Case No. 20040065-CA

Fourth District, Provo Department

The Honorable Gary D. Stott

Attorneys: Buddy Pruitt, Birmingham, Alabama, Appellant Pro Se

Larry S. Jenkins and Richard J. Armstrong, Salt Lake City, for Appellees

Before Judges Billings, Bench, and Jackson.

BENCH, Associate Presiding Judge:

    Appellant Buddy Pruitt appeals an order of dismissal in favor of Appellees (collectively the Center). We affirm.

    It is undisputed that Pruitt did not strictly comply with Utah Code sections 78-30-4.14 and 4.15, which specify the procedure to protest an adoption. See Utah Code Ann. §§ 78-30-4.14, -4.15 (2002). Pruitt argues, however, that he is entitled to claim the common-law impossibility exception to the statutory requirements. The Center contends that the common-law impossibility exception has been abrogated by statute. We do not have to determine whether the common-law exception remains viable because Pruitt does not meet the requirements of the exception in any event.

    In Ellis v. Social Services Department, 615 P.2d 1250 (Utah 1980), the Utah Supreme Court applied the impossibility exception stating, "[i]t is conceivable . . . that a situation may arise when it is impossible for the father to file the required notice of paternity prior to the statutory bar, through no fault of his own." See id. at 1256. "In such a case, due process requires that he be permitted to show that he was not afforded a reasonable opportunity to comply with the statute." Id. The father must show that it was impossible for him to file "through no fault of his own," that he was "not afforded a reasonable opportunity to comply with the statute," and that "he came forward within a reasonable time after the baby's birth." Id.

    Pruitt learned of the mother's location three weeks prior to the birth of the child. Therefore, it was not impossible for him to file before the child's placement, and he was "afforded a reasonable opportunity to comply with the statute." Id. Even if three weeks could not be considered "reasonable," Pruitt did not come forward within a reasonable time after the child's birth. In fact, even though he filed this action seven months after he discovered the mother's location, he has never filed the required "notice of the commencement of paternity proceedings with the state registrar of vital statistics within the Department of Health." Utah Code Ann. § 78-30-4.14(2)(b)(ii) (2002). Thus, Pruitt has not shown that he has complied with the requirements of the common-law exception.

    Pruitt additionally argues that the district court erred by not giving him an opportunity to amend his complaint. "The granting or denial of leave to amend a pleading is within the broad discretion of the trial court, and we will not disturb such a ruling absent a showing of an abuse of that discretion." Smith v. Grand Canyon Expeditions Co., 2003 UT 57,¶31, 84 P.3d 1154. Pruitt never moved to amend his complaint, but argues that as a pro se litigant the court should have given him notice of any deficiencies and then allowed an amendment. Regardless of whether the district court is required to give such notification, there was no abuse of discretion where there is no deficiency in Pruitt's complaint that could be cured by an amendment. It is undisputed that Pruitt did not comply with the relevant statute, and he is not entitled to assert the impossibility exception. An amendment would not change the legal conclusions to be drawn from the undisputed facts that Pruitt is in no position to contest the adoption. The district court did not abuse its discretion where an amendment would have been futile. See id. at ¶33.

    Finally, Pruitt asserts that the district court erred by not ruling on his Motion for Order Under Rule 56(f) and his Motion for Enlargement of Time to Respond. We find any possible error with the district court's ruling to be harmless. The district court dismissed the case based on the undisputed facts, which show that Pruitt did not comply with the required statute and he is not entitled to assert the common-law impossibility exception. Additional discovery and time would not alter that decision, and thus the denial did not cause any harm.

    Accordingly, the judgment of the district court is affirmed.

______________________________

Russell W. Bench,

Associate Presiding Judge

I CONCUR:

______________________________

Norman H. Jackson, Judge

I CONCUR IN THE RESULT:

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Judith M. Billings,

Presiding Judge