This opinion is subject to revision before 

publication in the Pacific Reporter

2015 UT 35

IN THE

SUPREME COURT OF THE STATE OF UTAH

———————

In the Matter of the Adoption of J.M.S., a minor

———————

JACOB DAVID BROOKS,

Intervenor/Appellant,

v.

A.S. and J.S.,

Appellees.

———————

No. 20120683

Filed February 6, 2015

Fourth District, Provo Dep‘t

The Honorable Fred D. Howard

No. 122400005

Attorneys:

Wesley D. Hutchins, West Jordan, for appellant

Larry S. Jenkins, Lance D. Rich, Salt Lake City, for appellees

William C. Duncan, Lehi, amicus curiae, for Sutherland Institute

JUSTICE LEE authored the opinion of the Court, in which 

CHIEF JUSTICE DURRANT, and JUSTICE PARRISH joined.

ASSOCIATE CHIEF JUSTICE NEHRING filed a concurring opinion.1

JUSTICE DURHAM filed a dissenting opinion.

JUSTICE LEE, opinion of the Court:

¶1 This case, like Nevares v. M.L.S., 2015 UT 34, presents questions concerning the applicability and constitutionality of Utah 

Code section 78B-6-111. That provision forbids a biological father 

 

1 Associate Chief Justice Nehring acted on this case prior to his 

retirement.
IN RE ADOPTION OF J.M.S.

Opinion of the Court

2

from challenging an adoption when his child was conceived as a 

result of conduct that ―would constitute any sexual offense‖ described in the Utah Criminal Code. In this case and in Nevares, the 

statutory question presented is whether this provision can properly be construed to encompass sexual conduct in another state that 

would have been criminal if engaged in in Utah. And in both cases the biological father also asserts that such application of section 

111 would violate his constitutional right to due process of law. 

¶2 We resolve this case on the basis of our opinion in Nevares. 

We hold that the ―sexual offense[s]‖ described in section 111 do 

not encompass activities outside of Utah involving non-Utahns. 

And on the basis of that conclusion, we reverse the denial of the 

father‘s petition to intervene and remand for further proceedings 

not inconsistent with this opinion.

I

¶3 Jacob David Brooks and the birth mother, both Pennsylvania residents, conceived a child together in Pennsylvania. At the 

time, Brooks was eighteen and the birth mother was fourteen. Due 

to this age difference, the sexual relationship between the two of 

them was prohibited by Pennsylvania criminal law. See 18 PA.

CONS. STAT. § 3122.1 (2014) (statutory sexual assault); id.

§ 3123(a)(7) (involuntary deviate sexual intercourse); id.

§ 3126(a)(8) (indecent assault). Brooks was later charged in Pennsylvania with statutory sexual assault and corruption of minors, 

but pled guilty to indecent assault, a misdemeanor.

¶4 Meanwhile, the birth mother made preparations to place 

the child for adoption in Utah. Brooks objected to these designs,

though it is unclear whether he knew the planned location for the 

adoption. In time, the child was born and then relinquished for 

adoption twenty-four hours later. The adoptive parents filed an 

adoption petition in Utah, which Brooks became aware of two 

weeks later. Brooks subsequently filed paternity documents in 

both Utah and Pennsylvania, as well as a motion to intervene in 

the Utah adoption proceedings.

¶5 The Fourth District Court denied Brooks‘s motion to intervene, citing Utah Code section 78B-6-111. This section states,

A biological father is not entitled to notice of an 

adoption proceeding, nor is the consent of a biological father required in connection with an adoption 
Cite as: 2015 UT 35

Opinion of the Court

3

proceeding, in cases where it is shown that the child 

who is the subject of the proceeding was conceived 

as a result of conduct which would constitute any 

sexual offense described in Title 76, Chapter 5, 

Part 4, regardless of whether the biological father is 

formally charged with or convicted of a criminal offense.

Id. (emphasis added). According to the district court, Brooks‘s 

conduct constituted a sexual crime under Utah Code section 76-5-

401, placing his conduct within section 78B-6-111‘s reach. For this 

reason, the district court found that Brooks had no right to contest 

the adoption. It thus denied his motion to intervene on that basis.

¶6 Brooks filed this appeal. In challenging the denial of his 

motion to intervene, Brooks raises legal questions concerning the 

interpretation and constitutionality of section 111. Our review is 

accordingly de novo. See Manzanares v. Byington (In re Adoption of 

Baby B.), 2012 UT 35, ¶ 41, 308 P.3d 382.

II

¶7 A threshold question is whether the interpretation and 

constitutionality of section 111 are properly before us on appeal. 

That question implicates the law of preservation and of adequate 

briefing. For reasons set forth below, we hold that Brooks preserved these issues in the district court and adequately briefed 

them on appeal to this court.

¶8 First, both the statutory and constitutional aspects of 

Brooks‘s case were presented to the district court. In a memorandum filed with the district court, Brooks asserted that the key 

question is ―whether Utah or Pennsylvania law applies‖ and argued that ―Pennsylvania law should apply to this case.‖ Later, at 

his hearing, Brooks argued that section 111 was ―unconstitutional 

from a due process standpoint.‖ And although he framed his constitutional arguments generally in terms of a concern about ―forum shopping,‖ he also asserted that a statute employed to ―cut 

him out‖ of his parental rights was a ―violation of due process.‖

¶9 Brooks‘s counsel‘s statutory and constitutional arguments 

in the district court were relatively superficial. Thus, instead of 

presenting a careful analysis of the questions of statutory and constitutional interpretation presented, Brooks‘s counsel devoted 

most of his energy to developing a factual record of what he saw 
IN RE ADOPTION OF J.M.S.

Opinion of the Court

4

as the misdeeds of the adoption agency officials involved in the 

case. Specifically, in the district court and again on appeal, counsel presented extensive transcripts of telephone calls to the adoption agency, highlighting what counsel saw as the overly aggressive assertions and positions taken by the agency‘s representatives.2 That tack was unproductive. Counsel would have been far 

better served staying focused on the legal questions at issue; the 

attempt to smear an opponent with a sideshow based on a sting 

operation was unhelpful.

¶10 That said, the legal questions presented are important, and 

counsel adequately preserved them below. Brooks raised both 

statutory and constitutional questions in the district court, and we 

therefore deem them preserved for purposes of appeal.

¶11 We likewise find these issues adequately briefed on appeal. 

In his opening brief on appeal, Brooks asserted that ―the essence 

of the case‖ is that ―[a]ppellees should not be permitted to rely on 

78B-6-111, when Pennsylvania law should apply.‖ And appellees, 

in their brief, responded to his statutory argument at some length. 

They asserted that ―nothing in the language of Section 78B-6-111 

limits its application to cases where the child was conceived in 

Utah,‖ while insisting that ―[w]hat is important is whether the father‘s sexual relationship with the birth mother consists of the 

type of conduct described under Title 76, Chapter 5, Part 4 of the 

Utah Code.‖ That is the key statutory question in this case (and in 

Nevares).

¶12 The constitutional arguments were also advanced on appeal. Brooks asserted that even if his relationship could constitute 

a sexual offense in Utah, ―he nevertheless has a due process right

and other constitutionally protected rights relating to his rights to 

parent his biological child.‖ The point was made even more forcefully at oral argument, where counsel asserted that ―[t]his case re-

 

2 Brooks‘s counsel apparently saw this as an opportunity to 

sway judicial sympathy in his favor. That was a misjudgment on 

his part. This is a court of law. And as judges we decide the cases 

that come before us in accordance with the governing provisions 

of the law, and not based on our sympathy for one of the parties 

or hostility toward another. Blatant attempts to stir bias against an 

opponent will often backfire.
Cite as: 2015 UT 35

Opinion of the Court

5

ally revolves around . . . whether or not a sex crime . . . obviates 

any need whatsoever to give notice and an opportunity to be 

heard to an out-of-state biological father,‖ and that denying 

Brooks‘s right to intervene ―violates . . . due process‖ because 

―none of the parties had any connection whatsoever to Utah.‖ 

¶13 The briefing on the constitutional implications of section 

111 was by no mean robust. But the constitutional question was 

presented, and an analysis of that issue aids our analysis of the 

threshold statutory question, which is properly preserved and argued on appeal. We accordingly proceed to the merits.

III

¶14 The threshold question presented is whether Utah Code 

section 78B-6-111 applies to the sexual activity between Brooks 

and the birth mother of J.M.S. That provision forecloses the parental rights of a biological father where ―the child who is the subject 

of the proceeding was conceived as a result of conduct which 

would constitute any sexual offense described in Title 76, Chapter 

5, Part 4, regardless of whether the biological father is formally 

charged with or convicted of a criminal offense.‖ UTAH CODE § 

78B-6-111. The district court denied Brooks‘s motion to intervene 

on the ground that his child was ―conceived as a result of conduct 

which would constitute‖ a sexual offense under Utah law.

¶15 We reverse on the ground that section 111 does not apply 

in this case. This conclusion follows from our analysis in Nevares 

v. M.L.S., 2015 UT 34, ¶¶ 27–43, __P.3d__. As we concluded there, 

―section 111 is not implicated where, as here, the conduct in question could not have  ̳constitute[d] a sexual offense‘ under the referenced part of the Utah code because the activity involved nonUtahns outside of Utah, and thus could not have sustained a criminal charge under Title 76, Chapter 5, Part 4.‖ Id. ¶ 28 (alteration in 

original). 

¶16 Our Nevares opinion based that determination on three 

grounds: ―(1) the statute‘s  ̳regardless‘ clause, which suggests 

(when read in light of semantic canons of construction) that all 

matters sufficient to sustain a  ̳formal[] charge[]‘ or  ̳convict[ion]‘ 

must be established to trigger section 111; (2) the well-settled presumption against extraterritorial application of statutory provisions, which counsels in favor of limiting section 111 to offenses 

committed in Utah even if the statute were silent regarding its ap-
IN RE ADOPTION OF J.M.S.

Opinion of the Court

6

plication to conduct outside of Utah;3 and (3) the canon of constitutional avoidance, which counsels in favor of limiting section 111 

to offenses committed in Utah in light of the grave due process 

problems4 associated with‖ the contrary construction.5 Id. ¶¶ 30–

46 (alterations in original). 

 

3 The concurrence asserts that section 111 ―is not being applied 

extraterritorially‖ because it is ―being applied within the state of 

Utah to a Utah adoption proceeding.‖ Infra ¶ 25. But the conclusion does not follow from the premise. Most any question of extraterritoriality arises in a case in which a litigant is seeking to apply the forum state‘s law to another litigant‘s extraterritorial activity. See Nevares, 2015 UT 34, ¶ 35 (citing U.S. Bond & Fin. Corp. v. 

Nat’l Bldg. & Loan Ass’n of Am., 17 P.2d 238, 239 (Utah 1932) (declining to apply Utah securities laws to ―a contract made and executed in another state‖)); Morrison v. Nat’l Austl. Bank Ltd., 561 

U.S. 247, 262–65 (2010) (holding that anti-fraud provision of federal securities statute did not apply extraterritorially to case involving foreign plaintiffs suing foreign and American defendants in 

federal court); State v. Reed, 709 P.2d 391, 392 (Utah 1985) (declining to give extraterritorial effect to Utah sentencing provision regarding concurrent sentences in case involving defendant subject 

to simultaneous sentence in California). Our holding, moreover, 

does not at all foreclose the application of Utah ―adoption statutes‖ to a case involving ―non-resident parents.‖ Infra ¶ 25. Instead, as explained in Nevares, Utah adoption law remains intact 

and is properly applicable. See Nevares, 2015 UT 34, ¶ 49 & n.19. 

We simply construe section 111—a ―law regulating sexual activity‖—not to apply. Id. ¶ 49. And in its place we conclude that 

Pennsylvania law could be invoked, and that Utah adoption law 

would govern in all other respects. See id; infra ¶ 18.

4 The dissent misperceives our analysis on this point. We reach 

no firm due process holding in Nevares; our point is simply that 

the application of section 111 to conduct lacking any jurisdictional 

nexus to Utah would introduce serious due process concerns. 2015 

UT 34, ¶ 43. Our approach here is identical. Thus, we do not hold 

that that the extraterritorial application of section 111 violates the 

Due Process Clause, much less that ―the state of Utah may be unable to make its own judgment as to whether Mr. Brooks‘s crime 

should disqualify him from intervening.‖ Infra ¶ 37 (Durham, J., 
Cite as: 2015 UT 35

Opinion of the Court

7

¶17 This analysis suffices to reverse the district court‘s determination in this case. Because section 111 has no application to 

Brooks‘s sexual activity in Pennsylvania, the district court erred in 

denying his motion to intervene under this provision.

IV

¶18 We reverse and remand on the basis of the above conclusions. In so doing, we do not hold that Brooks‘s motion should 

have been granted. We simply conclude that Utah Code section 

78B-6-111 should not be read to foreclose his parental rights. And 

because we interpret section 111 not to apply to sexual conduct 

lacking any jurisdictional nexus to Utah, we need not and do not 

reach the substantive due process question addressed by the dissent. Infra ¶ 33.

¶19 In Nevares, we acknowledged the existence of legal means 

other than section 111 for a birth mother or adoptive parent to 

seek to terminate a father‘s parental rights on the basis of sexual 

misconduct. 2015 UT 34, ¶¶ 48–50. We concluded, specifically, 

that the law of the state in which a child was conceived could apply insofar as it provides for the termination of parental rights of a 

 

dissenting). Our holding is rooted in our interpretation of section 

111. We leave for another day the question of the legislature‘s 

constitutional authority to dictate the effect of criminal activity on 

a father‘s right to intervene. And, as explained below, we identify 

provisions of Pennsylvania and Utah law that may operate in cases, like this one, where section 111 is inapplicable. See infra ¶ 18; 

Nevares, 2015 UT 34, ¶¶ 48–49 (articulating a choice of law basis 

for application of provisions of Utah law and of the state in which 

the father‘s sexual activity occurred).

5 The concurrence criticizes our approach—of offering both an 

interpretation of the terms of section 111 and a constitutional 

avoidance argument as an alternative—as somehow a ―disservice‖ to the ―legal community.‖ Infra ¶ 27. We see it differently. 

Alternative arguments have long been a standard convention in 

judicial opinions. They often aid in elucidating multiple points 

that combine to persuade the court of the basis for its conclusion. 

We present them in that spirit here.
IN RE ADOPTION OF J.M.S.

Opinion of the Court

8

father of a child conceived as a result of criminal misconduct.6

Id. ¶¶ 48–49. Here the applicable law would be a Pennsylvania 

statute, 23 PA. CONS. STAT. § 2511 (2014). That provision has not 

yet been invoked in this case, but we flag it as potentially applicable if the parties should wish to raise it on remand.

¶20 For this reason, we see no basis for the dissent‘s conclusion 

that ―Mr. Brooks‘s sexual contact with J.M.S.‘s mother was a serious felony where it occurred.‖ Infra ¶ 33. Brooks has never been 

afforded any due process on that matter. He pled guilty to a lesser 

offense in Pennsylvania. But no court has ever determined whether he committed an offense triggering 23 PA. CONS. STAT. § 2511

(2014). We leave the matter for further proceedings on remand. 

And, if the parties raise this question, we note that the matter 

would be subject to proof by clear and convincing evidence. See 

Santosky v. Kramer, 455 U.S. 745, 756–57 (1982) (requiring proof of 

grounds for termination of parental rights by ―clear and convincing evidence‖).

 

6 Our holding does not ―ignore[] the weighty interests at stake 

for the state of Utah‖ in an adoption proceeding, or foreclose the 

possibility of an amendment to section 111 aimed at protecting the 

interests identified by the dissent. Infra ¶ 36. Our holding here 

and in Nevares is based purely in statutory interpretation. So we 

do not foreclose the legislature‘s right to legislate in this important 

field. The legislature may make amendments as it sees fit—

subject, of course, to the limitations of the constitution (which we 

do not resolve conclusively in these cases).
Cite as: 2015 UT 35

A.C.J. NEHRING, concurring

9

¶21 In remanding, we express no view as to the viability of any 

challenge raised under the cited Pennsylvania provision. And we 

resolve no other issues and express no view as to any other 

grounds that respondents may advance in response to Brooks‘s

motion or that may arise in any subsequent proceedings regarding the adoption of the child in question.7

ASSOCIATE CHIEF JUSTICE NEHRING, concurring in judgment:

¶22 I respectfully concur in the judgment only. I disagree 

with the majority‘s interpretation of Utah Code section 78B-6-111. 

I believe the statute is ambiguous and therefore I would use the 

doctrine of constitutional avoidance to hold that section 111 applies only to conduct committed in-state.

¶23 First, unlike the majority, I do not believe the statute is 

elucidated by recourse to the expressio unius est exclusio alterius

canon.8 The majority‘s strained use of that canon makes it abun-

 

7 See, e.g., UTAH CODE § 78B-6-133(1) (calling for assessment of 

―whether proper grounds exist for the termination of . . . [parental] rights‖ of a person ―whose consent for an adoption is required‖); id. § 78B-6-133(2)(b), (3) (if parental rights are not terminated, calling for ―an evidentiary hearing to determine who 

should have custody of the child‖ based on ―the child‘s best interest,‖ and considering ―evidence of psychological or emotional 

bonds that the child has formed with a third person, including the 

prospective adoptive parent,‖ and ―any detriment that a change 

in custody may cause the child‖); id. § 78B-6-133(5) (noting that a 

―custody order entered pursuant to this section may . . . (a) include provisions for: (i) parent-time; or (ii) visitation by an interested third party; and (b) provide for the financial support of the 

child‖).

8 Because the relevant analysis in the instant case is incorporated by reference but actually appears in a separate case that also 

issued today, Nevares v. M.L.S., 2015 UT 34, __ P.3d.__, I will cite 

Nevares throughout. See supra ¶ 15 (―We reverse on the ground 

that section 111 does not apply in this case. This conclusion follows from our analysis in Nevares . . . .‖); see also supra ¶ 16 (sum-
IN RE ADOPTION OF J.M.S.

A.C.J. NEHRING, concurring

10

dantly clear that though antiquated latin maxims are sometimes

―useful guides,‖ they make very ―poor masters‖ and ―should not 

be regarded as having any such rigidity as to . . . distort an otherwise natural meaning or intent.‖9 The statute states that it applies 

to “conduct . . . described in [Chapter 5, Part 4 of the Criminal 

Code], regardless of whether‖ such conduct is ―formally‖ charged 

or results in a ―convict[ion].‖10 The natural reading of this language is precisely the opposite of what the majority concludes.11 

In other words, the clearest way to read the statute as a whole is to 

say that the relevant conduct need not be susceptible to a formal 

charge and need not result in a conviction. Surely the legislature 

did not add the ―convict[ion]‖ caveat in order to get at innocent 

fathers—rather, it seems likely that they added that word to indicate that the provision applies to conduct, separate and independent of the requirements of criminal procedure. Yet the majority 

cites the expressio unius canon to conclude that the ―regardless‖ 

clause somehow means that the conduct must meet every requirement for a formal charge except that of actually being 

 

marizing and incorporating the Nevares analysis, without additional explanation).

9 Salt Lake City v. Salt Lake Cnty., 568 P.2d 738, 741 (Utah 1977). 

See also BLACK‘S LAW DICTIONARY 661-62 (9th ed. 2009) (―Several 

Latin maxims masquerade as rules of interpretation while doing 

nothing more than describing results reached by other means. 

The best example is probably expressio unius est exclusio alterius, 

which is a rather elaborate, mysterious sounding, and anachronistic way of describing the negative implication. Far from being a 

rule, it is not even lexicographically accurate, because it is simply not 

true, generally, that the mere express conferral of a right or privilege in one kind of situation implies the denial of the equivalent 

right or privilege in other kinds. Sometimes it does and sometimes it does not, and whether it does or does not depends on the 

particular circumstances of context.‖ (second emphasis added) 

(internal quotation marks omitted)).

10 UTAH CODE § 78B-6-111 (emphasis added).

11 See id.; supra ¶ 15; Nevares, 2015 UT 34, ¶ 32.
Cite as: 2015 UT 35

A.C.J. NEHRING, concurring

11

charged.12 This seems to me a highly unnatural way to read the 

statutory language. 

¶24 Canons of construction ―are not formulaic, dispositive 

indicators of statutory meaning. They are merely tools that guide 

our construction of statutes in accordance with common, ordinary 

usage and understanding of language . . . .‖13 The majority employs expressio unius to read into the statute a requirement that ―all

matters sufficient to sustain a  ̳formal[] charge[]‘ or  ̳convict[ion]‘ 

must be established.‖14 I do not agree with that interpretation. I 

think the majority has placed more weight on the canon of expressio unius than the concept can reasonably bear. The majority‘s use 

of the expressio unius canon forces it to diverge significantly from 

the common, ordinary way one would read section 111, and I 

cannot agree with that analysis.

¶25 Second, I cannot join the majority in its analysis of the 

―presumption against extraterritorial effect.‖15 While there may 

be a presumption against applying statutes extraterritorially, Utah 

Code section 78B-6-111 is not being applied extraterritorially. It is 

being applied within the state of Utah to a Utah adoption proceeding. The majority‘s reasoning on this point strikes me as both 

unpersuasive and deeply concerning. The notion that Utah adoption statutes are applied ―extraterritorially‖ when they are applied 

to nonresident parents is dangerous and inaccurate. We have 

long held that Utah adoption law properly controls an adoption 

within the state and I cannot join the majority‘s suggestion to the 

contrary. I also object, generally, to the idea that we should delve 

into the supposed ―backdrop‖ against which legislators make 

law.16 Unlike the majority in this case and Nevares, I would not 

ascribe any ―intuitive sense‖ to the Utah Legislature,17 but would 

instead rely on our well-established rules of statutory interpreta-

 

12 Supra ¶ 16; Nevares, 2015 UT 34, ¶¶ 30–32.

13 Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 19, 248 P.3d 465.

14 Supra ¶ 16 (alterations in original); Nevares, 2015 UT 34, ¶ 30.

15 Nevares, 2015 UT 34, ¶¶ 35–36; supra ¶ 16.

16 Nevares, 2015 UT 34, ¶ 36; supra ¶ 16 (incorporating Nevares 

analysis).

17 Nevares, 2015 UT 34, ¶ 36.
IN RE ADOPTION OF J.M.S.

A.C.J. NEHRING, concurring

12

tion, chief among which is that the ―best evidence of the legislature‘s intent is the plain language of the statute itself.‖18

¶26 Mr. Brooks does not directly address whether section 

78B-6-111 applies to unwed fathers whose conduct in conceiving a

child occurred outside of Utah, beyond stating that ―Pennsylvania 

law should apply‖—a statement that enjoys no ―reasoned analysis‖ or relevant authority,19 but on the basis of which the majority 

―deem[s]‖ the issue both ―preserved‖ and ―adequately briefed.‖20 

Though Mr. Brooks only barely raised the argument, the majority 

notes that ―appellees, in their brief, responded . . . at some 

length.‖21 In my view, it is not fair to allow an appellant to 

―dump the burden of argument and research‖22 on his opponent 

and the court. Though I would reach the question of section 111‘s 

applicability as necessary to the resolution of the case, I would not 

characterize this issue as preserved23 or adequately briefed, because it was neither.

 

18 Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 

267 P.3d 863 (internal quotation marks omitted).

19 Hess v. Canberra Dev. Co., 2011 UT 22, ¶ 25, 254 P.3d 161 

(warning that to ―satisfy our adequate briefing requirement,‖ a 

brief ―must go beyond providing conclusory statements and fully 

identify, analyze, and cite its legal arguments‖ (internal quotation 

marks omitted)).

20 Supra ¶¶ 10–11.

21 Supra ¶ 11.

22 Hess, 2011 UT 22, ¶ 25 (internal quotation marks omitted).

23 See Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (―An 

issue is preserved for appeal when it has been presented to the 

district court in such a way that the court has an opportunity to 

rule on [it].‖ (alteration in original) (internal quotation marks 

omitted)). Because Mr. Brooks‘s due process argument was preserved, I would hold that we can address the question of Utah 

Code section 78B-6-111‘s applicability because it ―bears upon the 

ultimate resolution‖ of an issue that has ―properly been preserved‖ and is thus ―necessary to a proper decision.‖ Id. ¶¶ 18, 20.
Cite as: 2015 UT 35

A.C.J. NEHRING, concurring

13

¶27 I would hold that Utah Code section 78B-6-111 is ambiguous. When construing ambiguous statutes, we attempt to ―avoid 

interpretations that conflict with relevant constitutional mandates.‖24 This is a reflection of our duty to read ―validity, constitutionality and sense‖ into an ambiguous statute, ―if possible.‖25 

But we must employ the principle of constitutional avoidance 

cautiously. Over-zealous use of constitutional avoidance runs the 

risk of trampling on the intent of the legislature. In other words, 

―in the guise of judicial restraint the Court ought not to intrude 

upon the other branches.‖26 Though a statute may present a serious constitutional problem, this alone ―ought not to drive [the 

court] to an incorrect interpretation of the statute.‖27 Therefore, 

the constitutional doubt rule must only be used when a statute is 

susceptible to competing constructions that are ―fairly possible.‖28 

While I believe this is such a situation, I think the majority‘s use of 

the doctrine is inappropriate. The doctrine poses a great risk of 

misuse, and should only be employed when the court finds that a 

statute is genuinely susceptible to two constructions—but the majority does not do this. In my view, the majority should first 

acknowledge the statute‘s ambiguity and proceed with a constitutional avoidance analysis from there. The majority does the legal 

community a disservice by purporting to entertain two conflicting 

methods of statutory interpretation.29 The statute is either ambiguous or it is not. I believe it is.

 

24 State v. Mooney, 2004 UT 49, ¶ 12, 98 P.3d 420 (internal quotation marks omitted).

25 Munsee v. Munsee, 363 P.2d 71, 85 (Utah 1961); see also Utah 

State Rd. Comm’n v. Friberg, 687 P.2d 821, 831 (Utah 1984).

26 Zadvydas v. Davis, 533 U.S. 678, 705 (2001) (Kennedy, J., dissenting); Utah Dep’t of Transp. v. Carlson, 2014 UT 24, ¶ 24, 332 

P.3d 900 (―[F]or the constitutional avoidance canon to even apply, 

the statute must be genuinely susceptible to two constructions 

. . . .‖ (internal quotation marks omitted)).

27 Zadvydas, 533 U.S. at 705-06 (Kennedy, J., dissenting).

28 Id. at 707 (internal quotation marks omitted).

29 I fail to see why the court would want to set out multiple 

mutually-exclusive theories of statutory meaning in order to ―elu-
IN RE ADOPTION OF J.M.S.

A.C.J. NEHRING, concurring

14

¶28 There are two ways of viewing Utah Code section 78B-6-

111. It could be read simply to apply to those who commit conduct that meets the elements of any of the twelve listed ―sexual 

offenses‖ described in Chapter 5, Part 4, of the Utah Criminal 

Code.30 But it could also be read to apply only to conduct that 

would actually be capable of prosecution as a crime in Utah. Section 

111 states that 

[a] biological father is not entitled to notice of an 

adoption proceeding, nor is [his] consent . . . required 

in cases where it is shown that the child who is the 

subject of the proceeding was conceived as a result of 

conduct which would constitute any sexual offense described in Title 76, Chapter 5, Part 4, regardless of 

whether the biological father is formally charged with 

or convicted of a criminal offense.31

Here, the word ―would‖—which implies conditionality32—is ambiguous. The use of ―would‖ could be read to indicate that the 

section applies to any father who conceives a child by way of the 

conduct listed in Chapter 5, Part 4, wherever it occurs. But the 

word ―would‖ might have been included to reflect the fact that

the statute applies to conduct that ―would‖ be a crime ―regardless‖ of whether the father were formally charged and convicted

in Utah—and thus the statute might mean that the relevant ―conduct‖ must at least be susceptible to formal charges in Utah, 

 

cidat[e] multiple points that combine to persuade the court of the 

basis for its conclusion.‖ Supra ¶ 16 n.5. One correct theory is persuasive enough. The court should simply ―say what the law is,‖

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)—not provide 

three different theories of what the law might be.

30 See UTAH CODE §§ 76-5-401 to -415 (outlining twelve criminal 

sexual offenses, including ―unlawful sexual activity with a minor,‖ ―rape,‖ ―rape of a child,‖ ―object rape,‖ ―forcible sodomy,‖ 

―forcible sexual abuse,‖ ―aggravated sexual assault‖ and other related crimes).

31 Id. § 78B-6-111 (emphasis added).

32 WEBSTER‘S THIRD NEW INT‘L DICTIONARY 2637-38 (1961) (defining the word ―would‖ and explaining that it is used ―to express 

a contingency or a possibility‖).
Cite as: 2015 UT 35

A.C.J. NEHRING, concurring

15

meaning it would have to occur either ―wholly or partly‖ in 

Utah.

33 In other words, the statutory language can plausibly be 

read to apply to either (1) any conduct that simply fits the descriptions contained in Chapter 5, Part 4 of the Utah Criminal Code, 

regardless of where that conduct occurred; or (2) conduct that is 

actually capable of prosecution as a crime in Utah, meaning conduct which was committed wholly or partly in the state of Utah—

regardless of whether the conduct was formally charged.

34

¶29 I would hold that Utah Code section 78B-6-111 is ambiguous, and would thus proceed under the doctrine of constitutional avoidance to conclude that section 111 must be read to apply 

only to in-state conduct.35 If Utah Code section 78B-6-111 is read 

to apply to conduct that occurs outside of Utah, it poses a serious 

constitutional problem. The Due Process Clauses of the Fifth and 

Fourteenth Amendments ―impose[] constraints on governmental 

decisions which deprive individuals of  ̳liberty‘ or  ̳property‘ interests.‖36 Individuals have a right to fair notice37 and an opportunity ―to be heard before being condemned to suffer grievous 

loss of any kind.‖38 Moreover, the more important the threatened 

interest, the more vigorous the procedural protection that is required under the law. The loss of one‘s children is one of the most 

―grievous‖ losses a person can suffer, and indeed, it is ―plain be-

 

33 UTAH CODE §§ 78B-6-111, 76-1-201. I believe this ambiguity 

stems from the phase ―would constitute.‖ As explained, I do not 

agree that the expressio unius canon has any relevance here.

34 See UTAH CODE § 76-1-201(5)(c) (explaining that the ―burden 

is upon the state to initially establish jurisdiction over [a criminal] 

offense . . . by showing . . . the offense was committed either wholly or partly within the borders of the state‖).

35 To that extent, I agree with the majority in this case and Nevares, that a ―serious due process question[] would arise‖ if 

Mr. Brooks‘s parental rights were to be forfeited by section 111. 

Nevares, 2015 UT 34, ¶ 41; see supra ¶ 16. 

36 Mathews v. Eldridge, 424 U.S. 319, 332 (1976).

37 See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 

314 (1950).

38 Mathews, 424 U.S. at 333.
IN RE ADOPTION OF J.M.S.

A.C.J. NEHRING, concurring

16

yond the need for multiple citation‖ that a parent‘s interest in his 

or her children is ―far more precious than any property right.‖39 

¶30 Because an unwed father‘s act of engaging in sexual 

conduct in his home state is almost certainly done without notice 

that he will be subject to the adoption laws of another state, I believe that section 111 poses a serious due process problem if it is 

applied to such out-of-state fathers, especially where section 111 

simply cuts off the father‘s parental rights. Mr. Brooks, for example, committed criminal conduct under Pennsylvania law when 

he engaged in sexual intercourse with the child‘s mother; however, under Pennsylvania law it appears that he may still have been 

able to intervene in a subsequent adoption proceeding, despite the 

criminal circumstances of the conception.40 Thus, under the law 

of Pennsylvania—the only state whose laws he had notice would 

be applied to him, Mr. Brooks‘s parental rights were not foreclosed at the threshold as they would be under section 111 in 

Utah. Recognizing the fundamental nature of the parental right, I 

would avoid such problems by adopting the second, equally 

 

39 Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (internal quotation marks omitted).

40 See 23 PA. CONS. STAT. § 2711(a) (2014) (stating that ―consent 

to an adoption shall be required of . . . [t]he parents or surviving 

parent of an adoptee who has not reached the age of 18 years‖); id. 

§ 2714 (―Consent of a parent to adoption shall not be required . . . 

if, after notice and hearing[,] . . . the court finds that grounds exist 

for involuntary termination . . . .‖); id. § 2511(a)(7) (2014) (grounds 

for involuntary termination include when ―the parent is the father 

of a child conceived as a result of a rape or incest‖); 18 PA. CONS.

STAT. § 3121(a) (2014) (defining rape as sexual intercourse ―by forcible compulsion,‖ ―threat of forcible compulsion,‖ or when the 

person is unconscious, substantially impaired, or mentally disabled); id § 3122.1(a) (2014) (defining ―[s]tatutory sexual assault‖ 

and explaining that ―[e]xcept as provided in section 3121 (relating to 

rape), a person commits a felony of the second degree when that 

person engages in sexual intercourse with a complainant to whom 

the person is not married who is under the age of 16 years and 

that person is . . . four years older but less than eight years older 

than the complainant‖ (emphasis added)).
Cite as: 2015 UT 35

A.C.J. NEHRING, concurring

17

plausible interpretation of section 111 and holding that it applies 

only to conduct within Utah.

¶31 I disagree with the majority‘s interpretation of Utah 

Code section 78B-6-111. Because I believe the statute is ambiguous, I would analyze it under the doctrine of constitutional avoidance. Accordingly, I respectfully concur in the judgment only.

JUSTICE DURHAM, dissenting:

¶32 As I explained in my concurrence in Nevares v. M.L.S., 

Utah Code section 78B-6-111 applies to all fathers whose paternal 

rights are based on a sex crime, regardless of whether they are 

subject to Utah‘s criminal jurisdiction. 2015 UT 34, ¶¶ 53–84,

__ P.3d __ (Durham, J., concurring in the result). It therefore applies to Mr. Brooks.

¶33 However, unlike the conduct of the father in Nevares, 

Mr. Brooks‘s sexual contact with J.M.S.‘s mother was a serious 

felony where it occurred. 18 PA. CONS. STAT. § 3122.1 (2014) (making statutory sexual assault a second-degree felony when the perpetrator is between four and eleven years older than the victim). 

For this reason, he cannot appeal to the same constitutional doctrines that protected the father in Nevares. As the Seventh Circuit 

explained in Peña v. Mattox,

[N]o court has gone so far as to hold that the mere 

fact of fatherhood, consequent upon a criminal act 

. . . [and] not cemented . . . by association with the 

child, creates an interest that the Constitution protects in the name of liberty. . . . The criminal does not 

acquire constitutional rights by his crime other than 

the procedural rights that the Constitution confers 

on criminal defendants.

84 F.3d 894, 900 (7th Cir. 1996). Thus, denying Mr. Brooks the 

right to contest J.M.S.‘s adoption does not infringe any of his constitutionally protected liberties and, therefore, does not violate the 

Due Process Clause.

¶34 The majority disagrees, suggesting that it may violate the 

Due Process Clause for Utah‘s criminal law to punish Mr. Brooks 
IN RE ADOPTION OF J.M.S.

J. DURHAM, dissenting

18

for the sexual assault he committed in Pennsylvania. Supra ¶ 16 & 

nn.3–5. This is correct and entirely sensible. Criminalizing 

Mr. Brooks‘s conduct, and punishing it, involved a host of difficult policy decisions: where to set the age limits on statutory rape, 

what penalty statutory rape should carry, whether people in 

Mr. Brooks‘s circumstances should be prosecuted, and what sort 

of plea deals they should be offered. Because Mr. Brooks‘s crime 

took place in Pennsylvania and affected—at the time—primarily 

citizens of Pennsylvania, these policy decisions rightfully belong 

to Pennsylvania.

¶35 But we are not deciding whether Mr. Brooks should be 

punished for the sexual assault he committed in Pennsylvania. Rather, we are deciding whether Mr. Brooks has a right to contest 

J.M.S.‘s adoption, and this decision involves a very different set of 

policy questions. Should a father like Mr. Brooks be barred from 

contesting an adoption because of any sexual offense, or merely 

because of a violent one? Should an actual conviction be required 

to foreclose his rights, or is it sufficient for the adoption court to 

find, by clear and convincing evidence, that his paternal rights 

rest on criminal conduct? What if he is convicted of a misdemeanor on a plea bargain, as Mr. Brooks was here, but the undisputed 

facts clearly satisfy the elements of a serious felony?

¶36 The majority seems to suggest that, as a matter of constitutional law, all of these policy decisions must belong to Pennsylvania because that is where Mr. Brooks committed his crime. But 

in doing so, it ignores the weighty interests at stake for the state of 

Utah. Usually, a father like Mr. Brooks will be just one of four parties whose lives would be forever changed by an adoption: the father, the mother, the would-be adoptive parents, and the child. At 

the time of the adoption proceedings, at least two of these parties—the adoptive parents and the child—will usually be citizens 

of Utah, and frequently the child‘s mother will have become a 

Utah citizen as well. Further, the adoption proceedings will be 

taking place in a Utah court, and they will usually involve a Utah 

adoption agency that also has an interest in the outcome.

¶37 But according to the majority, despite the immense importance of this adoption to these Utahns, the state of Utah may 

be unable to make its own judgment as to whether Mr. Brooks‘s 

crime should disqualify him from intervening. Rather, it must 

simply accept the judgment of the Commonwealth of Pennsylva-
Cite as: 2015 UT 35

J. DURHAM, dissenting

19

nia—no matter how repugnant that judgment might be to the 

people of Utah, and no matter that Pennsylvania has no more jurisdiction over the adoption of J.M.S. than Utah had over the 

prosecution of Jacob Brooks.

¶38 The legislature‘s manifest intent in section 111 was to protect people like J.M.S. and J.M.S.‘s mother from fathers like 

Mr. Brooks. If Mr. Brooks had a constitutionally protected liberty 

at stake, the Due Process Clause would restrict the legislature‘s 

ability to carry out its intent—procedural due process would 

guarantee Mr. Brooks notice and a hearing, and substantive due 

process would limit the legislature‘s power to cut off his paternal 

rights. But Mr. Brooks has no such liberty at stake, so nothing 

prevents the legislature‘s will from being carried out. Mr. Brooks 

should be barred from intervening in this adoption.