Nevares v. M.L.S.

constitutionally If Mr. Brooks had a Brooks. stake,

protected liberty at the Due Process legislature's ability would restrict

Clause carry intent-procedural pro- out its guarantee Mr.

cess would Brooks notice hearing, and substantive due would legislature's power

limit to cut his off

paternal rights. Mr. But Brooks has no such stake,

liberty nothing prevents leg- at so being

islature's will from carried out. Mr. intervening

Brooks should be barred from

2015 UT 34

Bobby NEVARES, Appellant, L.

v. Adoption

M.L.S. and The Center Choice, Inc., Appellees.

No. 20120763.

Supreme Court of Utah.

Feb. Peterman, City, K. Salt Lake for

Joshua appellant. Rich, Jenkins,

Larry S8. Lance D. Sait City, appellees. Lake for Duncan, City, C. Salt Lake for William amicus curiae. opinion

Justice LEE authored the Court, DURRANT, in which Chief Justice PARRISH, Judge Justice PEARCE joined, and in which Justice DURHAM joined respect to Part II.A. concurring Justice DURHAM authored a opinion. Associate Chief Justice NEHRING herein; participate does not Court Of Appeals Judge JOHN A. PEARCE sat. LEE, opinion Justice of the Court: { paternity proceeding 1 This is a filed the father of a child conceived in Colorado placed adoption born Utah and father, Nevares, Bobby here. The had no might adoption idea his child Utah,. And had been initiated (as Colorado, anticipated) pa- Nevares's rental to withhold consent would have remained intact. Yet the mother adoption agency and the claim that Utah law required steps Nevares to take affirmative CopE® perfect parental rights, his see UTax 78B-6-122, which Nevares failed fulfill. they also assert that the child was con- activity, ceived as a result of criminal thus that Nevares's are fore- closed under another of the Utah CopE Code, see Urax 78B-6-111. agreed T2 The district court adoption ageney mother and the on the first point, granted summary judgment and thus against Nevares. reverse. first hold We We merely that Utah Code section 78B-6-122 Code section 78B-6-111 because the child requirements to fulfill the required Nevares protect his interests as a was conceived "as a result of conduct which of Colorado law to [a] would constitute sexual offense" Utah. father. And because Second, intact under Col- they would have remained asserted that Nevares had given he was parental rights orado law unless and until to establish failed the child heard, opportunity and an to be prior placing notice in Colorado to the mother parental rights are likewise conclude that his adoption, purportedly required child for Second, 78B-6-122(1)(c)(i). law. we in- preserved by under Utah Utah Code section 78B-6-111 not to terpret Utah Code section rejected respondents' € 8 district court apply activity non-Utahns to sexual between argument. first It found Utah Code section Utah, and thus conclude that this outside inapplicable activity 78B-6-111 to sexual provision has no here. Colorado, respondents' and thus deemed reli- provision ance on this "not well founded." I. BACKGROUND granted summary judg- But the district court respondents' ment on the basis of second January T3 From December 2009 to point. Specifically, interpreted the court Bobby Nevares was involved a sexual rela- require tionship with M.L.S. Colorado. The two Utah Code section 78B-6-122 to Ne- affirmatively vares to establish married, relationship were not and their was child, rights in the and held that his failure to during period brief. But at some time this parental rights do so foreclosed his in Utah. pregnant. M.L.S. became Citing Colorado Revised Statutes sections August, 14 In M.L.S. told Nevares -107, 194-105 to the district court identified pregnant place and intended she was to steps various affirmative that Nevares could adoption. nothing child for Nevares knew paternity have taken to establish his in Colo- then, pregnancy before and he soon took conceding rado. while that Colorado law steps contesting anticipated adop- toward require does not a father to follow these adoption agency tion. He visited a Colorado steps, interpreted the district court Utah law Relinquish- "Anticipated and filled out an require affirmatively to a father to establish Form," Reply checking a box that indi- ment paternity acquiring any right before to notice cated his intent both to contest the termi- Thus, adoption proceeding. of an because parental rights petition nation of his and to steps Nevares failed to follow these under the court to make a determination as to his paternity, Colorado law to establish the dis- parental relationship with the child. trict court concluded that he had forfeited Utah, 15 M.L.S. later traveled to where any rights he have had to contest (on 29) gave September she birth to her child adoption under Utah law. and also it for She never appeal. Nevares filed this Our plans told Nevares her to come to Utah to summary judg review of the district court's proceed adop- deliver the child or to with an Imus, ment decision is de novo. Bahr v. tion. Nor did Nevares have idea of ¶¶ 12-18, 2011UT 250P.3d 56. plans. these days learning 16 Two after of the child's II. DISCUSSION Utah, birth in petition Nevares filed a to paternity establish in a Utah district court. [ question appeal 10 The threshold con- previously parallel filing He had not made meaning cerns the of Utah Code section Colorado. His act in Colorado was 78B-6-122(1)(c)(i). The district court con- adoption ageney his visit to the fill out the provision require strued this Nevares to Reply Form. steps pater- take affirmative to establish his Respondents, I Adoption nity M.L.S. and The in Colorado. read the We statute differ- Choice, summary judg- ently. interpret merely Center of incorporate moved for We it. reference, petition grounds. ment on Nevares's on two Colorado law and thus find this First, they alleged provision that Nevares lacked not to bar Nevares's establishment standing paternity. to contest the under Utah requires parties agree us con- T14 The

4 11 That determination did Nevares respondents' assertion that Nevares's reasonably sider not know and could not have rights are foreclosed under Utah qualifying known of a cireumstance in this question 78B-6-111. On this Thus, Code section question presented case. concerns district court. inter- agree We meaning provision requiring of the pret provision to sexual "fully complied" father to have with the "re Utah, activity non-Utahns outside of between (the quirements" of the law of Colorado "last reject ground this alternative and thus resided) state" where he knew that M.L.S. summary respondents' judgment. motion for child, parental rights "to establish in the preserve proceed to notice of a Establishing A. The Standard Paren- ing in connection with the Rights tal Under Colorado Law Un- (and Respondents child." contend the dis der Section agreed) trict court con rule, general 112 As a the consent of templates proactive, affirmative efforts an unmarried father is not re "parental Nevares to "establish" rights." his quired age when a child who is six of months And because Nevares failed to avail himself CopE placed or less is for Urax opportunities per of under Colorado law to 78B-6-121(8). § recognizes excep Our law rights paternity, fect his see infro See, eg., to this (requiring tions rule. (discussing paternity proceedings under Col if, father's consent before the mother con law), orado the district court concluded that adoption, paternity sents to the father files 122(1)(c)(i)(B). satisfy he had failed to section proceeding, required by submits an affidavit reject reading We the district court's statute, pay pays expenses). and offers to and First, grounds. the statute on two exception implicated One such is here. It consider the verb "establish" in the broader when arises the father did not know and statute, appears context in which it in the reasonably could not have known that 122(1)(c)(M(B) and conclude that section adoption child would be for in Utah. merely incorporates by reference the "re- 78B-6-122(1)(c)(i). § See id. quirements" of the mother's home state law "qualifying code identifies as cir- establishing parental rights. for And we cumstances" a list of indicating conditions paternity option note that identified placing mother's likelihood of the child for respondents requirement anot of Colorado 78B-6~122(1)(a) (list- adoption in Utah. Id. law, only option establishing pa- an for (i) ing as conditions residence of the mother Second, ternity. event, and in we note or the child in Utah for at least 80 consecu- that the contrary district court's construction (i) days, tive give mother's intent of the Utah implicate statute would serious Utah, (ii) birth to the child in the child's concerns, require itas would an (iv) Utah, birth in or the mother's intent unwed father in Colorado who had no idea of adoption consent to in Utah or under Utah any plans for a to construe law). provides And it that the consent of the through Colorado law the lens of the Utah required father is if the father did not know statute. reasonably and could not have known of a {16 qualifying For these circumstance reasons we conclude that and the father cannot stand as a bar "fully complied requirements with the paternity petition to the child, respondents' parental establish mo- in the summary hold, judgment. tion for preserve spe- We pro- to notice of a cifically, ceeding petition in connection cannot with the child, (I) ground dismissed imposed by: that he the last state failed to any "requirements" fulfill where the unmarried of Colorado law father knew, establishing through parental rights. his exercise of reason- known, diligence able should have that the Statutory context mother resided in before the mother exe- < cuted the adoption." consent to ¶ 17 The reference "establish[ing]" pa 78B-6-122(1)(c). §Id. interpreted rental must be in context. straightforward: speaks anticipat- in context the statute not of a An unwed father requirement establishing parental ing planned adoption general need await notice "fully compl[ying] required petition rights, but of for termination of his intact) parental rights" requirements (presumptively rights, to establish appear laws of the mother's last then prescribed proceeding at the termination "personally or the state where the and show that he state residence can assume Copr § legal physical custody" child was conceived. Utan 78B-6- of the child. Id. added). 122(1)(c)(i)(B) (emphasis The refer indicate, respondents 120 As there are "requirements" of the mother's home ence to other mechanisms in Colorado an law for significant. laws In context this is an state proactively unwed father to "establish" his incorporation unmistakable of the laws of the parental rights-as by filing paternity peti- "last state" of the mother's residence. And (pro- tion. See Cono. Rev. Stat. 19-4-104 go it is a clear reference to laws that viding parent that "[the and child relation- "requirements" establishing ship may be established ... between a child rights. by filing paternity and the natural father" ¶ 18 significant petition); That context makes a dif (setting pro- id. 19-4-105.5 forth ference in this case. Under filing paternity petition, Colorado law an cedures for which parental rights presump "may unwed father's prior be commenced to the birth of a child"). tively preserved intact the face of an im options, But these are require- pending adoption. adoption may Before an ments of Colorado law. For an unwed father proceed, "ageney person having anticipating adoption, custo requirements dy petition of the child" ... appear must "file a to Colorado law compli- to be limited to parent-child 195-105(8) legal relationship terminate the (appearance ance with section in parent, parent's of the other unless the other proceeding the termination showing and relationship previously to the child has personally legal been he can physical assume and by terminated or determined a custody). court to 19-5-105(1). § exist." Colo.Rev.Stat And undermined, 1 21 This conclusion is not as terminating parental rights,

before a father's assert, respondents by conjunctive "and" required inquire courts are to as to his iden 122(1)(c)M)(B). in Utah Code section Grant- 19-5-105(2), tity, § give id. and must him ed, conjunction suggests that Utah law impending proceeding, § notice of the id. 19- contemplates that the notion of a father "ful- 5-105(3).1 Once the court identifies the fa ly compl[ying] requirements to es- ther, hearing, expeditiously it "shall set a as rights parental tablish in the child" is distinct possible, paren as to determine" whether his concept from the "preserv[ing] of the father rights tal should be terminated. Id. At the right to proceeding notice of a in connec- hearing, required appear the father is adoption tion with the of the child." Id. But rights assert his and to show that he can concepts merge to some extent those under "personally legal physical assume custo law, Colorado significant given which is our dy, taking needs, age, into account the child's 122(1)(c)(i)(B) merely view that section incor- and individual Id. cirenmstances." 19-5- porates requirements of Colorado law 105(33). reference. event the statute background weigh 119 This context and speaks only requirements, again heavily against the district requirement establishing parental court's construc- for 122(1)(c)(i). tion of section question rights un- appear under Colorado law was to just der the Utah showing statute concerns not Colo- make proceed- in the termination "establish[ing]" parental rado law rights ing required in anticipation of an general, but the "requirements" of that appearing Nevares cannot be faulted for not making anticipated showing, and not doing as state law for require- so. And the ments of simple adoption Colorado law are and no Colorado ever initiated and was unknown, identity give step Even the father's some the father a chance to forward and Coro.Rev.Srat, required. requires publi- 19-5-105(5). notice is Colorado law rights. his assert cation notice in such circumstances in order to proceeding proceed- ever district court's construction of the statute no termination

thus would effect a serious incursion on that ed. opportunity to notice and an to be heard. point beside the 122 It is likewise ¶¶ 38-46 (discussing parallel See infra paternity claimwithin Nevares failed to file applica concern with extraterritorial twenty-one days receiving notice from a through tion of Utah eriminal law Utah Code facility plan of M.L.S.'s Colorado 78B-6-111). pursue expedited relinquishment of the child approach, 24 Under the district court's Respondents point to Ne- Colorado. required proac Nevares would have been response to file a to this notice vares's failure tively opportunities seek out made available questioning as a basis for his fulfillment of establishing parental to him for his obligations his under Colorado law to estab problem under Colorado law. The with rights. argument lish his But this approach opportunities is that those fails a matter of on the face of the law merely permissible putative options for a governing provi Colorado statute. The cited They prerequi father Colorado. are not requires recipient of like sion a notice preserving fixing paren sites to a father's paternity that sent to to file a claim Nevares rights. supra tal See twenty-one days "[nlo later than after date of notice ... or before relinquishment process problem. 25 Therein lies the due court, petition is filed with whichever require If construed law Nevares occurs later." Colo.Rev.Stat 19-5 requirements imposed to fulfill himon 103.7(4)(a)(V)(B) added). law, (emphasis holding This Colorado we would be him to a provision legal regime limitations has no to which he could not reason- Nevares, ably relinquishment petition expected this case because no have to be bound. all, after did not know and could not was ever filed with a court in Colorado. So reason- ably again have known that his child would charged falling Nevares cannot be law, in Utah. So he any way short in under would Colorado as the reasonably expected have Colorado law play given cited never came into anticipated control his in the context of adoption pro Colorado anticipated adoption. In ceeding never went these cireum- forward. stances, reasonably Nevares could not have charged following been a process 2. Due directive of proactively pursue paternity Utah law-to a statutory 128 Even reference case that Colorado law allowed but did not 78B-6-122(1)(c)(i)(B) in Utah Code section require-because he had no basis for antici- fulfilling the of the laws mother's last home pating applicability of Utah law. "establish[ing]" state for ground T26 This is another for our con- plausibly could incorporate be read to Colo 122(1)(c)(i)(B). struction of Utah Code section paternity procedures, rado that construction interpret provision simply We this to incor- ground would fail on the that it would raise porate "requirements" of the mother's grave concerns under the Due Process last home state for the establishment of the process Clause. The essence of due is rea parental rights. father's And we note that opportunity sonable notice and 'an to be approach significant this has the virtue of Legal heard. Salt Lake Ass'n v. Defender avoiding a problem. substantial due Atherton, 58, ¶ 2, 2011 UT 267 P.3d 227. - right significant protection against That is a Applicability B. Section 111 of arbitrary extinguishment important of Act, Adoption action, 127 Under the Utah rights-in a a cause of property, in right 'otherwise. Here the biological contesting at a father stake-of is barred from an parent establishing relationship subject a with his where "the child who is the great significance. child-is a matter of proceeding So of the was conceived as a result Nevares has a constitutional to reason- of conduct which would constitute 76, 5, proceeding able notice of a such Chapter which offense described in Title Part parental right 4, might be And the regardless biological terminated. of whether the father whelmingly apparent at first blush. That formally charged with or convieted of a Copr said, adopt reading criminal offense." Urax 78B-6-111. the latter on three Respondents (1) invoked this as grounds: "regardless" statute's motion clause, (when alternative basis for their for sum- suggests light which read in They construction) mary judgment. noted that when the semantic canons of that all question conceived Nevares child was matters sufficient to sustain a "formal[ ] was fifteen, twenty years charge[ old and M.L.S. was ]" or must be "conviet[ion}" estab- and thus asserted that the child was con- 111; (2) trigger lished to the well- presumption against settled extraterritorial amounting ceived as a result of conduct application statutory provisions, which statutory rape under Utah law. See Cope § (describing 76-5-401 limiting crime counsels in favor of section 111 to minor"; offenses committed Utah even if the stat- activity "unlawful sexual with a de- fining "person years regarding "minor" as a who is 14 ute were silent application its older, Utah; (8) age younger years than 16 conduct outside of the canon of avoidance, age activity"; at the time the sexual [of] constitutional which counsels in acts, identifying including limiting unlawful sex "sex- favor of section 111 to offenses com- minor"). ual intercourse with a light mitted in grave Utah in process problems respon- associated with rejected argu- 128 The district court approach. dents' agree. ment as "not well founded." We For below, reasons set forth we hold that section "regardless" 1. The clause and semantic where, here, implicated 111 is not canons of construction question conduct in could not have "consti- speaks 30 Section 111 to the limitations a tute[d] sexual offense" under the refer- on its "regardless" clause. part enced of the Utah code because the There we are told implicat- that the statute is Utah, activity involvednon-Utahns outside of "regardless ed biological of whether fa- could thus not have sustained a criminal formally charged ther is with or convicted of 76, 5, charge Chapter under Title Part 4. Copm $ criminal offense." Urax 78B-6- €29 Section is aimed at "conduct- clause, 111. Under it is clear that a which would constitute sexual offense a[] father's are foreclosed under section Chapter described in Title Part charge[ even without a ] ]" "formall regardless of whether the father is prosecutor or "conviet[ion]" in court. That formally charged with or convicted of a erim- formulation, moreover, conveys nega- also Cop® § inal offense." Utax 78B-6-111. implication. "regardless" tive Because the question presented is the basis for estab- only express clause is the limitation on the lishing "conduct" that would "constitute a[ ] statute, face of this we can also infer that sexual offense" under Utah law. Two alter- Thus, there are no other limitations. (a) presented: respondents' natives implication preconditions is that all to a "for- requires only proof view-that charge[ or ] ]" must be "conviect[ion]" mall engaged that fulfilling the father in conduct trigger fulfilled to section 111. the actus reus and mens rea elements of a (b) crime; Utah position-that and implication 131 That follows from requires proof section 111 of statutory those elements established canons of construction. expressio to a One such canon the princi jurisdictional is untus prerequisite also the CopE ple interpretation-the conviction, charge notion that eriminal or see UTax of 76-1-201(1) (providing person that statutory expression is sub- of one term or limitation ject prosecution only under Utah law if he is understood as an exclusion of others. See Partners, "wholly partly" Ltd., commits an offense or in Penunuri v. Sundance ¶ Utah); 76-1-501(8) 22, 15, (providing "Jju- id. that UT 301 P.3d 984. 111 artic Section single proof ulates a limitation on the of by prose- risdiction" must be established constituting evidence"). "conduct" a criminal "offense": "by preponderance ecution of the Admittedly, question, this is a difficult proof require as the Such ] does a "formall charge[ ]" "convict[ion]." or And under the meaning evidence of the text's is not over- canon, "regardless" expression proviso of that cations of the of section expressio unius 111.5 implied rejection of is an others.2 limitation

1 34 It also runs afoul of a related canon: ] The reference to a It reads into the statute a limitation not "formall term charge" significant. is Each of a stat Thus, expressly stated on its face.6 instead significance,3 appears and this one ute has proof requiring of all matters other than (no by "regardless" all but an actual-"for- underscore that those covered clause "conviet[ion]"), charge" or the con ] required. under J'-charge is "formall mall justices curring arbitrary draw an line short law, above, proof as noted neces Utah They interpret of those standards. the stat sary charge of and conviction on to sustain ute, words, in other to include an additional only includes not the actus a criminal offense view, really limitation. In their the statute erime, rea elements of a reus and mens say "regardless means to of whether jurisdictional basis for a eriminal also the formally charged father is with or Copr 76-1-201(1); $ charge.4 See Utah id. regard convicted of a criminal offense and 76-1-501(3). prosecution less whether the could estab 1383 The concurrence reads the statute jurisdictional prerequisite lish a to make differently. To establish "conduct which charge such a or sustain conviction." We sexual offense" a[] would constitute under find no room section 111 for that limita law, require the concurrence would tion, and we deem it foreclosed the terms only proof of the actus reus and mens rea expressly accordingly stated therein. We crime. 65. implicated "elements" of a But that conclude that section 111 is not Infra approach ignores expressio impli jurisdictional unius where there is no basis for a others, canon, point prosecu- all This like most no means out a difference. The is that the Eagle City, asserting proving v. ironclad. See Olsen Mountain tion bears the burden of 10, ¶ 19, jurisdiction charge" UT 248 P.3d 465. "Canons of construc "formal[] to sustain a "convict[ion]" of an offense under the Utah formulaic, tion ... are not indicators dispositive statutory meaning. They merely are applicabili- tools that criminal code. And that sustains the guide clause, ty our construction of statutes" in accordance "regardless" of section 111 under the "ordinary usage thumb as to rules of regardless jurisdiction proven of whether is to language." understanding of Id. Such canons beyond merely by pre- a reasonable doubt or always subject to-and sensitive to-context. ponderance of the evidence. (noting Id. that canons "must be understood as The notion is a matter not of meaning") one of several contextual indicators proce- substantive criminal law but of criminal added). {emphasis herring. dure, n. is also a red infra reasons, concurring opinion For these falls proven by Jurisdiction is a matter that must be repudiate short its efforts to this canon as a prosecution under the Utah criminal code. ¶ 61, propositional fallacy." ""formal n. 1 Infra And in that sense-the sense that matters Dictionary (quoting proposi Law Brack's for the substantive, here-jurisdiction procedural. expressio "lexicographically tion that unius is not accurate"). point invoking The the canon is subjunctive phrasing-'conduct 5. The "statute's Thus, not to offer it as an ironclad rule. admittedly which would constitute'"-is "less agree understand and "[slometimes" perfectly than clear." 159. But there is a Infra expression "implies of one limitation the denial "plausible interpretation phrasing of that equivalent privilege in other supports" approach. our sub Infra kinds" and "sometimes it does not." Id. And we jective apparent "would" is an reference to the agree depends that "whether it does or does not "regardless" emphasizes clause: It that the stat particular circumstances of context." Id. implicated ute is even without a "formal{] But that does not render the canon invalid. It charge{[ or ]" "convict[ion]." simply makes it sensitive to context. And here we find the context to sustain its invocation. Edwards, 367, 6. See Berrett v. Purser & 876 P.2d (Utah ("[CJourts 1994) 370 are not to infer sub Energy, 3. Marion Inc. v. KFJ Ranch 2011 P'ship, 50, 114, already UT 267 P.3d 863. stantive terms into the text that are not there."); Olsen, 10, ¶ 18, 2011 UT 248 P.3d 465 Cope light {applying 4. This is true even in Uran 76-1- this canon to conclude that Utah Code 501(3), 52-6-201(1) jurisdiction which states that is not an section "leaves no room for this being "element" of an offense in the add sense of court to conditions to the of reimburse subject proof beyond by legisla expressly a reasonable doubt. ment that are not set forth tion"). present purposes For that ais distinction with-

727 76, 5, charge Chapter pectations under Title and reliance formal interests of those who are bound its person terms. A Part 4 of the codebecause the sexual conduct Ne- reasonably vares's shoes could not "wholly partly" in have an at issue was not or Utah. ticipated that section 111 would foreclose his parental rights if a child conceived as a result presumption against extraterritorial 2. activity of his sexual in Colorado were effect brought placed Utah to be 135 That conclusion would hold even 111, here. Had Nevares considered section question if section 111 were silent on the reasonably he would have understood it to part establishing whether is a apply only jurisdic to sexual offenses with a "conduct which would constitute sexual a[ ] conclusion, tional connection to Utah.7 That offense" under deeply Utah law. Under a moreover, would doubtless have been in longstanding rooted and canon of construc formed an intuitive sense of the presump tion, presumed statutes are not to have ex against extraterritoriality, tion as even non- traterritorial effect. See U.S. Bond & Fin. lawyers have criminality a sense that is the Corp. v. Bldg. Nat'l & Loan Ass'n Amer states, separate domain of the and that activ (1982)("It ica, 62, 2838, 80 Utah 17 P.2d ity wholly in one properly state cannot is fundamental that a statute can have no subject charges to criminal in another. effect."). presumption extraterritorial This T presumption against 37 The extraterrito gap-filler, operating is a under a "clear state riality is a sufficient basis for our decision provides ment" rule. It that unless a statute limiting section 111 satisfying to conduct gives a "clear indication of an extraterritorial jurisdictional prerequisites to a formal application, it has none." Morrison v. Nat'l charge or conviction of a criminal offense. Ltd., 247, 262-65, Austl. Bank 561 U.S. least, very At the we can conclude that see 2869, (2010); S.Ct. 177 L.Ed.2d 535 see also gives tion 111 no "clear indication of an ex Reed, (Utah 1985) State v. 709 P.2d Morrison, traterritorial application." (invoking presumption legislative "absent minimum, U.S. at 130 S.Ct. 2869. At a contrary"). enactment to the it can be said that the statute is silent on the legislature When the Utah enacted question whether sexual conduct between 111, it did against backdrop so non-Utahns outside of Utah could "constitute longstanding presumption. We should ] offense" under Utah law. And the al respect presumption in our effort statutory lack of clarity on that matter legislature's By following discern the intent. sufficient to foreclose its to con statute, presumption interpreting bearing jurisdictional duct no connection to moreover, ex Utah.8 protect legitimate we also Respondents effectively point proceedings conceded this particularly impor- at nation "are both argument. response questions oral In from tant more substantial than mere loss of mon- court, acknowledged counsel ey," holding proof while must be made on sexual contact with convincing M.L.S. was not a violation of "clear and evidence" notwithstand- intentions," subject ing Utah criminal law good at the time of the "the state's civil labels and conception, given child's and that it proceedings did not become a that such "threaten the indi- subsequently crime when the child was significant deprivation born in vidual involved with a (internal liberty stigma" in Utah. Nevares quotation undoubt- marks edly omitted)). way, viewed the point matter the same and his But in event the is that presumption against reliance interests under the rights section 111's bar on a father's tied to the extraterritoriality accordingly entitled to re- establishment of "conduct which constitutes a[] spect. sexual offense" under Utah law. And the con- curring opinion would read that running have extraterritorial effect-in a manner It is no answer to assert that section 111 does presumption. afoul of the criminally penalize above-stated Nevares for his sexual ¶ 73. Presumably conduct "exception" Colorado. Our conclusion does not infer an Infra potential paren Adoption Mr. Nevares views the application, loss of his on the Act's extraterritorial punishment (perhaps tal exemption as a substantial apparent or add an that is "not face," greater temporary charges. than a criminal fine or term of statute's as the concurrence In- confinement). simply 164. We read section 111 not Kramer, See v. 455 U.S. Santosky fra 745, 756-57, impose consequences for extraterritorial con- 102 S.Ct. 71 L.Ed.2d 599 (1982) (observing termi- duct. 728 States), avoidance United the federal courts have held canon of constitutional

3. The that "the Government demonstrate [must] Finally, the same conclusion 188 that there exists a sufficient nexus between of constitutionalavoid holds under the canon the conduct condemned the United may "re this canon the courts ance. Under application the statute States such that the of of a ject[ plausible of two constructions ] one arbitrary fundamentally not be un would it ground that would raise statute on States v. fair defendant." United constitutionality." grave doubts as to its (9th Cir.1998) 916, Medjuck, F.3d 918 156 Carlson, Transp. 2014 UT Dep't v. Utah of (internal omitted). quotation marks This 23, 332 Thus, 24, if there are P.3d 900. principle likewise been extended to the has 111's grave doubts about section constitution arbitrary application extraterritorial of state regard any juris ality applies if it without Becton, Dep't law. See Dickinson & Co. v. Utah, may reject of dictional nexus to we Revenue, 786, 1350, 383 422 N.E.2d Mass. plausible in alterna construction favor of (1981) (explaining 1352 that state taxation of so for tive that avoids such doubts. We do generated by interstate activities re income explained reasons below. quires "a minimal connection or nexus be £89 The Due Process Clause has taxing tween interstate activities and long limits on been understood to establish State"). premise The essential of these deci arbitrary power extension of the principle sions is the notice at the heart of persons within its state on territorial process guarantee, gives the due which rise jurisdiction. applica One familiar bounds or arbitrary prohibition to a of state action in principle of found in tion this constitutional the absence of such notice.9 limitations on the territorial [ 41 If 111 section is construed to encom- area, In our courts. it is well-settled conduct, pass Nevares's extraterritorial seri- "[djue process requires that a defendant process questions ous due would arise under be haled into court in a forum State based on respondents' these cases. Under view of the State, his own affiliation not based statute, parental rights may a father's be cut random, fortuitous, or attenuated con by consequenceprescribed by off Utah law by interacting tacts he makes with other lacking any for conduct nexus with the state. persons affiliated with the State." Walden v. - Fiore, -, 1115, 1123, says, If that is what section 111 a serious due U.S. 134 S.Ct. process question would arise. (2014) (internal quotation 188 12 LEd.2d omitted); Volkswagen marks World-Wide putative posi 42 A father in Nevares's Woodson, 286, 294, Corp. v. 444 U.S. Colorado, tion-engaging activity 559, (1980)("[The S.Ct. 62 L.Ed.2d 490 Due Utah-may without connection to contemplate Process Clause 'does not that a reasonably anticipate that Utah law could binding judgment per- state make penalize by cutting pa his behavior off his against corporate sonam an individual or de rights rental in a child conceived as a result contacts, fendant with which the state no has Instead, activity. of such sexual an individu ") ties, (quoting or relations." Int'l Shoe Co. v. position arguably al in Nevares's would look 310, 319, 154, Washington, 326 U.S. 66 S.Ct. to Colorado law on the matter. See infro (1945)). L.Ed. (concluding that Colorado law should remand). law, 40 Yet this is not the And Colorado as we it, principle process. range In understand not have would foreclosed Ne- involving appli decisions the extraterritorial vares's based on his sexual 148; relationship (to with M.L.S. See infro cation of federal law conduct outside the acknowledge 9. We presented only also this due as a matter of constitutional argument identifying grave is far from conclusive. For reasons avoidance-of constitutional concurrence, 69, 72, ¶¶ making questions, identified and not of a conclusive deter- infra application of Utah law to a father of a child below, mination .of As noted constitutionality. open legislature's here is no means arbi n. we leave infra prerogative trary. certainly regulat amending subject has an interest in (which ing adoptions, doing determining and in so the limitations of the constitution Thus, here). analysis highlight of fathers. our here is but do not resolve 19-5-105.58) (authorizing right object to to adoption) Colo. Rev. St. for conduct rape victim of or sexual assault to file a wholly in bearing Colorado and no nexus to parent-child legal petition "to terminate the Utah. relationship" of the father of a child "con 44 It is no answer to note that "this is ceived as a result of an act that led to the ¶ 69. Granted, not a criminal case." Infra parent's conviction for sexual assault or for a process question the due highlighted here underlying conviction in which the factual greatest would be in the field of criminal law. added)). (emphasis basis was sexual assault" necessarily But it is not limited to that Thus, interpreting section to extend to penalty field.11 question-a And the per impose Nevares's conduct Colorado would parental se bar on a right object father's to significant him consequence on that he adoption-is to an a matter that at least anticipated could not have under the law that perceive significant some would as more than presumed apply he would have to at the time prison a criminal fine or term.12 There is engaged activity he in sexual in Colorado. significant constitutional doubt as to whether process This would introduce serious consequence prescribed by section 111 concerns under the above-cited cases.10 And imposed can be on the basis of conduct lack interpreting that is a further basis for section ing any jurisdictional nexus to Utah. way, 111 the other to avoid this constitutional question. noting, In T45 so we are no means foreclosing applicability adoption of Utah { concurring opinion's objections 43 The law in a proceeding. Utah For analysis First, unpersuasive. this questions most arising in the course of a quarrel have no with the notion that adoption, apply-even Utah law would Utah courts have territorial over as to matter of a rights, father's ¶ 69 (Durham, J., case. Infra and even absent a substantial nexus between concurring), question The constitutional the father and the forum state. See however, presented, ju is not the territorial infro 169. But courts, section 111 is different. It is a risdiction of the Utah the due regulating law activity-by imposition process applying basis for substantive Utah penalty of a substantial aimed at disincentiv- matter, law herein. on And this there is at izing activity. grave least a such And concerning constitutional doubt for reasons noted above, application the extraterritorial the extension of that to ac tivity application impose bearing jurisdictional 111-an that would a sub no nexus to Utah (a process father's would raise serious due penalty per concerns.13 stantial se bar on a 756-57, noting, legisla Santosky, In so we do not contend "that 12. See 455 U.S. at 102 S.Ct. consequences (observing parental rights tures never attach civil that termination ¶ 71, proceedings criminal conduct without notice." particularly important n. "are both Infra money," and more substantial than mere Joss of point simply consequence 4. The that holding proof this of section 111-the loss of the while must be made on "clear convincing parental right evidence" object adoption-is "the notwithstanding to an suffi ciently significant intentions," implicate pro good serious due given state's civil labels and heightened proceedings cess concerns. And that concern is that such "threaten the individual where, here, activity deprivation liberty the father's sexual was involved with a significant arguably legal place, in the state in which it took (internal omitted)). stigma" marks quotation and would not have led to the loss of his object to an concurring opinion acknowledges 13. The "a person criminally cannot be held Hable for con duct unless she has notice that the conduct Quill Dakota, 11. See v. North 298, 504 U.S. Corp. 308, 1904, (1992) (ex- conceding S.Ct. 119 L.Ed.2d 91 criminal." 70. But while Infra plaining that criminality whether the Due Process Clause '"[nlotice of the conduct's would be permits corporation depends necessary," a state to tax a "perfect the concurrence insists that "magnitude corporation's] consequence of [the contacts" notice of the conduct's would not." state); ¶ 70. taxing Bigelow support v. Old Dominion an effort Infra Co., conclusion, Copper Mining Smelting & 225 U.S. the concurrence "[ilf asserts that (1912) case, (giving establishing 32 S.Ct. 56 L.Ed. 1009 were not the then ... a statute surety registry New York statute extraterritorial effect a sex offender could not to some operate "would as a denial of due one who committed his sexual offense before it law"). enacted, was or to someone who committed his underlying interpret section 111 to avoid that conviction which the factual 1 46 We so, moreover, without con do basis was sexual assault." See Rev. problem. We Cono. St. 19-5-105.5(8) added). process prob clusively resolving this due (emphasis instead, that the constitu lem-by noting, {49 provision Nevares contends that this sufficiently is presented question tional govern any should determination whether his avoidance of it.14 See "grave" to merit our operate sexual conduct in Colorado would ¶24, 23, Transp., 2014 UT Dep't Utah of parental rights. a bar on the assertion of his P.3d 900. agree. premise holding The We of this is in (which the terms of section does not III. CONCLUSION above) apply to this case for reasons noted reasons we reverse the 47 For the above language and in the of the Colorado statute paternity peti- dismissing Nevares's decision (whichplainly apply).15 does summary judgment. tion on And we remand in proceedings the district court. for further parental rights T50 ap Nevares's would doing, emphasize pear by to be unaffected 1 48 In so we the limited cited Colorado First, holding. provision, do nature of our as he was never convicted of sexual provisions that a father whose child assault. But like conclude the cited Colora is conceived as a result sexual misconduct do statute are the answer to the concern that any in immune from bar to our another state is construction of section 111 could allow a parental rights adoption proceeding in an man his who fathers a child another state as a analysis rape parental rights Our of this issue is based on result of a to assert his Utah. adoption taking Code place our construction Utah section 78B- an in Utah. See infra 6-111, And, inapplicable event, any which we find in this case. T79-81. such laws are however, conclusion, may elsewhere, That still leave not the recourse. In Utah as petition parental room for the of other laws affect- a rights may to terminate rights, ing authorizing granted upon showing a father's such as laws a parent's of a rape based, incompetence, a victim of sexual assault to file a unfitness or for exam parent-child petition legal ple, history "to terminate the on "a of violent behavior." See Cope 78A-6-508(@)(f). relationship" of the father of a child "con- Urax petition A along a an act ceived as result of led to the these lines could also be filed in the proceeding conviction for sexual assault or for a in a courts like this one.16 parent's stating, offense in a without such a law." In so we do not hold that the conse- quence parental right object 71. of a loss of the to Infra adoption punishment an amounts to criminal by premise We are troubled and find the underlying point behavior. Our lim- is more example distinguishable. proposed The distinc- consequence significant enough ited-that is "criminality" "consequences" tion between constitutionality to raise serious doubts about the Granted, of criminal is overbroad. behavior of section 111 under the Due Process Clause if may felon who moves to a new state find himself applied lacking jurisdictional to conduct nexus subject regulations to new and restrictions. But Santosky, to Utah. See 455 U.S. at 102 S.Ct. may subject punishment, he not be to new and is "consequence" entitled to notice before the punishment imposed. reg- such is Sex offender light interpretation In of our of section istries, moreover, distinguishable. reg- Such by procedural which is informed upheld against istries have been constitutional concerns, we need not and do not reach the ground they "reg- attack on the constitute process question substantive due addressed ulatory "nonpuni- scheme" "civil" ¶¶ the concurrence. See 74-76. infra tive," Doe, 84, 105, see Smith v. 538 U.S. (2003) (upholding S.Ct. 155 L.Ed.2d 164 law, course, regulate adop- 15. Utah registry against post would an Alaska sex offender ex facto proceeding tion challenge), Utah courts. See Restatement not because sex offenders lack a due (SEconp) (1971). process right "perfect or Conruict or Laws 289 notice" But of the "conse- behavior, quences" per- of their adoption 118. The the cited Colorado not an infra provision; parental right significant regulating activity- manent loss of a it is a law is a (termination consequence prescribing penalty arbitrary parental of criminal behavior. The imposition consequence-without any rights) disincentivizing of this aimed at no- such behavior. questionable apply, tice-is at least as a matter of due On that matter Colorado law would process. reasons noted above. Second, challenges 'I we do not foreclose in cases where an unwed father did not know reasonably and could not have known of a that were not qualifying cireamstance under Utah Code presented appeal. for our decision on this 122(1)(c)@). implication ema- simply grounds Our conclusion is that the statutory nates from such a right father's by respondents advanced are insufficient as a assert his even after matter of law foreclose Nevares's mother confers her consent under Utah Code grant or withhold his consent to an 78B-6-122(1)(c). light In right, of that 78B-6-122(1)(c). under Utah Code section that is otherwise final nonethe- issues, remanding, In no we resolve other subject less be to an unwed appearing father grounds no view as to other express parental rights later to assert his in a child respondents may response advance in to To forestall that even- petition may tuality, Nevares's or that arise in adoption the mother and the agency may be well-advised to inform the unwed subsequent proceedings regarding adop the father of qualifying the mother's cireum- question.17 tion of the child in proactive stances. That step legally is not Finally, highlight impor- €52 we also an required, indicates, but as this case it could implication adoptions tant of our decision for goal still be advisable if the is to minimize rejects approach pol 16. The concurrence on system. inevitable feature of our federal And icy grounds, asserting yields "inadequate that it concurring opinion's it is likewise inherent the protection for Utah citizens who have im concurrence, been approach. Under the section 111's by pregnated sexual abuse in other states." constitutionality depend Infra com would on whether Ne- Specifically, concurring opinion the vares's conduct was criminal in Colorado. Infra plains that some states "have no statutes restrict course, analysis, hinges 176. Yet that also ing paternal rights of fathers who conceive chil states," ''the laws of other as each state classifies through rape," insisting dren while also that of differently. criminal conduct Colorado sets the laws, "many provide the states that do have such age § of consent at fifteen. Coro.Rev.Stat. 18-3- protection rape less survivors than is need 405(1). And because M.L.S. was fifteen at the §79. question presented, ed." er, howev Infra Nevares, relationship time of her with that rela proper interpretation concerns the of the rele tionship illegal. was not But other states set a vant statutes-of Utah Code section 78B-6-111 higher age Pennsylvania, of consent. for in 19-5-105.5(3) and of section of the Colorado stance, sets it at sixteen. 18 Pa. Cons.Stat. Code. And in realm, it is not our statutory Thus, § 3122.1. Pennsylva Nevares had been a policy. implement role to make We must instead nian, the concurrence would come out the other policies governing the reflected the statutes as way, despite no in the nature of the difference we understand them. (In relationship. J.M.S.), See Brooks v. A.S. re applicable The concurrence sees the Colorado 35, ¶ 34, (Durham, J., 2015 UT 345 P.3d 709 inadequate-even supplemented as Thus, dissenting). legislature's ability pro by governing (contesting Utah laws. Infra "depend tect mothers and children will requirement rape the wisdom of Colorado's of a laws of approaches, other states" under both and conviction, by warning rape that a victim would prospect accordingly rejecting no basis for be "defenseless" if there is no conviction due to opinion. our "police prosecu- mistakes" or an "understaffed office"); (asserting pro- tor's that Utah law Cope See, 78B-6-133(1) e.g., § (calling Utax viding rights upon for termination of proper grounds for assessment of "whether exist showing "inadequate of unfitness is because it [parental] rights" for the termination of ... of a underestimates the harm done when a sexual person "whose consent for an is re permitted abuser is even to intervene in quired"); 78B-6-133(2)(b), (3) (if id. proceedings"). questions But these are for the terminated, calling are not for "an eviden- respective legislatures. Colorado could consider tiary hearing to determine who should have cus amending high- its statute to address concern tody of the child" based on "the child's best lighted by goes concurrence. the same interest," considering psycho "evidence of legislature: Subject for our Utah to the limita- logical constitution, or emotional bonds that the child has legislature tions of the the Utah person, including pro formed with a third amending could consider section 111. Unless spective adoptive parent," "any happens, detriment and until we are bound child"); change custody may that a cause the terms these statutes. 78B-6-133(5) (noting "custody id. holding The concurrence's that a order discomfort with our (a) premised pursuant legislature's on the belief that entered to this section ... ability (i) (ii) protect provisions parent-time; mothers and children "should include for: depend (b) party; on the laws of other states." visitation an interested third Infra child"). prospect doing. provide support 181. But that is not our It is for the financial quite straightforward- steppmg forward this offense sceribe[s]" an unwed father the risk of ly: at a later date. person activity A commits unlawful sexual DURHAM, concurring in the Justice if, with a minor under cireumstances not

result: amounting [a more serious sexual crime], the actor: majority result I concur (a) reaches, reasoning has sexual intercourse with the mi- and I also concur with disagree, I how- opinion. in Part ILA of its nor.... ever, majority's reasoning in Part Cop® 76-5-401(2). Urax The statute de- Code section 78B-6-111 does not II.B. Utah person fines "minor" as "a who is 14 years limit to sexual conduct that its older, age younger years than 16 Utahns; rather, in Utah or between occurred 76-5-401(1). age." §Id. applies paternal rights to all fathers whose it fifteen, years ago, 157 Five M.L.S. was are based on sexual conduct that would be and Mr. Nevares had sexual intercourse with illegal It if it occurred Utah. therefore Having fifteen-year-old her. sex with a "con- applies Mr. Nevares. activity unlawful stitute[s]" with a mi- [ However, although Mr. sex- Therefore, nor. under section Mr. Ne- ual conduct with M.L.S. would constitute a "required in vares's consent is not connection law, felony legal under Utah it was where it adoption proceeding." with [this] Id. 78B- occurred. Because Mr. Nevares did not 6-111. by conceiving commit a crime a child with M.L.S., constitutionally protected he has A. Canons Construction participate upbringing in the child's (58 plain-language reading The above that can be foreclosed if he fails to clear, simple, the statute is faithful to the parent. if he unfit assert it or is to be a For text, absurd, fully not consistent with the reason, I would hold that section 111 is express purposes Adoption of the Utah Act. applied unconstitutional as to Mr. Nevares as simply See id. T8B-6-102. It is the best process. a matter of substantive due statute, reading of the and I have no doubt that, legislature insofar as the considered I. SECTION 111 APPLIES TO SEXUAL all, my reading this issue at is the one it CONDUCT OUTSIDE OF UTAH intended. pro- T55 Utah Code section 78B-6-111 majority disagrees. T 59 The I cannot call vides as follows: doing acknowledge it irrational for I so. that biological [TThe consent of a father [is not] explicitly section 111 does not state that the required in connection with an location of the father's conduct is irrelevant. proceeding, in cases where it is shown that acknowledge I also the statute's sub- subject proceed- the childwho is the junctive phrasing-"conduct which would ing was conceived as a result of conduct clear, perfectly constitute"-is less than which would constitute sexual offense though any plausible interpreta- I not do see 76, 5, 4, Chapter described in Title Part phrasing supports tion of that the ma- regardless of whether the father jority's conclusions. formally charged with or convmted of a Ultimately, majority agree T 60 and I criminal offense. on the outer boundaries of what the statute application of this statute to Mr. Ne- that, might minimum, agree mean. at a We depends single question: vares thus a satisfy a father's conduct must elements "would [Mr. Nevares's conduct] constitute of a sexual offense-both actus reus 76, any sexual offense described Title apply. mens rea-for section 111 to On the 5, Chapter Part 4"? extreme, agree other that a father does 4, Turning Chapter to Title Part not need to be convicted of a sexual offense I find a sexual apply. dispute offense titled "unlawful sexual for section 111 to Our con- activity with requires a minor." The statute "de- cerns whether statute some- offense, ritoriality" requirement before, thing more than the elements of to its statutes prosecution actual and conviec- but less than certainly and we have never done so in an does, majority that it and it tion. The insists now, adoption case. To Adop- do so after the battery position defends this with a whole history tion Act's substantial interpreta- unius, against expressio canons: the canon amendment, tion and would be like a child effect, and the constitutional extraterritorial deciding in the middle of his chores that per- I avoidance canon. find none of them really his mother had him wanted to take out suasive. trash, said, she would says." have "Simon expressio argument I 1 61 find the unius [ Reading Adoption the Utah Act as a unpersuasive simply expressio because unius whole, (1) I find it clear legislature fact, unpersuasive In is an canon.1 it is a understands the Act to to out-of-state propositional fallacy,2 formal and its forensic Utah, adopted fathers whose children are display on full In weakness here. (2) that it is aware that the Act's hands, majority's expressio unius turns a gives to such fathers rise to due saying "prosecution clause and conviction are (8) problems, and that in order to avoid these required" saying "every not into a clause process problems, pursuing while still its thing prosecution short of and conviction is goal speed finality in adoptions, it has required." supra See 1130-34. These two (not all) exempted some out-of-state fathers logically legally clauses are neither nor from Adoption provisions some of the Act's equivalent, presume and there is no reason to (but all). exemptions These do in- legislature that a that enacted the one also exemption clude an from section and to intended enact the other. create one wouldviolate majority's one of the against presumption I 62 The extraterrito- against own canons: the canon reading limi- stronger argument, apply- rial effect is a tations into a apparent statute that are not ing indisputably section 111 would attach le- on the statute's face. upset We should not gal consequences to Mr. Nevares's conduct compromises legislature the the has reached outside Utah. And if this were the first time they on this issue actually unless are uncon- the Adoption effect of the Utah Act on out- stitutional. question, of-state fathers had come into I (65 seriously would consider the notion that the Thus, leaving constitutional issues light Act should be in background read of the moment, aside for a single section 111 has a principle expressed by of law this canon. reading: application best require its does not anything more than that a father's conduct said, however, T 63 That this canon is not satisfies the elements of a sexual offense constitutionally required merely guide but under Utah's intent, substantive criminal law. legislature's It the and I see no rea- incorporate does procedural not imagine legislature son to that the intended apply law that would attempted Utah apply us to a clear statement rule to deter- Nevares, Adoption prosecute mine ap- procedural Act's Mr. and the extraterritorial plication. Why should it law that it incorporate have? We have does not includes the applied never a "clear statement of extrater- governing jurisdiction.3 law Utah's criminal being "Far logic, rule, from ] unius is not outside the realm of formal there are con- [expressio accurate, lexicographically even strong because it is texts in "if A which then B" is evidence true, simply B," generally, express that the mere for "if not A then not but I see no reason to right privilege conferral of a in one kind of believe this is one of those contexts. implies equivalent situation the denial of the that, sense, majority 3. The claims in the relevant privilege in other kinds. Sometimes it substantive, "jurisdiction procedural" is be not, does and sometimes it does and whether it proven by prosecution cause it must be depends particular does or does not cir prosecution order for the to obtain a conviction. cumstances of context." BLACK'SLAWDICTIONARY Supra majority If 32 n. 4. means that the DICKERSON, (9th ed.2009) (quoting 661-62 REED prosecution always present ju must evidence of THE AND INTERPRETATIONAPPLICATIONOFSTATUTES234- jury risdiction to the order to obtain a convic (1975)). tion, it is incorrect: the Utah Code establishes unius, A, expressio implies Under "if then B" jurisdictional "[if that no raised, issue is Logicians pleadings "if not A then jurisdiction." not B." refer to this are sufficient to establish Cope sure, fallacy "denying 76-1-201(5)(a). the antecedent." To be See Utah Jurisdiction is jurisdictional majority's "significant Utab's statute fur T69 As to the nex The text of principle, agree us" I "[must] it dem supports this conclusion: does not ther onstrate that there exists a sufficient nexus jurisdiction as an ele purport to establish the conduct condemned and [the limit, in every offense or to some ment of between state of such that the Utah] way, applicability of Utah law to abstract arbitrary statute would not be or fundamen Rather, merely in other states. it conduct ¶ 40 tally Supra unfair to the defendant." "subject persons the class of who are defines (first original) (quoting alteration United prosecution" in Utah. Utan Code 76-1- (9th Medjuck, States v. 156 F.3d 201(1). Cir.1998)). case, But this is not a criminal and Mr. Nevares is not a "defendant." Rath B. Constitutional Avoidance er, because Utah has over the adopted, governs adop child to be its law persuaded I am the real reason tion, regardless parties of whether majority's is the for the decision constitution- at stake have ever heard of Utah. interests again, al avoidance canon. And I cannot call (SEconp) See RestatEmENT or CoNFPLICTOF majority's proce- decision irrational. The (1971) ("A applies Laws court its own dural due issue that concerns the determining grant local law in whether to majority pages was raised the last adoption."). brief, reply Mr. respon- and the majority's 170 As to the principle, "notice" opportunity dents have had no to refute it in agree person I that a cannot crimi be held writing. if I majority's Even shared the nally liable for conduct unless she has notice constitutional concerns about section I criminal, the conduct and this is certainly would hesitate to invalidate it on among why the reasons section 111 cannot argument. the basis of such minimal constitutionally to Mr. Nevares. See father, Part II. But a different whose Nevertheless, infra T67 I majority's think the sexual conduct was criminal where it oc misplaced. constitutional concerns That curred, would not be able to avoid section 111 say is not to that section 111 can constitu- by showing he lacked notice of it. Notice of tionally cannot, apply to Mr. Nevares-it see eriminality necessary, conduct's would be majority Part II1-but that the wrong infra perfect notice of the conduct's conse about the unconstitutionality reasons its quences would not. seope this case and about the of the consti- case, (for 171 If this were not the then problem. tutional example) establishing a statute a sex offend 1 By my reading, 68 majority's consti- registry apply er could not to someone who analysis any tutional is on based less relevant committed his sexual offense before it was precedent principles than on two broad enacted, or to someone who his committed process may due punish law: that Utah not offense in a without such a law. Mr. lacking signifi- Nevares for conduct "a prohibiting The same would be true of laws state, cant nexus" with our and that section carrying weapons voting. felons from or from 111 should not to Mr. Nevares because cases, In each of these the law attaches he had no notice of it when he had sex with consequences people's though actions even M.L.S. principles ground- Neither of these they had no notice they of the law when less, majority but I misapplies believe the yet, cases, acted. And in each of these conseq not, them. they If it did it process would not believe allows courts to enforce the were relevant to this case. uences.4 clearly procedure-no part legislatures may a matter of of a sub- never attach civil conse- presumed stantive criminal offense could be sat- quences giving to criminal conduct without ad- merely pleadings. isfied based specific consequences-is vance notice of those false, clearly general principle and it is this I general princi- do not mean here to endorse a majority's reasoning depends. which the ple legislatures may attach whatever conse- conduct, quences they wish to criminal without notice, long so as there is notice that the conduct general opposite principle is criminal. But the

785 Although precise T75 boundaries of Ultimately, my disagreement with the rights unmarried fathers' due majority points down to a on these boils opinion purpose over the disputed, difference of much those boundaries do not con 111, correctly cern us here. Section inter majority of section 111. The sees see effect regulating activity" preted, sexual would allow rights tion 111 as a "law Mr. Nevares no penalty "impos[es] a substantial aimed respect whatsoever with to the activity." Supra his If disincentivizing actually at such child. Mr. Nevares had com ¶ 45. thing. legislature by no The having It such mitted a crime sexual relations M.L.S., purposes Adoption has made the of the Utah merely engaging rather than clear, 78B-6-102, quite Act see Urax Code "conduct which would constitute" a sexual Utah, 78B-6-111, purposes regulating, offense in those do include Urax Conr® disincentivizing penalizing, rights perfectly sexual conduct. then this denial of would be Rather, they primarily have to do with the constitutional. gone court has "[Nlo so far child, finality fatherhood, best interests of the as to hold that the mere fact of adoptions, balancing rights consequent upon and with "the a criminal act ... [and] not parties by adop child, interests of all ... by affected cemented association with the 78B-6-102(8). proceeding." tion Id. creates an interest pro that the Constitution liberty." tects in the name of Peña v. Mat light, T73 Read in this section 111 is not a (7th tox, 894, Cir.1996); 84 F.3d see also Rather, penal statutory statute at all. it is a ¶¶ J.M.S., 32-38, In re 2015 UT 345 P.3d enactment of the principle constitutional (Durham, J., dissenting). applied Seventh Circuit v. Mattox: T76 But Mr. Nevares's conduct cannot be give that criminal conduct does not rise to because, considered a erime though prohibit- legal rights, and a that man who becomes the Utah, by legal ed it was where it occurred. through father of a child criminal present governed case is therefore thereby gain conduct does not to a Supreme doctrine the U.S. applied Court relationship with the child. 84 F.3d Quilloin v. Walcott: the state not termi- (7th Cir.1996). purport Section 111 does not rights nate an unwed father's in his child deprive already Mr. Nevares of he unfitness," showing "without some possesses, way penal might statute 246, 255, U.8. 98 S.Ct. 54 LEd.2d 511 Rather, deprive liberty property. him of (1978), unless the opportu- father has had an section 111 denies that Mr. Nevares has nity to assert those and has failed to context, rights at all in way our so, 255-56, do see id. at 98 S.Ct. 549. Mr. property might deny law that he owns a slept has rights, Nevares on his and he particular house. And had Mr. Nevares ac has not been determined unfit. He must tually by conceiving committed a crime therefore be allowed to contest the M.L.S., child with per- this denial would be fectly constitutional. III, UTAH APPLY L&W SHOULD majority I 77 The seeks to soften the effect

II. SECTION 111 IS UNCONSTI- of its allowing decision the victims of TUTIONAL AS APPLIED TO pater abuse to contest their abusers' MR. NEVARES rights using nal the laws of the states where ¶¶ they Supro were abused. 48-49. It also Ultimately, 174 the reason section 111 points paternal out that such an abuser's constitutionally cannot applied to Mr. Ne- potentially upon could be terminated simpler much very vares is than the abstract showing parenthood. he was unfit for that principles majority appeals the to. In a sen- Supra process gives tence: substantive due Mr. Ne- constitutionally protected right vares a nothing, T 78 This is than I suppose, better participate upbringing, in his child's applying and even if the basis for law Colorado may only extinguish that if Mr. ultimately inadequate protec- weak. But it is it, Nevares fails to assert or if he impreg- is unable or tion for Utah citizens who have been unfit to exercise it. nated sexual abuse in other states. with, inadequate it is be- begin ability protect

179 To protect. Its them should have laws like Colorado's. depend cause not all states on the laws of other states. and the District of Columbia Nineteen states restricting paternal the no statutes

have IV. CONCLUSION who conceive children of fathers majority grave Because has con T82 Silver, through rape. The Second Moriah concerns, apply stitutional it turns a statute Rape: Legal Options Rape Survivors to ing that an of to "conduct would constitute Rights, L.Q. Fam. Terminate Parental applying in Utah" into a fense statute (2014). thirty-one 526-27 Of the states that "could ... a criminal sustain[ ] conduct do, many protection for provide less ¶ 28. charge" Supra in Utah. In order to do particular, rape survivors than is needed-in so, stating it turns a clause that section (like Colorado) many require the fa- states prosecution require formal and con does ther to be convicted of sexual assault before stating viction into a clause that section may paternal rights. cut off his Id. a court requires everything prosecution formal states, ability at 529-81. In such Further, pretends and it conviction. rape protect her from her victim to child legislature apply assumed we would a canon rapist depends willingness ability and nearly apply. that we never police prosecutors and to secure a convic- that, acknowledge €83 But for all I police If lead to tion. mistakes the exclusion majority's wisdom of the decision to evidence, prosecu- of vital or an understaffed avoidance canon in constitutional plea bargain, office offers a lenient tor's she case rather than decide the constitutional is left defenseless. True, worrying. issues it finds so its worries To deal with situations where laws unnecessary, straightfor- as clear absent, protecting inadequate victims are ward answer is available: substantive due majority points to a failsafe: a court's process clearly protects Mr. Nevares from ability rights upon to terminate a father's while no constitutional doctrine showing parenthood. Supra ¶ of unfitness for protects paternal rights at all a father whose Beyond optimistic assumption its entirely result rest from on a sex crime. But unfit, rapist easily fathers will be found majority I applaud pen- nevertheless inadequate failsafe is because it underesti statute, ciling its concerns into a state where mates the harm done when a sexual abuser is desires, legislature can erase them it permitted adoption pro even to intervene chiseling instead of in federal constitu- them ceedings. ability adop up to hold tional stone. tion, might that he it threat block {84 us, this issue returns I When as entirely, gives powerful leverage the abuser will, suspect hope keep I it the court will to extract concessions from his victim. At my opinion mind III Part above. Utah least, it allows him to foree his vietim into compelling protect has its reasons citizens repeated long contact him litiga so abuse, who have been victims of sexual re- tion continues. gardless they of where were abused. An interpretation of the Process Clause Due un- legislature, perceiving prob- 4 81 The these compelling der which this al- interest must lems, bright drew a line: no father who has ways rapists' right bow to to "notice"-that through conceiveda child sexual assault is, imaginary right they their to know before adoption, regardless contest that child's rape they commit whether will be able to parenthood, regard- whether he is fit for resulting offspring-is, put raise the it guilt less of whether his can be established mildly, unlikely to be correct. procedures higher under the stricter proof burden of a criminal trial. See Urax Cope Moreover, legisla- 78B-6-111. line, every right

ture has to draw this at least

where the child and its mother are citizens of

Utah whom the responsibility state has a

Case Details

Case Name: Nevares v. M.L.S.

Court Name: Utah Supreme Court

Date Published: Feb 6, 2015

Citation: 345 P.3d 719

Docket Number: 20120763

Court Abbreviation: Utah