This opinion is subject to revision before final

publication in the Pacific Reporter

2020 UT 51

IN THE

SUPREME COURT OF THE STATE OF UTAH

IN THE MATTER OF THE ADOPTION OF K.T.B

A PERSON UNDER EIGHTEEN YEARS OF AGE

V.B.,

Appellant,

v.

A.S.A. and J.K.A.,

Appellees.

No. 20150821

Heard May 12, 2017

Remand Disposition Received March 8, 2018

Filed July 21, 2020

On Direct Appeal

First District, Logan

The Honorable Kevin K. Allen

No. 152100025

Attorneys:

Diane Pitcher, Ryan L. Holdaway, Logan, for appellant

Paul H. Gosnell, Logan, for Appellees

CHIEF JUSTICE DURRANT authored the opinion of the Court, in 

which JUSTICE HIMONAS and JUSTICE PEARCE joined.

JUSTICE PETERSEN filed a separate opinion concurring in the result.

ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1 This is an adoption case. In 2010, V.B. (Mother) gave birth 

to K.T.B. Sometime later, K.T.B. went to live with A.S.A. and J.K.A. 

(collectively, the Adoptive Parents) and has lived with them ever 
IN RE K.T.B.

Opinion of the Court

2

since. In early June 2015, the Adoptive Parents filed an adoption 

petition in the district court and served notice of the proceeding on 

Mother. The notice informed Mother that she had thirty days to file 

a motion to intervene in the case or she would forfeit her parental 

rights in K.T.B. and would be barred from participating further in 

the adoption proceeding.

¶2 Mother attempted to intervene, but due to a procedural 

deficiency in the document she filed with the district court, the 

court struck her filing and excluded her from the adoption 

proceeding. Mother then filed a rule 60(b) motion seeking relief 

from the court’s order to strike. Around this time, J.N.—Mother’s 

common-law husband—filed his own motion to intervene, 

asserting, based on his judicially recognized common-law marriage 

to Mother, that he is K.T.B.’s presumptive father. The district court 

denied both motions.

¶3 On appeal, Mother challenges the constitutionality of 

Utah’s Adoption Act.1 Specifically, she argues that the Adoption 

Act’s structure, which permits a district court to terminate parental 

rights if the parent does not “fully and strictly comply” with the 

statutory requirements, is unconstitutional as applied to her.2 We 

__________________________________________________________

1 UTAH CODE §§ 78B-6-101 et seq. Mother specifically challenges

the constitutionality of Utah Code section 78B-6-112. She argues,

however, that section 112 “does not operate alone” in the present

case because the district court relied on provisions in sections 110

and 120.1 to terminate her parental rights under section 112.

2 Although at one point in Mother’s brief she states that the

Adoption Act is unconstitutional “on its face” and “as applied,” we

note that her claim is more properly viewed as an as-applied

challenge. “A statute may be unconstitutional either on its face or

as applied to the facts of a given case. A facial challenge is the most

difficult because it requires the challenger to ‘establish that no set

of circumstances exists under which the [statute] would be valid.’

An as-applied challenge, on the other hand, succeeds if the

challenger shows that the statute was applied to him or her in an

unconstitutional manner.” State v. Herrera, 1999 UT 64, ¶ 4 n.2, 993

P.2d 854, 857 (quoting United States v. Salerno, 481 U.S. 739, 745

(1987)).

Mother has brought an as-applied challenge. Throughout her

briefing, and at oral argument, she repeatedly relies on her status

(Continued)
Cite as: 2020 UT 51

Opinion of the Court

3

agree with Mother on substantive due process grounds, so we 

reverse the district court’s order striking Mother’s filing.

¶4 Additionally, J.N. argues that the district court erred in 

denying his motion to intervene because the Adoption Act entitles 

him to certain rights as K.T.B.’s presumptive father. But because 

J.N. had not obtained judicial recognition of his common-law

marriage at the time the Adoptive Parents filed their adoption 

petition, the Adoptive Parents had no obligation to serve him with 

notice. Instead, he was presumed to be on notice that an adoption 

could occur and was obligated to file a motion to intervene within 

thirty days of the Adoptive Parents’ petition. Because he failed to 

do so, his motion to intervene was untimely and the district court 

did not err in denying it.

Background

¶5 Mother gave birth to K.T.B. in September 2010. His

biological father is unknown. In 2013, K.T.B. went to live with the 

Adoptive Parents. The Adoptive Parents became his legal 

guardians in June 2014 and one year later they petitioned the 

district court to terminate Mother’s parental rights and allow them 

to adopt K.T.B. Shortly thereafter, the Adoptive Parents served 

__________________________________________________________

as a mother with fundamental parental rights as the basis for her

claim. In so doing, she repeatedly attempts to distinguish cases

where we have upheld strict requirements in the Adoption Act

against putative fathers or other individuals lacking fundamental

rights from this case. Because these other cases illustrate that there

are sets of circumstances where the challenged provisions in this

case may be constitutionally applied, they are not facially

unconstitutional. Additionally, Mother’s argument hinges on facts

specific to this case—she argues that her rights were violated

“despite the fact [that] she appeared in the action, the court added

her as the Respondent, and she filed an Answer asserting her

parental rights.” Because her due process claim hinges on facts

specific to this case, and she does not argue that any provision of

the Adoption Act would be unconstitutional under every set of

circumstances, her due process claim is properly viewed as an

as-applied challenge.
IN RE K.T.B.

Opinion of the Court

4

Mother with a notice of the adoption proceedings in accordance 

with Utah Code section 78B-6-110.3

¶6 The notice informed Mother that she had thirty days to 

intervene or contest the adoption. It explained that her response 

must be in the form of “a motion to intervene[,] which shall set forth 

the specific relief sought[] and shall be accompanied by a 

memorandum specifying the factual and legal grounds upon which 

the motion is based.” It further stated that her failure to respond 

would “result in [her] waiver of any right to further notice of the 

proceeding,” would cause her to “forfeit any rights in relation to 

[K.T.B.],” and would “bar[] [her] from thereafter bringing or 

maintaining any action to assert any interest in [K.T.B.].”

¶7 Within thirty days of receiving the notice of the adoption 

proceeding, Mother filed an “Answer to Verified Petition for 

Termination of Parental Rights and for Adoption of Minor Child.” 

Her answer reads like a typical answer in a civil case—it addresses 

each allegation in the adoption petition separately, denying almost 

all of them. This included a denial of all of the Adoptive Parents’

allegations regarding her parental unfitness and lack of an 

emotional connection to K.T.B. Importantly, Mother did not 

include an accompanying memorandum “specifying the factual 

and legal grounds upon which the motion [was] based,” and at no 

place in the answer did she make legal or factual assertions beyond 

conclusory admissions or denials of the allegations contained in the 

adoption petition.

¶8 Additionally, in the answer’s prayer for relief, Mother

requested “[t]hat petitioners take nothing by way of their Petition,” 

her reasonable attorney fees, and any other relief the court deemed 

just and appropriate to award.

¶9 After thirty days, the Adoptive Parents asked the district 

court to strike Mother’s answer because she did not comply with 

the requirements of section 110 of the Adoption Act. Citing section 

110’s strict compliance requirement, the district court granted the 

Adoptive Parents’ request by striking Mother’s answer. The court 

explained that the “Answer was not accompanied by a 

memorandum supporting intervention.” And it “also did not ‘set 

forth specific relief sought’” because the only relief sought was that 

__________________________________________________________

3 Utah Code section 78B-6-110(2) provides that “[n]otice of an

adoption proceeding shall be served on” certain persons, including

the mother of the adoptee.
Cite as: 2020 UT 51

Opinion of the Court

5

“Petitioners take nothing by way of their Petition.” According to 

the court, this did not qualify as a request to intervene in the 

adoption, nor did it meet the statutory requirement that the relief 

be “specific.”

¶10 Once the court struck the answer, it concluded that Mother

had failed to intervene within the time allotted by section 110. Due 

to this failure, the court ruled that Mother had “waived any right 

to further notice in connection with the adoption,” had “forfeited 

all rights in relation to the adoptee,” and was “barred [t]hereafter 

from bringing or maintaining any action to assert any interest in 

the adoptee.” It also found that because she failed to intervene, her 

consent to the adoption could be implied under section 120.1.4

¶11 One month after Mother’s exclusion from the adoption 

proceeding, the court entered findings of fact and conclusions of 

law, determining that Mother had forfeited her right to consent 

under sections 110 and 1125 and, alternatively, that she had implied 

her consent under section 120.1 by failing to file a timely motion to 

intervene. Because the court barred her from participating in the 

adoption proceeding, she could not present evidence to rebut any 

of the Adoptive Parents’ claims.

¶12 Mother challenged the district court’s order by filing a 

motion for relief from the order under rule 60(b) of the Utah Rules 

of Civil Procedure, but the court denied this motion. The court 

again relied upon Mother’s failure to comply with section 110 as its 

basis for excluding her from the adoption proceeding.

¶13 Around the same time that Mother filed her rule 60(b) 

motion, J.N.—Mother’s common-law husband—filed a motion to 

intervene in the adoption. In the motion, J.N. argued that the recent 

judicial recognition of his common-law marriage to Mother

established his role as K.T.B.’s presumptive father. The court 

__________________________________________________________

4 Utah Code section 78B-6-120.1(3) provides that “[c]onsent or

relinquishment . . . may be implied by . . . receiving notification of

a pending adoption proceeding under Subsection 78B-6-110(6) or

of a termination proceeding under Section 78B-6-112 and failing to

respond as required.”

5 Utah Code section 78B-6-112(5) provides that “[t]he district

court may terminate an individual’s parental rights in a child if . . . 

the individual . . . received notice [under section 110] and . . . failed

to file a motion for relief . . . within 30 days after the day on which

the person receives service.”
IN RE K.T.B.

Opinion of the Court

6

denied this motion as well. Both Mother and J.N. timely filed 

notices of appeal.

¶14 On appeal, Mother argues that the district court’s 

application of Utah Code sections 78B-6-110, -112, and -120.1 

violated her due process rights, both procedural and substantive, 

by depriving her of her fundamental right to parent K.T.B.6 And 

J.N. argues that the court abused its discretion when it denied his 

motion to intervene because the Adoption Act entitles him to notice 

of, and to intervene in, the adoption as K.T.B.’s presumptive father. 

After oral argument we temporarily remanded this case to the 

district court for a determination of the enforceability of a postadoption settlement agreement entered into by the parties. The 

district court determined that the agreement was based on an 

illusory promise and was therefore unenforceable. On return from 

remand we must now resolve the case on the merits. We have 

jurisdiction pursuant to Utah Code section 78A-4-103(2)(h).

Standards of Review

¶15 Mother argues that the district court violated her right to 

due process because it applied certain provisions in Utah Code 

sections 78B-6-110, -112, and -120.1 to terminate her parental rights 

over her objection and without a finding of unfitness. 

“Constitutional issues, including questions regarding due process, 

are questions of law, and we review the lower court’s conclusions 

for correctness.”7

¶16 Additionally, J.N. argues that the court should have 

allowed him to intervene in the adoption proceedings after his 

common-law marriage to Mother was legally recognized. “A 

determination under rule 24(a)(1)” of the Utah Rules of Civil 

Procedure, “which permits intervention ‘when a statute confers an 

unconditional right to intervene,’ implicates two questions.”8 The 

__________________________________________________________

6 Mother bases her claim on the guarantees of the Due Process

Clauses of the Fifth and Fourteenth Amendments to the United

States Constitution and of article I, section 7 of the Utah

Constitution. All three provisions provide that no person shall be

deprived “of life, liberty, or property, without due process of law.”

7 Summerhaze Co., L.C. v. Fed. Deposit Ins. Corp., 2014 UT 28, ¶ 8,

332 P.3d 908 (citation omitted) (internal quotation marks omitted).

8 Swallow v. Jessop (In re United Effort Plan Trust), 2013 UT 5, ¶ 21,

296 P.3d 742 (citations omitted).
Cite as: 2020 UT 51

Opinion of the Court

7

first is “whether a particular statute affords a particular class of 

persons an unconditional intervention right.”9 This presents “a 

pure question of law because it involves abstract statutory 

construction. A district court would not be entitled to any deference 

to the extent it misinterpreted an intervention statute in the 

abstract.”10 And the second question is “whether a particular 

individual actually fits within the class of persons entitled to 

intervene under a statute.”11 This “presents a classic mixed 

question because it ‘involv[es] application of a legal standard to a 

set of facts unique to a particular case.’”12

Analysis

¶17 Mother argues that the “statutory scheme” of Utah’s 

Adoption Act13 is “constitutionally infirm” because it authorized 

the district court to violate her constitutional rights.14 Specifically, 

she argues that three sections of the Adoption Act—sections 110, 

112, and 120.1 “operated together [to authorize the district court] to 

terminate a mother’s rights, over her objections, and without a 

finding of unfitness or best interest of the minor child.” No one 

__________________________________________________________

9

Id.

10 Id.

11 Id.

12 Id. (alteration in original) (citation omitted).

13 UTAH CODE §§ 78B-6-101 et seq.

14 Mother also argues that the district court erred in striking her

answer, barring her from the adoption proceedings, and entering

her implied consent to the adoption under Utah Code section 

78B-6-120.1. “Motions to strike pleadings or parts thereof are

addressed to the judgment and discretion of the trial court. A ruling

thereon, except under circumstances which amount to a clear abuse

of discretion, will not be disturbed on appeal.” Francis v. State, 2013

UT 65, ¶ 19, 321 P.3d 1089 (internal quotation marks omitted).

Because our determination regarding her due process claim makes

it unnecessary to decide this claim, we decline to address it.

Additionally, the Adoptive Parents argue that Mother failed to

preserve her constitutional challenge to the Adoption Act’s scheme. 

But the record reveals that Mother challenged the district court’s

decision on due process grounds on two separate occasions: first in

her opposition to the motion to strike and again in her rule 60(b)

motion. And so we find that she preserved this issue for appeal.
IN RE K.T.B.

Opinion of the Court

8

disputes that provisions within the Adoption Act authorized the 

district court to terminate Mother’s parental rights. To determine 

whether this termination amounts to either a procedural or 

substantive due process violation, we first consider the Adoption 

Act’s statutory framework. We then analyze whether the district 

court violated Mother’s procedural or substantive due process 

rights when it terminated her parental rights pursuant to 

provisions within the Adoption Act. We ultimately conclude that 

the strict compliance requirement in section 110 of the Adoption 

Act is unconstitutional as applied to Mother.

¶18 Additionally, J.N. argues that the district court erred when 

it denied his motion to intervene because he was entitled to do so 

as K.T.B.’s presumptive father.15 Although he filed his motion 

almost four months after the Adoptive Parents filed their adoption 

petition, J.N. argues that it was nevertheless timely because he 

never received the notice to which he was entitled as K.T.B.’s 

presumptive father. But because J.N.’s marriage had not been 

legally recognized at the time the Adoptive Parents filed their 

petition, they were not obligated to serve J.N. with notice. Instead, 

J.N. was presumed to be on notice and had an obligation to file a 

motion to intervene within thirty days of the date the Adoptive 

Parents filed their petition.

I. Framework of the Adoption Act

¶19 Under the Adoption Act, when individuals file a petition 

for adoption, they must serve notice of the adoption proceeding 

upon a number of specified people, including the adoptee’s 

biological mother.16 “A person who has been served with notice of 

an adoption proceeding and who wishes to contest the adoption 

[must] file a motion to intervene in the adoption proceeding . . .

within 30 days after the day on which the person was served with 

__________________________________________________________

15 We note that J.N., unlike Mother, has not raised any

constitutional challenges to the Adoption Act.

16 UTAH CODE § 78B-6-110(2) (2017) (“Notice of an adoption

proceeding shall be served on . . . any person or agency whose

consent or relinquishment is required under Section 78B-6-120 or

78B-6-121, unless that right has been terminated by: (i) waiver;

(ii) relinquishment; (iii) actual consent, as described in Subsection 

(12); or (iv) judicial action.”); id. § 78B-6-120(c) (identifying “mother

of the adoptee” as a person from whom consent or relinquishment

is required before an adoption may take place).
Cite as: 2020 UT 51

Opinion of the Court

9

notice.”17 This motion must “set[] forth specific relief sought” and 

be “accompanied by a memorandum specifying the factual and 

legal grounds upon which the motion is based.”18

¶20 If the biological mother fails to “fully and strictly comply 

with all of the requirements,” she “(i) waives any right to further 

notice in connection with the adoption; (ii) forfeits all rights in 

relation to the adoptee; and (iii) is barred from thereafter bringing 

or maintaining any action to assert any interest in the adoptee.”19

Under section 112, a district court may then terminate the mother’s 

parental rights in her child.20 And under section 120.1, the mother 

is deemed to have consented to the adoption or otherwise 

relinquished her rights in her child.21

¶21 Together, these three sections of the Adoption Act 

permitted the district court to terminate Mother’s parental rights 

over her objection and without a determination that she was an 

unfit parent. For this reason she argues that the Adoption Act is 

unconstitutional as applied to her.

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

¶22 First, Mother argues that the Adoption Act authorized the 

district court to violate her procedural due process rights.22 “At its 

core, the due process guarantee is twofold—reasonable notice and 

an opportunity to be heard.”23 Because Mother fails to show that 

the Adoption Act authorized the district court to violate either of 

these guarantees, her procedural due process claim fails.

¶23 Mother’s right to reasonable notice was not infringed 

upon. “Before a right of property or other important interest is 

__________________________________________________________

17 Id. § 78B-6-110(6)(a).

18 Id.

19 Id. § 78B-6-110(6)(b).

20 Id. § 78B-6-112(5)(c).

21 Id. § 78B-6-120.1(3)(d).

22 Although Mother categorizes her challenge of the Adoption

Act as both a procedural and substantive due process challenge,

she does not direct much, if any, of her argument toward the

procedural due process standard.

23 In re Adoption of B.Y., 2015 UT 67, ¶ 16, 356 P.3d 1215 (citing

United States v. James Daniel Good Real Prop., 510 U.S. 43, 48 (1993)).
IN RE K.T.B.

Opinion of the Court

10

foreclosed as a result of state action, reasonable notice must be 

afforded.”24 On appeal, Mother admits that she received notice of 

the adoption proceeding and of her obligation to participate in it. 

Accordingly, her right to reasonable notice has not been violated.

¶24 What is less clear, however, is whether Mother received an 

adequate opportunity to be heard. As we have previously 

explained, “[m]ere notice is an empty gesture if it is not 

accompanied by a meaningful chance to make your case.”25 For this 

reason, “the Due Process Clause also guarantees . . . an opportunity 

to be heard at a meaningful time and in a meaningful manner.”26 In 

this case, the district court relied upon the strict compliance 

requirement in section 110 of the Adoption Act to deprive Mother

of an opportunity to contest the termination of her parental rights 

to K.T.B., as well as K.T.B.’s subsequent adoption.

¶25 But the promise of an opportunity to be heard may be 

limited by reasonable procedural prerequisites.27 Thus if a statute 

of limitations, or some other procedural requirement, bars an 

individual from participating in a legal proceeding affecting his or 

her rights, a procedural due process violation has not occurred 

unless the “procedural bar can be shown to foreclose[] . . . 

meaningful access to the justice system.”28 “In past cases, we have 

found this standard to be met by a showing of impossibility.”29

¶26 The impossibility inquiry contemplates whether “the right 

to notice and an opportunity to be heard were ‘completely within 

[the affected person’s] control.’”30 In other words, if the plaintiff 

__________________________________________________________

24 Id. ¶ 18 (citing Mathews v. Eldridge, 424 U.S. 319, 348 (1976)).

25 Id. ¶ 23.

26 Id. (internal quotation marks omitted) (quoting Gray v.

Netherland, 518 U.S. 152, 182 (1996)).

27 See Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982)

(“The State may erectreasonable proceduralrequirements . . . [such

as] statutes of limitations . . . . And the State certainly accords due

process when it terminates a claim for failure to comply with a

reasonable procedural . . . rule.”).

28 In re Adoption of B.Y., 2015 UT 67, ¶ 27 (alteration in original) 

(citation omitted) (internal quotation marks omitted).

29 Id. ¶ 28.

30 Id. ¶ 32 (citation omitted).
Cite as: 2020 UT 51

Opinion of the Court

11

could have complied with the procedural requirement under the 

circumstances, compliance is possible, and the plaintiff’s access to 

the justice system has not been foreclosed. Thus where the statute 

“afford[s] a reasonable opportunity to comply with the statute,” the 

statute’s procedural requirements do not offend procedural due 

process.31

¶27 Two of our previous cases illustrate a proper impossibility 

determination. First, in Ellis v. Social Services Department of the 

Church of Jesus Christ of Latter-Day Saints,

32 we upheld a putative 

father’s procedural due process claim challenging the requirements 

of the Adoption Act because his compliance with the law was 

shown to have been rendered “impossible” through no fault of his 

own.33 In that case, the adoptee’s biological father and mother were 

engaged to be married and both resided in California, but two 

weeks before the wedding the mother broke off the engagement.34

Then, just a few days before giving birth, the mother traveled to 

Utah from California without the father’s knowledge, where she 

placed the newborn for adoption (after representing to those

involved that the father was unknown).

35 After considering these 

facts we noted that due process requires a “reasonable opportunity 

to comply” with the statutory prerequisites to the establishment of 

a parental right.36 And because the father could not have complied 

with the Adoption Act’s procedural requirements under the facts 

alleged, we concluded that the requirements had violated the 

father’s due process rights.37

¶28 In contrast to our decision in Ellis is our decision in In re 

Adoption of J.S.38 In that case, the district court barred a putative 

father from intervening in an adoption because he failed to file a 

required paternity affidavit within the time the Adoption Act 

__________________________________________________________

31 Id. ¶ 31 (citation omitted).

32 615 P.2d 1250 (Utah 1980).

33 Id. at 1256.

34 Id. at 1252.

35 Id.

36 Id. at 1256.

37 Id.

38 2014 UT 51, 358 P.3d 1009.
IN RE K.T.B.

Opinion of the Court

12

allotted.39 The father appealed the denial of his motion to intervene. 

As part of his procedural due process argument on appeal, the 

father blamed the deficiency in this filing on “his attorney’s failure 

to advise him that such an affidavit was required.”40 Because the 

father did not specify whether he was bringing a procedural or 

substantive due process challenge to the Adoption Act’s filing 

requirements, we were forced to speculate on the nature of his 

claim.41 We determined that his claim could not be characterized as 

a procedural due process challenge, because he claimed his 

procedural deficiency was due to “his counsel allegedly g[iving] 

him bad legal advice,” not due to an overly difficult procedural 

requirement.42 So our decision in In re Adoption of J.S. suggests that 

the failure to comply with a procedural requirement due to a 

mistake by an attorney cannot sustain a procedural due process 

claim under the impossibility inquiry.43

¶29 Like the procedural deficiency in In re Adoption of J.S., 

Mother’s failure to comply with the Adoption Act’s procedural 

requirements can be attributed to a mistake by legal counsel. 

Mother received notice under section 110 informing her of both 

what was required to intervene in the proceedings and what would 

happen if she did not intervene. Rather than file a motion to 

intervene within thirty days, she filed an answer to the Adoptive 

Parents’ petition, which the district court found did not satisfy 

section 110’s strict compliance requirement. Mother does not 

suggest that compliance was impossible or too difficult.44 In fact, 

compliance clearly was neither impossible nor too difficult because 

Mother was able to file a compliant motion to intervene 

immediately after the Adoptive Parents filed their motion to strike. 

So the only plausible explanation for the deficiencies in Mother’s 

original attempt to intervene is that her legal counsel misread or 

__________________________________________________________

39 Id. ¶ 1.

40 Id. ¶ 11.

41 Id. ¶ 19.

42 Id. ¶ 23.

43 Id. ¶¶ 23–24.

44 Instead, Mother has argued that strict compliance and

intervention is unnecessary for a biological mother. This challenge

is more properly categorized as a substantive due process

challenge.
Cite as: 2020 UT 51

Opinion of the Court

13

misunderstood section 110’s legal requirements.45 But as In re 

Adoption of J.S. illustrates, when the failure to comply with a 

“simple and straightforward” procedural requirement is due to 

legal counsel’s mistake, the procedural requirement has not 

foreclosed meaningful access to the justice system.46 Accordingly, 

Mother fails to show that the Adoption Act deprived her of her 

constitutional right to an opportunity to be heard.

¶30 Because Mother’s constitutional rights to reasonable notice 

and an opportunity to be heard were not violated, her procedural 

due process challenge of the Adoption Act fails.

III. Mother’s Substantive Due Process Rights Were Violated 

Because Section 110’s Strict Compliance Requirement 

is Not Narrowly Tailored

¶31 Mother also challenges the Adoption Act’s framework 

under the substantive component of the Due Process Clause. Such 

a claim is distinct from the procedural due process challenge 

analyzed above. In contrast to a procedural due process attack, a 

substantive challenge “involve[s] a broad-side attack on the 

fairness of the procedural bar or limitation, on the ground that the 

right foreclosed is so fundamental or important that it is protected 

from extinguishment.”47 In other words, a substantive due process 

challenge alleges that a procedural requirement is unfair because it 

improperly infringes an important right rather than because it

operates to unfairly foreclose notice or a meaningful opportunity 

to be heard. So if a statute allows the state to improperly extinguish 

or foreclose a protected right, even if it does so through 

straightforward procedural requirements, it is unconstitutional 

under the substantive component of the Due Process Clause.

A. The district court applied provisions of the Adoption Act

to extinguish Mother’s fundamental right to parent K.T.B.

¶32 Whether a statute improperly allows the state to 

extinguish or foreclose a protected right depends on the nature of 

the right and its attendant standard of review. If the right infringed 

or foreclosed is a right we have deemed “fundamental,” we review 

__________________________________________________________

45 Mother was represented by counsel when she filed her

answer.

46 2014 UT 51, ¶ 23.

47 In re Adoption of B.Y., 2015 UT 67, ¶ 41, 356 P.3d 1215

(alteration in original) (internal quotation marks omitted).
IN RE K.T.B.

Opinion of the Court

14

the statute under our strict scrutiny standard.48 But if it is not 

fundamental, we review it under “the deferential, fallback 

standard of rationality or arbitrariness.”49

¶33 The importance of correctly characterizing the nature of 

the right at issue was illustrated in our recent decision in In re B.Y.

50

In that case, we considered an unmarried biological father’s 

challenge to a “strict compliance provision of the Adoption Act.”51

We explained that this procedural provision of the Adoption Act 

had been challenged on procedural and substantive due process 

grounds.52 We then proceeded to analyze the procedural 

requirement under both frameworks.

¶34 First, we analyzed the claim on procedural due process 

grounds, determining that the claim failed because “it was not 

impossible” for the unmarried father to comply with the strict 

compliance provision at issue.53 This was the correct analysis for a 

procedural due process claim, and it is the same analysis we have 

applied to Mother’s procedural due process claim in this case.

¶35 After deciding the father’s procedural due process claim, 

we turned to his substantive one.54 And we appropriately 

commenced our substantive due process analysis by identifying 

the nature of the infringed right. We determined that the right 

infringed in that case was “merely provisional” because the 

plaintiff was an unmarried biological father who had failed to 

perfect his parental rights by following the procedures established 

__________________________________________________________

48 Jones v. Jones, 2015 UT 84, ¶ 26, 359 P.3d 603 (“When the court

has recognized a due process right it deems ‘fundamental,’ it

consistently has applied a standard of strict scrutiny to the

protection of such a right.”).

49 In re Adoption of J.S., 2014 UT 51, ¶ 56, 358 P.3d 1009 (plurality 

opinion).

50 2015 UT 67.

51 Id. ¶ 41.

52 Id.

53 Id. ¶¶ 16, 37, 40 (internal quotation marks omitted).

54 Id. ¶ 41 (noting that the father had also “challenge[d] the

application of the strict compliance provision . . . under the

substantive component of the Due Process Clause.” (emphasis 

omitted)).
Cite as: 2020 UT 51

Opinion of the Court

15

in law.55 Because the unmarried biological father’s right did not rise 

to the level of a fundamental right, we considered the father’s claim 

under the more deferential rational-basis prong of the substantive 

due process analysis.56 Under this standard, we rejected the father’s 

claim because the procedural requirement that barred the father 

from participating in the adoption proceeding—a strict compliance 

provision—was “far from arbitrary.”57 Thus our decision in In re 

B.Y. hinged on the provisional nature of the unmarried father’s 

right and on the standard of review we applied to the statutory 

provision in question.

¶36 In contrast to the right at issue in In re B.Y., the right at 

issue in this case is fundamental. Although “[s]ome variation 

exists” among the parental rights of unmarried fathers depending 

on the steps they have taken to perfect their parental rights,58 “no 

similar variation exists” among the parental rights of unmarried

mothers.59

¶37 Unmarried mothers “acquire parental rights—and the 

accompanying right to object to an adoption—as a result of the objective 

__________________________________________________________

55 Id. ¶ 43. In In re B.Y., we explained that the right of an

unmarried father is “merely provisional” until the father complies

with the requirements established for the perfecting of that right.

Id. This ruling is consistent with the United States Supreme Court’s

decision in Lehr v. Robertson, where the Court explained that an

unmarried father does not have a recognized parental right until he

takes some affirmative action to “grasp” the opportunity to

develop a relationship with his child. 463 U.S. 248, 262 (1983). Thus

the right at issue in In re B.Y. was not a fundamental parental right,

but a provisional right to an “opportunity” to develop a parental

right. See id. at 262–63 (“We are concerned only with whether New

York has adequately protected [the unmarried father’s]

opportunity to form such a relationship.”).

56 In re B.Y., 2015 UT 67, ¶ 43 (determining whether “the

prerequisites established by the state [were] arbitrary” (emphasis 

omitted)).

57 Id. ¶ 46.

58 In re J.P., 648 P.2d 1365, 1374 (Utah 1982); see also In re Adoption

of J.S., 2014 UT 51, ¶ 2 (distinguishing between the requirements 

imposed on unmarried fathers and unmarried mothers).

59 In re J.P., 648 P.2d at 1374–75.
IN RE K.T.B.

Opinion of the Court

16

manifestation of the commitment to the child that is demonstrated 

by their decision to carry a child to term.”60 So even though an 

unmarried father may be required to comply with certain 

procedural requirements before his parental rights become 

fundamental, an unmarried mother’s parental rights are “vested”61

and “inherent”62 without her having to comply with the same 

procedural requirements.63 In fact, this court has held that the right 

of a mother “not to be deprived of parental rights without a 

showing of unfitness, abandonment, or substantial neglect is so 

fundamental to our society and so basic to our constitutional order 

. . . that it ranks among those rights referred to in Article I, [section] 

25 of the Utah Constitution and the Ninth Amendment of the 

United States Constitution as being retained by the people.”64 In

other words, mothers retain a fundamental right in their children 

regardless of a failure to comply with any state-prescribed 

procedure.65 And this right remains in effect absent “a showing of 

unfitness, abandonment, or substantial neglect.”66 So if a statute 

__________________________________________________________

60 In re Adoption of J.S., 2014 UT 51, ¶ 2 (emphasis added).

61 Wells v. Children’s Aid Soc’y of Utah, 681 P.2d 199, 206 (Utah

1984) (citation omitted).

62 In re J.P., 648 P.2d at 1373.

63 See In re Adoption of J.S., 2014 UT 51, ¶ 2 (explaining that an

“unwed father’s legal obligation to file the paternity affidavit [was]

a rough counterpart to the mother’s commitment,” which is

“demonstrated by [the mother’s] decision to carry a child to term”).

64 In re J.P., 648 P.2d at 1375 (emphases added); see also id. at 1372

(explaining that a mother “has a fundamental right, protected by 

the Constitution, to sustain [her] relationship with [her] child” 

(emphasis added) (citation omitted) (internal quotation marks

omitted)).

65 In fact, the Supreme Court has stated that, “[i]f anything,

persons faced with forced dissolution of their parental rights have

a more critical need for procedural protections” than do others.

Santosky v. Kramer, 455 U.S. 745, 753 (1982). For this reason, states 

“must provide . . . parents with fundamentally fair procedures” 

when moving to destroy parental bonds. Id. at 753–54.

66 Wells, 681 P.2d at 204; see also In re J.P., 648 P.2d at 1372 (“[T]he

correlative of parental rights is parental duties. When parents fail

to, or are incapable of, performing their parental obligations, the

(Continued)
Cite as: 2020 UT 51

Opinion of the Court

17

authorizes a court to terminate a mother’s parental rights without 

her consent or without proof of unfitness, abandonment, or neglect, 

a fundamental right has been infringed upon, and we determine 

the constitutionality of the infringing statute by reviewing it under 

the strict scrutiny standard.67

¶38 As applied in this case, the Adoption Act authorized the 

district court to terminate Mother’s parental rights without her 

consent and without proof of parental unfitness, abandonment, or 

neglect. Specifically, section 110 authorized the court to rule that 

Mother had “forfeit[ed] all rights in relation to the adoptee” 

because she failed “to fully and strictly comply with all of the 

requirements” listed in that section. And because she failed to 

strictly comply with the requirements of section 110, section 112 

allowed the court to terminate her parental rights, and section 120.1 

allowed the court to rule that she had lost her right to consent or 

object to the adoption.68

__________________________________________________________

child’s welfare must prevail over the right of the parent.” We have 

noted, of course, that mothers and fathers may “choose to waive” 

their parental rights. In re Adoption of J.S., 2014 UT 51, ¶ 2 (emphasis 

added).

67 In re Adoption of J.S., 2014 UT 51, ¶ 42. By recognizing that 

statutorily imposed consequences for a failure to comply with 

procedural requirements infringe on a mother’s fundamental right, 

we are not suggesting that mothers may never be subject to 

procedural requirements. Instead, we are merely recognizing that 

where a procedural requirement—and the statutorily imposed 

consequences for failing to comply with that requirement—

infringe on a fundamental right, that requirement is constitutional 

only so long as it is narrowly tailored to further a compelling state

interest.

68 The dissent argues that the Adoption Act does not authorize

the termination of parental rights “without requiring ‘proof of 

unfitness, abandonment, or neglect’” because, had Mother strictly

complied with the procedural requirements of the Act, she could 

have had an opportunity to defend her parental rights. See infra

¶ 154 n.213 (Lee, A.C.J., dissenting). Not only does this argument

ignore the “as-applied” nature of Mother’s substantive due process

claim, but it also ignores our case law, which clearly recognizes a

mother’s right to maintain her parental rights unless she

(Continued)
IN RE K.T.B.

Opinion of the Court

18

¶39 The Adoptive Parents argue, however, that Mother’s 

parental rights were not terminated by her failure to strictly comply 

with the Adoption Act’s procedural requirements. Instead, they 

assert that her parental rights were properly terminated after the 

district court considered relevant evidence at the uncontested 

adoption hearing held the following month.69 This argument fails 

because Mother had already been stripped of “all rights in relation 

to the adoptee”70—including the right to contest, or consent to, the 

adoption—by the time the court heard evidence relevant to a 

proper termination of parental rights.71 In other words, because the 

Adoption Act authorized the district court to bar Mother from 

participating in the adoption proceeding, Mother’s right to defend 

her parental rights was extinguished.72 So even if section 110’s strict 

__________________________________________________________

voluntarily relinquishes them or a court finds that she forfeited

them by being an unfit parent or by abandoning or neglecting the

child. So where this right is terminated for some other reason—

such as in consequence of a mother’s procedural default—the

termination of the mother’s parental rights must be reviewed under

our strict scrutiny standard. And we note that, contrary to the 

dissent’s suggestion, this rule does not exempt mothers from 

constitutionally valid procedural requirements.

69 This assertion is only partially correct. Although the district

court noted that the Adoptive Parents had provided sufficient

evidence of abuse, unfitness, and neglect in its findings of fact and

conclusions of law, it also based its decision to terminate Mother’s

parental rights on the fact that Mother’s right to consent had been

forfeited under sections 110 and 112, and that under section 120.1

her consent could be implied.

70 UTAH CODE § 78B-6-110(6)(b)(ii).

71 In re Adoption of J.S., 2014 UT 51, ¶ 2 (explaining that a

mother’s parental rights include the “right to object to an

adoption”); see also In re J.P., 648 P.2d at 1372 (explaining that a

mother “has a fundamental right, protected by the Constitution, to

sustain [her] relationship with [her] child” (emphasis added)

(citation omitted) (internal quotation marks omitted)).

72 See In re K.J., 2013 UT App 237, ¶ 26, 327 P.3d 1203 (explaining

that in a typical proceeding to terminate parental rights, although

the “petitioner bears the ultimate burden of proving the grounds

for termination by clear and convincing evidence, once evidence is

(Continued)
Cite as: 2020 UT 51

Opinion of the Court

19

compliance requirement did not immediately allow the court to 

extinguish the full spectrum of Mother’s parental rights, it 

nevertheless infringed in part on Mother’s parental rights by 

requiring the court to exclude her from the adoption proceeding 

and mandating the forfeiture of “all [her] rights in relation” to 

K.T.B.73

B. As applied to this case, section 110’s strict compliance provision 

fails strict scrutiny review

¶40 Because the Adoption Act authorized the district court to 

terminate a fundamental right in this case, we must analyze it 

under the strict scrutiny standard.74 Under the strict scrutiny 

standard, “a fundamental right is protected except in the limited 

circumstance in which an infringement of it is shown to be 

‘narrowly tailored’ to protect a ‘compelling governmental 

interest.’”75 Section 110’s strict compliance requirement fails this 

test.76 Even though the Adoption Act’s procedural requirements 

serve a number of compelling governmental interests, in this case 

the strict compliance requirement in section 110 was not necessary 

__________________________________________________________

presented that would justify termination, the burden shifts to the

parent to persuade the court that the [petitioner] had not

established [the ground for termination] by clear and convincing

evidence.” (alterations in original) (citations omitted) (internal 

quotation marks omitted)).

73 In re J.P., 648 P.2d at 1372–77 (recognizing a parent’s 

fundamental right to “maintain parental ties to his or her child,”

and “in the care, custody, and management of [his or her] child,”

as well as the right of a mother “not to be deprived of parental 

rights without a showing of unfitness, abandonment, or substantial 

neglect”).

74 See Jones, 2015 UT 84, ¶ 26.

75 Id. ¶ 27 (quoting Washington v. Glucksberg, 521 U.S. 702, 721

(1997)).

76 Although Mother has challenged three sections of the

Adoption Act—sections 110, 112, and 120.1—as they work

together, it is the strict compliance provision of section 110 that

prompted the district court’s termination of Mother’s parental

rights. Accordingly, we focus on this requirement in our strict

scrutiny analysis.
IN RE K.T.B.

Opinion of the Court

20

to protect those interests and therefore it is unconstitutional as 

applied to Mother.

¶41 Although we have previously recognized that the “strict 

laws” in the Adoption Act further the state’s interest in promoting 

prompt and stable adoptions,77 we have not yet considered the 

constitutionality of section 110’s strict compliance requirement 

under a strict scrutiny analysis.78 So even though we have 

previously concluded that section 110’s requirements are not 

merely arbitrary,79 we have not yet determined whether those 

requirements were necessary to achieve the state’s compelling 

adoption-related interests under the circumstances presented in 

this case. We do so now. 

¶42 The State of Utah has a number of “compelling interest[s] 

in the adoption process.”80 First, “the state has a compelling interest 

in providing stable and permanent homes for adoptive children in 

a prompt manner.”81 Second, it has an interest “in preventing the 

disruption of adoptive placements.”82 And third, it has an interest 

“in holding parents accountable for meeting the needs of 

children.”83 These interests satisfy the strict scrutiny standard’s 

“compelling interest” prong.84 Accordingly, we review section 

__________________________________________________________

77 In re Adoption of B.B.D., 1999 UT 70, ¶ 14, 984 P.2d 967.

78 See, e.g., In re Adoption of B.Y., 2015 UT 67, ¶¶ 42–46 (declining

to consider a putative father’s substantive due process claim under

a strict scrutiny standard because the father had not yet perfected

his parental rights and holding that until a putative father perfects

his parental rights under the Adoption Act, his rights are “merely

provisional” rather than fundamental).

79 See id. ¶¶ 41–46 (holding that “the strict compliance provision

of the Adoption Act” was not arbitrary in the context of a putative

father’s due process challenge).

80 In re Adoption of B.B.D., 1999 UT 70, ¶ 14 (internal quotation 

marks omitted).

81 UTAH CODE § 78B-6-102(5)(a).

82 Id.

83 Id.

84 See, e.g., Thurnwald v. A.E., 2007 UT 38, ¶¶ 30, 34, 163 P.3d 623

(concluding that the state had a compelling interest in “speedily

(Continued)
Cite as: 2020 UT 51

Opinion of the Court

21

110’s strict compliance requirement to determine if it is narrowly 

tailored to facilitate these interests.

¶43 Under strict scrutiny’s “narrowly tailored” prong, we 

must determine whether the “legitimate state purpose [could] be 

. . . more narrowly achieved.”85 In other words, we consider 

whether the challenged provisions were “necessary” to achieve the 

state’s purpose in facilitating a prompt and stable adoption of 

K.T.B., in preventing a disruption of that adoption, or in holding 

parents accountable for K.T.B.’s needs.86

¶44 Section 110 requires a person to “file a motion to intervene 

in the adoption proceeding.”87 If the person fails to intervene 

within thirty days, that person is excluded from the adoption 

proceeding going forward.88 This timely intervention requirement 

serves the state’s interest in providing prompt adoptions and in 

preventing their disruption by a parent who chose not to intervene 

but later reconsiders this decision. 

¶45 As part of section 110’s intervention requirement, the 

motion to intervene must “set[] forth specific relief sought” and be 

__________________________________________________________

identifying those persons who will assume a parental role over

newborn illegitimate children,” “in promoting early and

uninterrupted bonding between child and parents[,] and in

facilitating final and irrevocable adoptions.” (citations omitted)

(internal quotation marks omitted).

85 In re Boyer, 636 P.2d 1085, 1090 (Utah 1981). The dissent 

criticizes us for applying this standard. See infra ¶ 165 (Lee, A.C.J., 

dissenting). But we are merely applying the standard that has been 

well-established by our case law. In contrast to this established 

approach, the dissent suggests that a loss of an indisputably 

fundamental right does not trigger strict scrutiny review where 

that loss stemmed from a procedural default. See infra ¶ 217 (Lee, 

A.C.J., dissenting) (suggesting that “procedures” may never be 

subject to “substantive due process scrutiny”). Because such an 

approach would be inconsistent with controlling precedent, we 

reject it. See infra ¶¶ 51–101.

86 Wells v. Children’s Aid Soc’y of Utah, 681 P.2d at 207

(considering whether any “infringement of the [plaintiff’s] rights

not essential to the statute’s purpose ha[d] been identified”).

87 UTAH CODE § 78B-6-110(6)(a).

88 Id. § 78B-6-110(6)(b).
IN RE K.T.B.

Opinion of the Court

22

“accompanied by a memorandum specifying the factual and legal 

grounds upon which the motion is based.”89 These subrequirements serve section 110’s overarching purpose. They do so 

by (1) notifying the court and the petitioners of who will be 

contesting the adoption and (2) informing the court of the legal 

basis on which that person is entitled to intervene, thereby allowing 

the court to quickly weed out improper interveners. Mother’s 

attempt to intervene satisfied section 110’s overarching purpose as 

well as the underlying purposes of section 110’s filing 

requirements.

¶46 Mother filed an “Answer to Verified Petition for 

Termination of Parental Rights and for Adoption of Minor Child” 

within thirty days of receiving the notice of the adoption 

proceeding. And although her answer was not accompanied by a 

memorandum “specifying the factual and legal grounds upon 

which the [answer] was based,” she did admit in her answer that 

she was K.T.B.’s mother, as well as deny all of the factual 

allegations upon which the Adoptive Parents based their request to 

terminate her parental rights. Moreover, in the answer’s prayer for 

relief, Mother requested that the Adoptive Parents “take nothing 

by way of their Petition.”

¶47 This answer fulfilled the purposes of section 110’s motion 

to intervene requirement. First, we note that “it is the substance, not 

the labeling, of a motion that is dispositive in determining the 

character of the motion.”90 Based on the substance of Mother’s 

answer, the court and the Adoptive Parents knew or should have 

known that Mother wanted to participate in the proceeding in 

order to oppose the adoption. They also knew or should have 

known that Mother intended to participate by providing evidence 

to defend against the factual allegations they advanced in support 

of their request to terminate Mother’s parental rights. And because 

the answer was filed within thirty days, it did not hinder the state’s 

interest in facilitating a prompt adoption.

¶48 Second, the court’s interest in barring improper parties 

from the proceedings was not hindered by the procedural 

deficiencies in Mother’s answer. Mother is indisputably K.T.B.’s 

__________________________________________________________

89 Id. § 78B-6-110(6)(a)(ii), (iii).

90 Bair v. Axiom Design, L.L.C., 2001 UT 20, ¶ 9, 20 P.3d 388, 

abrogated on other grounds by Gillett v. Price, 2006 UT 24, ¶ 2, 135 P.3d 

861, as recognized in A.S. v. R.S., 2017 UT 77, ¶ 21, 416 P.3d 465.
Cite as: 2020 UT 51

Opinion of the Court

23

biological mother. And at oral argument before us, the Adoptive 

Parents conceded that timely motions to intervene brought by a 

biological mother are granted as a matter of course. Thus, even 

though Mother’s answer did not trigger scheduled briefing and 

oral argument as a motion to intervene would have done, the 

answer nevertheless fulfilled section 110’s purposes by alerting the 

court—and the Adoptive Parents—that K.T.B.’s biological mother 

sought to participate in the proceedings. Stated differently, in light 

of Mother’s unquestioned status as K.T.B.’s biological mother, the 

contents of the Adoptive Parents and Mother’s pleadings provided 

the district court with all of the information it needed to rule on the 

issue of Mother’s intervention. So in this case, section 110’s 

purposes were fulfilled by Mother’s attempt to intervene through 

her answer.

¶49 But section 110 also states that its requirements must be 

“fully and strictly” complied with.91 Despite the fact that Mother’s 

answer did not hinder the state’s compelling interests in promoting 

prompt and stable adoptions, the district court barred her from the 

adoption proceeding because she failed to strictly comply with 

section 110’s filing requirements. And this inevitably led the court 

to terminate all of Mother’s parental rights pursuant to section 112.

¶50 Because Mother’s timely filed answer—though not strictly 

compliant with section 110’s procedural sub-requirements—

achieved everything section 110 is designed to achieve, we cannot 

say that the strict compliance requirement was necessary to achieve 

the state’s compelling adoption-related interests in this case. For 

this reason we hold that section 110’s strict compliance provision is 

unconstitutional as applied to Mother.

92 Accordingly, we reverse 

__________________________________________________________

91 UTAH CODE § 78B-6-110(6)(b).

92 To be clear, in holding that the strict compliance component

of section 110 fails the strict scrutiny test, as applied to Mother in

this case, we are not suggesting, as Mother argues in her brief, that

the entire motion-to-intervene provision is “meaningless” as

applied to biological mothers. In fact, by holding that the timing

and substantive requirements of the provision are necessary to

further the state’s purposes, see supra ¶¶ 45–46, we have held the

opposite. So we are not lightly excusing the procedural

requirements of the Adoption Act in this case. Rather, we have

narrowed the scope of our opinion to the strict compliance

(Continued)
IN RE K.T.B.

Opinion of the Court

24

the district court’s decision to strike Mother’s answer and remand 

to the district court for further proceedings, in which Mother may 

participate, on the Adoptive Parents’ adoption petition.

C. The arguments raised by the dissent are unpersuasive

¶51 The dissent disagrees with our resolution of Mother’s 

substantive due process claim. At its heart, the dissent’s 

disagreement stems from a different view of the right at issue. We 

contend that the right at issue is Mother’s fundamental right to 

parent—a right firmly rooted in our history and case law. Because 

we view the right at issue to be fundamental, any governmental 

__________________________________________________________

provision in Utah Code section 78B-6-110(6)(b) and to the facts of 

this case.

We also note that the dissent criticizes our decision on the

ground that “strict procedural compliance” is “at a premium” in

the “adoption arena.” See infra ¶ 207 (Lee, A.C.J., dissenting). But in

so doing, the dissent fails to engage with the specific and narrow

reasoning in our decision. Instead, it argues only that “statutory

procedures for natural parents to participate in and assert their

rights” are a core element in the state’s effort to facilitate adoptions.

See infra ¶ 207 (Lee, A.C.J., dissenting). We take no issue with this

general statement. But the dissent has failed to explain how the

strict compliance requirement would have aided the State’s effort

to facilitate adoptions in this case. As we have discussed, in this

case, Mother’s timely attempt to intervene provided the court and

the Adoptive Parents all of the information that a strictly compliant

motion to intervene would have. For this reason, our decision in no 

way hinders the interests advanced by the procedural

requirements of the Adoption Act.

The dissent also suggests that, by subjecting the procedural 

requirements of the Adoption Act to a substantive due process 

review, we are foreclosing the state’s ability to impose procedural 

time bars in the adoption setting. See infra ¶ 213 (Lee, A.C.J.,

dissenting). But our case law makes clear that procedural 

requirements have long been subject to substantive due process. 

And the dissent’s suggestion that subjecting procedural 

requirements to the demands of substantive due process will 

upend all procedural requirements misses the mark. Indeed, in this 

very case, we have upheld other procedural requirements in 

section 110—including section 110’s thirty-day filing 

requirement—as being narrowly tailored to further the state’s 

interest in prompt adoptions.
Cite as: 2020 UT 51

Opinion of the Court

25

infringement of that right is subject to strict scrutiny review.93 And 

in applying our well-established strict scrutiny test, we have 

determined that the state violated Mother’s fundamental parental 

rights when it terminated those rights despite Mother’s timely, and 

substantially compliant, attempt to intervene. In other words, 

because the strict compliance requirement did not further the 

State’s compelling, adoption-related interests in this case, we hold 

that the strict compliance requirement is unconstitutional as 

applied in this case.

¶52 The dissent, in contrast, argues that the rights at issue in 

this case are not Mother’s parental rights—the rights that were 

terminated by the State. Instead, it argues that the right at issue is 

Mother’s right to retain her right to parent despite a failure to comply 

with procedural requirements. In other words, rather than asking 

whether Mother, as K.T.B.’s biological mother, has a 

constitutionally protected interest in engaging in any of the 

conduct inherent in the parent-child relationship, the dissent asks 

whether Mother has a constitutionally protected interest in being 

free from a particular form of governmental interference. But we 

reject this characterization of the right at issue because it is 

inconsistent with our case law, and it would lead us to entirely 

overlook the substantial parental interests at the heart of this case.

¶53 But before we discuss the specific ways in which the 

dissent’s approach is inconsistent with our case law, we also note 

that, as a practical matter, the dissent’s approach would strip 

Mother’s parental rights of their fundamental status. The dissent 

concedes that Mother had fundamental parental rights. And it 

cannot dispute that those fundamental rights were terminated by 

the State. Despite this, the dissent argues that the relevant right at 

issue in this case is not one of the fundamental rights that were 

terminated, but Mother’s right to retain her fundamental parental 

rights. And, according to the dissent, this newly identified right is 

not fundamental and so its infringement need not be reviewed 

under our strict scrutiny standard. In other words, although the 

dissent concedes that at least some of Mother’s parental rights were 

fundamental before they were terminated,94 it does not explain 

how we should analyze Mother’s loss of those fundamental rights. 

So the dissent’s proposed approach either ignores Mother’s 

__________________________________________________________

93 See Jones, 2015 UT 84, ¶ 26.

94 See infra ¶ 179 (Lee, A.C.J., dissenting).
IN RE K.T.B.

Opinion of the Court

26

pre-existing fundamental parental rights or treats them as if her 

failure to strictly comply with the challenged procedural 

requirements transformed her fundamental rights into the less 

valuable right the dissent argues is at issue in this case.95 The 

practical effect of this approach is that any procedural requirement 

triggering the forfeiture of fundamental rights is immune from 

strict scrutiny review because the right to retain those rights is not 

fundamental. For this reason, we reject the dissent’s approach.

¶54 We also reject the dissent’s approach because it is 

inconsistent with our case law. It is inconsistent for two reasons. 

First, it is inconsistent because it departs from the manner in which 

we, or the United States Supreme Court, have defined parental

rights in parental rights termination cases.

96 Second, it is 

inconsistent because it leads to a misapplication of the doctrine of 

forfeiture.

__________________________________________________________

95 The dissent pushes back on the notion that its approach 

transforms the fundamental nature of the underlying parental

rights into something less than fundamental. See infra ¶ 157 n.215 

(Lee, A.C.J., dissenting) (“The fundamental nature of the

underlying parental right stays the same throughout—my point is

just that the right at issue here is distinct from that underlying

right.”). But in so doing, the dissent confirms that it is ignoring the

termination of the underlying fundamental right altogether. In

other words, the dissent confirms that, under its approach, state

action to terminate a fundamental parental right need not satisfy

strict scrutiny review so long as the parent failed to comply with a

procedural requirement—a procedural requirement that need not

be narrowly tailored to further a compelling state interest.

96 Although we reject the dissent’s argument because it

mischaracterizes the right at issue, we note that our case law does

in fact establish that Mother’s right to retain her parental rights is

fundamental. We have held that mothers have a fundamental right

to “maintain parental ties” to their children, In re J.P., 648 P.2d at

1377, to not be “deprived of parental rights without a showing of

unfitness, abandonment, or substantial neglect,” id. at 1375, “to

sustain [their] relationship with [their] child,” id. at 1372, and “to

object to an adoption,” In re Adoption of J.S., 2014 UT 51, ¶ 2. Because

our case law makes clear that Mother has a fundamental right to

retain her parental rights, even under the dissent’s characterization

of the right at issue the dissent’s argument fails.
Cite as: 2020 UT 51

Opinion of the Court

27

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

¶55 We reject the dissent’s argument because it is based on a 

mischaracterization of the right at issue. According to the dissent, 

the right at issue is not Mother’s parental rights, but her “right to 

retain parental rights despite failing to comply with required 

procedure.”97 But this mischaracterizes the right at issue in two 

ways. First, it incorrectly defines the right by referencing the 

manner—forfeiture triggered by a procedural default—in which 

the government interfered with Mother’s parental rights. Because 

this characterization of Mother’s right would mark a fundamental 

departure from the way courts have traditionally defined parental 

rights, we reject it.

¶56 Second, the dissent mischaracterizes the right at issue by 

failing to account for a key distinction between the nature of the 

rights of an unmarried biological mother and an unmarried 

biological father. Throughout its opinion, the dissent relies upon 

cases in which we or the United States Supreme Court dealt with 

the provisional, or inchoate, parental rights of unmarried biological 

fathers. Because the case law clearly establishes that mothers have 

a “retained” fundamental right in their children, whereas 

unmarried fathers have only provisional rights that must be 

perfected through compliance with procedure or some other 

means, the dissent’s argument fails.98

a. The dissent errs in defining the right in reference to the form 

of governmental interference

¶57 We first address the dissent’s attempt to characterize the 

right at issue by referencing the procedural requirement that 

triggered the forfeiture of Mother’s parental rights. It states that the 

right at issue is the “right to retain parental rights despite failing to

__________________________________________________________

97 See infra ¶ 135 (Lee, A.C.J., dissenting) (emphasis added).

98 In reJ.P., 648 P.2d at 1375 (explaining that the right of a mother

“not to be deprived of parental rights without a showing of

unfitness, abandonment, or substantial neglect is so fundamental

to our society and so basic to our constitutional order . . . that it

ranks among those rights referred to in Article I, [section] 25 of the

Utah Constitution and the Ninth Amendment of the United States

Constitution as being retained by the people.” (emphasis added); see

also id. at 1372 (explaining that a mother “has a fundamental right,

protected by the Constitution, to sustain [her] relationship with

[her] child” (citation omitted) (internal quotation marks omitted)).
IN RE K.T.B.

Opinion of the Court

28

comply with required procedure.”

99 To be clear the dissent does not 

dispute that at least some parental rights are fundamental.100 Nor 

does it dispute that Mother lost all of her parental rights in this case. 

But, according to the dissent, the right at issue in this case is not 

Mother’s fundamental right to parent (the right that was forfeited), 

but her right to retain that fundamental right despite her 

noncompliance with the challenged procedural requirement. In 

defining the right at issue in this way, the dissent adopts a novel 

approach to defining due process rights in parentage cases—an 

approach that effectively deprives Mother’s fundamental parental 

rights of the heightened protection our case law would typically

provide.101

¶58 The dissent’s mischaracterization of the right in this case 

appears to rest on a misconception of how we typically define

parental rights. By incorporating a reference to the challenged 

governmental interference in this case—the procedural 

requirements that triggered the judicially imposed forfeiture of 

Mother’s parental rights—into its definition of the right at issue, the 

dissent would have us define the right at issue based on the 

particular form the governmental interference takes. That is not 

how the United States Supreme Court, nor we, have defined 

parental rights in the past.

¶59 Under the approach established by the Supreme Court, the 

nature of parental rights is defined based on (1) the status of the 

individual invoking the right and (2) the parental conduct to be 

protected. For example, in one of the Supreme Court’s seminal 

parental rights cases, Meyer v. Nebraska, the Court explained that 

the “liberty” component of the Due Process Clause includes “the 

right of the individual to . . . establish a home and bring up 

children.”

102 The Court then specifically concluded that this liberty 

right included the right of “parents to control the education of their 

own.”103 So the Court defined the right to parent by referring to the 

__________________________________________________________

99 Infra ¶ 135 (Lee, A.C.J., dissenting).

100 See infra ¶ 179 (Lee, A.C.J., dissenting).

101 Jones, 2015 UT 84, ¶ 26 (“When the court has recognized a due

process right it deems ‘fundamental,’ it consistently has applied a

standard of strict scrutiny to the protection of such a right.”).

102 262 U.S. 390, 399 (1923).

103 Id. at 401 (emphasis added).
Cite as: 2020 UT 51

Opinion of the Court

29

status of the individual claiming the right—the individual’s status 

as a parent—and by referring to the conduct to be protected—the 

education of children.

¶60 Following Meyer, the Supreme Court has repeatedly 

looked to the status of the individual and the conduct to be 

protected before determining whether the individual’s claim fell 

within the umbrella of parental rights. For example, the Court has 

looked to an individual’s parental status in distinguishing between 

the rights of parents and grandparents104 and between biological 

parents and foster parents.105 And, importantly for this case, this 

court has distinguished between the rights of unmarried biological 

fathers and unmarried biological mothers.106

¶61 The Supreme Court has also looked to the conduct to be 

protected in determining that the right to parent included the right 

to homeschool,107 the right “to direct the religious upbringing of 

[the parent’s] children,”108 and, in a long line of cases, “the 

fundamental right of parents to make decisions concerning the 

care, custody, and control of their children.”109 We also note that 

the Supreme Court has made clear that parental rights protect 

against all forms of “government interference.”110

¶62 Thus Supreme Court precedent makes clear that we 

should characterize the parental right at issue in a given case by 

referring to (1) the status of the individual invoking the right and 

(2) the parental conduct to be protected. And our ultimate 

characterization of the right does not depend on the form of 

governmental interference at issue. But that is not how the dissent 

would have us characterize the parental right in this case.

¶63 The dissent characterizes the parental right in this case as 

the “right to retain parental rights despite failing to comply with 

__________________________________________________________

104 See Troxel v. Granville, 530 U.S. 57, 65–73 (2000).

105 See Smith v. Org. of Foster Families For Equality & Reform, 431 

U.S. 816, 842–47 (1977).

106 See supra ¶¶ 33–37.

107 Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary,

268 U.S. 510, 534 (1925).

108 Wisconsin v. Yoder, 406 U.S. 205, 233 (1972).

109 Troxel, 530 U.S. at 66 (compiling cases).

110 Id. at 65.
IN RE K.T.B.

Opinion of the Court

30

required procedure.”111 So rather than asking whether parental

conduct falls within the umbrella of protected parental rights, the 

dissent asks whether parents have a recognized right to be free of a 

particular form of governmental interference—in this case, a 

judicially imposed forfeiture of all parental rights. Accordingly, 

under the dissent’s approach, it is the nature of the governmental 

interference, rather than Mother’s parental status (an unmarried 

biological mother)112 or the conduct in which she would like to 

engage (all parental conduct, or, at the very least, the maintaining 

of her parental rights)113 that would define her parental right. This

characterization of the right at issue would mark a significant 

departure from the Supreme Court’s method of defining parental 

rights.

¶64 The dissent disagrees. Although it concedes that, under 

controlling precedent, parental rights are defined by the status of 

the individual invoking the right and the conduct to be protected, 

it nevertheless argues that its approach is consistent with this 

precedent because it has merely adopted a narrower view of “the 

precise form of parental conduct at issue.”

114 So, according to the 

__________________________________________________________

111 See infra ¶ 135 (Lee, A.C.J., dissenting) (emphasis added).

112 In re adoption of J.S., 2014 UT 51, ¶ 2 (“Unwed mothers acquire

parental rights—and the accompanying right to object to an

adoption—as a result of the objective manifestation of the

commitment to the child that is demonstrated by their decision to

carry a child to term.”).

113 In re J.P., 648 P.2d at 1377 (“For the reasons and upon the

precedents discussed above, we conclude that the Utah

Constitution recognizes and protects the inherent and retained

right of a parent to maintain parental ties to his or her child . . . .”

(emphasis added)).

114 See infra ¶ 129 (Lee, A.C.J., dissenting). The dissent argues 

that our approach “conflates the parental conduct that is being 

terminated . . . with the conduct triggering that termination.” See

infra ¶ 146 n.211 (Lee, A.C.J., dissenting). From this it appears that, 

in the dissent’s view, the focus of our substantive due process 

review should not be on the state action at issue (termination of all 

parental rights) nor on the nature of the rights being terminated

(fundamental) but on whether a parent’s conduct in failing to 

comply with a procedural requirement was also constitutionally 

(Continued)
Cite as: 2020 UT 51

Opinion of the Court

31

dissent, our disagreement regarding the nature of the right at issue 

is merely a disagreement regarding the “level of generality at 

which an asserted right [should be] framed.”115

¶65 The dissent’s narrow framing fails because, in defining the 

“conduct” at issue by referencing the form of governmental 

interference at issue, the dissent fails to identify any parental

conduct. And when we correctly identify the parental conduct at 

issue in this case, it is clear that we have framed the right 

appropriately.

¶66 The dissent explains that it has narrowly framed “the 

relevant conduct” by “asking whether there is a right to an 

exemption from procedural default.”116 Although it is unclear 

whether “an exemption from procedural default” constitutes 

conduct in any sense, even were we to accept it as such it would not 

constitute the type of parental conduct the Supreme Court uses to 

define parental rights. In identifying the relevant parental conduct 

in its past cases, the Supreme Court focuses on the parent’s conduct 

directed at the parent’s child, not conduct directed at, or from, the 

State. For example, in Wisconsin v. Yoder, the Supreme Court 

identified the relevant conduct as the parents’ conduct in providing 

a religious education and upbringing to their children.117 The Court 

explained that the case involved “the fundamental interest of 

parents . . . to guide the religious future and education of their 

children” and it explained that this right had been “established 

beyond debate as an enduring American tradition.”118 So, in 

defining the conduct at issue, the Yoder Court focused on the 

__________________________________________________________

protected conduct. So it follows that, under the dissent’s approach, 

where the parent lacked a constitutionally protected right to not 

comply with a procedural requirement, the state is free to terminate 

all of the parent’s constitutionally protected rights, including 

fundamental ones, even where the procedural requirement 

allegedly justifying the state’s action is not narrowly tailored to 

further a compelling state interest (the test the state usually must 

pass before it terminates a fundamental right).

115 See infra ¶ 146 (Lee, A.C.J., dissenting).

116 See infra ¶ 146 (Lee, A.C.J., dissenting).

117 Yoder, 406 U.S. at 232.

118 Id.
IN RE K.T.B.

Opinion of the Court

32

parents’ interactions with their children and asked whether the 

parent had a fundamental right to so interact.

¶67 In contrast to the Yoder court’s framing of the relevant 

parental conduct, the dissent frames the relevant conduct by 

focusing on Mother’s interactions with the State. The dissent 

explains that Mother does not have a fundamental right to be free 

of the consequences of a State-imposed forfeiture of parental rights 

because she has failed to “establish a tradition of protecting 

parental rights despite a procedural default.” This is inconsistent 

with the Supreme Court’s approach in Yoder and other parental 

rights cases. 

¶68 Had the Yoder Court defined the right in that case, as the 

dissent does here—by defining it in terms of the parent’s 

interactions with the State—it would have focused on whether the 

“American tradition” had established a parent’s right to be free 

from criminal prosecution despite the parent’s violation of a 

legislative enactment. So the dissent’s focus on the form of 

governmental interference at issue is clearly inconsistent with the 

Court’s framing of the parental right in Yoder.

¶69 The dissent also errs in attempting to narrow the scope of 

the relevant parental conduct in this case. Although the dissent 

correctly notes that the level of generality at which an asserted right 

is framed may be an outcome-determinative issue in some cases, its 

suggestion that the level of generality is an issue in this case 

conflicts with controlling precedent.

¶70 The level of generality at which an asserted right is framed 

may properly be considered an unresolved issue only where a 

party argues that the Due Process Clause protects someone whose 

(1) status or (2) conduct had not previously received constitutional 

protection. For example, in Smith v. Organization of Foster Families 

For Equality and Reform, the Supreme Court considered whether the 

“liberty” interest protected by the Due Process Clause extended to 

individuals in “their status as foster parents.”119 In considering this 

question, the Court considered the differences between biological 

families, which are created without state involvement, and foster 

families, which “have their origins in an arrangement in which the 

State has been a partner from the outset.”120 Reasoning that the 

“contours” of the liberty interest protected by the Due Process 

__________________________________________________________

119 431 U.S. at 839 (emphasis added).

120 Id. at 845.
Cite as: 2020 UT 51

Opinion of the Court

33

Clause did not have its source “in state law,” “but in intrinsic 

human rights, as they have been understood in this Nation’s 

history and tradition,” the Court concluded that the “foster 

parents” liberty interest received only the “most limited 

constitutional” protection. So, in Smith, the Supreme Court 

resolved a novel question regarding the constitutional protections 

provided to someone with a particular parental status by 

narrowing—to exclude foster parents—the parental status needed 

to receive full protection under the Due Process Clause.

¶71 The same is true of the Court’s decision in Michael H. v. 

Gerald D., the case upon which the dissent’s level-of-generality 

argument principally relies.121 The dissent relies on this case to 

argue that the Supreme Court “has never conclusively established 

a governing standard” for defining the level of generality at which 

an asserted right is framed.122 And, for this reason, the dissent states 

that it is free to define the right at issue as it does. But the 

level-of-generality discussion in Michael H. does not support the 

dissent’s proposed framing of the right in this case.

¶72 In Michael H., an unmarried father asserted a fundamental 

parental interest in a daughter who was born into a woman’s 

existing marriage with another man.

123 So, as in Smith, the Court in 

Michael H. had to decide whether the “liberty” interest protected by 

the Due Process Clause extended to an individual whose parental 

status had not previously been recognized as deserving full 

due-process protection.124 The justices who joined the plurality 

opinion opted to construe the status of the unmarried father 

narrowly—as an unmarried father of a daughter born into a 

woman’s existing marriage with another man. The dissent, in 

contrast, would have construed the status of the father in more 

general terms—as a parent or father. So the competing opinions in 

__________________________________________________________

121 491 U.S. 110 (1989).

122 See infra ¶ 147 (Lee, A.C.J., dissenting).

123 491 U.S. at 125.

124 Id., 491 U.S. at 124 (“Thus, the legal issue in the present case

reduces to whether the relationship between persons in the

situation of Michael and Victoria [(an unmarried father’s

relationship with his daughter, who was born while her mother

was married to another man)] has been treated as a protected

family unit under the historic practices of our society, or whether

on any other basis it has been accorded special protection.”).
IN RE K.T.B.

Opinion of the Court

34

Michael H. suggest that where an individual asserts a fundamental 

parental right based on a parental status (or parental conduct) that 

had not previously been recognized as deserving constitutional 

protection, the level of generality at which the court defines the 

parental status (or conduct) may be an outcome-determinative

issue.

¶73 But the level-of-generality problem discussed in Michael H.

is not an issue in this case, because our case law has already 

established the level of protection the Due Process Clause provides

to a biological mother’s parental right in a parental rights 

termination case. In fact, the dissent concedes that Mother’s 

parental status—as a biological mother—affords her certain, 

fundamental parental rights. The dissent’s only disagreement, 

therefore, is over our broad characterization of the parental conduct 

at issue. But our case law makes clear that, where the government 

is attempting to terminate all parental rights, courts should define 

the parental right broadly to encompass the full spectrum of 

constitutionally protected parental conduct inherent in the 

parent-child relationship. In other words, the “parental conduct” at 

issue in a parental rights termination case encompasses the entire 

bundle of parental rights, including the parent’s fundamental 

rights to homeschool,125 “to direct the religious upbringing of [the 

parent’s] children,”126 “to make decisions concerning the care, 

custody, and control of their children,”127 and any other right that 

will be terminated as a result of the State’s termination proceeding.

¶74 That the conduct at issue in parental rights termination 

cases encompasses the full spectrum of parental conduct is made 

apparent in the Supreme Court’s decision in Stanley v. Illinois.

128 In 

that case, the Court determined whether the State of Illinois’ 

“method of procedure,” which created a presumption that 

unmarried fathers were unfit parents, violated principles of due 

process.129 As a result of this procedural rule, the father in the case 

lost his parental rights in his children. In resolving this case, the 

Court explained that the “issue at stake [was] the dismemberment 

__________________________________________________________

125 Pierce, 268 U.S. at 534.

126 Yoder, 406 U.S. at 233.

127 Troxel, 530 U.S. at 66 (compiling cases).

128 405 U.S. 645 (1972).

129 Id. at 647.
Cite as: 2020 UT 51

Opinion of the Court

35

of [the father’s] family.”130 And throughout the opinion, it referred 

to the right or interest at issue variously as the interest “of a man in 

the children he has sired and raised,”131 as the “rights to conceive 

and to raise one’s children,”132 as the right of “custody, care and 

nurture of the child,”133 and as an interest in the “integrity of the 

family unit.”134 So the Court did not narrowly frame the right by 

defining it as a right to be free from a particular procedural rule, as 

the dissent would have us do here. Instead, it described the right

broadly, and more accurately, to encompass all of the interests in 

parental conduct the father would have lost were the state’s 

“method of procedure” upheld.

¶75 The Court treated the relevant parental conduct similarly 

in Quilloin v. Walcott.

135 There the issue presented was once again 

whether a state could “force the breakup of a natural family” 

through a procedural mechanism that provided fewer protections 

to unmarried fathers than it did to mothers.136 Although, based on 

the father’s unmarried status, the Court ultimately upheld this 

procedure as constitutional, the Court consistently referred to the 

interest at issue in the case as an interest to engage generally in 

parental conduct.137 So the decision in Quilloin likewise suggests 

that, in parental rights termination cases, we must take a broad 

view of the relevant parental conduct.

138

¶76 Our past parental rights termination cases have also 

described the parental conduct in broad terms. For example, in one 

__________________________________________________________

130 Id. at 658.

131 Id. at 651.

132 Id.

133 Id.

134 Id.

135 434 U.S. 246 (1978).

136 Id. at 255 (citation omitted).

137 Id. (describing the parental right as an interest in having a

“relationship between parent and child”).

138 See also Lehr v. Robertson, 463 U.S. 248, 256–58 (1983)

(discussing the parental right variously as an interest in the

“intangible fibers that connect parent and child,” “family

relationships,” and as including fundamental rights previously

recognized by Supreme Court precedent).
IN RE K.T.B.

Opinion of the Court

36

of our earliest parental rights termination cases, In re J.P., we 

emphasized that the case “involve[d] a permanent termination of 

all parental rights.”

139 And we explained that “all parental rights” 

included fundamental rights “to sustain [a parent’s] relationship 

with his [or her] child,” “to direct the upbringing and education of 

children,” and a right in “the custody, care and nurture of the 

child.”140 So, consistent with the Supreme Court precedent, we

characterized the type of “parental conduct” at issue in parental 

rights termination cases in broad terms.

¶77 Following our decision in In re J.P., our decisions in 

parental rights termination cases have consistently referred to the 

relevant parental conduct in broad terms. For example, in Wells v. 

Children’s Aid Society of Utah, we stated broadly that the 

“relationship between parent and child is protected by the federal 

and state constitutions.”141 And in In re adoption of J.S., we 

acknowledged “a fundamental right for a mother not to lose her 

rights to her child absent proof of unfitness, abandonment, or 

neglect,”142 as well as the fundamental parental interest that a 

father has “in the children he has sired and raised.”143 We also cited 

our decision in In re J.P. for the proposition that the “integrity of the 

family and the parents’ inherent right and authority to rear their own 

children have been recognized as fundamental axioms of 

Anglo-American culture, presupposed by all our social, political, 

and legal institutions.”144 As these cases illustrate, in parental rights 

termination cases, we have consistently described the relevant 

parental conduct protected by the Due Process Clause in broad 

terms.

145 And in defining parental conduct, we have never defined 

__________________________________________________________

139 648 P.2d at 1366.

140 Id. at 1372.

141 681 P.2d at 202.

142 2014 UT 51, ¶ 38.

143 Id. ¶ 40 (citation omitted).

144 Id. ¶ 39 (emphasis added).

145 The dissent relies on our decision in In re adoption of J.S. to

argue that we must narrowly frame the relevant “conduct” at issue.

But the narrow framing at issue in that case did nothing to limit the 

scope of relevant parental conduct. Instead, it more narrowly 

construed the parental status—to exclude unmarried fathers who 

(Continued)
Cite as: 2020 UT 51

Opinion of the Court

37

it, as the dissent does in this case, by referencing the particular form 

of governmental interference. Accordingly, the level-of-generality 

problem identified by the dissent is not at issue in this case, and the

dissent’s purported framing of the relevant conduct in this case is 

inconsistent with our case law.

¶78 In sum, Supreme Court precedent makes clear that 

parental rights should be characterized based on (1) the status of 

the individual invoking the right and (2) the parental conduct to be 

protected. The dissent’s characterization of the right, in contrast, 

defines the right in reference to the form of governmental 

interference. In other words, rather than asking whether Mother, as 

K.T.B.’s biological mother, has a constitutionally protected interest 

in engaging in any of the conduct inherent in the parent-child 

relationship, the dissent asks whether Mother has a constitutionally 

protected interest in being free from a particular form of 

governmental interference. Because such a characterization of the 

right at issue is inconsistent with our case law, and would lead us 

to entirely overlook the substantial parental interests at the heart of 

this case, we reject it.

b. The dissent errs in failing to distinguish between the 

constitutionally protected status of biological mothers and 

the provisional parental status of unmarried biological 

fathers

¶79 Additionally, we also reject the dissent’s characterization 

of the right at issue in this case because it fails to account for a key 

distinction between the nature of the rights of a biological mother 

and the rights of an unmarried biological father. As we have

__________________________________________________________

had not perfected their parental rights—deserving full due process 

protection. See id. ¶ 2 (“Unwed mothers acquire parental rights—

and the accompanying right to object to an adoption—as a result of

the objective manifestation of the commitment to the child that is

demonstrated by their decision to carry a child to term. An unwed

father’s legal obligation to file the paternity affidavit is a rough

counterpart to the mother’s commitment.”). So our decision in In re

adoption of J.S. merely reaffirmed an important distinction, based on

parental status, between mothers and unmarried fathers that had

previously been established in our case law. See In re J.P., 648 P.2d

at 1374–75 (distinguishing between the variation in the protections

afforded unwed fathers before noting that, “[i]n contrast, no similar

variation exists among mothers who are unwed”).
IN RE K.T.B.

Opinion of the Court

38

discussed, parental rights should be defined based, in part, on the 

status of the individual invoking the right. And our case law has 

firmly established a clear distinction between the parental status of 

mothers and unmarried fathers. But, despite this, the dissent 

attempts to apply unmarried father cases to the facts of this case. 

Because the case law clearly establishes that mothers have a 

“retained” fundamental right in their children, whereas unmarried 

fathers have only provisional rights that must be perfected through 

compliance with procedure or some other means, the dissent’s 

argument fails.146

¶80 We first addressed the distinction between the nature of 

the parental rights of a mother and an unmarried biological father 

in In re J.P.147 In that case, we considered an unmarried biological 

mother’s challenge to a statute that permitted a court to “decree an 

involuntary termination of all parental rights solely on the basis of 

a finding that such termination will be in the child’s best 

interest.”148 We began our review of the mother’s challenge by 

summarizing the United States Supreme Court’s decisions in 

Stanley and Quilloin as standing for the proposition that “[s]ome 

variation [in the protection provided by the Due Process Clause] 

exists among unwed fathers.”149

¶81 So, under the rule established in those decisions, we 

explained that unwed fathers “who have fulfilled a parental role 

over a considerable period of time are entitled to a high degree of 

protection” but “unwed fathers whose relationships to their 

children are merely biological or very attenuated may, in some 

__________________________________________________________

146 In re J.P., 648 P.2d at 1375 (explaining that the right of a

mother “not to be deprived of parental rights without a showing of

unfitness, abandonment, or substantial neglect is so fundamental

to our society and so basic to our constitutional order . . . that it

ranks among those rights referred to in Article I, [section] 25 of the

Utah Constitution and the Ninth Amendment of the United States

Constitution as being retained by the people.” (emphasis added)

(citation omitted)); see also id. at 1372 (explaining that a mother “has

a fundamental right, protected by the Constitution, to sustain [her]

relationship with [her] child” (citation omitted) (internal quotation

marks omitted)).

147 Id. at 1374–75.

148 Id. at 1374 (internal quotation marks omitted).

149 Id.
Cite as: 2020 UT 51

Opinion of the Court

39

circumstances, be deprived of their parental status merely on the 

basis of a finding of the ‘best interest’ of the child.”150 Thus the 

nature of an unmarried father’s right may vary from case to case 

depending on what the father has done to develop a relationship 

with his child.151

¶82 But in contrast to unwed fathers, we explained that “no 

similar variation exists among mothers who are unwed” and that 

“all unwed mothers are entitled to a showing of unfitness before 

being involuntarily deprived of their parental rights.”152 And we 

explained that this right “is so fundamental to our society and so 

basic to our constitutional order . . . that it ranks among those rights 

. . . retained by the people.”153

¶83 So our discussion of parental rights in In re J.P. makes clear 

that only unmarried fathers need comply with procedural 

mechanisms to perfect their parental rights. In other words, the 

parental status of all biological mothers, whether married or 

unmarried, gives mothers a right to not “be deprived of parental 

rights without a showing of unfitness, abandonment, or substantial 

neglect,” and this right is not contingent upon compliance with any 

procedural requirement that the state may establish. Accordingly, 

the dissent’s discussion of Mother’s rights in this case is 

inconsistent with our holding in In re J.P.

¶84 The dissent’s discussion of Mother’s rights is also 

inconsistent with our holding in In re Adoption of J.S.154 As our 

discussion of In re J.P. above makes clear, an unmarried father’s 

parental right is “merely provisional” until the father takes steps to 

perfect it. And in In re Adoption of J.S., we considered an unwed 

__________________________________________________________

150 Id. at 1375.

151 We note that in later cases we have clarified that an

unmarried father may perfect his right by complying with certain

provisions in the Adoption Act, which include such requirements

as filing an affidavit of paternity. See, e.g., In re Adoption of J.S., 2014

UT 51, ¶ 2 (explaining that the provision describing a paternity

affidavit “prescribes the requirements that an unwed father must

meet in order to secure the right to assert his parental rights and

object to an adoption”).

152 In re J.P., 648 P.2d at 1375.

153 Id. (emphasis added).

154 2014 UT 51.
IN RE K.T.B.

Opinion of the Court

40

father’s challenge to provisions in the Adoption Act that provided 

a procedural mechanism for unwed fathers to perfect their parental 

rights.155 Echoing the distinction between mothers and unmarried 

biological fathers we made in In re J.P., we explained that “[u]nwed

mothers acquire parental rights—and the accompanying right to 

object to an adoption—as a result of the objective manifestation of 

the commitment to the child that is demonstrated by their decision 

to carry a child to term.”156 But with unmarried fathers there is no 

such “objective manifestation,” so the father’s “legal obligation to 

file the paternity affidavit” described in the Adoption Act serves as 

“a rough counterpart to the mother’s [objective] commitment” to 

her child.157 Based on this distinction, we stated that a child may be 

placed for adoption only “if the mother and father choose to waive 

[their parental] right[s]—or in the case of a father, fails to assert the 

right by filing the paternity affidavit in a timely fashion.”158 So our 

decision in In re Adoption of J.S. recognized that the vested nature of 

a mother’s parental rights meant that only unmarried fathers could 

lose their rights to their children by failing to comply with 

state-instituted procedure.

¶85 With this distinction in mind, we proceeded to the merits 

of the unmarried father’s claim. After noting that the father had not 

brought a procedural due process claim, we then proceeded to 

analyze the Adoption Act’s paternity affidavit requirement under 

a substantive due process analysis.159 In so doing, we noted that 

procedural limitations “may be challenged on either procedural or 

substantive due process grounds.”160 And that a substantive due 

process claim may be brought where otherwise fair procedures are 

__________________________________________________________

155 Id. ¶ 2.

156 Id. By “saying that the established procedures determine how 

and whether [Mother’s parental] right is preserved,” the dissent 

fails to account for this key distinction. Infra ¶ 205 (Lee, A.C.J., 

dissenting).

157 In re Adoption of J.S., 2014 UT 51, ¶ 2.

158 Id. (emphases added).

159 Id. ¶ 6.

160 Id. ¶ 22 (emphases omitted).
Cite as: 2020 UT 51

Opinion of the Court

41

alleged to be unfair in light of the “fundamental or important” right 

they foreclose.161

¶86 We then analyzed the nature of the right of the unmarried 

father. Although we recognized that we had already determined 

that the parental rights of mothers are fundamental (in In re J.P.), 

we clarified that this labeling had been limited to mothers because 

of “extensive historical evidence of the ‘deeply rooted’ nature of [a 

mother’s] right.”162 A plurality of the court then noted that the 

father in the case had not made the “required showing of ‘deeply 

rooted’ history and tradition [that] was made in J.P. [regarding the 

rights of mothers],”163 and so, absent such a showing, the father’s 

substantive due process claim would be reviewed on the 

“deferential, fallback standard of rationality or arbitrariness.”164

Accordingly, our discussion of parental rights in In re Adoption of 

J.S. clarified that the parental rights of mothers are fundamental, 

requiring strict scrutiny analysis, but the parental rights of 

unmarried fathers are merely provisional, absent some future 

showing of “extensive historical evidence” that unmarried father’s 

rights are likewise fundamental.

¶87 As this discussion of In re J.P. and In re Adoption of J.S.

demonstrates, our case law has established a significant distinction 

between the parental rights of unmarried biological mothers and 

unmarried biological fathers. Under this distinction, the 

fundamental parental rights of a mother are not contingent on 

compliance with any procedural requirements that may be 

imposed by the state. Because the dissent’s characterization of the 

right at issue, and its discussion of our previous cases, fails to 

adequately account for this significant distinction, its argument 

fails.

¶88 In fact, even though the dissent concedes that Mother, 

based on her parental status as a biological mother, did not need to 

strictly comply with the procedures in the Adoption Act to render 

her parental rights fundamental, it nevertheless argues that strict 

compliance was necessary to preservethe fundamental nature of her 

rights. So the dissent would create a novel framework in which a 

__________________________________________________________

161 Id.

162 Id. ¶ 39.

163 Id. ¶ 54.

164 Id. ¶ 56.
IN RE K.T.B.

Opinion of the Court

42

right, although concededly perfected and fundamental, can lose the 

protection of strict scrutiny review where the holder of the right 

fails to take on-going steps to preserve it. But the dissent cites no 

authority for such a framework. And our case law clearly refutes it.

¶89 Our case law makes clear that the fundamental parental 

right is a “retained”165 right that stems from “nature and human 

instinct,” which is “chronologically prior” to “state or federal 

statutory law.”166 It also states that the right includes a fundamental 

right for parents to “sustain” their relationships with their 

children.167 If these phrases mean anything, they mean that the 

fundamental nature of a recognized parental right does not lose its 

fundamental status because of a failure to comply with a 

procedural requirement instituted by the State.

¶90 To be clear, we are not suggesting that the state can never 

terminate a fundamental parental right based on the parent’s 

failure to comply with a statutory requirement. Instead, we are 

merely reaffirming the firmly established principle that where the 

state intervenes “to terminate [a parent-child] relationship,” that 

intervention, whether accomplished through the imposition of a 

procedural requirement or some other means, “must be 

accomplished by procedures meeting the requisites of the Due 

Process Clause.”168 Applying this principle in this case, we have 

concluded that the State’s termination of mother’s fundamental 

parental rights, based on her failure to strictly comply with a Statecreated procedural requirement, would be constitutional only if the 

procedural requirement is narrowly tailored to achieve a 

compelling state interest. The dissent’s criticism of this 

straightforward approach to substantive due process is misplaced.

¶91 Because the dissent fails to adequately account for a key 

distinction our case law has established between the status of 

biological mothers and unmarried biological fathers, it 

mischaracterizes the right at issue in this case. And the dissent’s

attempts to defend this mischaracterization by proposing a 

theoretical framework in which the state could deprive an 

individual’s fundamental rights of strict-scrutiny protection

__________________________________________________________

165 In re J.P., 648 P.2d at 1375.

166 Id. at 1373.

167 Id. at 1372.

168 Lehr, 463 U.S. at 258 (emphasis added) (citation omitted).
Cite as: 2020 UT 51

Opinion of the Court

43

through the imposition of a preservation requirement is likewise 

inconsistent with our case law.

¶92 In sum, we reject the dissent’s characterization of the right 

at issue in this case because it incorrectly defines the right at issue 

based on the particular form the governmental interference takes 

and because it fails to adequately distinguish between the 

“retained” and fundamental nature of a mother’s parental rights 

and the merely provisional nature of an unmarried father’s rights.

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

¶93 The dissent’s mischaracterization of the right at issue in 

this case is also problematic because it leads to a misapplication of 

the doctrine of forfeiture to Mother’s due process claim. As 

discussed, the dissent argues that the right at issue in this case is 

not Mother’s indisputably fundamental right to parent, but her 

right to retain that fundamental right despite her noncompliance 

with the challenged procedural requirement. Based on this 

characterization, the dissent argues that we have established a new 

right “to flout a legal filing requirement but avoid the normal 

consequence of such a move”

169 and that, under our approach, a 

fundamental right can never “be forfeited due to a procedural 

default.”170 But the dissent misreads our opinion. And its proposed 

alternative approach misapplies the doctrine of forfeiture in this 

case.

¶94 Contrary to the dissent’s characterization of our opinion, 

we are not suggesting that the “mere possession of a fundamental 

right . . . forever insulate[s] the mother from ever losing that 

right.”171 And we are not saying that fundamental rights are 

entirely “beyond the procedural reach of the State’s regulatory 

authority.”172 Instead, we are merely reaffirming the firmly 

established principle that where the state intervenes “to terminate 

[a parent-child] relationship,” that intervention, whether 

accomplished through the imposition of a procedural requirement 

or some other means, “must be accomplished by procedures meeting 

__________________________________________________________

169 See infra ¶ 126 (Lee, A.C.J., dissenting).

170 See infra ¶ 133 (Lee, A.C.J., dissenting).

171 See infra ¶ 133 n.208 (Lee, A.C.J., dissenting).

172 See infra ¶ 163 (Lee, A.C.J., dissenting).
IN RE K.T.B.

Opinion of the Court

44

the requisites of the Due Process Clause.”173 In other words, we are 

stating only that the imposition of unconstitutional procedures, as 

applied to the fundamental right in this case, is beyond the 

regulatory authority of the State.

¶95 Based on this principle, we have analyzed the facts of this 

case to determine whether the procedural mechanism through 

which the state terminated Mother’s fundamental rights was 

constitutional. And, after a straightforward application of the 

Supreme Court’s strict scrutiny standard, we have determined that 

the strict compliance provision in section 110 of the Adoption Act 

was unconstitutionally applied in this case. In other words, we are 

saying that the enforcement of the strict compliance requirement

violated the Due Process Clause because it triggered the loss of 

fundamental rights even though it was not necessary to further the 

State’s compelling adoption-related interests in this case. And we 

are saying that because the strict compliance provision violated the 

Due Process Clause, as it was applied to Mother, it cannot justify 

the State’s termination of Mother’s parental rights.

¶96 In contrast, the dissent argues that the state did not 

terminate any fundamental rights in this case, because Mother 

forfeited her rights when she failed to comply with the procedural 

requirements of the Act. But the dissent’s argument assumes, 

without analysis, that the procedural requirement that triggered 

Mother’s default was constitutional. In other words, the dissent 

avoids the central question presented by Mother’s substantive due 

process claim.

¶97 So, in effect, the dissent argues that the procedural 

requirement that authorized the state to terminate Mother’s 

fundamental parental rights is constitutional because Mother failed 

__________________________________________________________

173 Lehr, 463 U.S. at 258 (emphasis added) (citation omitted). The 

dissent cites two cases, Yakus v. United States, 321 U.S. 414, 444

(1944) and State v. Rettig, 2017 UT 83, ¶¶ 15, 17, 416 P.3d 520, for the 

proposition that constitutional rights may be forfeited through 

procedural default. We agree with this assertion. But neither Yakus

nor Rettig stand for the proposition that a party can be barred from 

challenging an unconstitutional procedural requirement due to 

that party’s failure to comply with that unconstitutional 

requirement. That proposition would be inconsistent with “the 

longstanding law of procedural default.”
Cite as: 2020 UT 51

Opinion of the Court

45

to comply with that procedure. This approach is not only circular, 

it is inconsistent with the doctrine of forfeiture.

¶98 Forfeiture “is not appropriate when it is inconsistent with 

the provision creating the right sought to be secured.”174 The 

relevant provision in this case is the Due Process Clause of the 

Constitution. As we explained above, the substantive component 

of the Due Process Clause allows plaintiffs to challenge the 

“fairness of [a] procedural bar or limitation, on the ground that the 

right foreclosed is so fundamental or important that it is protected 

from extinguishment.”175 And Due Process Clause case law has 

further clarified that “fundamental” rights may be extinguished 

through the operation of procedural provisions only where those 

provisions survive strict scrutiny review.176 So, in other words, the 

substantive component of the Due Process Clause protects 

individuals from being deprived of fundamental rights through the 

operation of procedures that are not narrowly tailored to further 

__________________________________________________________

174 New York v. Hill, 528 U.S. 110, 116 (2000). Although the 

Supreme Court in Hill addresses the issue of express waiver, rather 

than forfeiture, the principle for which we cite Hill applies equally 

in forfeiture cases. Waiver is sometimes used as an umbrella term 

encompassing all statements and acts that result in any loss of a 

right without a disposition on the merits. And we note that the Hill

Court supported its statement—that “waiver is not appropriate 

when it is inconsistent with the provision creating the right sought 

to be secured”—by citing a case that is best characterized as a 

forfeiture case. Id. at 116 (citing Crosby v. United States, 506 U.S. 255, 

258–59 (1993) (holding that a criminal defendant’s right to be 

present at the beginning of trial cannot be forfeited through a 

failure to be present)).

175 In re B.Y., 2015 UT 67, ¶ 41 (alteration in the original) (internal

quotation marks omitted). So, by arguing that Mother is precluded 

from challenging the fairness of procedural bars on substantive due 

process grounds, the dissent would have us implicitly overturn the 

rule we established in In re B.Y.

176 See, e.g., Quilloin, 434 U.S. at 254–55 (applying a substantive 

due process analysis to a challenge of a procedural provision);

Stanley, 405 U.S. at 650 (applying a substantive due process analysis

to an Illinois “procedure”).
IN RE K.T.B.

Opinion of the Court

46

compelling state interests.177 And, as our analysis above 

demonstrates, the procedural requirements that triggered the loss 

of Mother’s fundamental parental rights were not narrowly 

tailored. So applying the doctrine of forfeiture to defeat Mother’s 

substantive due process claim in this case would be inconsistent 

with the Due Process Clause.

¶99 Because forfeiture “is not appropriate when it is 

inconsistent with the provision creating the right sought to be 

secured,”178 and the dissent’s proposed application of forfeiture in 

this case would be inconsistent with the substantive component of 

the Due Process Clause, we reject the dissent’s forfeiture argument. 

And in so doing, we clarify that the doctrine of forfeiture does not 

prevent an individual from challenging the constitutionality of a 

procedural requirement based on the individual’s failure to comply 

with that procedural requirement.

¶100 Accordingly, we reject the arguments the dissent raises 

for two reasons. First, we reject them because the dissent

mischaracterizes the right at issue; second, we reject them because 

__________________________________________________________

177 See also Stanley, 405 U.S. at 647 (applying the strict scrutiny 

standard where a state terminated a fundamental right through a 

“method of procedure”). The dissent states that strict scrutiny need 

not be applied in every instance in which a state terminates 

parental rights, but the only support for this position comes from 

cases far outside the parental rights field of law. The dissent argues 

that the “‘fundamental’ nature of a given right is not alone enough 

to trigger strict scrutiny of any procedural regulation of that right.” 

See infra ¶ 159 (Lee, A.C.J., dissenting). It then cites cases involving 

abortion rights, the right to free speech, the right to free exercise of 

religion, and the right to vote. See infra ¶ 159 (Lee, A.C.J.,

dissenting). But we do not view these cases, in which the Supreme 

Court articulated exceptions to the general rule based on the 

unique nature of the right at issue, to be relevant to this case. This 

case deals with the termination of all parental rights of a biological 

mother. And controlling precedent has clearly set forth the 

standard of scrutiny to be applied where a state attempts to 

terminate all of a biological mother’s fundamental parental rights. 

For this reason, the cases the dissent cites from other areas of law 

are unpersuasive.

178 Hill, 528 U.S. at 116.
Cite as: 2020 UT 51

Opinion of the Court

47

the dissent misapplies the doctrine of forfeiture to the facts of this 

case.

¶101 In sum, Mother has fundamental parental rights. The 

district court severed those rights because Mother failed to strictly 

comply with the procedural requirements of section 110. Because 

the strict compliance provision in section 110 was not narrowly 

tailored, we hold that the strict compliance provision is 

unconstitutional as applied in this case.

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

¶102 We now turn to J.N.’s claim. He argues that he should 

have been allowed to intervene in the adoption proceedings after 

his marriage to Mother was judicially recognized. Although J.N.

admits that he is not the biological father, he argues that due to his 

common-law marriage to Mother, he is K.T.B.’s presumptive 

father179 and therefore was entitled to notice of the adoption 

petition under section 120 of the Adoption Act. Because the 

Adoptive Parents did not serve him with notice, he contends that 

his motion to intervene was timely, and he was therefore entitled 

to intervene in the adoption proceeding under Rule 24 of the Utah 

Rules of Civil Procedure.180 We disagree.

¶103 At the time the Adoptive Parents filed their adoption 

petition, J.N.’s marriage to Mother had not been legally recognized. 

After the court barred Mother from the adoption proceeding, J.N.

sought this recognition by filing an action in a different district 

court. He succeeded, and the second district court recognized his 

marriage as beginning “on or about June 16, 2010,” or three months 

__________________________________________________________

179 ”A man is presumed to be the father of a child if . . . he and

the mother of the child are married to each other and the child is

born during the marriage.” UTAH CODE § 78B-15-204(1)(a). 

180 UTAH R. CIV. P. 24 (“Upon timely application anyone shall be

permitted to intervene in an action: (1) when a statute confers an

unconditional right to intervene; or (2) when the applicant claims

an interest relating to the property or transaction which is the

subject of the action and he is so situated that the disposition of the

action may as a practical matter impair or impede his ability to

protect that interest, unless the applicant’s interest is adequately

represented by existing parties.”).
IN RE K.T.B.

Opinion of the Court

48

before the birth of K.T.B.181 With this judicial decree in hand, J.N.

then filed his motion to intervene in this case. The district court 

denied his motion, in part, because it was untimely.

¶104 On appeal, J.N. argues that at the time the adoption 

petition was filed, his marriage to Mother—which, according to the 

subsequent judicial marriage decree, began on June 16, 2010—

created a presumption that he is K.T.B.’s father, thereby entitling 

him to notice of the adoption. He reasons that because he never 

received notice of the adoption proceeding, section 110’s thirty-day 

time period to intervene was never triggered. Thus he argues his 

motion to intervene was timely, and he was therefore entitled to 

intervene under rule 24.

¶105 In support of his argument J.N. cites our decision in 

Whyte v. Blair.

182 In Whyte we held that once a common-law

marriage is legally recognized it can have retroactive legal effect 

from the time the marriage was entered.183 But contrary to J.N.’s 

assertion, Whyte did not answer the question of whether a 

common-law marriage entitles a couple to state-recognized marital 

rights in the absence of a judicial decree. That question is answered 

by the plain language of Utah Code section 30-1-4.5, Utah’s 

common-law marriage statute.

¶106 Under section 30-1-4.5, a person may seek legal 

recognition of a common-law marriage by obtaining a judicial or 

administrative order. Once this occurs, a common-law marriage “is 

treated as any other marriage for all purposes.”184 And as our 

decision in Whyte makes clear, these marital rights may apply 

retroactively once they are recognized.185 But the plain language of 

two provisions within section 30-1-4.5 also makes it clear that the 

marital rights stemming from a common-law marriage are merely 

__________________________________________________________

181 In their opposition on appeal, the Adoptive Parents allege 

that J.N. failed to notify the second district court of the adoption

pending in this case, as required by rule 100 of the Utah Rules of

Civil Procedure. Although such a failure could seriously

undermine the validity of J.N.’s marriage decree, we do not address

it here because the marriage decree has not been appealed.

182 885 P.2d 791 (Utah 1994). 

183 Id. at 793–94.

184 Id. at 793.

185 See generally id.
Cite as: 2020 UT 51

Opinion of the Court

49

conditional unless they have been legally recognized through a 

judicial or administrative order.

¶107 First, section 30-1-4.5(1) states that a common-law

marriage “shall be legal and valid if a court or administrative order 

establishes that it arises out of a contract between a man and a 

woman” who satisfy certain common-law marriage 

requirements.186 Thus, by negative implication, a common-law

marriage is not legal and valid in the absence of such an order.

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

determination or establishment of a [common-law] marriage shall 

occur during the relationship . . . or within one year following the 

termination of that relationship.” So if a couple terminates a 

relationship that would have qualified as a common-law marriage, 

but fails to obtain judicial recognition of that relationship within 

one year of termination, then any marital rights the couple could 

have enjoyed through legal recognition are forfeited. In other 

words, if a couple fails to perfect marital rights stemming from a 

common-law marriage within the one-year limitations period, it is 

as if the marriage never occurred.

¶109 These two aspects of section 30-1-4.5 suggest that the 

rights stemming from a common-law marriage must be perfected 

through a judicial proceeding before those rights take legal effect. 

This makes sense. “[M]arriage is a keystone of our social order.”187

For this reason, when “a couple vows to support each other, so does 

society pledge to support the couple, offering symbolic recognition 

and material benefits to protect and nourish the union.”188 In this 

way, marital status serves as a basis for the conferral of a number 

of “governmental rights, benefits, and responsibilities,” including 

rights in the areas of adoption and child custody.189 But the state 

cannot confer these rights on a married couple unless the married 

couple makes their marital status known to it. And the inverse is 

also true: a married couple living in an as-of-yet unrecognized 

common-law marriage cannot obligate the state to respect rights 

__________________________________________________________

186 UTAH CODE § 30-1-4.5(1) (emphasis added).

187 Obergefell v. Hodges, 135 S. Ct. 2584, 2601 (2015).

188 Id.

189 Id.; see also Sanchez v. L.D.S. Soc. Servs., 680 P.2d 753, 755 (Utah

1984) (“Marriage is the institution established by society for the

procreation and rearing of children.”).
IN RE K.T.B.

Opinion of the Court

50

stemming from that marriage until it has been legally 

recognized.190 But this is essentially what J.N. is asking the court to 

do.

¶110 At the time of the Adoptive Parents’ adoption petition, 

J.N.’s marital rights, including rights to notice or to intervene in the 

adoption as a presumptive father, had not been legally recognized 

by the State.191 Additionally, because J.N. admits that he is not 

K.T.B.’s biological father, he also did not have any rights in the 

adoption as K.T.B.’s putative father.192 J.N.’s lack of any legally 

recognized rights in K.T.B. at the time the Adoptive Parents filed 

their petition ultimately defeats his claim.

__________________________________________________________

190 See State v. Holm, 2006 UT 31, ¶ 32, 137 P.3d 726 (“[Because]

a marriage license represents a contract between the State and the

individuals entering into matrimony . . . [the defendant], as a result

of his [unsanctioned marriage] ceremony with [his alleged spouse],

[is] not entitled to any legal benefits attendant to a state-sanctioned

marriage.”).

191 Similar to our holding in Scott v. Scott, we find that the

relevant date for consideration is the date the adoption petition was

filed. 2017 UT 66, ¶ 30, 423 P.3d 1275 (requiring an ex-spouse to be

cohabitating with a boyfriend at the time the petition to terminate

alimony was filed); see also Grupo Dataflux v. Atlas Glob. Grp., L.P.,

541 U.S. 567, 571 (2004) (“[J]urisdiction of the court depends upon

the state of things at time of the action brought. . . . . [The time-offiling rule] measures all challenges to subject-matter jurisdiction

premised upon diversity of citizenship against the state of facts that

existed at the time of filing.” (internal quotation marks omitted));

Int’l Trading Corp. v. Edison, 109 F.2d 825, 826 (D.C. Cir. 1939)

(requiring a “duty [to] exist at the time of filing a petition for

mandamus”); Koch v. Carmona, 643 N.E.2d 1376, 1381 (Ill. App. Ct.

1994) (evaluating an attorney’s conduct “under the circumstances

existing at the time of the filing”).

192 See In re Baby Girl T., 2012 UT 78, ¶ 11, 298 P.3d 1251 (“[A]n

unwed father’s biological connection to his child does not

automatically grant him a fundamental constitutional right to

parenthood. Rather, an unwed father has a provisional right to

parenthood, and due process requires only that an unwed father

have a meaningful chance to preserve his opportunity to develop a

relationship with his child.” (citation omitted) (internal quotation

marks omitted)).
Cite as: 2020 UT 51

Opinion of the Court

51

¶111 The crux of J.N.’s argument is his assertion that the 

Adoptive Parents were obligated to provide him with notice as a 

presumptive father. According to him, their failure to do so 

prevented the Adoption Act’s thirty-day intervention window 

from beginning and so his motion to intervene, filed nearly four 

months after the petition, was timely. But because he did not have 

any presumptive rights at that time, neither the Adoptive Parents

nor anyone else was obligated to serve notice on him. So we must 

determine whether J.N., as merely a potential presumptive father, 

had a duty to timely intervene in the adoption proceeding despite 

the lack of notice. He did.

¶112 Although the Adoption Act does not establish 

requirements with which a merely potential presumptive father 

must comply before intervening in an adoption, we find that 

certain requirements the Adoption Act imposes on a potential 

biological father are applicable. Under the Adoption Act, an 

unmarried biological father “has a duty to protect his own rights 

and interests” by filing the necessary documents before relevant 

deadlines.193 If he does so, he preserves a right to notice and to 

intervene in the adoption.194 But until then, he “is considered to be 

on notice that . . . an adoption proceeding regarding the child may 

occur.”195 Although the method for protecting his rights differs 

from that of an unmarried biological father,196 placing the burden 

__________________________________________________________

193 UTAH CODE § 78B-6-110(1)(a)(ii).

194 Id. § 78B-6-110(3).

195 Id. § 78B-6-110(1)(a)(i); see also In re Baby Girl T., 2012 UT 78,

¶ 11 (“The Act’s requirements operate under the presumption that

an unwed father knows that his ‘child may be adopted without his

consent unless he strictly complies with the provisions of [the

Act].’” (alteration in original) (citing UTAH CODE § 78B-6-102(6)(f))).

196 We note that a potential presumptive father could protect his

right to notice of an adoption by obtaining judicial recognition of

his common-law marriage before an adoption petition is filed or he

could protect his right to intervene by obtaining a judicial marriage

decree, either within the adoption proceeding or as part of another

case, within thirty days of the date on which the adoption petition

was filed. Additionally, we note that in most cases section 110(2)(g) 

would guarantee a potential presumptive father the right to notice

even in the absence of a judicial marriage decree because he would

(Continued)
IN RE K.T.B.

Opinion of the Court

52

on J.N., as a potential presumptive father with no legally 

recognized parental rights, is equally appropriate.

¶113 Due to the unperfected nature of J.N.’s presumptive 

parental rights, he was responsible to take necessary steps to 

preserve his rights in the adoption. Had he done so by obtaining 

judicial recognition of his marriage before the Adoptive Parents

filed their adoption petition, the Adoptive Parents would have 

been obligated to provide him with notice and he would have had 

thirty days to file a motion to intervene upon receipt of such 

notice.197 But in the absence of a legally recognized marriage, the 

Adoptive Parents had no such obligation, and so J.N. was 

considered to be on notice of the adoption proceeding once the 

Adoptive Parents filed their petition.198 This presumed notice 

initiated the Adoption Act’s thirty-day intervention window.199

__________________________________________________________

have been living in the same home as the child and holding himself

out to be the child’s father. UTAH CODE § 78B-6-110(2)(g) (requiring

notice to be served on “a person who is . . . openly living in the

same household with the child at the time . . . and . . . [is] holding

himself out to be the child’s father”). J.N. does not argue that he

was entitled to notice under this provision.

197 J.N. argues that at the time the petition was filed he could not

have intervened because his marriage had not yet been judicially

recognized. Not only does this argument undermine J.N.’s

contention that his common-law marriage was legally effective at

the time the adoption proceeding commenced, but it also ignores

the fact that he could have sought judicial recognition of his

marriage within this case.

198 We note that to hold otherwise would retroactively impose a

burden on the Adoptive Parents as well as inject unnecessary delay

and uncertainty into the adoption proceeding. This is something

we seek to avoid. See id. § 78B-6-102(6)(c) (“A certain degree of

finality is necessary in order to facilitate the state’s compelling

interest. The Legislature finds that the interests of the state, the

mother, the child, and the adoptive parents described in this section

outweigh the interest of an unmarried biological father who does

not timely grasp the opportunity to establish and demonstrate a

relationship with his child in accordance with the requirements of

this chapter.”).

199 See UTAH R. CIV. P. 24(a) (granting an intervention of right

only if there is a “timely application” to intervene).
Cite as: 2020 UT 51

Petersen, J., concurring in the result

53

Because J.N. failed to file a motion to intervene within this time, his 

motion was untimely and the district court had the discretion to 

deny it. Accordingly, we affirm the district court’s denial of J.N.’s 

motion to intervene.

Conclusion

¶114 Because section 110 of Utah’s Adoption Act authorized 

the district court to terminate Mother’s fundamental right to parent 

her child, we review its application to Mother under our strict 

scrutiny standard. And under this standard, section 110’s strict 

compliance requirement, as applied to Mother, is not narrowly 

tailored to achieve the state’s compelling interest in prompt 

adoption proceedings. Accordingly, we reverse the district court’s 

decision to bar Mother from the adoption proceeding and remand 

for a new hearing in which Mother may participate. Additionally, 

we affirm the district court’s decision to deny J.N.’s motion to 

intervene because his motion was untimely.

JUSTICE PETERSEN, concurring in the result:

¶115 I concur in the result of the majority opinion. And I agree 

with much of the majority’s analysis. But the dissent raises some 

concerns that I share, which the majority has not sufficiently 

answered.200

¶116 I agree with the majority that Mother has parental rights, 

which are fundamental. And as a general matter, a state 

infringement of a fundamental right is subject to heightened 

scrutiny. Further, substantive due process principles are applicable 

to laws of both a substantive and a procedural nature. See, e.g., In re 

Adoption of J.S., 2014 UT 51, ¶¶ 21–22, 358 P.3d 1009. So I do not find 

it inappropriate to apply such principles here. But I do find our 

application of strict scrutiny to a straightforward preservation rule 

to be novel. Because of this, I think we should acknowledge that we 

__________________________________________________________

200 I also agree with the dissent’s observation that “[t]his court 

may well have the authority to prescribe a procedural default rule 

that could govern in a case like this one,” see infra ¶ 123 n.201, 

pursuant to our constitutional power to “adopt rules of procedure 

and evidence to be used in the courts of the state,” see UTAH CONST. 

art. VIII, § 4. But as the dissent notes, Mother did not raise this 

issue.
IN RE K.T.B.

Lee, A.C.J., dissenting

54

are applying strict scrutiny in a new context and clarify the 

parameters of our holding.

¶117 The majority asserts that its reasoning follows directly 

from established precedent. See, e.g., supra ¶¶ 62, 76, 78. But neither 

the majority nor Mother has identified any case where we or the 

United States Supreme Court has applied heightened scrutiny to a 

rule of preservation. And that is what we have here. As the dissent 

rightly observes, “[t]his is a rule of preservation—a law prescribing 

the form or timing of an objection necessary for a litigant to proceed 

with the assertion of her legal rights.” Infra ¶ 122.

¶118 In my view, applying strict scrutiny to a rule of 

preservation for the first time is significant because, as the dissent 

notes, “[s]uch rules abound in our law.” Infra ¶ 122. And they 

perform a critical function. At a very basic level, they set the rules 

for the orderly processing of civil and criminal litigation. But the 

majority insists we are not breaking new ground.

¶119 I think we should acknowledge that we are. First, we 

should recognize that we have never applied heightened scrutiny 

to a standard rule of preservation. And we should explain why we 

are extending strict scrutiny to this context.

¶120 Second, we should clarify the parameters of our holding. 

This decision could be read to apply to the many deadlines, filing 

requirements, and other rules of preservation found throughout 

the law, including in our own rules of procedure. Certainly, these 

rules at times affect litigants’ fundamental rights if they fail to 

comply with them. Even though this case involves an as-applied 

challenge ostensibly confined to its facts, this does not sufficiently 

define the reach of our holding. The material facts here would seem 

to be present whenever a litigant could establish that she had a 

fundamental right of some kind, and it was terminated by a 

preservation rule with which she substantially complied but did 

not fully comply. As it is, the majority’s holding seems open-ended. 

In light of the ubiquity of preservation rules and the core function 

they perform in our legal system, this has the potential to create 

confusion.

ASSOCIATE CHIEF JUSTICE LEE, dissenting:

¶121 The Utah Adoption Act requires a mother who wishes to 

oppose the adoption of her biological child to file a motion to 

intervene in the adoption proceedings. See UTAH CODE

§ 78B-6-110(6). By statute, the mother must “strictly comply” with 
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

55

this requirement. Id. § 78B-6-110(6)(b). Failure to do so within thirty 

days of being served with notice of the proceedings results in a 

“forfeit[ure]” of the mother’s parental rights. Id. § 78B-6-

110(6)(b)(ii).

¶122 This is a rule of preservation—a law prescribing the form 

or timing of an objection necessary for a litigant to proceed with the 

assertion of her legal rights. Such rules abound in our law. And the 

long-established consequence of the failure to follow such rules is 

a procedural default, with a resulting loss of the underlying right.

¶123 The majority opposes this effect of the Adoption Act. It 

overrides the plain text of the statute, excuses the mother from her 

procedural default, and adopts a new rule of preservation of its 

own making—a rule that allows a mother to avoid forfeiture of her 

rights if she files a document that “fulfill[s] the purpose[]” of a 

motion to intervene.201 Supra ¶ 47. 

¶124 I respectfully dissent from this decision. The court claims 

to find support for it in a body of substantive due process case law. 

But the court’s holding does not follow from that case law. It is a 

bold, policy-driven override of a law enacted by the legislature. I 

dissent because I find no basis for today’s decision in the due 

__________________________________________________________

201 This court may well have the authority to prescribe a 

procedural default rule that could govern in a case like this one. See

UTAH CONST. art. VIII, § 4 (recognizing this court’s power to “adopt 

rules of procedure and evidence to be used in the courts of the

state”); State v. Rettig, 2017 UT 83, ¶¶ 58, 58 n.12, 416 P.3d 520 

(strongly suggesting that filing deadlines triggering procedural 

default or forfeiture of legal rights are “procedural” and thus 

within our constitutional power to establish). The Adoption Act’s 

default rule, moreover, may be subject to constitutional challenge 

on the ground that it is procedural and the legislature has not 

properly exercised its authority to amend our rules. See Rettig, 2017 

UT 83, ¶¶ 52, 60 (expressing “doubts” about whether a statutory 

rule of procedural default would withstand scrutiny under article 

VIII, section 4 of the Utah Constitution but declining to reach the 

question because it had not been raised); Brown v. Cox, 2017 UT 3, 

¶¶ 17–18, 387 P.3d 1040 (identifying the process the legislature 

must follow to amend our rules). This court has not enacted any 

such rule, however. And the mother has not raised a constitutional 

claim under article VIII, section 4. For that reason this question is 

not properly before us.
IN RE K.T.B.

Lee, A.C.J., dissenting

56

process principles cited by the majority and foresee significant 

mischief caused by it.

¶125 The mother in this case failed to follow the statutory 

filing requirement. She did so not because of any difficulty in 

following the requirement, but because she got bad advice from her 

lawyer. The requirement, moreover, is admittedly fair and entirely 

constitutional as a matter of procedural due process. The majority 

agrees. See supra ¶ 29 (citing In re Adoption of J.S., 2014 UT 51, ¶ 23, 

358 P.3d 1009 for the proposition that “when the failure to comply 

with a ‘simple and straightforward’ procedural requirement is due 

to legal counsel’s mistake, the procedural requirement has not 

foreclosed meaningful access to the justice system”).202 Yet the 

court proceeds to establish a new constitutional right of due 

process that excuses the mother’s procedural default. It holds that 

“mothers retain a fundamental right in their children regardless of 

a failure to comply with any state-prescribed procedure.”203 Supra

¶ 37.

¶126 The majority seeks to portray its decision as a matter that 

follows from settled precedent. But that is incorrect. No court, to 

__________________________________________________________

202 The court’s procedural due process holding, in fact, follows 

from established principles of forfeiture. Most legal rights are 

subject to forfeiture by procedural default. See Yakus v. United 

States, 321 U.S. 414, 444 (1944) (noting that “constitutional right[s] 

may be forfeited in criminal as well as civil cases by the failure to 

make timely assertion of the right”); see also Rettig, 2017 UT 83, 

¶¶ 15, 17 (noting that “procedural bar[s]” such as rules “requir[ing] 

parties to raise issues or arguments at specified times and by certain 

means” on penalty of losing the right to do so are “commonplace” 

and “embedded in our case law” (citations omitted)). The due

process right to be heard is no exception. If a party fails to avail 

herself of an established means of asserting a legal right, then that 

right is forfeited. Such a party is in no position to complain of the 

lack of a constitutionally guaranteed “opportunity to be heard” as 

that opportunity was lost not as a result of state action but by an act 

of the party’s agent (her counsel).

203 The mother asserts both federal and state grounds for a new 

right of substantive due process, supra ¶ 14 n.6, but the majority 

never draws any distinction between the two grounds in its 

opinion, and it relies exclusively on precedent pertaining to federal 

(Continued)
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

57

my knowledge, has ever established a constitutional right of a 

litigant (even one seeking to protect a fundamental right) to flout a 

legal filing requirement but avoid the normal consequence of such 

a move (procedural default). Certainly the majority has not cited 

such a case. And with that in mind, the court should take 

ownership of the novelty of its decision. It is the court’s prerogative 

to establish new rights in the name of the constitution—the 

principle of substantive due process opens the door to such 

decisions. But in so doing the court cannot properly be viewed as 

merely endorsing a mechanical application of existing precedent. 

That is not what is going on here. The court is certainly citing a line 

of precedent. But its decision involves a significant extension of the 

cited cases. And the extension will sow the seeds of confusion in 

our law for years to come.

¶127 The court cites a string of cases (several from the United 

States Supreme Court and a few from this court) in which a parent’s 

fundamental right is framed on the basis of “(1) the status of the 

individual invoking the right and (2) the parental conduct to be 

protected.” Supra ¶ 59. Because the cited cases have “looked to the 

status of the individual and the conduct to be protected before 

determining whether the individual’s claim fell within the 

umbrella of parental rights” (which are admittedly fundamental), 

the court objects to my more specific framing of the inquiry into the 

asserted “right” in question. Supra ¶ 60. On that basis the majority 

seeks to turn my criticism of the novelty of its approach against me. 

It asserts that I am the one who is pressing a novel framing of the 

inquiry into fundamental parental rights. The court’s argument 

proceeds in two steps. First, the court complains that its cited cases 

ask only “whether parental conduct falls within the umbrella of 

protected parental rights,” not “whether parents have a recognized 

right to be free of . . . a judicially imposed forfeiture of all parental 

rights.” Supra ¶ 63. And because a mother’s parental rights need 

not be “perfected” in the manner required of unwed fathers, the 

majority next insists that the mother’s fundamental right “is not 

__________________________________________________________

due process. So I presume that it is establishing a new right of 

federal due process.
IN RE K.T.B.

Lee, A.C.J., dissenting

58

contingent upon compliance with any procedural requirement that 

the state may establish.” Supra ¶ 83. 

¶128 Each of these points begins with a correct premise. But 

the court’s starting premises do not support its broad, sweeping 

conclusions.

¶129 On the first point, I can stipulate to a focus on “the status 

of the individual and the conduct to be protected” in deciding 

whether to endorse a new right of substantive due process. Supra

¶ 60. But that framing begs the question of what conduct, and at 

what level of generality to assess it. A broad framing would ask 

whether parental rights generally are subject to substantive due 

process protection. Yet that is not the only way to frame things. We 

could also look to the precise form of parental conduct at issue. And 

although the United States Supreme Court has not always been 

consistent on the appropriate framing, our recent precedent 

suggests a narrow framing that looks at the precise form of the 

relevant conduct.

204

¶130 The United States Supreme Court has sometimes framed 

the inquiry into the existence of a new substantive due process right 

at the highest level of generality. When that court established new 

substantive due process rights to access contraception and 

abortion, for example, it framed the inquiry in broad, sweeping 

terms—whether there was an established tradition of respect for 

private decisions within a “zone of privacy.”205 But the Court’s case 

law has not been consistent. In other cases the court has called for 

a much narrower framing of the inquiry into the existence of a new 

substantive right. In rejecting a claim to a new right to 

physician-assisted suicide, for example, the court narrowly framed 

__________________________________________________________

204 The majority’s “status” framing also runs into a line of United 

States Supreme Court precedent that cuts against its framework. In 

referring to “status,” the majority is noting that parental rights are 

fundamental. See supra ¶¶ 60, 79. But the fundamental nature of a 

given right does not dictate the application of strict scrutiny to all 

regulations of that right. This is apparent from an important line of 

voting rights cases, which expressly reject the idea that all 

regulations of voting rights trigger strict scrutiny. See infra ¶¶ 159–

61 (citing Burdick v. Takushi, 504 U.S. 428 (1992) and Crawford v. 

Marion Cty. Election Bd., 553 U.S. 181 (2008)).

205 See Roe v. Wade, 410 U.S. 113, 152–53 (1973); Griswold v. 

Connecticut, 381 U.S. 479, 484–85 (1965).
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

59

the inquiry in terms of a “right to commit suicide” instead of the 

proposed broader framing of a “right to die.”206 This is a key, 

unresolved problem in the high court’s substantive due process 

precedent, and a question that has attracted the attention of a range 

of commentators.207

¶131 A plurality of this court acknowledged this problem in 

our recent decision in In re Adoption of J.S., 2014 UT 51, 358 P.3d 

1009. And it endorsed a requirement of narrowly framing any new, 

alleged right of substantive due process. To avoid the prospect of a 

court making new policy in the guise of constitutional law-making, 

the lead opinion in J.S. (which was joined by Chief Justice Durrant) 

__________________________________________________________

206 Washington v. Glucksberg, 521 U.S 702, 722–23 (1997); see also 

id. (rejecting other broad framings of the right at issue, including

the right to “choose how to die,” the right to “control of one’s final 

days,” the right to “choose a humane, dignified death,” and the 

right to “shape death”).

207 See, e.g., Rick Kozell, Note, Striking the Proper Balance: 

Articulating the Role of Morality in the Legislative and Judicial Processes, 

47 AM. CRIM. L. REV. 1555, 1573 (2011) (explaining that “the Court 

has failed to articulate a method for determining the proper level 

of generality at which a substantive due process inquiry should be 

performed” despite the fact that “the level of generality with which 

the Court defines the conduct in question . . . often affects whether 

the Court finds that that conduct is entitled to protection based on 

history and tradition”); John F. Basiak, Jr., Inconsistent Levels of 

Generality in the Characterization of Unenumerated Fundamental 

Rights, 16 U. FLA. J.L. & PUB. POL’Y 401, 403 (2005) (pointing out that 

“when asked to recognize a fundamental right under the Due 

Process Clause of the Fourteenth Amendment, the U.S. Supreme 

Court has failed to articulate a substantial justification for the level 

of generality in characterizing the legal issue” (citations omitted)); 

David Crump, How do the Courts Really Discover Unenumerated 

Fundamental Rights? Cataloguing the Methods of Judicial Alchemy, 19 

HARV. J.L. & PUB. POL’Y 795, 863–71 (1996) (describing the dilemma 

as “[d]etermining the reach of fundamental rights by defining the 

degree of abstraction” for “characterizing the relevant tradition”); 

Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the 

Definition of Rights, 57 U. CHI. L. REV. 1057, 1058 (1990) (rejecting a 

methodology that requires narrow framing of substantive due 

process rights while acknowledging that “[t]he selection of a level 

of generality necessarily involves value choices”).
IN RE K.T.B.

Lee, A.C.J., dissenting

60

endorsed a requirement that a party make “a specific showing that 

the precise interest asserted by the parent is one that is deeply rooted 

in this Nation’s history and tradition and in the history and culture 

of Western civilization.” Id. ¶ 57 (plurality opinion) (emphases 

added) (citation and internal quotation marks omitted). The 

“specific showing” of a “precise interest” suggested by J.S. is what 

I would require here—a showing not just of a well-rooted tradition 

of respect for parental rights generally, but of a tradition endorsing 

the right to retain parental rights without following procedural 

requirements set forth by law. The court’s contrary approach not 

only cuts against the lead opinion in J.S; it also picks sides in a key 

point of debate in the law of substantive due process.

¶132 The majority’s second point is similarly problematic. The 

notion that a mother’s rights need not be “perfected” in the manner 

required of unwed fathers is only half right. And the half-wrong 

part underscores the degree to which the majority is making new 

law while claiming only to be applying established precedent.

¶133 It is of course true that a mother need not make a 

threshold showing of her parentage to establish her fundamental 

parental rights in the first instance. A mother’s parental rights are 

perfected at the outset without any need for her to file a paternity 

petition or present evidence establishing the degree to which she 

supported or was willing to support her child. See Id. ¶ 2 (majority 

opinion). To that extent the majority is right to say that a mother’s 

fundamental rights are not contingent on compliance with the 

“procedural requirement[s]” imposed by our law on fathers. Supra

¶ 83. But that is not the question presented here. The question here 

is whether a right that is admittedly perfected without the need for 

procedural compliance at one stage can ever be forfeited due to a 

procedural default at a later stage. The majority upholds that right 

as a matter of substantive due process. And in so doing it breaks 

significant new ground. No court has ever recognized this sort of 

right.208

¶134 It is true that I have cited no cases in which a biological 

mother forfeited her parental rights through procedural default, 

__________________________________________________________

208 The majority tries to avoid this characterization by describing 

the right at issue as the mother’s “‘retained’ fundamental right.” 

Supra ¶ 56. But asserting that a fundamental right is “retained” 

merely begs the question: retained as of when and by what acts? 

The mere possession of a fundamental right does not forever 

(Continued)
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

61

and a court upheld such default against a substantive due process 

challenge. See supra ¶ 79 (criticizing me for citing only cases 

involving putative fathers). But this is just a reflection of the fact 

that there are no reported cases that are directly on point—no case 

in which a mother forfeited her rights through procedural default, 

but a court excused that failure (and obviated her forfeiture) on the 

basis of a substantive due process right.

¶135 Our decision in J.S. is the most obviously relevant 

precedent. In that case an unmarried biological father lost his 

parental rights as a result of a procedural default—failure to perfect 

his rights by jumping through the procedural hoops required by 

our law (principally, the filing of an affidavit of support of his 

child). 2014 UT 51, ¶ 1. And we upheld those procedures against a 

substantive due process challenge. Id. ¶¶ 5–6. In so doing, as noted 

above, we required more than a showing of a tradition of respect 

for the parental rights of fathers generally—for their “status” and 

“conduct” at that level of generality. Instead we required the 

defaulting parent to demonstrate that the right to retain parental 

rights despite failing to comply with required procedure is “deeply 

rooted” in “history and tradition.” Id. ¶ 54 (plurality opinion). This 

is also the showing we should require here.

¶136 The procedure at issue in J.S. was admittedly not the sort 

of procedure that would be required of a mother for the 

preservation of her rights. The majority seizes on this point, noting 

that “mothers have a ‘retained’ fundamental right in their children, 

whereas unmarried fathers have only provisional rights that must 

be perfected through compliance with procedure.” Supra ¶ 79. But 

again, this is a partial truism. All parties to litigation are bound by 

__________________________________________________________

insulate the mother from ever losing that right. It simply means that 

she retains it prior to the initiation of any legal proceedings. The 

majority concedes the general point—acknowledging that a 

fundamental right may be lost through procedural default. See

supra ¶ 98 (acknowledging that “’fundamental’ rights may be 

extinguished through the operation of procedural provisions . . .

where those provisions survive strict scrutiny review”). It just 

obviates the forfeiture here through the doctrine of substantive due 

process. Supra ¶ 98. The court is holding that a mother has a 

fundamental right to retain her parental rights despite her 

procedural default because the underlying parental right itself is 

fundamental. But that is circular. And it is a novel, sweeping 

extension of existing case law.
IN RE K.T.B.

Lee, A.C.J., dissenting

62

some procedure. And until today, no court had ever held that a 

fundamental parental right, once perfected, is subject only to those 

rules of procedure that can survive strict scrutiny review. The 

majority leans heavily on the “fundamental” nature of such rights 

to justify this result. But nowhere in the case law does the fact that 

a right is “fundamental” entitle its holder to forgo compliance with 

any procedure except that which withstands strict scrutiny. That 

conclusion certainly does not follow from the premise that the 

procedures necessary for a father’s perfection of his parental rights 

at the outset do not apply to mothers in the first instance.209

¶137 A mother is not required to jump through procedural 

hoops to establish her parental rights in the first instance. But that 

is not because mothers are categorically exempt from the law of 

procedure. It is because they are not subject to a specific species of 

procedure—paternity filing requirements imposed on putative 

fathers before their rights can be perfected. See UTAH CODE

§ 78B-6-121(3) (in contrast to biological mothers, the “consent of an 

unmarried biological father [to an adoption] is not required unless

. . . the unmarried biological father . . . initiates proceedings . . . to 

establish paternity” and complies with other procedures). For that 

reason, the majority’s argument proves too much. Mothers are 

admittedly subject to some procedure. Rules of preservation in 

particular have always applied to all litigants. We cannot excuse a 

mother’s compliance with the law of preservation just because 

mothers are exempt from compliance with other procedures.

¶138 None of the majority’s cited cases is a case like this one—

in which a parent’s rights were terminated as a result of the parent’s 

procedural default. The court’s cited cases stand for a threshold 

proposition that is not in dispute in this case. They say only that a 

person’s parental rights may not be terminated by operation of a 

law that cuts off the right to be heard and substitutes instead a 

__________________________________________________________

209 It is true to a point that “the case law clearly establishes that 

mothers have a ‘retained’ fundamental right in their children.” 

Supra ¶ 79. But the key question is “retained” as of when, and in 

what procedural context? No prior court has ever established a 

mother’s right to retain her parental rights despite the kind of 

procedural default that would normally result in a forfeiture. So in 

that sense this case presents a question of first impression. I think 

the answer follows clearly from the framing of the inquiry in J.S.

The majority concludes otherwise. But it cannot properly be heard 

to insist that its decision follows from established case law.
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

63

conclusive presumption of unfitness. That is the holding of Quilloin

v. Walcott, 434 U.S. 246 (1978), Stanley v. Illinois, 405 U.S. 645 (1972), 

and In re J.P., 648 P.2d 1364 (Utah 1982). And that proposition has 

no purchase here. In this case the law did not authorize the 

termination of parental rights without an opportunity for a parent 

to be heard. It expressly provided for such an opportunity—and 

imposed a natural consequence (forfeiture by default) for the 

failure to comply with the required procedure. The question here, 

then, is whether a mother who lost her parental rights by forfeiture 

through procedural default may excuse that default by claiming a 

substantive due process right to ignore existing procedure (unless 

the procedure withstands strict scrutiny). And there is no support 

in any precedent for the establishment of such a right.

¶139 The court’s holding, in fact, runs directly counter to 

another line of precedent that the majority ignores. Voting rights 

are undoubtedly “fundamental” under a long line of United States 

Supreme Court authority. See Ill. State Bd. of Elections v. Socialist 

Workers Party, 440 U.S. 173, 184 (1979); Dunn v. Blumstein, 405 U.S. 

330, 336 (1972); Williams v. Rhodes, 393 U.S. 23, 38 (1968); Yick Wo v. 

Hopkins, 118 U.S. 356, 370 (1886). But the United States Supreme 

Court has gone out of its way to emphasize that the fundamental 

nature of this right does not subject all procedural regulation of the 

right to strict scrutiny. See Burdick v. Takushi, 504 U.S. 428, 432–33

(1992); Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986). In 

the voting rights realm, a neutral, nondiscriminatory regulation 

like a procedural default rule would not trigger strict scrutiny. 

Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 203–04 (2008). It 

would trigger a deferential standard of scrutiny that would uphold 

the constitutionality of our neutral rules of procedural default. The 

same holds for regulation of other fundamental rights like the 

rights to privacy, free speech, and free exercise of religion. See infra

¶ 159 (discussing privacy, speech, and religion cases). And the 

majority’s holding today is incompatible with all of these cases. See

infra ¶¶ 160–65 (discussing the voting rights cases).

¶140 The majority’s basis for a substantive due process right 

to avoid the usual effect (forfeiture) of a procedural default is thus 

as novel as it is sweeping. The court’s holding, moreover, will 

introduce substantial confusion and uncertainty going forward. If 

the majority opinion takes root, the whole idea of procedural 

regulation by a uniform set of rules will be placed in jeopardy. If 

our law requires case-by-case scrutiny of whether our procedural 

rules are the “least restrictive means” of advancing “compelling 

governmental interests,” most any procedural default rule may be 
IN RE K.T.B.

Lee, A.C.J., dissenting

64

set aside as unconstitutional. Most procedural rules, after all, are in 

a sense arbitrary. That means that there will almost always be a less 

restrictive means of advancing the underlying goal. And that will 

open the door for our courts to second-guess a broad range of rules 

of procedural default whenever our judges think that the purpose 

of a governing rule could be advanced in a less restrictive way. This 

is problematic.

¶141 I respectfully dissent for reasons explained in greater 

detail below. In Part I, I address the strict scrutiny argument—

analyzing the cases cited in the mother’s brief and applied by the 

majority, outlining the standard applied to regulation of the 

fundamental right to vote, and emphasizing the novel extension of 

the law endorsed by the majority opinion. Then in Part II, I identify

the confusion and upheaval that the majority’s framework will 

introduce into our law.

I

¶142 The mother seeks to avoid the effects of forfeiture by 

asserting a substantive due process right. Yet she has failed to cite 

any precedent sustaining a substantive due process right to avoid 

the natural consequence (forfeiture) of a procedural default. And 

the majority opinion is similarly deficient.

¶143 The fulcrum of the majority opinion is the notion that the 

mother has “fundamental rights” as a parent. The mother’s brief is 

premised on the same notion. Citing In re J.P., 648 P.2d 1364 (Utah 

1982) and Quilloin v. Walcott, 434 U.S. 246 (1978), the mother asserts 

that the governing precedent “condemn[s] the termination of a 

mother’s parental rights over her objection and without a finding 

of unfitness.” And the majority correctly notes that the mother’s 

parental rights include the right to object to an adoption. Supra ¶ 37.

¶144 This is all correct as far as it goes. But the fundamental 

right recognized in the cited case law has no currency here. The 

mother’s rights were not terminated “over her objection.” She just 

failed to object under the procedures set forth in our law. The 

mother’s right to object to an adoption is not a right to object in any 

manner she chooses. It is a right to object in accordance with 

prescribed procedure. And the natural consequence of the failure 

to comply with that procedure is a default—forfeiture of her rights.

¶145 As the majority notes, our case law identifies a 

substantive due process basis for a party to establish an exception 

to this normal consequence—by providing proof of a “deeply 

rooted” history and tradition at a very specific level of generality. 
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

65

This is the standard set forth in In re J.P. and reinforced in J.S. But 

the mother has failed to carry her burden under these cases. She 

nowhere establishes a “deeply rooted” history and tradition of a 

right to preserve parental rights despite non-compliance with the 

procedure required by law. And her assertion of a substantive due 

process right accordingly fails.

¶146 The majority objects to this framing of the right at issue. 

It contends that we should focus on “the status of the individual 

invoking the right”210 and “the parental conduct to be protected,” 

supra ¶ 59, by asking “whether [such] parental conduct falls within 

the umbrella of protected parental rights,” supra ¶ 63. That is fine 

as far as it goes. But the majority’s approach—inquiring into the 

protected status of parental conduct—begs the question: at what 

level of generality should the relevant conduct be characterized in

assessing whether it is protected by substantive due process? The 

majority rejects my narrow framing of the relevant conduct 

(whether there is a right to an exemption from procedural default) 

in favor of a much broader framing (whether there is a right to

parent generally).211 But this is a disputed question implicating a 

__________________________________________________________

210 The majority points to Meyer v. Nebraska, 262 U.S. 390 (1923) 

in support of its view that the right at issue in today’s case should 

be defined by “the individual’s status as a parent,” supra ¶ 59, 

rather than by the “form of governmental interference,” supra

¶¶ 62–63. In light of the level of generality problem discussed 

herein, this distinction is inapposite. Regardless, the Meyer court’s 

discussion of a parent’s right to control the education of her 

children does not speak to the issue in this case—whether a 

fundamental parental right encompasses the right to be free from 

the normal rules of procedural default.

211 The majority complains that my framing is wrong because I 

“fail[] to identify any parental conduct.” Supra ¶ 65. Continuing the 

thought, the majority says that the proper framing must consider 

conduct “directed at the parent’s child”—the “parents’ interactions 

with their children and . . . whether the parent had a fundamental 

right to so interact”—“not conduct directed at, or from, the State.” 

Supra ¶ 66. To support this view, the court cites a United States 

Supreme Court case, Wisconsin v. Yoder, 406 U.S. 205, 232 (1972), 

that maintains the focus on this form of parental conduct. See supra

¶¶ 66–68.

(Continued)
IN RE K.T.B.

Lee, A.C.J., dissenting

66

serious and extensive debate in constitutional law. The level of 

generality at which an asserted right is framed can be 

outcome-determinative—the narrower the framing, the harder it 

will be to establish that the right is “deeply rooted” in history and 

tradition.

¶147 The level of generality problem is on display in some of 

the United States Supreme Court’s most prominent substantive 

due process decisions. Some of that court’s most fractured, 

controversial decisions have implicated this problem. Yet the high 

court has never conclusively established a governing standard. The 

justices openly debated the question of the appropriate level of 

__________________________________________________________

But Yoder is unhelpful. And the court’s premises are nothing 

more than a restatement of its ultimate holding—certainly not a 

reflection of any established law. The majority’s framing conflates 

the parental conduct that is being terminated (“the entire bundle of 

parental rights” and “conduct inherent in the parent-child 

relationship,” supra ¶ 73) with the conduct triggering that 

termination. Forfeiture of parental rights is triggered by procedural 

default on the part of the parent. And the acts leading to a 

procedural default are the relevant “parental conduct” in a case like 

this one.

This case presents a question of first impression. And it is hardly 

surprising that in the very different context of deciding whether a 

parent has parental rights in the first place, courts have not focused 

on “conduct directed at, or from, the State.” Supra ¶ 66. That said, 

no court has ever held that we may not consider a parent’s conduct 

“directed at, or from, the State” in deciding whether there is a 

substantive due process right that forecloses the effects of a 

procedural bar. What other conduct would we consider in deciding 

the constitutionality of a procedural bar? And if a parent defaults 

her parental rights, how can that be anything other than “parental 

conduct”?

In some settings, it is certainly true that the inquiry into a 

parent’s fundamental rights is based on parental conduct “directed 

at” the child, and not “at, or from, the State.” But there is no 

universal rule to this effect. And the majority’s framing cannot hold 

in the context of forfeiture by procedural default unless we mean 

to foreclose the possibility of such forfeiture altogether—which of 

course is the key question presented in this case. The court’s 

decision accomplishes that task. But it finds no support in any 

relevant authority in so doing.
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

67

generality in Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989) 

(plurality opinion) (arguing for a framing at “the most specific level 

at which a relevant tradition protecting, or denying protection to, 

the asserted right can be identified”); id. at 139 (Brennan, J., 

dissenting) (asserting that the inquiry should be framed broadly: 

“whether parenthood is an interest that historically has received 

our attention and protection”); id. at 132 (O’Connor, J., concurring 

in part) (criticizing the plurality’s methodology as “inconsistent 

with our past decisions in this area” which sometimes 

“characterize[] [the] relevant traditions protecting asserted rights 

at levels of generality that might not be the most specific level 

available” (citations and internal quotation marks omitted)). But 

there was no majority view on the matter. And elsewhere the Court 

has been consistently inconsistent—sometimes framing the inquiry 

at a high level of generality, and sometimes opting for a much 

narrower framing of the proposed right at issue. See supra ¶ 130.

¶148 Commentators have highlighted both the inconsistency 

in the United States Supreme Court’s substantive due process 

framework and also its significance. In the words of one 

commentator, “the determination of whether history and tradition 

entitle a particular type of conduct to protection depends upon the 

breadth with which the Court defines the conduct in question.” Rick 

Kozell, Note, Striking the Proper Balance: Articulating the Role of 

Morality in the Legislative and Judicial Processes, 47 AM. CRIM. L. REV. 

1555, 1572 (2011) (emphasis added). Another observes that “[t]he 

manner in which the court characterizes the issue critically defines 

the scope and boundaries of its reasoning and significantly impacts 

its holding,” and emphasizes that the high court “fails to provide 

jurisprudence that is consistent enough to guide lower federal 

courts.” John F. Basiak, Jr., Inconsistent Levels of Generality in the 

Characterization of Unenumerated Fundamental Rights, 16 U. FLA. J.L.

& PUB. POL’Y 401, 403, 405 (2005) (emphasis added). Professors 

Tribe and Dorf, for their part, acknowledge that “[t]he selection of 

a level of generality necessarily involves value choices,” but argue 

in favor of a broad framing of the inquiry. See Laurence H. Tribe & 

Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U.

CHI. L. REV. 1057, 1058 (1990).

¶149 The majority acknowledges the general point, but claims 

that the level of generality at which to frame the mother’s asserted 

substantive due process right “is not an issue in this case.” Supra

¶ 73. It argues that “[t]he level of generality at which an asserted 

right is framed may properly be considered an unresolved issue 

only where a party argues that the Due Process Clause protects 
IN RE K.T.B.

Lee, A.C.J., dissenting

68

someone whose (1) status or (2) conduct had not previously 

received constitutional protection.” Supra ¶ 70. That is fine as far as 

it goes—I agree that once controlling precedent has established the 

relevant level of generality there is no reason to rehash the 

question. And I agree that the level of generality at which to frame 

the mother’s asserted substantive due process right in this case is 

not an unresolved issue. But I think that our Utah case law, in J.S., 

prescribes a narrow framing for an alleged new substantive right, 

while the majority argues that our case law calls for a broad 

framing. Supra ¶ 73. 

¶150 In arguing for a broad framing, the majority leans 

heavily on the idea that in cases addressing termination of parental 

rights, “courts should define the parental right broadly to 

encompass the full spectrum of constitutionally protected parental 

conduct inherent in the parent-child relationship” because “the 

‘parental conduct’ at issue in a parental rights termination case 

encompasses the entire bundle of parental rights.” Supra ¶ 73.

Again, however, the majority seems to conflate the parental 

conduct that is terminated (encompassing the “full spectrum of 

constitutionally protected parental conduct”) with the conduct 

triggering that termination. See supra ¶ 146 n.211. And for the same 

reason the various propositions it attributes to its cited cases miss 

the mark. See supra ¶¶ 74–77 (for example emphasizing that In re 

J.P. “involve[d] a permanent termination of all parental rights” 

(alteration in original)). 

¶151 Our recent decision in J.S., however, speaks directly to 

the level of generality question. And unlike United States Supreme 

Court case law, our Utah case law not only acknowledges the 

problem but suggests an answer. The lead opinion in J.S. called for

a narrow framing of any alleged, new substantive right—a framing

that considers the precise form of the relevant conduct in assessing 

whether there is a sufficient history and tradition of protecting such 

conduct to justify the establishment of a new constitutional right. 

The requirement it put forth, specifically, is of “a specific showing 

that the precise interest asserted by the parent is one that is deeply 

rooted in this Nation’s history and tradition and in the history and 

culture of Western civilization.” In re Adoption of J.S., 2014 UT 51, 

¶ 57 (plurality opinion) (emphases added) (citations and internal 

quotation marks omitted)). In explaining this requirement the J.S. 

opinion emphasized that the showing helps ensure that the power 

to establish new substantive due process rights is not transformed 

into a vehicle for judicial policy-making. See id. ¶ 61 (noting that 

“due process innovations” absent “any effective limiting principle” 
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

69

will put courts in the “problematic realm” of making “policy 

judgments[, which] are matters for legislative action” (plurality 

opinion) (internal quotation marks omitted)).

¶152 We should apply this standard here. We should require 

a “specific showing of a precise interest” before establishing a new 

right of substantive due process. That showing requires more than 

just a tradition of respecting parental rights generally. To establish 

this new right the mother must establish a tradition of protecting 

parental rights despite a procedural default. This is the framework 

suggested by J.S. And the majority does not present a satisfactory 

reason for departing from it on this high-stakes point of debate in 

the jurisprudence of substantive due process.212

¶153 In framing the right at issue broadly (and inconsistently 

with J.S.), the majority paints a picture of a disposition that follows 

naturally from settled precedent upholding the fundamental 

nature of parental rights generally. But framed properly, the 

specific right established by the majority can be seen for what it is—

a novel holding in a case of first impression. No court has ever 

established a substantive due process right to override a forfeiture 

of parental rights resulting from a procedural default. This court 

has held, at most, that a mother has a fundamental right “not to be 

deprived of parental rights without a showing of unfitness, 

abandonment, or substantial neglect.” In re J.P., 648 P.2d at 1375; see

also Wells v. Children’s Aid Soc. of Utah, 681 P.2d 199, 203 (Utah 1984). 

United States Supreme Court precedent is to the same effect. In 

Quilloin v. Walcott, the Court concluded that it would violate a right 

of substantive due process for the state “to force the breakup of a 

natural family, over the objections of the parents and their children, 

without some showing of unfitness and for the sole reason that to 

do so was thought to be in the children’s best interest.” 434 U.S. at 

__________________________________________________________

212 In a related critique, the majority chides me for denying the 

right at issue “the heightened protection our case law would

typically provide [it].” Supra ¶ 57 (emphasis added). But this point 

suffers from the same misstep. The court is again characterizing the 

purported fundamental right at the highest level of generality, 

presuming that the right at issue encompasses the right to avoid 

procedural default—that such protection is “typical.” This is 

incorrect. The majority extends this protection in this case of first

impression—and a protection cannot be “typical” if it has not been 

extended before.
IN RE K.T.B.

Lee, A.C.J., dissenting

70

255. This same premise is inherent in the Court’s analysis in Stanley 

v. Illinois, 405 U.S. 645 (1972).

¶154 This precedent tells us that strict scrutiny is triggered by 

a statute that authorizes the termination of a mother’s parental 

rights over her properly asserted objection and without a 

requirement of proof of unfitness, abandonment, or neglect. But the 

Adoption Act did not authorize such termination.213 And strict 

__________________________________________________________

213 The Adoption Act did not authorize the district court to 

terminate a mother’s parental rights without requiring “proof of 

unfitness, abandonment, or neglect.” It required proof on those 

points as a prerequisite to parental termination, and afforded the 

mother an avenue to advance her views on these questions. UTAH

CODE § 78B-6-110(6)(a). The statute admittedly does allow for 

termination without a finding of unfitness, etc. in the event of a 

default by the mother—failure to comply with the statutory 

procedures for her appearance as a party. UTAH CODE

§ 78B-6-112(5)(c) (2015). But that doesn’t mean that the statute 

exempts mothers from the requirement of proof of grounds for 

termination. It just means that the statute prescribes specific 

procedures for a mother to assert her position in court. And it 

shows that the Adoption Act is in line with our longstanding law 

of forfeiture or procedural default—which provides that most any 

party may lose her rights by the failure to assert them in the manner 

and at the time required by law. The mother did not lose her 

parental rights, in other words, as a result of a statute that 

eliminated a requirement of proof of grounds for termination for a 

class of parents. She lost her rights as a result of her failure to avail 

herself of procedures afforded by law for her to assert her position 

on such grounds.

The majority claims that this position “ignore[s] the ‘as-applied 

nature of Mother’s substantive due process claim”—presumably 

because in this case the mother’s parental rights were terminated 

without proof of unfitness, abandonment, or neglect. Supra ¶ 38 

n.68. But that will always be the case when parental rights are 

terminated by a parent’s procedural default. The majority also 

insists that a mother “maintain[s] her parental rights unless she 

voluntarily relinquishes them or a court finds that she forfeited 

them by being an unfit parent or by abandoning or neglecting the 

child.” Supra ¶ 38 n.68. This is true as far as it goes. But the majority 

errs in its failure to read this requirement against the longstanding 

background principle of procedural default. See Yakus v. United 

(Continued)
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

71

scrutiny review is accordingly not triggered under the above 

cases.214

__________________________________________________________

States, 321 U.S. 414, 444 (1944) (noting that “constitutional right[s] 

may be forfeited . . . by the failure to make timely assertion of the 

right”); see also Rettig, 2017 UT 83, ¶¶ 15, 17 (explaining that 

“procedural bar[s]” such as rules “requir[ing] parties to raise issues 

or arguments at specified times and by certain means” on penalty 

of losing the right to do so are “commonplace” and “embedded in 

our caselaw”(citations omitted).

214 In so concluding I have not “avoid[ed] the central question 

presented by Mother’s substantive due process claim.” Supra ¶ 96. 

I have simply applied the applicable substantive due process 

standard from J.S. and concluded that the mother has failed to carry 

her burden under that standard. The majority thus misstates my 

position. I am not saying that “‘procedures’ may never be subject

to ‘substantive due process scrutiny’,” supra ¶ 43 n.85, that “a party 

can be barred from challenging an unconstitutional procedural 

requirement due to that party’s failure to comply with that 

unconstitutional requirement,” supra ¶ 94 n.173, or that the mother 

in this case is “precluded from challenging the fairness of 

procedural bars on substantive due process grounds,” supra ¶ 98 

n.175. The mother has every right to mount such a substantive due 

process challenge. I am only insisting that she do so in compliance 

with the test put forth in J.S.—a test that frames the issue narrowly 

by requiring “a specific showing” of a “precise interest” that is 

“deeply rooted” in history and tradition. In re J.S., 2014 UT 51, ¶ 57

(plurality opinion).

And it is because the mother failed to make the showing 

required by our precedent that I would decline to strike down the 

challenged procedural requirement on substantive due process 

grounds. I have not “assume[d], without analysis, that the 

procedural requirement that triggered Mother’s default was 

constitutional.” Supra ¶ 96. Nor have I “argue[d] that the 

procedural requirement that authorized the State to terminate 

Mother’s fundamental parental rights [wa]s constitutional because 

Mother failed to comply with that procedure.” Supra ¶ 97. I agree 

with the majority that such an approach would be circular. But it is 

not the approach that I have taken. And the majority has cited no 

part of my opinion to support its contention that I claim that the 

Act’s strict compliance provision is constitutional because the 

mother defaulted under it.
IN RE K.T.B.

Lee, A.C.J., dissenting

72

¶155 The key factual premise of the majority opinion is the 

notion that the district court “terminate[d] Mother’s parental rights 

without her consent and without proof of parental unfitness, 

abandonment, or neglect.” See supra ¶ 38. That is true as far as it 

goes. But that premise alone does not support the majority’s 

conclusion that section 110 of the Adoption Act is subject to strict 

scrutiny. See supra ¶ 37. The majority opinion overlooks the crucial 

facts that the statute (a) retains the mother’s right to insist on proof 

of unfitness, abandonment, or neglect as a precondition to the 

termination of her rights, and (b) outlines clear steps for the mother 

to take in order to preserve her right to assert her views on these 

matters before her rights were terminated (steps the majority 

concedes comply with the demands of procedural due process, see 

supra ¶¶ 22–30). The statute also prescribes clear consequences for 

the failure to follow the stated procedures. These include 

termination—not on the ground that the mother was unfit—but on 

the ground that she procedurally defaulted. The statute, in other 

words, did not take away the mother’s right to insist that the court 

make a finding of unfitness before terminating her rights; the 

mother just forfeited that right by defaulting under the statute—by 

not filing the required motion to intervene.

¶156 That leaves the question whether the mother may excuse 

her forfeiture by claiming a substantive due process right to ignore 

the procedural requirements of the Adoption Act. The majority 

concludes that the mother has that right. It says that “mothers 

retain a fundamental right in their children regardless of a failure to 

comply with any state-prescribed procedure.” Supra ¶ 37 (emphasis 

added). The court cites no authority for that proposition. But the 

premise of its holding is the notion that a mother’s parental rights 

are fundamental and that procedural compliance is not necessary 

to preserve their fundamental nature. Supra ¶ 88. In describing its 

holding, the court says that substantive due process “protects 

individuals from being deprived of fundamental rights through the 

operation of procedures that are not narrowly tailored to further 

compelling state interests.” Supra ¶ 98.

¶157 This is the essence of the court’s holding. Because I 

oppose it, the court accuses me of creating a “novel framework” 

under which a fundamental right “can lose the protection of strict 

scrutiny review where the holder of the right fails to take on-going 

steps to preserve it.” Supra ¶ 88. But the “novel framework” the 

majority accuses me of establishing is nothing more than the 

longstanding law of procedural default. And the fundamental 
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

73

nature of a parental right is in no way undermined by the 

determination that it is subject to such law.215

¶158 The case law in this field also does not sustain the 

majority’s holding. An important line of precedent from the United 

States Supreme Court establishes that states retain the power to 

regulate even “fundamental” rights through procedure—and 

clearly rejects the notion that all such regulation is subject to strict 

scrutiny. The parental rights cases cited by the majority are not to 

the contrary. None of those cases comes close to establishing the 

substantive due process right established by the court today. The 

governing standard should be the one set forth in our opinion in 

J.S., and the mother has not come close to satisfying that standard.

A. Standards of Scrutiny for Regulation of Fundamental Rights

¶159 The “fundamental” nature of a given right is not alone 

enough to trigger strict scrutiny of any procedural regulation of 

that right. The United States Supreme Court has applied something 

less than strict scrutiny review to the infringement of many 

fundamental rights, including the right to privacy, the right to 

freedom of speech, and the right to free exercise of religion. See

generally, e.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992) 

(discarding the strict scrutiny-based abortion trimester framework 

of Roe v. Wade, 410 U.S. 113 (1973) for a more lenient “undue 

burden” test); United States v. O’Brien, 391 U.S. 367 (1968) (applying 

a more deferential standard to content-neutral regulation of speech 

than the strict scrutiny generally triggered by content-based 

regulations); Employ’t Div. v. Smith, 494 U.S. 872 (1990) (holding 

strict scrutiny inappropriate for neutral and generally applicable 

laws burdening religious practice). One commentator looking at 

these trends has observed that “the notion that government 

__________________________________________________________

215 The majority also misses the mark in characterizing my 

position as resting on the notion that “strict compliance [i]s 

necessary to preserve the fundamental nature of [the mother’s] 

rights.” Supra ¶ 88. The fundamental nature of the underlying 

parental right stays the same throughout—my point is just that the 

right at issue here is distinct from that underlying right. The right 

at issue is the right to be exempt from forfeiture by procedural 

default (unless the defaulted procedure survives strict scrutiny). 

And it is this difference in characterization of the right at issue 

(based on different levels of generality) that underlies much of my 

disagreement with the majority. See, e.g., supra ¶¶ 146–52.
IN RE K.T.B.

Lee, A.C.J., dissenting

74

restrictions on fundamental rights are [always] subject to strict 

scrutiny review is fundamentally wrong” because “[s]ome 

fundamental rights trigger intermediate scrutiny,” some are 

“protected only by reasonableness or rational basis review,” and 

others “are governed by categorical rules, with no formal ‘scrutiny’ 

or standard of review whatsoever.” Adam Winkler, Fundamentally 

Wrong About Fundamental Rights, 23 CONST. COMMENT. 227, 227–28 

(2006).216

¶160 The fact that fundamental rights do not always trigger 

the protection of strict scrutiny is made especially clear in a body 

of voting rights cases. The right to vote is described as 

“fundamental” in United States Supreme Court precedent. See

Burdick v. Takushi, 504 U.S. 428, 433 (1992). But the high court has 

expressly rejected the proposition that this means that any 

regulation of this fundamental right triggers strict scrutiny. See id.

at 432–34. In Burdick the Court described the idea that “a law that 

imposes any burden upon the [fundamental] right . . . must be 

subject to strict scrutiny” as an “erroneous assumption.” Id. at 432. 

It also warned that a decision “to subject every . . . regulation [of a 

fundamental right] to strict scrutiny and to require that the 

regulation be narrowly tailored to advance a compelling state 

interest” would impermissibly “tie the hands of States.” Id. at 433.

With this in mind, the Court has applied different levels of scrutiny 

to various regulations of the fundamental right to vote, depending 

on the degree to which the regulation restricts the right.

¶161 This framework is on display in Crawford v. Marion 

County Election Board, 553 U.S. 181 (2008), in which the Court 

upheld a challenge to the constitutionality of an Indiana voter 

identification law. The Crawford case failed to produce a majority 

opinion. But the plurality and concurring opinions set forth two 

frameworks for analysis that both repudiate the idea of strict 

scrutiny of all regulation of the fundamental right to vote. Justice 

Stevens’ plurality opinion describes the operative regime as a 

__________________________________________________________

216 Professor Winkler has further explained that the notion that 

fundamental rights always trigger strict scrutiny “remains popular 

because it makes a rather complex doctrinal reality quite simple 

and easy to memorize,” but that “[s]uch simplicity[] . . . comes at

considerable cost . . . breeding confusion and misunderstanding 

about how constitutional law works.” Adam Winkler, 

Fundamentally Wrong About Fundamental Rights, 23 CONST.

COMMENT. 227, 239 (2006).
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

75

“balancing approach” that weighs “the precise interests put 

forward by the State” against the “asserted injury to the right to 

vote.” Id. at 190 (citation omitted). On the other hand, Justice 

Scalia’s concurring opinion suggests that the Court applies a

“two-track approach” that applies a “deferential ‘important 

regulatory interests’ standard for nonsevere, nondiscriminatory 

restrictions,” and “strict scrutiny for laws that severely restrict the 

right to vote.” Id. at 204-05.

¶162 Thus, the United States Supreme Court has made clear 

that voting rights “are not absolute and are necessarily subject to 

qualification” by state regulation, Munro v. Socialist Workers Party,

479 U.S. 189, 193 (1986), despite the fact that such rights are “of the 

most fundamental significance under our constitutional structure,”

Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 

184 (1979). Regulation will invariably impose some burden on an 

individual’s fundamental rights (to vote and associate freely). But 

the Court has nonetheless held that “as a practical matter, there 

must be . . . substantial regulation . . . if some sort of order, rather 

than chaos, is to accompany the democratic processes [of asserting 

these rights].” Storer v. Brown, 415 U.S. 724, 730 (1974).

¶163 The same conclusion must logically hold in the realm of 

parental rights. Such rights have been acknowledged to be 

fundamental, but they are not beyond the procedural reach of the 

State’s regulatory authority. And the mere fact that such rights are 

“fundamental” does not mean that any regulation of them is subject 

to strict scrutiny.

¶164 The procedural regulation at issue here is admittedly 

distinct from that at issue in the above-cited voting rights cases. 

Here we are dealing with longstanding rules of procedural default. 

But that kind of regulation, if anything, would seem to trigger a 

more permissive standard of scrutiny—not strict scrutiny. Under 

either the balancing approach of the Crawford plurality or the 

two-track approach set forth in the concurrence, there is no basis 

for a strict scrutiny standard. Here we are dealing with the 

application of neutral, longstanding rules of procedure. Because 

such rules impose no significant burden on parental rights and are 

nondiscriminatory, the Crawford opinions suggest the applicability 

of a deferential standard of scrutiny.

¶165 We have no briefing from the parties on this line of cases. 

And the majority opinion sidesteps them entirely. So we have no 

reason to render a conclusive holding on the effect of these cases on 

our decision. I cite them, however, because they thoroughly 
IN RE K.T.B.

Lee, A.C.J., dissenting

76

undermine the majority’s notion that any regulation of a 

fundamental right is always subject to strict scrutiny.

B. Parental Rights Cases

¶166 None of the majority’s parental rights cases is to the 

contrary. The Quilloin case specifically identifies the forfeiture 

question that I have highlighted here but stops far short of 

establishing the substantive right to override a procedural default. 

And prior decisions of this court actively undermine the 

substantive due process extension established by the majority 

today. Our cases require far more than the vague assertion that a 

mother’s parental rights, broadly framed, are “fundamental.” The 

standard set forth in In re J.P. and reinforced by J.S. requires proof 

of a “deeply rooted” history and tradition at a very specific level of 

generality—here, a right to preserve a parental right despite 

non-compliance with the procedure required by law. The mother 

has failed to carry her burden under these cases. And her assertion 

of a substantive due process right to avoid forfeiture by procedural 

default should accordingly be rejected.

1. Quilloin v. Walcott

¶167 The putative father in Quilloin had “never married . . . or 

established a home” with the mother of his child. 434 U.S. at 247. 

Soon after the child’s birth, the mother married another man and 

consented to adoption of the child by her husband. Id. Mr. Quilloin 

“attempted to block the adoption and to secure visitation rights, 

but he did not seek custody or object to the child’s continuing to 

live with [the mother and her husband].” Id. The Georgia court 

terminated his rights upon a finding that adoption of the child by 

the mother’s husband “was in the ‘best interests of [the] child.’” Id.

at 251 (alteration in original). There was no determination of the 

putative father’s unfitness. Id. at 252. And the putative father 

asserted that his substantive due process rights were infringed 

because the state lacked sufficient justification for terminating his 

parental rights. Id.

¶168 The Quilloin court ruled against Mr. Quilloin. It did so on 

the basis of some core differences between the substantive interest 

established by Mr. Quilloin and that presented by the putative 

father in a prior parental rights case—Stanley v. Illinois, 405 U.S. 645. 

The father in Stanley had lived with his children and their mother 

for many years. Id. at 646. And he had thereby established a 

commitment and connection by which his parental rights were 

deemed to be perfected. Id. at 652. With this in mind, the Stanley

court struck down an Illinois statute as an infringement of the 
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

77

father’s substantive due process rights. Id. at 659. The Illinois 

statute established a conclusive presumption that unwed fathers 

were unfit as parents as a matter of law. Id. at 649. And the Stanley

court held that the statute infringed Mr. Stanley’s fundamental 

parental rights because the state did not have a sufficiently 

compelling interest to terminate the rights of unwed fathers by 

operation of a legal presumption. Id. at 652–53.

¶169 The Quilloin case was different. This was “not a case in 

which the unwed father at any time had, or sought, actual or legal 

custody of his child.” 434 US at 255. And that fact was sufficient to

substantially alter the balance at issue in the case—whether the 

state had a sufficient reason to justify terminating Mr. Quilloin’s 

parental rights without proof of unfitness.

¶170 The Court expressed “little doubt” that it would violate 

a right of substantive due process for the state “to force the breakup 

of a natural family, over the objections of the parents and their 

children, without some showing of unfitness and for the sole reason 

that to do so was thought to be in the children’s best interest.” Id.

But the Court found that Mr. Quilloin’s substantive interests were 

outweighed by the state’s in these circumstances. It thus upheld the 

substantive authority of the state to terminate Mr. Quilloin’s 

parental rights as a matter of law—explaining that it could not “say 

that the State was required in this situation to find anything more 

than that the adoption, and denial of legitimation, were in the ‘best 

interests of the child.’” Id.

¶171 Georgia law, as the Court noted, afforded to putative 

fathers a procedural mechanism for perfecting their parental rights. 

That mechanism was the filing of a “legitimation petition.” Id. at 

253. Such a petition would have given Mr. Quilloin the same right 

to veto an adoption petition that a mother (or married father) had. 

See id. at 249. If Mr. Quilloin had filed such a petition, he could have 

objected to the adoption of his child, precluding the termination of 

his parental rights except upon a finding of unfitness. Id. Yet he 

failed to do so. The Georgia court concluded that Mr. Quilloin 

lacked standing to challenge the adoption on that basis. And the 

Supreme Court ultimately reversed the judgment of the Georgia 

court on substantive due process grounds. But the Quilloin court 

was not holding that the father’s procedural default or forfeiture 

could be excused on substantive due process grounds. It stopped 

far short of establishing a substantive due process right for a parent 

to retain parental rights “regardless of a failure to comply with any 

state-prescribed procedure.” Supra ¶ 37.
IN RE K.T.B.

Lee, A.C.J., dissenting

78

¶172 The Quilloin majority begins by noting an argument 

made by the adoptive parents (an argument that aligns precisely 

with the approach I am proposing in this case)—the notion that 

“due process was not violated, regardless of the standard applied 

by the trial court, since any constitutionally protected interest 

appellant might have had was lost by his failure to petition for 

legitimation during the 11 years prior to [the] filing” of the 

adoption petition. 434 U.S. at 254. This is a straightforward 

forfeiture argument. It is the idea that the father’s substantive due 

process argument is foreclosed because the State afforded the 

father a right to assert his interests and he failed to avail himself of

that procedure. It says that “regardless” of the substantive standard 

applied for balancing the putative father’s interests against the 

state’s, the putative father loses because he stands in default or 

forfeiture by not having availed himself of a preservation 

procedure for asserting his interests.

¶173 The Quilloin court expressly avoided this basis for 

disposition. And it did so in a way that undermines the majority’s 

assertion that the Quilloin line of cases sustains the substantive due 

process right that the court establishes today. After noting the 

adoptive parents’ argument, the court expressed concern about 

resting its judgment on this basis. It concluded that it didn’t need 

to address the forfeiture argument “since under the circumstances 

of th[e] case [Mr. Quilloin’s] substantive rights were not violated 

by application of a ‘best interests of the child’ standard.” Id. The 

Court’s point was that it didn’t matter whether Mr. Quilloin might 

lose on forfeiture grounds because his substantive argument failed

in any event. See id. (noting “hesitat[ion]” regarding “rest[ing] [a] 

decision on this ground, in light of evidence in the record that 

appellant was not aware of the legitimation procedure until after 

the adoption petition was filed”).

¶174 This makes clear that the Quilloin court was not saying 

that a substantive due process defect can cure a party’s procedural 

default or forfeiture. It was saying it didn’t need to address the 

procedural default because the substantive due process claim failed 

on its merits in any event. This highlights a key shortcoming of the 

majority opinion. It clarifies that the United States Supreme Court 

has never recognized a substantive due process right for a parent 

to preserve her parental rights despite a prior procedural default.

2. In re J.P.

¶175 The same goes for our case law. Utah Supreme Court 

precedent has come nowhere close to endorsing the right 
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

79

established by the court today. And in fact, our cases chart a burden 

for establishing a substantive due process right that the mother in 

this case has not carried.

¶176 In In re J.P. we emphasized the importance of framing 

substantive due process rights narrowly and embedding the 

analysis in premises that are “deeply rooted in this Nation’s history 

and tradition” and in the “history and culture of Western 

civilization.” 648 P.2d at 1375 (citations omitted). We warned of the 

perils of “innovations” in substantive due process extensions 

premised on “undisciplined . . . abstract formulae.” Id. (citations 

and internal quotation marks omitted). And with this concern in 

mind, we framed the substantive due process in precise, specific 

terms. We did not frame the inquiry at a high level of generality by 

simply stating that a parent has a vague right that is 

“fundamental,” and proceed from that sweeping premise to our 

own formulation of the appropriate nature and extent of that right. 

Instead we recognized a narrow, specific right—the “right of a 

parent not to be deprived of parental rights without a showing of 

unfitness, abandonment, or substantial neglect.” Id. And we based 

that conclusion not on our own sense of the policies supporting this 

sort of right, but on the fact that firmly rooted “history” and 

longstanding tradition of the “common law” had established such 

a right. Id.

¶177 Our framing of the analysis in J.P. is significant. We 

based our determination of a substantive due process right on 

longstanding history and tradition. And we framed the recognized 

right at a highly specific level. We came nowhere close to 

employing substantive due process in a manner giving a parent a 

substantive right to avoid a default resulting from the failure to 

follow procedures required by law.

¶178 The J.P. framework requires proof of established history 

and tradition at a precise level of specificity. It is not enough to 

assert generally that a mother’s parental rights are fundamental. To 

succeed under J.P., the mother would have to present evidence of 

an established history and tradition of a right of mothers “not to be 

deprived of parental rights despite failure to comply with 

procedure afforded to allow the mother to assert her interests.” 

And the mother here has made no such showing, as I explain 

further below.

3. In re J.S.

¶179 The majority also claims support for its substantive due 

process analysis in our decision in In re Adoption of J.S., 2014 UT 51. 
IN RE K.T.B.

Lee, A.C.J., dissenting

80

Citing J.S., the majority says that “a substantive due process claim 

may be brought where otherwise fair procedures are alleged to be 

unfair in light of the ‘fundamental or important’ right they 

foreclose.” Supra ¶ 85 (citation omitted). Because the mother’s right 

to parent her child is concededly fundamental, the majority says 

that J.S. establishes a basis for substantive scrutiny of the fairness 

of the procedures set forth in the Adoption Act—and thus a basis 

for concluding that the mother in this case has a right to retain her 

parental rights despite her failure to comply with required 

procedures.

¶180 J.S. does not support the majority’s approach, however. 

In fact, the standard set forth in J.S. reiterates and extends the 

warnings stated in J.P. J.S. nowhere endorses the idea of a 

substantive due process right to retain parental rights despite 

failure to comply with required procedure. Certainly it doesn’t say 

that such a right can be premised purely on the general notion that 

a mother’s parental rights are “fundamental.” Instead it asks for 

proof at a highly specific level of generality.

¶181 In J.S. the father asserted a “substantive right” to 

establish his parentage without complying with the procedural 

elements of the statute. 2014 UT 51, ¶ 24. The governing procedure 

under the Adoption Act in J.S. was the requirement that a putative 

father file a detailed affidavit to preserve his parental rights. UTAH 

CODE § 78B-6-121(3). And the father sought to assert a “due process 

challenge . . . to the ‘substantive constitutionality of the affidavit 

requirement at issue,’ while emphasizing that that claim subsisted 

regardless of whether the statutory limitations in question were 

‘applied in a procedurally fair manner.’” In re Adoption of J.S., 2014 

UT 51, ¶ 27. Thus, the father “repeatedly characterize[d] his claim 

as one challenging the statutory affidavit requirement as 

‘substantively unconstitutional,’” or in other words as “aimed at 

establishing a ‘fundamental,’ ‘substantive right’ of an unwed father 

as a parent” without complying with the statutory affidavit 

requirement. Id. ¶ 24. 

¶182 In this sense J.S. is directly applicable to this case. As in 

this case, the question in J.S. came down to whether there was a 

substantive due process right to preserve parentage without 

complying with the procedural requirements of the law. But the 

standard set forth by the J.S. opinion is not at all compatible with 

the approach taken by the majority today. J.S. acknowledges the 

possibility of a limited form of substantive scrutiny of procedure—

in a case in which a party can show not only that a general right or 
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

81

interest is “fundamental,” but also that there is an established, 

longstanding tradition entitling a party to the protection of such 

right without compliance with procedures prescribed by the 

government. See id. ¶ 57 (plurality opinion) (explaining that a party 

would need to “establish a specific showing that the precise interest 

asserted by the parent is one that is deeply rooted in this Nation’s 

history and tradition and in the history and culture of Western 

civilization” (citation and internal quotation marks omitted)). In 

other words, J.S. speaks to the appropriate level of generality at 

which to frame an inquiry into the existence of a substantive due 

process right. It suggests a specific and narrow framing—not the 

broad, sweeping level of generality that the majority today 

espouses.217

¶183 In articulating this standard, the J.S. opinion went out of 

its way to warn of the “slippery slope problems” associated with 

any decision to endorse a new substantive due process right in this 

field. Id. ¶ 59 (plurality opinion). It noted that the father asserted a 

broad historical basis for recognizing the rights of unwed fathers. 

But it concluded that that was insufficient. The putative father had 

failed “to identify any longstanding, widespread basis in our 

history and culture for recognizing a perfected right in unmarried 

biological fathers arising upon their mere filing of a paternity suit (and 

without following other requirements set forth by law).” Id. (emphasis 

added). And it noted that “[e]ndorsement of a substantive right in 

this case would inevitably lead to a series of line-drawing problems 

going forward, requiring courts to make policy judgments about 

__________________________________________________________

217 The majority concedes the narrow framing in J.S. but 

attempts to cabin that framing by arguing that J.S. “did nothing to 

limit the scope of relevant parental conduct” but instead “more 

narrowly construed the parental status—to exclude unmarried 

fathers who had not perfected their parental rights—deserving full 

due process protection.” Supra ¶ 77 n.145. The majority’s point 

seems to be that a holding dealing only with “status” would not be 

binding when it comes to “conduct.” I disagree with the court’s 

premise and with its conclusion. First, I don’t think the narrow 

framing in J.S. dealt with status as opposed to conduct. Second, 

even accepting the majority’s premise for the sake of argument, I 

see no reason why the level of generality would be different for 

“conduct” as opposed to “status”; the majority itself posits that the 

nature of the right at issue is defined by both the conduct and status 

of the parent. See supra ¶¶ 59, 62, 78.
IN RE K.T.B.

Lee, A.C.J., dissenting

82

whether the biological father before the court had done enough to 

properly justify the recognition of his parental rights.” Id. ¶ 60. J.S.

explained that such “policy judgments are matters for legislative 

action.” Id. ¶ 61. 

¶184 J.S. also noted that “[o]ur legislature has spoken to th[e] 

question” of where to draw the line on the procedure for a putative 

father to preserve the assertion of his parental rights—“prescribing 

a series of prerequisites” to the assertion of his rights. Id. It rejected 

the putative father’s attempt to “second-guess those requirements” 

by “establish[ing] a substantive due process right to perfect his 

parental rights on something less than the grounds prescribed by 

the legislature—by filing a paternity action but not the affidavit 

called for by statute.” Id. “Doing so,” the plurality explained, 

“would put us in the problematic realm of making ‘due process 

innovations’ dictated by ‘abstract formulae’ and without any 

effective limiting principle.” Id. And with this in mind it held the 

putative father to the substantive due process standard quoted 

above—a standard framed at a specific level of generality.

¶185 The opinion also connected this standard to the law of 

procedural default or forfeiture. It noted that the putative father in 

that case was merely “claim[ing] that he ignored” the procedural 

requirements of our law “on the (bad) advice of counsel.” Id. ¶ 63. 

And while acknowledging that this was “unfortunate,” it 

emphasized that “bad legal advice is no excuse for failure to 

follow” procedural prerequisites to the assertion of a party’s legal 

rights, noted that “our legal system treats attorneys as agents for 

their clients,” and explained that we “deem clients responsible for 

the decisions they make on advice of counsel.” Id.

¶186 J.S. thus emphasizes the narrowness of the operative 

notion of substantive due process. In rejecting the father’s 

substantive due process claim in that case, the lead opinion 

explained that the father had failed to “make the kind of showing,” 

id. ¶ 58,” needed to establish such a right—proof of a 

“longstanding, widespread basis in our history and culture for 

recognizing a perfected right in unmarried biological fathers 

arising upon their mere filing of a paternity suit (and without 

following other requirements set forth by law),” id. ¶ 59. And it also 

connected this strict standard of substantive due process to the law 

of procedural default or forfeiture.

¶187 The above bears no resemblance to the standard applied 

by the majority in this case. The majority invokes J.S. in support of 

a substantive standard of scrutiny of the statutory procedure under 
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

83

review—here, the requirement of a motion to intervene. See supra

¶¶ 84–86. And it roots its holding in the bare notion that a mother’s 

rights in a child are “fundamental”—presupposing that the inquiry 

should be framed at a broad, sweeping level of generality. See supra 

¶¶84–86. But that is not the approach taken in J.S. J.S. took the 

substantive due process claim at issue on its own terms—framing 

it at a highly specific level of generality. And the plurality in J.S.

rejected that claim on the ground that the father had not established 

a basis in history and tradition for the notion of a substantive 

right—narrowly framed—to preserve parental rights without 

complying with the established statutory procedure.

¶188 J.S. thus charts a narrow, limited domain for a claimed 

substantive right to preserve parental rights despite a party’s 

default under established procedure. And it highlights the 

novelty—and error—in the majority’s decision to endorse a 

substantive right to preserve parental rights despite a procedural 

default under the law.218

4. In re B.Y.

¶189 The majority also claims support for its approach in In re 

Adoption of B.Y., 2015 UT 67. Citing B.Y., the majority says that our 

substantive due process analysis opens the door to scrutiny of the 

“fairness” of a “procedural bar or limitation” in a statute “on the 

ground that the right foreclosed is so fundamental or important 

that it is protected from extinguishment.” Supra ¶¶ 31, 98. Because 

the mother’s right to parent her child is concededly fundamental, 

the majority says that B.Y. establishes a basis for substantive 

scrutiny of the fairness of the procedures set forth in the Adoption 

Act—and thus a basis for concluding that the mother in this case 

__________________________________________________________

218 J.S. admittedly involved the rights of a putative father. And 

the substantive rights of an unmarried father are concededly only 

inchoate—“merely provisional.” See supra ¶¶ 84, 86. But the 

majority misses a key point in resting its decision on the fact that a 

mother’s parental rights are automatically fundamental. While this 

is true, it leaves unanswered the question of whether and to what 

extent a party with rights that are concededly fundamental may 

ignore existing procedures for the assertion of those rights without 

suffering the consequence of a default. The answer to that question 

cannot be the bare assertion that the underlying right is 

fundamental. That is circular. And it overrides the strict standard 

set forth in the case law.
IN RE K.T.B.

Lee, A.C.J., dissenting

84

has a right to retain her parental rights despite her failure to comply 

with required procedures. Supra ¶¶ 31, 98. But the B.Y. opinion is 

consistent with Quilloin, J.P., and J.S—it comes nowhere close to 

establishing a substantive due process right to retain parental 

rights despite a procedural default.

¶190 In B.Y. a putative father sought to challenge the 

Adoption Act’s mandate of “strict compliance” with the procedural 

requirements of the statute—specifically, the requirement of filing 

a paternity action prior to the mother’s consent or relinquishment 

of the child for adoption. 2015 UT 67; UTAH CODE § 78B-6-121(3) 

(The “consent of an unmarried biological father is not required 

unless, prior to the time the mother executes her consent for 

adoption or relinquishes the child for adoption, the unmarried 

biological father . . . initiates proceedings . . . to establish paternity 

. . . .”). Despite the failure to fulfill this procedural requirement, the 

father in B.Y. asserted that he “did enough to ‘grasp’ his 

‘opportunity . . . to develop a relationship with his offspring’” to 

perfect a fundamental parental right under United States Supreme 

Court precedent. 2015 UT 67, ¶ 42 (omission in original). And he 

asserted that the strict compliance requirement infringed his 

substantive due process rights as a parent.

¶191 We acknowledged the possibility of a substantive due 

process claim in this realm, but we rejected it on its merits. We 

noted that “[a]n unwed father’s rights are merely provisional,” 

emphasized that he “must comply with legal prerequisites 

established by the state” to perfect such rights, and concluded that 

“[f]ailure to do so leaves the father’s parental rights without any 

substantive protection—except in the narrow circumstance in 

which the prerequisites established by the state are arbitrary.” Id.

¶ 43. In so doing we emphasized that “[t]he Due Process Clause . . . 

is not a license for courts to second-guess the prerequisites 

established by the legislature for a putative father to perfect his 

parental rights.” Id. ¶ 44. “Instead,” we said that “the well-settled 

standard yields substantial deference to the state’s chosen 

prerequisites.” Id. And we explained that “[i]t does so in light of the 

state’s important interest in ‘immediate and secure adoptions for 

eligible newborns.’” Id. We held that the putative father’s claim 

“fail[ed] under this standard.” Id. ¶ 46.

¶192 The majority seeks to distinguish B.Y. and to claim 

support for its approach in that opinion. It says that B.Y. supports 

the application of a standard of strict scrutiny in assessing the 

“fairness” of the procedure set forth in the Adoption Act—the 
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

85

requirement of filing a motion to intervene. Supra ¶¶ 31, 98. And it 

bases that determination on the fact that this case involves the 

parental rights of a mother, which are automatically 

“fundamental,” while B.Y. involved the rights of a putative father, 

which are “merely provisional.” Supra ¶ 35. The point is correct as 

far as it goes. But until today, no court has ever extended it in the 

manner endorsed by the majority. The majority is of course right to 

say that a biological mother’s rights are inherently and 

automatically “fundamental” under the law. And the court is 

equally correct in its observation that the parent’s alleged right in 

B.Y. was inchoate or “merely provisional.” This was, moreover, a 

key basis for our decision in B.Y. The substantive due process claim 

in B.Y. was deficient because a putative father’s provisional right 

required additional acts on the father’s part before the right could 

be perfected as fundamental. And we had no trouble rejecting the 

father’s substantive due process right in light of the cited premises 

in our case law—the need for “substantial deference” to the state’s 

chosen procedural “prerequisites” to the establishment of a 

parental right, and the substantial basis for protecting “the state’s 

important interest in ‘immediate and secure adoptions for eligible 

newborns.’” B.Y., 2015 UT 67, ¶ 44. 

¶193 But the majority’s analysis assumes that a fundamental 

right once acquired is therefore insulated against forfeiture through 

procedural default. The court cites no case law in support of its 

decision to establish a new substantive right to retain a 

fundamental parental right despite procedural default. And such a

right does not at all follow from the fact that the underlying right 

is itself protected as a matter of substantive due process. Again, a 

mother’s parental rights are automatically fundamental in the 

sense that she is not required to jump through the procedural hoops 

to perfect those rights required of fathers under our case law. See

J.S., 2014 UT 51, ¶ 2 (explaining requirements for fathers to file 

paternity petitions and present evidence regarding their support of 

the child to make a threshold showing of parentage and perfect 

their parental rights). But the connection between procedural 

compliance and the initial perfection of parental rights is beside the 

point here. Here the parental right at issue is admittedly perfected 

(and was so without the need for the procedural compliance 

required of fathers), so the question is whether that concededly 

perfected right can later be forfeited through procedural default. By 

holding that it cannot, the majority establishes a new right of 

substantive due process.
IN RE K.T.B.

Lee, A.C.J., dissenting

86

¶194 The majority repeatedly insists otherwise. Citing cases 

establishing a mother’s lack of need for procedural compliance at 

the perfection stage, it says that the mother must likewise have no 

obligation to comply with another set of procedures (for 

preservation) at a later stage. Supra ¶¶ 36–37; 79–91. But this is a 

big step. The fact that a mother need not jump through procedural 

hoops to perfect her parental rights not only bears on a different 

stage of procedural compliance; it also has no bearing on 

procedural default generally. 

¶195 The mother is not required to jump through procedural 

hoops to establish her parental rights in the first instance. But that 

is not because her fundamental parental rights encompass a right 

to flout procedural requirements generally. It is because there is an 

established tradition—framed in narrow, specific terms—of 

respecting a mother’s rights without any requirement of any 

procedural act aimed at perfecting those rights. That tradition is 

reflected in the fact that the law does not extend the requirement of 

compliance with this procedure to mothers. See UTAH CODE

§ 78B-6-121(3).

¶196 None of these premises apply to the procedures at issue 

here. The procedural rules of preservation assuredly do apply to 

both mothers and fathers. And in the absence of evidence of an 

established tradition allowing a mother to retain her rights despite 

a failure to comply with those rules, the court has no basis to 

establish the existence of such a right.

¶197 By focusing on the difference between mothers’ and 

fathers’ rights at the threshold stage of perfection and importing 

that distinction to any later instance of procedural default, the 

majority also ignores the fact that the state’s interest in procedural 

compliance at these later stages is the same for both mothers and 

fathers. The fact that the mother’s rights are automatically 

fundamental does not mean that she can blithely avoid any need to 

follow state procedure in an adoption proceeding.

¶198 The Adoption Act’s procedural requirements are not 

aimed only at putative fathers. They are also aimed at mothers. See

UTAH CODE § 78B-6-110(6)(a) (requiring that a mother, or any other 

party who receives notice of adoption, must file motion to 

intervene in adoption proceeding within 30 days); id.

§ 78B-6-110(6)(b) (stating that a mother who fails to “fully and 

strictly comply” with this requirement “forfeits all rights in relation 

to the adoptee”). And the legislature has articulated substantial 

interests that are advanced by requiring a mother to intervene as a 
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

87

party and assert her position regarding any claimed basis for 

termination of her rights (such as unfitness, abandonment, or 

neglect). The legislature has expressly found, for example, that “the 

state has a compelling interest in providing stable and permanent 

homes for adoptive children in a prompt manner, in preventing the 

disruption of adoptive placements, and in holding parents 

accountable for meeting the needs of children.” Id.

§ 78B-6-102(5)(a). It has also concluded that “adoptive children 

have a right to permanence and stability in adoptive placements.” 

Id. § 78B-6-102(5)(c). These are important concerns. And they are 

obviously furthered by a requirement that a mother intervene as a 

party in a timely fashion and assert any proffered challenge to 

termination of her parental rights. Failure to do so results in a 

forfeiture of those rights. Neither the mother nor the majority has 

identified any basis in the law of forfeiture by procedural default 

or in the Adoption Act to contradict that conclusion.

¶199 The state’s interests in assuring “stable and permanent 

homes for adoptive children in a prompt manner” and “preventing 

the disruption of adoptive placements” thus remain intact whether 

the parental rights at stake are those of a biological mother or a 

putative father. See id. UTAH CODE § 78B-6-102(5)(a). And it is in this

sense that the question of perfection is irrelevant. It is not—as the 

majority suggests—a threshold question that can obviate the need 

to establish a historical basis for noncompliance with governing 

procedure. The historical inquiry is not aimed at finding a basis for 

whether the parent’s right is fundamental or not. The historical 

inquiry is aimed at finding a basis for noncompliance with 

procedure despite holding fundamental parental rights. It bears 

repeating that no court has ever established a substantive due 

process right of a mother to retain her parental rights despite 

defaulting those rights under governing procedure. We certainly 

didn’t establish such a right in B.Y. In fact, B.Y. left intact the 

standard put forth in J.S.—a standard that requires much more 

than a mere challenge to the “unfairness” of procedure for 

preserving parental rights, and that instead requires a deeply 

rooted historical basis for a fundamental right to retain parental 

rights despite failing to comply with the governing procedure. 

And, again, the mother has not come close to carrying that burden 

here, as discussed in more detail below.

¶200 J.S., admittedly, is not a case involving a biological 

mother’s forfeiture of parental rights through procedural default. 

So it is true that my proposed disposition would be an extension of 

J.S. insofar as that case did not involve a substantive due process 
IN RE K.T.B.

Lee, A.C.J., dissenting

88

challenge to forfeiture of a mother’s parental rights. But this only 

buttresses my point that this a case of first impression. And J.S. is

our most relevant precedent, both bearing on forfeiture of parental 

rights through procedural default and suggesting a position in the 

levels of generality debate discussed above. See supra ¶¶ 179–88. 

The J.S. plurality advocated for a specific framing of the new right 

proposed to be established as a matter of substantive due process. 

And because the framing question is independent of whether a 

parent is a father or a mother, it bears directly on today’s case and 

I would apply it.

¶201 The majority charges me with mischaracterizing the 

right at issue. It complains that I am “mark[ing] a fundamental 

departure from the way courts have traditionally defined parental 

rights.” Supra ¶ 55. I am puzzled by this charge. I concede that there 

is a lot of novelty in this case. But the novelty comes from the 

majority’s extension of the law of substantive due process—from 

its reframing of the alleged new right at the highest level of 

generality.

¶202 The cases I have cited admittedly deal only with the 

rights of putative fathers. But it does not at all follow that a 

mother’s rights are insulated from procedural default. The mother, 

as noted, is not required to jump through procedural hoops to 

protect her rights at the outset. But the majority is seizing on a false 

procedural equivalence in insisting that that means she can never 

be subject to any procedure at any stage. The majority is 

accordingly right to highlight the novelty of this case. The novelty, 

however, is entirely in the majority opinion.

C. Application of the Governing Standard

¶203 For the above reasons there is no basis in existing case 

law for the establishment of a substantive due process right for a 

mother to avoid the usual effect (forfeiture) of a procedural default. 

Certainly that does not follow from the premise that a mother’s 

rights are unquestionably “fundamental.” Much more analytical 

work is required under the above precedent. To sustain a right to 

preserve parental rights despite the failure to comply with 

established procedure, the mother should be required to make a 

showing at a specific level of generality based on firmly rooted 

history and tradition. See In re Adoption of J.S., 2014 UT 51, ¶ 57 

(plurality opinion). She should have to show not just the general 

notion of a fundamental right as a mother, but a right to preserve 

her rights without complying with established statutory procedure.
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

89

¶204 The mother has made no effort at such a showing. 

Instead she claims only (a) that mothers generally have rights that 

are automatically fundamental, and (b) that the procedure required 

by the Adoption Act is generally “unfair.” The majority opinion’s 

analysis is to the same effect. See supra ¶ 37 (asserting that “[a] right 

of a mother not to be deprived of parental rights without a showing 

of unfitness, abandonment, or substantial neglect is . . . 

fundamental” (citation and internal quotation marks omitted)).219

¶205 This falls far short under our law. And the mother’s 

substantive due process claim should be rejected on the ground 

that she has failed to carry the heavy burden set forth in our cases—

__________________________________________________________

219 The majority also claims support for its view in the dictum in 

New York v. Hill, 528 U.S. 110, 116 (2000)—the notion that forfeiture 

“is not appropriate when it is inconsistent with the provision 

creating the right sought to be secured.” Supra ¶ 98 n.174. In the 

majority’s view this means that a decision allowing forfeiture “to 

defeat Mother’s substantive due process claim in this case would 

be inconsistent with the Due Process Clause.” Supra ¶ 98. But that 

is entirely circular. The court is asserting that the Due Process 

Clause prohibits forfeiture in this case because such forfeiture is 

inconsistent with the Due Process Clause.

That does not follow from Hill. That case, for one thing, deals 

with express waiver, not forfeiture by procedural default. And one 

of the two cases cited in support of the quoted statement is also an 

express waiver case. See Hill, 528 U.S. at 116 (citing Smith v. United 

States, 360 U.S. 1, 9 (1959)). The other case, emphasized by the 

majority, is admittedly a forfeiture case. See supra ¶ 98 n.174 (citing 

Crosby v. United States, 506 U.S. 255, 258–59 (1993)). Crosby held that 

a criminal defendant’s right to be present at trial cannot be forfeited 

by failure to appear. 506 U.S. at 258–59. But the Crosby court based 

its holding on well-established case law finding that specific right 

to be unwaivable. 506 U.S. at 259. In other words, the right to 

exemption from the normal consequence of procedural default 

(forfeiture) was both narrowly framed and supported by history 

and tradition as shown by the long line of case law establishing that 

right. And that is surely not the case here—the majority cites not a 

single case establishing the right to avoid forfeiture in this context. 

The court’s cited case law is accordingly unhelpful to it. Hill (and 

the cases it cites) are by no means a general license for a right to 

avoid forfeiture despite a procedural default, and on the contrary 

supports the approach I advocate for here.
IN RE K.T.B.

Lee, A.C.J., dissenting

90

a burden that the majority distorts in its decision today. Contrary 

to the majority’s claim, I am not saying that the substantive due 

process right at issue is defined by “referencing the form of 

governmental interference.” Supra ¶ 65. I am simply saying that the 

established procedures determine how and whether such a right is 

preserved.

¶206 It is tempting to see a technical defect in procedural 

compliance as a matter that should lightly be excused. But 

procedural rules are always two-edged. There is always an interest 

on the other side of the equation. And the procedural requirements 

of the Adoption Act are no exception.

¶207 The adoption arena is one where strict procedural 

compliance is at a premium. The state has a compelling interest in 

“providing stable and permanent homes for adoptive children in a 

prompt matter” and “preventing the disruption of adoptive 

placements.” UTAH CODE § 78B-6-102(5)(a). To serve the interest of 

protecting “the welfare of the child, a determination that a child can 

be adopted must be final as well as immediate.” Wells v. Children’s 

Aid Soc. of Utah, 681 P.2d 199, 203 (Utah 1984). And statutory 

procedures for natural parents to participate in and assert their 

rights in adoption proceedings are a core element of this system. 

¶208 We have long respected the interests advanced by the 

procedural requirements of the Adoption Act. We should continue 

do so here. The state’s interests in stability and finality are no less 

substantial here—in a case involving a biological mother. And the 

majority has identified no legal basis for avoiding this conclusion.

II

¶209 In setting the procedural rules for participation in an 

adoption proceeding, our legislature could have required that a 

biological mother be formally named as a party and served with a 

summons and petition for adoption. Some other states structure 

their law in this way.220 And I can see an argument for favoring this 

__________________________________________________________

220 See, e.g., IOWA CODE § 232.112 (stating that the child’s parents 

are “necessary parties to a termination of parent-child relationship 

proceeding and are entitled to receive notice and an opportunity to 

be heard”); MINN. STAT. § 260C.163(2) (parents of a child have “the 

right to participate in all proceedings on a petition” to terminate 

parental rights or a petition for an adoption); MO. REV. STAT. 

§§ 211.453 (requiring a petition for termination of parental rights be 

(Continued)
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

91

sort of scheme. If I were a legislator I might be tempted to vote for 

this kind of adoption regime.

¶210 But I am not a legislator. And we are not being asked to 

take on the role of super-legislature. We are being asked to decide 

whether the constitution invalidates the adoption provisions that 

were enacted into law by the legislature that was elected into office 

by the people. The answer to that question is no. The majority 

breaks new constitutional ground in concluding otherwise. It cites 

no on-point precedent to support its novel adoption of a 

substantive due process right to override the effect that our law has 

long prescribed for a party’s procedural default—forfeiture of the 

party’s rights.

¶211 The majority’s due process standard, moreover, 

threatens a wide range of adoption procedures in place in 

numerous states across the nation. Procedural default is a 

well-established basis for the termination of parental rights.221 Yet 

the majority’s standard calls this basis into question. When parental 

rights are terminated as a result of a mother’s procedural default, 

the effect will always come about without proof of unfitness, 

abandonment, or neglect. And this effect, in the majority’s view, 

will always trigger strict scrutiny. Supra ¶ 37. This sweeping 

extension of strict scrutiny threatens the viability of the procedures 

__________________________________________________________

served on the biological mother and informing the mother of her 

right to attend and participate in the dispositional hearing); 23 PA.

CONS. STAT. § 2513 (requiring that notice be given to the parents 

before their rights are terminated and allowing them to freely 

participate in the hearing); S.C. CODE ANN. §§ 63-7-2550, -2560 

(requiring a petition for termination of parental rights be served on 

the biological mother and guaranteeing the mother the right to 

legal counsel during the proceedings).

221 See, e.g., FLA. STAT. § 39.801(7) (permitting termination of 

parental rights based on a failure to appear at a scheduled hearing); 

OKLA. STAT. tit. 10A, § 1-4-905 (same); see also, e.g., C.R. v. Dep’t of 

Children & Families, 225 So.3d 393, 394-95 (Fla. Dist. Ct. App. 2017) 

(terminating a mother’s parental rights following her failure to 

appear at trial); In re H.L.L., 179 S.W.3d 894 (Mo. 2005) (en banc)

(terminating a father’s parental rights based on his failure to appear 

at a termination hearing); In re Welfare of S.I., 337 P.3d 1114, 1115

(Wash. Ct. App. 2014) (terminating a mother’s parental rights based 

on her failure to appear at a termination hearing).
IN RE K.T.B.

Lee, A.C.J., dissenting

92

and rules of procedural default or forfeiture. The majority seeks to 

mask this upheaval by emphasizing the “narrowness” of its 

holding, insisting that procedures regulating fundamental rights 

may yet be preserved—so long as they are “‘narrowly tailored’ to 

protect a ‘compelling governmental interest.’” Jones v. Jones, 2015 

UT 84, ¶ 27, 359 P.3d 603 (quoting Washington v. Glucksberg, 521 U.S. 

702, 721 (1997)).

¶212 But this is no real brake on the majority’s approach. The 

majority holds that a party’s noncompliance with procedure is 

excused (on substantive due process grounds) so long as the 

purpose of a procedural requirement is fulfilled. See supra ¶¶ 47–48. 

The standard states, in other words, that a procedural requirement 

whose purpose can be fulfilled in an alternative manner is a 

procedural requirement that is not narrowly tailored.

¶213 And that is a principle with unlimited potential for 

mischief. The application of a strict scrutiny standard to procedural 

regulation of fundamental rights forecloses the whole idea of 

regulation by a uniform set of procedural rules. If the majority’s 

approach takes root, our law will require case-by-case analysis of 

the viability of any and all procedural rules that may sustain the 

sanction of a default of a fundamental right. And this will 

undermine the whole point of procedural regulation. Our rules will 

be pointless if parties can ignore them and instead secure 

personalized standards set by the courts on a case-by-case basis.

¶214 The majority’s framework calls into question a broad 

range of established procedures. The majority seeks to minimize 

the impact of its decision. Supra ¶ 37 n.67. But it has identified no 

meaningful limiting principle. Almost all procedure is not narrowly 

tailored. Most all procedural rules, by nature, are in a sense quite 

arbitrary. And that means that there will almost always be a less 

restrictive means of advancing the underlying goal.

¶215 Consider a standard procedural time bar, like a 

requirement that a party file an answer within thirty days, or a 

response to a motion for summary judgment within a prescribed 

timeframe. If a mother fails to file a timely answer or response to 

the motion her case may be defaulted. Does the principle of 

substantive due process give her the right to ignore the time limits 

in our rules because the time limits we have prescribed are 

arbitrary numbers and the underlying purpose is still served by a 

late filing? That is not how our law of procedure works. And the 

doctrine of substantive due process has never been employed in a 
Cite as: 2020 UT 51

Lee, A.C.J., dissenting

93

manner calling into question the enforceability of the procedural 

default rules built into our law of procedure.

¶216 Procedural default rules serve the state’s compelling 

interests in promoting prompt and stable adoptions. See supra ¶ 42 

(citing Thurnwald v. A.E., 2007 UT 38, ¶¶ 30, 34, 163 P.3d 623). But 

such rules may often not be the least restrictive means of advancing 

those interests. When a rule of procedural default is not the least 

restrictive means of advancing the state’s interests, the rule will be 

struck down as unconstitutional. And this will upset longstanding 

principles of procedural default and forfeiture—and undercut the 

reliance interests of adoptive parents and children. See supra ¶¶ 42, 

82.

¶217 The majority opens the door to a new frontier of 

substantive due process scrutiny—scrutiny of the fairness of the 

procedures prescribed for the procedural default or forfeiture of 

legal rights. If the majority opinion is taken to its logical end, the 

law of procedural default or forfeiture will be forever pressed into 

a state of limbo. And parties in cases involving fundamental rights 

will stand in a particular state of unease.

¶218 Today we speak only to the rights of parents. But the 

logic of today’s decision sweeps much more broadly. As framed by 

the court, it would cover any of a wide range of other fundamental 

rights—including the right to liberty (freedom from incarceration) 

or the right to vote. Our laws require those asserting their interest 

in freedom from incarceration to comply with procedural rules in 

the law of preservation. See, e.g., UTAH CODE § 78B-9-106 

(precluding relief under the Postconviction Remedies Act on any 

ground that “could have been but was not raised at trial or on 

appeal” or that “is barred by the limitation period established in 

Section 78B-9-107”); see also, e.g., Taylor v. State, 2012 UT 5, 270 P.3d 

471 (rejecting defendant’s Postconviction Remedies Act claims 

because they were procedurally barred). The same goes for 

fundamental rights like the right to vote. See, e.g., UTAH CODE

§ 20A-2-102.5 (establishing a voter registration deadline with 

limited exceptions). In the wake of today’s decision the parties to a 

case involving these and other fundamental rights should be on 

notice that the usual effect of a procedural default (forfeiture) may 

not hold. The courts will retain the prerogative of second-guessing 

these procedures—and may set them aside if the majority’s strict 

scrutiny standard is taken seriously.

¶219 This is troubling. The majority’s novel approach 

threatens the very foundations of the law of procedural default or 
IN RE K.T.B.

Lee, A.C.J., dissenting

94

forfeiture. And it places no meaningful limit on judicial discretion 

to second-guess the law in this field. Our precedent has charted a 

more principled course for recognizing viable substantive due 

process claims. I would apply that precedent here. And I would 

conclude that the mother has failed to carry her burden of proving 

a deeply rooted historical basis for a fundamental right to retain 

parental rights despite failing to comply with the governing 

procedure.