In re Adoption of Connor

2007 UT 33
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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In the matter of the adoption Nos. 20060581
of Connor, a child under 18 years 20060582
of age.
Raymond J. Barnes and F I L E D
James and Christie Solomon,
Appellants. April 13, 2007
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Third District Juvenile, Salt Lake
The Honorable Elizabeth A. Lindsley
No. 454273
Attorneys: Cory R. Wall, Salt Lake City, for Raymond Barnes
Ronald D. Wilkinson, Orem, for James Solomon and
Christie Solomon
Martha Pierce, Felipe E. Rivera, Guardians
ad Litem, Salt Lake City
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On Certification from the Utah Court of Appeals
WILKINS, Associate Chief Justice:
¶1 We are asked to review the decision of the Third
District Juvenile Court that Raymond Barnes, an unmarried
biological father, had standing to contest the adoption of his
son by James and Christie Solomon. We also review the court’s
order awarding joint legal custody and primary physical custody
to the Solomons. We resolve these two separate appeals with a
single opinion. We affirm that Mr. Barnes has standing, and we
reverse the custody order as contrary to law.
BACKGROUND
¶2 Connor was about eighteen months of age at the time his
biological mother placed him for adoption and relinquished her
parental rights. James and Christie Solomon, with whom Connor
was placed, took him into their home and petitioned for adoption
in the Third District Juvenile Court. As required, the Solomons

Nos. 20060581, 20060582 2
also sought to terminate any claim of parental rights by Connor’s
father. Connor’s unmarried biological father, Raymond Barnes,
sought to intervene in the proceedings.
¶3 The juvenile court was first required to determine
whether Mr. Barnes had legal standing to contest the petition for
adoption under Utah Code section 78-30-4.14. Due to
incarceration, Mr. Barnes had been separated from Connor for much
of the child’s first eighteen months of life. However, the
juvenile court found that, although he did not make cash payments
to the birth mother, Mr. Barnes did purchase some necessary items
for the child, including clothing, food, diapers, and toys. The
juvenile court also noted that when he was incarcerated, Mr.
Barnes’ family “made sure” that Connor’s mother had what she
needed to care for the child and, at times, took Connor into
their home and cared for him themselves.
¶4 The court also found that Connor lived with Mr. Barnes
for at least four months prior to placement for adoption and
that, during that time, Mr. Barnes and his family provided for
Connor’s full support. When Mr. Barnes was not incarcerated, he
had regular visits with Connor. When he was incarcerated, Mr.
Barnes maintained regular communication with and about Connor
through phone calls.
¶5 The court concluded that Mr. Barnes had standing to
contest the adoption because, as an unmarried biological father,
he had complied with the provisions of Utah Code section 78-30-
4.14. As a consequence, the juvenile court dismissed the
adoption petition, as mandated by statute, and convened a custody
hearing pursuant to Utah Code section 78-30-4.16. The court
awarded joint legal custody of Connor to Mr. Barnes and the
Solomons, giving the Solomons primary physical custody and Mr.
Barnes standard visitation rights.
¶6 On appeal, the Solomons seek reversal of the juvenile
court’s determination that Mr. Barnes had standing to contest the
adoption. Mr. Barnes challenges the legal validity of the
custody order in a separate appeal. We have consolidated the
appeals for review and decision.
ANALYSIS
¶7 We address separately the legal analysis of standing
and custody. Without standing to challenge the adoption
proceeding, Mr. Barnes would have no interest in the custody
order. In fact, no such order would likely be required, as the
adoption would appear to have been otherwise unobjectionable, and
Mr. Barnes’ rights as a father would have been terminated. On

1 Utah Code Ann. § 78-30-4.14(4) (Supp. 2006). While we
rely on the law in force at the time of the hearing, we note that
this statute was amended in 2006, after the petition for adoption
was filed. However, the requirements to establish standing have
not been changed. Accordingly, throughout this opinion, we cite
to the current version of the statute.
2 Id. § 78-30-4.14(4)(a)(i)-(iii).
3 Id. § 78-30-4.14(4)(a)(i)(A), (B).
3 Nos. 20060581, 20060582
the other hand, since we conclude that the juvenile court was
correct in regard to standing, it becomes necessary to consider
the appropriate legal limits to the custody arrangement imposed
by the court.
I. STANDING
¶8 Utah Code section 78-30-4.14 states that, “with regard
to a child who is placed with adoptive parents more than six
months after birth, consent of an unmarried biological father is
not required unless the unmarried biological father” meets three
requirements.1 In order to have standing to contest the
adoption, Mr. Barnes was required to establish that he had (1)
“developed a substantial relationship with the child,” (2)
“[taken] some measure of responsibility for the child and the
child’s future,” and (3) “demonstrated a full commitment to the
responsibilities of parenthood by financial support of the child
of a fair and reasonable sum in accordance with [his] ability.”2
¶9 The juvenile court found that Mr. Barnes had developed
a substantial relationship with Connor. An unmarried biological
father can establish that he has developed a substantial
relationship with a child through either of two means: first, by
visiting the child at least monthly, unless physically or
financially unable to do so; or second, by engaging in regular
communication with the child or an authorized agent of that
child.3 In the judgment of the juvenile court, Mr. Barnes
satisfied both of these requirements. When he was not
incarcerated, Mr. Barnes regularly visited Connor. In fact, the
child often stayed with Mr. Barnes for days or weeks at a time
prior to placement for adoption. At one point, Connor lived with
Mr. Barnes for four months, and during that time Mr. Barnes
provided for Connor’s necessary care. When he was incarcerated,
and thus unable to visit personally, Mr. Barnes made regular
phone calls to Connor or to Connor’s custodian. As found by the
juvenile court, Mr. Barnes’ conduct satisfied the first
requirement.

4 Id. § 78-30-4.14(4)(a)(ii).
5 Id. § 78-30-4.14(4)(a)(iii).
Nos. 20060581, 20060582 4
¶10 The second element requires establishing that the
unmarried biological father “took some measure of responsibility
for the child and the child’s future.”4 The juvenile court found
that Mr. Barnes also satisfied this requirement. When Connor was
with Mr. Barnes, Barnes cared for him. That care included
purchasing clothing, formula, and diapers for the child. When
Mr. Barnes was incarcerated, his father cared for Connor and
provided for his needs on Barnes’ behalf. Accordingly, Mr.
Barnes took “some measure of responsibility” for Connor, in
satisfaction of the second statutory element.
¶11 Finally, an unmarried biological father must
demonstrate a “full commitment to the responsibilities of
parenthood by financial support of the child of a fair and
reasonable sum in accordance with the father’s ability.”5 This
requirement presents perhaps the greatest hurdle in this
unmarried biological father’s path to standing.
¶12 Certain minimum factual findings are important for a
meaningful review of an unmarried biological father’s degree of
financial support. The factual issues most valuable in this
assessment normally would include evaluations of the father’s
ability to provide support during the entire relevant time period
and what support he actually provided. The relevant time period
is from conception to placement for adoption. Also, it is
important to review the support provided from other sources
during the relevant period and the support the child required
compared with the support the child received. With these facts
in hand, it becomes an easier task for the court to determine
whether, under the circumstances of this child’s life, the
support provided by the unmarried biological father amounts to a
fair and reasonable sum, as required by law. In reaching this
conclusion, the trial court may consider additional factors that
aid in the determination, including in some cases the ability of
the father to determine and supply pre- and post-birth support.
Active concealment by the biological mother may partially
compromise an unmarried biological father’s ability to identify
needs. However, once discovered, the concealment does not excuse
the effort to provide support.
¶13 The findings of the juvenile court in this instance do
not clearly illuminate, for our review, many of these important
facts. For example, we do not know what Mr. Barnes’ capacity to
provide for Connor was during the mother’s pregnancy and the

6 State v. Robison, 2006 UT 65, ¶ 21, 147 P.3d 448.
7 Id.
8 Id.
5 Nos. 20060581, 20060582
eighteen months that followed. There is testimony in the record
that Mr. Barnes made around twenty dollars per hour when able to
work. However, there is no indication of how much he actually
made during the relevant period and when he was not incarcerated.
We also do not have a clear picture of which of Connor’s needs
were actually met by Mr. Barnes during the brief time he lived
with Connor’s mother. We know that during part of the pregnancy,
Mr. Barnes lived with the birth mother. We do not know, however,
what the financial arrangements were between the couple at that
time and what, if any, financial contributions Mr. Barnes made.
¶14 Moreover, financial support is not limited to cash
payments made by the father to the mother or the child’s
custodian. Shelter, food, clothing, and education, whether they
are provided by the father himself or by the father’s family at
his request, all count as contributions. The juvenile court
found these to be contributions Mr. Barnes clearly made at times.
However, it is unclear what, if any, support was offered during
the pregnancy or at the time of birth.
¶15 Given this relative dearth of factual findings, it is
difficult for us to evaluate the juvenile court’s conclusion that
Mr. Barnes had strictly complied with the requirements of Utah
Code section 78-30-4.14. However, notwithstanding the omissions
of specific factual findings on some of these important issues,
the omissions in the findings themselves are not fatal unless
they are effectively challenged by one of the opposing parties in
some meaningful manner. This challenge becomes essentially one
of sufficiency of the evidence.
¶16 When faced with questions about proceedings in the
trial court that are not adequately challenged on appeal, we
apply a presumption of regularity.6 Unless an opponent on appeal
meets the burden of demonstrating the failure of the evidence to
support the action taken by the trial court, we assume the
evidence and process employed were sufficient.7 To mount a
meaningful challenge to the factual findings of a trial court,
the challenging party must accumulate all of the supportive
evidence and convince us that the factual findings relied upon by
the trial court are clearly erroneous based upon the most
supportive interpretation of the evidence.8 The Solomons fail to
mount such a challenge.

9 Utah Code Ann. § 78-30-4.14(4)(a)(ii) (emphasis added).
10 2006 UT 64, 148 P.3d 927.
Nos. 20060581, 20060582 6
¶17 We grant trial courts broad discretion within the
statutory framework to determine if certain behavior complies
with statutory requirements. The statute in question asked the
juvenile court to determine whether Mr. Barnes had provided
“financial support of [Connor] of a fair and reasonable sum [and]
in accordance with [his] ability.”9 This illustrates the factual
balancing the trial court must engage in and shows just how
factually sensitive the court’s ultimate legal conclusions are.
This type of fact-sensitive inquiry is exactly what the trial
court is best suited for. Consequently, we are reluctant to
substitute our own judgment for that of the trial court unless
compelled by the law and facts to do so.
¶18 We defer, in this case, to the judgment of the trial
court. The trial court acted within its grant of discretion when
it concluded that Mr. Barnes had strictly complied with the
requirements of Utah Code section 78-30-4.14 and that he
therefore had standing to contest the adoption. Strict
compliance does not require more than fully meeting each test
imposed by the statute. Support of a “fair and reasonable sum”
is established by reference to the facts of the individual case
and turns in significant part on the overall balance applied by
the trial court. We are not compelled to upset that balance
here.
II. CUSTODY ORDER
¶19 Once it concluded that Mr. Barnes had standing to
contest the adoption, the juvenile court had no choice other than
to dismiss the adoption petition pursuant to Utah Code section
78-30-4.14. The juvenile court then convened a custody hearing
as required by Utah Code section 78-30-4.16. After an
evidentiary hearing, the juvenile court order granted the
Solomons permanent physical custody and, along with Mr. Barnes,
joint legal custody.
¶20 Our recent decision in A.N. v. N.I.W. (In re P.N.)10
controls. In a case very similar to this, we said, “Use of [Utah
Code section 78-30-4.16] to award permanent custody through a
best interest analysis, when such use would deprive fit parents

11 Id. ¶ 14.
12 Id. ¶ 15.
13 Id. ¶ 13.
14 Id. ¶¶ 14-15.
15 Id. ¶ 8.
16 Id. ¶ 15.
7 Nos. 20060581, 20060582
of custody and visitation, would in all likelihood create
constitutional problems . . . .”11 We concluded that section
78-30-4.16(2)(b) “cannot be used to give permanent custody of a
child to legal strangers, which is what the [adoptive parents]
became once the court dismissed their petition for adoption.”12
¶21 In P.N., we reviewed a failed adoption where the
unmarried biological father was not willing to consent. We noted
that the statute required the trial court to dismiss the adoption
petition and to promptly hold a hearing to determine the
temporary custody arrangements for the child.13 The trial court
was not at liberty to disregard the biological father’s rights to
custody of his child in favor of the failed-adoptive parents.14
The biological father had not been determined to be an unfit
parent, nor had his parental rights been terminated or diminished
in any way.15 The failed-adoptive parents, once the petition for
adoption had been dismissed, became legal strangers to the child
and could no longer claim any rights to custody, control, or
other access to the child.16
¶22 The purpose of the custody hearing provided for in the
adoption statute is to establish the immediate custody of the
child for only so long as it may take to transition the legal
custody back to the biological fit parent or parents. While the
best interests of the child are important at this stage, they
apply only so far as to inform the transition plans, not to
circumvent them.
¶23 In the case before us, the juvenile court granted
permanent physical custody to the Solomons, with joint legal
custody and visitation rights to Mr. Barnes. This is not
permissible. Absent a determination that Mr. Barnes is an unfit
parent, he has a right to full legal and physical custody of
Connor that is superior to the Solomons. With the status of
failed-adoptive parents, the Solomons become legal strangers to
Connor, and the trial court has no authority to vest in them
anything other than the most transitory custody and guardianship

17 See id.
Nos. 20060581, 20060582 8
of Connor. The court must arrange for Connor’s return to his
biological father with all due haste, subject only to those few
significant concerns that Connor make the transition with minimum
harm.
¶24 As guidance to the juvenile court on remand, and to
other courts facing the same question, we note that once an
unmarried biological father has established standing to contest,
and does in fact contest, an adoption, the level of bonding
between child and anyone other than the biological parents
becomes legally irrelevant. Unless the biological father is
found to be unfit, and his parental rights terminated, his rights
to the child are superior to anyone other than a contesting
biological mother, with whom his rights may be equal.17
CONCLUSION
¶25 Accordingly, we affirm the judgment of the juvenile
court that the unmarried biological father had standing to
contest the proposed adoption of Connor by the Solomons, and we
vacate the juvenile court’s order of joint legal custody. We
remand to the juvenile court for an immediate hearing for the
sole purpose of arranging the prompt and safe transition of
Connor to the custody and control of his biological father.
¶26 In a situation such as this where the parties’ love and
concern for the child is unquestioned, but where their views of
what is best for the child differ, we anticipate that counsel and
trial courts will make every reasonable effort to dissuade
parties from investing unwarranted time, emotion, and resources
in further legal proceedings. While this approach is no doubt
difficult for those good and anxious people seeking to adopt a
child, and equally so for biological parents who find themselves
in such a situation, it is of real value to no one, especially
the child, to have the outcome prolonged when the policy of the
law is clear and its application certain.
¶27 We anticipate that, in the future, every effort will be
made to avoid delay in cases like this. Such efforts should
include requests to the appellate courts for expedited appeal
when appropriate. We also anticipate that counsel will stay
fully abreast of the case law so they can properly advise their
clients as to the best way to proceed.
¶28 This is a difficult and painful case for all. However,
the law is clear, and the policy of the law as set by the

9 Nos. 20060581, 20060582
legislature is clear. The result we announce today is required
by the law. We encourage the Solomons and Mr. Barnes to pay
special attention to the needs of this small child. This
transition may be hardest for him, and his needs must come first.
¶29 Affirmed as to standing, vacated and remanded as to
custody.
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¶30 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins’
opinion.