a jurisdictional defect. The ICPC does not purport to regulate jurisdiction among party states. And in the event of a violation of its terms, the remedy it provides is the potential for punishment of the alleged violator. It does not provide for the revocation of a child placement or the loss of jurisdiction in the receiving state.

¶26 We first address the applicability of the UCCJEA.

I. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

¶27 Father argues that the UCCJEA governs jurisdiction over the termination proceeding and that it confers jurisdiction upon Montana, not Utah. As the court of appeals observed, the UCCJEA states clearly that it does not apply to proceedings under the Adoption Act. UTAH CODE § 78B-13-103(2)(a). The premise of Father’s argument is that the termination of his parental rights is separate from the adoption proceeding, and that it falls under the Termination of Parental Rights Act. See id. §§ 78A-6-501 to –515. Specifically, Father asserts “Utah cannot terminate an out-of-state parent’s rights under the Termination of Parental Rights Act without the Utah court first having acquired jurisdiction to do so under the UCCJEA, even if the termination is in anticipation of an adoption.”

¶28 When a child custody determination involves parties from more than one state, the UCCJEA “exists to ‘[a]void jurisdictional competition and conflict with courts of other States.’” Nevares v. Adoptive Couple, 2016 UT 39, ¶ 11, 384 P.3d 213 (alteration in original) (citation omitted). Specifically, “the UCCJEA promotes a framework wherein a single state is vested with jurisdiction to make child custody determinations.” Id. And “a uniform set of rules . . . determine[s] which state is best positioned to adjudicate custody disputes.” Id. Under the UCCJEA, a court can exercise jurisdiction over an “initial child custody determination” if it is determined to be the “home state”[5] of the child, or in other limited circumstances. UTAH CODE § 78B­13-201(1). Once a state has exercised jurisdiction under the UCCJEA, that state has “exclusive, continuing jurisdiction” until neither the child nor a parent resides in the state, or the child and parents no longer have significant connections to the state. Id. § 78B-13-202(1). Father argues that Montana is the child’s home state under the UCCJEA, and therefore Utah lacks subject matter jurisdiction to terminate his parental rights.

¶29 Proceedings to terminate parental rights are considered “child custody proceedings” that are subject to the UCCJEA. Id. § 78B-13-102(4) (defining “child custody proceeding” to include termination of parental rights). So the UCCJEA would apply to a termination petition filed under the Termination of Parental Rights Act.

¶30 However, the UCCJEA expressly does not govern “an adoption proceeding.” Id. § 78B-13-103(2)(a). And it defines an adoption proceeding broadly as “any proceeding under Title 78B, Chapter 6, Part 1, Utah Adoption Act.” Id. § 78B-13-103(1). Adoptive Parents filed the termination petition under sections 112 and 133 of the Adoption Act, which provide a mechanism for termination of a person’s parental rights in connection with a contested adoption. Id. §§ 78B-6-112(1), (5), -133. The termination petition may either be “joined with a proceeding on an adoption petition,” id. § 78B-6-112(2)(a), or filed as a separate petition before or after the adoption petition is filed, id. § 78B-6-112(2)(b). But as Father notes, the grounds for termination are those found in the Termination of Parental Rights Act. See id. § 78B-6-112(5)(e).

¶31 Accordingly, the question before us is whether a termination petition filed under the Adoption Act is a “proceeding under [the Adoption Act],” which is not governed by the UCCJEA, or a proceeding under the Termination of Parental Rights Act, which is governed by the UCCJEA. This is a matter of statutory interpretation. The point of statutory interpretation “is to ascertain the intent of the legislature.” Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (citation omitted). Because the best evidence of legislative intent is the statute’s plain language, we begin there. Id.

¶32 Since we are assessing the interaction of two statutes, it is important to evaluate the statutory framework as a whole. We first examine the procedural and substantive features of a termination proceeding under the Termination of Parental Rights Act, and then make a comparison to a similar proceeding brought under subsections 112 and 133 of the Adoption Act.

A. Termination under the Termination of Parental Rights Act

¶33 Under the Termination of Parental Rights Act, “[a]ny interested party . . . may file a petition for termination of the parent-child relationship with regard to a child.”[6] UTAH CODE § 78A-6-504(1). Such a petition must be brought in the juvenile court. Id. § 78A-6-103(2)(e) (providing that “[t]he juvenile court has original jurisdiction over any proceeding concerning . . . the termination of the legal parent-child relationship in accordance with [the] . . . Termination of Parental Rights Act, including termination of residual parental rights and duties”).

¶34 After a petition has been filed, the petitioner must provide notice to “the parents, the guardian, the person or agency having legal custody of the child, and any person acting in loco parentis to the child.” Id. § 78A-6-506(1)(a). The notice must indicate the “(i) nature of the petition; (ii) time and place of the hearing; (iii) right to counsel; and (iv) right to appointment of counsel for a party whom the court determines is indigent and at risk of losing the party’s parental rights.” Id. § 78A-6-506(1)(b). Importantly, a parent whose rights are subject to being terminated is automatically a party to the proceeding and no intervention is required. See id. § 78A-6-506.

¶35 If the juvenile court terminates a parent’s rights in a child, the Termination of Parental Rights Act contemplates continued juvenile court involvement to find a permanent placement for the child.[7] Until that happens, the Act provides for review hearings at which the “agency or individual vested with custody of the child” reports on the “plan for permanent placement of the child” until the plan has been accomplished. Id. § 78A-6-512(2).

¶36 And although a termination “divests the child and the parents of all legal rights, powers, immunities, duties, and obligations with respect to each other,” id. § 78A-6-513(1), a termination under the Termination of Parental Rights Act does not completely foreclose reunification. A parent whose parental rights have been terminated may seek guardianship and reunification with the child under certain circumstances. Id. § 78A-6-511(6).

B. Termination under the Adoption Act

¶37 Conceptually, the Adoption Act treats the termination of any pre-existing parental rights in the child as part of an adoption. The Act defines an “adoption” not only as the creation of the relationship between the child and the adoptive parents, but also as the termination of the legal relationship between the child and any other person. Id. § 78B-6-103(2) (defining adoption as “the judicial act that: (a) creates the relationship of parent and child where it did not previously exist; and (b) . . . terminates the parental rights of any other person with respect to the child”).[8] In harmony with this definition of “adoption,” the Adoption Act provides a mechanism not only for the creation of a new parent-child relationship, but also for the termination of any other person’s rights in the child. In connection with the adoption of a child, a court has jurisdiction to terminate another person’s rights in the child if the person voluntarily relinquishes their parental rights, fails to intervene in the proceeding, is an unmarried biological father who has failed to perfect his parental rights, or the court determines the person is not the child’s parent. Id. § 78B-6-112(5)(a)–(d). And relevant here, if a person whose consent is required contests the adoption, the Act provides a mechanism for determining whether the person’s rights should be terminated. Id. §§ 78B-6-112(5)(e), -133.

¶38 A termination proceeding brought under the Adoption Act is procedurally different than such a proceeding brought under the Termination of Parental Rights Act. Notably, the Adoption Act provides that “a petition filed under [section 112] is subject to the procedural requirements of this chapter.” Id. § 78B­6-112(8).

¶39 First, jurisdiction varies between termination petitions brought under the two laws. As discussed, proceedings brought under the Termination of Parental Rights Act are within the juvenile court’s exclusive jurisdiction. Id. § 78A-6-103(2)(e). But termination petitions brought in connection with a contested adoption may be handled in the district court. Id. § 78B-6-112(1). A district court has jurisdiction over a termination proceeding only if it is brought to facilitate the adoption of a child. Id.

¶40 Additionally, the manner in which a parent whose rights are subject to termination learns of and becomes a party to the termination proceeding varies based on whether the petition arises under the Adoption Act or the Termination of Parental Rights Act. As explained above, supra ¶ 34, when a petition is filed under the Termination of Parental Rights Act, the petitioner must give notice to a parent whose rights are subject to termination. And the parent is automatically a party to the proceeding. Supra ¶ 34.

¶41 But that is not the case when the termination arises under the Adoption Act. A person in Father’s position, who is the presumed father of the child, must receive notice of the adoption petition. UTAH CODE § 78B-6-110(2)(a), (h). The required content of this notice differs from that required by the Termination of Parental Rights Act. Compare id. § 78B-6-110(5), with id. § 78A-6-506(1)(b). The Adoption Act requires that the notice contain specific information unique to an adoption proceeding, including: (1) the intervention requirements in subsection 110(6)(a);[9] (2) the consequences for failing to intervene listed in subsection 110(6)(b);[10] and (3) where a copy of the petition for adoption may be acquired. Id. § 78B-6-110(5)(c)– (d), (f).

¶42 Although a presumed father of a child must be notified of an adoption petition, he is not automatically a party to the adoption proceeding. He must move to intervene. Id. § 78B-6­110(6)(a). And “[a]n individual who files a motion to intervene in an adoption proceeding . . . is not a party to the adoption proceeding, unless the motion to intervene is granted.” Id. § 78B-6-141(5)(a)(i). Unlike a proceeding under the Termination of Parental Rights Act, if the presumed father does not intervene the court may terminate his rights in the child without him ever being a party to the proceeding. Id. § 78B-6-112(5)(c).

¶43 Finally, in some ways the two laws provide for substantively different proceedings. The proceedings are similar in that the grounds for termination are the same under both acts. See id. §§ 78A-6-507, 78B-6-112(5)(e). The Adoption Act cross-references the factors that are found in the Termination of Parental Rights Act. Id. § 78B-6-112(5)(e).

¶44 But because terminations under the Termination of Parental Rights Act do not necessarily include a permanent placement for the child, that Act contemplates continued juvenile court review hearings until a permanent placement is found. Supra ¶ 35. And it does not completely foreclose reunification. Supra ¶ 36.

¶45 In contrast, when parental rights are terminated under the Adoption Act and the court enters an adoption decree, that Act does not provide for continued court involvement. A new parent-child relationship has been formed. Id. § 78B-6-103(2)(a)– (b). The former parent’s rights in and obligations to the child are extinguished. Id. § 78B-6-138. And there is no provision for reunification with the parent whose rights were terminated.

¶46 In sum, when a potential adoptive parent petitions for a termination of another’s parental rights under the Adoption Act, except for the cross-reference to the grounds for termination, the petitioner follows the provisions of the Adoption Act, not the parallel provisions of the Termination of Parental Rights Act. And in numerous ways, those provisions are different.

C. Adoptive Parents’ Petition

¶47 Here, Adoptive Parents filed the petition to terminate Father’s parental rights under the Adoption Act. See id. §§ 78B-6-112(1), -133. It was filed in the district court as part of the adoption proceeding. See id. § 78B-6-112(2)(a). The district court had jurisdiction over the termination proceeding only because Adoptive Parents sought the termination to facilitate the adoption of the child. See id. § 78B-6-112(1). Adoptive Parents initially notified Father of the adoption petition as required by the Adoption Act. See id. § 78B-6-110(2), (5). And Father had to move to intervene to be included in the proceeding. See id. § 78B-6­110(6)(a). He was not automatically a party as he would have been had the termination been brought under the Termination of Parental Rights Act.

¶48 Yet Father argues the termination is a proceeding under the Termination of Parental Rights Act, even though it was brought under the Adoption Act, because the Adoption Act references the grounds for termination outlined in the Termination of Parental Rights Act.[11] See id. § 78B-6-112(5)(e). We disagree with Father’s reasoning. The Adoption Act’s cross-reference to the grounds for termination found in the other act does not mean that a contested termination brought under the Adoption Act actually arises under the Termination of Parental Rights Act. See Anderson v. Anderson, 416 P.2d 308, 309–10 (Utah 1966) (concluding where one statute merely cross-references another statute, the entirety of that referenced statute is not necessarily incorporated into the other). It means only that the same considerations apply whenever a termination is sought, whether or not it is in connection with an adoption. The cross-reference to the shared grounds for termination does not take this proceeding outside of the Adoption Act.

¶49 We conclude that the language and structure of the Adoption Act make clear that a termination petition such as the one here, which is brought under sections 112 and 133 in connection with an adoption, is a proceeding under the Adoption Act. The Adoption Act contemplates that an adoption involves both the judicial act that “creates the relationship of parent and child where it did not previously exist,” and “terminates the parental rights of any other person with respect to the child.” UTAH CODE § 78B-6-103(2). And the Act establishes a particular framework that permits potential adoptive parents to petition for termination if the adoption is contested.[12] Id. §§ 78B-6-112, -133.

¶50 Accordingly, we conclude that the instant termination petition and related proceedings are “adoption proceedings” as defined in the UCCJEA. We affirm the court of appeals’ determination that the UCCJEA does not govern subject matter jurisdiction here. Because we find the UCCJEA inapplicable, we do not address whether the court of appeals erred in concluding that the requirements of that statute would have been met if it did apply.

II. INTERSTATE COMPACT ON THE PLACEMENT OF

CHILDREN

¶51 We now address Father’s argument that the court of appeals erred in remanding the case to the district court for supplemental factfinding regarding compliance with the ICPC. The court of appeals concluded that Mother’s ICPC request form was defective because she listed D.G. instead of Father as the child’s father. In re Adoption of B.H., 2019 UT App 103, ¶ 28, 447 P.3d 110. But the court held that this defect did not deprive the district court of jurisdiction or otherwise require dismissal of the adoption petition. Id. However, because the district court did not include a conclusion that the ICPC “ha[d] been complied with” in the adoption decree— as required by the Adoption Act, UTAH CODE § 78B-6-107(1)(a)—the court of appeals set aside the decree. In re Adoption of B.H., 2019 UT App 103, ¶ 30. It then remanded to the district court for additional factfinding, and if necessary to give Adoptive Parents an opportunity to cure the ICPC deficiency before moving for reinstatement of the decree. Id. ¶ 27 n.7. Neither party has contested the court of appeals’ determination that the ICPC request was materially defective, so that issue is not before us.

¶52 Father contends it was error for the court of appeals to remand to the district court for additional factfinding and to permit the Adoptive Parents to cure the ICPC deficiency if necessary. He asserts that the ICPC must be complied with before filing an adoption petition and that the failure to do so constitutes an irreparable jurisdictional defect. He contends that because the ICPC notice was defective, Mother’s attempt to invoke the jurisdiction of Utah courts is invalid and the deficiency can no longer be cured.[13] Father asserts that this means Montana has jurisdiction over the child and that any new ICPC request must be filed in Montana.

¶53 We agree with the court of appeals that the deficient ICPC request form does not deprive the Utah court of jurisdiction. A reading of the ICPC reveals that it does not purport to govern jurisdiction among party states or strip jurisdiction from a receiving state as a remedy for a violation of its terms.

¶54 The ICPC “provides a uniform legal framework for the placement of children across State lines in foster homes and[] adoptive homes.” CRS REPORT FOR CONGRESS, RL32070, INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN: ICPC, 1 (2003). It is a compact among party states[14] “to cooperate with each other in the interstate placement of children” to ensure that (1) children requiring placement “receive the maximum opportunity to be placed in a suitable environment”; (2) the receiving state “may have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child”; (3) the sending state “may obtain the most complete information on the basis of which to evaluate a projected placement before it is made”; and (4) “[a]ppropriate jurisdictional arrangements for the care of the children will be promoted.” UTAH CODE § 62A-4a-701 art. I(1)–(4). Its “chief function . . . is to protect the interests of children and of the States by requiring that certain procedures be followed in the making and the maintenance of interstate child placements.” CRS REPORT FOR CONGRESS, RL32070, INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN: ICPC, 1 (2003).

¶55 To this end, the ICPC requires that a “sending agency” comply with its terms and with any applicable laws of the receiving state that govern the placement of children in that state. UTAH CODE § 62A-4a-701 art. III(1). A “sending agency” is:

[A] party state, officer, or employee thereof; a subdivision of a party state, or officer or employee thereof; a court of a party state; a person, corporation, association, Indian tribe, charitable agency, or other entity which sends, brings, or causes to be sent or brought any child to another party state.

Id. § 62A-4a-701 art. II(2). Here, Mother is the “sending agency” because she is the “person” who caused the child to be sent to Utah with Adoptive Parents.

¶56 Father is correct that Mother was required to comply with the ICPC before sending the child to Utah with Adoptive Parents. See id. § 62A-4a-701 art. III(2) (requiring compliance “[p]rior to sending, bringing, or causing any child to be sent or brought into a receiving state for placement”).

¶57 However, it does not follow that her deficient attempt to do so constitutes an irreparable jurisdictional defect. The ICPC addresses the consequences of a failure to comply with its terms, and none of them involve transferring jurisdiction over the child from the receiving state to the sending state or reversing a child placement. The ICPC provides that a violation of its provisions constitutes a violation of “the laws respecting the placement of children” of both the sending state and the receiving state. Id. § 62A-4a-701 art. IV. And such a violation “may be punished or subjected to penalty in either jurisdiction in accordance with its laws.” Id. Father does not identify a law in either state that would require a reversal of the placement or a loss of jurisdiction in Utah under the circumstances here.

¶58 Additionally, the ICPC provides that in the case of a violation by a sending agency, “any violation shall constitute full and sufficient grounds for the suspension or revocation of any license, permit, or other legal authorization held by the sending agency which empowers or allows it to place, or care for children.” Id. Notably, this provision focuses on penalties and punishments directed at the noncompliant entity. It does not provide for reversing the placement that resulted from the violative behavior or the loss of jurisdiction over the child in the receiving state. We agree with the court of appeals that the penalties for noncompliance contemplated in the ICPC do not “divest the district court of jurisdiction.” In re Adoption of B.H., 2019 UT App 103, ¶ 28.

¶59 Father also asserts that because Mother’s attempt to invoke the jurisdiction of Utah courts was lacking, the sending jurisdiction retains jurisdiction. But that is incorrect. One provision of the ICPC speaks to “retention of jurisdiction.” See UTAH CODE § 62A-4a-701 art. V. It states,

The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment, and disposition of the child which it would have had if the child had remained in the sending agency’s state, until the child is adopted, reaches majority, becomes self-supporting, or is discharged with the concurrence of the appropriate authority in the receiving state.

Id. § 62A-4a-701 art. V(1) (emphasis added). This preserves the sending agency’s jurisdiction over the child, not the sending state’s jurisdiction over the child.[15] Here, that is Mother; not Montana.[16]

¶60 Father also argues that because the Adoption Act requires compliance with the ICPC, the adoption is invalid because of the defective ICPC request. Father is correct that the Adoption Act requires compliance with the ICPC. See id. § 78B-6-107(1)(a) (stating “in any adoption proceeding . . . the court’s final decree of adoption shall state that the requirements of [the ICPC] have been complied with”). However, the Adoption Act does not provide for a dismissal of the adoption petition or a loss of jurisdiction as a result of noncompliance.

¶61 The provision of the Adoption Act that most closely addresses the circumstances here functions similarly to the ICPC— it provides for remedies against the alleged wrongdoer. Utah Code section 78B-6-106(2) states,

Any person injured by fraudulent representations or actions in connection with an adoption is entitled to pursue civil or criminal penalties in accordance with existing law. A fraudulent representation is not a defense to strict compliance with the requirements of this chapter and is not a basis for dismissal of a petition for adoption, vacation of an adoption decree, or an automatic grant of custody to the offended party. Custody determinations shall be based on the best interests of the child, in accordance with the provisions of Section 78B-6-133.

(Emphasis added.) Accordingly, even assuming Mother knowingly made a fraudulent misrepresentation on the ICPC request form, the Adoption Act explicitly rejects dismissal of the petition or transfer of custody to Father as a consequence.

¶62 We agree with the court of appeals that the ICPC deficiency in this case is not a jurisdictional defect. Neither the ICPC nor the Adoption Act provides for a loss of jurisdiction in the Utah district court or a dismissal of the adoption petition under these circumstances.

¶63 Even so, we also agree with the court of appeals that it is necessary to set aside the adoption decree in its current form and remand to the district court for further proceedings. The Adoption Act requires that the district court state in the adoption decree that the ICPC was complied with. And although the district court concluded that the requirements of the Adoption Act had been met, the court did not support this conclusion with the necessary determination of ICPC compliance.

¶64 As we have explained, this deficiency is not a jurisdictional defect. Neither the ICPC nor the Adoption Act requires dismissal of the petition or a loss of jurisdiction in the district court. But the fact remains that the district court’s conclusions of law in support of the adoption decree are insufficient. Accordingly, we set aside the decree and remand to the district court for further proceedings. We leave the form and scope of those proceedings to the district court’s discretion.

CONCLUSION

¶65 We affirm. We agree with the court of appeals that the Adoption Act rather than the UCCJEA governs subject matter jurisdiction over the termination petition. Accordingly, the district court had subject matter jurisdiction over this proceeding. We also conclude that the deficient ICPC request form is not a jurisdictional defect under the ICPC or the Adoption Act. However, the district court’s conclusions of law in support of the adoption decree were inadequate. We set aside the adoption decree and remand to the district court for further proceedings consistent with this opinion.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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[1] The Adoption Act requires that, “the court’s final decree of adoption shall state that the requirements of Title 62A, Chapter 4a, Part 7, Interstate Compact on Placement of Children, have been complied with.” UTAH CODE § 78B-6-107(1)(a).

[2] “On appeal from a bench trial, we view and recite the evidence in the light most favorable to the trial court’s findings.” Utah State Tax Comm’n v. See’s Candies, Inc., 2018 UT 57, ¶ 5 n.2, 435 P.3d 147 (citation omitted).

[3] This provision has since been amended by 2020 Utah Laws Ch. 392 (S.B. 170). However, the changes to this section are not substantive, so we cite to the current version of the code.

[4] The parties briefed both subject matter and personal jurisdiction and some additional arguments that they do not raise on appeal. We describe only the arguments that are relevant to the issues before us.

[5] A “home state” is defined as:

[T]he state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

UTAH CODE § 78B-13-102(7).

[6] However, if the petition to terminate parental rights is brought on behalf of the Division of Child and Family Services, it must be brought by the attorney general. UTAH CODE § 78A-6­504(2).

[7] The court may “place the child in the legal custody and guardianship of a licensed child placement agency or the division for adoption” or “make any other disposition of the child authorized under Section 78A-6-117.” Id. § 78A-6-511(2). And if a suitable adoptive placement is not available, the juvenile court must determine whether there is a relative who desires to adopt the child; may order a search to determine whether there are relatives who are willing to adopt the child; and if such a relative is located, make a finding as to whether the relative is fit to adopt the child, and place the child for adoption with the relative unless it is not in the child’s best interest to do so. Id. § 78A-6-511(4).

[8] We note the definition includes two exceptions that apply to an adoption by a person who is married to one of the biological parents. As that is not the situation here, we do not address those exceptions.

[9] Id. § 78B-6-110(6)(a) (“A person who has been served with notice of an adoption proceeding and who wishes to contest the adoption shall file a motion to intervene in the adoption proceeding: (i) within 30 days after the day on which the person was served with notice of the adoption proceeding; (ii) setting forth specific relief sought; and (iii) accompanied by a memorandum specifying the factual and legal grounds upon which the motion is based.”).

[10] Id. § 78B-6-110(6)(b) (“A person who fails to fully and strictly comply with all of the requirements described in Subsection (6)(a) within 30 days after the day on which the person was served with notice of the adoption proceeding: (i) waives any right to further notice in connection with the adoption; (ii) forfeits all rights in relation to the adoptee; and (iii) is barred from thereafter bringing or maintaining any action to assert any interest in the adoptee.”).

[11] He acknowledges that certain types of termination arise under the Adoption Act—for example, a voluntary relinquishment or a failure to intervene. Id. § 78B-6-112(5)(a)–(c).

[12] Father argues that if we conclude the Adoption Act unambiguously permits the district court to exercise its jurisdiction to terminate an out-of-state parent’s parental rights without first complying with the UCCJEA, we should reject such a reading as absurd. We “will not apply the absurdity doctrine unless ‘the operation of the plain language . . . [is] so overwhelmingly absurd that no rational legislator could have intended the statute to operate in such a manner.’” Bagley v. Bagley, 2016 UT 48, ¶ 28, 387 P.3d 1000 (alterations in original) (citation omitted). So the absurdity doctrine applies “only if the legislature could not reasonably have intended the result.” Id. But it appears that the legislature did intend for Utah district courts to exercise jurisdiction over adoption proceedings potentially involving out-of-state individuals whose consent is required, such as Father. The Adoption Act states that “[i]f a person whose consent for the adoption is required . . . cannot be found within the state, the fact of the minor’s presence within the state shall confer jurisdiction on the court in proceedings under this chapter as to such absent person,” provided the person was given proper notice. UTAH CODE § 78B-6-105(4)(a). Service of notice also vests the court with jurisdiction over the person. Id. § 78B-6-105(5). Of course, in such circumstances the person whose consent is required will not necessarily give it. This provision seems to necessarily contemplate Utah courts exercising jurisdiction in an adoption proceeding involving an out-of-state person whose consent is required, which could lead to a contested termination proceeding. Accordingly, we reject Father’s absurdity argument.

[13] The court of appeals also observed that Mother might have complied with the ICPC through a cover letter that identified Father as her husband, but this document was not submitted in the district court. So Father argues that the court of appeals should not have remarked upon this letter. We do not consider this letter in our analysis.

[14] The ICPC “is a statutory agreement between all [fifty] states, the District of Columbia and the US Virgin Islands.” Am. Pub. Hum. Servs. Ass’n, ICPC FAQ’S,

https://aphsa.org/AAICPC/AAICPC/icpc_faq_2.aspx#:~:text=T%20he%20Interstate%20Compact%20on%20the%20Placement%20of%%2020Children%20(ICPC)%20is,and%20the%20US%20Virgin%20Islan%20ds.&text=It%20sets%20forth%20the%20requirements,be%20place%20d%20out%20of%20state%20(last%20visited%20July%2023,%202020). (last visited July 23, 2020).

[15] 15 This provision is concerned with the child’s care, not jurisdiction between member states. It preserves the sending agency’s jurisdiction over and financial responsibility for the child until another individual or entity, including the child, assumes responsibility for the child or the child “is discharged with the concurrence of the appropriate authority in the receiving state.” UTAH CODE § 62A-4a-701 art. V(1).

[16] 16 Father relies on In re Adoption of T. M. M. for support. 608 P.2d 130 (Mont. 1980). In that case, the prospective adoptive parents did not comply with the ICPC at all. Id. at 133. The biological mother, who had relinquished her parental rights, challenged the adoption and sought to revoke her own relinquishment. Id. at 132. The Montana Supreme Court held that “the failure of the prospective adoptive parents to comply with the terms and procedures of the [ICPC] constitute[d] full and sufficient grounds for the revocation of the parent’s consent.” Id. at 134 (internal quotation marks omitted). The Montana Supreme Court appears to have equated the revocation of the mother’s consent with the “suspension or revocation of any license, permit, or other legal authorization held by the sending agency.” Id. (citation omitted). We are not inclined to adopt this interpretation of the language of the ICPC.

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In re K.T.B. – 2020 UT 51 Utah Code § 78B-6-110 strict compliance unconstitutional

2020 UT 51 – In re K.T.B.

This opinion is subject to revision before final publication in the Pacific Reporter

IN THE SUPREME COURT OF THE STATE OF UTAH
IN THE MATTER OF THE ADOPTION OF K.T.B
A PERSON UNDER EIGHTEEN YEARS OF AGE
V.B., Appellant,
v.
A.S.A. and J.K.A., Appellees.

No. 20150821
Heard May 12, 2017
Remand Disposition Received March 8, 2018
Filed July 21, 2020

On Direct Appeal
First District, Logan
The Honorable Kevin K. Allen
No. 152100025

Attorneys:
Diane Pitcher, Ryan L. Holdaway, Logan, for appellant
Paul H. Gosnell, Logan, for Appellees

CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which JUSTICE HIMONAS and JUSTICE PEARCE joined.
JUSTICE PETERSEN filed a separate opinion concurring in the result.
ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1      This is an adoption case. In 2010, V.B. (Mother) gave birth to K.T.B. Sometime later, K.T.B. went to live with A.S.A. and J.K.A. (collectively, the Adoptive Parents) and has lived with them ever

 

IN RE K.T.B.

Opinion of the Court

since. In early June 2015, the Adoptive Parents filed an adoption petition in the district court and served notice of the proceeding on Mother. The notice informed Mother that she had thirty days to file a motion to intervene in the case or she would forfeit her parental rights in K.T.B. and would be barred from participating further in the adoption proceeding.

¶2 Mother attempted to intervene, but due to a procedural deficiency in the document she filed with the district court, the court struck her filing and excluded her from the adoption proceeding. Mother then filed a rule 60(b) motion seeking relief from the court’s order to strike. Around this time, J.N.—Mother’s common-law husband—filed his own motion to intervene, asserting, based on his judicially recognized common-law marriage to Mother, that he is K.T.B.’s presumptive father. The district court denied both motions.

¶3 On appeal, Mother challenges the constitutionality of Utah’s Adoption Act.1 Specifically, she argues that the Adoption Act’s structure, which permits a district court to terminate parental rights if the parent does not “fully and strictly comply” with the statutory requirements, is unconstitutional as applied to her.2 We agree with Mother on substantive due process grounds, so we reverse the district court’s order striking Mother’s filing.

¶4 Additionally, J.N. argues that the district court erred in denying his motion to intervene because the Adoption Act entitles him to certain rights as K.T.B.’s presumptive father. But because J.N. had not obtained judicial recognition of his common-law marriage at the time the Adoptive Parents filed their adoption petition, the Adoptive Parents had no obligation to serve him with notice. Instead, he was presumed to be on notice that an adoption could occur and was obligated to file a motion to intervene within thirty days of the Adoptive Parents’ petition. Because he failed to do so, his motion to intervene was untimely and the district court did not err in denying it.

Background

¶5 Mother gave birth to K.T.B. in September 2010. His biological father is unknown. In 2013, K.T.B. went to live with the Adoptive Parents. The Adoptive Parents became his legal guardians in June 2014 and one year later they petitioned the district court to terminate Mother’s parental rights and allow them to adopt K.T.B. Shortly thereafter, the Adoptive Parents served

Mother with a notice of the adoption proceedings in accordance with Utah Code section 78B-6-110.3

¶6 The notice informed Mother that she had thirty days to intervene or contest the adoption. It explained that her response must be in the form of “a motion to intervene[,] which shall set forth the specific relief sought[] and shall be accompanied by a memorandum specifying the factual and legal grounds upon which the motion is based.” It further stated that her failure to respond would “result in [her] waiver of any right to further notice of the proceeding,” would cause her to “forfeit any rights in relation to [K.T.B.],” and would “bar[] [her] from thereafter bringing or maintaining any action to assert any interest in [K.T.B.].”

¶7 Within thirty days of receiving the notice of the adoption proceeding, Mother filed an “Answer to Verified Petition for Termination of Parental Rights and for Adoption of Minor Child.” Her answer reads like a typical answer in a civil case—it addresses each allegation in the adoption petition separately, denying almost all of them. This included a denial of all of the Adoptive Parents’ allegations regarding her parental unfitness and lack of an emotional connection to K.T.B. Importantly, Mother did not include an accompanying memorandum “specifying the factual and legal grounds upon which the motion [was] based,” and at no place in the answer did she make legal or factual assertions beyond conclusory admissions or denials of the allegations contained in the adoption petition.

¶8 Additionally, in the answer’s prayer for relief, Mother requested “[t]hat petitioners take nothing by way of their Petition,” her reasonable attorney fees, and any other relief the court deemed just and appropriate to award.

¶9 After thirty days, the Adoptive Parents asked the district court to strike Mother’s answer because she did not comply with the requirements of section 110 of the Adoption Act. Citing section 110’s strict compliance requirement, the district court granted the Adoptive Parents’ request by striking Mother’s answer. The court explained that the “Answer was not accompanied by a memorandum supporting intervention.” And it “also did not ‘set forth specific relief sought’” because the only relief sought was that

“Petitioners take nothing by way of their Petition.” According to the court, this did not qualify as a request to intervene in the adoption, nor did it meet the statutory requirement that the relief be “specific.”

¶10 Once the court struck the answer, it concluded that Mother had failed to intervene within the time allotted by section 110. Due to this failure, the court ruled that Mother had “waived any right to further notice in connection with the adoption,” had “forfeited all rights in relation to the adoptee,” and was “barred [t]hereafter from bringing or maintaining any action to assert any interest in the adoptee.” It also found that because she failed to intervene, her consent to the adoption could be implied under section 120.1.4

¶11 One month after Mother’s exclusion from the adoption proceeding, the court entered findings of fact and conclusions of law, determining that Mother had forfeited her right to consent under sections 110 and 1125 and, alternatively, that she had implied her consent under section 120.1 by failing to file a timely motion to intervene. Because the court barred her from participating in the adoption proceeding, she could not present evidence to rebut any of the Adoptive Parents’ claims.

¶12 Mother challenged the district court’s order by filing a motion for relief from the order under rule 60(b) of the Utah Rules of Civil Procedure, but the court denied this motion. The court again relied upon Mother’s failure to comply with section 110 as its basis for excluding her from the adoption proceeding.

¶13 Around the same time that Mother filed her rule 60(b) motion, J.N.—Mother’s common-law husband—filed a motion to intervene in the adoption. In the motion, J.N. argued that the recent judicial recognition of his common-law marriage to Mother established his role as K.T.B.’s presumptive father. The court denied this motion as well. Both Mother and J.N. timely filed notices of appeal.

¶14 On appeal, Mother argues that the district court’s application of Utah Code sections 78B-6-110, -112, and -120.1 violated her due process rights, both procedural and substantive, by depriving her of her fundamental right to parent K.T.B.6 And J.N. argues that the court abused its discretion when it denied his motion to intervene because the Adoption Act entitles him to notice of, and to intervene in, the adoption as K.T.B.’s presumptive father. After oral argument we temporarily remanded this case to the district court for a determination of the enforceability of a post-adoption settlement agreement entered into by the parties. The district court determined that the agreement was based on an illusory promise and was therefore unenforceable. On return from remand we must now resolve the case on the merits. We have jurisdiction pursuant to Utah Code section 78A-4-103(2)(h).

Standards of Review

¶15 Mother argues that the district court violated her right to due process because it applied certain provisions in Utah Code sections 78B-6-110, -112, and -120.1 to terminate her parental rights over her objection and without a finding of unfitness. “Constitutional issues, including questions regarding due process, are questions of law, and we review the lower court’s conclusions for correctness.”7

¶16 Additionally, J.N. argues that the court should have allowed him to intervene in the adoption proceedings after his common-law marriage to Mother was legally recognized. “A determination under rule 24(a)(1)” of the Utah Rules of Civil Procedure, “which permits intervention ‘when a statute confers an unconditional right to intervene,’ implicates two questions.”8 The first is “whether a particular statute affords a particular class of persons an unconditional intervention right.”9 This presents “a pure question of law because it involves abstract statutory construction. A district court would not be entitled to any deference to the extent it misinterpreted an intervention statute in the abstract.”10 And the second question is “whether a particular individual actually fits within the class of persons entitled to intervene under a statute.”11 This “presents a classic mixed question because it ‘involv[es] application of a legal standard to a set of facts unique to a particular case.’”12

Analysis

¶17 Mother argues that the “statutory scheme” of Utah’s Adoption Act13 is “constitutionally infirm” because it authorized the district court to violate her constitutional rights.14 Specifically, she argues that three sections of the Adoption Act—sections 110, 112, and 120.1 “operated together [to authorize the district court] to terminate a mother’s rights, over her objections, and without a finding of unfitness or best interest of the minor child.” No one disputes that provisions within the Adoption Act authorized the district court to terminate Mother’s parental rights. To determine whether this termination amounts to either a procedural or substantive due process violation, we first consider the Adoption Act’s statutory framework. We then analyze whether the district court violated Mother’s procedural or substantive due process rights when it terminated her parental rights pursuant to provisions within the Adoption Act. We ultimately conclude that the strict compliance requirement in section 110 of the Adoption Act is unconstitutional as applied to Mother.

¶18 Additionally, J.N. argues that the district court erred when it denied his motion to intervene because he was entitled to do so as K.T.B.’s presumptive father.15 Although he filed his motion almost four months after the Adoptive Parents filed their adoption petition, J.N. argues that it was nevertheless timely because he never received the notice to which he was entitled as K.T.B.’s presumptive father. But because J.N.’s marriage had not been legally recognized at the time the Adoptive Parents filed their petition, they were not obligated to serve J.N. with notice. Instead, J.N. was presumed to be on notice and had an obligation to file a motion to intervene within thirty days of the date the Adoptive Parents filed their petition.

  1. Framework of the Adoption Act

¶19 Under the Adoption Act, when individuals file a petition for adoption, they must serve notice of the adoption proceeding upon a number of specified people, including the adoptee’s biological mother.16 “A person who has been served with notice of an adoption proceeding and who wishes to contest the adoption [must] file a motion to intervene in the adoption proceeding . . . within 30 days after the day on which the person was served with notice.”17 This motion must “set[] forth specific relief sought” and be “accompanied by a memorandum specifying the factual and legal grounds upon which the motion is based.”18

¶20 If the biological mother fails to “fully and strictly comply with all of the requirements,” she “(i) waives any right to further notice in connection with the adoption; (ii) forfeits all rights in relation to the adoptee; and (iii) is barred from thereafter bringing or maintaining any action to assert any interest in the adoptee.”19 Under section 112, a district court may then terminate the mother’s parental rights in her child.20 And under section 120.1, the mother is deemed to have consented to the adoption or otherwise relinquished her rights in her child.21

¶21 Together, these three sections of the Adoption Act permitted the district court to terminate Mother’s parental rights over her objection and without a determination that she was an unfit parent. For this reason she argues that the Adoption Act is unconstitutional as applied to her.

  1. Mother’s Procedural Due Process Rights Were Not Violated

¶22 First, Mother argues that the Adoption Act authorized the district court to violate her procedural due process rights.22 “At its core, the due process guarantee is twofold—reasonable notice and an opportunity to be heard.”23 Because Mother fails to show that the Adoption Act authorized the district court to violate either of these guarantees, her procedural due process claim fails.

¶23 Mother’s right to reasonable notice was not infringed upon. “Before a right of property or other important interest is foreclosed as a result of state action, reasonable notice must be afforded.”24 On appeal, Mother admits that she received notice of the adoption proceeding and of her obligation to participate in it. Accordingly, her right to reasonable notice has not been violated.

¶24 What is less clear, however, is whether Mother received an adequate opportunity to be heard. As we have previously explained, “[m]ere notice is an empty gesture if it is not accompanied by a meaningful chance to make your case.”25 For this reason, “the Due Process Clause also guarantees . . . an opportunity to be heard at a meaningful time and in a meaningful manner.”26 In this case, the district court relied upon the strict compliance requirement in section 110 of the Adoption Act to deprive Mother of an opportunity to contest the termination of her parental rights to K.T.B., as well as K.T.B.’s subsequent adoption.

¶25 But the promise of an opportunity to be heard may be limited by reasonable procedural prerequisites.27 Thus if a statute of limitations, or some other procedural requirement, bars an individual from participating in a legal proceeding affecting his or her rights, a procedural due process violation has not occurred unless the “procedural bar can be shown to foreclose[] . . . meaningful access to the justice system.”28 “In past cases, we have found this standard to be met by a showing of impossibility.”29

¶26 The impossibility inquiry contemplates whether “the right to notice and an opportunity to be heard were ‘completely within [the affected person’s] control.’”30 In other words, if the plaintiff could have complied with the procedural requirement under the circumstances, compliance is possible, and the plaintiff’s access to the justice system has not been foreclosed. Thus where the statute “afford[s] a reasonable opportunity to comply with the statute,” the statute’s procedural requirements do not offend procedural due process.31

¶27 Two of our previous cases illustrate a proper impossibility determination. First, in Ellis v. Social Services Department of the Church of Jesus Christ of Latter-Day Saints,32 we upheld a putative father’s procedural due process claim challenging the requirements of the Adoption Act because his compliance with the law was shown to have been rendered “impossible” through no fault of his own.33 In that case, the adoptee’s biological father and mother were engaged to be married and both resided in California, but two weeks before the wedding the mother broke off the engagement.34 Then, just a few days before giving birth, the mother traveled to Utah from California without the father’s knowledge, where she placed the newborn for adoption (after representing to those involved that the father was unknown).35 After considering these facts we noted that due process requires a “reasonable opportunity to comply” with the statutory prerequisites to the establishment of a parental right.36 And because the father could not have complied with the Adoption Act’s procedural requirements under the facts alleged, we concluded that the requirements had violated the father’s due process rights.37

¶28 In contrast to our decision in Ellis is our decision in In re Adoption of J.S.38 In that case, the district court barred a putative father from intervening in an adoption because he failed to file a required paternity affidavit within the time the Adoption Act allotted.39 The father appealed the denial of his motion to intervene. As part of his procedural due process argument on appeal, the father blamed the deficiency in this filing on “his attorney’s failure to advise him that such an affidavit was required.”40 Because the father did not specify whether he was bringing a procedural or substantive due process challenge to the Adoption Act’s filing requirements, we were forced to speculate on the nature of his claim.41 We determined that his claim could not be characterized as a procedural due process challenge, because he claimed his procedural deficiency was due to “his counsel allegedly g[iving] him bad legal advice,” not due to an overly difficult procedural requirement.42 So our decision in In re Adoption of J.S. suggests that the failure to comply with a procedural requirement due to a mistake by an attorney cannot sustain a procedural due process claim under the impossibility inquiry.43

¶29 Like the procedural deficiency in In re Adoption of J.S., Mother’s failure to comply with the Adoption Act’s procedural requirements can be attributed to a mistake by legal counsel. Mother received notice under section 110 informing her of both what was required to intervene in the proceedings and what would happen if she did not intervene. Rather than file a motion to intervene within thirty days, she filed an answer to the Adoptive Parents’ petition, which the district court found did not satisfy section 110’s strict compliance requirement. Mother does not suggest that compliance was impossible or too difficult.44 In fact, compliance clearly was neither impossible nor too difficult because Mother was able to file a compliant motion to intervene immediately after the Adoptive Parents filed their motion to strike. So the only plausible explanation for the deficiencies in Mother’s original attempt to intervene is that her legal counsel misread or misunderstood section 110’s legal requirements.45 But as In re Adoption of J.S. illustrates, when the failure to comply with a “simple and straightforward” procedural requirement is due to legal counsel’s mistake, the procedural requirement has not foreclosed meaningful access to the justice system.46 Accordingly, Mother fails to show that the Adoption Act deprived her of her constitutional right to an opportunity to be heard.

¶30 Because Mother’s constitutional rights to reasonable notice and an opportunity to be heard were not violated, her procedural due process challenge of the Adoption Act fails.

III. Mother’s Substantive Due Process Rights Were Violated

Because Section 110’s Strict Compliance Requirement

is Not Narrowly Tailored

¶31 Mother also challenges the Adoption Act’s framework under the substantive component of the Due Process Clause. Such a claim is distinct from the procedural due process challenge analyzed above. In contrast to a procedural due process attack, a substantive challenge “involve[s] a broad-side attack on the fairness of the procedural bar or limitation, on the ground that the right foreclosed is so fundamental or important that it is protected from extinguishment.”47 In other words, a substantive due process challenge alleges that a procedural requirement is unfair because it improperly infringes an important right rather than because it operates to unfairly foreclose notice or a meaningful opportunity to be heard. So if a statute allows the state to improperly extinguish or foreclose a protected right, even if it does so through straightforward procedural requirements, it is unconstitutional under the substantive component of the Due Process Clause.

  1. The district court applied provisions of the Adoption Act
    to extinguish Mother’s fundamental right to parent K.T.B.

¶32 Whether a statute improperly allows the state to extinguish or foreclose a protected right depends on the nature of the right and its attendant standard of review. If the right infringed or foreclosed is a right we have deemed “fundamental,” we review the statute under our strict scrutiny standard.48 But if it is not fundamental, we review it under “the deferential, fallback standard of rationality or arbitrariness.”49

¶33 The importance of correctly characterizing the nature of the right at issue was illustrated in our recent decision in In re B.Y.50 In that case, we considered an unmarried biological father’s challenge to a “strict compliance provision of the Adoption Act.”51 We explained that this procedural provision of the Adoption Act had been challenged on procedural and substantive due process grounds.52 We then proceeded to analyze the procedural requirement under both frameworks.

¶34 First, we analyzed the claim on procedural due process grounds, determining that the claim failed because “it was not impossible” for the unmarried father to comply with the strict compliance provision at issue.53 This was the correct analysis for a procedural due process claim, and it is the same analysis we have applied to Mother’s procedural due process claim in this case.

¶35 After deciding the father’s procedural due process claim, we turned to his substantive one.54 And we appropriately commenced our substantive due process analysis by identifying the nature of the infringed right. We determined that the right infringed in that case was “merely provisional” because the plaintiff was an unmarried biological father who had failed to perfect his parental rights by following the procedures established in law.55 Because the unmarried biological father’s right did not rise to the level of a fundamental right, we considered the father’s claim under the more deferential rational-basis prong of the substantive due process analysis.56 Under this standard, we rejected the father’s claim because the procedural requirement that barred the father from participating in the adoption proceeding—a strict compliance provision—was “far from arbitrary.”57 Thus our decision in In re B.Y. hinged on the provisional nature of the unmarried father’s right and on the standard of review we applied to the statutory provision in question.

¶36 In contrast to the right at issue in In re B.Y., the right at issue in this case is fundamental. Although “[s]ome variation exists” among the parental rights of unmarried fathers depending on the steps they have taken to perfect their parental rights,58 “no similar variation exists” among the parental rights of unmarried mothers.59

¶37 Unmarried mothers “acquire parental rights—and the accompanying right to object to an adoption—as a result of the objective manifestation of the commitment to the child that is demonstrated by their decision to carry a child to term.”60 So even though an unmarried father may be required to comply with certain procedural requirements before his parental rights become fundamental, an unmarried mother’s parental rights are “vested”61 and “inherent”62 without her having to comply with the same procedural requirements.63 In fact, this court has held that the right of a mother “not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect is so fundamental to our society and so basic to our constitutional order . . . that it ranks among those rights referred to in Article I, [section] 25 of the Utah Constitution and the Ninth Amendment of the United States Constitution as being retained by the people.”64 In other words, mothers retain a fundamental right in their children regardless of a failure to comply with any state-prescribed procedure.65 And this right remains in effect absent “a showing of unfitness, abandonment, or substantial neglect.”66 So if a statute authorizes a court to terminate a mother’s parental rights without her consent or without proof of unfitness, abandonment, or neglect, a fundamental right has been infringed upon, and we determine the constitutionality of the infringing statute by reviewing it under the strict scrutiny standard.67

¶38 As applied in this case, the Adoption Act authorized the district court to terminate Mother’s parental rights without her consent and without proof of parental unfitness, abandonment, or neglect. Specifically, section 110 authorized the court to rule that Mother had “forfeit[ed] all rights in relation to the adoptee” because she failed “to fully and strictly comply with all of the requirements” listed in that section. And because she failed to strictly comply with the requirements of section 110, section 112 allowed the court to terminate her parental rights, and section 120.1 allowed the court to rule that she had lost her right to consent or object to the adoption.68

¶39 The Adoptive Parents argue, however, that Mother’s parental rights were not terminated by her failure to strictly comply with the Adoption Act’s procedural requirements. Instead, they assert that her parental rights were properly terminated after the district court considered relevant evidence at the uncontested adoption hearing held the following month.69 This argument fails because Mother had already been stripped of “all rights in relation to the adoptee”70—including the right to contest, or consent to, the adoption—by the time the court heard evidence relevant to a proper termination of parental rights.71 In other words, because the Adoption Act authorized the district court to bar Mother from participating in the adoption proceeding, Mother’s right to defend her parental rights was extinguished.72 So even if section 110’s strict compliance requirement did not immediately allow the court to extinguish the full spectrum of Mother’s parental rights, it nevertheless infringed in part on Mother’s parental rights by requiring the court to exclude her from the adoption proceeding and mandating the forfeiture of “all [her] rights in relation” to K.T.B.73

  1. As applied to this case, section 110’s strict compliance provision
    fails strict scrutiny review

¶40 Because the Adoption Act authorized the district court to terminate a fundamental right in this case, we must analyze it under the strict scrutiny standard.74 Under the strict scrutiny standard, “a fundamental right is protected except in the limited circumstance in which an infringement of it is shown to be ‘narrowly tailored’ to protect a ‘compelling governmental interest.’”75 Section 110’s strict compliance requirement fails this test.76 Even though the Adoption Act’s procedural requirements serve a number of compelling governmental interests, in this case the strict compliance requirement in section 110 was not necessary to protect those interests and therefore it is unconstitutional as applied to Mother.

¶41 Although we have previously recognized that the “strict laws” in the Adoption Act further the state’s interest in promoting prompt and stable adoptions,77 we have not yet considered the constitutionality of section 110’s strict compliance requirement under a strict scrutiny analysis.78 So even though we have previously concluded that section 110’s requirements are not merely arbitrary,79 we have not yet determined whether those requirements were necessary to achieve the state’s compelling adoption-related interests under the circumstances presented in this case. We do so now.

¶42 The State of Utah has a number of “compelling interest[s] in the adoption process.”80 First, “the state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner.”81 Second, it has an interest “in preventing the disruption of adoptive placements.”82 And third, it has an interest “in holding parents accountable for meeting the needs of children.”83 These interests satisfy the strict scrutiny standard’s “compelling interest” prong.84 Accordingly, we review section 110’s strict compliance requirement to determine if it is narrowly tailored to facilitate these interests.

¶43 Under strict scrutiny’s “narrowly tailored” prong, we must determine whether the “legitimate state purpose [could] be . . . more narrowly achieved.”85 In other words, we consider whether the challenged provisions were “necessary” to achieve the state’s purpose in facilitating a prompt and stable adoption of K.T.B., in preventing a disruption of that adoption, or in holding parents accountable for K.T.B.’s needs.86

¶44 Section 110 requires a person to “file a motion to intervene in the adoption proceeding.”87 If the person fails to intervene within thirty days, that person is excluded from the adoption proceeding going forward.88 This timely intervention requirement serves the state’s interest in providing prompt adoptions and in preventing their disruption by a parent who chose not to intervene but later reconsiders this decision.

¶45 As part of section 110’s intervention requirement, the motion to intervene must “set[] forth specific relief sought” and be “accompanied by a memorandum specifying the factual and legal grounds upon which the motion is based.”89 These sub-requirements serve section 110’s overarching purpose. They do so by (1) notifying the court and the petitioners of who will be contesting the adoption and (2) informing the court of the legal basis on which that person is entitled to intervene, thereby allowing the court to quickly weed out improper interveners. Mother’s attempt to intervene satisfied section 110’s overarching purpose as well as the underlying purposes of section 110’s filing requirements.

¶46 Mother filed an “Answer to Verified Petition for Termination of Parental Rights and for Adoption of Minor Child” within thirty days of receiving the notice of the adoption proceeding. And although her answer was not accompanied by a memorandum “specifying the factual and legal grounds upon which the was based,” she did admit in her answer that she was K.T.B.’s mother, as well as deny all of the factual allegations upon which the Adoptive Parents based their request to terminate her parental rights. Moreover, in the answer’s prayer for relief, Mother requested that the Adoptive Parents “take nothing by way of their Petition.”

¶47 This answer fulfilled the purposes of section 110’s motion to intervene requirement. First, we note that “it is the substance, not the labeling, of a motion that is dispositive in determining the character of the motion.”90 Based on the substance of Mother’s answer, the court and the Adoptive Parents knew or should have known that Mother wanted to participate in the proceeding in order to oppose the adoption. They also knew or should have known that Mother intended to participate by providing evidence to defend against the factual allegations they advanced in support of their request to terminate Mother’s parental rights. And because the answer was filed within thirty days, it did not hinder the state’s interest in facilitating a prompt adoption.

¶48 Second, the court’s interest in barring improper parties from the proceedings was not hindered by the procedural deficiencies in Mother’s answer. Mother is indisputably K.T.B.’s biological mother. And at oral argument before us, the Adoptive Parents conceded that timely motions to intervene brought by a biological mother are granted as a matter of course. Thus, even though Mother’s answer did not trigger scheduled briefing and oral argument as a motion to intervene would have done, the answer nevertheless fulfilled section 110’s purposes by alerting the court—and the Adoptive Parents—that K.T.B.’s biological mother sought to participate in the proceedings. Stated differently, in light of Mother’s unquestioned status as K.T.B.’s biological mother, the contents of the Adoptive Parents and Mother’s pleadings provided the district court with all of the information it needed to rule on the issue of Mother’s intervention. So in this case, section 110’s purposes were fulfilled by Mother’s attempt to intervene through her answer.

¶49 But section 110 also states that its requirements must be “fully and strictly” complied with.91 Despite the fact that Mother’s answer did not hinder the state’s compelling interests in promoting prompt and stable adoptions, the district court barred her from the adoption proceeding because she failed to strictly comply with section 110’s filing requirements. And this inevitably led the court to terminate all of Mother’s parental rights pursuant to section 112.

¶50 Because Mother’s timely filed answer—though not strictly compliant with section 110’s procedural sub-requirements— achieved everything section 110 is designed to achieve, we cannot say that the strict compliance requirement was necessary to achieve the state’s compelling adoption-related interests in this case. For this reason we hold that section 110’s strict compliance provision is unconstitutional as applied to Mother.92 Accordingly, we reverse

the district court’s decision to strike Mother’s answer and remand to the district court for further proceedings, in which Mother may participate, on the Adoptive Parents’ adoption petition.

  1. The arguments raised by the dissent are unpersuasive

¶51 The dissent disagrees with our resolution of Mother’s substantive due process claim. At its heart, the dissent’s disagreement stems from a different view of the right at issue. We contend that the right at issue is Mother’s fundamental right to parent—a right firmly rooted in our history and case law. Because we view the right at issue to be fundamental, any governmental infringement of that right is subject to strict scrutiny review.93 And in applying our well-established strict scrutiny test, we have determined that the state violated Mother’s fundamental parental rights when it terminated those rights despite Mother’s timely, and substantially compliant, attempt to intervene. In other words, because the strict compliance requirement did not further the State’s compelling, adoption-related interests in this case, we hold that the strict compliance requirement is unconstitutional as applied in this case.

¶52 The dissent, in contrast, argues that the rights at issue in this case are not Mother’s parental rights—the rights that were terminated by the State. Instead, it argues that the right at issue is Mother’s right to retain her right to parent despite a failure to comply with procedural requirements. In other words, rather than asking whether Mother, as K.T.B.’s biological mother, has a constitutionally protected interest in engaging in any of the conduct inherent in the parent-child relationship, the dissent asks whether Mother has a constitutionally protected interest in being free from a particular form of governmental interference. But we reject this characterization of the right at issue because it is inconsistent with our case law, and it would lead us to entirely overlook the substantial parental interests at the heart of this case.

¶53 But before we discuss the specific ways in which the dissent’s approach is inconsistent with our case law, we also note that, as a practical matter, the dissent’s approach would strip Mother’s parental rights of their fundamental status. The dissent concedes that Mother had fundamental parental rights. And it cannot dispute that those fundamental rights were terminated by the State. Despite this, the dissent argues that the relevant right at issue in this case is not one of the fundamental rights that were terminated, but Mother’s right to retain her fundamental parental rights. And, according to the dissent, this newly identified right is not fundamental and so its infringement need not be reviewed under our strict scrutiny standard. In other words, although the dissent concedes that at least some of Mother’s parental rights were fundamental before they were terminated,94 it does not explain how we should analyze Mother’s loss of those fundamental rights. So the dissent’s proposed approach either ignores Mother’s pre-existing fundamental parental rights or treats them as if her failure to strictly comply with the challenged procedural requirements transformed her fundamental rights into the less valuable right the dissent argues is at issue in this case.95 The practical effect of this approach is that any procedural requirement triggering the forfeiture of fundamental rights is immune from strict scrutiny review because the right to retain those rights is not fundamental. For this reason, we reject the dissent’s approach.

¶54 We also reject the dissent’s approach because it is inconsistent with our case law. It is inconsistent for two reasons. First, it is inconsistent because it departs from the manner in which we, or the United States Supreme Court, have defined parental rights in parental rights termination cases.96 Second, it is inconsistent because it leads to a misapplication of the doctrine of forfeiture.

  1. The dissent mischaracterizes the right at issue in this case

¶55 We reject the dissent’s argument because it is based on a mischaracterization of the right at issue. According to the dissent, the right at issue is not Mother’s parental rights, but her “right to retain parental rights despite failing to comply with required procedure.”97 But this mischaracterizes the right at issue in two ways. First, it incorrectly defines the right by referencing the manner—forfeiture triggered by a procedural default—in which the government interfered with Mother’s parental rights. Because this characterization of Mother’s right would mark a fundamental departure from the way courts have traditionally defined parental rights, we reject it.

¶56 Second, the dissent mischaracterizes the right at issue by failing to account for a key distinction between the nature of the rights of an unmarried biological mother and an unmarried biological father. Throughout its opinion, the dissent relies upon cases in which we or the United States Supreme Court dealt with the provisional, or inchoate, parental rights of unmarried biological fathers. Because the case law clearly establishes that mothers have a “retained” fundamental right in their children, whereas unmarried fathers have only provisional rights that must be perfected through compliance with procedure or some other means, the dissent’s argument fails.98

  1. The dissent errs in defining the right in reference to the form of governmental interference

¶57 We first address the dissent’s attempt to characterize the right at issue by referencing the procedural requirement that triggered the forfeiture of Mother’s parental rights. It states that the right at issue is the “right to retain parental rights despite failing to comply with required procedure.”99 To be clear the dissent does not dispute that at least some parental rights are fundamental.100 Nor does it dispute that Mother lost all of her parental rights in this case. But, according to the dissent, the right at issue in this case is not Mother’s fundamental right to parent (the right that was forfeited), but her right to retain that fundamental right despite her noncompliance with the challenged procedural requirement. In defining the right at issue in this way, the dissent adopts a novel approach to defining due process rights in parentage cases—an approach that effectively deprives Mother’s fundamental parental rights of the heightened protection our case law would typically provide.101

¶58 The dissent’s mischaracterization of the right in this case appears to rest on a misconception of how we typically define parental rights. By incorporating a reference to the challenged governmental interference in this case—the procedural requirements that triggered the judicially imposed forfeiture of Mother’s parental rights—into its definition of the right at issue, the dissent would have us define the right at issue based on the particular form the governmental interference takes. That is not how the United States Supreme Court, nor we, have defined parental rights in the past.

¶59 Under the approach established by the Supreme Court, the nature of parental rights is defined based on (1) the status of the individual invoking the right and (2) the parental conduct to be protected. For example, in one of the Supreme Court’s seminal parental rights cases, Meyer v. Nebraska, the Court explained that the “liberty” component of the Due Process Clause includes “the right of the individual to . . . establish a home and bring up children.”102 The Court then specifically concluded that this liberty right included the right of “parents to control the education of their own.”103 So the Court defined the right to parent by referring to the status of the individual claiming the right—the individual’s status as a parent—and by referring to the conduct to be protected—the education of children.

¶60 Following Meyer, the Supreme Court has repeatedly looked to the status of the individual and the conduct to be protected before determining whether the individual’s claim fell within the umbrella of parental rights. For example, the Court has looked to an individual’s parental status in distinguishing between the rights of parents and grandparents104 and between biological parents and foster parents.105 And, importantly for this case, this court has distinguished between the rights of unmarried biological fathers and unmarried biological mothers.106

¶61 The Supreme Court has also looked to the conduct to be protected in determining that the right to parent included the right to homeschool,107 the right “to direct the religious upbringing of [the parent’s] children,”108 and, in a long line of cases, “the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”109 We also note that the Supreme Court has made clear that parental rights protect against all forms of “government interference.”110

¶62 Thus Supreme Court precedent makes clear that we should characterize the parental right at issue in a given case by referring to (1) the status of the individual invoking the right and (2) the parental conduct to be protected. And our ultimate characterization of the right does not depend on the form of governmental interference at issue. But that is not how the dissent would have us characterize the parental right in this case.

¶63 The dissent characterizes the parental right in this case as the “right to retain parental rights despite failing to comply with required procedure.”111 So rather than asking whether parental conduct falls within the umbrella of protected parental rights, the dissent asks whether parents have a recognized right to be free of a particular form of governmental interference—in this case, a judicially imposed forfeiture of all parental rights. Accordingly, under the dissent’s approach, it is the nature of the governmental interference, rather than Mother’s parental status (an unmarried biological mother)112 or the conduct in which she would like to engage (all parental conduct, or, at the very least, the maintaining of her parental rights)113 that would define her parental right. This characterization of the right at issue would mark a significant departure from the Supreme Court’s method of defining parental rights.

¶64 The dissent disagrees. Although it concedes that, under controlling precedent, parental rights are defined by the status of the individual invoking the right and the conduct to be protected, it nevertheless argues that its approach is consistent with this precedent because it has merely adopted a narrower view of “the precise form of parental conduct at issue.”114 So, according to the dissent, our disagreement regarding the nature of the right at issue is merely a disagreement regarding the “level of generality at which an asserted right [should be] framed.”115

¶65 The dissent’s narrow framing fails because, in defining the “conduct” at issue by referencing the form of governmental interference at issue, the dissent fails to identify any parental conduct. And when we correctly identify the parental conduct at issue in this case, it is clear that we have framed the right appropriately.

¶66 The dissent explains that it has narrowly framed “the relevant conduct” by “asking whether there is a right to an exemption from procedural default.”116 Although it is unclear whether “an exemption from procedural default” constitutes conduct in any sense, even were we to accept it as such it would not constitute the type of parental conduct the Supreme Court uses to define parental rights. In identifying the relevant parental conduct in its past cases, the Supreme Court focuses on the parent’s conduct directed at the parent’s child, not conduct directed at, or from, the State. For example, in Wisconsin v. Yoder, the Supreme Court identified the relevant conduct as the parents’ conduct in providing a religious education and upbringing to their children.117 The Court explained that the case involved “the fundamental interest of parents . . . to guide the religious future and education of their children” and it explained that this right had been “established beyond debate as an enduring American tradition.”118 So, in defining the conduct at issue, the Yoder Court focused on the parents’ interactions with their children and asked whether the parent had a fundamental right to so interact.

¶67 In contrast to the Yoder court’s framing of the relevant parental conduct, the dissent frames the relevant conduct by focusing on Mother’s interactions with the State. The dissent explains that Mother does not have a fundamental right to be free of the consequences of a State-imposed forfeiture of parental rights because she has failed to “establish a tradition of protecting parental rights despite a procedural default.” This is inconsistent with the Supreme Court’s approach in Yoder and other parental rights cases.

¶68 Had the Yoder Court defined the right in that case, as the dissent does here—by defining it in terms of the parent’s interactions with the State—it would have focused on whether the “American tradition” had established a parent’s right to be free from criminal prosecution despite the parent’s violation of a legislative enactment. So the dissent’s focus on the form of governmental interference at issue is clearly inconsistent with the Court’s framing of the parental right in Yoder.

¶69 The dissent also errs in attempting to narrow the scope of the relevant parental conduct in this case. Although the dissent correctly notes that the level of generality at which an asserted right is framed may be an outcome-determinative issue in some cases, its suggestion that the level of generality is an issue in this case conflicts with controlling precedent.

¶70 The level of generality at which an asserted right is framed may properly be considered an unresolved issue only where a party argues that the Due Process Clause protects someone whose (1) status or (2) conduct had not previously received constitutional protection. For example, in Smith v. Organization of Foster Families For Equality and Reform, the Supreme Court considered whether the “liberty” interest protected by the Due Process Clause extended to individuals in “their status as foster parents.”119 In considering this question, the Court considered the differences between biological families, which are created without state involvement, and foster families, which “have their origins in an arrangement in which the State has been a partner from the outset.”120 Reasoning that the “contours” of the liberty interest protected by the Due Process Clause did not have its source “in state law,” “but in intrinsic human rights, as they have been understood in this Nation’s history and tradition,” the Court concluded that the “foster parents” liberty interest received only the “most limited constitutional” protection. So, in Smith, the Supreme Court resolved a novel question regarding the constitutional protections provided to someone with a particular parental status by narrowing—to exclude foster parents—the parental status needed to receive full protection under the Due Process Clause.

¶71 The same is true of the Court’s decision in Michael H. v. Gerald D., the case upon which the dissent’s level-of-generality argument principally relies.121 The dissent relies on this case to argue that the Supreme Court “has never conclusively established a governing standard” for defining the level of generality at which an asserted right is framed.122 And, for this reason, the dissent states that it is free to define the right at issue as it does. But the level-of-generality discussion in Michael H. does not support the dissent’s proposed framing of the right in this case.

¶72 In Michael H., an unmarried father asserted a fundamental parental interest in a daughter who was born into a woman’s existing marriage with another man.123 So, as in Smith, the Court in Michael H. had to decide whether the “liberty” interest protected by the Due Process Clause extended to an individual whose parental status had not previously been recognized as deserving full due-process protection.124 The justices who joined the plurality opinion opted to construe the status of the unmarried father narrowly—as an unmarried father of a daughter born into a woman’s existing marriage with another man. The dissent, in contrast, would have construed the status of the father in more general terms—as a parent or father. So the competing opinions in Michael H. suggest that where an individual asserts a fundamental parental right based on a parental status (or parental conduct) that had not previously been recognized as deserving constitutional protection, the level of generality at which the court defines the parental status (or conduct) may be an outcome-determinative issue.

¶73 But the level-of-generality problem discussed in Michael H. is not an issue in this case, because our case law has already established the level of protection the Due Process Clause provides to a biological mother’s parental right in a parental rights termination case. In fact, the dissent concedes that Mother’s parental status—as a biological mother—affords her certain, fundamental parental rights. The dissent’s only disagreement, therefore, is over our broad characterization of the parental conduct at issue. But our case law makes clear that, where the government is attempting to terminate all parental rights, courts should define the parental right broadly to encompass the full spectrum of constitutionally protected parental conduct inherent in the parent-child relationship. In other words, the “parental conduct” at issue in a parental rights termination case encompasses the entire bundle of parental rights, including the parent’s fundamental rights to homeschool,125 “to direct the religious upbringing of [the parent’s] children,”126 “to make decisions concerning the care, custody, and control of their children,”127 and any other right that will be terminated as a result of the State’s termination proceeding.

¶74 That the conduct at issue in parental rights termination cases encompasses the full spectrum of parental conduct is made apparent in the Supreme Court’s decision in Stanley v. Illinois.128 In that case, the Court determined whether the State of Illinois’ “method of procedure,” which created a presumption that unmarried fathers were unfit parents, violated principles of due process.129 As a result of this procedural rule, the father in the case lost his parental rights in his children. In resolving this case, the Court explained that the “issue at stake [was] the dismemberment of [the father’s] family.”130 And throughout the opinion, it referred to the right or interest at issue variously as the interest “of a man in the children he has sired and raised,”131 as the “rights to conceive and to raise one’s children,”132 as the right of “custody, care and nurture of the child,”133 and as an interest in the “integrity of the family unit.”134 So the Court did not narrowly frame the right by defining it as a right to be free from a particular procedural rule, as the dissent would have us do here. Instead, it described the right broadly, and more accurately, to encompass all of the interests in parental conduct the father would have lost were the state’s “method of procedure” upheld.

¶75 The Court treated the relevant parental conduct similarly in Quilloin v. Walcott.135 There the issue presented was once again whether a state could “force the breakup of a natural family” through a procedural mechanism that provided fewer protections to unmarried fathers than it did to mothers.136 Although, based on the father’s unmarried status, the Court ultimately upheld this procedure as constitutional, the Court consistently referred to the interest at issue in the case as an interest to engage generally in parental conduct.137 So the decision in Quilloin likewise suggests that, in parental rights termination cases, we must take a broad view of the relevant parental conduct.138

¶76 Our past parental rights termination cases have also described the parental conduct in broad terms. For example, in one of our earliest parental rights termination cases, In re J.P., we emphasized that the case “involve[d] a permanent termination of all parental rights.”139 And we explained that “all parental rights” included fundamental rights “to sustain [a parent’s] relationship with his [or her] child,” “to direct the upbringing and education of children,” and a right in “the custody, care and nurture of the child.”140 So, consistent with the Supreme Court precedent, we characterized the type of “parental conduct” at issue in parental rights termination cases in broad terms.

¶77 Following our decision in In re J.P., our decisions in parental rights termination cases have consistently referred to the relevant parental conduct in broad terms. For example, in Wells v. Children’s Aid Society of Utah, we stated broadly that the “relationship between parent and child is protected by the federal and state constitutions.”141 And in In re adoption of J.S., we acknowledged “a fundamental right for a mother not to lose her rights to her child absent proof of unfitness, abandonment, or neglect,”142 as well as the fundamental parental interest that a father has “in the children he has sired and raised.”143 We also cited our decision in In re J.P. for the proposition that the “integrity of the family and the parents’ inherent right and authority to rear their own children have been recognized as fundamental axioms of Anglo-American culture, presupposed by all our social, political, and legal institutions.”144 As these cases illustrate, in parental rights termination cases, we have consistently described the relevant parental conduct protected by the Due Process Clause in broad terms.145 And in defining parental conduct, we have never defined it, as the dissent does in this case, by referencing the particular form of governmental interference. Accordingly, the level-of-generality problem identified by the dissent is not at issue in this case, and the dissent’s purported framing of the relevant conduct in this case is inconsistent with our case law.

¶78 In sum, Supreme Court precedent makes clear that parental rights should be characterized based on (1) the status of the individual invoking the right and (2) the parental conduct to be protected. The dissent’s characterization of the right, in contrast, defines the right in reference to the form of governmental interference. In other words, rather than asking whether Mother, as K.T.B.’s biological mother, has a constitutionally protected interest in engaging in any of the conduct inherent in the parent-child relationship, the dissent asks whether Mother has a constitutionally protected interest in being free from a particular form of governmental interference. Because such a characterization of the right at issue is inconsistent with our case law, and would lead us to entirely overlook the substantial parental interests at the heart of this case, we reject it.

  1. The dissent errs in failing to distinguish between the constitutionally protected status of biological mothers and the provisional parental status of unmarried biological fathers

¶79 Additionally, we also reject the dissent’s characterization of the right at issue in this case because it fails to account for a key distinction between the nature of the rights of a biological mother and the rights of an unmarried biological father. As we have discussed, parental rights should be defined based, in part, on the status of the individual invoking the right. And our case law has firmly established a clear distinction between the parental status of mothers and unmarried fathers. But, despite this, the dissent attempts to apply unmarried father cases to the facts of this case. Because the case law clearly establishes that mothers have a “retained” fundamental right in their children, whereas unmarried fathers have only provisional rights that must be perfected through compliance with procedure or some other means, the dissent’s argument fails.146

¶80 We first addressed the distinction between the nature of the parental rights of a mother and an unmarried biological father in In re J.P.147 In that case, we considered an unmarried biological mother’s challenge to a statute that permitted a court to “decree an involuntary termination of all parental rights solely on the basis of a finding that such termination will be in the child’s best interest.”148 We began our review of the mother’s challenge by summarizing the United States Supreme Court’s decisions in Stanley and Quilloin as standing for the proposition that “[s]ome variation [in the protection provided by the Due Process Clause] exists among unwed fathers.”149

¶81 So, under the rule established in those decisions, we explained that unwed fathers “who have fulfilled a parental role over a considerable period of time are entitled to a high degree of protection” but “unwed fathers whose relationships to their children are merely biological or very attenuated may, in some circumstances, be deprived of their parental status merely on the basis of a finding of the ‘best interest’ of the child.”150 Thus the nature of an unmarried father’s right may vary from case to case depending on what the father has done to develop a relationship with his child.151

¶82 But in contrast to unwed fathers, we explained that “no similar variation exists among mothers who are unwed” and that “all unwed mothers are entitled to a showing of unfitness before being involuntarily deprived of their parental rights.”152 And we explained that this right “is so fundamental to our society and so basic to our constitutional order . . . that it ranks among those rights . . . retained by the people.”153

¶83 So our discussion of parental rights in In re J.P. makes clear that only unmarried fathers need comply with procedural mechanisms to perfect their parental rights. In other words, the parental status of all biological mothers, whether married or unmarried, gives mothers a right to not “be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect,” and this right is not contingent upon compliance with any procedural requirement that the state may establish. Accordingly, the dissent’s discussion of Mother’s rights in this case is inconsistent with our holding in In re J.P.

¶84 The dissent’s discussion of Mother’s rights is also inconsistent with our holding in In re Adoption of J.S.154 As our discussion of In re J.P. above makes clear, an unmarried father’s parental right is “merely provisional” until the father takes steps to perfect it. And in In re Adoption of J.S., we considered an unwed father’s challenge to provisions in the Adoption Act that provided a procedural mechanism for unwed fathers to perfect their parental rights.155 Echoing the distinction between mothers and unmarried biological fathers we made in In re J.P., we explained that “[u]nwed mothers acquire parental rights—and the accompanying right to object to an adoption—as a result of the objective manifestation of the commitment to the child that is demonstrated by their decision to carry a child to term.”156 But with unmarried fathers there is no such “objective manifestation,” so the father’s “legal obligation to file the paternity affidavit” described in the Adoption Act serves as “a rough counterpart to the mother’s [objective] commitment” to her child.157 Based on this distinction, we stated that a child may be placed for adoption only “if the mother and father choose to waive [their parental] right[s]—or in the case of a father, fails to assert the right by filing the paternity affidavit in a timely fashion.”158 So our decision in In re Adoption of J.S. recognized that the vested nature of a mother’s parental rights meant that only unmarried fathers could lose their rights to their children by failing to comply with state-instituted procedure.

¶85 With this distinction in mind, we proceeded to the merits of the unmarried father’s claim. After noting that the father had not brought a procedural due process claim, we then proceeded to analyze the Adoption Act’s paternity affidavit requirement under a substantive due process analysis.159 In so doing, we noted that procedural limitations “may be challenged on either procedural or substantive due process grounds.”160 And that a substantive due process claim may be brought where otherwise fair procedures are alleged to be unfair in light of the “fundamental or important” right they foreclose.161

¶86 We then analyzed the nature of the right of the unmarried father. Although we recognized that we had already determined that the parental rights of mothers are fundamental (in In re J.P.), we clarified that this labeling had been limited to mothers because of “extensive historical evidence of the ‘deeply rooted’ nature of [a mother’s] right.”162 A plurality of the court then noted that the father in the case had not made the “required showing of ‘deeply rooted’ history and tradition [that] was made in J.P. [regarding the rights of mothers],”163 and so, absent such a showing, the father’s substantive due process claim would be reviewed on the “deferential, fallback standard of rationality or arbitrariness.”164 Accordingly, our discussion of parental rights in In re Adoption of J.S. clarified that the parental rights of mothers are fundamental, requiring strict scrutiny analysis, but the parental rights of unmarried fathers are merely provisional, absent some future showing of “extensive historical evidence” that unmarried father’s rights are likewise fundamental.

¶87 As this discussion of In re J.P. and In re Adoption of J.S. demonstrates, our case law has established a significant distinction between the parental rights of unmarried biological mothers and unmarried biological fathers. Under this distinction, the fundamental parental rights of a mother are not contingent on compliance with any procedural requirements that may be imposed by the state. Because the dissent’s characterization of the right at issue, and its discussion of our previous cases, fails to adequately account for this significant distinction, its argument fails.

¶88 In fact, even though the dissent concedes that Mother, based on her parental status as a biological mother, did not need to strictly comply with the procedures in the Adoption Act to render her parental rights fundamental, it nevertheless argues that strict compliance was necessary to preserve the fundamental nature of her rights. So the dissent would create a novel framework in which a right, although concededly perfected and fundamental, can lose the protection of strict scrutiny review where the holder of the right fails to take on-going steps to preserve it. But the dissent cites no authority for such a framework. And our case law clearly refutes it.

¶89 Our case law makes clear that the fundamental parental right is a “retained”165 right that stems from “nature and human instinct,” which is “chronologically prior” to “state or federal statutory law.”166 It also states that the right includes a fundamental right for parents to “sustain” their relationships with their children.167 If these phrases mean anything, they mean that the fundamental nature of a recognized parental right does not lose its fundamental status because of a failure to comply with a procedural requirement instituted by the State.

¶90 To be clear, we are not suggesting that the state can never terminate a fundamental parental right based on the parent’s failure to comply with a statutory requirement. Instead, we are merely reaffirming the firmly established principle that where the state intervenes “to terminate [a parent-child] relationship,” that intervention, whether accomplished through the imposition of a procedural requirement or some other means, “must be accomplished by procedures meeting the requisites of the Due Process Clause.”168 Applying this principle in this case, we have concluded that the State’s termination of mother’s fundamental parental rights, based on her failure to strictly comply with a State-created procedural requirement, would be constitutional only if the procedural requirement is narrowly tailored to achieve a compelling state interest. The dissent’s criticism of this straightforward approach to substantive due process is misplaced.

¶91 Because the dissent fails to adequately account for a key distinction our case law has established between the status of biological mothers and unmarried biological fathers, it mischaracterizes the right at issue in this case. And the dissent’s attempts to defend this mischaracterization by proposing a theoretical framework in which the state could deprive an individual’s fundamental rights of strict-scrutiny protection through the imposition of a preservation requirement is likewise inconsistent with our case law.

¶92 In sum, we reject the dissent’s characterization of the right at issue in this case because it incorrectly defines the right at issue based on the particular form the governmental interference takes and because it fails to adequately distinguish between the “retained” and fundamental nature of a mother’s parental rights and the merely provisional nature of an unmarried father’s rights.

  1. The dissent misapplies the doctrine of forfeiture in this case

¶93 The dissent’s mischaracterization of the right at issue in this case is also problematic because it leads to a misapplication of the doctrine of forfeiture to Mother’s due process claim. As discussed, the dissent argues that the right at issue in this case is not Mother’s indisputably fundamental right to parent, but her right to retain that fundamental right despite her noncompliance with the challenged procedural requirement. Based on this characterization, the dissent argues that we have established a new right “to flout a legal filing requirement but avoid the normal consequence of such a move”169 and that, under our approach, a fundamental right can never “be forfeited due to a procedural default.”170 But the dissent misreads our opinion. And its proposed alternative approach misapplies the doctrine of forfeiture in this case.

¶94 Contrary to the dissent’s characterization of our opinion, we are not suggesting that the “mere possession of a fundamental right . . . forever insulate[s] the mother from ever losing that right.”171 And we are not saying that fundamental rights are entirely “beyond the procedural reach of the State’s regulatory authority.”172 Instead, we are merely reaffirming the firmly established principle that where the state intervenes “to terminate [a parent-child] relationship,” that intervention, whether accomplished through the imposition of a procedural requirement or some other means, “must be accomplished by procedures meeting the requisites of the Due Process Clause.”173 In other words, we are stating only that the imposition of unconstitutional procedures, as applied to the fundamental right in this case, is beyond the regulatory authority of the State.

¶95 Based on this principle, we have analyzed the facts of this case to determine whether the procedural mechanism through which the state terminated Mother’s fundamental rights was constitutional. And, after a straightforward application of the Supreme Court’s strict scrutiny standard, we have determined that the strict compliance provision in section 110 of the Adoption Act was unconstitutionally applied in this case. In other words, we are saying that the enforcement of the strict compliance requirement violated the Due Process Clause because it triggered the loss of fundamental rights even though it was not necessary to further the State’s compelling adoption-related interests in this case. And we are saying that because the strict compliance provision violated the Due Process Clause, as it was applied to Mother, it cannot justify the State’s termination of Mother’s parental rights.

¶96 In contrast, the dissent argues that the state did not terminate any fundamental rights in this case, because Mother forfeited her rights when she failed to comply with the procedural requirements of the Act. But the dissent’s argument assumes, without analysis, that the procedural requirement that triggered Mother’s default was constitutional. In other words, the dissent avoids the central question presented by Mother’s substantive due process claim.

¶97 So, in effect, the dissent argues that the procedural requirement that authorized the state to terminate Mother’s fundamental parental rights is constitutional because Mother failed to comply with that procedure. This approach is not only circular, it is inconsistent with the doctrine of forfeiture.

¶98 Forfeiture “is not appropriate when it is inconsistent with the provision creating the right sought to be secured.”174 The relevant provision in this case is the Due Process Clause of the Constitution. As we explained above, the substantive component of the Due Process Clause allows plaintiffs to challenge the “fairness of [a] procedural bar or limitation, on the ground that the right foreclosed is so fundamental or important that it is protected from extinguishment.”175 And Due Process Clause case law has further clarified that “fundamental” rights may be extinguished through the operation of procedural provisions only where those provisions survive strict scrutiny review.176 So, in other words, the substantive component of the Due Process Clause protects individuals from being deprived of fundamental rights through the operation of procedures that are not narrowly tailored to further compelling state interests.177 And, as our analysis above demonstrates, the procedural requirements that triggered the loss of Mother’s fundamental parental rights were not narrowly tailored. So applying the doctrine of forfeiture to defeat Mother’s substantive due process claim in this case would be inconsistent with the Due Process Clause.

¶99 Because forfeiture “is not appropriate when it is inconsistent with the provision creating the right sought to be secured,”178 and the dissent’s proposed application of forfeiture in this case would be inconsistent with the substantive component of the Due Process Clause, we reject the dissent’s forfeiture argument. And in so doing, we clarify that the doctrine of forfeiture does not prevent an individual from challenging the constitutionality of a procedural requirement based on the individual’s failure to comply with that procedural requirement.

¶100 Accordingly, we reject the arguments the dissent raises for two reasons. First, we reject them because the dissent mischaracterizes the right at issue; second, we reject them because the dissent misapplies the doctrine of forfeiture to the facts of this case.

¶101 In sum, Mother has fundamental parental rights. The district court severed those rights because Mother failed to strictly comply with the procedural requirements of section 110. Because the strict compliance provision in section 110 was not narrowly tailored, we hold that the strict compliance provision is unconstitutional as applied in this case.

  1. J.N.’s Motion to Intervene was Properly Denied

¶102 We now turn to J.N.’s claim. He argues that he should have been allowed to intervene in the adoption proceedings after his marriage to Mother was judicially recognized. Although J.N. admits that he is not the biological father, he argues that due to his common-law marriage to Mother, he is K.T.B.’s presumptive father179 and therefore was entitled to notice of the adoption petition under section 120 of the Adoption Act. Because the Adoptive Parents did not serve him with notice, he contends that his motion to intervene was timely, and he was therefore entitled to intervene in the adoption proceeding under Rule 24 of the Utah Rules of Civil Procedure.180 We disagree.

¶103 At the time the Adoptive Parents filed their adoption petition, J.N.’s marriage to Mother had not been legally recognized. After the court barred Mother from the adoption proceeding, J.N. sought this recognition by filing an action in a different district court. He succeeded, and the second district court recognized his marriage as beginning “on or about June 16, 2010,” or three months before the birth of K.T.B.181 With this judicial decree in hand, J.N. then filed his motion to intervene in this case. The district court denied his motion, in part, because it was untimely.

¶104 On appeal, J.N. argues that at the time the adoption petition was filed, his marriage to Mother—which, according to the subsequent judicial marriage decree, began on June 16, 2010— created a presumption that he is K.T.B.’s father, thereby entitling him to notice of the adoption. He reasons that because he never received notice of the adoption proceeding, section 110’s thirty-day time period to intervene was never triggered. Thus he argues his motion to intervene was timely, and he was therefore entitled to intervene under rule 24.

¶105 In support of his argument J.N. cites our decision in Whyte v. Blair.182 In Whyte we held that once a common-law marriage is legally recognized it can have retroactive legal effect from the time the marriage was entered.183 But contrary to J.N.’s assertion, Whyte did not answer the question of whether a common-law marriage entitles a couple to state-recognized marital rights in the absence of a judicial decree. That question is answered by the plain language of Utah Code section 30-1-4.5, Utah’s common-law marriage statute.

¶106 Under section 30-1-4.5, a person may seek legal recognition of a common-law marriage by obtaining a judicial or administrative order. Once this occurs, a common-law marriage “is treated as any other marriage for all purposes.”184 And as our decision in Whyte makes clear, these marital rights may apply retroactively once they are recognized.185 But the plain language of two provisions within section 30-1-4.5 also makes it clear that the marital rights stemming from a common-law marriage are merely conditional unless they have been legally recognized through a judicial or administrative order.

¶107 First, section 30-1-4.5(1) states that a common-law marriage “shall be legal and valid if a court or administrative order establishes that it arises out of a contract between a man and a woman” who satisfy certain common-law marriage requirements.186 Thus, by negative implication, a common-law marriage is not legal and valid in the absence of such an order.

¶108 Second,           section 30-1-4.5(2)        states        that       “[t]he

determination or establishment of a [common-law] marriage shall occur during the relationship . . . or within one year following the termination of that relationship.” So if a couple terminates a relationship that would have qualified as a common-law marriage, but fails to obtain judicial recognition of that relationship within one year of termination, then any marital rights the couple could have enjoyed through legal recognition are forfeited. In other words, if a couple fails to perfect marital rights stemming from a common-law marriage within the one-year limitations period, it is as if the marriage never occurred.

¶109 These two aspects of section 30-1-4.5 suggest that the rights stemming from a common-law marriage must be perfected through a judicial proceeding before those rights take legal effect. This makes sense. “[M]arriage is a keystone of our social order.”187 For this reason, when “a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union.”188 In this way, marital status serves as a basis for the conferral of a number of “governmental rights, benefits, and responsibilities,” including rights in the areas of adoption and child custody.189 But the state cannot confer these rights on a married couple unless the married couple makes their marital status known to it. And the inverse is also true: a married couple living in an as-of-yet unrecognized common-law marriage cannot obligate the state to respect rights stemming from that marriage until it has been legally recognized.190 But this is essentially what J.N. is asking the court to do.

¶110 At the time of the Adoptive Parents’ adoption petition, J.N.’s marital rights, including rights to notice or to intervene in the adoption as a presumptive father, had not been legally recognized by the State.191 Additionally, because J.N. admits that he is not K.T.B.’s biological father, he also did not have any rights in the adoption as K.T.B.’s putative father.192 J.N.’s lack of any legally recognized rights in K.T.B. at the time the Adoptive Parents filed their petition ultimately defeats his claim.

¶111 The crux of J.N.’s argument is his assertion that the Adoptive Parents were obligated to provide him with notice as a presumptive father. According to him, their failure to do so prevented the Adoption Act’s thirty-day intervention window from beginning and so his motion to intervene, filed nearly four months after the petition, was timely. But because he did not have any presumptive rights at that time, neither the Adoptive Parents nor anyone else was obligated to serve notice on him. So we must determine whether J.N., as merely a potential presumptive father, had a duty to timely intervene in the adoption proceeding despite the lack of notice. He did.

¶112 Although the Adoption Act does not establish requirements with which a merely potential presumptive father must comply before intervening in an adoption, we find that certain requirements the Adoption Act imposes on a potential biological father are applicable. Under the Adoption Act, an unmarried biological father “has a duty to protect his own rights and interests” by filing the necessary documents before relevant deadlines.193 If he does so, he preserves a right to notice and to intervene in the adoption.194 But until then, he “is considered to be on notice that . . . an adoption proceeding regarding the child may occur.”195 Although the method for protecting his rights differs from that of an unmarried biological father,196 placing the burden on J.N., as a potential presumptive father with no legally recognized parental rights, is equally appropriate.

¶113 Due to the unperfected nature of J.N.’s presumptive parental rights, he was responsible to take necessary steps to preserve his rights in the adoption. Had he done so by obtaining judicial recognition of his marriage before the Adoptive Parents filed their adoption petition, the Adoptive Parents would have been obligated to provide him with notice and he would have had thirty days to file a motion to intervene upon receipt of such notice.197 But in the absence of a legally recognized marriage, the Adoptive Parents had no such obligation, and so J.N. was considered to be on notice of the adoption proceeding once the Adoptive Parents filed their petition.198 This presumed notice initiated the Adoption Act’s thirty-day intervention window.199 Because J.N. failed to file a motion to intervene within this time, his motion was untimely and the district court had the discretion to deny it. Accordingly, we affirm the district court’s denial of J.N.’s motion to intervene.

Conclusion

¶114 Because section 110 of Utah’s Adoption Act authorized the district court to terminate Mother’s fundamental right to parent her child, we review its application to Mother under our strict scrutiny standard. And under this standard, section 110’s strict compliance requirement, as applied to Mother, is not narrowly tailored to achieve the state’s compelling interest in prompt adoption proceedings. Accordingly, we reverse the district court’s decision to bar Mother from the adoption proceeding and remand for a new hearing in which Mother may participate. Additionally, we affirm the district court’s decision to deny J.N.’s motion to intervene because his motion was untimely.

JUSTICE PETERSEN, concurring in the result:

¶115 I concur in the result of the majority opinion. And I agree with much of the majority’s analysis. But the dissent raises some concerns that I share, which the majority has not sufficiently answered.200

¶116 I agree with the majority that Mother has parental rights, which are fundamental. And as a general matter, a state infringement of a fundamental right is subject to heightened scrutiny. Further, substantive due process principles are applicable to laws of both a substantive and a procedural nature. See, e.g., In re Adoption of J.S., 2014 UT 51, ¶¶ 21–22, 358 P.3d 1009. So I do not find it inappropriate to apply such principles here. But I do find our application of strict scrutiny to a straightforward preservation rule to be novel. Because of this, I think we should acknowledge that we are applying strict scrutiny in a new context and clarify the parameters of our holding.

¶117 The majority asserts that its reasoning follows directly from established precedent. See, e.g., supra ¶¶ 62, 76, 78. But neither the majority nor Mother has identified any case where we or the United States Supreme Court has applied heightened scrutiny to a rule of preservation. And that is what we have here. As the dissent rightly observes, “[t]his is a rule of preservation—a law prescribing the form or timing of an objection necessary for a litigant to proceed with the assertion of her legal rights.” Infra ¶ 122.

¶118 In my view, applying strict scrutiny to a rule of preservation for the first time is significant because, as the dissent notes, “[s]uch rules abound in our law.” Infra ¶ 122. And they perform a critical function. At a very basic level, they set the rules for the orderly processing of civil and criminal litigation. But the majority insists we are not breaking new ground.

¶119 I think we should acknowledge that we are. First, we should recognize that we have never applied heightened scrutiny to a standard rule of preservation. And we should explain why we are extending strict scrutiny to this context.

¶120 Second, we should clarify the parameters of our holding. This decision could be read to apply to the many deadlines, filing requirements, and other rules of preservation found throughout the law, including in our own rules of procedure. Certainly, these rules at times affect litigants’ fundamental rights if they fail to comply with them. Even though this case involves an as-applied challenge ostensibly confined to its facts, this does not sufficiently define the reach of our holding. The material facts here would seem to be present whenever a litigant could establish that she had a fundamental right of some kind, and it was terminated by a preservation rule with which she substantially complied but did not fully comply. As it is, the majority’s holding seems open-ended. In light of the ubiquity of preservation rules and the core function they perform in our legal system, this has the potential to create confusion.

ASSOCIATE CHIEF JUSTICE LEE, dissenting:

¶121 The Utah Adoption Act requires a mother who wishes to oppose the adoption of her biological child to file a motion to intervene in the adoption proceedings. See UTAH CODE § 78B-6-110(6). By statute, the mother must “strictly comply” with this requirement. Id. § 78B-6-110(6)(b). Failure to do so within thirty days of being served with notice of the proceedings results in a “forfeit[ure]” of the mother’s parental rights. Id. § 78B-6-110(6)(b)(ii).

¶122 This is a rule of preservation—a law prescribing the form or timing of an objection necessary for a litigant to proceed with the assertion of her legal rights. Such rules abound in our law. And the long-established consequence of the failure to follow such rules is a procedural default, with a resulting loss of the underlying right.

¶123 The majority opposes this effect of the Adoption Act. It overrides the plain text of the statute, excuses the mother from her procedural default, and adopts a new rule of preservation of its own making—a rule that allows a mother to avoid forfeiture of her rights if she files a document that “fulfill[s] the purpose[]” of a motion to intervene.201 Supra ¶ 47.

¶124 I respectfully dissent from this decision. The court claims to find support for it in a body of substantive due process case law. But the court’s holding does not follow from that case law. It is a bold, policy-driven override of a law enacted by the legislature. I dissent because I find no basis for today’s decision in the due process principles cited by the majority and foresee significant mischief caused by it.

¶125 The mother in this case failed to follow the statutory filing requirement. She did so not because of any difficulty in following the requirement, but because she got bad advice from her lawyer. The requirement, moreover, is admittedly fair and entirely constitutional as a matter of procedural due process. The majority agrees. See supra ¶ 29 (citing In re Adoption of J.S., 2014 UT 51, ¶ 23, 358 P.3d 1009 for the proposition that “when the failure to comply with a ‘simple and straightforward’ procedural requirement is due to legal counsel’s mistake, the procedural requirement has not foreclosed meaningful access to the justice system”).202 Yet the court proceeds to establish a new constitutional right of due process that excuses the mother’s procedural default. It holds that “mothers retain a fundamental right in their children regardless of a failure to comply with any state-prescribed procedure.”203 Supra ¶ 37.

¶126 The majority seeks to portray its decision as a matter that follows from settled precedent. But that is incorrect. No court, to my knowledge, has ever established a constitutional right of a litigant (even one seeking to protect a fundamental right) to flout a legal filing requirement but avoid the normal consequence of such a move (procedural default). Certainly the majority has not cited such a case. And with that in mind, the court should take ownership of the novelty of its decision. It is the court’s prerogative to establish new rights in the name of the constitution—the principle of substantive due process opens the door to such decisions. But in so doing the court cannot properly be viewed as merely endorsing a mechanical application of existing precedent. That is not what is going on here. The court is certainly citing a line of precedent. But its decision involves a significant extension of the cited cases. And the extension will sow the seeds of confusion in our law for years to come.

¶127 The court cites a string of cases (several from the United States Supreme Court and a few from this court) in which a parent’s fundamental right is framed on the basis of “(1) the status of the individual invoking the right and (2) the parental conduct to be protected.” Supra ¶ 59. Because the cited cases have “looked to the status of the individual and the conduct to be protected before determining whether the individual’s claim fell within the umbrella of parental rights” (which are admittedly fundamental), the court objects to my more specific framing of the inquiry into the asserted “right” in question. Supra ¶ 60. On that basis the majority seeks to turn my criticism of the novelty of its approach against me. It asserts that I am the one who is pressing a novel framing of the inquiry into fundamental parental rights. The court’s argument proceeds in two steps. First, the court complains that its cited cases ask only “whether parental conduct falls within the umbrella of protected parental rights,” not “whether parents have a recognized right to be free of . . . a judicially imposed forfeiture of all parental rights.” Supra ¶ 63. And because a mother’s parental rights need not be “perfected” in the manner required of unwed fathers, the majority next insists that the mother’s fundamental right “is not  contingent upon compliance with any procedural requirement that the state may establish.” Supra ¶ 83.

¶128 Each of these points begins with a correct premise. But the court’s starting premises do not support its broad, sweeping conclusions.

¶129 On the first point, I can stipulate to a focus on “the status of the individual and the conduct to be protected” in deciding whether to endorse a new right of substantive due process. Supra ¶ 60. But that framing begs the question of what conduct, and at what level of generality to assess it. A broad framing would ask whether parental rights generally are subject to substantive due process protection. Yet that is not the only way to frame things. We could also look to the precise form of parental conduct at issue. And although the United States Supreme Court has not always been consistent on the appropriate framing, our recent precedent suggests a narrow framing that looks at the precise form of the relevant conduct.204

¶130 The United States Supreme Court has sometimes framed the inquiry into the existence of a new substantive due process right at the highest level of generality. When that court established new substantive due process rights to access contraception and abortion, for example, it framed the inquiry in broad, sweeping terms—whether there was an established tradition of respect for private decisions within a “zone of privacy.”205 But the Court’s case law has not been consistent. In other cases the court has called for a much narrower framing of the inquiry into the existence of a new substantive right. In rejecting a claim to a new right to physician-assisted suicide, for example, the court narrowly framed the inquiry in terms of a “right to commit suicide” instead of the proposed broader framing of a “right to die.”206 This is a key, unresolved problem in the high court’s substantive due process precedent, and a question that has attracted the attention of a range of commentators.207

¶131 A plurality of this court acknowledged this problem in our recent decision in In re Adoption of J.S., 2014 UT 51, 358 P.3d 1009. And it endorsed a requirement of narrowly framing any new, alleged right of substantive due process. To avoid the prospect of a court making new policy in the guise of constitutional law-making, the lead opinion in J.S. (which was joined by Chief Justice Durrant) endorsed a requirement that a party make “a specific showing that the precise interest asserted by the parent is one that is deeply rooted in this Nation’s history and tradition and in the history and culture of Western civilization.” Id. ¶ 57 (plurality opinion) (emphases added) (citation and internal quotation marks omitted). The “specific showing” of a “precise interest” suggested by J.S. is what I would require here—a showing not just of a well-rooted tradition of respect for parental rights generally, but of a tradition endorsing the right to retain parental rights without following procedural requirements set forth by law. The court’s contrary approach not only cuts against the lead opinion in J.S; it also picks sides in a key point of debate in the law of substantive due process.

¶132 The majority’s second point is similarly problematic. The notion that a mother’s rights need not be “perfected” in the manner required of unwed fathers is only half right. And the half-wrong part underscores the degree to which the majority is making new law while claiming only to be applying established precedent.

¶133 It is of course true that a mother need not make a threshold showing of her parentage to establish her fundamental parental rights in the first instance. A mother’s parental rights are perfected at the outset without any need for her to file a paternity petition or present evidence establishing the degree to which she supported or was willing to support her child. See Id. ¶ 2 (majority opinion). To that extent the majority is right to say that a mother’s fundamental rights are not contingent on compliance with the “procedural requirement[s]” imposed by our law on fathers. Supra ¶ 83. But that is not the question presented here. The question here is whether a right that is admittedly perfected without the need for procedural compliance at one stage can ever be forfeited due to a procedural default at a later stage. The majority upholds that right as a matter of substantive due process. And in so doing it breaks significant new ground. No court has ever recognized this sort of right.208

¶134 It is true that I have cited no cases in which a biological mother forfeited her parental rights through procedural default, and a court upheld such default against a substantive due process challenge. See supra ¶ 79 (criticizing me for citing only cases involving putative fathers). But this is just a reflection of the fact that there are no reported cases that are directly on point—no case in which a mother forfeited her rights through procedural default, but a court excused that failure (and obviated her forfeiture) on the basis of a substantive due process right.

¶135 Our decision in J.S. is the most obviously relevant precedent. In that case an unmarried biological father lost his parental rights as a result of a procedural default—failure to perfect his rights by jumping through the procedural hoops required by our law (principally, the filing of an affidavit of support of his child). 2014 UT 51, ¶ 1. And we upheld those procedures against a substantive due process challenge. Id. ¶¶ 5–6. In so doing, as noted above, we required more than a showing of a tradition of respect for the parental rights of fathers generally—for their “status” and “conduct” at that level of generality. Instead we required the defaulting parent to demonstrate that the right to retain parental rights despite failing to comply with required procedure is “deeply rooted” in “history and tradition.” Id. ¶ 54 (plurality opinion). This is also the showing we should require here.

¶136 The procedure at issue in J.S. was admittedly not the sort of procedure that would be required of a mother for the preservation of her rights. The majority seizes on this point, noting that “mothers have a ‘retained’ fundamental right in their children, whereas unmarried fathers have only provisional rights that must be perfected through compliance with procedure.” Supra ¶ 79. But again, this is a partial truism. All parties to litigation are bound by some procedure. And until today, no court had ever held that a fundamental parental right, once perfected, is subject only to those rules of procedure that can survive strict scrutiny review. The majority leans heavily on the “fundamental” nature of such rights to justify this result. But nowhere in the case law does the fact that a right is “fundamental” entitle its holder to forgo compliance with any procedure except that which withstands strict scrutiny. That conclusion certainly does not follow from the premise that the procedures necessary for a father’s perfection of his parental rights at the outset do not apply to mothers in the first instance.209

¶137 A mother is not required to jump through procedural hoops to establish her parental rights in the first instance. But that is not because mothers are categorically exempt from the law of procedure. It is because they are not subject to a specific species of procedure—paternity filing requirements imposed on putative fathers before their rights can be perfected. See UTAH CODE § 78B-6-121(3) (in contrast to biological mothers, the “consent of an unmarried biological father [to an adoption] is not required unless . . . the unmarried biological father . . . initiates proceedings . . . to establish paternity” and complies with other procedures). For that reason, the majority’s argument proves too much. Mothers are admittedly subject to some procedure. Rules of preservation in particular have always applied to all litigants. We cannot excuse a mother’s compliance with the law of preservation just because mothers are exempt from compliance with other procedures.

¶138 None of the majority’s cited cases is a case like this one— in which a parent’s rights were terminated as a result of the parent’s procedural default. The court’s cited cases stand for a threshold proposition that is not in dispute in this case. They say only that a person’s parental rights may not be terminated by operation of a law that cuts off the right to be heard and substitutes instead a conclusive presumption of unfitness. That is the holding of Quilloin v. Walcott, 434 U.S. 246 (1978), Stanley v. Illinois, 405 U.S. 645 (1972), and In re J.P., 648 P.2d 1364 (Utah 1982). And that proposition has no purchase here. In this case the law did not authorize the termination of parental rights without an opportunity for a parent to be heard. It expressly provided for such an opportunity—and imposed a natural consequence (forfeiture by default) for the failure to comply with the required procedure. The question here, then, is whether a mother who lost her parental rights by forfeiture through procedural default may excuse that default by claiming a substantive due process right to ignore existing procedure (unless the procedure withstands strict scrutiny). And there is no support in any precedent for the establishment of such a right.

¶139 The court’s holding, in fact, runs directly counter to another line of precedent that the majority ignores. Voting rights are undoubtedly “fundamental” under a long line of United States Supreme Court authority. See Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979); Dunn v. Blumstein, 405 U.S. 330, 336 (1972); Williams v. Rhodes, 393 U.S. 23, 38 (1968); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). But the United States Supreme Court has gone out of its way to emphasize that the fundamental nature of this right does not subject all procedural regulation of the right to strict scrutiny. See Burdick v. Takushi, 504 U.S. 428, 432–33 (1992); Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986). In the voting rights realm, a neutral, nondiscriminatory regulation like a procedural default rule would not trigger strict scrutiny. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 203–04 (2008). It would trigger a deferential standard of scrutiny that would uphold the constitutionality of our neutral rules of procedural default. The same holds for regulation of other fundamental rights like the rights to privacy, free speech, and free exercise of religion. See infra ¶ 159 (discussing privacy, speech, and religion cases). And the majority’s holding today is incompatible with all of these cases. See infra ¶¶ 160–65 (discussing the voting rights cases).

¶140 The majority’s basis for a substantive due process right to avoid the usual effect (forfeiture) of a procedural default is thus as novel as it is sweeping. The court’s holding, moreover, will introduce substantial confusion and uncertainty going forward. If the majority opinion takes root, the whole idea of procedural regulation by a uniform set of rules will be placed in jeopardy. If our law requires case-by-case scrutiny of whether our procedural rules are the “least restrictive means” of advancing “compelling governmental interests,” most any procedural default rule may be set aside as unconstitutional. Most procedural rules, after all, are in a sense arbitrary. That means that there will almost always be a less restrictive means of advancing the underlying goal. And that will open the door for our courts to second-guess a broad range of rules of procedural default whenever our judges think that the purpose of a governing rule could be advanced in a less restrictive way. This is problematic.

¶141 I respectfully dissent for reasons explained in greater detail below. In Part I, I address the strict scrutiny argument— analyzing the cases cited in the mother’s brief and applied by the majority, outlining the standard applied to regulation of the fundamental right to vote, and emphasizing the novel extension of the law endorsed by the majority opinion. Then in Part II, I identify the confusion and upheaval that the majority’s framework will introduce into our law.

I

¶142 The mother seeks to avoid the effects of forfeiture by asserting a substantive due process right. Yet she has failed to cite any precedent sustaining a substantive due process right to avoid the natural consequence (forfeiture) of a procedural default. And the majority opinion is similarly deficient.

¶143 The fulcrum of the majority opinion is the notion that the mother has “fundamental rights” as a parent. The mother’s brief is premised on the same notion. Citing In re J.P., 648 P.2d 1364 (Utah 1982) and Quilloin v. Walcott, 434 U.S. 246 (1978), the mother asserts that the governing precedent “condemn[s] the termination of a mother’s parental rights over her objection and without a finding of unfitness.” And the majority correctly notes that the mother’s parental rights include the right to object to an adoption. Supra ¶ 37.

¶144 This is all correct as far as it goes. But the fundamental right recognized in the cited case law has no currency here. The mother’s rights were not terminated “over her objection.” She just failed to object under the procedures set forth in our law. The mother’s right to object to an adoption is not a right to object in any manner she chooses. It is a right to object in accordance with prescribed procedure. And the natural consequence of the failure to comply with that procedure is a default—forfeiture of her rights.

¶145 As the majority notes, our case law identifies a substantive due process basis for a party to establish an exception to this normal consequence—by providing proof of a “deeply rooted” history and tradition at a very specific level of generality. This is the standard set forth in In re J.P. and reinforced in J.S. But the mother has failed to carry her burden under these cases. She nowhere establishes a “deeply rooted” history and tradition of a right to preserve parental rights despite non-compliance with the procedure required by law. And her assertion of a substantive due process right accordingly fails.

¶146 The majority objects to this framing of the right at issue. It contends that we should focus on “the status of the individual invoking the right”210 and “the parental conduct to be protected,” supra ¶ 59, by asking “whether [such] parental conduct falls within the umbrella of protected parental rights,” supra ¶ 63. That is fine as far as it goes. But the majority’s approach—inquiring into the protected status of parental conduct—begs the question: at what level of generality should the relevant conduct be characterized in assessing whether it is protected by substantive due process? The majority rejects my narrow framing of the relevant conduct (whether there is a right to an exemption from procedural default) in favor of a much broader framing (whether there is a right to parent generally).211 But this is a disputed question implicating serious and extensive debate in constitutional law. The level of generality at which an asserted right is framed can be outcome-determinative—the narrower the framing, the harder it will be to establish that the right is “deeply rooted” in history and tradition.

¶147 The level of generality problem is on display in some of the United States Supreme Court’s most prominent substantive due process decisions. Some of that court’s most fractured, controversial decisions have implicated this problem. Yet the high court has never conclusively established a governing standard. The justices openly debated the question of the appropriate level of generality in Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989) (plurality opinion) (arguing for a framing at “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified”); id. at 139 (Brennan, J., dissenting) (asserting that the inquiry should be framed broadly: “whether parenthood is an interest that historically has received our attention and protection”); id. at 132 (O’Connor, J., concurring in part) (criticizing the plurality’s methodology as “inconsistent with our past decisions in this area” which sometimes “characterize[] [the] relevant traditions protecting asserted rights at levels of generality that might not be the most specific level available” (citations and internal quotation marks omitted)). But there was no majority view on the matter. And elsewhere the Court has been consistently inconsistent—sometimes framing the inquiry at a high level of generality, and sometimes opting for a much narrower framing of the proposed right at issue. See supra ¶ 130.

¶148 Commentators have highlighted both the inconsistency in the United States Supreme Court’s substantive due process framework and also its significance. In the words of one commentator, “the determination of whether history and tradition entitle a particular type of conduct to protection depends upon the breadth with which the Court defines the conduct in question.” Rick Kozell, Note, Striking the Proper Balance: Articulating the Role of Morality in the Legislative and Judicial Processes, 47 AM. CRIM. L. REV. 1555, 1572 (2011) (emphasis added). Another observes that “[t]he manner in which the court characterizes the issue critically defines the scope and boundaries of its reasoning and significantly impacts its holding,” and emphasizes that the high court “fails to provide jurisprudence that is consistent enough to guide lower federal courts.” John F. Basiak, Jr., Inconsistent Levels of Generality in the Characterization of Unenumerated Fundamental Rights, 16 U. FLA. J.L. & PUB. POL’Y 401, 403, 405 (2005) (emphasis added). Professors Tribe and Dorf, for their part, acknowledge that “[t]he selection of a level of generality necessarily involves value choices,” but argue in favor of a broad framing of the inquiry. See Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057, 1058 (1990).

¶149 The majority acknowledges the general point, but claims that the level of generality at which to frame the mother’s asserted substantive due process right “is not an issue in this case.” Supra ¶ 73. It argues that “[t]he level of generality at which an asserted right is framed may properly be considered an unresolved issue only where a party argues that the Due Process Clause protects someone whose (1) status or (2) conduct had not previously received constitutional protection.” Supra ¶ 70. That is fine as far as it goes—I agree that once controlling precedent has established the relevant level of generality there is no reason to rehash the question. And I agree that the level of generality at which to frame the mother’s asserted substantive due process right in this case is not an unresolved issue. But I think that our Utah case law, in J.S., prescribes a narrow framing for an alleged new substantive right, while the majority argues that our case law calls for a broad framing. Supra ¶ 73.

¶150 In arguing for a broad framing, the majority leans heavily on the idea that in cases addressing termination of parental rights, “courts should define the parental right broadly to encompass the full spectrum of constitutionally protected parental conduct inherent in the parent-child relationship” because “the ‘parental conduct’ at issue in a parental rights termination case encompasses the entire bundle of parental rights.” Supra ¶ 73. Again, however, the majority seems to conflate the parental conduct that is terminated (encompassing the “full spectrum of constitutionally protected parental conduct”) with the conduct triggering that termination. See supra ¶ 146 n.211. And for the same reason the various propositions it attributes to its cited cases miss the mark. See supra ¶¶ 74–77 (for example emphasizing that In re J.P. “involve[d] a permanent termination of all parental rights” (alteration in original)).

¶151 Our recent decision in J.S., however, speaks directly to the level of generality question. And unlike United States Supreme Court case law, our Utah case law not only acknowledges the problem but suggests an answer. The lead opinion in J.S. called for a narrow framing of any alleged, new substantive right—a framing that considers the precise form of the relevant conduct in assessing whether there is a sufficient history and tradition of protecting such conduct to justify the establishment of a new constitutional right. The requirement it put forth, specifically, is of “a specific showing that the precise interest asserted by the parent is one that is deeply rooted in this Nation’s history and tradition and in the history and culture of Western civilization.” In re Adoption of J.S., 2014 UT 51, ¶ 57 (plurality opinion) (emphases added) (citations and internal quotation marks omitted)). In explaining this requirement the J.S. opinion emphasized that the showing helps ensure that the power to establish new substantive due process rights is not transformed into a vehicle for judicial policy-making. See id. ¶ 61 (noting that “due process innovations” absent “any effective limiting principle” will put courts in the “problematic realm” of making “policy judgments[, which] are matters for legislative action” (plurality opinion) (internal quotation marks omitted)).

¶152 We should apply this standard here. We should require a “specific showing of a precise interest” before establishing a new right of substantive due process. That showing requires more than just a tradition of respecting parental rights generally. To establish this new right the mother must establish a tradition of protecting parental rights despite a procedural default. This is the framework suggested by J.S. And the majority does not present a satisfactory reason for departing from it on this high-stakes point of debate in the jurisprudence of substantive due process.212

¶153 In framing the right at issue broadly (and inconsistently with J.S.), the majority paints a picture of a disposition that follows naturally from settled precedent upholding the fundamental nature of parental rights generally. But framed properly, the specific right established by the majority can be seen for what it is— a novel holding in a case of first impression. No court has ever established a substantive due process right to override a forfeiture of parental rights resulting from a procedural default. This court has held, at most, that a mother has a fundamental right “not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect.” In re J.P., 648 P.2d at 1375; see also Wells v. Children’s Aid Soc. of Utah, 681 P.2d 199, 203 (Utah 1984). United States Supreme Court precedent is to the same effect. In Quilloin v. Walcott, the Court concluded that it would violate a right of substantive due process for the state “to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” 434 U.S. at 255. This same premise is inherent in the Court’s analysis in Stanley v. Illinois, 405 U.S. 645 (1972).

¶154 This precedent tells us that strict scrutiny is triggered by a statute that authorizes the termination of a mother’s parental rights over her properly asserted objection and without a requirement of proof of unfitness, abandonment, or neglect. But the Adoption Act did not authorize such termination.213 And strict scrutiny review is accordingly not triggered under the above cases.214

¶155 The key factual premise of the majority opinion is the notion that the district court “terminate[d] Mother’s parental rights without her consent and without proof of parental unfitness, abandonment, or neglect.” See supra ¶ 38. That is true as far as it goes. But that premise alone does not support the majority’s conclusion that section 110 of the Adoption Act is subject to strict scrutiny. See supra ¶ 37. The majority opinion overlooks the crucial facts that the statute (a) retains the mother’s right to insist on proof of unfitness, abandonment, or neglect as a precondition to the termination of her rights, and (b) outlines clear steps for the mother to take in order to preserve her right to assert her views on these matters before her rights were terminated (steps the majority concedes comply with the demands of procedural due process, see supra ¶¶ 22–30). The statute also prescribes clear consequences for the failure to follow the stated procedures. These include termination—not on the ground that the mother was unfit—but on the ground that she procedurally defaulted. The statute, in other words, did not take away the mother’s right to insist that the court make a finding of unfitness before terminating her rights; the mother just forfeited that right by defaulting under the statute—by not filing the required motion to intervene.

¶156 That leaves the question whether the mother may excuse her forfeiture by claiming a substantive due process right to ignore the procedural requirements of the Adoption Act. The majority concludes that the mother has that right. It says that “mothers retain a fundamental right in their children regardless of a failure to comply with any state-prescribed procedure.” Supra ¶ 37 (emphasis added). The court cites no authority for that proposition. But the premise of its holding is the notion that a mother’s parental rights are fundamental and that procedural compliance is not necessary to preserve their fundamental nature. Supra ¶ 88. In describing its holding, the court says that substantive due process “protects individuals from being deprived of fundamental rights through the operation of procedures that are not narrowly tailored to further compelling state interests.” Supra ¶ 98.

¶157 This is the essence of the court’s holding. Because I oppose it, the court accuses me of creating a “novel framework” under which a fundamental right “can lose the protection of strict scrutiny review where the holder of the right fails to take on-going steps to preserve it.” Supra ¶ 88. But the “novel framework” the majority accuses me of establishing is nothing more than the longstanding law of procedural default. And the fundamental nature of a parental right is in no way undermined by the determination that it is subject to such law.215

¶158 The case law in this field also does not sustain the majority’s holding. An important line of precedent from the United States Supreme Court establishes that states retain the power to regulate even “fundamental” rights through procedure—and clearly rejects the notion that all such regulation is subject to strict scrutiny. The parental rights cases cited by the majority are not to the contrary. None of those cases comes close to establishing the substantive due process right established by the court today. The governing standard should be the one set forth in our opinion in J.S., and the mother has not come close to satisfying that standard.

  1. Standards of Scrutiny for Regulation of Fundamental Rights

¶159 The “fundamental” nature of a given right is not alone enough to trigger strict scrutiny of any procedural regulation of that right. The United States Supreme Court has applied something less than strict scrutiny review to the infringement of many fundamental rights, including the right to privacy, the right to freedom of speech, and the right to free exercise of religion. See generally, e.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992) (discarding the strict scrutiny-based abortion trimester framework of Roe v. Wade, 410 U.S. 113 (1973) for a more lenient “undue burden” test); United States v. O’Brien, 391 U.S. 367 (1968) (applying a more deferential standard to content-neutral regulation of speech than the strict scrutiny generally triggered by content-based regulations); Employ’t Div. v. Smith, 494 U.S. 872 (1990) (holding strict scrutiny inappropriate for neutral and generally applicable laws burdening religious practice). One commentator looking at these trends has observed that “the notion that government restrictions on fundamental rights are [always] subject to strict scrutiny review is fundamentally wrong” because “[s]ome fundamental rights trigger intermediate scrutiny,” some are “protected only by reasonableness or rational basis review,” and others “are governed by categorical rules, with no formal ‘scrutiny’ or standard of review whatsoever.” Adam Winkler, Fundamentally Wrong About Fundamental Rights, 23 CONST. COMMENT. 227, 227–28 (2006).216

¶160 The fact that fundamental rights do not always trigger the protection of strict scrutiny is made especially clear in a body of voting rights cases. The right to vote is described as “fundamental” in United States Supreme Court precedent. See Burdick v. Takushi, 504 U.S. 428, 433 (1992). But the high court has expressly rejected the proposition that this means that any regulation of this fundamental right triggers strict scrutiny. See id. at 432–34. In Burdick the Court described the idea that “a law that imposes any burden upon the [fundamental] right . . . must be subject to strict scrutiny” as an “erroneous assumption.” Id. at 432. It also warned that a decision “to subject every . . . regulation [of a fundamental right] to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest” would impermissibly “tie the hands of States.” Id. at 433. With this in mind, the Court has applied different levels of scrutiny to various regulations of the fundamental right to vote, depending on the degree to which the regulation restricts the right.

¶161 This framework is on display in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), in which the Court upheld a challenge to the constitutionality of an Indiana voter identification law. The Crawford case failed to produce a majority opinion. But the plurality and concurring opinions set forth two frameworks for analysis that both repudiate the idea of strict scrutiny of all regulation of the fundamental right to vote. Justice Stevens’ plurality opinion describes the operative regime as a “balancing approach” that weighs “the precise interests put forward by the State” against the “asserted injury to the right to vote.” Id. at 190 (citation omitted). On the other hand, Justice Scalia’s concurring opinion suggests that the Court applies a “two-track approach” that applies a “deferential ‘important regulatory interests’ standard for nonsevere, nondiscriminatory restrictions,” and “strict scrutiny for laws that severely restrict the right to vote.” Id. at 204-05.

¶162 Thus, the United States Supreme Court has made clear that voting rights “are not absolute and are necessarily subject to qualification” by state regulation, Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986), despite the fact that such rights are “of the most fundamental significance under our constitutional structure,” Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). Regulation will invariably impose some burden on an individual’s fundamental rights (to vote and associate freely). But the Court has nonetheless held that “as a practical matter, there must be . . . substantial regulation . . . if some sort of order, rather than chaos, is to accompany the democratic processes [of asserting these rights].” Storer v. Brown, 415 U.S. 724, 730 (1974).

¶163 The same conclusion must logically hold in the realm of parental rights. Such rights have been acknowledged to be fundamental, but they are not beyond the procedural reach of the State’s regulatory authority. And the mere fact that such rights are “fundamental” does not mean that any regulation of them is subject to strict scrutiny.

¶164 The procedural regulation at issue here is admittedly distinct from that at issue in the above-cited voting rights cases. Here we are dealing with longstanding rules of procedural default. But that kind of regulation, if anything, would seem to trigger a more permissive standard of scrutiny—not strict scrutiny. Under either the balancing approach of the Crawford plurality or the two-track approach set forth in the concurrence, there is no basis for a strict scrutiny standard. Here we are dealing with the application of neutral, longstanding rules of procedure. Because such rules impose no significant burden on parental rights and are nondiscriminatory, the Crawford opinions suggest the applicability of a deferential standard of scrutiny.

¶165 We have no briefing from the parties on this line of cases. And the majority opinion sidesteps them entirely. So we have no reason to render a conclusive holding on the effect of these cases on our decision. I cite them, however, because they thoroughly undermine the majority’s notion that any regulation of a fundamental right is always subject to strict scrutiny.

  1. Parental Rights Cases

¶166 None of the majority’s parental rights cases is to the contrary. The Quilloin case specifically identifies the forfeiture question that I have highlighted here but stops far short of establishing the substantive right to override a procedural default. And prior decisions of this court actively undermine the substantive due process extension established by the majority today. Our cases require far more than the vague assertion that a mother’s parental rights, broadly framed, are “fundamental.” The standard set forth in In re J.P. and reinforced by J.S. requires proof of a “deeply rooted” history and tradition at a very specific level of generality—here, a right to preserve a parental right despite non-compliance with the procedure required by law. The mother has failed to carry her burden under these cases. And her assertion of a substantive due process right to avoid forfeiture by procedural default should accordingly be rejected.

  1. Quilloin v. Walcott

¶167 The putative father in Quilloin had “never married . . . or established a home” with the mother of his child. 434 U.S. at 247. Soon after the child’s birth, the mother married another man and consented to adoption of the child by her husband. Id. Mr. Quilloin “attempted to block the adoption and to secure visitation rights, but he did not seek custody or object to the child’s continuing to live with [the mother and her husband].” Id. The Georgia court terminated his rights upon a finding that adoption of the child by the mother’s husband “was in the ‘best interests of [the] child.’” Id. at 251 (alteration in original). There was no determination of the putative father’s unfitness. Id. at 252. And the putative father asserted that his substantive due process rights were infringed because the state lacked sufficient justification for terminating his parental rights. Id.

¶168 The Quilloin court ruled against Mr. Quilloin. It did so on the basis of some core differences between the substantive interest established by Mr. Quilloin and that presented by the putative father in a prior parental rights case—Stanley v. Illinois, 405 U.S. 645. The father in Stanley had lived with his children and their mother for many years. Id. at 646. And he had thereby established a commitment and connection by which his parental rights were deemed to be perfected. Id. at 652. With this in mind, the Stanley court struck down an Illinois statute as an infringement of the father’s substantive due process rights. Id. at 659. The Illinois statute established a conclusive presumption that unwed fathers were unfit as parents as a matter of law. Id. at 649. And the Stanley court held that the statute infringed Mr. Stanley’s fundamental parental rights because the state did not have a sufficiently compelling interest to terminate the rights of unwed fathers by operation of a legal presumption. Id. at 652–53.

¶169 The Quilloin case was different. This was “not a case in which the unwed father at any time had, or sought, actual or legal custody of his child.” 434 US at 255. And that fact was sufficient to substantially alter the balance at issue in the case—whether the state had a sufficient reason to justify terminating Mr. Quilloin’s parental rights without proof of unfitness.

¶170 The Court expressed “little doubt” that it would violate a right of substantive due process for the state “to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” Id. But the Court found that Mr. Quilloin’s substantive interests were outweighed by the state’s in these circumstances. It thus upheld the substantive authority of the state to terminate Mr. Quilloin’s parental rights as a matter of law—explaining that it could not “say that the State was required in this situation to find anything more than that the adoption, and denial of legitimation, were in the ‘best interests of the child.’” Id.

¶171 Georgia law, as the Court noted, afforded to putative fathers a procedural mechanism for perfecting their parental rights. That mechanism was the filing of a “legitimation petition.” Id. at 253. Such a petition would have given Mr. Quilloin the same right to veto an adoption petition that a mother (or married father) had. See id. at 249. If Mr. Quilloin had filed such a petition, he could have objected to the adoption of his child, precluding the termination of his parental rights except upon a finding of unfitness. Id. Yet he failed to do so. The Georgia court concluded that Mr. Quilloin lacked standing to challenge the adoption on that basis. And the Supreme Court ultimately reversed the judgment of the Georgia court on substantive due process grounds. But the Quilloin court was not holding that the father’s procedural default or forfeiture could be excused on substantive due process grounds. It stopped far short of establishing a substantive due process right for a parent to retain parental rights “regardless of a failure to comply with any state-prescribed procedure.” Supra ¶ 37.

¶172 The Quilloin majority begins by noting an argument made by the adoptive parents (an argument that aligns precisely with the approach I am proposing in this case)—the notion that “due process was not violated, regardless of the standard applied by the trial court, since any constitutionally protected interest appellant might have had was lost by his failure to petition for legitimation during the 11 years prior to [the] filing” of the adoption petition. 434 U.S. at 254. This is a straightforward forfeiture argument. It is the idea that the father’s substantive due process argument is foreclosed because the State afforded the father a right to assert his interests and he failed to avail himself of that procedure. It says that “regardless” of the substantive standard applied for balancing the putative father’s interests against the state’s, the putative father loses because he stands in default or forfeiture by not having availed himself of a preservation procedure for asserting his interests.

¶173 The Quilloin court expressly avoided this basis for disposition. And it did so in a way that undermines the majority’s assertion that the Quilloin line of cases sustains the substantive due process right that the court establishes today. After noting the adoptive parents’ argument, the court expressed concern about resting its judgment on this basis. It concluded that it didn’t need to address the forfeiture argument “since under the circumstances of th[e] case [Mr. Quilloin’s] substantive rights were not violated by application of a ‘best interests of the child’ standard.” Id. The Court’s point was that it didn’t matter whether Mr. Quilloin might lose on forfeiture grounds because his substantive argument failed in any event. See id. (noting “hesitat[ion]” regarding “rest[ing] [a] decision on this ground, in light of evidence in the record that appellant was not aware of the legitimation procedure until after the adoption petition was filed”).

¶174 This makes clear that the Quilloin court was not saying that a substantive due process defect can cure a party’s procedural default or forfeiture. It was saying it didn’t need to address the procedural default because the substantive due process claim failed on its merits in any event. This highlights a key shortcoming of the majority opinion. It clarifies that the United States Supreme Court has never recognized a substantive due process right for a parent to preserve her parental rights despite a prior procedural default.

  1. In re J.P.

¶175 The same goes for our case law. Utah Supreme Court precedent has come nowhere close to endorsing the right established by the court today. And in fact, our cases chart a burden for establishing a substantive due process right that the mother in this case has not carried.

¶176 In In re J.P. we emphasized the importance of framing substantive due process rights narrowly and embedding the analysis in premises that are “deeply rooted in this Nation’s history and tradition” and in the “history and culture of Western civilization.” 648 P.2d at 1375 (citations omitted). We warned of the perils of “innovations” in substantive due process extensions premised on “undisciplined . . . abstract formulae.” Id. (citations and internal quotation marks omitted). And with this concern in mind, we framed the substantive due process in precise, specific terms. We did not frame the inquiry at a high level of generality by simply stating that a parent has a vague right that is “fundamental,” and proceed from that sweeping premise to our own formulation of the appropriate nature and extent of that right. Instead we recognized a narrow, specific right—the “right of a parent not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect.” Id. And we based that conclusion not on our own sense of the policies supporting this sort of right, but on the fact that firmly rooted “history” and longstanding tradition of the “common law” had established such a right. Id.

¶177 Our framing of the analysis in J.P. is significant. We based our determination of a substantive due process right on longstanding history and tradition. And we framed the recognized right at a highly specific level. We came nowhere close to employing substantive due process in a manner giving a parent a substantive right to avoid a default resulting from the failure to follow procedures required by law.

¶178 The J.P. framework requires proof of established history and tradition at a precise level of specificity. It is not enough to assert generally that a mother’s parental rights are fundamental. To succeed under J.P., the mother would have to present evidence of an established history and tradition of a right of mothers “not to be deprived of parental rights despite failure to comply with procedure afforded to allow the mother to assert her interests.” And the mother here has made no such showing, as I explain further below.

  1. In re J.S.

¶179 The majority also claims support for its substantive due process analysis in our decision in In re Adoption of J.S., 2014 UT 51. Citing J.S., the majority says that “a substantive due process claim may be brought where otherwise fair procedures are alleged to be unfair in light of the ‘fundamental or important’ right they foreclose.” Supra ¶ 85 (citation omitted). Because the mother’s right to parent her child is concededly fundamental, the majority says that J.S. establishes a basis for substantive scrutiny of the fairness of the procedures set forth in the Adoption Act—and thus a basis for concluding that the mother in this case has a right to retain her parental rights despite her failure to comply with required procedures.

¶180 J.S. does not support the majority’s approach, however. In fact, the standard set forth in J.S. reiterates and extends the warnings stated in J.P. J.S. nowhere endorses the idea of a substantive due process right to retain parental rights despite failure to comply with required procedure. Certainly it doesn’t say that such a right can be premised purely on the general notion that a mother’s parental rights are “fundamental.” Instead it asks for proof at a highly specific level of generality.

¶181 In J.S. the father asserted a “substantive right” to establish his parentage without complying with the procedural elements of the statute. 2014 UT 51, ¶ 24. The governing procedure under the Adoption Act in J.S. was the requirement that a putative father file a detailed affidavit to preserve his parental rights. UTAH CODE § 78B-6-121(3). And the father sought to assert a “due process challenge . . . to the ‘substantive constitutionality of the affidavit requirement at issue,’ while emphasizing that that claim subsisted regardless of whether the statutory limitations in question were ‘applied in a procedurally fair manner.’” In re Adoption of J.S., 2014 UT 51, ¶ 27. Thus, the father “repeatedly characterize[d] his claim as one challenging the statutory affidavit requirement as ‘substantively unconstitutional,’” or in other words as “aimed at establishing a ‘fundamental,’ ‘substantive right’ of an unwed father as a parent” without complying with the statutory affidavit requirement. Id. ¶ 24.

¶182 In this sense J.S. is directly applicable to this case. As in this case, the question in J.S. came down to whether there was a substantive due process right to preserve parentage without complying with the procedural requirements of the law. But the standard set forth by the J.S. opinion is not at all compatible with the approach taken by the majority today. J.S. acknowledges the possibility of a limited form of substantive scrutiny of procedure— in a case in which a party can show not only that a general right or

 

interest is “fundamental,” but also that there is an established, longstanding tradition entitling a party to the protection of such right without compliance with procedures prescribed by the government. See id. ¶ 57 (plurality opinion) (explaining that a party would need to “establish a specific showing that the precise interest asserted by the parent is one that is deeply rooted in this Nation’s history and tradition and in the history and culture of Western civilization” (citation and internal quotation marks omitted)). In other words, J.S. speaks to the appropriate level of generality at which to frame an inquiry into the existence of a substantive due process right. It suggests a specific and narrow framing—not the broad, sweeping level of generality that the majority today espouses.217

¶183 In articulating this standard, the J.S. opinion went out of its way to warn of the “slippery slope problems” associated with any decision to endorse a new substantive due process right in this field. Id. ¶ 59 (plurality opinion). It noted that the father asserted a broad historical basis for recognizing the rights of unwed fathers. But it concluded that that was insufficient. The putative father had failed “to identify any longstanding, widespread basis in our history and culture for recognizing a perfected right in unmarried biological fathers arising upon their mere filing of a paternity suit (and without following other requirements set forth by law).” Id. (emphasis added). And it noted that “[e]ndorsement of a substantive right in this case would inevitably lead to a series of line-drawing problems going forward, requiring courts to make policy judgments about whether the biological father before the court had done enough to properly justify the recognition of his parental rights.” Id. ¶ 60. J.S. explained that such “policy judgments are matters for legislative action.” Id. ¶ 61.

¶184 J.S. also noted that “[o]ur legislature has spoken to th[e] question” of where to draw the line on the procedure for a putative father to preserve the assertion of his parental rights—“prescribing a series of prerequisites” to the assertion of his rights. Id. It rejected the putative father’s attempt to “second-guess those requirements” by “establish[ing] a substantive due process right to perfect his parental rights on something less than the grounds prescribed by the legislature—by filing a paternity action but not the affidavit called for by statute.” Id. “Doing so,” the plurality explained, “would put us in the problematic realm of making ‘due process innovations’ dictated by ‘abstract formulae’ and without any effective limiting principle.” Id. And with this in mind it held the putative father to the substantive due process standard quoted above—a standard framed at a specific level of generality.

¶185 The opinion also connected this standard to the law of procedural default or forfeiture. It noted that the putative father in that case was merely “claim[ing] that he ignored” the procedural requirements of our law “on the (bad) advice of counsel.” Id. ¶ 63. And while acknowledging that this was “unfortunate,” it emphasized that “bad legal advice is no excuse for failure to follow” procedural prerequisites to the assertion of a party’s legal rights, noted that “our legal system treats attorneys as agents for their clients,” and explained that we “deem clients responsible for the decisions they make on advice of counsel.” Id.

¶186 J.S. thus emphasizes the narrowness of the operative notion of substantive due process. In rejecting the father’s substantive due process claim in that case, the lead opinion explained that the father had failed to “make the kind of showing,” id. ¶ 58,” needed to establish such a right—proof of a “longstanding, widespread basis in our history and culture for recognizing a perfected right in unmarried biological fathers arising upon their mere filing of a paternity suit (and without following other requirements set forth by law),” id. ¶ 59. And it also connected this strict standard of substantive due process to the law of procedural default or forfeiture.

¶187 The above bears no resemblance to the standard applied by the majority in this case. The majority invokes J.S. in support of a substantive standard of scrutiny of the statutory procedure under review—here, the requirement of a motion to intervene. See supra ¶¶ 84–86. And it roots its holding in the bare notion that a mother’s rights in a child are “fundamental”—presupposing that the inquiry should be framed at a broad, sweeping level of generality. See supra ¶¶84–86. But that is not the approach taken in J.S. J.S. took the substantive due process claim at issue on its own terms—framing it at a highly specific level of generality. And the plurality in J.S. rejected that claim on the ground that the father had not established a basis in history and tradition for the notion of a substantive right—narrowly framed—to preserve parental rights without complying with the established statutory procedure.

¶188 J.S. thus charts a narrow, limited domain for a claimed substantive right to preserve parental rights despite a party’s default under established procedure. And it highlights the novelty—and error—in the majority’s decision to endorse a substantive right to preserve parental rights despite a procedural default under the law.218

  1. In re B.Y.

¶189 The majority also claims support for its approach in In re Adoption of B.Y., 2015 UT 67. Citing B.Y., the majority says that our substantive due process analysis opens the door to scrutiny of the “fairness” of a “procedural bar or limitation” in a statute “on the ground that the right foreclosed is so fundamental or important that it is protected from extinguishment.” Supra ¶¶ 31, 98. Because the mother’s right to parent her child is concededly fundamental, the majority says that B.Y. establishes a basis for substantive scrutiny of the fairness of the procedures set forth in the Adoption Act—and thus a basis for concluding that the mother in this case has a right to retain her parental rights despite her failure to comply with required procedures. Supra ¶¶ 31, 98. But the B.Y. opinion is consistent with Quilloin, J.P., and J.S—it comes nowhere close to establishing a substantive due process right to retain parental rights despite a procedural default.

¶190 In B.Y. a putative father sought to challenge the Adoption Act’s mandate of “strict compliance” with the procedural requirements of the statute—specifically, the requirement of filing a paternity action prior to the mother’s consent or relinquishment of the child for adoption. 2015 UT 67; UTAH CODE § 78B-6-121(3) (The “consent of an unmarried biological father is not required unless, prior to the time the mother executes her consent for adoption or relinquishes the child for adoption, the unmarried biological father . . . initiates proceedings . . . to establish paternity . . . .”). Despite the failure to fulfill this procedural requirement, the father in B.Y. asserted that he “did enough to ‘grasp’ his ‘opportunity . . . to develop a relationship with his offspring’” to perfect a fundamental parental right under United States Supreme Court precedent. 2015 UT 67, ¶ 42 (omission in original). And he asserted that the strict compliance requirement infringed his substantive due process rights as a parent.

¶191 We acknowledged the possibility of a substantive due process claim in this realm, but we rejected it on its merits. We noted that “[a]n unwed father’s rights are merely provisional,” emphasized that he “must comply with legal prerequisites established by the state” to perfect such rights, and concluded that “[f]ailure to do so leaves the father’s parental rights without any substantive protection—except in the narrow circumstance in which the prerequisites established by the state are arbitrary.” Id. ¶ 43. In so doing we emphasized that “[t]he Due Process Clause . . . is not a license for courts to second-guess the prerequisites established by the legislature for a putative father to perfect his parental rights.” Id. ¶ 44. “Instead,” we said that “the well-settled standard yields substantial deference to the state’s chosen prerequisites.” Id. And we explained that “[i]t does so in light of the state’s important interest in ‘immediate and secure adoptions for eligible newborns.’” Id. We held that the putative father’s claim “fail[ed] under this standard.” Id. ¶ 46.

¶192 The majority seeks to distinguish B.Y. and to claim support for its approach in that opinion. It says that B.Y. supports the application of a standard of strict scrutiny in assessing the “fairness” of the procedure set forth in the Adoption Act—the requirement of filing a motion to intervene. Supra ¶¶ 31, 98. And it bases that determination on the fact that this case involves the parental rights of a mother, which are automatically “fundamental,” while B.Y. involved the rights of a putative father, which are “merely provisional.” Supra ¶ 35. The point is correct as far as it goes. But until today, no court has ever extended it in the manner endorsed by the majority. The majority is of course right to say that a biological mother’s rights are inherently and automatically “fundamental” under the law. And the court is equally correct in its observation that the parent’s alleged right in B.Y. was inchoate or “merely provisional.” This was, moreover, a key basis for our decision in B.Y. The substantive due process claim in B.Y. was deficient because a putative father’s provisional right required additional acts on the father’s part before the right could be perfected as fundamental. And we had no trouble rejecting the father’s substantive due process right in light of the cited premises in our case law—the need for “substantial deference” to the state’s chosen procedural “prerequisites” to the establishment of a parental right, and the substantial basis for protecting “the state’s important interest in ‘immediate and secure adoptions for eligible newborns.’” B.Y., 2015 UT 67, ¶ 44.

¶193 But the majority’s analysis assumes that a fundamental right once acquired is therefore insulated against forfeiture through procedural default. The court cites no case law in support of its decision to establish a new substantive right to retain a fundamental parental right despite procedural default. And such a right does not at all follow from the fact that the underlying right is itself protected as a matter of substantive due process. Again, a mother’s parental rights are automatically fundamental in the sense that she is not required to jump through the procedural hoops to perfect those rights required of fathers under our case law. See J.S., 2014 UT 51, ¶ 2 (explaining requirements for fathers to file paternity petitions and present evidence regarding their support of the child to make a threshold showing of parentage and perfect their parental rights). But the connection between procedural compliance and the initial perfection of parental rights is beside the point here. Here the parental right at issue is admittedly perfected (and was so without the need for the procedural compliance required of fathers), so the question is whether that concededly perfected right can later be forfeited through procedural default. By holding that it cannot, the majority establishes a new right of substantive due process.

¶194 The majority repeatedly insists otherwise. Citing cases establishing a mother’s lack of need for procedural compliance at the perfection stage, it says that the mother must likewise have no obligation to comply with another set of procedures (for preservation) at a later stage. Supra ¶¶ 36–37; 79–91. But this is a big step. The fact that a mother need not jump through procedural hoops to perfect her parental rights not only bears on a different stage of procedural compliance; it also has no bearing on procedural default generally.

¶195 The mother is not required to jump through procedural hoops to establish her parental rights in the first instance. But that is not because her fundamental parental rights encompass a right to flout procedural requirements generally. It is because there is an established tradition—framed in narrow, specific terms—of respecting a mother’s rights without any requirement of any procedural act aimed at perfecting those rights. That tradition is reflected in the fact that the law does not extend the requirement of compliance with this procedure to mothers. See UTAH CODE § 78B-6-121(3).

¶196 None of these premises apply to the procedures at issue here. The procedural rules of preservation assuredly do apply to both mothers and fathers. And in the absence of evidence of an established tradition allowing a mother to retain her rights despite a failure to comply with those rules, the court has no basis to establish the existence of such a right.

¶197 By focusing on the difference between mothers’ and fathers’ rights at the threshold stage of perfection and importing that distinction to any later instance of procedural default, the majority also ignores the fact that the state’s interest in procedural compliance at these later stages is the same for both mothers and fathers. The fact that the mother’s rights are automatically fundamental does not mean that she can blithely avoid any need to follow state procedure in an adoption proceeding.

¶198 The Adoption Act’s procedural requirements are not aimed only at putative fathers. They are also aimed at mothers. See UTAH CODE § 78B-6-110(6)(a) (requiring that a mother, or any other party who receives notice of adoption, must file motion to intervene in adoption proceeding within 30 days); id. § 78B-6-110(6)(b) (stating that a mother who fails to “fully and strictly comply” with this requirement “forfeits all rights in relation to the adoptee”). And the legislature has articulated substantial interests that are advanced by requiring a mother to intervene as a party and assert her position regarding any claimed basis for termination of her rights (such as unfitness, abandonment, or neglect). The legislature has expressly found, for example, that “the state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner, in preventing the disruption of adoptive placements, and in holding parents accountable for meeting the needs of children.” Id. § 78B-6-102(5)(a). It has also concluded that “adoptive children have a right to permanence and stability in adoptive placements.” Id. § 78B-6-102(5)(c). These are important concerns. And they are obviously furthered by a requirement that a mother intervene as a party in a timely fashion and assert any proffered challenge to termination of her parental rights. Failure to do so results in a forfeiture of those rights. Neither the mother nor the majority has identified any basis in the law of forfeiture by procedural default or in the Adoption Act to contradict that conclusion.

¶199 The state’s interests in assuring “stable and permanent homes for adoptive children in a prompt manner” and “preventing the disruption of adoptive placements” thus remain intact whether the parental rights at stake are those of a biological mother or a putative father. See id. UTAH CODE § 78B-6-102(5)(a). And it is in this sense that the question of perfection is irrelevant. It is not—as the majority suggests—a threshold question that can obviate the need to establish a historical basis for noncompliance with governing procedure. The historical inquiry is not aimed at finding a basis for whether the parent’s right is fundamental or not. The historical inquiry is aimed at finding a basis for noncompliance with procedure despite holding fundamental parental rights. It bears repeating that no court has ever established a substantive due process right of a mother to retain her parental rights despite defaulting those rights under governing procedure. We certainly didn’t establish such a right in B.Y. In fact, B.Y. left intact the standard put forth in J.S.—a standard that requires much more than a mere challenge to the “unfairness” of procedure for preserving parental rights, and that instead requires a deeply rooted historical basis for a fundamental right to retain parental rights despite failing to comply with the governing procedure. And, again, the mother has not come close to carrying that burden here, as discussed in more detail below.

¶200 J.S., admittedly, is not a case involving a biological mother’s forfeiture of parental rights through procedural default. So it is true that my proposed disposition would be an extension of J.S. insofar as that case did not involve a substantive due process challenge to forfeiture of a mother’s parental rights. But this only buttresses my point that this a case of first impression. And J.S. is our most relevant precedent, both bearing on forfeiture of parental rights through procedural default and suggesting a position in the levels of generality debate discussed above. See supra ¶¶ 179–88. The J.S. plurality advocated for a specific framing of the new right proposed to be established as a matter of substantive due process. And because the framing question is independent of whether a parent is a father or a mother, it bears directly on today’s case and I would apply it.

¶201 The majority charges me with mischaracterizing the right at issue. It complains that I am “mark[ing] a fundamental departure from the way courts have traditionally defined parental rights.” Supra ¶ 55. I am puzzled by this charge. I concede that there is a lot of novelty in this case. But the novelty comes from the majority’s extension of the law of substantive due process—from its reframing of the alleged new right at the highest level of generality.

¶202 The cases I have cited admittedly deal only with the rights of putative fathers. But it does not at all follow that a mother’s rights are insulated from procedural default. The mother, as noted, is not required to jump through procedural hoops to protect her rights at the outset. But the majority is seizing on a false procedural equivalence in insisting that that means she can never be subject to any procedure at any stage. The majority is accordingly right to highlight the novelty of this case. The novelty, however, is entirely in the majority opinion.

  1. Application of the Governing Standard

¶203 For the above reasons there is no basis in existing case law for the establishment of a substantive due process right for a mother to avoid the usual effect (forfeiture) of a procedural default. Certainly that does not follow from the premise that a mother’s rights are unquestionably “fundamental.” Much more analytical work is required under the above precedent. To sustain a right to preserve parental rights despite the failure to comply with established procedure, the mother should be required to make a showing at a specific level of generality based on firmly rooted history and tradition. See In re Adoption of J.S., 2014 UT 51, ¶ 57 (plurality opinion). She should have to show not just the general notion of a fundamental right as a mother, but a right to preserve her rights without complying with established statutory procedure.

¶204 The mother has made no effort at such a showing. Instead she claims only (a) that mothers generally have rights that are automatically fundamental, and (b) that the procedure required by the Adoption Act is generally “unfair.” The majority opinion’s analysis is to the same effect. See supra ¶ 37 (asserting that “[a] right of a mother not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect is . . . fundamental” (citation and internal quotation marks omitted)).219

¶205 This falls far short under our law. And the mother’s substantive due process claim should be rejected on the ground that she has failed to carry the heavy burden set forth in our cases—a burden that the majority distorts in its decision today. Contrary to the majority’s claim, I am not saying that the substantive due process right at issue is defined by “referencing the form of governmental interference.” Supra ¶ 65. I am simply saying that the established procedures determine how and whether such a right is preserved.

¶206 It is tempting to see a technical defect in procedural compliance as a matter that should lightly be excused. But procedural rules are always two-edged. There is always an interest on the other side of the equation. And the procedural requirements of the Adoption Act are no exception.

¶207 The adoption arena is one where strict procedural compliance is at a premium. The state has a compelling interest in “providing stable and permanent homes for adoptive children in a prompt matter” and “preventing the disruption of adoptive placements.” UTAH CODE § 78B-6-102(5)(a). To serve the interest of protecting “the welfare of the child, a determination that a child can be adopted must be final as well as immediate.” Wells v. Children’s Aid Soc. of Utah, 681 P.2d 199, 203 (Utah 1984). And statutory procedures for natural parents to participate in and assert their rights in adoption proceedings are a core element of this system.

¶208 We have long respected the interests advanced by the procedural requirements of the Adoption Act. We should continue do so here. The state’s interests in stability and finality are no less substantial here—in a case involving a biological mother. And the majority has identified no legal basis for avoiding this conclusion.

II

¶209 In setting the procedural rules for participation in an adoption proceeding, our legislature could have required that a biological mother be formally named as a party and served with a summons and petition for adoption. Some other states structure their law in this way.220 And I can see an argument for favoring this sort of scheme. If I were a legislator I might be tempted to vote for this kind of adoption regime.

¶210 But I am not a legislator. And we are not being asked to take on the role of super-legislature. We are being asked to decide whether the constitution invalidates the adoption provisions that were enacted into law by the legislature that was elected into office by the people. The answer to that question is no. The majority breaks new constitutional ground in concluding otherwise. It cites no on-point precedent to support its novel adoption of a substantive due process right to override the effect that our law has long prescribed for a party’s procedural default—forfeiture of the party’s rights.

¶211 The majority’s due process standard, moreover, threatens a wide range of adoption procedures in place in numerous states across the nation. Procedural default is a well-established basis for the termination of parental rights.221 Yet the majority’s standard calls this basis into question. When parental rights are terminated as a result of a mother’s procedural default, the effect will always come about without proof of unfitness, abandonment, or neglect. And this effect, in the majority’s view, will always trigger strict scrutiny. Supra ¶ 37. This sweeping extension of strict scrutiny threatens the viability of the procedures and rules of procedural default or forfeiture. The majority seeks to mask this upheaval by emphasizing the “narrowness” of its holding, insisting that procedures regulating fundamental rights may yet be preserved—so long as they are “‘narrowly tailored’ to protect a ‘compelling governmental interest.’” Jones v. Jones, 2015 UT 84, ¶ 27, 359 P.3d 603 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).

¶212 But this is no real brake on the majority’s approach. The majority holds that a party’s noncompliance with procedure is excused (on substantive due process grounds) so long as the purpose of a procedural requirement is fulfilled. See supra ¶¶ 47–48. The standard states, in other words, that a procedural requirement whose purpose can be fulfilled in an alternative manner is a procedural requirement that is not narrowly tailored.

¶213 And that is a principle with unlimited potential for mischief. The application of a strict scrutiny standard to procedural regulation of fundamental rights forecloses the whole idea of regulation by a uniform set of procedural rules. If the majority’s approach takes root, our law will require case-by-case analysis of the viability of any and all procedural rules that may sustain the sanction of a default of a fundamental right. And this will undermine the whole point of procedural regulation. Our rules will be pointless if parties can ignore them and instead secure personalized standards set by the courts on a case-by-case basis.

¶214 The majority’s framework calls into question a broad range of established procedures. The majority seeks to minimize the impact of its decision. Supra ¶ 37 n.67. But it has identified no meaningful limiting principle. Almost all procedure is not narrowly tailored. Most all procedural rules, by nature, are in a sense quite arbitrary. And that means that there will almost always be a less restrictive means of advancing the underlying goal.

¶215 Consider a standard procedural time bar, like a requirement that a party file an answer within thirty days, or a response to a motion for summary judgment within a prescribed timeframe. If a mother fails to file a timely answer or response to the motion her case may be defaulted. Does the principle of substantive due process give her the right to ignore the time limits in our rules because the time limits we have prescribed are arbitrary numbers and the underlying purpose is still served by a late filing? That is not how our law of procedure works. And the doctrine of substantive due process has never been employed in a manner calling into question the enforceability of the procedural default rules built into our law of procedure.

¶216 Procedural default rules serve the state’s compelling interests in promoting prompt and stable adoptions. See supra ¶ 42 (citing Thurnwald v. A.E., 2007 UT 38, ¶¶ 30, 34, 163 P.3d 623). But such rules may often not be the least restrictive means of advancing those interests. When a rule of procedural default is not the least restrictive means of advancing the state’s interests, the rule will be struck down as unconstitutional. And this will upset longstanding principles of procedural default and forfeiture—and undercut the reliance interests of adoptive parents and children. See supra ¶¶ 42, 82.

¶217 The majority opens the door to a new frontier of substantive due process scrutiny—scrutiny of the fairness of the procedures prescribed for the procedural default or forfeiture of legal rights. If the majority opinion is taken to its logical end, the law of procedural default or forfeiture will be forever pressed into a state of limbo. And parties in cases involving fundamental rights will stand in a particular state of unease.

¶218 Today we speak only to the rights of parents. But the logic of today’s decision sweeps much more broadly. As framed by the court, it would cover any of a wide range of other fundamental rights—including the right to liberty (freedom from incarceration) or the right to vote. Our laws require those asserting their interest in freedom from incarceration to comply with procedural rules in the law of preservation. See, e.g., UTAH CODE § 78B-9-106 (precluding relief under the Postconviction Remedies Act on any ground that “could have been but was not raised at trial or on appeal” or that “is barred by the limitation period established in Section 78B-9-107”); see also, e.g., Taylor v. State, 2012 UT 5, 270 P.3d 471 (rejecting defendant’s Postconviction Remedies Act claims because they were procedurally barred). The same goes for fundamental rights like the right to vote. See, e.g., UTAH CODE § 20A-2-102.5 (establishing a voter registration deadline with limited exceptions). In the wake of today’s decision the parties to a case involving these and other fundamental rights should be on notice that the usual effect of a procedural default (forfeiture) may not hold. The courts will retain the prerogative of second-guessing these procedures—and may set them aside if the majority’s strict scrutiny standard is taken seriously.

¶219 This is troubling. The majority’s novel approach threatens the very foundations of the law of procedural default or forfeiture. And it places no meaningful limit on judicial discretion to second-guess the law in this field. Our precedent has charted a more principled course for recognizing viable substantive due process claims. I would apply that precedent here. And I would conclude that the mother has failed to carry her burden of proving a deeply rooted historical basis for a fundamental right to retain parental rights despite failing to comply with the governing procedure.

———————–

FOOTNOTES:

1 UTAH CODE §§ 78B-6-101 et seq. Mother specifically challenges the constitutionality of Utah Code section 78B-6-112. She argues, however, that section 112 “does not operate alone” in the present case because the district court relied on provisions in sections 110 and 120.1 to terminate her parental rights under section 112.

2 Although at one point in Mother’s brief she states that the Adoption Act is unconstitutional “on its face” and “as applied,” we note that her claim is more properly viewed as an as-applied challenge. “A statute may be unconstitutional either on its face or as applied to the facts of a given case. A facial challenge is the most difficult because it requires the challenger to ‘establish that no set of circumstances exists under which the [statute] would be valid.’ An as-applied challenge, on the other hand, succeeds if the challenger shows that the statute was applied to him or her in an unconstitutional manner.” State v. Herrera, 1999 UT 64, ¶ 4 n.2, 993 P.2d 854, 857 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).

Mother has brought an as-applied challenge. Throughout her briefing, and at oral argument, she repeatedly relies on her status  as a mother with fundamental parental rights as the basis for her claim. In so doing, she repeatedly attempts to distinguish cases where we have upheld strict requirements in the Adoption Act against putative fathers or other individuals lacking fundamental rights from this case. Because these other cases illustrate that there are sets of circumstances where the challenged provisions in this case may be constitutionally applied, they are not facially unconstitutional. Additionally, Mother’s argument hinges on facts specific to this case—she argues that her rights were violated “despite the fact [that] she appeared in the action, the court added her as the Respondent, and she filed an Answer asserting her parental rights.” Because her due process claim hinges on facts specific to this case, and she does not argue that any provision of the Adoption Act would be unconstitutional under every set of circumstances, her due process claim is properly viewed as an as-applied challenge.

3 Utah Code section 78B-6-110(2) provides that “[n]otice of an adoption proceeding shall be served on” certain persons, including the mother of the adoptee.

4 Utah Code section 78B-6-120.1(3) provides that “[c]onsent or relinquishment . . . may be implied by . . . receiving notification of a pending adoption proceeding under Subsection 78B-6-110(6) or of a termination proceeding under Section 78B-6-112 and failing to respond as required.”

5 Utah Code section 78B-6-112(5) provides that “[t]he district court may terminate an individual’s parental rights in a child if . . . the individual . . . received notice [under section 110] and . . . failed to file a motion for relief . . . within 30 days after the day on which the person receives service.”

6 Mother bases her claim on the guarantees of the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution and of article I, section 7 of the Utah Constitution. All three provisions provide that no person shall be deprived “of life, liberty, or property, without due process of law.”

7 Summerhaze Co., L.C. v. Fed. Deposit Ins. Corp., 2014 UT 28, ¶ 8, 332 P.3d 908 (citation omitted) (internal quotation marks omitted).

8 Swallow v. Jessop (In re United Effort Plan Trust), 2013 UT 5, ¶ 21, 296 P.3d 742 (citations omitted).

9 Id.

10 Id.

11 Id.

12 Id. (alteration in original) (citation omitted).

13 UTAH CODE §§ 78B-6-101 et seq.

14 Mother also argues that the district court erred in striking her answer, barring her from the adoption proceedings, and entering her implied consent to the adoption under Utah Code section 78B-6-120.1. “Motions to strike pleadings or parts thereof are addressed to the judgment and discretion of the trial court. A ruling thereon, except under circumstances which amount to a clear abuse of discretion, will not be disturbed on appeal.” Francis v. State, 2013 UT 65, ¶ 19, 321 P.3d 1089 (internal quotation marks omitted). Because our determination regarding her due process claim makes it unnecessary to decide this claim, we decline to address it. Additionally, the Adoptive Parents argue that Mother failed to preserve her constitutional challenge to the Adoption Act’s scheme. But the record reveals that Mother challenged the district court’s decision on due process grounds on two separate occasions: first in her opposition to the motion to strike and again in her rule 60(b) motion. And so we find that she preserved this issue for appeal.

15 We note that J.N., unlike Mother, has not raised any constitutional challenges to the Adoption Act.

16 UTAH CODE § 78B-6-110(2) (2017) (“Notice of an adoption proceeding shall be served on . . . any person or agency whose consent or relinquishment is required under Section 78B-6-120 or 78B-6-121, unless that right has been terminated by: (i) waiver; (ii) relinquishment; (iii) actual consent, as described in Subsection (12); or (iv) judicial action.”); id. § 78B-6-120(c) (identifying “mother of the adoptee” as a person from whom consent or relinquishment is required before an adoption may take place).

17 Id. § 78B-6-110(6)(a).

18 Id.

19 Id. § 78B-6-110(6)(b).

20 Id. § 78B-6-112(5)(c).

21 Id. § 78B-6-120.1(3)(d).

22 Although Mother categorizes her challenge of the Adoption Act as both a procedural and substantive due process challenge, she does not direct much, if any, of her argument toward the procedural due process standard.

23 In re Adoption of B.Y., 2015 UT 67, ¶ 16, 356 P.3d 1215 (citing United States v. James Daniel Good Real Prop., 510 U.S. 43, 48 (1993)).

24 Id. ¶ 18 (citing Mathews v. Eldridge, 424 U.S. 319, 348 (1976)).

25 Id. ¶ 23.

26 Id. (internal quotation marks omitted) (quoting Gray v. Netherland, 518 U.S. 152, 182 (1996)).

27 See Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982) (“The State may erect reasonable procedural requirements . . . [such as] statutes of limitations . . . . And the State certainly accords due process when it terminates a claim for failure to comply with a reasonable procedural . . . rule.”).

28 In re Adoption of B.Y., 2015 UT 67, ¶ 27 (alteration in original) (citation omitted) (internal quotation marks omitted).

29 Id. ¶ 28.

30 Id. ¶ 32 (citation omitted).

31 Id. ¶ 31 (citation omitted).

32 615 P.2d 1250 (Utah 1980).

33 Id. at 1256.

34 Id. at 1252.

35 Id.

36 Id. at 1256.

37 Id.

38 2014 UT 51, 358 P.3d 1009.

39 Id. ¶ 1.

40 Id. ¶ 11.

41 Id. ¶ 19.

42 Id. ¶ 23.

43 Id. ¶¶ 23–24.

44 Instead, Mother has argued that strict compliance and intervention is unnecessary for a biological mother. This challenge is more properly categorized as a substantive due process challenge.

45 Mother was represented by counsel when she filed her answer.

46 2014 UT 51, ¶ 23.

47 In re Adoption of B.Y., 2015 UT 67, ¶ 41, 356 P.3d 1215 (alteration in original) (internal quotation marks omitted).

48 Jones v. Jones, 2015 UT 84, ¶ 26, 359 P.3d 603 (“When the court has recognized a due process right it deems ‘fundamental,’ it consistently has applied a standard of strict scrutiny to the protection of such a right.”).

49 In re Adoption of J.S., 2014 UT 51, ¶ 56, 358 P.3d 1009 (plurality opinion).

50 2015 UT 67.

51 Id. ¶ 41.

52 Id.

53 Id. ¶¶ 16, 37, 40 (internal quotation marks omitted).

54 Id. ¶ 41 (noting that the father had also “challenge[d] the application of the strict compliance provision . . . under the substantive component of the Due Process Clause.” (emphasis omitted)).

55 Id. ¶ 43. In In re B.Y., we explained that the right of an unmarried father is “merely provisional” until the father complies with the requirements established for the perfecting of that right. Id. This ruling is consistent with the United States Supreme Court’s decision in Lehr v. Robertson, where the Court explained that an unmarried father does not have a recognized parental right until he takes some affirmative action to “grasp” the opportunity to develop a relationship with his child. 463 U.S. 248, 262 (1983). Thus the right at issue in In re B.Y. was not a fundamental parental right, but a provisional right to an “opportunity” to develop a parental right. See id. at 262–63 (“We are concerned only with whether New York has adequately protected [the unmarried father’s] opportunity to form such a relationship.”).

56 In re B.Y., 2015 UT 67, ¶ 43 (determining whether “the prerequisites established by the state [were] arbitrary” (emphasis omitted)).

57 Id. ¶ 46.

58 In re J.P., 648 P.2d 1365, 1374 (Utah 1982); see also In re Adoption of J.S., 2014 UT 51, ¶ 2 (distinguishing between the requirements imposed on unmarried fathers and unmarried mothers).

59 In re J.P., 648 P.2d at 1374–75.

60 In re Adoption of J.S., 2014 UT 51, ¶ 2 (emphasis added).

61 Wells v. Children’s Aid Soc’y of Utah, 681 P.2d 199, 206 (Utah 1984) (citation omitted).

62 In re J.P., 648 P.2d at 1373.

63 See In re Adoption of J.S., 2014 UT 51, ¶ 2 (explaining that an “unwed father’s legal obligation to file the paternity affidavit [was] a rough counterpart to the mother’s commitment,” which is “demonstrated by [the mother’s] decision to carry a child to term”).

64 In re J.P., 648 P.2d at 1375 (emphases added); see also id. at 1372 (explaining that a mother “has a fundamental right, protected by the Constitution, to sustain [her] relationship with [her] child” (emphasis added) (citation omitted) (internal quotation marks omitted)).

65 In fact, the Supreme Court has stated that, “[i]f anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections” than do others. Santosky v. Kramer, 455 U.S. 745, 753 (1982). For this reason, states “must provide . . . parents with fundamentally fair procedures” when moving to destroy parental bonds. Id. at 753–54.

66 Wells, 681 P.2d at 204; see also In re J.P., 648 P.2d at 1372 (“[T]he correlative of parental rights is parental duties. When parents fail to, or are incapable of, performing their parental obligations, the child’s welfare must prevail over the right of the parent.” We have noted, of course, that mothers and fathers may “choose to waive” their parental rights. In re Adoption of J.S., 2014 UT 51, ¶ 2 (emphasis added).

67 In re Adoption of J.S., 2014 UT 51, ¶ 42. By recognizing that statutorily imposed consequences for a failure to comply with procedural requirements infringe on a mother’s fundamental right, we are not suggesting that mothers may never be subject to procedural requirements. Instead, we are merely recognizing that where a procedural requirement—and the statutorily imposed consequences for failing to comply with that requirement— infringe on a fundamental right, that requirement is constitutional only so long as it is narrowly tailored to further a compelling state interest.

68 The dissent argues that the Adoption Act does not authorize the termination of parental rights “without requiring ‘proof of unfitness, abandonment, or neglect’” because, had Mother strictly complied with the procedural requirements of the Act, she could have had an opportunity to defend her parental rights. See infra ¶ 154 n.213 (Lee, A.C.J., dissenting). Not only does this argument ignore the “as-applied” nature of Mother’s substantive due process claim, but it also ignores our case law, which clearly recognizes a mother’s right to maintain her parental rights unless she voluntarily relinquishes them or a court finds that she forfeited them by being an unfit parent or by abandoning or neglecting the child. So where this right is terminated for some other reason— such as in consequence of a mother’s procedural default—the termination of the mother’s parental rights must be reviewed under our strict scrutiny standard. And we note that, contrary to the dissent’s suggestion, this rule does not exempt mothers from constitutionally valid procedural requirements.

69 This assertion is only partially correct. Although the district court noted that the Adoptive Parents had provided sufficient evidence of abuse, unfitness, and neglect in its findings of fact and conclusions of law, it also based its decision to terminate Mother’s parental rights on the fact that Mother’s right to consent had been forfeited under sections 110 and 112, and that under section 120.1 her consent could be implied.

70 UTAH CODE § 78B-6-110(6)(b)(ii).

71 In re Adoption of J.S., 2014 UT 51, ¶ 2 (explaining that a mother’s parental rights include the “right to object to an adoption”); see also In re J.P., 648 P.2d at 1372 (explaining that a mother “has a fundamental right, protected by the Constitution, to sustain [her] relationship with [her] child” (emphasis added) (citation omitted) (internal quotation marks omitted)).

72 See In re K.J., 2013 UT App 237, ¶ 26, 327 P.3d 1203 (explaining that in a typical proceeding to terminate parental rights, although the “petitioner bears the ultimate burden of proving the grounds for termination by clear and convincing evidence, once evidence is presented that would justify termination, the burden shifts to the parent to persuade the court that the [petitioner] had not established [the ground for termination] by clear and convincing evidence.” (alterations in original) (citations omitted) (internal quotation marks omitted)).

73 In re J.P., 648 P.2d at 1372–77 (recognizing a parent’s fundamental right to “maintain parental ties to his or her child,” and “in the care, custody, and management of [his or her] child,” as well as the right of a mother “not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect”).

74 See Jones, 2015 UT 84, ¶ 26.

75 Id. ¶ 27 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).

76 Although Mother has challenged three sections of the Adoption Act—sections 110, 112, and 120.1—as they work together, it is the strict compliance provision of section 110 that prompted the district court’s termination of Mother’s parental rights. Accordingly, we focus on this requirement in our strict scrutiny analysis.

77 In re Adoption of B.B.D., 1999 UT 70, ¶ 14, 984 P.2d 967.

78 See, e.g., In re Adoption of B.Y., 2015 UT 67, ¶¶ 42–46 (declining to consider a putative father’s substantive due process claim under a strict scrutiny standard because the father had not yet perfected his parental rights and holding that until a putative father perfects his parental rights under the Adoption Act, his rights are “merely provisional” rather than fundamental).

79 See id. ¶¶ 41–46 (holding that “the strict compliance provision of the Adoption Act” was not arbitrary in the context of a putative father’s due process challenge).

80 In re Adoption of B.B.D., 1999 UT 70, ¶ 14 (internal quotation marks omitted).

81 UTAH CODE § 78B-6-102(5)(a).

82 Id.

83 Id.

84 See, e.g., Thurnwald v. A.E., 2007 UT 38, ¶¶ 30, 34, 163 P.3d 623 (concluding that the state had a compelling interest in “speedily identifying those persons who will assume a parental role over newborn illegitimate children,” “in promoting early and uninterrupted bonding between child and parents[,] and in facilitating final and irrevocable adoptions.” (citations omitted) (internal quotation marks omitted).

85 In re Boyer, 636 P.2d 1085, 1090 (Utah 1981). The dissent criticizes us for applying this standard. See infra ¶ 165 (Lee, A.C.J., dissenting). But we are merely applying the standard that has been well-established by our case law. In contrast to this established approach, the dissent suggests that a loss of an indisputably fundamental right does not trigger strict scrutiny review where that loss stemmed from a procedural default. See infra ¶ 217 (Lee, A.C.J., dissenting) (suggesting that “procedures” may never be subject to “substantive due process scrutiny”). Because such an approach would be inconsistent with controlling precedent, we reject it. See infra ¶¶ 51–101.

86 Wells v. Children’s Aid Soc’y of Utah, 681 P.2d at 207 (considering whether any “infringement of the [plaintiff’s] rights not essential to the statute’s purpose ha[d] been identified”).

87 UTAH CODE § 78B-6-110(6)(a).

88 Id. § 78B-6-110(6)(b).

89 Id. § 78B-6-110(6)(a)(ii), (iii).

90 Bair v. Axiom Design, L.L.C., 2001 UT 20, ¶ 9, 20 P.3d 388, abrogated on other grounds by Gillett v. Price, 2006 UT 24, ¶ 2, 135 P.3d 861, as recognized in A.S. v. R.S., 2017 UT 77, ¶ 21, 416 P.3d 465.

91 UTAH CODE § 78B-6-110(6)(b).

92 To be clear, in holding that the strict compliance component of section 110 fails the strict scrutiny test, as applied to Mother in this case, we are not suggesting, as Mother argues in her brief, that the entire motion-to-intervene provision is “meaningless” as applied to biological mothers. In fact, by holding that the timing and substantive requirements of the provision are necessary to further the state’s purposes, see supra ¶¶ 45–46, we have held the opposite. So we are not lightly excusing the procedural requirements of the Adoption Act in this case. Rather, we have narrowed the scope of our opinion to the strict compliance provision in Utah Code section 78B-6-110(6)(b) and to the facts of this case.

We also note that the dissent criticizes our decision on the ground that “strict procedural compliance” is “at a premium” in the “adoption arena.” See infra ¶ 207 (Lee, A.C.J., dissenting). But in so doing, the dissent fails to engage with the specific and narrow reasoning in our decision. Instead, it argues only that “statutory procedures for natural parents to participate in and assert their rights” are a core element in the state’s effort to facilitate adoptions. See infra ¶ 207 (Lee, A.C.J., dissenting). We take no issue with this general statement. But the dissent has failed to explain how the strict compliance requirement would have aided the State’s effort to facilitate adoptions in this case. As we have discussed, in this case, Mother’s timely attempt to intervene provided the court and the Adoptive Parents all of the information that a strictly compliant motion to intervene would have. For this reason, our decision in no way hinders the interests advanced by the procedural requirements of the Adoption Act.

The dissent also suggests that, by subjecting the procedural requirements of the Adoption Act to a substantive due process review, we are foreclosing the state’s ability to impose procedural time bars in the adoption setting. See infra ¶ 213 (Lee, A.C.J., dissenting). But our case law makes clear that procedural requirements have long been subject to substantive due process. And the dissent’s suggestion that subjecting procedural requirements to the demands of substantive due process will upend all procedural requirements misses the mark. Indeed, in this very case, we have upheld other procedural requirements in section 110—including section 110’s thirty-day filing requirement—as being narrowly tailored to further the state’s interest in prompt adoptions.

93 See Jones, 2015 UT 84, ¶ 26.

94 See infra ¶ 179 (Lee, A.C.J., dissenting).

95 The dissent pushes back on the notion that its approach transforms the fundamental nature of the underlying parental rights into something less than fundamental. See infra ¶ 157 n.215 (Lee, A.C.J., dissenting) (“The fundamental nature of the underlying parental right stays the same throughout—my point is just that the right at issue here is distinct from that underlying right.”). But in so doing, the dissent confirms that it is ignoring the termination of the underlying fundamental right altogether. In other words, the dissent confirms that, under its approach, state action to terminate a fundamental parental right need not satisfy strict scrutiny review so long as the parent failed to comply with a procedural requirement—a procedural requirement that need not be narrowly tailored to further a compelling state interest.

96 Although we reject the dissent’s argument because it mischaracterizes the right at issue, we note that our case law does in fact establish that Mother’s right to retain her parental rights is fundamental. We have held that mothers have a fundamental right to “maintain parental ties” to their children, In re J.P., 648 P.2d at 1377, to not be “deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect,” id. at 1375, “to sustain [their] relationship with [their] child,” id. at 1372, and “to object to an adoption,” In re Adoption of J.S., 2014 UT 51, ¶ 2. Because our case law makes clear that Mother has a fundamental right to retain her parental rights, even under the dissent’s characterization of the right at issue the dissent’s argument fails.

97 See infra ¶ 135 (Lee, A.C.J., dissenting) (emphasis added).

98 In re J.P., 648 P.2d at 1375 (explaining that the right of a mother “not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect is so fundamental to our society and so basic to our constitutional order . . . that it ranks among those rights referred to in Article I, [section] 25 of the Utah Constitution and the Ninth Amendment of the United States Constitution as being retained by the people.” (emphasis added); see also id. at 1372 (explaining that a mother “has a fundamental right, protected by the Constitution, to sustain [her] relationship with [her] child” (citation omitted) (internal quotation marks omitted)).

99 Infra ¶ 135 (Lee, A.C.J., dissenting).

100 See infra ¶ 179 (Lee, A.C.J., dissenting).

101 Jones, 2015 UT 84, ¶ 26 (“When the court has recognized a due process right it deems ‘fundamental,’ it consistently has applied a standard of strict scrutiny to the protection of such a right.”).

102 262 U.S. 390, 399 (1923).

103 Id. at 401 (emphasis added).

104 See Troxel v. Granville, 530 U.S. 57, 65–73 (2000).

105 See Smith v. Org. of Foster Families For Equality & Reform, 431 U.S. 816, 842–47 (1977).

106 See supra ¶¶ 33–37.

107 Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534 (1925).

108 Wisconsin v. Yoder, 406 U.S. 205, 233 (1972).

109 Troxel, 530 U.S. at 66 (compiling cases).

110 Id. at 65.

111 See infra ¶ 135 (Lee, A.C.J., dissenting) (emphasis added).

112 In re adoption of J.S., 2014 UT 51, ¶ 2 (“Unwed mothers acquire parental rights—and the accompanying right to object to an adoption—as a result of the objective manifestation of the commitment to the child that is demonstrated by their decision to carry a child to term.”).

113 In re J.P., 648 P.2d at 1377 (“For the reasons and upon the precedents discussed above, we conclude that the Utah Constitution recognizes and protects the inherent and retained right of a parent to maintain parental ties to his or her child . . . .” (emphasis added)).

114 See infra ¶ 129 (Lee, A.C.J., dissenting). The dissent argues that our approach “conflates the parental conduct that is being terminated . . . with the conduct triggering that termination.” See infra ¶ 146 n.211 (Lee, A.C.J., dissenting). From this it appears that, in the dissent’s view, the focus of our substantive due process review should not be on the state action at issue (termination of all parental rights) nor on the nature of the rights being terminated (fundamental) but on whether a parent’s conduct in failing to comply with a procedural requirement was also constitutionally protected conduct. So it follows that, under the dissent’s approach, where the parent lacked a constitutionally protected right to not comply with a procedural requirement, the state is free to terminate all of the parent’s constitutionally protected rights, including fundamental ones, even where the procedural requirement allegedly justifying the state’s action is not narrowly tailored to further a compelling state interest (the test the state usually must pass before it terminates a fundamental right).

115 See infra ¶ 146 (Lee, A.C.J., dissenting).

116 See infra ¶ 146 (Lee, A.C.J., dissenting).

117 Yoder, 406 U.S. at 232.

118 Id.

119 431 U.S. at 839 (emphasis added).

120 Id. at 845.

121 491 U.S. 110 (1989).

122 See infra ¶ 147 (Lee, A.C.J., dissenting).

123 491 U.S. at 125.

124 Id., 491 U.S. at 124 (“Thus, the legal issue in the present case reduces to whether the relationship between persons in the situation of Michael and Victoria [(an unmarried father’s relationship with his daughter, who was born while her mother was married to another man)] has been treated as a protected family unit under the historic practices of our society, or whether on any other basis it has been accorded special protection.”).

125 Pierce, 268 U.S. at 534.

126 Yoder, 406 U.S. at 233.

127 Troxel, 530 U.S. at 66 (compiling cases).

128 405 U.S. 645 (1972).

129 Id. at 647.

130 Id. at 658.

131 Id. at 651.

132 Id.

133 Id.

134 Id.

135 434 U.S. 246 (1978).

136 Id. at 255 (citation omitted).

137 Id. (describing the parental right as an interest in having a “relationship between parent and child”).

138 See also Lehr v. Robertson, 463 U.S. 248, 256–58 (1983) (discussing the parental right variously as an interest in the “intangible fibers that connect parent and child,” “family relationships,” and as including fundamental rights previously recognized by Supreme Court precedent).

139 648 P.2d at 1366.

140 Id. at 1372.

141 681 P.2d at 202.

142 2014 UT 51, ¶ 38.

143 Id. ¶ 40 (citation omitted).

144 Id. ¶ 39 (emphasis added).

145 The dissent relies on our decision in In re adoption of J.S. to argue that we must narrowly frame the relevant “conduct” at issue. But the narrow framing at issue in that case did nothing to limit the scope of relevant parental conduct. Instead, it more narrowly construed the parental status—to exclude unmarried fathers who had not perfected their parental rights—deserving full due process protection. See id. ¶ 2 (“Unwed mothers acquire parental rights— and the accompanying right to object to an adoption—as a result of the objective manifestation of the commitment to the child that is demonstrated by their decision to carry a child to term. An unwed father’s legal obligation to file the paternity affidavit is a rough counterpart to the mother’s commitment.”). So our decision in In re adoption of J.S. merely reaffirmed an important distinction, based on parental status, between mothers and unmarried fathers that had previously been established in our case law. See In re J.P., 648 P.2d at 1374–75 (distinguishing between the variation in the protections afforded unwed fathers before noting that, “[i]n contrast, no similar variation exists among mothers who are unwed”).

146 In re J.P., 648 P.2d at 1375 (explaining that the right of a mother “not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect is so fundamental to our society and so basic to our constitutional order . . . that it ranks among those rights referred to in Article I, [section] 25 of the Utah Constitution and the Ninth Amendment of the United States Constitution as being retained by the people.” (emphasis added) (citation omitted)); see also id. at 1372 (explaining that a mother “has a fundamental right, protected by the Constitution, to sustain [her] relationship with [her] child” (citation omitted) (internal quotation marks omitted)).

147 Id. at 1374–75.

148 Id. at 1374 (internal quotation marks omitted).

149 Id.

150 Id. at 1375.

151 We note that in later cases we have clarified that an unmarried father may perfect his right by complying with certain provisions in the Adoption Act, which include such requirements as filing an affidavit of paternity. See, e.g., In re Adoption of J.S., 2014 UT 51, ¶ 2 (explaining that the provision describing a paternity affidavit “prescribes the requirements that an unwed father must meet in order to secure the right to assert his parental rights and object to an adoption”).

152 In re J.P., 648 P.2d at 1375.

153 Id. (emphasis added).

154 2014 UT 51.

155 Id. ¶ 2.

156 Id. By “saying that the established procedures determine how and whether [Mother’s parental] right is preserved,” the dissent fails to account for this key distinction. Infra ¶ 205 (Lee, A.C.J., dissenting).

157 In re Adoption of J.S., 2014 UT 51, ¶ 2.

158 Id. (emphases added).

159 Id. ¶ 6.

160 Id. ¶ 22 (emphases omitted).

161 Id.

162 Id. ¶ 39.

163 Id. ¶ 54.

164 Id. ¶ 56.

165 In re J.P., 648 P.2d at 1375.

166 Id. at 1373.

167 Id. at 1372.

168 Lehr, 463 U.S. at 258 (emphasis added) (citation omitted).

169 See infra ¶ 126 (Lee, A.C.J., dissenting).

170 See infra ¶ 133 (Lee, A.C.J., dissenting).

171 See infra ¶ 133 n.208 (Lee, A.C.J., dissenting).

172 See infra ¶ 163 (Lee, A.C.J., dissenting).

173 Lehr, 463 U.S. at 258 (emphasis added) (citation omitted). The dissent cites two cases, Yakus v. United States, 321 U.S. 414, 444 (1944) and State v. Rettig, 2017 UT 83, ¶¶ 15, 17, 416 P.3d 520, for the proposition that constitutional rights may be forfeited through procedural default. We agree with this assertion. But neither Yakus nor Rettig stand for the proposition that a party can be barred from challenging an unconstitutional procedural requirement due to that party’s failure to comply with that unconstitutional requirement. That proposition would be inconsistent with “the longstanding law of procedural default.”

174 New York v. Hill, 528 U.S. 110, 116 (2000). Although the Supreme Court in Hill addresses the issue of express waiver, rather than forfeiture, the principle for which we cite Hill applies equally in forfeiture cases. Waiver is sometimes used as an umbrella term encompassing all statements and acts that result in any loss of a right without a disposition on the merits. And we note that the Hill Court supported its statement—that “waiver is not appropriate when it is inconsistent with the provision creating the right sought to be secured”—by citing a case that is best characterized as a forfeiture case. Id. at 116 (citing Crosby v. United States, 506 U.S. 255, 258–59 (1993) (holding that a criminal defendant’s right to be present at the beginning of trial cannot be forfeited through a failure to be present)).

175 In re B.Y., 2015 UT 67, ¶ 41 (alteration in the original) (internal quotation marks omitted). So, by arguing that Mother is precluded from challenging the fairness of procedural bars on substantive due process grounds, the dissent would have us implicitly overturn the rule we established in In re B.Y.

176 See, e.g., Quilloin, 434 U.S. at 254–55 (applying a substantive due process analysis to a challenge of a procedural provision); Stanley, 405 U.S. at 650 (applying a substantive due process analysis to an Illinois “procedure”).

177 See also Stanley, 405 U.S. at 647 (applying the strict scrutiny standard where a state terminated a fundamental right through a “method of procedure”). The dissent states that strict scrutiny need not be applied in every instance in which a state terminates parental rights, but the only support for this position comes from cases far outside the parental rights field of law. The dissent argues that the “‘fundamental’ nature of a given right is not alone enough to trigger strict scrutiny of any procedural regulation of that right.” See infra ¶ 159 (Lee, A.C.J., dissenting). It then cites cases involving abortion rights, the right to free speech, the right to free exercise of religion, and the right to vote. See infra ¶ 159 (Lee, A.C.J., dissenting). But we do not view these cases, in which the Supreme Court articulated exceptions to the general rule based on the unique nature of the right at issue, to be relevant to this case. This case deals with the termination of all parental rights of a biological mother. And controlling precedent has clearly set forth the standard of scrutiny to be applied where a state attempts to terminate all of a biological mother’s fundamental parental rights. For this reason, the cases the dissent cites from other areas of law are unpersuasive.

178 Hill, 528 U.S. at 116.

179 ”A man is presumed to be the father of a child if . . . he and the mother of the child are married to each other and the child is born during the marriage.” UTAH CODE § 78B-15-204(1)(a).

180 UTAH R. CIV. P. 24 (“Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”).

181 In their opposition on appeal, the Adoptive Parents allege that J.N. failed to notify the second district court of the adoption pending in this case, as required by rule 100 of the Utah Rules of Civil Procedure. Although such a failure could seriously undermine the validity of J.N.’s marriage decree, we do not address it here because the marriage decree has not been appealed.

182 885 P.2d 791 (Utah 1994).

183 Id. at 793–94.

184 Id. at 793.

185 See generally id.

186 UTAH CODE § 30-1-4.5(1) (emphasis added).

187 Obergefell v. Hodges, 135 S. Ct. 2584, 2601 (2015).

188 Id.

189 Id.; see also Sanchez v. L.D.S. Soc. Servs., 680 P.2d 753, 755 (Utah 1984) (“Marriage is the institution established by society for the procreation and rearing of children.”).

190 See State v. Holm, 2006 UT 31, ¶ 32, 137 P.3d 726 (“[Because] a marriage license represents a contract between the State and the individuals entering into matrimony . . . [the defendant], as a result of his [unsanctioned marriage] ceremony with [his alleged spouse], [is] not entitled to any legal benefits attendant to a state-sanctioned marriage.”).

191 Similar to our holding in Scott v. Scott, we find that the relevant date for consideration is the date the adoption petition was filed. 2017 UT 66, ¶ 30, 423 P.3d 1275 (requiring an ex-spouse to be cohabitating with a boyfriend at the time the petition to terminate alimony was filed); see also Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 571 (2004) (“[J]urisdiction of the court depends upon the state of things at time of the action brought. . . . . [The time-of-filing rule] measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filing.” (internal quotation marks omitted)); Int’l Trading Corp. v. Edison, 109 F.2d 825, 826 (D.C. Cir. 1939) (requiring a “duty [to] exist at the time of filing a petition for mandamus”); Koch v. Carmona, 643 N.E.2d 1376, 1381 (Ill. App. Ct. 1994) (evaluating an attorney’s conduct “under the circumstances existing at the time of the filing”).

192 See In re Baby Girl T., 2012 UT 78, ¶ 11, 298 P.3d 1251 (“[A]n unwed father’s biological connection to his child does not automatically grant him a fundamental constitutional right to parenthood. Rather, an unwed father has a provisional right to parenthood, and due process requires only that an unwed father have a meaningful chance to preserve his opportunity to develop a relationship with his child.” (citation omitted) (internal quotation marks omitted)).

193 UTAH CODE § 78B-6-110(1)(a)(ii).

194 Id. § 78B-6-110(3).

195 Id. § 78B-6-110(1)(a)(i); see also In re Baby Girl T., 2012 UT 78, ¶ 11 (“The Act’s requirements operate under the presumption that an unwed father knows that his ‘child may be adopted without his consent unless he strictly complies with the provisions of [the Act].’” (alteration in original) (citing UTAH CODE § 78B-6-102(6)(f))) .

196 We note that a potential presumptive father could protect his right to notice of an adoption by obtaining judicial recognition of his common-law marriage before an adoption petition is filed or he could protect his right to intervene by obtaining a judicial marriage decree, either within the adoption proceeding or as part of another case, within thirty days of the date on which the adoption petition was filed. Additionally, we note that in most cases section 110(2)(g) would guarantee a potential presumptive father the right to notice even in the absence of a judicial marriage decree because he would have been living in the same home as the child and holding himself out to be the child’s father. UTAH CODE § 78B-6-110(2)(g) (requiring notice to be served on “a person who is . . . openly living in the same household with the child at the time . . . and . . . [is] holding himself out to be the child’s father”). J.N. does not argue that he was entitled to notice under this provision.

197 J.N. argues that at the time the petition was filed he could not have intervened because his marriage had not yet been judicially recognized. Not only does this argument undermine J.N.’s contention that his common-law marriage was legally effective at the time the adoption proceeding commenced, but it also ignores the fact that he could have sought judicial recognition of his marriage within this case.

198 We note that to hold otherwise would retroactively impose a burden on the Adoptive Parents as well as inject unnecessary delay and uncertainty into the adoption proceeding. This is something we seek to avoid. See id. § 78B-6-102(6)(c) (“A certain degree of finality is necessary in order to facilitate the state’s compelling interest. The Legislature finds that the interests of the state, the mother, the child, and the adoptive parents described in this section outweigh the interest of an unmarried biological father who does not timely grasp the opportunity to establish and demonstrate a relationship with his child in accordance with the requirements of this chapter.”).

199 See UTAH R. CIV. P. 24(a) (granting an intervention of right only if there is a “timely application” to intervene).

200 I also agree with the dissent’s observation that “[t]his court may well have the authority to prescribe a procedural default rule that could govern in a case like this one,” see infra ¶ 123 n.201, pursuant to our constitutional power to “adopt rules of procedure and evidence to be used in the courts of the state,” see UTAH CONST. art. VIII, § 4. But as the dissent notes, Mother did not raise this issue.

201 This court may well have the authority to prescribe a procedural default rule that could govern in a case like this one. See UTAH CONST. art. VIII, § 4 (recognizing this court’s power to “adopt rules of procedure and evidence to be used in the courts of the state”); State v. Rettig, 2017 UT 83, ¶¶ 58, 58 n.12, 416 P.3d 520 (strongly suggesting that filing deadlines triggering procedural default or forfeiture of legal rights are “procedural” and thus within our constitutional power to establish). The Adoption Act’s default rule, moreover, may be subject to constitutional challenge on the ground that it is procedural and the legislature has not properly exercised its authority to amend our rules. See Rettig, 2017 UT 83, ¶¶ 52, 60 (expressing “doubts” about whether a statutory rule of procedural default would withstand scrutiny under article VIII, section 4 of the Utah Constitution but declining to reach the question because it had not been raised); Brown v. Cox, 2017 UT 3, ¶¶ 17–18, 387 P.3d 1040 (identifying the process the legislature must follow to amend our rules). This court has not enacted any such rule, however. And the mother has not raised a constitutional claim under article VIII, section 4. For that reason this question is not properly before us.

202 The court’s procedural due process holding, in fact, follows from established principles of forfeiture. Most legal rights are subject to forfeiture by procedural default. See Yakus v. United States, 321 U.S. 414, 444 (1944) (noting that “constitutional right[s] may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right”); see also Rettig, 2017 UT 83, ¶¶ 15, 17 (noting that “procedural bar[s]” such as rules “requir[ing] parties to raise issues or arguments at specified times and by certain means” on penalty of losing the right to do so are “commonplace” and “embedded in our case law” (citations omitted)). The due process right to be heard is no exception. If a party fails to avail herself of an established means of asserting a legal right, then that right is forfeited. Such a party is in no position to complain of the lack of a constitutionally guaranteed “opportunity to be heard” as that opportunity was lost not as a result of state action but by an act of the party’s agent (her counsel).

203 The mother asserts both federal and state grounds for a new right of substantive due process, supra ¶ 14 n.6, but the majority never draws any distinction between the two grounds in its opinion, and it relies exclusively on precedent pertaining to federal due process. So I presume that it is establishing a new right of federal due process.

204 The majority’s “status” framing also runs into a line of United States Supreme Court precedent that cuts against its framework. In referring to “status,” the majority is noting that parental rights are fundamental. See supra ¶¶ 60, 79. But the fundamental nature of a given right does not dictate the application of strict scrutiny to all regulations of that right. This is apparent from an important line of voting rights cases, which expressly reject the idea that all regulations of voting rights trigger strict scrutiny. See infra ¶¶ 159– 61 (citing Burdick v. Takushi, 504 U.S. 428 (1992) and Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)).

205 See Roe v. Wade, 410 U.S. 113, 152–53 (1973); Griswold v. Connecticut, 381 U.S. 479, 484–85 (1965).

206 Washington v. Glucksberg, 521 U.S 702, 722–23 (1997); see also id. (rejecting other broad framings of the right at issue, including the right to “choose how to die,” the right to “control of one’s final days,” the right to “choose a humane, dignified death,” and the right to “shape death”).

207 See, e.g., Rick Kozell, Note, Striking the Proper Balance: Articulating the Role of Morality in the Legislative and Judicial Processes, 47 AM. CRIM. L. REV. 1555, 1573 (2011) (explaining that “the Court has failed to articulate a method for determining the proper level of generality at which a substantive due process inquiry should be performed” despite the fact that “the level of generality with which the Court defines the conduct in question . . . often affects whether the Court finds that that conduct is entitled to protection based on history and tradition”); John F. Basiak, Jr., Inconsistent Levels of Generality in the Characterization of Unenumerated Fundamental Rights, 16 U. FLA. J.L. & PUB. POL’Y 401, 403 (2005) (pointing out that “when asked to recognize a fundamental right under the Due Process Clause of the Fourteenth Amendment, the U.S. Supreme Court has failed to articulate a substantial justification for the level of generality in characterizing the legal issue” (citations omitted)); David Crump, How do the Courts Really Discover Unenumerated Fundamental Rights? Cataloguing the Methods of Judicial Alchemy, 19 HARV. J.L. & PUB. POL’Y 795, 863–71 (1996) (describing the dilemma as “[d]etermining the reach of fundamental rights by defining the degree of abstraction” for “characterizing the relevant tradition”); Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057, 1058 (1990) (rejecting a methodology that requires narrow framing of substantive due process rights while acknowledging that “[t]he selection of a level of generality necessarily involves value choices”).

208 The majority tries to avoid this characterization by describing the right at issue as the mother’s “‘retained’ fundamental right.” Supra ¶ 56. But asserting that a fundamental right is “retained” merely begs the question: retained as of when and by what acts? The mere possession of a fundamental right does not forever insulate the mother from ever losing that right. It simply means that she retains it prior to the initiation of any legal proceedings. The majority concedes the general point—acknowledging that a fundamental right may be lost through procedural default. See supra ¶ 98 (acknowledging that “’fundamental’ rights may be extinguished through the operation of procedural provisions . . . where those provisions survive strict scrutiny review”). It just obviates the forfeiture here through the doctrine of substantive due process. Supra ¶ 98. The court is holding that a mother has a fundamental right to retain her parental rights despite her procedural default because the underlying parental right itself is fundamental. But that is circular. And it is a novel, sweeping extension of existing case law.

209 It is true to a point that “the case law clearly establishes that mothers have a ‘retained’ fundamental right in their children.” Supra ¶ 79. But the key question is “retained” as of when, and in what procedural context? No prior court has ever established a mother’s right to retain her parental rights despite the kind of procedural default that would normally result in a forfeiture. So in that sense this case presents a question of first impression. I think the answer follows clearly from the framing of the inquiry in J.S. The majority concludes otherwise. But it cannot properly be heard to insist that its decision follows from established case law.

210 The majority points to Meyer v. Nebraska, 262 U.S. 390 (1923) in support of its view that the right at issue in today’s case should be defined by “the individual’s status as a parent,” supra ¶ 59, rather than by the “form of governmental interference,” supra ¶¶ 62–63. In light of the level of generality problem discussed herein, this distinction is inapposite. Regardless, the Meyer court’s discussion of a parent’s right to control the education of her children does not speak to the issue in this case—whether a fundamental parental right encompasses the right to be free from the normal rules of procedural default.

211 The majority complains that my framing is wrong because I “fail[] to identify any parental conduct.” Supra ¶ 65. Continuing the thought, the majority says that the proper framing must consider conduct “directed at the parent’s child”—the “parents’ interactions with their children and . . . whether the parent had a fundamental right to so interact”—“not conduct directed at, or from, the State.” Supra ¶ 66. To support this view, the court cites a United States Supreme Court case, Wisconsin v. Yoder, 406 U.S. 205, 232 (1972), that maintains the focus on this form of parental conduct. See supra ¶¶ 66–68.

But Yoder is unhelpful. And the court’s premises are nothing more than a restatement of its ultimate holding—certainly not a reflection of any established law. The majority’s framing conflates the parental conduct that is being terminated (“the entire bundle of parental rights” and “conduct inherent in the parent-child relationship,” supra ¶ 73) with the conduct triggering that termination. Forfeiture of parental rights is triggered by procedural default on the part of the parent. And the acts leading to a procedural default are the relevant “parental conduct” in a case like this one.

This case presents a question of first impression. And it is hardly surprising that in the very different context of deciding whether a parent has parental rights in the first place, courts have not focused on “conduct directed at, or from, the State.” Supra ¶ 66. That said, no court has ever held that we may not consider a parent’s conduct “directed at, or from, the State” in deciding whether there is a substantive due process right that forecloses the effects of a procedural bar. What other conduct would we consider in deciding the constitutionality of a procedural bar? And if a parent defaults her parental rights, how can that be anything other than “parental conduct”?

In some settings, it is certainly true that the inquiry into a parent’s fundamental rights is based on parental conduct “directed at” the child, and not “at, or from, the State.” But there is no universal rule to this effect. And the majority’s framing cannot hold in the context of forfeiture by procedural default unless we mean to foreclose the possibility of such forfeiture altogether—which of course is the key question presented in this case. The court’s decision accomplishes that task. But it finds no support in any relevant authority in so doing.

212 In a related critique, the majority chides me for denying the right at issue “the heightened protection our case law would typically provide [it].” Supra ¶ 57 (emphasis added). But this point suffers from the same misstep. The court is again characterizing the purported fundamental right at the highest level of generality, presuming that the right at issue encompasses the right to avoid procedural default—that such protection is “typical.” This is incorrect. The majority extends this protection in this case of first impression—and a protection cannot be “typical” if it has not been extended before.

213 The Adoption Act did not authorize the district court to terminate a mother’s parental rights without requiring “proof of unfitness, abandonment, or neglect.” It required proof on those points as a prerequisite to parental termination, and afforded the mother an avenue to advance her views on these questions. UTAH CODE § 78B-6-110(6)(a). The statute admittedly does allow for termination without a finding of unfitness, etc. in the event of a default by the mother—failure to comply with the statutory procedures for her appearance as a party. UTAH CODE § 78B-6-112(5)(c) (2015). But that doesn’t mean that the statute exempts mothers from the requirement of proof of grounds for termination. It just means that the statute prescribes specific procedures for a mother to assert her position in court. And it shows that the Adoption Act is in line with our longstanding law of forfeiture or procedural default—which provides that most any party may lose her rights by the failure to assert them in the manner and at the time required by law. The mother did not lose her parental rights, in other words, as a result of a statute that eliminated a requirement of proof of grounds for termination for a class of parents. She lost her rights as a result of her failure to avail herself of procedures afforded by law for her to assert her position on such grounds.

The majority claims that this position “ignore[s] the ‘as-applied nature of Mother’s substantive due process claim”—presumably because in this case the mother’s parental rights were terminated without proof of unfitness, abandonment, or neglect. Supra ¶ 38 n.68. But that will always be the case when parental rights are terminated by a parent’s procedural default. The majority also insists that a mother “maintain[s] her parental rights unless she voluntarily relinquishes them or a court finds that she forfeited them by being an unfit parent or by abandoning or neglecting the child.” Supra ¶ 38 n.68. This is true as far as it goes. But the majority errs in its failure to read this requirement against the longstanding background principle of procedural default. See Yakus v. United States, 321 U.S. 414, 444 (1944) (noting that “constitutional right[s] may be forfeited . . . by the failure to make timely assertion of the right”); see also Rettig, 2017 UT 83, ¶¶ 15, 17 (explaining that “procedural bar[s]” such as rules “requir[ing] parties to raise issues or arguments at specified times and by certain means” on penalty of losing the right to do so are “commonplace” and “embedded in our caselaw”(citations omitted).

214 In so concluding I have not “avoid[ed] the central question presented by Mother’s substantive due process claim.” Supra ¶ 96. I have simply applied the applicable substantive due process standard from J.S. and concluded that the mother has failed to carry her burden under that standard. The majority thus misstates my position. I am not saying that “‘procedures’ may never be subject to ‘substantive due process scrutiny’,” supra ¶ 43 n.85, that “a party can be barred from challenging an unconstitutional procedural requirement due to that party’s failure to comply with that unconstitutional requirement,” supra ¶ 94 n.173, or that the mother in this case is “precluded from challenging the fairness of procedural bars on substantive due process grounds,” supra ¶ 98 n.175. The mother has every right to mount such a substantive due process challenge. I am only insisting that she do so in compliance with the test put forth in J.S.—a test that frames the issue narrowly by requiring “a specific showing” of a “precise interest” that is “deeply rooted” in history and tradition. In re J.S., 2014 UT 51, ¶ 57 (plurality opinion).

And it is because the mother failed to make the showing required by our precedent that I would decline to strike down the challenged procedural requirement on substantive due process grounds. I have not “assume[d], without analysis, that the procedural requirement that triggered Mother’s default was constitutional.” Supra ¶ 96. Nor have I “argue[d] that the procedural requirement that authorized the State to terminate Mother’s fundamental parental rights [wa]s constitutional because Mother failed to comply with that procedure.” Supra ¶ 97. I agree with the majority that such an approach would be circular. But it is not the approach that I have taken. And the majority has cited no part of my opinion to support its contention that I claim that the Act’s strict compliance provision is constitutional because the mother defaulted under it.

215 The majority also misses the mark in characterizing my position as resting on the notion that “strict compliance [i]s necessary to preserve the fundamental nature of [the mother’s] rights.” Supra ¶ 88. The fundamental nature of the underlying parental right stays the same throughout—my point is just that the right at issue here is distinct from that underlying right. The right at issue is the right to be exempt from forfeiture by procedural default (unless the defaulted procedure survives strict scrutiny). And it is this difference in characterization of the right at issue (based on different levels of generality) that underlies much of my disagreement with the majority. See, e.g., supra ¶¶ 146–52.

216 Professor Winkler has further explained that the notion that fundamental rights always trigger strict scrutiny “remains popular because it makes a rather complex doctrinal reality quite simple and easy to memorize,” but that “[s]uch simplicity[] . . . comes at considerable cost . . . breeding confusion and misunderstanding about how constitutional law works.” Adam Winkler, Fundamentally Wrong About Fundamental Rights, 23 CONST. COMMENT. 227, 239 (2006).

217 The majority concedes the narrow framing in J.S. but attempts to cabin that framing by arguing that J.S. “did nothing to limit the scope of relevant parental conduct” but instead “more narrowly construed the parental status—to exclude unmarried fathers who had not perfected their parental rights—deserving full due process protection.” Supra ¶ 77 n.145. The majority’s point seems to be that a holding dealing only with “status” would not be binding when it comes to “conduct.” I disagree with the court’s premise and with its conclusion. First, I don’t think the narrow framing in J.S. dealt with status as opposed to conduct. Second, even accepting the majority’s premise for the sake of argument, I see no reason why the level of generality would be different for “conduct” as opposed to “status”; the majority itself posits that the nature of the right at issue is defined by both the conduct and status of the parent. See supra ¶¶ 59, 62, 78.

218 J.S. admittedly involved the rights of a putative father. And the substantive rights of an unmarried father are concededly only inchoate—“merely provisional.” See supra ¶¶ 84, 86. But the majority misses a key point in resting its decision on the fact that a mother’s parental rights are automatically fundamental. While this is true, it leaves unanswered the question of whether and to what extent a party with rights that are concededly fundamental may ignore existing procedures for the assertion of those rights without suffering the consequence of a default. The answer to that question cannot be the bare assertion that the underlying right is fundamental. That is circular. And it overrides the strict standard set forth in the case law.

219 The majority also claims support for its view in the dictum in New York v. Hill, 528 U.S. 110, 116 (2000)—the notion that forfeiture “is not appropriate when it is inconsistent with the provision creating the right sought to be secured.” Supra ¶ 98 n.174. In the majority’s view this means that a decision allowing forfeiture “to defeat Mother’s substantive due process claim in this case would be inconsistent with the Due Process Clause.” Supra ¶ 98. But that is entirely circular. The court is asserting that the Due Process Clause prohibits forfeiture in this case because such forfeiture is inconsistent with the Due Process Clause.

That does not follow from Hill. That case, for one thing, deals with express waiver, not forfeiture by procedural default. And one of the two cases cited in support of the quoted statement is also an express waiver case. See Hill, 528 U.S. at 116 (citing Smith v. United States, 360 U.S. 1, 9 (1959)). The other case, emphasized by the majority, is admittedly a forfeiture case. See supra ¶ 98 n.174 (citing Crosby v. United States, 506 U.S. 255, 258–59 (1993)). Crosby held that a criminal defendant’s right to be present at trial cannot be forfeited by failure to appear. 506 U.S. at 258–59. But the Crosby court based its holding on well-established case law finding that specific right to be unwaivable. 506 U.S. at 259. In other words, the right to exemption from the normal consequence of procedural default (forfeiture) was both narrowly framed and supported by history and tradition as shown by the long line of case law establishing that right. And that is surely not the case here—the majority cites not a single case establishing the right to avoid forfeiture in this context. The court’s cited case law is accordingly unhelpful to it. Hill (and the cases it cites) are by no means a general license for a right to avoid forfeiture despite a procedural default, and on the contrary supports the approach I advocate for here.

220 See, e.g., IOWA CODE § 232.112 (stating that the child’s parents are “necessary parties to a termination of parent-child relationship proceeding and are entitled to receive notice and an opportunity to be heard”); MINN. STAT. § 260C.163(2) (parents of a child have “the right to participate in all proceedings on a petition” to terminate parental rights or a petition for an adoption); MO. REV. STAT. §§ 211.453 (requiring a petition for termination of parental rights be served on the biological mother and informing the mother of her right to attend and participate in the dispositional hearing); 23 PA. CONS. STAT. § 2513 (requiring that notice be given to the parents before their rights are terminated and allowing them to freely participate in the hearing); S.C. CODE ANN. §§ 63-7-2550, -2560 (requiring a petition for termination of parental rights be served on the biological mother and guaranteeing the mother the right to legal counsel during the proceedings).

221 See, e.g., FLA. STAT. § 39.801(7) (permitting termination of parental rights based on a failure to appear at a scheduled hearing); OKLA. STAT. tit. 10A, § 1-4-905 (same); see also, e.g., C.R. v. Dep’t of Children & Families, 225 So.3d 393, 394-95 (Fla. Dist. Ct. App. 2017) (terminating a mother’s parental rights following her failure to appear at trial); In re H.L.L., 179 S.W.3d 894 (Mo. 2005) (en banc) (terminating a father’s parental rights based on his failure to appear at a termination hearing); In re Welfare of S.I., 337 P.3d 1114, 1115 (Wash. Ct. App. 2014) (terminating a mother’s parental rights based on her failure to appear at a termination hearing).

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New Developments in Utah Law Governing Termination of Alimony

New developments in Utah case law governing the termination of alimony with the case of Scott v. Scott. In this case, the ex-husband moved to terminate alimony and won.

The ex-wife claimed that her relationship with her post-divorce boyfriend did not rise to the level of cohabitation required by law to terminate her alimony award.

The district court terminated alimony by finding that the ex-wife’s relationship exhibited many of the hallmarks of a marriage relationship that Utah’s case law recognizes. Like a married couple, ex-wife and her boyfriend (a) engaged in an extended and exclusive sexual relationship; they spent a significant amount of time together at the boyfriend’s homes and elsewhere, including on vacations and holidays;  they established a common household involving shared expenses and shared decisions, boyfriend authorized ex-wife as a user on his credit cards, and the two participated jointly in financial and other decisions related to the purchase of a home together, a house where Jillian acted like a spouse, made decorating decisions, to which she and her boyfriend agreed she had her own a key. Ex-wife’s boyfriend gave her “family status” at a country club based on his representation that the couple was “living together and maintaining a common household. When boyfriend broke up with ex-wife he paid her a financial settlement on the condition that she “sign a release from all future claims.”

Ex-wife claims that the determination of “shared residence” was a threshold legal requirement that must be established before any other “hallmarks” of marriage are considered in the cohabitation analysis. The Utah Supreme Court disagreed.

Ex-wife took the view that the home the couple shared was not the legal domicile for either her boyfriend or her. The Utah Supreme Court disagreed.

Ex-wife argued that the shared-residence threshold requires a couple to live together for a longer period of time than she and her boyfriend did. The Utah Supreme Court disagreed.

Shared residence is not a threshold element that must be met before other hallmarks of marriage may be considered in the cohabitation analysis. The key hallmarks of a marriage-like relationship under Myers go to the “nature and extent” of a couple’s “common residence, relationship, and interactions.” These considerations are assessed in a holistic inquiry that recognizes that there is no single prototype of a relationship akin to marriage.

Moreover, the term “shared residence” does not mean legal domicile.

[The Utah Supreme Court did not delve into the distinction between domicile and residence, but in a nutshell: essentially domicile involves one’s intent while residence is where one actually is.]

The home in question in this case may not have been the prototypical “principal domicile,” but it was a common residence or dwelling. Neither ex-wife or her boyfriend were visitors in that home. It was a common residence—albeit one of several.

The Supreme Court acknowledged that “shared residence” implies some period of time that is indicative of a marriage-like relationship, but declined to endorse a hard-and-fast rule as to a precise minimum number of days to establish shared residency in all circumstances.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Scott v. Scott – 2020 UT 54 – termination of alimony

This opinion is subject to revision before final publication in the Pacific Reporter
2020 UT 54
IN THE SUPREME COURT OF THE STATE OF UTAH

JILLIAN SCOTT, Appellant,
v.
BRADLEY SCOTT, Appellee.
No. 20180210
Heard March 11, 2020
Filed July 29, 2020
On Certification from the Utah Court of Appeals
Third District, Salt Lake County
The Honorable Robert P. Faust
No. 124903563
Attorneys:
Troy L. Booher, Julie J. Nelson, Salt Lake City, for appellant
Karra J. Porter, Kristen C. Kiburtz, Salt Lake City,
Frederick N. Green, Sandy, for appellee

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, JUSTICE PEARCE, JUSTICE PETERSEN, and JUDGE POHLMAN joined.
Having recused himself, JUSTICE HIMONAS does not participate herein; COURT OF APPEALS JUDGE JILL M. POHLMAN sat.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1     This is the second time that Jillian Scott has asked this court to reverse a lower court decision terminating her right to alimony on the basis of her alleged cohabitation. When the case first came to this court, Jillian’s right to alimony had been terminated under Utah Code section 30-3-5(10)—a statute that then provided that an alimony order “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.”[1] See Scott v. Scott (Scott I), 2017 UT 66, ¶ 3, 423 P.3d 1275. We interpreted the statute to “require[] the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony.” Id. ¶¶ 10, 33. And we reversed a decision terminating Jillian’s right to alimony to the extent it relied on this statute, concluding that Jillian was not cohabiting with her ex-boyfriend at the time the motion to terminate was filed (even if she had been cohabiting previously). See id. ¶¶ 1, 21, 21 n.5, 23, 33.

¶2 On the heels of this decision, Jillian’s ex-husband filed a new motion to terminate Jillian’s right to alimony under the terms of the couple’s divorce decree, which provided that her alimony would terminate “upon” her “cohabitation.” (Emphasis added.) And the district court granted that motion. We now uphold that decision. The subtle distinction between the wording of the statute and the divorce decree makes all the difference. Jillian may not have been cohabiting at the time Bradley filed his motion. But there is ample evidence to support the district court’s determination that she had cohabited previously. And that triggered termination of Bradley’s alimony obligations under the decree. We affirm on that basis, while rejecting Jillian’s assertions that there could be no cohabitation here because she and her ex-boyfriend had no shared legal domicile and did not have a common residence for a sufficient period of time.

¶3    In so doing we reiterate that “a marriage-like cohabitation relationship is difficult to define with a hard-and-fast list of prerequisites.” Myers v. Myers, 2011 UT 65, ¶ 24, 266 P.3d 806. And we hold that the district court is entitled to substantial deference in its fact-intensive determination on the existence of such a relationship. We reverse on one minor point, however, concluding that Jillian was entitled to an award of her costs on her prior appeal.

I. BACKGROUND

A. Factual Background

¶4 Jillian and Bradley Scott married in 1979. During their marriage, the couple amassed a level of personal wealth that allowed them to “live[] a lifestyle beyond even the imagination of most of humanity.” But they ultimately ended up divorcing in 2006 after Jillian walked in on Bradley with another woman.

¶5    The divorce decree obligated Bradley to pay Jillian $6,000 per month after they separated in 2006. But it also provided that Bradley’s alimony obligation would terminate “upon the remarriage or cohabitation” of Jillian. From the time of the divorce until 2018, the Utah Code provided that “[a]ny order” requiring “a party [to] pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” See UTAH CODE § 30-3-5(10).

¶6    In October 2008, Jillian began dating James Okland. Their “intimate” and “exclusive” relationship was a serious one that involved celebrating holidays, traveling, and otherwise spending a significant amount of time together. But their relationship was atypical in many ways.

¶7 Okland’s immense personal wealth allowed the couple to enjoy a lavish lifestyle very different from that of most people. When the couple began dating, Okland owned at least two homes—one in Salt Lake City, Utah (his primary residence) and one in Sun Valley, Idaho.[2] He later purchased an additional home in Rancho Santa Fe, California. Okland also had access to a private jet and owned multiple vehicles, including a Porsche that he later had shipped to the Rancho Santa Fe house. Though Jillian had her own condominium in Salt Lake City, she spent the majority of her time traveling with Okland or at one of his homes. During the relationship, the couple took approximately thirty-six trips together. These trips included work trips for Okland as well as many trips to Okland’s homes, where they would stay for a week or more at a time. In light of the couple’s frequent vacationing and traveling, Jillian arranged to have all but her junk mail delivered electronically.

¶8 Jillian spent upwards of eighty percent of her time traveling with Okland or in one of his homes. She accompanied him on work trips. The couple celebrated holidays and special occasions together, including Okland’s retirement (a twenty-five-day cruise) and Jillian’s daughter’s high school graduation (a trip to Hawaii). Okland also gave Jillian’s daughter $5,000 as a graduation gift.

¶9 The two spent more than just time together. They also spent money together. Jillian was an authorized user on Okland’s credit cards. And Jillian made good use of these cards, paying for necessities such as groceries, gas, and lodging, as well as wedding gifts, Christmas and birthday gifts, and presents for grandchildren.

¶10 In 2010, around the time Jillian’s daughter moved to southern California for college, the couple began looking to acquire a home in Rancho Santa Fe, California. While Okland ended up financing the purchase, both “shared [in the] decisions regarding the selection and ultimate purchase of the home,” and viewed the home as a joint acquisition. Jillian hired the real estate agent, and she was charged with locating a home to her liking. In August 2010, she wrote to the agent and said that the house “ha[d] [her] name all over it!,” while noting that Okland “still want[ed] to look at the covenant and get a feel for everything.” The next month, she wrote that they were “looking for a really good buy!!!” She also explained that Okland was “very conservative with his money” and commented that he had said that they “pa[id] cash for everything.”[3] She also wrote that “it’s really up to James at this point” and noted that she had told him that she “want[ed] to grow old” in Rancho Santa Fe with him and “[h]e [had] agreed!” About a month later, Okland made an offer on behalf of both of them, stating: “Jill and I would like to offer $2,125,000 all cash and close within 15 days.” (Emphasis added.)

¶11 In February 2011 (after Okland had purchased the home), the couple flew to Rancho Santa Fe in Okland’s plane. Okland also had his Porsche shipped there. The real estate agent noted that Jillian “act[ed] like a spouse” as she decorated and replaced furniture in the home. Jillian had several personal items shipped to the home on Okland’s dime, including paintings, Italian tables, dining room cabinets, bedroom chairs, ottomans, a wooden desk, a game table and chairs, Navajo rugs, and three stone cheetahs. Both Jillian and Okland had keys and full access to the home, and Jillian participated in decisions about who else should have a key. Okland also gave Jillian “family status” at the community country club—a move that required him to represent that the couple was “living together and maintaining a common household.”

¶12 There is no indication, however, that Okland viewed the new home as his primary residence. He arranged to have his bills associated with that property sent to Salt Lake and testified that he viewed the Rancho Santa Fe home as a vacation property. Jillian, conversely, put her Salt Lake condominium up for sale.

¶13 Despite access to Okland’s substantial financial resources, Jillian was loath to “give up [her] alimony,” which she described on one occasion as her “extra ‘fun money.’” And fear of losing out on that cash flow may have been a factor in the couple putting off marriage. As she wrote to a friend, “[w]e have talked about marriage but I am not ready to give up my alimony.”[4] The record also suggests that the couple may have openly told others that they remained unmarried only because they didn’t want Jillian to lose her alimony. And while Okland did not recall ever proposing or telling others that the alimony was what stood in the way of their marriage, he did testify that he had purchased a diamond for Jillian. He also acknowledged that his memory was imperfect.

¶14 Jillian’s relationship with Okland eventually fell apart. Around the beginning of April 2011, Okland left Rancho Santa Fe and returned to Salt Lake. He then abruptly ended the relationship by leaving Jillian a voice message.

¶15 Like many breakups, this one left an ex-partner upset and disoriented. In an email to Okland shortly after the breakup, Jillian wrote “I just don’t understand how this happened. . . . You buy a dream home for us to share our lives in. . . . We decorate it with my furniture . . . . You then voice mail me it’s over with no explanation. My dream has now become a nightmare[;] I wish I never shared Rancho Santa Fe with you.” She said that she was “sad, really sad, [and] confused.” In a later email she called Okland a “DREAM STEALER,” a “needy user,” and a “Spineless Snake.”

¶16 Like their relationship, however, their breakup was also singular in many ways. Because Jillian had contracted a dangerous staph infection following a breast augmentation surgery that Okland had paid for (a $17,000-plus bill), Okland told her that she could stay at the Rancho Santa Fe house following the breakup until she recovered. He also said that she could continue to use his credit card for gas and groceries. As a result, Jillian continued to treat the California home as her own. On April 10, she posted a picture of the roses at the Rancho Santa Fe home on Facebook and wrote “I love my rose garden.” In an email to Okland on April 13, she told him that she had bought things to make the home “earth-quake ready.”

¶17 The couple also began discussing a possible financial settlement. Eventually Okland paid Jillian $110,000. And when Okland emailed Jillian and asked her to “sign a release from all future claims,” Jillian responded that “[w]hen the money is in my account, you may consider this e-mail as the disclaimer to any and all future claims against you.” Okland also informed Jillian that he wanted his Porsche back, though he suggested that he was willing to either pay for a one-year lease or give her $36,000 to buy a new car. Neither Jillian nor Okland had ever had a relationship with a boyfriend or girlfriend that had ended in financial settlement.

B. Procedural Background

¶18 Following the break-up, Jillian’s ex-husband Bradley filed a petition to terminate his alimony payments. He argued that Jillian had cohabited with Okland and that termination was proper under both the divorce decree and state statute, the latter of which provided that “[a]ny order” requiring “a party [to] pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” UTAH CODE § 30-3-5(10). The district court held that Okland and Jillian had cohabitated and terminated alimony “pursuant to Utah Code § 30-3-5(10).”

¶19 The court of appeals affirmed on the same ground. See Scott v. Scott, 2016 UT App 31, ¶¶ 9 n.2, 39, 368 P.3d 133, rev’d, Scott I, 2017 UT 66, 423 P.3d 1275. We reversed, holding that “Utah Code section 30-3-5(10) requires the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony.” Scott I, 2017 UT 66, ¶¶ 10, 33. It was undisputed that Jillian had not been cohabiting at the time of Bradley’s filing, and we did not address the question whether she and Okland had ever done so. Like the lower courts, we “d[id] not consider the decree’s language.” Id. ¶ 3 n.1.

¶20 After we issued our opinion, Bradley moved to terminate alimony under the divorce decree rather than the statute. And Jillian filed a motion for an award of her costs in the Scott I appeal under Utah Rule of Appellate Procedure 34(a), under which the costs of an appeal are “taxed against the appellee” “if a judgment or order is reversed” “unless otherwise ordered.”

¶21 Jillian opposed Bradley’s motion, asserting that Bradley was foreclosed from relying on the decree under the “mandate rule” given that Bradley had presented his appeal as if the decree and statute were “coextensive for purposes of the law of the case.” Jillian thus contended that Bradley had waived the right to rely on the divorce decree as an alternative ground for termination of alimony. She also opposed the motion on its merits. She asserted that there could be no finding of cohabitation because she and Okland had never established a shared legal domicile and because the two of them had not resided together for more than a temporary or brief period of time.

¶22 The district court granted Bradley’s motion. It first held that it was not foreclosed from considering the decree under the mandate rule. It also held that Bradley had carried his burden of establishing Jillian’s cohabitation with Okland, relying on findings and conclusions entered in the first round of proceedings (under the statute) and noting that Jillian had not contested any of the court’s findings.

¶23 The district court also denied Jillian’s motion for an award of costs. It did so without explanation.

¶24 Jillian then filed this appeal, which the court of appeals certified for our consideration. Jillian raises three principal claims of error on appeal. First, she contends that the district court violated the mandate rule in addressing Bradley’s motion under the divorce decree. Next, she challenges the district court’s termination of alimony on the merits, asserting error in the determination that Jillian cohabited with Okland under the terms of the decree. Finally, Jillian claims that she was entitled to an award of her costs on appeal in Scott I and that the district court erred in refusing to enter an award in her favor. We affirm on the first two points and reverse on the third.

II. MANDATE RULE

¶25 In Scott I we assessed whether Bradley’s alimony obligation was properly terminated under Utah Code section 30-3-5(10). 2017 UT 66, 423 P.3d 1275. That statute contemplated termination of alimony upon a showing that a former spouse was cohabiting with another at the time the petition for termination was filed. Because there was no basis for concluding that Jillian had been cohabiting with Okland in October 2011 when Bradley filed his termination petition, we reversed a decision terminating alimony under the terms of the statute. And we did so without considering whether Jillian and her ex-boyfriend had cohabited at some point prior to the filing of Bradley’s petition.

¶26 Thereafter, the district court considered a motion to terminate alimony under the divorce decree—a document that contemplates termination “upon cohabitation” and thus does not require a showing of cohabitation at the time the motion to terminate is filed. Jillian sought to avoid an inquiry into cohabitation under the decree. She pointed to an element of the “law of the case” doctrine called the “mandate rule.” In her view this rule prevents a litigant (appellee) from taking a position on remand that he previously “represent[ed] . . . [was] not an alternative ground [on which] to affirm” a lower court in appellate proceedings. And Jillian claimed that this rule barred Bradley from relying on the divorce decree in proceedings on remand in the district court, since in her view Bradley had affirmatively represented that the divorce decree and the statute “presented the same issue”—and thus impliedly represented that the decree was not “an alternative ground [on which] to affirm.”

¶27 We accept Jillian’s formulation of the mandate rule for the sake of argument (without formally endorsing it). But we reject her position because we find no basis for the assertion that Bradley represented that the divorce decree could not provide an alternative ground for affirmance.

¶28 Jillian initially appealed from a district court decision that terminated alimony solely “[p]ursuant to Utah Code § 30-3-5(10).” Before the court of appeals and this court, Jillian relied on an (unpreserved) argument that Utah Code section 30-3-5(10) required ongoing cohabitation. In response, Bradley argued that the statute did not require ongoing cohabitation. In so doing, he did not ignore the decree; he cited it in support of his position that the parties had understood that the statute did not require ongoing cohabitation. In the course of this argument, Bradley did once assert that the standard under the decree and the statute was “similar or the same.” But Bradley made this point in the context of his broader argument that the statute did not require ongoing cohabitation.[5] So contrary to Jillian’s characterization, Bradley did not represent that termination under the decree rose or fell with the court’s acceptance or rejection of Jillian’s statutory argument. He simply asserted that the statute did not support Jillian’s argument, as evidenced by the fact that the parties had understood the statute differently when they made their agreement.

¶29 Because the parties focused their attention on the statute rather than the decree, both the court of appeals and this court relied on the statute and refused to consider whether the decree could lead to a different outcome. As we explained in Scott I, “[o]n certiorari, neither party contends that the language of the decree controls or that under the decree this court should reach a different result.” 2017 UT 66, ¶ 3 n.1. We accordingly limited “our analysis to the parties’ arguments,” and did not “consider the decree’s language.” Id. We even went so far as to note that “the language of the divorce decree may point to a different result.” Id. ¶ 21 n.5.

¶30 As an appellee, Bradley had the prerogative of identifying alternative grounds for affirmance. See State v. Van Huizen, 2019 UT 01, ¶ 39, 435 P.3d 202. But he was under no obligation to do so. See Utah Dep’t of Transp. v. Ivers, 2009 UT 56, ¶ 17, 218 P.3d 583; Madsen v. Washington Mut. Bank fsb, 2008 UT 69, ¶ 26, 199 P.3d 898. Because Jillian was challenging decisions (in the district court and the court of appeals) that were based solely on the statute, Bradley was under no obligation to make an argument under the divorce decree; he was free to simply argue that he should prevail under the statute.

¶31 Our prerogative as an appellate court was similar. We were in a position to “affirm the judgment appealed from if it [was] sustainable on any legal ground or theory apparent on the record.” Madsen, 2008 UT 69, ¶ 26 (citation and internal quotation marks omitted). But we had no obligation to do so. Id. The fact that “we have the discretion to affirm [a] judgment on an alternative ground” that is “apparent in the record,” moreover, does not mean “that our declining to rule on an alternative ground can be construed as a ruling on the merits of the alternative ground.” Id. When our decisions leave issues open, “the trial court ordinarily has discretion to permit amended or supplemental pleadings as to those matters.” Ivers, 2009 UT 56, ¶ 12 (citation omitted). That is what our decision in Scott I did—it left open the decree issue. And that left the district court free to consider arguments on that issue thereafter.

¶32 In hindsight, Bradley’s decision to litigate the initial round of appeals under the alimony statute alone may seem to have been a poor one.[6] While Bradley was not obligated to rely on the decree as an alternative ground for affirmance, the decree’s language would have provided a powerful response to Jillian’s statutory “is” argument. And, as our decision today shows, this court would have reached a different outcome in Scott I if we had exercised our discretion to consider the decree. Yet none of this changes the fact that Bradley was under no obligation to raise this argument and we were under no obligation to address it. Because we chose not to address it, the district court was permitted to consider the decree’s language even after our decision in Scott I.

III. COHABITATION

¶33 The district court relied on the terms of the divorce decree in its decision following Scott I. It noted that the divorce decree provided that Bradley’s alimony obligation would terminate “upon the remarriage or cohabitation” of Jillian. And it terminated Jillian’s right to alimony on the ground that Jillian began cohabitating with Okland on February 17, 2011.

¶34 The district court’s cohabitation determination is a fact-intensive determination of a mixed question of fact and law that is entitled to substantial deference on appeal.[7] See In re Adoption of Baby B., 2012 UT 35, ¶ 42, 308 P.3d 382 (noting that “fact-like” mixed determinations are subject to a deferential standard of review). And there is ample evidence to support the district court’s decision.

¶35 Our case law holds that the “key question” in the cohabitation analysis is whether an unmarried couple has “entered into a relationship akin to that generally existing between husband and wife.” Myers v. Myers, 2011 UT 65, ¶ 22, 266 P.3d 806 (citation and internal quotation marks omitted). We have emphasized that such a relationship is “difficult to define with a hard-and-fast list of prerequisites,” given that “there is no single prototype of marriage” to which “all married couples conform.” Id. ¶ 24. With this in mind, our case law “identif[ies] general hallmarks of marriage (and thus cohabitation)” rather than laying out bright-line rules in this area. Id.

¶36 The hallmarks of a marriage relationship include “a shared residence, an intimate relationship, and a common household involving shared expenses and shared decisions.” Id. Other factors such as “the length and continuity of the relationship, the amount of time the couple spends together, the nature of the activities the couple engages in, and whether the couple spends vacations and holidays together” may also “inform the question whether a relationship resembles that of a married couple.” Id. ¶ 24 n.3.

¶37 Jillian’s relationship with Okland exhibited many of the above-noted hallmarks of a marriage relationship. Like a married couple, Okland and Jillian (a) engaged in an extended and exclusive sexual relationship that lasted around thirty months;[8] spent a significant amount of time together at Okland’s homes and elsewhere, including on vacations and holidays;[9] established “a common household involving shared expenses and shared decisions,”[10] in which Jillian was an authorized user on Okland’s credit cards and the two participated jointly in financial and other decisions related to the purchase of a home; purchased a shared residence together—a house in Rancho Santa Fe—where Jillian acted like a spouse in the purchase, in decorating decisions, and in deciding who would have a key, and where Jillian was given “family status” at a country club based on Okland’s representation that the couple was “living together and maintaining a common household”;[11] and (e) ended their relationship with a financial settlement, in which Okland paid Jillian $110,000 on the condition that she “sign a release from all future claims.”

¶38 In light of the evidence of these hallmarks of a marriage relationship, Jillian is in no position to challenge the district court’s determination of cohabitation on the ground that it exceeded the bounds of its discretion. And in fact, Jillian does not raise that kind of challenge to the district court’s decision. Instead she contends that the district court applied a faulty legal standard in assessing cohabitation.

¶39 Jillian claims that the determination of “shared residence” is a threshold legal requirement that must be established before any other “hallmarks” of marriage are considered in the cohabitation analysis. And she cites two purported legal errors in the district court’s shared residence analysis. First, she contends that the threshold showing of shared residence requires proof that both members of the relationship deem the residence their principal “domicile.” Because in Jillian’s view the Rancho Santa Fe home was not the legal domicile for either Okland or for her, she asserts that any remaining hallmarks of marriage are insufficient to establish cohabitation. Second, she argues that the shared-residence threshold requires a couple to live together for a longer period of time than she and Okland ever did. As she notes, they lived together in the Rancho Santa Fe home for only forty-two days. And she argues that a stay of that length is insufficient under our case law as well as the cohabitation law of other states.

¶40 We reject the premise that shared residence is a threshold element that must be met before other hallmarks of marriage may be considered in the cohabitation analysis. The key hallmarks of a marriage-like relationship under Myers go to the “nature and extent” of a couple’s “common residence, relationship, and interactions.” Id. ¶ 22. These considerations are assessed in a holistic inquiry that recognizes that there is no single prototype of a relationship akin to marriage. And that framework is incompatible with the rigid rule that Jillian proposes.

¶41 We also conclude that our case law has not established the bright-line rules on residence proposed by Jillian. First, we hold that “shared residence” does not mean legal domicile. And we find that there is ample evidence in the record to sustain the determination that the Rancho Santa Fe home was a shared residence. Next, we consider the question of a minimum duration standard for shared residence. We acknowledge that “shared residence” implies some period of time that is indicative of a marriage-like relationship. But we decline to endorse a hard-and-fast rule precluding a decision to credit the forty-two days of shared residency in the circumstances of this case.

A. Shared Residence, Not Legal Domicile

¶42 Jillian’s position on the definition of “shared residence” may seem to find support in our decision in Haddow v. Haddow, 707 P.2d 669 (Utah 1985). There we said that “common residency means the sharing of a common abode that both parties consider their principal domicile.” Id. at 672 (emphasis added). And there is a sense of “domicile” that would suggest that the Rancho Santa Fe home
was not Okland’s legal domicile, and perhaps not Jillian’s either.[12]

¶43 That said, we do not interpret Haddow to impose a requirement of a shared legal domicile, or to foreclose evidence of other hallmarks of marriage until after proof of a shared residence. Haddow did not establish a requirement of a unitary legal conception of domicile like that advocated by Jillian. In context, we think the Haddow reference to “domicile” is best viewed as a colloquial use of the term—a synonym for residence or dwelling place. See Domicile, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictiona ry/domicile (last visited July 5, 2020) (“a dwelling place: place of residence”).

¶44 Haddow speaks of a couple’s “principal domicile.” 707 P.2d at 672. And the existence of a shared, unitary domicile in the legal sense would undoubtedly weigh strongly in favor of a determination of cohabitation. We find no room in our law for the imposition of a hard-and-fast requirement of proof of such a domicile, however.

¶45 Haddow contrasts the status of a “resident” with that of a “visitor.” Id. at 673. A “resident will come and go as he pleases in his own home, while a visitor, however regular and frequent, will schedule his visits to coincide with the presence of the person he is visiting.” Id. This is key to understanding the Haddow notion of residence. It focuses on a person’s status and place in the home, without any firm requirement that it be his only home.

¶46 This is reinforced in our more recent case law. In Myers we emphasized that there is no one-size-fits-all conception of a marriage-like relationship. 2011 UT 65, ¶ 24, 266 P.3d 806. With that in mind, we declined to “delineate a list of required elements of cohabitation,” electing instead to merely identify the “hallmarks” of the relationship. Id. And our framework for this analysis is incompatible with the rigid, unitary notion of legal domicile proposed by Jillian.

¶47 Just as there is no single prototype of a marriage-like relationship, there is likewise no required conception of a couple’s “common residence.” Our law considers the “nature and extent” of the couple’s shared residence as an important element of the overall inquiry into the existence of a relationship akin to marriage. Id. ¶ 22. And we have no trouble concluding that there was a basis for the district court to conclude that Jillian and Okland established a common residence in their home in Rancho Santa Fe—a residence indicative of a marriage-like relationship.

¶48 The Rancho Santa Fe home may not have been the prototypical “principal domicile” that we spoke of in Haddow. But it was a common residence or dwelling. Neither Jillian nor Okland were visitors in that home. It was a common residence—albeit one of several.

¶49 As the purchase process revealed, Okland and Jillian viewed the Rancho Santa Fe property as a shared dwelling. Jillian was heavily involved in the purchase process, and Okland recognized that he was buying the house for the both of them. Tellingly, he made the offer on the home on behalf of both himself and Jillian. And given that Okland financed the purchase, there is no question the home was one of his residences.

¶50 In February 2011, Jillian (accompanied by Okland) moved herself and substantial personal items into the Rancho Santa Fe home. This was not a visit. And neither Okland nor Jillian treated it as such. Both were aware that Jillian was trying to sell her home in Salt Lake. And they acted as if they were spouses as they ordered their affairs concerning the home. As the real estate agent observed, Jillian acted like a spouse as she made decisions about decorations and furnishings. Both had keys and full access to the home. Jillian also made decisions about who else would have a key. And Okland gave Jillian “family status” at the community country club, which required representing to the club that the couple was “living together and maintaining a common household.”

¶51 The above record facts are significant. They amply support the district court’s determination that the Rancho Santa Fe home was a shared residence under our case law.

B. Shared Residence for a Period Indicative of a Marriage-Like Relationship

¶52 Jillian’s position on the duration standard for common residence is also rooted in our opinion in Haddow. There we spoke of a “common abode” shared by a couple “for more than a temporary or brief period of time.” Haddow v. Haddow, 707 P.2d 669, 672 (Utah 1985). In this case Jillian and Okland shared the Rancho Santa Fe home for only a forty-two-day period. And Jillian insists that that is a “temporary or brief period”—insufficient under our case law, and short of the period required in a number of other jurisdictions.

¶53 Jillian claims that our case law has already established that a shared stay of two months and ten days is too “temporary or brief” to sustain a determination of shared residence—and by association, cohabitation. And because forty-two days falls short of that benchmark, she suggests that the district court erred in finding cohabitation.

¶54 Jillian claims to find support for her position in Knuteson v. Knuteson, 619 P.2d 1387 (Utah 1980). And she notes that other states have adopted minimum time bars that support her view that forty-two days fails as a matter of law.[13] She further asserts that almost no cases from jurisdictions without a statutory time bar have found cohabitation when confronted with such a short stay.

¶55 We understand the impulse to establish a clear time standard. A very brief period of shared residence may not resemble a marriage-like relationship. And a spouse with a right to alimony could certainly benefit from a clear rule, which would facilitate planning and protect reliance interests. We decline to set a clear rule here, however, as we find it unsupported by our case law— which again emphasizes that “there is no single prototype of marriage that all married couples conform to,” and subjects the cohabitation inquiry to a holistic, multi-factor analysis. Myers v. Myers, 2011 UT 65, ¶ 24, 266 P.3d 806. So although we do not foreclose the possibility of establishing a minimum time standard in a future case, for now we fall back on our flexible, multi-factor inquiry and leave for the legislature the decision whether to set a fixed standard by statute.

¶56 Our existing case law does not support Jillian’s view. Knuteson did not set a generally applicable minimum period of “two months and ten days.” We did make reference to that period. Knuteson, 619 P.2d at 1388. But the time period itself was not the basis for our holding. Instead we were focused on the circumstances and motivation of the spouse who moved in with a neighbor in that case (Ms. Knuteson)—the fact that she had been forced to move out of her own home when her ex-husband had failed to pay alimony and thereby left her unable to pay her utility bills, which “resulted in the utility companies cutting off the light, gas, and water.” Id. We also emphasized that Ms. Knuteson moved back to her own home “as soon as [she] could resume her normal life in her own home”—once Mr. Knuteson was forced to pay alimony, and the utilities were turned back on. Id. at 1389. This was the basis for our determination that the period of shared residence in Knuteson was “a temporary stay at another’s home.” Id. But this was not the establishment of a minimum period of shared residence. It was a holding based on the unique circumstances of the case, which highlighted that Ms. Knuteson’s stay was “temporary” in the sense that it was not a marriage-like shared residence, but the result of an unfortunate economic necessity.

¶57 Jillian’s and Okland’s shared residence bore little resemblance to the residence that Ms. Knuteson shared with a neighbor. So the Knuteson determination that two months and ten days was a “temporary stay” and not a marriage-like shared residence is not particularly helpful to the question presented here. And it is certainly not controlling under the flexible, multi-factored analysis under Myers.

¶58 In light of all the unique facts and circumstances of this case, we conclude that Jillian shared a residence with Okland for a sufficient period of time to support a determination of cohabitation. In so holding, we emphasize the deferential standard of review that applies to our review of a fact-intensive determination of cohabitation. And we acknowledge that the relatively brief period of Jillian’s shared residence with Okland is the most tenuous element of the inquiry into her alleged cohabitation.[14] But we affirm because we see no basis for a determination that the district judge exceeded the bounds of his ample discretion on the fact-intensive question presented for our decision.

IV. COSTS OF SCOTT I APPEALS

¶59 Jillian filed a motion for an award of the costs incurred in her appeal in the first appeal in this case (in Scott I). She invoked rule 34 of the Utah Rules of Appellate Procedure, which states that “if a judgment or order is reversed, costs shall be taxed against the appellee unless otherwise ordered.” UTAH R. APP. P. 34(a). The district court denied that motion. We now reverse.

¶60 The simple standard set forth in rule 34 was satisfied here. In the Scott I appeal Jillian secured a reversal of the judgment entered against her. She did so on the basis of our determination that the governing statute required proof that an ex-spouse “is cohabiting at the time” of a motion to terminate alimony. See Scott I, 2017 UT 66, ¶ 33, 423 P.3d 1275.

¶61 That holding entitled Jillian to an award of her costs under rule 34. A “judgment or order” was “reversed” in Scott I. That required that “costs shall be taxed against the appellee unless otherwise ordered.” UTAH R. APP. P. 34(a). And we did not otherwise order. We reverse the denial of Jillian’s motion for an award of costs on that basis. And we remand to allow the district court to determine the amount of such costs in the first instance.

V. CONCLUSION

¶62 Our Utah standard of cohabitation requires a fact-intensive inquiry into the nature and extent of a couple’s “common residence, relationship, and interactions.” Myers v. Myers, 2011 UT 65, ¶ 22, 266 P.3d 806. The goal is to determine whether these considerations sustain a determination that an ex-spouse has entered into a relationship akin to marriage. Such a determination triggers a deferential standard of review. We affirm the termination of Jillian’s right to alimony under that standard, while reversing the denial of her motion for costs on her first appeal.

———————————-

https://www.utcourts.gov/opinions/supopin/Scott%20v.%20Scott20200729_20180210_54.pdf

[1] This statutory language was amended in 2018 following our decision in Scott I. We cite to the “the version of the statute that was in effect at the time of the events giving rise to [the] suit.” Harvey v. Cedar Hills City, 2010 UT 12, ¶ 12, 227 P.3d 256 (alteration in original) (citation and internal quotation marks omitted).

[2] Okland “may have either owned or had use of a home in Scottsdale, Arizona” as well.

[3] The direct quote was, “[W]e pay cash for everything. We only financed a part of the plane!” (Emphases added.)

[4] In November 2010, Jillian endorsed one alimony check by signing and then writing “hahahahaha.”

[5] In the oral argument before the court of appeals, for example, Bradley argued that the “is” in the statute “just means are they cohabiting at some point after the divorce . . . , which is also consistent with what the parties themselves understood because . . . they . . . agree[d] to a decree that said [alimony] terminates upon cohabitation. They knew that’s what the statute meant and that’s what they agreed to.” And in his brief in both appellate courts Bradley asserted that “Ms. Scott’s argument is not supported by the statute, or by the stipulated Decree itself (which provides that alimony terminates ‘upon’ cohabitation).”

[6] The strategy was perhaps understandable, however, given that Jillian did not raise her statutory “is” argument until the case arrived at the court of appeals. For that reason, Bradley may have had no reason to ask the district court to adjust its order to rely on the decree rather than the statute. And because he had already won on statutory grounds before the district court, he may have simply thought he could do so again on appeal. Such an assumption would not have been completely unfounded. The question of timing under Utah Code section 30-3-5(10) that we considered in Scott I was a close call, as evidenced by the fact that Bradley convinced a panel of court of appeals judges that he should prevail under that statute.

[7] The court of appeals has occasionally employed a different standard of review in cohabitation cases. See, e.g., Hosking v. Chambers, 2018 UT App 193, ¶ 23, 437 P.3d 454 (reviewing the ultimate determination of cohabitation for correctness). To the extent those cases suggest that a different standard of review applies, they are hereby overruled.

[8] See Myers v. Myers, 2011 UT 65, ¶ 24, 266 P.3d 806 (noting that the hallmarks of marriage include “an intimate relationship”); id. ¶ 24 n.3 (identifying “the length and continuity of the relationship” as a factor that informs the cohabitation inquiry).

[9] See id. ¶ 24 n.3 (identifying “the amount of time the couple spends together” and “whether the couple spends vacations and holidays together” as cohabitation considerations).

[10] Id. ¶ 24.

[11] Id. (identifying “shared residence” as a hallmark of marriage).

[12] See Lilly v. Lilly, 2011 UT App 53, ¶ 13, 250 P.3d 994 (stating that “[a] person may . . . have multiple physical residences at any one time but only one domicile or legal residence”); see also 25 Am. Jur. 2d Domicil § 24 (2020) (”One does not lose one’s domicil by mere physical presence elsewhere unless that presence is accompanied by an intention to abandon the old residence and adopt the new.”).

[13] See N.D. CENT. CODE ANN. § 14-05-24.1(3) (requiring cohabitation for one year); S.C. CODE ANN. § 20-3-130(B) (ninety days); VA. CODE ANN. § 20-109(A) (one year).

[14] Perhaps another judge encountering these same facts might have concluded that Jillian’s shared residence with Okland was for too short a period of time to sustain a determination that they cohabited in a manner that was akin to a marriage relationship. And perhaps we would also sustain that determination on a record like this one. But that just underscores the significance of the standard of review in a case like this one, and the importance of the district judge’s exercise of discretion.

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State v. Drommond – 2020 UT 50 – Utah Supreme Court

2020 UT 50 IN THE SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH, Appellee,
v.
DAVID EDWARD DROMMOND, JR., Appellant.
No. 20080252
Heard April 30, 2013
Reheard February 10, 2020
Filed July 17, 2020
On Direct Appeal
Second District, Farmington
The Honorable Jon M. Memmott
The Honorable Robert J. Dale
No. 051701317
Attorneys:
Sean D. Reyes, Att‘y Gen., Christopher D. Ballard,
Asst. Solic. Gen., Salt Lake City, for appellee
Scott L. Wiggins, Salt Lake City, for appellant
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.

JUSTICE HIMONAS, opinion of the Court:

INTRODUCTION

¶1 David Drommond, Jr., shot and killed his ex-wife. After he pleaded guilty to aggravated murder, Drommond was sentenced by a jury at a penalty-phase trial to life in prison without the possibility of parole—not to twenty years to life in prison with the possibility of parole as he had hoped. Drommond challenges that sentence, arguing that it should not stand because his penalty-phase trial was fraught with mistakes and his trial counsel was ineffective. We affirm.

BACKGROUND

¶2 We split the facts into five sections. The first section recounts Drommond‘s murder of his ex-wife and how he later pleaded guilty to aggravated murder, in part so the State wouldn‘t seek the death penalty. The second summarizes pretrial motions that Drommond‘s counsel filed and the trial court‘s corresponding rulings. The third details the evidence at Drommond‘s penalty-phase trial. The fourth depicts the trial‘s closing arguments and the jury‘s verdict. And the last describes Drommond‘s appeal to this court and the later rule 23B hearing that the trial court held to enter findings of fact on one of Drommond‘s claims for ineffective assistance of counsel.

I. THE MURDER AND THE GUILTY PLEA

¶3 On the morning of August 28, 2005, Janeil Reed, Drommond‘s ex-wife, went with her father to Drommond‘s apartment to drop off their children for a visit. Reed‘s father, Neil Bradley, waited for her in the car. Upon arriving, the children ran up the stairs to Drommond‘s apartment door and were let inside. Reed went up the stairs to the door, too, carrying a box of items that Drommond had asked her to bring.

¶4 Reed and Drommond stood just inside the doorway, talking. The conversation ended abruptly when Drommond pulled a handgun from his waistband and shot Reed once, hitting her in the arm and chest area. Reed screamed and stumbled back, falling partway down the front stairs of the apartment. Drommond followed her, stepping out of the doorway to the top of the stairs. He then raised the gun (so that it was three or four feet from Reed‘s head) and pulled the trigger again, this time shooting her in the head. She died very quickly.

¶5 Hearing the shots, Bradley darted from his car toward Drommond, hoping to detain him. At the same time, Drommond‘s roommate, Ryan Zimmer—who had been outside as well—came toward Drommond. Zimmer stopped when he saw that the Drommond children ―were just right inside the doorway‖ of the apartment. He told them to stay in the apartment and closed the door.

¶6 Bradley came running up the stairs toward Drommond, and Drommond shot him. The bullet pierced Bradley‘s arm and entered his body. (Bradley survived his wounds.) Bradley and Zimmer tried to wrestle the gun away from Drommond. They eventually received help from Jason Von Weller, a neighbor, who stripped the gun from Drommond. Drommond tried to get the gun back but was pinned down until the police arrived and arrested him.

¶7 The State charged Drommond with aggravated murder, attempted murder, and violating a protective order. Drommond was then evaluated for competency by four court-appointed psychologists: Randal Oster, John Malouf, Nancy Cohn, and Stephen Golding. Each psychologist diagnosed him with a different mental health problem, but each concluded that Drommond was competent to proceed.

¶8 Next, Drommond pleaded guilty to aggravated murder. As part of the plea deal, the State dismissed the remaining charges and agreed not to seek the death penalty.

II. THE PENALTY-PHASE TRIAL: PRETRIAL MOTIONS

¶9 After Drommond pleaded guilty to aggravated murder, a penalty-phase jury trial was held. The jury‘s task was to decide whether Drommond should serve a life sentence without the possibility of parole or twenty years to life with the possibility of parole.

¶10 Before the penalty-phase trial, Drommond filed two motions relevant to this appeal. First, he filed a motion asking the trial court for confrontation rights at sentencing. The trial court denied the motion, holding that hearsay would be admissible at the penalty-phase trial if (1) it was reliable, (2) Drommond had the opportunity to rebut it, and (3) it was not unfairly prejudicial. Second, Drommond filed a motion asking the court to limit impermissible victim-impact evidence at the penalty-phase trial. The court held that victim-impact evidence would be admissible at the penalty-phase trial as long as it wasn‘t ―unfairly prejudicial” and didn‘t ―make comparative judgments about the worth of the victim‘s life in comparison to the life of the defendant.”

III. THE PENALTY-PHASE TRIAL: EVIDENCE

¶11 The jury received evidence at trial about (A) Drommond‘s relationship with Reed, (B) his mental health problems after their divorce, (C) his desire to keep her from dating or marrying someone else, (D) his bipolar disorder at the time of the murder, (E) the murder itself, (F) his statements after the murder, and (G) the impact of the murder on the Drommond children. We summarize below the relevant parts of that testimony.

A. Drommond’s Relationship with Reed

¶12 Bradley (Reed‘s father) and Melina Yorke (Reed‘s friend) testified about Reed and Drommond‘s relationship, which began in 1994. According to Yorke, in August 1995, Reed told Yorke that she had talked to a male friend from high school at a music store, and that when Drommond found out that the two had talked, his temper snapped. Yorke said that Drommond choked Reed, leaving bruises on her neck.

¶13 Despite this incident, the couple married a short while later. Reed and Drommond later had two children. Bradley testified that when Drommond lost his job in about 2002, the marriage deteriorated, and, by the beginning of 2005, Reed and Drommond had divorced.

¶14 Bradley testified that soon after the divorce—in March 2005—Drommond strangled Reed to the point that she thought she would die because she had used his cell phone to call another man and had incurred a large bill. After the strangling, Reed obtained a protective order against Drommond, but she agreed to continue taking the children to visit him. Bradley testified that Drommond also frightened Reed with threatening emails in August 2005, causing Bradley to stay periodically at Reed‘s house at night.

B. Drommond’s Mental Health Problems After the Divorce

¶15 After the divorce, Drommond went to live with his parents and stayed there until June 2005. Dr. Linda Gummow—a neuropsychologist and Drommond‘s expert witness at trial— detailed much of Drommond‘s mental health history during this time.

¶16 Dr. Gummow first outlined Drommond‘s mental health. She said that Drommond was diagnosed with major depressive disorder at the end of 2004, and at the beginning of the next year, he was diagnosed with bipolar disorder. Bipolar disorder, explained Dr. Gummow, is ―a major mood disorder.” She further explained that, to be diagnosed with bipolar disorder, a person must have had at least one manic episode—which is an ―episode[] of very high mood, way beyond normal elation”—and episodes of depression, which are episodes of ―very extremely low moods.”

¶17 A few months after the divorce, testified Dr. Gummow, Drommond cut himself, attempted suicide several times, and had ―hostile thoughts” toward Reed and his own family. As a result, he was admitted to Lakeview Hospital at the beginning of May 2005, where he stayed for about five days.

¶18 Dr. Gummow said that while Drommond was at Lakeview Hospital, he was treated by several physicians and received many diagnoses of his mental health problems. At various times at the hospital, Drommond was diagnosed with bipolar disorder not otherwise specified (bipolar disorder NOS),[1] schizoaffective disorder, and—upon discharge—bipolar disorder one.[2]

¶19 Dr. Gummow testified that after being discharged from Lakeview Hospital, Drommond had ―no treatment” other than being ―given some bottles of pills.” Dr. Gummow said that this was a mistake—that he should have seen a mental health professional once a week, that ―his medication should have been monitored,” and that ―his moods should have been tracked very regularly.”

C. Drommond’s Desire to Prevent Reed from Dating or Marrying Someone Else

¶20 As mentioned above, Drommond lived with his parents after the divorce. But at the end June 2005—about a month after he was released from Lakeview Hospital—he moved into an apartment with some roommates.

¶21 Drommond‘s roommate, Rian Carlson, testified that, a couple of months before the murder, Drommond asked Carlson to get him a gun so the two could start a ―bounty hunter service” or, more accurately, so Drommond could have the gun to use as an ―an intimidation factor.” Carlson said that he obtained a handgun about a month before the murder and gave it to Drommond. That was the handgun that Drommond would use to murder Reed.

¶22 Carlson testified that he and Drommond eventually shared their “bounty hunter idea” with a friend named Michael Hansen. Carlson testified that Drommond talked with him and Hansen about how they were going to “scare” and “rough [] up” people who owed him money. The group never followed through with any of those plans, and the group‘s focus soon shifted to Reed.

¶23 Carlson explained at trial that Drommond found out that Reed was dating someone, and he didn‘t like it. He wanted to put a stop to it. So, testified Carlson, two or three weeks before the murder, Drommond talked with him and Hansen about scaring Reed out of dating by breaking into her house and cutting her phone line. Carlson told the jury that the group never did so but that Drommond did have Hansen drive by Reed‘s house and her boyfriend‘s house to “check it out.”

¶24 Detective Lloyd Kilpack, who investigated Reed‘s murder, testified that Hansen told him in an interview that Drommond even paid Hansen $400 to break into Reed‘s house to tell her not to marry her fiancé and to drive by Reed‘s house and her fiancé‘s to jot down the license plate numbers of the vehicles parked outside.[3] (Hansen never did so.) Detective Kilpack also testified that Hansen told him that, on the day before the murder, Drommond again asked Hansen to break into Reed‘s house and scare her out of getting married, reminding Hansen that he had paid him $400 to do so. Detective Kilpack added that Hansen even showed him a text message from Drommond in “which Mr. Hansen was reminded that he was given $400 by Mr. Drommond for this particular situation and driving by the house.” According to Detective Kilpack‘s testimony, Hansen refused to go through with it and offered to return Drommond the money. Detective Kilpack testified that he saw the following text message from Drommond to Hansen in response: “I‘ve been doing this for years. Don‘t worry about it. I‘ll take care of this.” Apart from Kilpack‘s testimony about the text messages, we refer in this opinion to the testimony in this paragraph as the Kilpack–Hansen Hearsay Testimony.

D. Drommond’s Bipolar Disorder

¶25 Dr. Gummow testified that, when Drommond murdered Reed, he suffered from bipolar disorder NOS, childhood onset. This was important, she said, “because the bipolar disorder has a lot to do with Mr. Drommond‘s criminal behavior and understanding what happened, and also understanding what might happen in the future with regard to him.”

¶26 Dr. Gummow explained how people with bipolar disorder might generally behave. She explained that people experiencing a manic episode are “extremely active,” “talk too fast,” “move too fast,” and are “not rational.” She also said that those experiencing manic episodes are likely to “get involved in legal trouble” because, for example, “they‘re out and about and they irritate people, they get in fights”—all that, because they “don‘t know that they‘re high.” A person experiencing a manic episode “may think that they‘ve lost control of themselves,” said Dr. Gummow, “but often they‘re not aware of the fact that their behavior is going off the chart.” Dr. Gummow testified that bipolar disorder is “incurable”—that “it can be controlled, minimized, and people can be comfortable, but it‘s always there.”

¶27 Besides opining that Drommond had bipolar disorder NOS, Dr. Gummow also discussed the diagnoses of the four court-appointed psychologists who had determined that Drommond was competent. Each psychologist—none of whom were called as witnesses at trial—had diagnosed Drommond differently: bipolar disorder one (Dr. Oster); narcissistic personality disorder (Dr. Malouf); personality disorder not otherwise specified, with prominent narcissistic and borderline features (Dr. Cohn); and major depression and severe cluster B personality disorder (Dr. Golding).[4] Dr. Gummow conceded that Dr. Cohn‘s and Dr. Golding‘s diagnoses were supported by some evidence and that they would be harder to treat than bipolar disorder and that they couldn‘t be treated with medication.[5]

E. Evidence About the Murder

¶28 Several witnesses testified about the murder itself, too. The jury heard that Drommond shot Reed twice, that he shot Bradley too, and about the later struggle to disarm and subdue Drommond. See supra ¶¶ 3–8. And a medical examiner testified that an autopsy confirmed that Reed died from her wounds.

F. Drommond’s Postmurder Statements

¶29 The jury also heard testimony about things Drommond told Carlson, Sean Buchanan (Drommond‘s cellmate), and Kristina Shakespeare (Drommond‘s cousin) after the murder.

¶30 First, Carlson testified that when he went to visit Drommond in jail after the murder, Drommond expressed no remorse and seemed to think it was “a joke that he was there.”

¶31 Then, Detective Kilpack testified about his interview with Buchanan. Kilpack testified that Buchanan said that Drommond told him (1) that he wanted Reed‘s sister to be “taken out of the box;”(2) that he wanted Reed‘s sister‘s “neck broken” or for her to be “killed” so “she could not take care of his children;” (3) that he should have killed the entire Bradley family; (4) that he planned to be released from custody after six or seven years, after which “they will see I‘m crazy” and “that the bitch had it coming;” and (5) that “he had popped [Reed] with precision” and that as he said so, “he was smiling.” We refer to this testimony as the Kilpack– Buchanan Hearsay Testimony.

¶32 Detective Kilpack also testified about his interview with Kristina Shakespeare. Kilpack said that, in the interview, Shakespeare shared how Drommond told her after the murder that “he felt great because [Reed] was gone” and that “if he had the power to do so, he would kill the entire Bradley family.” We refer to this testimony as the Kilpack–Shakespeare Hearsay Testimony.

G. The Impact of the Murder on the Drommond Children

¶33 Finally, Reed‘s sister testified that Reed‘s children “miss their mother very much.” A photograph of Reed and her two children was also admitted into evidence.

IV. THE PENALTY-PHASE TRIAL: CLOSING ARGUMENTS, JURY INSTRUCTIONS, AND THE VERDICT

¶34 At the close of the penalty-phase trial, Drommond‘s counsel asked the jury to impose a sentence of twenty years to life in prison, rather than life in prison without the possibility of parole. Drommond‘s counsel claimed that this sentence was proper because, if Drommond were to have “structure” and “treatment,” he could “be normalized.”

¶35 After closing argument, Drommond asked the trial court for a special verdict, which would require the jury to find that any “uncharged crimes” presented at trial were proven beyond a reasonable doubt before it could consider them in the sentencing decision. The court rejected this request.

¶36 The jury then deliberated and sentenced Drommond to life in prison without the possibility of parole, and he appealed.

V. THE APPEAL AND THE RULE 23B REMAND

¶37 After appealing, Drommond filed a motion in 2010 under rule 23B of the Utah Rules of Appellate Procedure. He requested that we remand his case for an entry of finding of facts as to whether his trial counsel was ineffective because he failed to investigate and present expert testimony about the effects of one of Drommond‘s antidepressant medications, Effexor, on his bipolar disorder.[6]

¶38 After initially rejecting the rule 23B motion, we granted it in 2013. We remanded and directed the lower court to “enter findings of fact as to (1) any adverse effects of Effexor on [Drommond‘s] bipolar disorder, and (2) whether [Drommond‘s] trial counsel provided effective assistance when counsel failed to investigate and present expert testimony regarding the possible effects of Effexor on [Drommond‘s] bipolar disorder.”

¶39 At the rule 23B hearing, Drommond called two expert witnesses—both psychiatrists—to testify: Pablo Stewart and Peter Breggin. The State called its own expert psychiatrist, David Moulton.

¶40 Dr. Stewart testified that treatment with “pretty high doses of Effexor . . . alone could flip one into mania,” and that “even if [Drommond] stopped taking the medication, the mania [would have had] a life of its own.” He added that “once you‘re flipped into mania, then . . . you‘re in a manic state” and “that‘s going to run its course.”

¶41 In the same vein, Dr. Breggin testified that “Effexor causes aggression and impulsivity,” that it “should never be given to a patient with mania,” and that “it played a considerable role in [Drommond‘s] actions.” Dr. Breggin added that the “meds in combination with bipolar” caused Drommond to become very “disturbed” at Lakeview Hospital. Dr. Breggin said that “once he‘s that disturbed, that could last for months off the medication.” He opined that it wouldn‘t go away just “because [Drommond] stopped the meds,” and that “if he stopped the meds shortly before the violence, then he would have been in withdrawal.”

¶42 Contrary to Dr. Stewart and Dr. Breggin, Dr. Moulton (the State‘s expert witness) testified that “there‘s nothing in the medical literature that supports that mania in and of itself causes serious violence.” Dr. Moulton said that “we don‘t have evidence that [Effexor] lead[s] to homicide or increase[s] the homicide rate.” He added that “[i]f there‘s any interpretation to be made it‘s that people on [Effexor] would be less likely to commit a homicide [than] somebody that‘s not on [Effexor].” He also explained that antidepressant withdrawal causes a “flu-like reaction.” It “can cause malaise, headaches, nausea, vomiting, diarrhea,” and “some irritability, similar to the irritability someone might experience who has the flu.” But those symptoms go away within forty-eight to seventy-two hours or “almost immediately” after one resumes taking the medication.

¶43 After hearing the testimony, the rule 23B court first found that Dr. Moulton‘s testimony was “the most credible regarding the effects of Effexor on a person with Bipolar Disorder” because of his “training, education, experience, and the way he testified at the evidentiary hearing.” The court also found that Drommond “did not take his medications, including Effexor, in July or August 2005.” Most importantly, the court found that Drommond had not shown “by a preponderance of the evidence that the effects of

Effexor would [have] still [been] contributing to [his] mental state as late as August 28, 2005.”

¶44 The court then found that Drommond‘s trial counsel had been deficient by not investigating how Effexor affects people with bipolar disorder, but that Drommond wasn‘t prejudiced by the mistake ―[b]ecause the preponderance of the evidence does not support that Effexor contributed to [Drommond‘s] mental state at the time he committed the homicide.”

¶45 With the rule 23B proceedings concluded, we now decide Drommond‘s appeal. We have jurisdiction under Utah Code section 78A-3-102(3)(i).

STANDARD OF REVIEW

¶46 Drommond first maintains that he received ineffective assistance of counsel before and during the penalty-phase trial. When raised for the first time on appeal, an ineffective-assistance-of-counsel claim ―presents a question of law,” which we review for correctness. State v. Bedell, 2014 UT 1, ¶ 20, 322 P.3d 697 (citation omitted). And when a claim for ineffective assistance of counsel has been decided at a rule 23B hearing, we review the rule 23B court‘s ―purely factual findings for clear error, but review the application of the law to the facts for correctness.” Taylor v. State, 2007 UT 12, ¶ 13, 156 P.3d 739.

¶47 Drommond next claims that the trial court erred by holding that he had no constitutional right to confrontation at his penalty-phase trial. This is a question of law, and we review it for correctness. State v. Timmerman, 2009 UT 58, ¶ 7, 218 P.3d 590 (―Interpretations of federal and state constitutions are questions of law.”).

¶48 Drommond also argues that the trial court erred by ruling that the constitutional right to due process didn‘t preclude certain victim-impact evidence. This is also a question of law, and thus we review it for correctness. Id.

¶49 Drommond last claims that the trial court erred by refusing to instruct the jury that it could consider evidence of uncharged crimes only if it found that the State had proven them beyond a reasonable doubt. We review a trial court‘s ―refusal to give a jury instruction” for abuse of discretion. State v. Berriel, 2013 UT 19, ¶ 8, 299 P.3d 1133 (citation omitted). We afford ―significant deference” on ―issues that are primarily or entirely factual” but ―little or no deference” on ―issues that are primarily or entirely legal.” Id.

ANALYSIS

¶50 Drommond raises four categories of errors on appeal: (1) that he received ineffective assistance of counsel, (2) that hearsay evidence violated his right to confrontation, (3) that victim-impact evidence violated his right to due process, and (4) that evidence of uncharged crimes violated his right to due process. Last, he asserts that the cumulative effect of these alleged errors requires a new penalty-phase trial. For the reasons we detail below, we reject each of these arguments and affirm the jury‘s verdict.[7]

I. INEFFECTIVE ASSISTANCE OF COUNSEL

¶51 Drommond argues that his trial counsel was ineffective and that, as a result, he was deprived of his constitutional right to effective assistance of counsel under the Sixth Amendment to the United States Constitution. To show that counsel‘s assistance was ineffective, thus depriving a defendant of this right, the defendant must meet the two-pronged test that the United States Supreme Court set out in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires the defendant to show that (1) ―counsel‘s performance was deficient” and (2) ―the deficient performance prejudiced the defense.” Id. at 687; see also State v. Newton, 2020 UT 24, ¶ 20, — P.3d —.

¶52 Drommond contends that his trial counsel was ineffective in two ways: first, by not investigating and presenting evidence on how Effexor influenced his bipolar disorder at the time of the murder, and, second, by not presenting at the penalty-phase trial the expert testimony of all four court-appointed psychologists. We reject both claims. The first claim fails because, even assuming Drommond‘s trial counsel‘s performance was rendered deficient by his failure to investigate and present evidence about the effects of Effexor, Drommond wasn‘t prejudiced by it. The second claim fails because trial counsel wasn‘t deficient in not presenting the psychologists‘ testimony.

A. Ineffective Assistance of Counsel: Failure to Investigate and Present Evidence on Effects of Effexor

¶53 Drommond argues that he received ineffective assistance of counsel when his trial counsel failed to investigate the potential role Effexor played in the murder and present expert testimony about it. This claim was remanded to the rule 23B court for findings of fact. The rule 23B court found that, although Drommond‘s trial counsel was deficient in not investigating the effects of Effexor on bipolar disorder, that mistake didn‘t prejudice Drommond‘s defense. The court also found that trial counsel‘s overall trial strategy was reasonable.

¶54 Drommond disagrees with the rule 23B court‘s findings for two main reasons. First, he says that the court‘s findings of fact were clearly erroneous. Second, he argues that he was prejudiced by his counsel‘s failure to investigate and present evidence on the effects of Effexor on his bipolar disorder. After reviewing both claims, we conclude, first, that Drommond has not shown that the court‘s findings of fact are clearly erroneous and, second, that he suffered no prejudice as a result of his counsel‘s failure to investigate and present evidence on the effects of Effexor. This ineffective-assistance-of-counsel claim consequently fails.

  1. Findings of Fact

¶55 Drommond disagrees with two of the rule 23B court‘s findings of fact and contends that they are clearly erroneous. He challenges the court‘s findings that (1) Dr. Moulton was ―the most credible regarding the effects of Effexor on a person with Bipolar Disorder” and (2) Drommond ―did not take his medications, including Effexor, in July or August.” Drommond, however, hasn‘t met his burden of showing that the rule 23B court‘s findings of fact are clearly erroneous.

¶56 ―We defer to a trial court‘s findings of fact after a rule 23B hearing,” State v. Taylor, 947 P.2d 681, 685 (Utah 1997), and we review them only for clear error, State v. Sagal, 2019 UT App 95, ¶ 20, 444 P.3d 572, cert. denied, 456 P.3d 389 (Utah 2019). That means we set aside the rule 23B court‘s factual findings only if

they ―are against the clear weight of the evidence,” or if we ―otherwise reach[] a definite and firm conviction that a mistake has been made.” See State v. Walker, 743 P.2d 191, 193 (Utah 1987).

¶57 We start with Drommond‘s challenge to the finding that Dr. Moulton was ―the most credible regarding the effects of Effexor on a person with Bipolar Disorder.” The trial court based this finding on Dr. Moulton‘s ―training, education, [and] experience, and the way he testified at the evidentiary hearing.” Drommond asserts that this finding was ―unreasonable and against the clear weight of the evidence” for three reasons.

¶58 First, Drommond contends that Dr. Moulton wasn‘t credible because he admitted that he had been testifying from the wrong report during the rule 23B hearing. On cross-examination, Dr. Moulton admitted that he was testifying from an earlier version of his report, rather than from the latest version. He clarified, however, that he had created two reports, each dated one week apart from the other, and that his conclusions in each report were the same. The second report, he explained, had merely fine-tuned the first report by adding a heading and revising a few words and sentences for clarity. We think it a real stretch to say that such an innocuous mistake would render Dr. Moulton not credible.

¶59 Second, Drommond complains that Dr. Moulton wasn‘t credible because he referenced in his report a ―serotonin neuron reuptake inhibitor” but conceded in his testimony that such a thing doesn‘t exist. Dr. Moulton remedied this error at the rule 23B hearing, explaining that he had made a typographical error in his report. He had written ―serotonin neuron reuptake inhibitor”—which, he acknowledged, does not exist—instead of ―serotonin norepinephrine reuptake inhibitor.” Like the first error, this error in no way shows that Dr. Moulton wasn‘t credible; it shows only that he, like the rest of us, is prone to the occasional typo.

¶60 Third, Drommond complains that Dr. Moulton is not credible because his report ―was almost totally devoid of any clinical analysis” of Drommond. When asked about this on cross-examination, Dr. Moulton explained that he had not provided a diagnosis of Drommond because he wasn‘t asked to do so; he was asked only ―to provide what the effects of [Drommond‘s] medication may have had on this case.” Dr. Moulton said that he didn‘t dispute—indeed he supported—the conclusion that Drommond had bipolar disorder and that he therefore didn‘t need to do a clinical analysis. And, he said, a clinical analysis ―would not change [his] response that there is no medical literature that supports that [Effexor and other medications that Drommond had been prescribed] lead to serious violence.” Given that Dr. Moulton didn‘t dispute that Drommond had bipolar disorder, we cannot say that his decision not to perform his own clinical analysis of Drommond rendered him not credible.

¶61 In short, Drommond has not shown that the rule 23B court erred, much less clearly erred, in finding that Dr. Moulton was the most credible expert witness.

¶62 Besides challenging the court‘s finding that Dr. Moulton was the most credible expert, Drommond challenges the factual finding that Drommond ―did not take his medications, including Effexor, in July or August.” The rule 23B court found that Drommond ―stopped taking Effexor at least by July 2005.” We first examine the evidence supporting the finding, and then we address Drommond‘s arguments against it. We conclude that the rule 23B court didn‘t clearly err in finding that Drommond didn‘t take Effexor in July or August.

¶63 There was plenty of evidence that supported the finding that Drommond stopped taking Effexor by July 2005. Accordingly, the finding wasn‘t ―so lacking in support” that it is ―against the clear weight of the evidence.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 75, 99 P.3d 801. For example, trial counsel testified at the rule 23B hearing that the two bottles of Effexor that the police had seized after the murder—one of which had been filled in January, the other, in July—were full. That suggests that Drommond did not take Effexor in July 2005. Importantly, Drommond‘s trial counsel also testified that Drommond told him after the murder, ―I don‘t take those. I don‘t like them.” This evidence strongly supports the rule 23B court‘s finding that Drommond wasn‘t taking Effexor in July and August 2005.

¶64 Drommond asserts that these findings were clearly erroneous and that he ―proved by a preponderance of the evidence that he had been taking the Effexor up to approximately the time of the homicide.” To support his conclusion, Drommond points to (1) evidence that he filled his Effexor prescriptions in May, June, and July 2005; (2) evidence that the police—who seized two bottles of Effexor from Drommond‘s apartment after the murder—didn‘t record the exact number of pills in the bottles; (3) Dr. Breggin‘s      and    Dr. Stewart‘s testimonies  about Drommond‘s pharmacy records; (4) Drommond‘s mother‘s testimony that she checked the pill bottles and noticed that the number of pills had decreased; and (5) evidence that he requested his medication after his arrest. Drommond has presented some ―plausible evidence,” id. ¶ 73, that he didn‘t stop taking Effexor by July 2005, but he has not shown that the court‘s finding was ―so lacking in support” that it was ―against the clear weight of the evidence,” id. ¶ 75.

¶65 We start with Drommond‘s strongest evidence that he never stopped taking the medications—his first and fifth points. Drommond‘s first point—that he filled his prescriptions in May, June, and July 2005—is his strongest evidence that he had been taking Effexor in July and August 2005. But that he filled the prescriptions for Effexor is not direct evidence that he indeed took Effexor in July and August. And Drommond‘s fifth point—his request for Effexor after his arrest—is perhaps some evidence that he was taking the medication but doesn‘t establish that he was taking the medication before the murder. As the State suggests, ―a factual finding is not clearly erroneous merely because some contrary evidence exists.” See Taylor, 947 P.2d at 686 (holding that a rule 23B court‘s finding wasn‘t clearly erroneous because ―enough evidence” supported the court‘s finding even though the court could have found the opposite but didn‘t).

¶66 We finish with Drommond‘s other evidence that he was taking Effexor at the time of the murder (his second, third, and fourth points). The second point—that the police didn‘t record the number of pills in the bottles—simply shows that nobody knew exactly how many pills were in the bottles. But it didn‘t contradict Drommond‘s trial counsel‘s testimony that the bottles were full. The third point—which highlights testimony from Dr. Breggin and Dr. Stewart—also doesn‘t undermine the rule 23B court‘s finding. Although the psychiatrists testified that Drommond took Effexor in August, they had no firsthand knowledge of the matter. Drommond‘s fourth point—which is about his mother‘s testimony that he took Effexor —doesn‘t show that he took Effexor in July or August. His mother‘s testimony that Drommond took the medication referred only to a two-week period at some time after his stay at Lakeview Hospital and before he moved out of his parents‘ house at the end of June 2005. Her testimony, then, didn‘t contradict the court‘s finding that Drommond stopped taking Effexor by July 2005.

¶67 Drommond has failed to show that the rule 23B court‘s finding that he had not taken Effexor in July or August 2005 was against the clear weight of the evidence. As a result, it merits our deference.

  1. Lack of Prejudice

¶68 Drommond argues that his trial counsel rendered ineffective assistance when he failed to investigate and present evidence on the effects of Effexor on Drommond‘s bipolar disorder. We reject this claim because, even assuming Drommond‘s counsel was deficient in failing to investigate and present evidence on the effects of Effexor, Drommond was not prejudiced by that deficiency.

¶69 To determine whether Drommond was prejudiced (under the second prong of Strickland) by the failure to investigate and present evidence, the ultimate question we must answer is whether ―there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. ―A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. This inquiry requires us to consider whether the evidence that would have been presented if counsel‘s performance had not been deficient would have ―affect[ed] the ‘entire evidentiary picture.‘” Gregg v. State, 2012 UT 32, ¶ 26, 279 P.3d 396 (alteration in original) (citation omitted). Specifically, we ―consider the totality of the evidence, taking into account such factors as whether the errors affect the entire evidentiary picture or have an isolated effect and how strongly the verdict is supported by the record.” Id. (citation omitted); see also Caro v. Woodford, 280 F.3d 1247, 1256–57 (9th Cir. 2002) (―This inquiry . . . compels us to couple the omitted evidence with the mitigating evidence presented at trial and reweigh it against the aggravating evidence to determine whether the omitted evidence ‘might well have influenced the jury‘s appraisal of . . . [the defendant‘s] moral culpability.‘” (second and third alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 397–98 (2000)).

¶70 Drommond argues that the expert testimony flowing from a reasonable investigation ―could have documented . . . Drommond‘s mental status in the penalty phase trial” and could have given the jury ―an explanation of how the Effexor aggravated his Bipolar Disorder by switching him into a mania that took on a life of its own.” He also argues that ―[e]xpert testimony would have explained how the Effexor ‘flipped‘ or switched Mr. Drommond into a manic episode, unmasking his underlying psychiatric condition, and that the medication also caused untoward activating side effects that made any mania he might otherwise have experienced much more severe.” In short, Drommond believes that the evidence of ―Effexor and the whole pharmacologic mismanagement would have been mitigating evidence in the penalty phase trial” and would have ―humanize[d] and explain[ed]” Drommond.

¶71 The rule 23B court‘s findings cut against Drommond‘s arguments. The rule 23B court found that any expert testimony resulting from an investigation into the effects of Effexor would have shown only that Drommond‘s ―illness was mismanaged pharmacologically between December 30, 2004, and May 2, 2005 when he entered the hospital.” Such testimony, the rule 23B court explained, ―may have helped the jury understand some of his behavior during those months, but it wouldn‘t have mitigated [Drommond‘s] behavior in July and August, including August 28, 2005, the day of the homicide.” Critically, the rule 23B court found that ―the preponderance of the evidence [did] not support that Effexor contributed to [Drommond‘s] mental state at the time he committed the homicide.” Similarly, it found that the expert testimony wouldn‘t have shown that ―Effexor nor withdrawal from Effexor caused [Drommond] to commit a serious act of violence such as homicide or assault.”

¶72 Based on the rule 23B court‘s factual findings, the omitted evidence wouldn‘t have affected the entire evidentiary picture of the penalty-phase trial, nor helped mitigate Drommond‘s moral culpability. And Drommond has not shown that the rule 23B court‘s factual findings were clearly erroneous. Supra ¶¶ 55–67. So, contrary to what Drommond suggests, the omitted evidence wouldn‘t have shown that Effexor affected Drommond‘s actions on the day of the murder, thereby mitigating his culpability for the murder. The most it would‘ve done is perhaps mitigate his culpability for the March 2005 strangling incident. But there was other evidence besides the March 2005 strangling incident that Drommond acted with hostility toward Reed, even when not taking Effexor: testimony about the 1995 strangling incident, the threatening emails, Drommond‘s requests to his friends to scare her out of dating and marrying another man, and the murder itself. Thus any evidence about Effexor‘s effect on Drommond would have had an isolated effect on the evidentiary picture.

¶73 Deferring to the rule 23B court‘s factual findings, we conclude that there is no reasonable probability that the omitted evidence would have influenced the jury‘s appraisal of Drommond‘s moral culpability and thereby swayed the jury to give Drommond a more lenient sentence. Put differently, our confidence in the outcome of the penalty-phase trial has not at all been undermined. Thus, even assuming counsel rendered deficient performance by failing to investigate and present evidence on the effects of Effexor on Drommond‘s bipolar disorder, Drommond wasn‘t prejudiced by it. He, therefore, cannot show that counsel‘s failure to investigate and present mitigating evidence about the effects of Effexor on Drommond‘s bipolar disorder constituted ineffective assistance of counsel.

B. Ineffective Assistance of Counsel: Failure to Call the Court-Appointed Psychologists

¶74 Drommond also claims that his counsel was ineffective at the penalty-phase trial by limiting the expert evidence of Drommond‘s mental state to just Dr. Gummow‘s testimony. Drommond argues that counsel should have also used as mitigation evidence the evaluations and diagnoses of the four court-appointed psychologists who had evaluated him for competency just after the murder—those of Dr. Oster, Dr. Malouf, Dr. Cohn, and Dr. Golding. We hold that counsel‘s representation didn‘t fall below an objective standard of reasonableness. For this reason, this ineffective-assistance-of-counsel claim fails.

¶75 Drommond‘s trial counsel presented expert testimony about Drommond‘s mental health problems through Dr. Gummow only. Given its importance to this issue, we briefly recap parts of Dr. Gummow‘s trial testimony before analyzing whether trial counsel‘s performance was deficient.

¶76 Dr. Gummow documented Drommond‘s mental health problems and concluded that, at the time of the murder, Drommond had bipolar disorder NOS. Dr. Gummow claimed that Drommond‘s bipolar disorder had worsened before the murder because (1) he either hadn‘t been taking his medication or, if he had been, he had been on the wrong dosage and (2) “his life [had been] falling apart.” Also, she believed that Drommond “had not fully accepted the need for psychotropic medication.”

¶77 Dr. Gummow explained that, although bipolar disorder cannot be cured, it can be “controlled” and “minimized.” More importantly, she said that several factors suggested that Drommond had a good chance of managing his bipolar disorder going forward, in part because he now realized the importance of medication and was taking it.

¶78 Dr. Gummow also discussed the opinions of the four court-appointed psychologists who had diagnosed Drommond with different mental health problems, asserting that her diagnosis—bipolar disorder NOS—was “pretty consistent with everyone else‘s.”

¶79 Dr. Gummow testified that she had reviewed Dr. Oster‘s and Dr. Malouf‘s reports and relied on them in part in forming her opinion about Drommond. She acknowledged that Dr. Oster diagnosed Drommond with bipolar disorder one and that Dr. Malouf—who “was not completely convinced” that Drommond had a bipolar disorder—diagnosed Drommond with delusional disorder and “felt there was [a] more psychiatric process more akin to schizophrenia going on.” And, on cross-examination, Dr. Gummow agreed that Dr. Cohn‘s diagnosis (personality disorder not otherwise specified with narcissistic and borderline features) and Dr. Golding‘s diagnosis (severe cluster B personality disorder not otherwise specified) both found some support in the evidence. And if Dr. Cohn‘s and Dr. Golding‘s diagnoses were correct, she conceded, then treatment would be harder.

¶80 Then Dr. Gummow shared why she felt her diagnosis— bipolar disorder NOS—was more correct than theirs. She said that it was more accurate than that of Dr. Cohn and Dr. Golding because her diagnosis fell in line with those of the mental healthcare professionals who had treated Drommond on “multiple occasions” and who had “a much better vantage point” than did Dr. Cohn and Dr. Golding, who had seen only a “snapshot.”

¶81 Having reviewed Dr. Gummow‘s expert testimony, we now turn to whether Drommond‘s trial counsel was ineffective in his handling of the expert testimony on Drommond‘s mental state at the time of the murder. To meet the first prong of the Strickland standard, a defendant must show “that counsel‘s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687–88. Put differently, a defendant must show that counsel‘s performance wasn‘t “reasonable[] under prevailing professional norms.” Id. at 688.

¶82 “There are . . . countless ways to provide effective assistance in any given case.” Harrington v. Richter, 562 U.S. 86, 106 (2011) (citation omitted) (internal quotation mark omitted). We need only discern whether the strategy chosen by trial counsel was one of those ways. Drommond‘s trial counsel chose to call as a witness a neuropsychologist who testified that she had diagnosed Drommond with bipolar disorder and who maintained that his bipolar disorder was treatable and that treatment would allow him to one day safely reenter society. In so doing, trial counsel chose to focus on that expert‘s diagnosis rather than the diagnoses of the four court-appointed competency psychologists whom he chose not to call as witnesses. We cannot say that this strategy was unreasonable; far from it.

¶83 If trial counsel had chosen the strategy advocated by Drommond on appeal—calling every court-appointed psychologist to testify— there would have been a serious risk of the jury believing that Drommond didn‘t have bipolar disorder and instead had a mental health problem that was harder to treat—i.e., a personality disorder. State v. Ott, 2010 UT 1, ¶ 39, 247 P.3d 344 (―We note that avoidance of drawing the jury‘s attention to certain facts or over-emphasizing aspects of the facts is a well-recognized trial strategy.‖). Indeed, on cross-examination, Dr. Gummow acknowledged that the diagnoses of Dr. Cohn (personality disorder not otherwise specified with narcissistic and borderline features) and Dr. Golding (severe cluster B personality disorder not otherwise specified) were also supported by the evidence and that they would be harder to treat than bipolar disorder.

¶84 Had trial counsel focused on these diagnoses, the jury may have been less likely to believe that Drommond‘s mental health problems could be treated and, as a result, less likely to impose a sentence that allowed for the possibility of parole. As a result, rather than calling all the psychologists to testify, reasonable counsel could have believed that the jury would feel that the diagnosis of bipolar disorder would be more mitigating than a personality disorder and so called an expert who had diagnosed Drommond with bipolar disorder. See George L. Blum, Annotation, Adequacy, Under Strickland Standard, of Defense Counsel’s Representation of Client in Sentencing Phase of State Court Death Penalty Case—Failure to Present Evidence Regarding Client’s Mental Illness or Dysfunction, Other than as Result of Lack of Investigation, 7 A.L.R. 7th Art. 3 (2016) (―Diagnoses of specific mental illnesses, which are associated with abnormalities of brain and can be treated with appropriate medication, are likely to be regarded by the jury in a capital case as more mitigating than generalized personality disorders, and for good reason, as involuntary physical alteration of brain structures, with its attendant effects on behavior, tends to diminish moral culpability, altering the causal relationship between impulse and action.”).

¶85 True, one other psychologist—Dr. Oster—diagnosed Drommond with a type of bipolar disorder, and trial counsel didn‘t call him as a witness. That testimony, however, would have been cumulative. And ―[a]dditional, but cumulative, evidence which could have been presented does not . . . establish ineffective assistance.” Parker v. Allen, 565 F.3d 1258, 1279 (11th Cir. 2009); see also Farina v. State, 937 So. 2d 612, 624 (Fla. 2006) (―[C]ounsel does not render ineffective assistance by failing to present cumulative evidence.”); State v. Oliver, 820 P.2d 474, 478 (Utah Ct. App. 1991) (holding that trial counsel wasn‘t deficient by failing to present evidence when ―[a]ny additional evidence would have been cumulative”). Moreover, Dr. Gummow acknowledged that Dr. Oster had also diagnosed Drommond with bipolar disorder. By calling only Dr. Gummow to testify, counsel enjoyed the best of both worlds: he bolstered Dr. Gummow‘s diagnosis with that of Dr. Oster without allowing Dr. Oster to be subject to the State‘s cross-examination—in which the State would have no doubt brought up once again Dr. Cohn‘s and Dr. Golding‘s less favorable diagnoses.

¶86 In short, Drommond‘s counsel wasn‘t deficient by choosing not to present the testimony of the four court-appointed competency experts. Drommond‘s second claim for ineffective assistance of counsel fails.

II. RIGHT TO CONFRONTATION

¶87 Drommond claims that his rights to confrontation under both the United States and Utah Constitutions were violated at trial because the jury heard certain hearsay statements, and he was unable to cross-examine the declarants of those statements. The State replies that the trial court didn‘t err because there is no constitutional right to confrontation at sentencing and, in any event, the testimony was reliable and not unfairly prejudicial.

¶88 We recognize below that our case law is somewhat inconsistent as to whether the right to confrontation applies at sentencing. But we need not decide the issue here because any error in admitting the hearsay statements was harmless beyond a reasonable doubt.

A. The Right to Confrontation at Sentencing Under the U.S. and Utah Constitutions

¶89 Drommond alleges that both the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article I, section 12 of the Utah Constitution apply at sentencing.[8] The Confrontation Clause provides that ―[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. Similarly, article I, section 12 of the Utah Constitution gives the accused ―[i]n criminal prosecutions . . . the right . . . to be confronted by the witnesses against him.” When the right to confrontation applies and a witness does not testify, a ―party can only introduce [the] witness‘s testimonial statements into evidence if the witness is unavailable to testify . . . and the opposing party had a prior opportunity to cross-examine.” State v. Timmerman, 2009 UT 58, ¶ 9, 218 P.3d 590.

¶90 The issue here is whether the right to confrontation applies at sentencing. We first discuss federal case law on this issue. Although the United States Supreme Court has never addressed it, every circuit court of appeals has. We then discuss our own case law on the issue. It is inconsistent and, for that reason, does not clearly resolve the issue before us.

¶91 We begin with federal case law. Whether the Confrontation Clause applies at sentencing has gone unanswered by the U.S. Supreme Court.[9] But every federal circuit court of appeals has held that there is no right to confront witnesses at sentencing under the Sixth Amendment‘s Confrontation Clause.[10]  So although there is no binding U.S. Supreme Court precedent, recent federal case law strongly suggests that the Confrontation Clause does not apply at sentencing.

¶92 Next, we put our own case law under the microscope. The Utah Supreme Court has applied both the state and federal right to confrontation at a sentencing proceeding. We did so in State v. Carter, 888 P.2d 629 (Utah 1995), superseded on other grounds by UTAH CODE § 76-3-207(2)(a)(iii) (1999).

¶93 There, the defendant challenged a statute as violating the right to confrontation under both the U.S. and Utah Constitutions. Id. at 641. The statute applied to capital resentencing proceedings. Id. It allowed all evidence properly admitted at trial and in previous sentencing proceedings—including all exhibits and a transcript of all testimony—to be admitted into evidence at the resentencing proceeding. Id. The defendant argued that the statute violated his right to confrontation. Id. In deciding the appeal, we didn‘t question whether the right to confrontation applies at sentencing; we took as a given that it does. Id. at 642 (determining that the capital resentencing statute implicated ―a capital defendant‘s right to confrontation”). And we incorporated into the resentencing statute ―the safeguards articulated by the United States Supreme Court in [Ohio v. Roberts, 448 U.S. 56, 66 (1980), abrogated by Crawford v. Washington, 541 U.S. 36 (2004)] and adopted by this court in [State v. Brooks, 638 P.2d 537, 539 (Utah 1981), abrogated by constitutional amendment as stated in State v. Goins, 2017 UT 61, ¶¶ 31–32, 45, 423 P.3d 1236].” Id. Roberts had held that an unavailable witness‘s hearsay statement could be admitted at trial under the Confrontation Clause only if the hearsay statement ―bears adequate ‗indicia of reliability,‘” such as when it ―falls within a firmly rooted hearsay exception.”[11] 448 U.S. at 66. In short, the Carter court applied article I, section 12 of the Utah Constitution and the Confrontation Clause of the U.S. Constitution without even questioning whether those provisions apply at sentencing. See 888 P.2d at 646.

¶94 We have found no Utah case that predates Carter that applied the constitutional right to confrontation (be it state or federal) at sentencing, and the parties haven‘t pointed us to one either. The only case within the same ballpark analyzed whether the defendant‘s right to due process was violated when the trial court relied on hearsay statements at sentencing and precluded the confrontation of certain witnesses at sentencing. See State v. Sanwick, 713 P.2d 707 (Utah 1986). There, we relied on an Idaho Supreme Court decision that held that “[h]earsay was admissible [at sentencing] as long as the defendant had the opportunity to rebut the adverse evidence and to challenge the reliability of the evidence presented.” Id. at 709 (citing State v. Johnson, 618 P.2d 759 (1980)).

¶95 Nor have we consistently applied our Carter decision in later cases. For example, we implied in State v. Kell, that the right to confrontation applies at sentencing, but we didn‘t mention Carter in that context or its requirements that the hearsay declarant be unavailable and that the hearsay statement bear adequate indicia of reliability. 2002 UT 106, ¶¶ 43–44, 61 P.3d 1019. And later, in Taylor v. State, we held that the defendant‘s appellate counsel wasn‘t ineffective for failing to challenge the trial court‘s 1991 admission of hearsay evidence at sentencing. 2007 UT 12, ¶ 108, 156 P.3d 739. Citing Carter and Sanwick, we reasoned that when the defendant appealed in 1991, “hearsay evidence generally was considered to be admissible at sentencing” as long as the hearsay was “reliable” and the defendant was “given the opportunity to rebut the evidence.” Id. In dicta, we said that the U.S. Supreme Court‘s Crawford opinion had “triggered some debate as to whether confrontation rights apply to sentencing.” Id. ¶ 108 n.4. But because the issue wasn‘t determinative in that case, we didn‘t address it. Id.

¶96 Next, in State v. Timmerman, while analyzing whether one has a constitutional right to confrontation at preliminary hearings, we held that three U.S. Supreme Court cases ―establish Supreme Court precedent confining the Sixth Amendment Confrontation Clause to trial.” 2009 UT 58, ¶ 11, 218 P.3d 590. (emphases added) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (plurality opinion); California v. Green, 399 U.S. 149, 157 (1970); Barber v. Page, 390 U.S. 719, 725 (1968)); see also State v. Rhinehart, 2006 UT App 517, ¶ 14, 153 P.3d 830 (―The Confrontation Clause pertains to a criminal defendant‘s right to confront and cross-examine the witnesses against the defendant at trial . . . .” (emphasis added)). And, we held, because the federal Confrontation Clause applies only at trial, it ―does not apply to preliminary hearings.” Timmerman, 2009 UT 58, ¶ 13. So if, as Timmerman held, the Confrontation Clause is confined to trial, then it wouldn‘t provide a right to confrontation at sentencing (assuming sentencing is not part of trial). See United States v. Ray, 578 F.3d 184, 196 (2d Cir. 2009) (―[W]e conclude that the word ‗trial,‘ as understood at the time of the Founding, would not have encompassed sentencing proceedings.”). But see John G. Douglass, Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105 COLUM. L. REV. 1967, 1973 (2005) (concluding that, in 1791, ―[t]here was no distinction between trial rights and sentencing rights because, in both purpose and effect, the trial was the sentencing”).

¶97 And, most recently, we said in State v. Maestas, that ―we have never analyzed whether a defendant in a penalty phase should be afforded the right to confront witnesses.” 2012 UT 46, ¶ 297, 299 P.3d 892. We said so without citing Sanwick, Carter, Kell, Taylor, or Timmerman. Id. And we didn‘t decide whether the right applied at sentencing in Maestas because we held that any alleged error in that case was harmless. Id. ¶ 298.

¶98 Taken together, our case law is somewhat contradictory as to whether the constitutional right to confrontation applies at sentencing, and, if so, how that right is satisfied. All in all, the arc of both our case law and federal case law seems to bend away from applying the right to confrontation at sentencing. But this is not the case for us to decide this issue because, even assuming the right to confrontation does apply at sentencing (or at the very least, at capital sentencing), any error in Drommond‘s case was harmless beyond a reasonable doubt. Kell, 2002 UT 106, ¶ 54 (declining to reach constitutional questions when any potential error wasn‘t prejudicial). We look forward, however, to resolving this issue in a future case in which it is necessary to do so. See, e.g., State v. Argueta, 2020 UT 41, ¶ 55, — P.3d —.

B. Any Error Was Harmless Beyond a Reasonable Doubt

¶99 The hearsay statements that Drommond complains of all came from Detective Kilpack‘s testimony: the Kilpack–Hansen Hearsay Testimony, the Kilpack–Buchanan Hearsay Testimony, and the Kilpack–Shakespeare Hearsay Testimony. See supra ¶¶ 24, 31–32. Neither Hansen, Buchanan, nor Shakespeare testified at the penalty-phase trial. The State contends that any error in allowing Detective Kilpack to testify about these witnesses‘ statements was harmless beyond a reasonable doubt. We first determine that Drommond did not preserve his objection to the Kilpack– Shakespeare Hearsay Testimony. We then hold that any constitutional error in admitting the Kilpack–Hansen Hearsay Testimony and the Kilpack–Buchanan Hearsay Testimony was indeed harmless beyond a reasonable doubt.

  1. Preservation Issues

¶100 Drommond did not preserve his assertion that the Kilpack–Shakespeare Hearsay Testimony was improperly admitted into evidence. To preserve an issue for appeal, a party must raise a ―timely and specific objection.” State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (citation omitted). Only then will the alleged errors come ―to the trial court‘s attention to give the court an opportunity to correct the errors if appropriate.” Id. (citation omitted). And if ―there is no clear or specific objection and the specific ground for objection is not clear from the context[,] the theory cannot be raised on appeal.” Id. (alteration in original) (citation omitted).

¶101 Because Drommond didn‘t raise a timely and specific objection to the Kilpack–Shakespeare Hearsay Testimony, Drommond failed to preserve his argument that it was improperly admitted into evidence. In his argument before the penalty-phase trial for the right to confront witnesses, Drommond‘s counsel excluded Shakespeare: ―There‘s one witness that‘s a cousin and her name is . . . Shakespeare. . . . She‘s clearly unavailable, so she‘s not going to fall within the confines of the argument I‘m about to present to you.” The trial court rejected counsel‘s request for the right to confrontation.

¶102 Then, just before Detective Kilpack testified, Drommond‘s counsel renewed his argument for the right to confront witnesses: ―Just for the record, next witness you‘re going to have is a variety of statements, not all of them are going to be hearsay. But you‘ll know it when you [h]ear it. So, I would like to renew my objection with respect to confrontation.” Drommond now urges us that this statement was somehow an objection to the Kilpack–Shakespeare Hearsay Testimony. He says that this renewal “rectified” the earlier “waiver.”

¶103 We disagree. Drommond didn‘t raise a timely and specific objection to the Kilpack–Shakespeare Hearsay Testimony. And the trial court never had the chance to rule on the admissibility of the testimony because counsel excluded testimony about Shakespeare‘s statements from the original objection. By simply renewing that original objection before Detective Kilpack testified, Drommond didn‘t object to the Kilpack–Shakespeare Hearsay Testimony. Because Drommond failed to object to the Kilpack–Shakespeare Hearsay Testimony, his challenge to that testimony on appeal is unpreserved.[12] The Kilpack–Shakespeare Hearsay Testimony was, on that basis, properly before the jury.

  1. Any Error Was Harmless Beyond a Reasonable Doubt

¶104 We are left only with deciding whether the admission of the Kilpack–Hansen Hearsay Testimony and the Kilpack– Buchanan Hearsay Testimony was harmless beyond a reasonable doubt.

¶105 When an error amounts to a violation of a defendant‘s constitutional right to confrontation, “reversal is required unless the error is harmless beyond a reasonable doubt.” State v. Villarreal, 889 P.2d 419, 425 (Utah 1995) (citation omitted). This harmless-beyond-a-reasonable-doubt analysis requires us to determine “the probable impact of the [testimony] on the minds of the average juror.” Id. (citation omitted). We can evaluate several factors in deciding whether an error was harmless beyond a reasonable doubt, such as “the importance of the witness‘ [s] testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence collaborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution‘s case.” Id. at 425–26 (citation omitted).

¶106 Two main pieces of evidence emerged from the Kilpack– Hansen Hearsay Testimony and the Kilpack–Buchanan Hearsay Testimony. The first was that Drommond had asked Hansen to break into Reed‘s house and scare her out of getting married and to drive by the houses of Reed and her fiancé to record license plate numbers. The second was that Drommond had expressed his desire to kill other members of Reed‘s family and that he had no remorse about killing Reed.

¶107 Applying the harmless-beyond-a-reasonable-doubt standard to each piece of evidence, we find that it wouldn‘t likely impact the mind of the average juror because (1) the prosecution‘s case was strong and (2) other testimony corroborated this evidence.

¶108 First, ―the overall strength of the prosecution‘s case,” id. at 426 (citation omitted), supports our holding that Kilpack‘s testimony about the Hansen and Buchanan interviews was harmless beyond a reasonable doubt. The State presented potent evidence upon which the jury could have relied to sentence Drommond to life in prison without the possibility of parole. Specifically, the jury heard evidence that Drommond tucked a gun in his waistband before meeting his ex-wife, who was dropping their children off for visitation. It heard that—while his children were nearby—he shot her in the body from close range. Jurors also heard that he then walked closer to Reed and shot her in the head. It heard evidence that he then shot his former father-in-law and that he continued to fight those at the murder scene for possession of the gun. The jury also heard testimony that Drommond sent Reed threatening emails shortly before the murder.

¶109 Second, the Kilpack–Hansen Hearsay Testimony and the Kilpack–Buchanan Hearsay Testimony were corroborated by other evidence properly before the jury.

¶110 The Kilpack–Hansen Hearsay Testimony was corroborated by Carlson‘s testimony and by Kilpack‘s testimony about text messages he saw. For starters, Carlson testified that Drommond wanted to scare Reed out of dating or marrying other men. Carlson also testified that Drommond, two or three weeks before the murder, talked with him and Hansen about ―breaking into [Reed‘s] house,” and ―like cutting the phone line kind of thing, and like scaring her, you know with fear, if you date him then bad things will happen to you.” Carlson further explained that Drommond had Hansen drive by Reed‘s house ―and kind of check it out” and said that he and Drommond had even gone to Reed‘s house to do so. On top of hearing Carlson‘s testimony, the jury heard Kilpack testify that he saw text messages from Drommond that corroborated the Kilpack–Hansen Hearsay Testimony. One of the texts reminded Hansen that he had been ―given $400 by Mr. Drommond for this particular situation and driving by the house.” And so the Kilpack–Hansen Hearsay Testimony was corroborated by other evidence.

¶111 The Kilpack–Buchanan Hearsay Testimony—which went toward Drommond‘s lack of remorse and his desire to kill members of Reed‘s family—was likewise corroborated by other evidence. First, Kilpack testified that Shakespeare told him that Drommond told her after the murder that ―he felt great because [Reed] was gone” and that ―if he had the power to do so, he would kill the entire Bradley family.” We held above that this testimony was properly before the jury because Drommond didn‘t object to it. Supra ¶ 103. It is thus proper for us to consider it in the harmless-beyond-a-reasonable-doubt analysis. Second, Carlson also testified that Drommond expressed no remorse for the murder and that it ―almost kind of seemed like a joke that he was [in jail].” Thus the jury heard other evidence that Drommond wanted to have members of Reed‘s family killed and that he didn‘t regret murdering Reed.

¶112 Overall, the Kilpack–Hansen Hearsay Testimony and the Kilpack–Buchanan Hearsay Testimony were just two small pieces of the State‘s case. The substance of the interviews was corroborated by other evidence before the jury and the overall strength of the prosecution‘s case was strong. Any constitutional error in admitting the evidence would not affect the mind of the average juror and was therefore harmless beyond a reasonable doubt.

III. VICTIM-IMPACT EVIDENCE

¶113 Drommond next maintains that certain victim-impact evidence violated his right to due process under the Utah Constitution.[13] This claim fails because most of the evidence that Drommond complains about is not victim-impact evidence. And the evidence that is victim-impact evidence wasn‘t prejudicial.

¶114 Utah Code section 76-3-207(2)(a)(iii) allows, during capital sentencing proceedings, the presentation of evidence about ―the victim and the impact of the crime on the victim‘s family and community without comparison to other persons or victims.” Victim-impact evidence is evidence that ―speaks to the victim‘s character, effects of the crime on the surviving family, or any opinions of the surviving members about the crime.” See State v. Lafferty, 2001 UT 19, ¶ 83, 20 P.3d 342. Evidence is not victim-impact evidence when it merely ―portrays . . . what took place at the crime scene.” See id.

¶115 Drommond characterizes evidence about the following as victim-impact evidence: the 1995 strangling, the 2005 strangling and the resulting protective order, Drommond‘s threatening emails to Reed, the ―bounty hunter service,” Drommond‘s requests that his friends break into Reed‘s house and scare her out of dating and getting remarried, the murder and the struggle to disarm and subdue Drommond, Drommond‘s lack of remorse, Drommond‘s postmurder statements that he wanted Reed‘s sister to be hurt or killed, Drommond‘s statements that he wanted to kill the entire Bradley family, Reed‘s autopsy, and the testimony of Reed‘s sister that Reed‘s children ―miss their mother very much” and that ―they don‘t understand what‘s happened.”[14]

¶116 The only evidence here that is victim-impact evidence is the testimony about Reed‘s children missing their mother. That evidence speaks to the ―effects of the crime on the surviving family.” Id. The rest of the evidence is not victim-impact evidence, however, because it does not go toward ―the victim‘s character, effects of the crime on the surviving family, or any opinions of the surviving members about the crime.” Id. It just describes the events before the crime, what took place at the crime scene, and Drommond‘s lack of remorse after the crime.

¶117 Because the other evidence is not victim-impact evidence, we need only determine whether the testimony about Reed‘s children missing their mother violated Drommond‘s right to due process under the Utah Constitution. Because Drommond has not shown that he was prejudiced by the victim-impact evidence, his claim fails.

¶118 We have never ―addressed what limitations, if any, the state constitution places on the use of victim-impact evidence during the penalty phase of a capital trial.”[15] State v. Maestas, 2012 UT 46, ¶ 307, 299 P.3d 892. That is because, ―[b]efore treating the constitutional issue on its merits, we determine whether the victim impact evidence . . . was prejudicial.” State v. Kell, 2002 UT 106, ¶ 52, 61 P.3d 1019 (footnote omitted). And if a ―potential error is not prejudicial,” we need not decide the constitutional limits on victim-impact evidence. Id. Following that logic in Kell and Maestas, we found a lack of prejudice and declined to reach the constitutional question. Id. ¶¶ 53–54; Maestas, 2012 UT 46, ¶ 317. Likewise, we do so today: Drommond has not shown that he was prejudiced by the testimony about the children missing their mother and so we do not address any constitutional limits on victim-impact evidence.

¶119 A defendant is prejudiced by an error if there is not ―a mere possibility, but a reasonable likelihood that the error affected the result.” Maestas, 2012 UT 46, ¶ 308 (citation omitted). When deciding ―whether a defendant was prejudiced by the admission of victim-impact evidence, we consider the totality of the evidence before the jury.” Id. (citation omitted) (internal quotation marks omitted). Prejudice is a high bar to meet; even ―detailed descriptions” of victims‘ grief may be admissible. Id. Victim-impact evidence may be prejudicial, however, “if it is pervasive, if it contains an opinion of the defendant‘s character or the appropriate sentence, if it exceeds a description of the ‘family‘s loss and mourning,‘ or if it fails to be ‘moderate in tone.‘” Id. (footnotes omitted) (citations omitted).

¶120 Drommond wasn‘t prejudiced by the testimony about the children missing their mother. In its entirety, the statement was this: “They of course miss their mother very much. And they don‘t understand what‘s happened. But they are good kids and I love them.” As in Maestas, this statement was “moderate in tone,” “not pervasive,” and “did not express an opinion about [Drommond‘s] character or the appropriate sentence.” Id. ¶ 313. Indeed, this victim-impact evidence was minimal. See State v. Arguelles, 2003 UT 1, ¶ 123, 63 P.3d 731 (holding that any error in admitting victim-impact evidence was harmless because it was “minimal”). And although even “vivid images of . . . grief . . . are not necessarily prejudicial,” Maestas, 2012 UT 46, ¶ 316, this short, benign testimony was in not even vivid. It was just a quick description of the family‘s loss and mourning.

¶121 We thus hold that the admitted victim-impact evidence testimony didn‘t prejudice Drommond, and we decline to define the constitutional limits on victim-impact evidence.

IV. FAILURE TO GIVE A JURY INSTRUCTION UNDER LAFFERTY

¶122 Drommond next protests the admission of evidence of his previous “uncharged crimes,” arguing that it violated his rights under the United States Constitution—the right to due process and the right to be free from cruel and unusual punishment. He maintains that the jury should have received an instruction prohibiting it from considering those crimes unless the jury found that the crimes had been proven beyond a reasonable doubt.[16] The State contends that such an instruction is not necessary because the evidence merely gave context to the crime for which Drommond had pleaded guilty, and wasn‘t evidence of unrelated, uncharged crimes. We agree with the State and hold that the trial court didn‘t abuse its discretion in refusing to give the jury instruction that Drommond advocates for.

¶123 Drommond objects specifically to evidence (1) that he asked Carlson to get him a gun so they could start a ―bounty hunter service” and intimidate people who owed Drommond money; (2) that he, two or three weeks before the murder, wanted Carlson and Hansen to break into Reed‘s house and scare her out of dating another man; (3) that he, on the day before the homicide, asked Hansen to break into Reed‘s house and scare her into not getting married to her fiancé; and (4) that he told his cellmate, Buchanan, that he wanted Reed‘s sister to be severely hurt or killed ―so that she could not take care of his children.”

¶124 Utah‘s capital sentencing statute allows the admission of aggravating or mitigating evidence that enables the court or jury body to appropriately sentence a defendant. See UTAH CODE § 76-3-207(2)(a). That evidence includes ―the nature and circumstances of the crime,” the defendant‘s ―character, background, history, and mental and physical condition,” ―the victim and the impact of the crime on the victim‘s family,” and ―any other facts in aggravation or mitigation of the penalty that the court considers relevant to the sentence.” Id. This wide-ranging information allows the court or jury to sentence the defendant based on the defendant‘s history, character, ―violent propensities and future dangerousness.” State v. Lafferty, 749 P.2d 1239, 1259 (Utah 1988), adhered to on reconsideration, 776 P.2d 631 (Utah 1989), and overruled on other grounds by Met v. State, 2016 UT 51, ¶¶ 89–90, 388 P.3d 447.

¶125 Drommond correctly asserts that, before the jury can consider other criminal activity as an aggravating factor, the jury must first be ―convinced beyond a reasonable doubt that the accused did commit the other crime.” Id. at 1260. So ―when the prosecution introduces evidence of aggravating factors in the form” of another crime that hasn‘t resulted in a conviction, ―the sentencing jury must be instructed (i) as to the elements of the other crime regarding which the evidence was adduced and (ii) that it is not to consider evidence of that crime as an aggravating factor unless it first finds that the prosecution has proven all the elements of the crime beyond a reasonable doubt.” Id.

¶126 The issue here, however, is whether the evidence that Drommond protests was used as evidence of other criminal activity and as an aggravating factor. We find that it wasn‘t. A beyond-a-reasonable-doubt instruction was thus unnecessary.

¶127 The facts of Lafferty illustrate that point. In Lafferty, the defendant was convicted of two counts of first-degree murder. Id. at 1241. During the penalty-phase trial, the State introduced evidence that the defendant ―had assaulted several people in jail while he awaited his trial.” Id. at 1258. On appeal, we held that the jury could not rely on the assaults as an aggravating factor for sentencing unless it was convinced that the defendant committed them. Id. at 1260.

¶128 Lafferty thus applies when the State uses evidence of other, unrelated criminal activity as ―important information about the accused‘s violent propensities and future dangerousness” or as ―evidence of a defendant‘s past criminal behavior so that the jury [can] have an accurate picture of the defendant‘s background, history, and character.”[17] State v. Maestas, 2012 UT 46, ¶ 287, 299 P.3d 892. No case has held, however, that Lafferty applies any time the jury hears evidence of conduct that could constitute other criminal activity. Context matters. “[E]vidence may be relevant in several different contexts.” State v. Carter, 888 P.2d 629, 654 (Utah 1995), superseded on other grounds by UTAH CODE § 76-3-207(2)(a)(iii) (1999). Evidence may, for example, be relevant to whether one committed a crime unrelated to the one for which the person is being sentenced (and thus relevant to future dangerousness or propensity for criminal activity), but it may also be relevant as evidence showing the nature and circumstances of the crime for which the person is being sentenced. We hold that Lafferty applies to the former use but not to the latter. In other words, Lafferty‘s beyond-a-reasonable-doubt standard does not apply when the State uses evidence merely to show the nature and circumstances of the crime for which the defendant is being sentenced—even if that evidence might be criminal activity in and of itself.

¶129 We must now determine whether Lafferty‘s beyond-a-reasonable-doubt standard applies here. The State, at Drommond‘s penalty-phase trial, didn‘t argue that the above evidence was evidence of crimes distinct from the aggravated murder for which he was being sentenced. Neither did it argue that the above evidence supported a sentence of life without the possibility of parole. Rather, the State presented the evidence as part of the circumstances of the murder. The evidence showed what Drommond did before the murder and informed the jury about Drommond‘s lack of remorse afterward. It showed how he got the murder weapon and his fixation on Reed dating another man in the weeks preceding the murder. The evidence wasn‘t used to claim that Drommond had a history of criminal activity or that he had committed similar crimes and so had a propensity for violence; the evidence was entwined with the crime for which Drommond had pleaded guilty and merely informed the jury about ―the nature and circumstances of the crime.” See UTAH CODE § 76-3-207(2). The evidence thus wasn‘t ―other . . . criminal activity” used ―as an aggravating factor,” Lafferty, 749 P.2d at 1260, in favor of a sentence of life without parole. So, Lafferty doesn‘t apply to the evidence, and the trial court didn‘t err by refusing to give the Lafferty beyond-a-reasonable-doubt instruction.[18]

¶130 In sum, the State didn‘t seek to prove that Drommond committed other crimes and to use those crimes as an aggravating factor. So the trial court didn‘t abuse its discretion by refusing to give a beyond-a-reasonable-doubt jury instruction under Lafferty.

V. CUMULATIVE ERROR DOCTRINE

¶131 Drommond last maintains that he deserves a new penalty-phase trial under the cumulative error doctrine. But he has inadequately briefed this argument and has thus failed to carry his burden of persuasion on appeal.

¶132 Our opinion in Bank of America v. Adamson, straightened out our briefing requirements. 2017 UT 2, ¶ 11, 391 P.3d 196. We held there that we do not have ―a bright-line rule determining when a brief is inadequate.”[19] Id. ¶ 12. As a result, we now focus our analysis on whether Drommond has made a ―sufficient argument for ruling in [his] favor” rather than ―on whether there is a technical deficiency in [briefing] meriting a default.” Id. (alteration in original). Under this analysis, a ―party must cite the legal authority on which its argument is based and then provide reasoned analysis of how that authority should apply in the particular case, including citations to the record when appropriate.” Id. ¶ 13; UTAH R. APP. P. 24(a)(8) (―The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”).

¶133 Drommond‘s argument is inadequately briefed because it does not meet rule 24(a)(8)‘s standard. Drommond could win his appeal under the cumulative error doctrine ―only if the cumulative effect of the several errors undermines our confidence . . . that a fair trial was had.” State v. Martinez-Castellanos, 2018 UT 46, ¶ 39, 428 P.3d 1038 (alteration in original) (citation omitted). Yet Drommond didn‘t provide ―reasoned analysis” in his briefs about whether the alleged errors had a cumulative effect and, if so, why the cumulative effect of the alleged errors should undermine our confidence that his penalty-phase trial was fair. In other words, he didn‘t analyze the facts through the lens of the cited law.

¶134 Drommond‘s argument, rather than containing ―reasoned analysis” about the cumulative error doctrine, is conclusory. See Conocophillips Co. v. Utah Dept of Transp., 2017 UT App 68, ¶ 29, 397 P.3d 772 (rejecting an argument for cumulative error as inadequately briefed because it was ―confined to a single conclusory sentence” in the party‘s opening brief). Indeed, the argument in his opening brief just lists the alleged errors and concludes that the ―cumulative effect of these errors precluded Defendant from obtaining a fair trial and due process in violation of his federal and state constitutional rights.” And the argument in his reply brief is no more detailed. It claims simply that ―the cumulative effect of [the] errors magnifies the unfairness of the capital sentencing trial and requires reversal.” This is not the type of ―reasoned analysis” that our opinion in Bank of America contemplates.

¶135 Because Drommond has inadequately briefed his argument under the doctrine of cumulative error, he has failed to carry his burden of persuasion on appeal. Bank of Am., 2017 UT 2, ¶ 12. (―[A]n appellant who fails to adequately brief an issue ‘will almost certainly fail to carry its burden of persuasion on appeal.’” (citation omitted)).

CONCLUSION

¶136 Drommond is not entitled to a new penalty-phase trial. His sentence—life in prison without the possibility of parole— stands. We affirm.

Utah Family Law, LC | divorceutah.com | 801-466-9277.

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[1] According to Dr. Gummow, bipolar disorder NOS is the diagnosis that a physician gives a patient when the physician does not know what type of bipolar disorder the patient has.

[2] Dr. Gummow explained that there are ―several different types of bipolar disorders” but that ―bipolar disorder one means you‘ve had a clear manic episode and you have an episode of depression, multiple.

[3] Detective Kilpack also testified that Drommond‘s father told him that, a few weeks before the murder, Drommond “told his mother that he was going to hurt [Reed]” and “told [his mother] not to be a hero.” According to Kilpack, Drommond told his mother “that if he wasn‘t able to do it, he had an army that would accomplish it for him.”

[4] The parties do not point to clear definitions of these personality disorders in their briefs and so we do not define them here.

[5] Dr. Golding‘s diagnosis was characterized at trial as personality disorder not otherwise specified with cluster B traits.

[6] Effexor is a brand name for the antidepressant drug, venlafaxine. For consistency and ease of reference, we refer to the drug in this opinion as Effexor instead of venlafaxine.

[7] Drommond argues that this is a capital case. This is relevant, he says, to all of his claims because (1) counsel is held to a higher standard in capital cases for ineffective-assistance-of-counsel claims, (2) the right to confrontation applies to capital sentencing proceedings, (3) victim-impact evidence should be excluded from capital sentencing proceedings, and (4) uncharged crimes can be considered in capital sentencing proceedings only if they are proven beyond a reasonable doubt. He also argues that it allows us to review any palpable error, even if it wasn‘t objected to below. We need not distinguish between capital and noncapital cases in deciding any of the issues here because, even assuming it is a capital case, Drommond‘s claims fail.

[8] Drommond also argues that the hearsay testimony violated two other provisions of the Utah Constitution: article I, section 7 (the due process provision) and article I, section 9, which says in part that ―[p]ersons arrested or imprisoned shall not be treated with unnecessary rigor.” The argument based on these constitutional provisions, however, is inadequately briefed because Drommond does not provide any analysis about why those provisions specifically supply the right to confront witnesses at sentencing. See Bank of Am. v. Adamson, 2017 UT 2, ¶ 13, 391 P.3d 196 (―A party must cite the legal authority on which its argument is based and then provide reasoned analysis of how that authority should apply in the particular case . . . .”). Drommond has thus not met his burden of persuading us that he is entitled to relief under these provisions. See id. ¶¶ 12–13.

Drommond next contends that, even if there is no constitutional right to confrontation, the trial court erred by not properly evaluating whether the hearsay evidence was admissible under rule 403 of the Utah Rules of Evidence. But the Utah Rules of Evidence don‘t govern whether evidence is admissible in sentencing proceedings. UTAH R. EVID. 1101(c)(3). And whether evidence is admissible at a capital sentencing proceeding is governed by Utah Code section 76-3-207 and constitutional law. See, e.g., State v. Maestas, 2012 UT 46, ¶ 297, 299 P.3d 892 (holding that due process requires that ―evidence presented in the penalty phase . . . be relevant and reliable”). Thus, the trial court didn‘t err when it didn‘t evaluate the admissibility of the evidence under rule 403.

[9] The U.S. Supreme Court has held that defendants have no right to confront witnesses at sentencing proceedings—even at capital sentencing proceedings—under the Due Process Clause of the Fourteenth Amendment. Williams v. New York, 337 U.S. 241, 245 (1949) (affirming a sentencing procedure that allowed the sentencing judge to consider information about the defendant ―even though [it was] obtained outside the courtroom from persons whom a defendant has not been permitted to confront or cross-examine”). The Court in Williams based its holding in part on its belief that a sentencing judge must have ―the fullest information possible” about ―the defendant‘s life and characteristics.” Id. at 247. And the Court recognized ―that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination.” Id. at 250. In the end, however, Williams doesn‘t control the outcome of Drommond‘s Confrontation Clause challenge because it ―is a due process, rather than Sixth Amendment, case.” United States v. Fields, 483 F.3d 313, 327 (5th Cir. 2007). Indeed, the Confrontation Clause wasn‘t incorporated against the States by the Fourteenth Amendment‘s Due Process Clause until well after the Williams decision. See Pointer v. Texas, 380 U.S. 400 (1965).

[10] See United States v. Zerpa-Ruiz, 784 F. App‘x 353, 356 (6th Cir. 2019); United States v. Umaña, 750 F.3d 320, 348 (4th Cir. 2014); Muhammad v. Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065, 1076 (11th Cir. 2013); United States v. Ghiassi, 729 F.3d 690, 695–96 (7th Cir. 2013); Fields, 483 F.3d at 327; United States v. Bras, 483 F.3d 103, 109 (D.C. Cir. 2007); United States v. Robinson, 482 F.3d 244, 246 (3d Cir. 2007); United States v. Bustamante, 454 F.3d 1200, 1202 (10th Cir. 2006); United States v. Littlesun, 444 F.3d 1196, 1200 (9th Cir. 2006); United States v. Brown, 430 F.3d 942, 943–44 (8th Cir. 2005); United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005); United States v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005).

[11] The U.S. Supreme Court overruled the Roberts ―indicia of reliability” test in Crawford v. Washington and instead held that an unavailable witness‘s hearsay statement can be admitted at trial only if it was previously “test[ed] in the crucible of cross-examination.” 541 U.S. 36, 61 (2004).

[12] Drommond has not argued for an exception to our preservation rule.

[13] 13 Drommond also claims the victim-impact evidence violated his right to due process under the United States Constitution. The Due Process Clause of the Fourteenth Amendment bars victim-impact evidence that ―is so unduly prejudicial that it renders the trial fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 825 (1991). Because the victim-impact evidence wasn‘t prejudicial, infra ¶¶ 117–21, it didn‘t violate the U.S. Constitution.

[14] Drommond also complains that the jury saw a photograph of Reed and her two children. When the State moved to admit the photograph at trial, Drommond‘s trial counsel said that he had no objection. And because Drommond‘s trial counsel didn‘t object, Drommond has lost the chance to argue on appeal that its admission was erroneous. State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (citation omitted) (holding that, to preserve an issue for appeal, a party must raise a ―timely and specific objection” (emphasis omitted)).

[15] This court has previously indicated, without deciding, that Utah Code section 76-3-207(2)(a)(iii) may violate the Utah Constitution. State v. Ott, 2010 UT 1, ¶ 24 n.3, 247 P.3d 344. The State asks us to ―reconsider Ott because it incorrectly extended death-penalty victim-impact precedent to a non-death sentencing.” We need not decide either of these issues today because the victim-impact evidence didn‘t prejudice Drommond.

[16] Drommond also argues that the evidence of the “uncharged crimes” violated his state constitutional rights—his rights under article I, sections 7, 9, and 12. But Drommond has failed to carry his burden of persuasion on appeal for these arguments because they were inadequately briefed. See Bank of Am. v. Adamson, 2017 UT 2, ¶ 13, 391 P.3d 196. Drommond cites these constitutional

provisions and a few cases but does not provide sufficient ―development of that authority” or sufficient ―reasoned analysis based on that authority.” Angilau v. Winder, 2011 UT 13, ¶ 27, 248 P.3d 975 (citation omitted); see also Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 46, 70 P.3d 904 (declaring an appellant‘s brief inadequate when it ―merely cite[d] a few cases” and ―provide[d] very little analysis”).

[17] See also Maestas, 2012 UT 46, ¶¶ 1, 278–79 (applying Lafferty in a death-penalty case in which the defendant had been convicted of committing aggravated murder during an aggravated burglary and the State had introduced evidence that the defendant had committed previous aggravated burglaries that were not related to the crime for which the defendant was sentenced); Arguelles, 2003 UT 1, ¶¶ 1, 22, 111 (applying Lafferty in an aggravated murder case because the State presented evidence of the defendant‘s past crimes); State v. Taylor, 818 P.2d 1030, 1031–35 (Utah 1991) (applying Lafferty in a first-degree murder case in which the defendant had raped and killed a young girl and the State presented evidence that the defendant, as a juvenile, (1) had sexual intercourse with his younger sister against her will, (2) burglarized a home, and (3) sexually abused a six-year-old neighbor girl and evidence that the defendant, as an adult, (1) was convicted of burglary and carrying a concealed weapon and (2) molested young girls at a public swimming pool); State v. Parsons, 781 P.2d 1275, 1276, 1279, 1283 (Utah 1989) (applying Lafferty in a death-penalty case in which the defendant had been convicted of first-degree murder after stabbing his victim to death and the State introduced as evidence of aggravating circumstances that the defendant murdered the victim “as a person on parole who knowingly possessed or had a firearm under his control or custody” in violation of a Utah criminal statute).

[18] The State also argues that Lafferty does not apply because Lafferty was a death-penalty case, and Drommond‘s is not. We need not decide whether Lafferty applies to non-death-sentence-eligible cases because, even assuming it does, it does not apply to the evidence challenged here.

[19] We realize that the briefs for this appeal were filed in 2010 and so the parties didn‘t have the benefit of our opinion in Bank of America. But at that time, we routinely declined to address issues that were inadequately briefed. See, e.g., State v. Timmerman, 2009 UT 58, ¶ 25 n.5, 218 P.3d 590 (―An issue is inadequately briefed if the argument merely contains bald citations to authority [without] development of that authority and reasoned analysis based on that authority.” (alteration in original) (citation omitted) (internal quotation marks omitted)).

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State v. Norton – 2020 UT 46 – Utah Supreme Court

https://www.utcourts.gov/opinions/supopin/State%20v.%20Norton20200713_20180514_46.pdf
This opinion is subject to revision before final publication in the Pacific Reporter
2020 UT 46
IN THE SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH, Respondent,
v.
LONNIE NORTON, Petitioner.

No. 20180514
Heard May 13, 2019
Filed July 13, 2020
On Certiorari to the Utah Court of Appeals

Third District, West Jordan
The Honorable Bruce C. Lubeck
No. 131400015

Attorneys: Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Solic. Gen., Salt Lake City, for respondent
Lori J. Seppi, Salt Lake City, for petitioner

JUSTICE PETERSEN authored the opinion of the Court with respect
to Parts I–IV in which CHIEF JUSTICE DURRANT,
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, and JUSTICE PEARCE joined, and wrote separately in Part V in which ASSOCIATE CHIEF JUSTICE LEE joined.

CHIEF JUSTICE DURRANT filed an opinion concurring in part and concurring in the judgment, in which JUSTICE HIMONAS and JUSTICE PEARCE joined.

Opinion of the Court

JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION

¶1 A jury convicted Lonnie Norton of breaking into the home where his estranged wife was staying, kidnapping her, assaulting her, and then raping her—all while she had a protective order against him. He appealed his convictions and the court of appeals affirmed. He petitions this court for a review of each claim he raised before the court of appeals. We affirm on all but one issue.

BACKGROUND[1]

¶2 Norton and H.N. had been married for twenty-one years when H.N. moved out of the marital home with their four children. She stayed in a domestic violence shelter, then moved into her parents’ home. She obtained a protective order against Norton, which prohibited him from contacting her except to discuss marriage counseling and their children. The protective order permitted Norton to visit his three younger children, but only if a supervisor was present.

¶3 One evening, H.N.’s three youngest children went to the marital home for a weekend visitation with Norton. The events of that night led to Norton’s arrest.

¶4 At the trial on the resulting charges, both H.N. and Norton testified. They gave vastly different accounts of what happened that night.

The Two Conflicting Accounts
H.N.’s Account

¶5    At trial, H.N. testified that before going to bed that night, she put chairs under the doorknobs of the front and back doors of her parents’ home, as she did each night. She had previously placed a dryer in front of the basement door, which remained there. After H.N. went to bed, she was awakened by a “loud bang.” She grabbed the phone and dialed 911 before noticing Norton standing at the end of her bed. He grabbed the phone and punched her in the face. Norton also wound duct tape around H.N.’s head, covering her mouth.

¶6 The next thing H.N. remembered was sitting in Norton’s car at an intersection. Although it was snowing, she did not have any shoes on. H.N. noticed that Norton had a gun in his lap, which he picked up and pointed at her. H.N. thought Norton was driving to his office at the University of Utah, but instead he drove to a building in Fort Douglas. When they arrived, Norton was still holding the gun and told H.N. that she “needed to be quiet or he would shoot [her].”

¶7 H.N. and Norton went into the building, up some stairs, and into a bathroom. Norton ripped the duct tape off H.N.’s head and talked to her about reconciling their marriage. After he finished talking, Norton told H.N. to take off her shirt. When H.N. said “no,” Norton pointed the gun at her and again told her to take off her shirt. She finally acquiesced, and Norton squeezed her breasts.

¶8 Next, Norton led H.N. into an office and told her to take off her pants. She again said “no,” and he again pointed the gun at her, forcing her to comply. While she did so, Norton undressed, removed the magazine from the gun, and put the magazine and gun in a filing cabinet. Then, he told H.N. that they were going to have sex. She said “no,” but Norton responded that “yes” they were. “So you’re going to rape me?” she asked. Norton replied, “You can’t rape somebody that you’re married to.”

¶9 He then lay on the ground and pulled H.N. on top of him. He grabbed H.N.’s hands, flipped her so that she was underneath him, and raped her. While Norton was on top of her, H.N. grabbed his penis as hard as she could, but was unsure how hard that was because she has rheumatoid arthritis. In response, Norton again grabbed her hands and held them over her head.

¶10 After raping H.N., Norton took her into the bathroom. He told her to rinse off, but she struggled because her hands were shaking. Norton complained that she “wasn’t doing a good enough job,” and inserted his fingers into H.N.’s vagina to try to “rinse himself out” of her. Afterwards, H.N. dried herself off with paper towels and dressed. She then noticed that Norton was dressed with the gun in his hand.

¶11 Back in the office, Norton set up two chairs so that they were facing each other and told H.N. to sit. She sat, and Norton put the gun to his head and threatened to kill himself. H.N. tried to dissuade him, but Norton pointed the gun at H.N. and threatened to shoot her, too. Eventually H.N. got mad and told Norton to “go ahead and shoot himself,” at which point he got up and took her back to the car.

¶12 Norton drove to the marital home. There, H.N. checked on the children and then convinced Norton to take her back to her parents’ home. When they arrived, Norton entered the house, leaving only after H.N. told him she would not tell anyone what had happened.

¶13 After Norton left, H.N. called one of Norton’s neighbors and asked the neighbor to get her children out of the marital home. H.N. also called 911, told a police officer what happened, and asked the officer to check on her children. The police arrived at H.N.’s parents’ home, spoke with her, and then drove her to the hospital.

Norton’s Account

¶14 Norton testified at trial and gave a very different version of these events. He claimed that H.N. told him to visit her over the weekend so they could discuss their marriage. After their children were asleep, Norton drove to H.N.’s parents’ house to see her. While driving over, he received a phone call from H.N., which he missed. He arrived at H.N.’s parents’ home and waited outside until she exited the house and got in the car. Norton said he could not remember whether H.N. was wearing shoes, but that “she might have come running out in stocking feet” and he thought he “gave her a pair of Reeboks to wear.”

¶15 H.N. suggested they go to Norton’s office to talk. While driving, Norton decided it would be better to go to a building in the Fort Douglas area.

¶16 After arriving at the building, Norton unlocked the door and proceeded upstairs with H.N. where they sat down and talked about reconciliation. H.N. said she needed time, and Norton started talking about when they first met and when they were first married. H.N. then came over, sat on Norton’s lap, put her arms around him, and the two started kissing. They moved to the floor where they continued to kiss and touch each other. They took off their clothes, continued to kiss, and then H.N. “climbed on top” of Norton and they began “to have sex.” Afterwards, they went into the bathroom where H.N. “rinsed” and “dried herself off.”

¶17 After dressing, Norton and H.N. sat down and continued to discuss reconciliation. H.N. told Norton she did not want to live with him anymore. He replied that if they were not going to reconcile he thought it “would be fair” if they had joint custody of their children. The two argued, and H.N. slapped Norton and then he backhanded her. H.N. tried to hit Norton more, but he grabbed her hands and the two “rastled.” H.N. went into the bathroom, shut the door, and stayed there for about ten minutes. When H.N. left the bathroom, they went back to the car and she told Norton she wanted to look in on their children.

¶18 Norton drove to the marital home and they checked on the children. He then took H.N. back to her parents’ home. When they got there, H.N. told Norton that the door was locked, so he pushed through a locked gate and went to one of the back doors and pushed it open. He went inside and opened a different door to let H.N. into the home. Then, he again brought up having joint custody of their children. This started another argument. H.N. then claimed that he had broken into her parents’ home and beaten her up, and she threatened to call the police. Norton got scared and left. Later that morning, the police came and arrested him.

District Court Proceedings

Jury Instructions

¶19 The State charged Norton with aggravated kidnapping, aggravated burglary, aggravated assault, violation of a protective order, damage to or interruption of a communication device, and three counts of aggravated sexual assault. The three aggravated sexual assault charges were based on Norton squeezing H.N.’s breasts, raping her, and inserting his fingers into her vagina, respectively. The case proceeded to trial. When it came time to instruct the jury, Norton asked the court for instructions on a number of lesser included offenses. The court agreed to some of these instructions but denied others.

Verdict

¶20 On the charge of violation of a protective order and the two charges of aggravated sexual assault relating to rape and digital penetration, the jury found Norton guilty as charged. On the aggravated kidnapping, aggravated burglary, and aggravated assault charges, the jury found Norton guilty of the lesser included offenses of kidnapping, burglary, and assault. The jury acquitted him of interruption of a communication device and aggravated sexual assault related to squeezing H.N.’s breasts.

Sentencing

¶21 At sentencing, the most serious punishment Norton faced was for his two convictions of aggravated sexual assault. He made two arguments to persuade the district court to reject the presumptive punishment tier of fifteen years to life in favor of a lower punishment tier.[2]

¶22 First, Norton argued that the district court should not apply the higher sentencing tier applicable to aggravated sexual assault based on rape and forcible sexual abuse because the jury had not been given a special verdict form to indicate the type of sexual assault upon which they relied. Norton observed that the court had instructed the jury that sexual assault could be based on rape, attempted rape, forcible sexual abuse, or attempted forcible sexual abuse. But the court did not provide the jury with a special verdict form to indicate which underlying sexual assault offense formed the basis of either conviction.

¶23 In light of this, Norton argued there was no evidence these convictions were based on anything more than the least serious offense of attempted forcible sexual abuse. So he reasoned the district court could sentence him only to six years to life, the sentencing range corresponding to aggravated sexual assault based on attempted forcible sexual abuse. UTAH CODE § 76-5-405(2)(c)(i). The court rejected this argument and concluded the presumptive range for the two counts of aggravated sexual assault should be fifteen years to life, the tier corresponding to aggravated sexual assault based on completed acts of rape and forcible sexual abuse. Id. §§ 76-5-405(2)(a)(i), -405(2)(b)(i).

¶24 Second, Norton argued that the district court should depart from the higher sentencing tier in the “interests of justice” due to his history, distressed state at the time of the crime, and commitment to improving. The State countered that fifteen years to life was an appropriate sentence because Norton committed “a terrible crime” and had never accepted responsibility for his actions. The court acknowledged that this was a “very difficult case” and that Norton had a “good past” and might be “entitled to some mercy.” However, the court noted Norton’s “inability and unwillingness to follow the truth” and that his actions were the “kind of conduct that simply cannot be accepted in our society.” The court sentenced Norton to fifteen years to life in prison on both counts of aggravated sexual assault, to run concurrently.

¶25 In total, the district court sentenced Norton to fifteen years to life in prison on both aggravated sexual assault convictions, one to fifteen years in prison for kidnapping, one to fifteen years in prison for burglary, 180 days for assault, and 365 days for violation of a protective order. The court ran each prison term concurrently.

Court of Appeals’ Decision

¶26 Norton appealed, making five claims. Two of Norton’s claims centered on the district court’s jury instructions. He argued that the instructions on aggravated sexual assault and the underlying offenses of rape and forcible sexual abuse misstated the law because they did not make clear that Norton had to act intentionally or knowingly with regard to H.N.’s nonconsent. State v. Norton, 2018 UT App 82, ¶¶ 25, 28, 427 P.3d 312. He also argued that the district court erred in rejecting some of his requests for instructions on lesser included offenses. Id. ¶ 26.

¶27 Norton also challenged his sentence. He argued that the district court’s decision to apply the fifteen-to-life sentencing tier for his aggravated sexual assault convictions “violated his rights to due process and a jury trial” because the jury had not been given a special verdict form to indicate the type of sexual assault forming the basis of these convictions. Id. ¶ 57. He reasoned that this “impermissibly increased the penalty he would have received had he been sentenced according to the facts that he claims were reflected in the jury’s verdict.” Id. ¶ 59. He also argued that the court abused its discretion when it failed to properly conduct the interests of justice analysis required by LeBeau v. State, 2014 UT 39, 337 P.3d 254. Norton, 2018 UT App 82, ¶ 67.

¶28 Finally, Norton argued that the court of appeals should reverse his convictions under the cumulative error doctrine. Id. ¶ 87.

¶29 The court of appeals rejected each argument. First, the court concluded that even if the jury instructions regarding aggravated sexual assault, rape, and forcible sexual abuse were erroneous as to the required mental state for H.N.’s nonconsent, any such error did not prejudice Norton. Id. ¶ 40. Second, the court of appeals determined that the district court did not err in refusing to give certain lesser included offense instructions that Norton had requested. Id. ¶¶ 49, 53, 56. It further concluded that at sentencing, the district court correctly determined the presumptive sentencing tier for the aggravated sexual assault convictions and properly considered all the evidence and argument presented by the parties. Id. ¶ 86. It also declined to reverse on cumulative error grounds. Id. ¶ 87.

¶30 We granted Norton’s petition for certiorari on each of these claims. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶31 “On certiorari, we review for correctness the decision of the court of appeals . . . .” State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d 1096.

ANALYSIS

¶32 We granted certiorari to consider whether the court of appeals erred in (1) concluding that any error in the jury instructions on aggravated sexual assault, rape, and forcible sexual abuse did not prejudice Norton; (2) affirming the district court’s refusal to instruct the jury on additional lesser included offenses of aggravated sexual assault, aggravated burglary, and aggravated kidnapping; (3) affirming the district court’s sentence of fifteen years to life on both convictions of aggravated sexual assault; (4) concluding that the district court conducted a proper interests of justice analysis at sentencing; and (5) rejecting Norton’s claim of cumulative error. We address each issue in turn.

I. JURY INSTRUCTIONS

¶33 Norton contends that the jury instructions on aggravated sexual assault and the underlying offenses of rape and forcible sexual abuse were incorrect. He argues that the instructions did not adequately explain that to convict, the jury must find that he acted knowingly and intentionally with regard to H.N.’s nonconsent. He further contends that if the jury had been properly instructed, there was a reasonable probability it would have acquitted him on these charges. Norton did not object to these instructions at trial, so he asks us to review this claim for plain error,[3] manifest injustice,[4] and ineffective assistance of counsel.

¶34 The court of appeals assumed without deciding that the jury instructions were incorrect, and it disposed of this issue based on lack of prejudice. State v. Norton, 2018 UT App 82, ¶¶ 30– 40, 427 P.3d 312. We agree with the court of appeals that even assuming Norton’s criticism of these instructions is right, he has not shown prejudice.

¶35 To show plain error or ineffective assistance of counsel, Norton must prove he was prejudiced by the alleged error. See State v. Jimenez, 2012 UT 41, ¶ 20, 284 P.3d 640. The prejudice standards for plain error and ineffective assistance are the same. State v. McNeil, 2016 UT 3, ¶ 29, 365 P.3d 699. Prejudicial error occurs when “there is a reasonable probability” that but for the alleged errors, “the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984).

¶36 Norton argues that the jury instructions did not clearly explain the requisite mens rea regarding H.N.’s nonconsent. At trial, the district court instructed the jury that the State had to “prove a mental state as to each of the . . . counts charged.” It then defined the mental states “intentionally”[5] and “knowingly.”[6]

Opinion of the Court

¶37 Regarding aggravated sexual assault, the district court instructed the jury that it could find Norton guilty if it found beyond a reasonable doubt that:

1. [Norton] raped or attempted to rape or committed forcible sexual abuse or attempted forcible sexual abuse against [H.N.]; and

2. That in the course of that rape or attempted rape or forcible sexual abuse or attempted forcible sexual abuse [Norton]

a) used or threatened [H.N.] with the use of a dangerous weapon; or

b) compelled, or attempted to compel, [H.N.] to submit to rape or forcible sexual abuse by threat of kidnap[p]ing, death, or serious bodily injury to be inflicted imminently; and

3. That [Norton] did such acts knowingly or intentionally.

¶38 The district court then instructed the jury on rape and forcible sexual abuse. Regarding rape, it instructed the jury that it could convict Norton if it found beyond a reasonable doubt that:

1. [Norton] had sexual intercourse with [H.N.]; and

2. That such conduct was without the consent of [H.N.]; and

3. That said conduct was done intentionally or knowingly.

¶39 With regard to forcible sexual abuse, the district court instructed the jury that it could convict Norton if it found beyond a reasonable doubt that:

1. [Norton] touched the anus, buttocks, breasts, or any part of the genitals of H.N.; and

2. That such conduct was done with the intent to either

a) cause substantial emotional or bodily pain to [H.N.], or

b) arouse or gratify the sexual desires of any person; and without the consent of [H.N.]; and

3. That said conduct was done intentionally or knowingly.

¶40 Norton relies on State v. Barela to argue that the rape and forcible sexual abuse instructions are incorrect because they “implied that the mens rea requirement . . . applied only to the act of sexual intercourse and not to the alleged victim’s nonconsent.” 2015 UT 22, ¶ 26, 349 P.3d 676. If these instructions are incorrect, so too is the aggravated sexual assault instruction because it incorporates the instructions for these associated offenses.

¶41 The court of appeals declined to decide whether these instructions were erroneous, instead holding that even if they were, it was not prejudicial error. To determine whether the omission of an element from a jury instruction is prejudicial, we analyze “whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” Neder v. United States, 527 U.S. 1, 19 (1999). Here, we ask specifically whether a reasonable jury could have found, based on the “totality of the evidence in the record,” that the defendant did not have the required mental state as to the victim’s nonconsent. Barela, 2015 UT 22, ¶ 31.

¶42 We agree with the court of appeals that a reasonable jury could not have found that Norton mistook H.N.’s conduct for consent based on the totality of the evidence. Norton, 2018 UT App 82, ¶¶ 37–40. Because the jury acquitted Norton of the charge of aggravated sexual assault related to squeezing H.N.’s breasts, only the counts based on the nonconsensual intercourse (rape) and digital penetration (forcible sexual abuse) are at issue.

¶43 The trial evidence with respect to these two incidents could not support a finding that Norton may have mistakenly interpreted H.N.’s behavior to indicate consent. With regard to the intercourse, Norton’s testimony did not describe ambiguous behavior that he could have believed was consent. Rather, he testified that H.N. initiated sexual activity by sitting on his lap and later climbing on top of him. And in his version of events, the digital penetration never happened. He claimed she fabricated her claims against him. Specifically, he testified that after he returned her to her parents’ home he again tried to discuss custody of the children and she threatened to call the police and accuse him of breaking into the house and beating her up.

¶44 And H.N.’s testimony similarly left no room for a finding that Norton mistook her conduct for consent. H.N. had a protective order against Norton. She testified that she had pulled a dryer in front of the basement door when she first moved into her parents’ home. And each night she secured the front and back doors by positioning chairs under the doorknobs. Despite her efforts to create a barricade, H.N. testified that Norton broke into the house, punched her in the face, wrapped duct tape around her head and over her mouth, took her into the snowy night with no shoes on, took her to an empty building, and forced her inside at gun point. Once inside, he commanded her to undress at gun point and then raped her. He then tried to get rid of the evidence by directing her to clean up and inserting his fingers into her vagina to ”rinse himself out.” H.N. testified that she told him “no” multiple times.

¶45 Other evidence corroborated her version of events. The police found strands of hair that resembled H.N.’s in a bathtub in the Fort Douglas building they searched, a wad of duct tape with hair in it in the dumpster behind the building, a mark on H.N.’s lower back, swelling and the beginning of bruising on H.N.’s face, and bruising on her inner thighs and labia.

¶46 Norton points to H.N.’s testimony that she squeezed his penis as evidence that could have persuaded a jury that Norton believed she was consenting. But this incident was characterized by both sides as an act of protest. H.N. testified that in response, Norton grabbed both her hands and pinned them above her head. And Norton did not say in his testimony that he believed the squeeze indicated participation. Rather, he did not mention it. And Norton’s counsel argued during closing that the squeeze refuted H.N.’s claim that she was “totally terrified of him” and indicated she was “not afraid to use force” and “not afraid to be confrontational.” And even if somehow a reasonable jury could have seen H.N.’s isolated act of squeezing Norton’s penis as ambiguous, any ambiguity vanishes when this act is viewed along with the rest of the trial evidence.

¶47 A comparison with the facts in Barela helps demonstrate why the jury instructions here were not prejudicial. In Barela, a woman claimed her massage therapist raped her. 2015 UT 22, ¶ 6. The therapist claimed the sex was consensual. Id. ¶ 5. After a jury convicted the therapist of rape, he challenged on appeal a jury instruction that did not clearly state the required mens rea for the victim’s nonconsent. Id. ¶¶ 15–16. We agreed and reversed the defendant’s convictions. Id. ¶ 32.

¶48 This court found that the evidence was such that a jury could have “thought that the truth fell somewhere in between the two accounts.” Id. ¶ 30. While the victim in that case said the defendant had suddenly instigated and perpetrated the intercourse without her consent, she testified that she “froze,” “neither actively participating in sex nor speaking any words,” and otherwise expressed no reaction. Id. ¶ 29. This court concluded that a jury could have believed that although the victim did not consent, the defendant may have mistakenly thought she did. See id. ¶¶ 30–32. Accordingly, we held that it was “reasonably likely” that a proper jury instruction regarding the requisite mental state as to the victim’s nonconsent could have affected the outcome of the trial. Id. ¶¶ 31–32.

¶49 In contrast, a reasonable jury could not look at the totality of the trial evidence here and find that, under either version of events, Norton may have mistaken H.N.’s conduct for consent. Norton claims H.N. initiated the sexual activity and then manufactured and exaggerated her claims against him. H.N. claims Norton kidnapped her and then raped her at gunpoint. This case does not involve behavior that the jury could have viewed as a close call in either direction.

¶50 Accordingly, this case does not turn on whether Norton may have mistaken H.N.’s conduct for consent. Rather, H.N.’s and Norton’s versions of the events in question were mutually exclusive, and the jury had to decide who to believe. We agree with the court of appeals that even assuming the jury instructions were erroneous, it was not reasonably likely that absent the errors the outcome of the trial would have been different.

¶51 While the jury instruction here could have been clearer, see State v. Newton, 2020 UT 24, ¶ 29, — P.3d — (identifying Model Utah Jury Instruction CR1605 as an example of a clear jury instruction for the offense of rape), we conclude that Norton did not show he was prejudiced by the instruction, and consequently that he failed to establish manifest injustice, plain error, or ineffective assistance of counsel.

II. LESSER INCLUDED OFFENSES

¶52 Norton argues that the court of appeals erred in affirming the district court’s refusal to instruct on additional lesser included offenses of aggravated kidnapping, aggravated burglary, and two of the counts of aggravated sexual assault.

¶53 Relevant here, an offense constitutes a lesser included offense when it is “established by proof of the same or less than all the facts required to establish the commission of the offense charged” or is “specifically designated by a statute as a lesser included offense.” UTAH CODE § 76-1-402(3)(a), (c).

¶54 When a defendant requests an instruction on a lesser included offense, we use the evidence-based standard codified in Utah Code section 76-1-402(4) to determine whether such an instruction is required. See State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d 788. We first ask whether the charged offense and the lesser included offense have “some overlap in the statutory elements.” State v. Baker, 671 P.2d 152, 159 (Utah 1983). We then inquire whether the trial evidence “provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” Id. at 159 (citation omitted) (internal quotation marks omitted); see also Powell, 2007 UT 9, ¶ 24; UTAH CODE § 76-1-402(4). We must determine whether there is “a sufficient quantum of evidence presented to justify sending the question to the jury.” Baker, 671 P.2d at 159. And we view the evidence “in the light most favorable to the defendant requesting the instruction.” Powell, 2007 UT 9, ¶ 27.

¶55 The court of appeals carefully analyzed each of Norton’s claims of entitlement to an instruction on a lesser included offense. We affirm the court of appeals’ decision with regard to all but one of those claims.

A. Aggravated Kidnapping

¶56 Norton argues that the court of appeals erred in affirming the district court’s refusal to instruct on unlawful detention as a lesser included offense of aggravated kidnapping. We agree with the court of appeals’ decision.

¶57 At trial, both parties requested an instruction on kidnapping as a lesser included offense of aggravated kidnapping. Additionally, Norton requested an instruction on unlawful detention. The district court instructed the jury on kidnapping but not unlawful detention. Ultimately, the jury acquitted Norton of aggravated kidnapping but convicted him of kidnapping.

¶58 The State’s aggravated kidnapping charge was based on Norton abducting H.N. from the home, duct-taping her head and mouth, and taking her to Fort Douglas where he sexually assaulted her and periodically held her at gunpoint. In contrast, Norton testified that H.N. willingly left her home and accompanied him to the Fort Douglas building. However, he claimed that when they arrived at the empty building they argued, H.N. hit Norton, and he responded by backhanding her. He then restrained H.N.’s hands to prevent her from hitting him again. On appeal, Norton identifies his testimony that he temporarily restrained H.N.’s hands as being sufficient to require the district court to instruct on unlawful detention.

¶59 Unlawful detention is statutorily defined as a lesser included offense of aggravated kidnapping.[7] UTAH CODE § 76-5-306(2); see also id. § 76-1-402(3). But the conduct identified by Norton is a separate act that is not included within the conduct that constituted the greater offense of aggravated kidnapping here. “Even if there is overlap in the statutory elements, if the convictions rely on materially different acts, then one crime will not be a lesser included offense of another.” State v. Garrido, 2013 UT App 245, ¶ 31, 314 P.3d 1014 (internal quotation marks omitted).

¶60 Norton’s testimony that he restrained H.N.’s hands at Fort Douglas is separate, uncharged conduct. As to the conduct that is the basis for the aggravated kidnapping charge—abducting H.N. from the home, taking her to the Fort Douglas building, periodically holding her at gunpoint, and sexually assaulting her—Norton claims it was all voluntary and consensual. Based on the trial evidence, the choice for the jury was to either convict him of aggravated kidnapping or kidnapping based on H.N.’s testimony, or acquit him based on his testimony. If the jury believed Norton’s version of events, it could not convict him of restraining H.N.’s hands—a separate act for which he was not charged.

¶61 We also note that Norton’s testimony does not appear to even establish the offense of unlawful detention. Unlawful detention requires restraint or detention “without authority of law.” UTAH CODE § 76-5-304(1) (2012). But Norton claimed he restrained H.N.’s hands in self-defense to stop her from hitting him, and we must look at the evidence in the light most favorable to him without weighing credibility. See Powell, 2007 UT 9, ¶ 27. Restraining another’s hands in self-defense is not unlawful. See UTAH CODE § 76-2-402(1)(a) (2012) (providing that a “person is justified in threatening or using force against another when and to the extent that the person reasonably believes that force or a threat of force is necessary to defend the person or a third person against another person’s imminent use of unlawful force”). So Norton’s evidence does not amount to unlawful detention.

¶62 Fundamentally, the evidence before the jury provided no rational basis for a verdict acquitting Norton of aggravated kidnapping and instead convicting him of unlawful detention. See id. § 76-1-402(4). Accordingly, we agree with the court of appeals that the district court was not obligated to instruct the jury on unlawful detention.[8]

B. Aggravated Burglary

¶63 Norton argues that he was entitled to instructions on aggravated assault, assault, and criminal trespass as lesser included offenses of aggravated burglary. We agree with the court of appeals that these “are not lesser included offenses of aggravated burglary under the facts of this case.” Norton, 2018 UT App 82, ¶ 55.

¶64 At trial, the district court instructed on burglary as a lesser included offense of aggravated burglary. But the court did not instruct on aggravated assault, assault, or criminal trespass.

¶65 Aggravated burglary, aggravated assault, and assault do have overlapping statutory elements.[9] But again, Norton relies on evidence of a materially separate, uncharged act to argue that the district court should have instructed on these offenses.

¶66 The State’s aggravated burglary charge was based on the events surrounding Norton breaking into H.N.’s parents’ home at the beginning of the night in question. These events included H.N. waking to a “loud bang”—presumably caused by one of the objects she had used to barricade the doors—and finding Norton standing at the end of her bed. He then punched her in the face.

¶67 At trial, Norton denied all of this. He claimed that he did not break into H.N.’s parents’ home at the beginning of the night, but that he waited in his car outside of the home for her to willingly join him. However, he points to his testimony that he backhanded H.N. and injured her face at Fort Douglas as supporting instructions on aggravated assault and assault as lesser included offenses of aggravated burglary.

¶68 This is an uncharged act that is separate from the conduct forming the basis of the aggravated burglary charge—Norton breaking into H.N.’s parents’ home and punching her in the face. As the court of appeals aptly concluded, “Because the facts and evidence developed to establish the greater offense of aggravated burglary were different from the facts and evidence relied upon by Norton to claim entitlement to the lesser included offense instructions of aggravated assault and assault, those lesser offenses were not included within the greater offenses.” Id. ¶ 56.

¶69 Norton’s testimony about this uncharged conduct provides a basis for an additional offense but not a lesser offense included within the conduct for which he was actually charged. Accordingly, the evidence at trial did not provide a rational basis for a verdict acquitting Norton of aggravated burglary or burglary and instead convicting him of aggravated assault or assault. So the district court was not required to give the lesser included offense instructions he requested.

¶70 Norton also argued to the court of appeals that he was entitled to an instruction on criminal trespass because he went to H.N.’s residence at the end of the night, which the protective order prohibited. See id. ¶ 56 n.13. Because Norton’s trial counsel did not request a criminal trespass instruction, Norton raises this argument based on ineffective assistance of counsel. See id.

¶71 The court of appeals concluded again that because of the different underlying conduct that Norton relied on to make his argument, “criminal trespass was not an included offense of aggravated burglary under the circumstances of this case, and Norton’s counsel was therefore not ineffective for failing to request criminal trespass as a lesser included instruction.” Id.

¶72 The court of appeals was correct. Norton’s testimony about going to H.N.’s parents’ home at the end of the night is separate from his breaking into the house at the beginning of the night. It is uncharged conduct. If it did support a conviction for criminal trespass, that conviction would not be in lieu of burglary but in addition to it. Accordingly, the district court was not required to instruct on criminal trespass and Norton’s counsel was not ineffective for not requesting such an instruction.

C. Aggravated Sexual Assault Based on Rape

¶73 Norton argues that the district court erred in declining to instruct the jury on sexual battery as a lesser included offense of aggravated sexual assault based on rape. But we agree with the court of appeals that the district court did not err in refusing to give such an instruction.

¶74 At trial, Norton and the State requested instructions on rape, forcible sexual abuse, and sexual battery as lesser included offenses of aggravated sexual assault based on rape. The district court did instruct the jury on rape and forcible sexual abuse, but not on sexual battery. Although the jury was instructed on two lesser included offenses, it convicted Norton of aggravated sexual assault as charged.

¶75 The offenses of aggravated sexual assault based on the underlying offense of rape and sexual battery have overlapping elements.[10] Norton argues that he was entitled to a sexual battery instruction because the jury could have disbelieved H.N. or found that she exaggerated her allegations to gain an advantage in the custody battle. Norton also asserts that her testimony about the rape was ambiguous because she did not struggle after he initiated sex, except to squeeze his penis. And he argues that in light of his testimony that the sex was consensual, the jury could have found that no rape occurred, but when Norton held her hands above her head, that particular sexual position might have caused her momentary affront or alarm.

¶76 This is pure speculation. Norton has not identified a quantum of evidence presented at trial that would support instructing the jury on sexual battery. Norton testified that the sexual intercourse was entirely consensual and that H.N. was an active participant. The only testimony about him pinning H.N.’s hands above her head came from her. And she testified that she did not consent to any sexual activity, and that when he held her hands above her head it was in response to her squeezing his penis. There was no evidence to support a finding that the intercourse was consensual, but Norton should have known that H.N. intermittently experienced affront or alarm. Accordingly, the evidence did not provide a rational basis to acquit Norton of rape and instead convict him of sexual battery. See UTAH CODE § 76-1­402(4). So no such instruction was required.

D. Aggravated Sexual Assault Based on Forcible Sexual Abuse

¶77 Norton also argues that the court of appeals erred in affirming the district court’s refusal to instruct on sexual battery as a lesser included offense of aggravated sexual assault based on forcible sexual abuse. We agree with Norton that an instruction on sexual battery was required.

¶78 First, aggravated sexual assault based on forcible sexual abuse and sexual battery have “some overlap in the statutory elements.” Baker, 671 P.2d at 159. Both offenses require that the actor touches the anus, buttocks, or any part of the genitals of another. See UTAH CODE §§ 76-5-404(1), 76-5-405(1), and 76-9­702.1(1) (2012). But they have different requisite mental states. Forcible sexual abuse requires that the defendant act with the intent to cause substantial emotional or bodily pain or to gratify the sexual desire of any person. Id. § 76-5-404(1) (2012). But sexual battery requires only that the defendant’s conduct be under circumstances that the defendant knows or should know would cause affront or alarm to the person touched. Id. § 76-9-702.1(1).

¶79 Second, we conclude that “the evidence offered provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” Baker, 671 P.2d at 159 (citation omitted) (internal quotation marks omitted); see also UTAH CODE § 76-1-402(4). Here, both the State and Norton rely on H.N.’s testimony that Norton inserted his finger into her vagina to wipe away his DNA. Norton’s testimony was that this touch did not happen. But relying on H.N.’s testimony that the touch occurred, Norton argues that the evidence, if believed, would support a finding that Norton “touched [H.N.] under circumstances he knew or should have known would likely cause affront or alarm” (the mental state required for sexual battery), rather than with intent to cause substantial emotional or bodily pain or to gratify his sexual desire (the mental state required for forcible sexual abuse).

¶80 We agree. H.N.’s testimony indicates Norton was attempting to conceal his crime. While a jury could infer that in doing so he also intended to gratify his sexual desire or cause H.N. emotional or bodily pain, a jury could also infer from the same evidence that Norton touched H.N.’s vagina only under circumstances he knew or should have known would likely cause her affront or alarm. The trial evidence therefore provides a rational basis for a verdict acquitting Norton of aggravated sexual assault based on forcible sexual abuse and convicting him of sexual battery.

¶81 We must now determine whether this error prejudiced Norton. An error is prejudicial if there is a “reasonable likelihood that the error affected the outcome of the proceedings.” State v. Reece, 2015 UT 45, ¶ 33, 349 P.3d 712 (citation omitted).

¶82 We conclude this error did prejudice Norton because had the jury been instructed on sexual battery, the evidence supported a conviction on the less serious charge and an acquittal on both aggravated sexual assault and the lesser included offense on which the district court instructed—forcible sexual abuse. Here, although the district court instructed on the lesser included offense of forcible sexual abuse, the jury convicted Norton on aggravated sexual abuse as charged. Generally,

[w]here a jury is instructed on, and has the opportunity to convict a defendant of, a lesser included offense, but refuses to do so and instead convicts the defendant of a greater offense, failure to instruct the jury on another lesser included offense, particularly an offense that constitutes a lesser included offense of the lesser included offense that the jury was instructed on, is harmless error.

State v. Daniels, 2002 UT 2, ¶ 28, 40 P.3d 611.

¶83 However, this is a distinct situation and causes us to depart from our more general precedent. If the jury were to infer from H.N.’s testimony that Norton acted under circumstances that he knew would cause her affront or alarm, but did not intend to gratify his sexual desire or cause her emotional or physical pain, that would lead to acquittal of both aggravated sexual assault and forcible sexual abuse and conviction of sexual battery. Thus, there is a reasonable likelihood that the error affected the outcome of the proceedings. Accordingly, we conclude that the district court’s error prejudiced Norton and reverse the court of appeals’ affirmance of Norton’s conviction of aggravated sexual assault based on digital penetration.

III. SENTENCING

¶84 The longest potential terms of imprisonment Norton faced at sentencing were for his two aggravated sexual assault convictions. The district court sentenced him to fifteen years to life in prison on both of them. He argues that this was error and that the court of appeals should have reversed for two reasons.[11]

A. Special Verdict Form

¶85 Norton argues that the district court should not have applied the sentencing tier applicable to aggravated assault based on a completed act of rape because the jury was not given a special verdict form to indicate which underlying sexual assault offense formed the basis of the conviction. In light of this, Norton argues the district court should have sentenced him to the lowest term of six years to life—the sentencing range corresponding to an aggravated sexual assault conviction based on attempted forcible sexual abuse. UTAH CODE § 76-5-405(2)(c)(i).

¶86 The court of appeals held that the district court did not err because there was no factual basis “to support a conclusion that the jury could have determined that the sexual acts underlying [the charge] constituted only attempted forcible sexual abuse.” State v. Norton, 2018 UT App 82, ¶ 61, 427 P.3d 312.

¶87 While we affirm the court of appeals’ conclusion that the district court applied the correct sentencing tier, we do so on an alternative basis. We conclude that Norton did not preserve this issue in the district court.

¶88 At trial, the district court instructed the jury that aggravated sexual assault occurs when a person commits a sexual assault such as rape, forcible sexual abuse, attempted rape, or attempted forcible sexual abuse, and does so under certain aggravating circumstances. UTAH CODE § 76-5-405(1). The presumptive sentence for aggravated sexual assault varies based on the underlying offense from which it arises. Id. § 76-5-405(2). If the underlying offense is rape or forcible sexual abuse, the presumptive sentence is fifteen years to life. Id. § 76-5-405(2)(a)(i). If the underlying offense is attempted rape, the presumptive sentence is ten years to life. Id. § 76-5-405(2)(b)(i). And if the underlying offense is attempted forcible sexual abuse, the presumptive sentence is six years to life. Id. § 76-5-405(2)(c)(i). A court may impose a lesser term if it finds that doing so is in the interests of justice and states the reasons for that finding on the record. Id. § 76-5-405(3)(a), (4)(a), (5)(a).

¶89 At trial, defense counsel and the State reviewed the jury instructions and neither requested a special verdict form. So when the jury rendered its verdict, it did not identify the offense underlying the aggravated sexual assault conviction.

¶90 At sentencing, Norton argued that without a special verdict form there was no indication the jury found him guilty of aggravated sexual assault based on anything but the least serious offense of attempted forcible sexual abuse. He asserted that consequently he should be sentenced only under the corresponding sentencing tier of six years to life.

¶91 In response, the State argued that all evidence presented at trial was of completed, not attempted, sexual assaults. So Norton should be sentenced in accordance with the tier corresponding to aggravated sexual assault based on a completed act of rape. The district court agreed that fifteen years to life was the presumptive punishment tier, given the evidence presented at trial.

¶92 Norton argues that this deprived him of the due process guarantee of “the right to a jury trial on every element of the offense.” But Norton did not raise this argument until sentencing, and that was too late.

¶93 “As a general rule, claims not raised before the trial court may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. During trial, the parties met with the district court to finalize the jury instructions. This was the appropriate time for Norton to request that a special verdict form be included. But he made no mention of a special verdict form. Rather, Norton raised the issue at sentencing when it was too late for the district court to remedy the issue.

¶94 This conclusion is contrary to that of our court of appeals, which held the issue was preserved because Norton “made these same arguments to the court below.” Norton, 2018 UT App 82, ¶ 59 n.15. It is correct that Norton made this argument at sentencing. However, our preservation rules ensure that issues are addressed and, if appropriate, corrected when they arise. Holgate, 2000 UT 74, ¶ 11. Had Norton requested a special verdict form at trial, the district court could have included a form or denied his request. But at sentencing, it was too late for the district court to do either. Accordingly, Norton’s claim is unpreserved. See State v. Cram, 2002 UT 37, ¶ 11, 46 P.3d 230 (concluding that an objection was not preserved because it could have been raised at trial but was instead raised at a scheduling conference where the error could no longer be corrected). Because Norton has not argued any exception to the preservation requirement here, his claim fails.[12]

B. Interests of Justice

¶95 Norton also argues that the district court erred in not sentencing him to a lesser sentence “in the interests of justice.” UTAH CODE § 76-5-405(3)(a). Specifically, Norton claims that in sentencing him to the presumptive sentence of fifteen years to life on his aggravated assault sexual conviction, see id. § 76-5-405(2)(a)(i), the district court did not conduct the interests of justice analysis or make the explicit findings required by LeBeau v. State, 2014 UT 39, 337 P.3d 254. He argues this was an abuse of discretion.

¶96 “We traditionally afford the trial court wide latitude and discretion in sentencing.” State v. Woodland, 945 P.2d 665, 671 (Utah 1997). We will not set aside a sentence unless the district court abused its discretion by “fail[ing] to consider all legally relevant factors or if the sentence imposed is clearly excessive.” State v. McCovey, 803 P.2d 1234, 1235 (Utah 1990) (abrogated on other grounds by State v. Smith, 2005 UT 57, 122 P.3d 615) (footnote omitted) (internal quotation marks omitted).

¶97 But relying on our holding in LeBeau, Norton argues the district court should have sua sponte analyzed the proportionality of his sentence and his potential for rehabilitation. In determining proportionality, Norton argues that the court should have considered both the gravity of his conduct in relation to the severity of the sentence imposed on him, and the severity of his sentence relative to sentences imposed for other crimes in Utah. And he argues that in analyzing his rehabilitative potential, the district court should have considered the Board of Pardons’ role in monitoring his behavior and progress toward rehabilitation, his age, any ties between the crime and alcohol or drug addiction and his treatment prospects, the existence of a criminal history of violence, and the “Sentencing Commission’s guidelines.” (Citing LeBeau, 2014 UT 39, ¶¶ 52, 54.)

¶98 However, as we made clear in State v. Martin, the district court does not have an obligation to consider anything the defendant does not raise. 2017 UT 63, ¶ 62, 423 P.3d 1254 (“[W]hen a sentencing court commits an error that was not objected to below, an appellant must . . . show the existence of plain error or exceptional circumstances that would justify the exercise of our review.”). Rather, the district court need only consider the arguments and issues the defendant raises at sentencing.

¶99 And as the court of appeals correctly observed, the district court considered all of the evidence and arguments Norton presented at sentencing. The district court acknowledged letters describing Norton as a good person, as well as letters describing Norton as a violent person. The court also acknowledged Norton was going through a devastating divorce but determined Norton’s behavior was still “way, way, way over the line.” Further, the court noted that a factor of the sentence was Norton’s “inability and unwillingness to follow the truth.” Ultimately, the district court decided Norton was “entitled to some mercy, but not what [his] lawyer [was] asking for.”

¶100 But Norton argues that the district court failed to consider whether his sentence was proportional to sentences for other similar crimes. And he contends that he raised this at sentencing when he argued his conduct did not “rise to the level of the kinds of egregious cases where we have individuals who suffered significant loss of life or impairment.” But this is not enough. In Martin, we held a similar sentencing issue was unpreserved because counsel did not object to the analysis the district court used or identify the other offenses the court should take into consideration. Id. ¶¶ 64–66. Comparing sentences is “daunting” and “certainly not a task that we can require our district courts to perform without prompting or guidance from counsel.” Id. ¶ 66. Norton did not ask the district court to compare his sentence to sentences imposed for other offenses or identify what those other offenses might be. Accordingly, this issue is unpreserved.

¶101 The district court adequately addressed the arguments Norton raised at sentencing. We affirm the court of appeals’ decision that the district court did not abuse its discretion by declining to reduce the presumptive sentence on the basis of the “interests of justice.”

IV. CUMULATIVE ERROR

¶102 Norton argues that the court of appeals erroneously rejected his cumulative error argument. An appellate court will reverse if “the cumulative effect of the several errors undermines [the court’s] confidence . . . that a fair trial was had.” State v. Kohl, 2000 UT 35, ¶ 25, 999 P.2d 7 (second alteration in original) (citation omitted). However, we have identified only one error in Norton’s trial. A “single accumulable error cannot warrant reversal under the cumulative error doctrine.” State v. Martinez-Castellanos, 2018 UT 46, ¶ 48, 428 P.3d 1038. We thus reject his cumulative error argument.

V. LEBEAU SHOULD BE OVERRULED

¶103 Although LeBeau v. State, 2014 UT 39, 337 P.3d 254 does not determine the outcome in this case, I write this section separately because I conclude LeBeau should be explicitly overturned. The holding in LeBeau contradicts the applicable statute’s plain language. And in so doing it takes the legislature’s policy choice to give judges discretion to sentence below the presumptive statutory tier and replaces it with a rigid, mandatory framework that applies even when a judge imposes the presumptive sentence.

¶104 I agree with Justice Lee’s dissent in LeBeau, but I will not duplicate his analysis here. Instead, I add my own observations and apply the law outlined in Eldridge v. Johndrow, 2015 UT 21, 345 P.3d 553, to argue that LeBeau should be overruled.

¶105 When considering whether precedent should be overturned, we evaluate: “(1) the persuasiveness of the authority and reasoning on which the precedent was originally based, and (2) how firmly the precedent has become established in the law since it was handed down.” Id. ¶ 22.

¶106 The first consideration—the persuasiveness of the authority and reasoning on which LeBeau is based—counsels in favor of overturning it. The opinion did not derive from prior authority. It was a fresh interpretation of a provision of Utah’s aggravated kidnapping statute, which I conclude is incorrect. Lebeau, 2014 UT 39, ¶ 25.

¶107 The LeBeau court interpreted the sentencing scheme within the aggravated kidnapping statute.[13] Id. ¶¶ 20–22; see also UTAH CODE § 76-5-302(3), (4) (2014). Subsection 302(3) of the statute establishes presumptive sentencing tiers for variations of aggravated kidnapping. Subsection 302(4) then states in relevant part,

If, when imposing a sentence under Subsection (3)(a) or (b), a court finds that a lesser term than the term described in Subsection (3)(a) or (b) is in the interests of justice and states the reasons for this finding on the record, the court may impose a [lesser] term of imprisonment . . . .

UTAH CODE § 76-5-302(4) (2014).

¶108 Reading subsections 302(3) and (4) together, the LeBeau court held that the district court was required to conduct “the interests-of-justice analysis laid out in subsection (4).”[14] Lebeau, 2014 UT 39, ¶ 21. And the LeBeau court defined the phrase “interests of justice” by looking to Eighth Amendment jurisprudence, see id. ¶¶ 38–41, and another provision of the criminal code setting forth “general goals of Utah’s criminal code.” Id. ¶ 34 (quoting UTAH CODE § 76-1-104 (2014)). These sources led the court to conclude that an “interests-of-justice analysis” required the sentencing court to consider a checklist of particulars: (1) proportionality, including “the gravity of the offense and the harshness of the penalty,” and “the sentence being imposed [compared to] sentences imposed for other crimes in Utah” and (2) the defendant’s capacity for rehabilitation, including deference to the role of the Board of Pardons and Parole, the defendant’s age at the time of the crime, the extent that alcohol or drug addiction caused the offense, the presence of violence in the defendant’s criminal history, relevant Sentencing Commission guidelines, and “all relevant factors” to the defendant’s rehabilitative potential. Id. ¶¶ 42–55.

¶109 But I find it unnecessary to go beyond the language of the statute to determine its meaning. Subsection 302(4) is straightforward. It directs that if the sentencing court finds it is “in the interests of justice” to sentence a defendant to a “lesser term” rather than the presumptive term, the court may do so if it states the reasons for this finding on the record.

¶110 Two things seem clear from the plain language of this statute. First, it applies only if “a court finds that a lesser term” is in the interests of justice. Where, as here and in LeBeau, a judge sentences a defendant to the presumptive term, subsection 302(4) should not come into play.

¶111 And second, this provision is permissive, not mandatory, and it does not require judges to consider a list of particulars. It states that judges “may” sentence below the presumptive sentencing tier if they determine it is in the “interests of justice.” The sole intent is to give judges discretion to impose a lesser term of imprisonment rather than making the presumptive tier mandatory.

¶112 “May” is, of course, a permissive term. In this context it means to “be permitted to” or to “be a possibility.” May, BLACK’S LAW DICTIONARY (11th ed. 2019).

¶113 And the phrase “interests of justice” is merely a “general placeholder for a principle of broad judicial discretion.” LeBeau, 2014 UT 39, ¶ 87 (Lee, J., dissenting). The LeBeau majority observed the many times that the phrase “interests of justice” can be found in the civil code, criminal code, rules of evidence, and rules of procedure. Id. ¶ 28. This reinforces my point. Various statutes and rules invoke the “interests of justice” to signal that judges have the discretion to consider whatever information is before them and do what is fair, proper, or just under the circumstances. See id. ¶ 90 (Lee, J., dissenting); see, e.g., UTAH CODE § 75-7-204(2)(b) (providing that a court “may entertain a proceeding regarding any matter involving a trust if . . . the interests of justice would be seriously impaired”); id. § 77-8a-1(2)(d) (“When two or more defendants are jointly charged with any offense, they shall be tried jointly unless the court in its discretion on motion or otherwise orders separate trials consistent with the interests of justice.”); id. § 78B-1-136 (“It is the right of a witness to be protected from irrelevant, improper or insulting questions, and from harsh or insulting demeanor, to be detained only so long as the interests of justice require it . . . .”).

¶114 However, LeBeau turns this statutory language on its head. It transforms the grant of discretion inherent in the phrase “interests of justice” into a prescribed analysis that judges must undertake. And it requires judges to perform this analysis even when they have applied the presumptive sentence. LeBeau, 2014 UT 39, ¶ 55. These mandates are not found in the statute’s language.

¶115 In determining whether precedent should be overturned, we also ask how firmly the precedent has become established in the law since it was handed down. To do so, we look to both the age of the precedent and the “extent to which people’s reliance on the precedent would create injustice or hardship if it were overturned.” Eldridge, 2015 UT 21, ¶¶ 22, 35. Other relevant considerations are how well the precedent has worked in practice and “whether the precedent has become inconsistent with other principles of law.” Id. ¶ 40.

¶116 LeBeau was decided in 2014 and was not based on “any significant precursors in Utah law.” Id. ¶ 34. Since that time, it “has not been necessary to the outcome of many cases.” Id. ¶ 36. In its six years of existence, LeBeau has been cited approximately twenty-five times by this court, the court of appeals, and Utah’s federal courts.

¶117 Prior to this case, this court has conducted a LeBeau interests of justice analysis only one time in State v. Martin, 2017 UT 63, 423 P.3d 1254. There, we declined to reverse a district court that had not undertaken a formal proportionality analysis on the record as required by LeBeau. Id. ¶ 66. We recognized the “daunting task” involved in undertaking a proportionality analysis: “[I]t is certainly not a task that we can require our district courts to perform without prompting or guidance from counsel.” Id.

¶118 Our court of appeals has handled most of the cases involving a LeBeau claim. Eighteen court of appeals opinions cite LeBeau. One is this case, and nine others cite LeBeau for other propositions—not the interests of justice analysis. That means there have been eight court of appeals cases involving a LeBeau interests of justice claim. The court of appeals has only once concluded that LeBeau warranted a holding that a district court abused its discretion. See State v. Jaramillo, 2016 UT App 70, ¶ 44, 372 P.3d 34. In every other case, the court of appeals either declined to conduct the LeBeau interests of justice analysis or decided there was no abuse of discretion. See, e.g., State v. Alvarez, 2017 UT App 145, ¶ 4, 402 P.3d 191 (assuming “that the sentencing court duly considered the proportionality of [the defendant’s] sentence” because the defendant did not demonstrate “that [the court’s] presumption of appropriate sentencing consideration is inapplicable”); State v. Scott, 2017 UT App 103, ¶ 13, 400 P.3d 1172 (presuming “that the court fully considered all the information presented to it” and took into account “the relevant factors in determining [the defendant’s] sentence”); State v. Beagles, 2017 UT App 95, ¶ 9, 400 P.3d 1096 (holding that the district court “balanced the aggravating and mitigating factors” and that its sentencing decision was within its discretion).

¶119 And the court of appeals has sharply criticized LeBeau. In State v. Coombs, where a defendant raised an ineffective assistance of counsel claim because his counsel had not argued at sentencing that the district court should conduct the interests of justice analysis required by LeBeau, the court critiqued LeBeau: “In our view, LeBeau constitutes blatant policy-based ad hoc review of legislative action not typically undertaken by the judicial branch. We would hope that, given the appropriate opportunity, our supreme court will revisit whether LeBeau’s approach should continue.” 2019 UT App 7, ¶ 22 n.4, 438 P.3d 967 (citation omitted). The court of appeals concluded, “We cannot read LeBeau and Martin as removing from defense counsel the discretion not to make certain arguments at sentencing. Every case is different and defense counsel must retain wide discretion in determining what arguments will best benefit a client under the totality of the circumstances.” Id. ¶ 21 n.3 (citation omitted).

¶120 It appears that in the time since LeBeau was decided, appellate courts have responded to it by applying it narrowly. This suggests LeBeau’s mandates are not workable as written.[15]

¶121 On balance, the trouble with LeBeau is not so much its mandate that judges consider the interests of justice before imposing a sentence. After all, this is what judges already do. They receive and consider any testimony, evidence, or information that either party desires to present. UTAH CODE § 77-18-1(7). They give the defendant an opportunity to make a statement and present any mitigating information. And they give the prosecution a similar opportunity to present any information “material to the imposition of sentence.” UTAH R. CRIM. P. 22(a). They receive information about any victims of the offense. See UTAH CODE § 77-38-4(1); see also id. § 77-18-1(5)(b)(i). They read any materials that have been submitted, such as a presentence report or letters. Id. § 77-18-1(5)(a)–(b). And defense counsel and the prosecutor use their professional judgment to choose which arguments to make and which information to highlight in support of their respective sentencing positions. Judges consider all of this, along with any applicable statutes and the sentencing guidelines, and impose the sentence they deem to be just under all the circumstances. State v. Russell, 791 P.2d 188, 192 (Utah 1990).

¶122 Rather, the more serious problem with LeBeau is that instead of reading the “interests of justice” as a grant of discretion, the LeBeau court concluded this phrase requires judges to go through a prescribed checklist of factors at sentencing, and that judges must do so whether they impose a sentence less than the presumptive range or within it.

¶123 This transforms a particular legislative policy decision into something else entirely. Here and in similarly worded statutes, the legislature has determined that Utah judges should have the discretion to sentence below the presumptive statutory term when they determine it is in the interests of justice—in other words, fair and just—to do so. This is a significant policy choice, which stands in contrast to other jurisdictions that have chosen to enact statutory mandatory minimum sentencing schemes that are binding upon judges in all but narrow circumstances. See, e.g., 18 U.S.C. § 3553(e) (granting federal sentencing court authority to impose sentence below the statutory minimum only upon a government motion stating that the defendant gave “substantial assistance” in the investigation or prosecution of another person who has committed an offense); id. § 3553(f) (requiring a court to sentence without regard to a statutory minimum sentence when a defendant meets specific criteria). Instead of observing this fundamental aspect of the sentencing scheme enacted by the legislature, LeBeau transforms this general grant of discretion into something detailed and specific, which is not found in the text of the relevant statutes.

¶124 Because I advocate for LeBeau to be overturned even though it does not determine the result in this case, the concurrence asserts that my analysis is an “act of judicial overreach.” See infra ¶ 130. I agree with the concurrence that the doctrine of stare decisis is deeply rooted in our law. We should be extremely reluctant to overturn precedent. And generally, that means we will not revisit precedent when it does not dictate our holding in a particular case.

¶125 But I conclude that the fact that LeBeau does not govern here—indeed, the fact that it “has not been necessary to the outcome of many cases,” Eldridge, 2015 UT 21, ¶ 36—indicates that it has not become firmly “established in the law since it was handed down,” id. ¶ 22. This, along with the court of appeals’ criticism of LeBeau and explicit request that this court “revisit whether LeBeau’s approach should continue,” Coombs, 2019 UT App 7, ¶ 22 n.4, suggests that LeBeau has not been workable in practice and weighs in favor of overruling it.

¶126 For these reasons, I am persuaded that this is one of the rare occasions when we should overturn precedent.

CONCLUSION

¶127 We affirm all but one of the court of appeals’ determinations in this case. We conclude that any error in the jury instructions for aggravated sexual assault and the underlying offenses of rape and forcible sexual abuse did not prejudice Norton. Further, the district court was not required to instruct on any of the lesser included offenses Norton requested, except for sexual battery. And we determine that at sentencing, the district court did not err in imposing a punishment of fifteen years to life for aggravated sexual assault and properly considered all of the arguments and evidence before it.

¶128 With regard to our holding that the district court erred in not instructing the jury on sexual battery as a lesser included offense of the aggravated sexual assault charge based on forcible sexual abuse, we reverse the conviction and remand to the district court for a new trial.

CHIEF JUSTICE DURRANT, concurring in part and concurring in the judgment:

¶129 Writing for the majority, Justice Petersen does an able and thorough job of addressing each of Mr. Norton’s challenges to his conviction. And she appropriately dismisses his LeBeau challenge to his sentence as unpreserved. So far so good. We are therefore pleased to concur in the analysis and conclusions she sets forth in parts I through IV of her opinion. But then, she takes a surprising step. She goes on to address the question of whether the rule established in LeBeau[16]should be overturned. This, despite the fact that the resolution of this question makes not one wit of difference to Mr. Norton’s case. Justice Petersen explicitly acknowledges as much, writing that LeBeau “does not determine the outcome in this case.”[17] But the fact that this is done in plain sight makes it no less an act of judicial overreach.

¶130 And Justice Petersen further flouts judicial restraint by not just reaching the issue unnecessarily, but then advocating to overturn LeBeau, a significant case that, whether right or wrong, is established precedent.[18] The doctrine of stare decisis is deeply rooted in our law. There are reasons why we respect precedent. There are reasons why we are circumspect in overturning it. Precedent promotes predictability and stability in the incremental development of the law. It promotes faith in our judicial system. It underpins and informs virtually every decision we make as judges. This is not to say it is wholly inviolate. We, of course, do on occasion overturn a case. But we do not do it lightly. We do it reluctantly, cautiously, and with compelling reasons. And we should never do it gratuitously as Justice Petersen suggests we do here. For these reasons, we decline to join in part V of Justice Petersen’s opinion.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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[1] “On appeal, we review the record facts in a light most favorable to the jury’s verdict and recite the facts accordingly.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citation omitted). “We present conflicting evidence only as necessary to understand issues raised on appeal.” Id.

[2] The statutory sentencing range for aggravated sexual assault varies based on the type of sexual assault involved in the offense. If the underlying offense is rape or forcible sexual abuse, the presumptive sentence is fifteen years to life. UTAH CODE § 76-5-405(2)(a)(i). If the underlying offense is attempted rape, the presumptive sentence is ten years to life. Id. § 76-5-405(2)(b)(i). And if the underlying offense is attempted forcible sexual abuse, the presumptive sentence is six years to life. Id. § 76-5-405(2)(c)(i).

[3] The State argues that we should not conduct a plain error review because Norton invited any error in these instructions. At trial, the district court told counsel that if they did not object to an instruction, the court would assume they approved of it. Norton’s counsel did not object to these instructions, and the State argues this is tantamount to invited error. We decline to address the State’s argument because we must still analyze prejudice to determine Norton’s ineffective assistance of counsel claim. And because we agree with the court of appeals that, even assuming these jury instructions were erroneous, they did not prejudice Norton, his claim fails whether we review it for ineffective assistance, manifest injustice, or plain error.

[4] Our precedent holds that in many instances “’manifest injustice’ and ‘plain error’ are operationally synonymous.” State v. Bullock, 791 P.2d 155, 159 (Utah 1989); see also State v. Johnson, 2017 UT 76, ¶ 57 n.16, 416 P.3d 443; State v. Maestas, 2012 UT 46, ¶ 37, 299 P.3d 892. Norton has not argued otherwise; therefore, we review his argument under the plain error standard.

[5] The district court instructed the jury that a “person acts intentionally . . . when his conscious objective is to cause a certain result or to engage in certain conduct.” See UTAH CODE § 76-2­103(1).

[6] The district court instructed the jury that a “person acts knowingly . . . when the person is aware of the nature of his conduct or is aware of the particular circumstances surrounding his conduct,” and when the person is “aware that his conduct is reasonably certain to cause the result.” See id. § 76-2-103(2).

[7] To prove aggravated kidnapping, the State must show in relevant part that “in the course of committing unlawful detention or kidnapping,” a person “(a) possesses, uses, or threatens to use a dangerous weapon,” or (b) acts with intent “(vi) to commit a sexual offense.” UTAH CODE § 76-5-302(1)(a), (1)(b)(vi) (2012). (We cite to the version of the statute in effect at the time of the events in question for this and other statutory provisions that have been substantively amended since that time.) To prove unlawful detention, the State must prove only that an actor “intentionally or knowingly, without authority of law, and against the will of the victim, detains or restrains the victim under circumstances not constituting a violation of: (a) kidnapping . . . or (c) aggravated kidnapping.” Id. § 76-5-304(1) (2012).

[8] The State agrees with the court of appeals that an instruction on unlawful detention was not required here but disagrees with that court’s analysis. The State reasons that because the kidnapping was an ongoing crime that continued at Fort Douglas, the evidence of Norton restraining H.N.’s hands was not a separate act. We appreciate the State’s point, but we ultimately agree with the court of appeals’ analysis for the reasons explained above, supra ¶¶ 56–62. The evidence Norton identifies provides a rational basis for a verdict acquitting him of aggravated kidnapping, but not for one convicting him of unlawful detention because the restraint was a separate uncharged act. See UTAH CODE § 76-1-402(4).

[9] At the time of the conduct at issue, aggravated burglary occurred when a person “in attempting, committing, or fleeing from a burglary . . . (a) cause[d] bodily injury to any person who [was] not a participant in the crime; (b) use[d] or threaten[ed] the immediate use of a dangerous weapon against any person who [was] not a participant in the crime; or (c) possesse[d] or attempt[ed] to use any explosive or dangerous weapon.” Id. § 76- 6-203(1).

An aggravated assault occurred if a person “commit[ed] assault” and used “(a) a dangerous weapon . . . or (b) other means or force likely to produce death or serious bodily injury.” Id. § 76- 5-103(1).

And an assault was “(a) an attempt, with unlawful force or violence, to do bodily injury to another; (b) a threat, accompanied by a show of immediate force or violence, to do bodily injury to another; or (c) an act, committed with unlawful force or violence, that cause[d] bodily injury to another or create[d] a substantial risk of bodily injury to another.” Id. § 76-5-102(1) (2012).

[10] The relevant statutory language provides, “A person commits aggravated sexual assault if: (a) in the course of a rape . . . or forcible sexual abuse, the actor: (i) uses, or threatens the victim with the use of, a dangerous weapon” or “(ii) compels, or attempts to compel, the victim to submit to rape . . . or forcible sexual abuse[] by threat of kidnap[p]ing, death, or serious bodily injury to be inflicted imminently on any person.” UTAH CODE § 76-5-405(1).

“A person commits rape when the actor has sexual intercourse with another person without the victim’s consent.” Id. § 76-5­402(1).

“A person is guilty of sexual battery if the person, under circumstances not amounting to” rape, forcible sexual abuse, attempted rape, or attempted forcible sexual abuse, “intentionally touches, whether or not through clothing, the anus, buttocks, or any part of the genitals of another person, or the breast of a female person, and the actor’s conduct is under circumstances the actor knows or should know will likely cause affront or alarm to the person touched.” Id. § 76-9-702.1(1).

[11] As we have reversed the conviction for aggravated sexual assault based on forcible sexual abuse, only the conviction for aggravated sexual assault based on rape remains. Consequently, we analyze Norton’s argument only with respect to the remaining count.

[12] In any event, Norton’s argument does not persuade us that the absence of a special verdict form was plain error. Norton relies on Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, 570 U.S. 99 (2013) to argue that in the instance of a tiered sentencing structure, where the jury is instructed on versions of the offense that qualify for more than one tier, a special verdict form is required. But this is an extension of Apprendi and Alleyne. In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490 (emphasis added). In Alleyne, the Supreme Court extended the same holding to any fact that increases the mandatory minimum sentence. 570 U.S. at 108. And Norton does not explain why Apprendi and Alleyne require a special verdict form under the circumstances here.

[13] To be consistent with LeBeau v. State, 2014 UT 39, 337 P.3d 254, I cite the 2014 version of the statute.

[14] The LeBeau court reasoned that because the provisions within subsection 302(3) (establishing the presumptive sentencing tiers for aggravated kidnapping) state that they are to be imposed “except as provided in Subsection . . . (4)” (the “interests of justice” provision), then courts must always conduct an interests of justice analysis to determine whether subsection (4) applies. LeBeau, 2014 UT 39, ¶ 21. And the court concluded that an “interests of justice analysis” required a judge to consider specific factors as described above, supra ¶ 97.

[15] Without published opinions, it is more difficult to determine how district courts have responded to its requirements.

[16] LeBeau v. State, 2014 UT 39, 337 P.3d 254.

[17] Supra ¶ 105.

[18] See State v. Rowan, 2017 UT 88, ¶ 24, 416 P.3d 566 (Himonas, J., concurring) (explaining, in a concurrence joined by a majority of the court, that “our court declines to revisit established precedent unnecessarily”).

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