                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

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

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   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)
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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




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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.

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                       Opinion of the Court

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

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   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.

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“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
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   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.”

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                        Opinion of the Court

denied this motion as well. Both Mother and J.N. timely filed
notices of appeal.
    ¶14 On appeal, Mother argues that the district court’s
application of Utah Code sections 78B-6-110, -112, and -120.1
violated her due process rights, both procedural and substantive,
by depriving her of her fundamental right to parent K.T.B.6 And
J.N. argues that the court abused its discretion when it denied his
motion to intervene because the Adoption Act entitles him to notice
of, and to intervene in, the adoption as K.T.B.’s presumptive father.
After oral argument we temporarily remanded this case to the
district court for a determination of the enforceability of a post-
adoption settlement agreement entered into by the parties. The
district court determined that the agreement was based on an
illusory promise and was therefore unenforceable. On return from
remand we must now resolve the case on the merits. We have
jurisdiction pursuant to Utah Code section 78A-4-103(2)(h).
                        Standards of Review
    ¶15 Mother argues that the district court violated her right to
due process because it applied certain provisions in Utah Code
sections 78B-6-110, -112, and -120.1 to terminate her parental rights
over her objection and without a finding of unfitness.
“Constitutional issues, including questions regarding due process,
are questions of law, and we review the lower court’s conclusions
for correctness.”7
    ¶16 Additionally, J.N. argues that the court should have
allowed him to intervene in the adoption proceedings after his
common-law marriage to Mother was legally recognized. “A
determination under rule 24(a)(1)” of the Utah Rules of Civil
Procedure, “which permits intervention ‘when a statute confers an
unconditional right to intervene,’ implicates two questions.”8 The

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   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).

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                           Opinion of the Court

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
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   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.

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                        Opinion of the Court

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

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   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).

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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

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   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).
   22Although 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.
   23In 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)).

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                          Opinion of the Court

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

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   24   Id. ¶ 18 (citing Mathews v. Eldridge, 424 U.S. 319, 348 (1976)).
   25   Id. ¶ 23.
   26 Id. (internal quotation marks omitted) (quoting Gray v.
Netherland, 518 U.S. 152, 182 (1996)).
   27  See Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982)
(“The State may erect reasonable procedural requirements . . . [such
as] statutes of limitations . . . . And the State certainly accords due
process when it terminates a claim for failure to comply with a
reasonable procedural . . . rule.”).
   28  In re Adoption of B.Y., 2015 UT 67, ¶ 27 (alteration in original)
(citation omitted) (internal quotation marks omitted).
   29   Id. ¶ 28.
   30   Id. ¶ 32 (citation omitted).

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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


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   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.

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                        Opinion of the Court

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

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   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.

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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
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   45Mother 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).

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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

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   48Jones 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.”).
   49In 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)).

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                           Opinion of the Court

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

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   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.

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                                IN RE K.T.B.
                           Opinion of the Court

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
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   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.
   63See 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”).
   64In 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)
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                        Opinion of the Court

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


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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.
   68The 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)
                                  17
                             IN RE K.T.B.
                         Opinion of the Court

    ¶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

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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)
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                           Cite as: 2020 UT 51
                          Opinion of the Court

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.

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                               IN RE K.T.B.
                          Opinion of the Court

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

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

marks omitted).
   81   UTAH CODE § 78B-6-102(5)(a).
   82   Id.
   83   Id.
   84See, 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)
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                          Opinion of the Court

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
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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).

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                            Opinion of the Court

“accompanied by a memorandum specifying the factual and legal
grounds upon which the motion is based.”89 These sub-
requirements serve section 110’s overarching purpose. They do so
by (1) notifying the court and the petitioners of who will be
contesting the adoption and (2) informing the court of the legal
basis on which that person is entitled to intervene, thereby allowing
the court to quickly weed out improper interveners. Mother’s
attempt to intervene satisfied section 110’s overarching purpose as
well as the underlying purposes of section 110’s filing
requirements.
    ¶46 Mother filed an “Answer to Verified Petition for
Termination of Parental Rights and for Adoption of Minor Child”
within thirty days of receiving the notice of the adoption
proceeding. And although her answer was not accompanied by a
memorandum “specifying the factual and legal grounds upon
which the [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

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   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.
                                       22
                         Cite as: 2020 UT 51
                        Opinion of the Court

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

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   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)
                                  23
                              IN RE K.T.B.
                        Opinion of the Court

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.

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                          Opinion of the Court

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

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   93   See Jones, 2015 UT 84, ¶ 26.
   94   See infra ¶ 179 (Lee, A.C.J., dissenting).

                                       25
                             IN RE K.T.B.
                        Opinion of the Court

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.


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   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.

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                         Opinion of the Court

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 re J.P., 648 P.2d at 1375 (explaining that the right of a mother
“not to be deprived of parental rights without a showing of
unfitness, abandonment, or substantial neglect is so fundamental
to our society and so basic to our constitutional order . . . that it
ranks among those rights referred to in Article I, [section] 25 of the
Utah Constitution and the Ninth Amendment of the United States
Constitution as being retained by the people.” (emphasis added); see
also id. at 1372 (explaining that a mother “has a fundamental right,
protected by the Constitution, to sustain [her] relationship with
[her] child” (citation omitted) (internal quotation marks omitted)).

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                           Opinion of the Court

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

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).

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                           Opinion of the Court

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).
   105See Smith v. Org. of Foster Families For Equality & Reform, 431
U.S. 816, 842–47 (1977).
   106   See supra ¶¶ 33–37.
   107Pierce 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.

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                               IN RE K.T.B.
                          Opinion of the Court

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).
   112In 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)
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                           Opinion of the Court

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.

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                         Opinion of the Court

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.

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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.”).

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                                IN RE K.T.B.
                           Opinion of the Court

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.

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                           Opinion of the Court

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).

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                                 IN RE K.T.B.
                             Opinion of the Court

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).
   145The 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)
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                         Cite as: 2020 UT 51
                        Opinion of the Court

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”).

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                               IN RE K.T.B.
                           Opinion of the Court

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.

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                           Opinion of the Court

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.

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                           Opinion of the Court

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




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   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).

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alleged to be unfair in light of the “fundamental or important” right
they foreclose.161
    ¶86 We then analyzed the nature of the right of the unmarried
father. Although we recognized that we had already determined
that the parental rights of mothers are fundamental (in In re J.P.),
we clarified that this labeling had been limited to mothers because
of “extensive historical evidence of the ‘deeply rooted’ nature of [a
mother’s] right.”162 A plurality of the court then noted that the
father in the case had not made the “required showing of ‘deeply
rooted’ history and tradition [that] was made in J.P. [regarding the
rights of mothers],”163 and so, absent such a showing, the father’s
substantive due process claim would be reviewed on the
“deferential, fallback standard of rationality or arbitrariness.”164
Accordingly, our discussion of parental rights in In re Adoption of
J.S. clarified that the parental rights of mothers are fundamental,
requiring strict scrutiny analysis, but the parental rights of
unmarried fathers are merely provisional, absent some future
showing of “extensive historical evidence” that unmarried father’s
rights are likewise fundamental.
    ¶87 As this discussion of In re J.P. and In re Adoption of J.S.
demonstrates, our case law has established a significant distinction
between the parental rights of unmarried biological mothers and
unmarried biological fathers. Under this distinction, the
fundamental parental rights of a mother are not contingent on
compliance with any procedural requirements that may be
imposed by the state. Because the dissent’s characterization of the
right at issue, and its discussion of our previous cases, fails to
adequately account for this significant distinction, its argument
fails.
    ¶88 In fact, even though the dissent concedes that Mother,
based on her parental status as a biological mother, did not need to
strictly comply with the procedures in the Adoption Act to render
her parental rights fundamental, it nevertheless argues that strict
compliance was necessary to preserve the fundamental nature of her
rights. So the dissent would create a novel framework in which a

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   161   Id.
   162   Id. ¶ 39.
   163   Id. ¶ 54.
   164   Id. ¶ 56.

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                           Opinion of the Court

right, although concededly perfected and fundamental, can lose the
protection of strict scrutiny review where the holder of the right
fails to take on-going steps to preserve it. But the dissent cites no
authority for such a framework. And our case law clearly refutes it.
    ¶89 Our case law makes clear that the fundamental parental
right is a “retained”165 right that stems from “nature and human
instinct,” which is “chronologically prior” to “state or federal
statutory law.”166 It also states that the right includes a fundamental
right for parents to “sustain” their relationships with their
children.167 If these phrases mean anything, they mean that the
fundamental nature of a recognized parental right does not lose its
fundamental status because of a failure to comply with a
procedural requirement instituted by the State.
    ¶90 To be clear, we are not suggesting that the state can never
terminate a fundamental parental right based on the parent’s
failure to comply with a statutory requirement. Instead, we are
merely reaffirming the firmly established principle that where the
state intervenes “to terminate [a parent-child] relationship,” that
intervention, whether accomplished through the imposition of a
procedural requirement or some other means, “must be
accomplished by procedures meeting the requisites of the Due
Process Clause.”168 Applying this principle in this case, we have
concluded that the State’s termination of mother’s fundamental
parental rights, based on her failure to strictly comply with a State-
created procedural requirement, would be constitutional only if the
procedural requirement is narrowly tailored to achieve a
compelling state interest. The dissent’s criticism of this
straightforward approach to substantive due process is misplaced.
    ¶91 Because the dissent fails to adequately account for a key
distinction our case law has established between the status of
biological mothers and unmarried biological fathers, it
mischaracterizes the right at issue in this case. And the dissent’s
attempts to defend this mischaracterization by proposing a
theoretical framework in which the state could deprive an
individual’s fundamental rights of strict-scrutiny protection

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   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).

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                           Opinion of the Court

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



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   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).

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                        Opinion of the Court

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


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   173Lehr, 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.”

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                         Opinion of the Court

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




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   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)).
   175In 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”).

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                           Opinion of the Court

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.

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                        Opinion of the Court

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).
   180UTAH 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.”).

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                                 IN RE K.T.B.
                             Opinion of the Court

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.

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                          Opinion of the Court

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

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   186   UTAH CODE § 30-1-4.5(1) (emphasis added).
   187   Obergefell v. Hodges, 135 S. Ct. 2584, 2601 (2015).
   188   Id.
   189Id.; 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.”).

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                        Opinion of the Court

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.

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   190  See State v. Holm, 2006 UT 31, ¶ 32, 137 P.3d 726 (“[Because]
a marriage license represents a contract between the State and the
individuals entering into matrimony . . . [the defendant], as a result
of his [unsanctioned marriage] ceremony with [his alleged spouse],
[is] not entitled to any legal benefits attendant to a state-sanctioned
marriage.”).
   191  Similar to our holding in Scott v. Scott, we find that the
relevant date for consideration is the date the adoption petition was
filed. 2017 UT 66, ¶ 30, 423 P.3d 1275 (requiring an ex-spouse to be
cohabitating with a boyfriend at the time the petition to terminate
alimony was filed); see also Grupo Dataflux v. Atlas Glob. Grp., L.P.,
541 U.S. 567, 571 (2004) (“[J]urisdiction of the court depends upon
the state of things at time of the action brought. . . . . [The time-of-
filing rule] measures all challenges to subject-matter jurisdiction
premised upon diversity of citizenship against the state of facts that
existed at the time of filing.” (internal quotation marks omitted));
Int’l Trading Corp. v. Edison, 109 F.2d 825, 826 (D.C. Cir. 1939)
(requiring a “duty [to] exist at the time of filing a petition for
mandamus”); Koch v. Carmona, 643 N.E.2d 1376, 1381 (Ill. App. Ct.
1994) (evaluating an attorney’s conduct “under the circumstances
existing at the time of the filing”).
   192 See In re Baby Girl T., 2012 UT 78, ¶ 11, 298 P.3d 1251 (“[A]n
unwed father’s biological connection to his child does not
automatically grant him a fundamental constitutional right to
parenthood. Rather, an unwed father has a provisional right to
parenthood, and due process requires only that an unwed father
have a meaningful chance to preserve his opportunity to develop a
relationship with his child.” (citation omitted) (internal quotation
marks omitted)).

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   ¶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

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   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)
                                   51
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                       Opinion of the Court

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

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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.
   197J.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).

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                Petersen, J., concurring in the result

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



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   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.

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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

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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

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   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.

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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).
   203The 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)
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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.

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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)).
   205See Roe v. Wade, 410 U.S. 113, 152–53 (1973); Griswold v.
Connecticut, 381 U.S. 479, 484–85 (1965).

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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”).

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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,
__________________________________________________________
   208The 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)
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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.

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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
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   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.

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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

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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.

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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


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   210The 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)
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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.

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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

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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”

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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.

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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)
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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.

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    ¶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


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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.

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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
__________________________________________________________
   216Professor 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).

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“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

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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
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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.

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    ¶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

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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.
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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

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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

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   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.

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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

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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.

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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

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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.


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    ¶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

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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

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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.


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    ¶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—

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   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.

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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

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   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)
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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

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served on the biological mother and informing the mother of her
right to attend and participate in the dispositional hearing); 23 PA.
CONS. STAT. § 2513 (requiring that notice be given to the parents
before their rights are terminated and allowing them to freely
participate in the hearing); S.C. CODE ANN. §§ 63-7-2550, -2560
(requiring a petition for termination of parental rights be served on
the biological mother and guaranteeing the mother the right to
legal counsel during the proceedings).
   221 See, e.g., FLA. STAT. § 39.801(7) (permitting termination of
parental rights based on a failure to appear at a scheduled hearing);
OKLA. STAT. tit. 10A, § 1-4-905 (same); see also, e.g., C.R. v. Dep’t of
Children & Families, 225 So.3d 393, 394-95 (Fla. Dist. Ct. App. 2017)
(terminating a mother’s parental rights following her failure to
appear at trial); In re H.L.L., 179 S.W.3d 894 (Mo. 2005) (en banc)
(terminating a father’s parental rights based on his failure to appear
at a termination hearing); In re Welfare of S.I., 337 P.3d 1114, 1115
(Wash. Ct. App. 2014) (terminating a mother’s parental rights based
on her failure to appear at a termination hearing).

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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


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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

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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.




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