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Category: Adoption

In re Adoption of P.P. – 2024 UT App 62 – ineffective assistance of counsel – adoption

In re Adoption of P.P. – 2024 UT App 62

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ADOPTION OF P.P., A PERSON UNDER EIGHTEEN YEARS OF AGE.

B.P., Appellant, v. B.M. AND J.M., Appellees.

Opinion No. 20230486-CA Filed May 2, 2024 Third District Court, Salt Lake Department

The Honorable Kara PettitNo. 222900323

Sheleigh Harding, Attorney for Appellant Sierra D. Hansen, Attorney for Appellees

JUDGE AMY J. OLIVER authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

OLIVER, Judge:

¶1 B.P. (Father) appeals from a district court order terminating his parental rights to his daughter, Phoebe.[1] Father’s only claim on appeal is that his counsel (Counsel) provided ineffective assistance for failing to call certain witnesses to testify at trial. But because Father’s claim hinges on his request for a remand to develop the record, and because we deny the request, we affirm the district court’s order.

BACKGROUND

¶2        In 2014, two weeks after Phoebe was born, Father was arrested on a parole violation, and he remained incarcerated on various charges for “a big portion of her life.” Phoebe lived with her mother (Mother) until the summer of 2021, when Mother became seriously ill and was hospitalized with rapidly declining health. Two weeks before Mother’s eventual death, Father was released from prison.

¶3        Phoebe spent the day before Mother’s death with Father. But, on Mother’s wishes, B.M., Phoebe’s maternal grandmother (Grandmother), and Grandmother’s husband, J.M. (Step-Grandfather; collectively, Grandparents), retrieved her from Father.[2] The next day was an “extremely traumatic day,” as it became clear that Mother was dying. Father appeared at the hospital demanding to take Phoebe with him. His behavior was “intense,” “erratic,” and “scary” enough that security removed him from the hospital. That night, at a vigil in Mother’s honor, Grandmother refused to let Phoebe leave with Father, so he called the police to assist him. But the police declined to physically place Phoebe with Father.

¶4        Phoebe then went to live with Grandparents. Grandmother initiated guardianship proceedings and Father filed an objection. The case was referred to mediation, which was unsuccessful because Father failed to appear. The court found that Father’s failure to appear “amount[ed] to a default” and granted Grandmother permanent guardianship. The court noted Father’s parental rights had not been severed and recommended he seek services and parent-time, but because he was eventually incarcerated again, Father did not do so.

¶5        In August 2022, Grandparents petitioned to adopt Phoebe. The district court held a one-day bench trial. At trial, Step-Grandfather testified that Phoebe was “scared” of Father because of his behavior and had expressed fear that Father would try to take her. Step-Grandfather testified that Phoebe felt abandoned by Father, as he had never written her letters, called her on her birthday, or sent her gifts. Step-Grandfather stated he had a “very minimal” relationship with Father and believed “it wouldn’t be a safe environment” for Phoebe to live with him. Mother’s friend (Friend), who had been at the hospital on the day of Mother’s death, testified about Father’s “scary” and “intense” behavior in trying to take Phoebe with him against Mother’s wishes. Grandmother testified that Father called Phoebe only one time since Mother’s death and had not followed the court’s guardianship order to establish a relationship with her. Grandmother stated that she could not work well with Father because she did not have a relationship with him.

¶6        Although Father’s initial disclosures included a list of ten potential witnesses, Counsel called only one witness at trial— Father himself. Father testified that he had regular communication with Mother while Mother was still alive and he would talk to Phoebe whenever he could, but he admitted that these phone calls mostly consisted of his talking to Mother. He admitted he had been incarcerated for a “big portion” of Phoebe’s life and had not attended the guardianship proceedings, but he noted that Phoebe had spent “four or five days” with him before Mother died. And he testified that he had tried to contact Phoebe after Mother’s death, but Grandparents had given him a “bogus number” and he could not “get ahold of them.” He stated that Grandparents had a “vendetta” against him.

¶7        The court then issued its findings of fact and conclusions of law. First, the court found clear and convincing evidence of statutory grounds for termination, concluding Father had both abandoned Phoebe and made only token efforts to support or communicate with her. With respect to abandonment, the court found prima facie evidence that Father had no communication with Phoebe since shortly after Mother’s death, he had defaulted in the guardianship proceeding, and Grandparents were not aware of his location until they saw a news report that he had been arrested. And with respect to token efforts, the court found Father had, in fact, made no effort to support Phoebe “financially or emotionally”; he was incarcerated for “substantial periods” of her life and had made no attempt to communicate with her while incarcerated; and though he had “some communication with [Phoebe] while out of jail, these time periods were short.” The court also found that Father had “never provided a home” for Phoebe and had never lived with her.

¶8        The court then turned to what it called the “crux of this case”—whether termination was in Phoebe’s best interest. The court found the presumption of preserving “natural familial bonds” had been rebutted in this case because Father had never lived with Phoebe, did not fulfill “the normal parental obligations/responsibilities,” and “never had a positive, nurturing parent-child relationship” with her. The court also considered whether a permanent guardianship could equally protect and benefit Phoebe, but it found that Father and Grandparents “have a terrible relationship” and “will never be able to work together to ensure [Phoebe] has a healthy relationship” with both parties. And though Phoebe had some interaction with Father’s extended family, the court found this was “not substantial enough to outweigh the harms” to Phoebe resulting from a lack of permanence in her guardianship arrangement. The court also found that Father was unable to act in Phoebe’s best interest, demonstrated by his calling the police to remove Phoebe from Mother’s vigil, which was “highly traumatic” for Phoebe. The court found it likely that, should the guardianship remain intact, Phoebe would have to endure the fear of recurring traumatic events. Thus, the court found it strictly necessary from Phoebe’s point of view to terminate Father’s parental rights.

¶9        Father immediately filed a notice of appeal from the termination order. In the meantime, the court granted Grandparents’ petition for adoption. Father then filed a notice of appeal from the adoption decree. On the parties’ stipulation, this court then consolidated the two appeals. After his appeals were consolidated, Father filed a motion requesting a stay of briefing, alleging Counsel provided ineffective assistance and requesting a remand to the district court to develop the record in support of his claim. Father noted that because this was a civil case, remand under rule 23B of the Utah Rules of Appellate Procedure was not available but urged that remand could nonetheless be granted under one of several other “procedural pathways.”

¶10 In support of his request for remand, Father attached declarations from six potential witnesses—his mother, sister, grandmother, uncle, aunt, and wife. Each declaration offered a variation on the same basic facts: Father’s extended family members were “heavily involved” with Phoebe’s and Mother’s lives, Father and Phoebe had “weekly” phone contact, Father and Phoebe “lived” together with Father’s mother and sister before Mother’s death, Father was a “regular dad” and had established a “loving and affectionate . . . father/daughter relationship” with Phoebe, and Grandparents were “difficult to contact” or had “completely blocked” Father’s extended family from contacting Phoebe after Mother’s death. Father argued this testimony would have changed the outcome of his trial—rendering Counsel’s failure to call the witnesses ineffective assistance. We denied the stay and deferred ruling on Father’s request for remand “pending briefing and plenary consideration of the appeal.”

ISSUE AND STANDARD OF REVIEW

¶11      Father’s only argument on appeal is that Counsel provided ineffective assistance by failing to call several witnesses during the termination proceeding. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re C.M.R., 2020 UT App 114, ¶ 11, 473 P.3d 184 (cleaned up).

ANALYSIS

¶12 Father argues Counsel provided ineffective assistance in failing to call several witnesses at the termination trial. To prevail on his claim, Father “must demonstrate both (1) that [Counsel’s] performance was deficient and (2) that [he] suffered prejudice as a result.” In re D.R., 2022 UT App 124, ¶ 16, 521 P.3d 545 (cleaned up), cert. denied, 525 P.3d 1264 (Utah 2023). But because the record does not support his claim, Father requests a remand for the district court to hold an evidentiary hearing regarding Counsel’s alleged ineffective assistance.

¶13      Father recognizes that remand here is not possible under rule 23B of the Utah Rules of Appellate Procedure. See Utah R. App. P. 23B(a) (“A party to an appeal in a criminal case may move the court to remand the case to the trial court for entry of findings of fact, necessary for the appellate court’s determination of a claim of ineffective assistance of counsel.” (emphasis added)). But he urges we may nonetheless grant a remand patterned after two of our prior decisions, In re S.H., 2007 UT App 8, 155 P.3d 109, and In re C.M.R., 2020 UT App 114, 473 P.3d 184. In both cases we determined that—in the context of child welfare proceedings in juvenile court—parents who provided extra-record evidence alleging ineffective assistance on appeal were entitled to a remand similar to that provided by rule 23B to develop the record in support of their claims. See In re C.M.R., 2020 UT App 114, ¶¶ 31–32; In re S.H., 2007 UT App 8, ¶¶ 14–16. As this type of remand is “analogous to remand under rule 23B of the Utah Rules of Appellate Procedure, it requires a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective.” In re D.R., 2022 UT App 124, ¶ 18 (cleaned up).

¶14      This procedure has not yet been applied in the context of private termination petitions filed in district court.[3] But we decline Father’s invitation to do so here because even were we to grant him such a remand, he would be unable to show that Counsel was ineffective. In order to terminate Father’s parental rights, the district court was required to find that (1) one or more of the statutory grounds for termination were present and (2) termination was in Phoebe’s best interest. See In re adoption of J.E., 2024 UT App 34, ¶ 10. The court made detailed findings on each step and, even accepting the facts asserted in the carefully worded witness declarations as true, they do not undermine these findings.

¶15      Several of the declarations asserted that Father had weekly phone contact with Phoebe before Mother’s death. But this does not contradict the court’s finding that Father’s last contact with Phoebe was shortly after Mother’s death and nearly two years prior to the trial. Several of the declarations stated that Phoebe had “lived” with Father before Mother’s death. But Father himself testified he had only spent “four or five days” with Phoebe during that time. And, regardless, this testimony would not have altered the court’s finding that Father had “never provided a home for [Phoebe], much less a permanent home, and has never lived with” her.

¶16 All six witness declarations suggested that Father was a “regular dad,” had a “loving and affectionate . . . father/daughter relationship” with Phoebe, and was attentive to her needs. But the court determined that there was strong evidence that Father “lacks the ability to act in [Phoebe’s] best interest” because, after never having custody of her, “he called the police to physically remove her from” the vigil on the day of Mother’s death, which was “highly traumatic” for her. Further, the court found that Father knowingly allowed guardianship to be granted to Grandparents and had never followed the court’s orders to develop a relationship with Phoebe pursuant to the guardianship order. Testimony about positive interactions between Phoebe and Father—observable for at most five days—does not dispel the court’s finding that Father had “never had a positive, nurturing parent-child relationship” with her.

¶17      Several of the potential witnesses stated that Grandparents had “abducted” Phoebe from Father. And several alleged that Grandparents had either been difficult to reach or had “completely blocked” them from contacting Phoebe. But the court found that Phoebe had interacted with Father’s extended family under the guardianship order, though this contact was “not substantial enough to outweigh the harms to” Phoebe from a lack of permanency. And, if anything, these apparent conflicts between Grandparents and Father’s family only seem to add support to the court’s finding that Grandparents and Father had a “terrible relationship” and would be unable to work together to facilitate a healthy relationship between all parties.

¶18 We fail to see how this testimony from Father’s family members would have changed the court’s conclusion that statutory grounds for termination existed and that termination was in Phoebe’s best interest. Thus, even were we to grant a remand to Father, he would be unable to show that Counsel’s failure to call these witnesses prejudiced him. And without a showing of prejudice, his ineffective assistance claim would fail. See In re D.R., 2022 UT App 124, ¶ 16 (noting a parent must show “both (1) that counsel’s performance was deficient and (2) that [the parent] suffered prejudice as a result” (emphasis added) (cleaned up)). Accordingly, we deny Father’s request for remand. Cf. State v. Griffin, 2015 UT 18, ¶ 20, 441 P.3d 1166 (stating that, in the rule 23B context, “[i]t stands to reason that if the defendant could not meet the test for ineffective assistance of counsel, even if his new factual allegations were true, there is no reason to remand the case, and we should deny the motion”).

CONCLUSION

¶19 Father’s appeal presented one issue: whether Counsel provided ineffective assistance. Because this argument is contingent on Father’s request for a remand, and because we deny this request, we affirm the district court’s order in all respects.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] We employ a pseudonym for the child.

[2] There is some dispute about how much time Phoebe spent with Father before Mother died. Father testified it was “four or five days,” but according to Grandparents, she spent just one day with him.

[3] Given the concern that the “rule 23B-like remand” procedure created in In re S.H., 2007 UT App 8, 155 P.3d 109, may conflict with the Utah Rules of Appellate Procedure, see In re C.M.R., 2020 UT App 114, ¶¶ 36–37, 473 P.3d 184 (Harris, J., concurring), and because it has been applied only in the child welfare context in juvenile court, we urge the Supreme Court’s Advisory Committee on the Rules of Appellate Procedure to consider lending formality to the procedure and to provide for its application to district court private termination proceedings as well as to juvenile court termination proceedings.

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In re Adoption of J.E. – 2024 UT App 34 – termination of parental rights – adoption

In re Adoption of J.E. – 2024 UT App 34

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ADOPTION OF J.E., E.E., AND L.E.,

PERSONS UNDER EIGHTEEN YEARS OF AGE. K.E., Appellant, v. K.M.L. AND L.L.L., Appellees.

Opinion No. 20230162-CA, Filed March 14, 2024 Third District Court, West Jordan Department

The Honorable Matthew Bates No. 222900154

Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant

Bradley A. Schmidt, Attorney for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN D. TENNEY and JOHN D. LUTHY concurred. MORTENSEN, Judge:

¶1        In connection with an adoption proceeding brought in district court, the rights of a biological father were terminated. The father now claims on appeal that the district court relied impermissibly on generalized concerns of his minor children’s need for permanence and that our recent decision in In re L.L.B., 2023 UT App 66, 532 P.3d 592, compels reversal here. We agree with the father and reverse.

BACKGROUND

¶2        KML[1] (Mother) and KE (Father) have two minor children,[2] who are the subject of this appeal—EE, age sixteen, and LE, age thirteen. For much of the children’s lives, Father has been incarcerated. As relevant here, from 2013 to 2018, Father was incarcerated. During that period, his time with EE and LE “consisted of, at most, a weekly visit” with them at the prison.

¶3        In 2018, Father was released from prison on parole. Sometime during this same period, Mother and Father divorced and Mother married LLL (Stepfather). According to Father, after the divorce, the parent-time arrangement allowed him visits every other weekend. But Father saw EE and LE only once in the summer of 2018. Beyond that visit, Father says he “tried to” exercise his parent-time four times, but that each time he went to Mother’s home for the exchange as required by the divorce decree, Stepfather told him the decree required Father to text Mother. Father disputes the texting requirement. The final time Father attempted to visit the children, he found that they had moved and the “house was empty.” Mother had not given him an updated address or contact information. Father notified the law enforcement officers whom Mother and Father used to communicate with one another.

¶4        In January 2020, Father returned to prison because of a parole violation, and he remained there until December of that same year. Following his release, he tried contacting Mother, but when he called the “last phone number [he] had with her[,] . . . there was nothing.” He asked his family to help him contact Mother, but they had no way to reach her either. Father returned to prison in November 2021 because of another parole violation. While incarcerated, he tried to call the children but still did not have updated contact information. Father says he also wrote letters for the children but did not send them because he did not have a current address for Mother.

¶5        In April 2022, Mother and Stepfather petitioned the district court for termination of Father’s parental rights and Stepfather’s adoption of the children. The court bifurcated the proceedings and, following a hearing in November 2022, determined that Father met the statutory ground of abandonment for termination of parental rights.

¶6        In January 2023, during a second evidentiary hearing, the district court determined that it was in the best interest of EE and LE to terminate Father’s parental rights. The court determined that the children presently had “no relationship” with Father. Both children testified that they had “no memory of him, and they would not recognize him if they saw him.” The court also determined that for the last four years, Stepfather had “assumed the role of natural father” to the children, including socializing with them, playing with them, attending their school and extracurricular activities, assisting with their schoolwork, and caring for them, such as by driving them places and making them meals. Both EE and LE “testified to the strong emotional bond” they had with Stepfather and their desire to be adopted by him, which the court gave some weight in consideration of their ages. The court also determined that the “destruction of the relationship between the children and [Father’s] extended family . . . [was] due to [Mother’s] failure to respond to efforts” made by the family to see the children. The court determined that Mother was “not supportive of the relationship between the children and [Father’s] family.” During the hearing, Father requested reconsideration of the court’s abandonment finding. The court took new evidence on the issue but ultimately did not alter its finding and terminated Father’s parental rights.

¶7          In February 2023, the district court held a hearing concerning Stepfather’s adoption of EE and LE, during which Father asked the court to stay the adoption pending appeal. Following arguments from each party, the district court proceeded with the adoption, determining that it was “in the best interests of the [children] that [the] adoption go forward.”

¶8          Father appeals.

ISSUE AND STANDARDS OF REVIEW

¶9          On appeal, Father argues that the district court erred by deciding that termination of Father’s parental rights was in the best interest of EE and LE. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. “A lower court’s best-interest ruling is reviewed deferentially,” but we do not limit our review to considering whether any relevant facts have been left out; we also “assess whether the court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” In re L.L.B., 2023 UT App 66, ¶ 16, 532 P.3d 592 (cleaned up).

ANALYSIS

¶10        “The right of parents to raise their children is one of the most important rights any person enjoys.” In re D.S., 2023 UT App 98, ¶ 16, 535 P.3d 843 (cleaned up), cert. granted, Jan. 25, 2024 (No. 20230877). Before terminating parental rights, a district court must find that (1) “one or more of the statutory grounds for termination are present” and (2) “termination of the parent’s rights is in the best interests of the child.” In re L.L.B., 2023 UT App 66, ¶ 17, 532 P.3d 592 (cleaned up). A district court “must make both of these findings . . . by clear and convincing evidence and the burden of proof rests with the petitioner.” Id. (cleaned up). Father has not challenged the district court’s ruling that statutory grounds for termination existed, so we turn to the best-interest analysis.

¶11      Our supreme court recently determined that a “court must start the best interest analysis from the legislatively mandated position that wherever possible, family life should be strengthened and preserved.” In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827 (cleaned up).[3] Relying nearly entirely on In re L.L.B., 2023

UT App 66, 532 P.3d 592, a recent decision from our court in which we reversed the termination of a father’s parental rights, Father argues that the court erred when it determined that termination and adoption was in the best interest of EE and LE. Father does not claim that the court’s findings were erroneous; instead, he asserts that the facts taken together do not support the court’s ruling. “The best-interest inquiry is intended as a holistic examination of all of the relevant circumstances that might affect a child’s situation.” Id. ¶ 21 (cleaned up); see also In re D.S., 2023 UT App 98, ¶ 18 (“The best-interest inquiry is wide-ranging and asks a court to weigh the entirety of the circumstances of a child’s situation . . . .” (cleaned up)). A district court undertakes this analysis from the child’s perspective and must consider the child’s “physical, intellectual, social, moral, and educational training and general welfare and happiness.” In re L.L.B., 2023 UT App 66, ¶ 21 (cleaned up). To support his argument that the district court erred, Father argues that the “facts and legal analysis are almost identical” between his case and In re L.L.B. This is an overstatement of the cases’ factual parallels, and we are quick to point out where the two cases diverge; however, we still conclude that In re L.L.B. is factually similar enough to be helpful in reaching our ultimate conclusion that the district court did err.

¶12      In In re L.L.B., like the situation in the case before us, the district court terminated the father’s rights in order to allow a stepfather to adopt a child. Id. ¶ 15. Our court reversed. Id. ¶ 35.

¶13      In that case, less than a week after the birth of his child, the father left due to a drug relapse. Id. ¶ 2. Over the course of the next year, the father saw the child only twice. Id. A paternity agreement then granted the mother sole custody and awarded parent-time to the father. Id. ¶ 3. Three years later, the mother married the stepfather, with whom she and the child lived from that point on. Id. ¶ 4. For approximately five years, the father used his parent-time, but then the parents got into an argument. Id. Around that same time, the father and child were in a four-wheeling accident, which the mother suspected had been caused by the father’s alcohol use. Id. In the months that followed, the father’s parent-time was supervised because the mother was concerned that he was using drugs and alcohol around the child. Id.

¶14 About two years later, the mother and stepfather filed a petition in district court for termination of the father’s parental rights and the stepfather’s adoption of the child. Id. ¶ 5. At trial, the mother testified that in the nearly two-year period leading up to the proceedings, the father had attempted to contact the child only twice. Id. ¶ 7. She also testified that he was severely behind on child support payments, and he had never been involved in the child’s education. IdThe guardian ad litem testified that the child did not have a relationship with the father due to his absence and that, in contrast, the stepfather was “an excellent father” who had a “great bond” with the child. Id. ¶ 13 (cleaned up). Over the course of the case, the father relapsed, went to jail, and got sober. Id. ¶ 12. At the time of trial, he had a job and was again paying child support. Id.

¶15 The mother admitted that since filing the termination petition, she had not responded to the father’s requests to see the child. Id. ¶ 7. The father’s mother testified that she had tried “to stay in contact” with the child but had “difficulty getting responses” from the mother. Id. ¶ 9. After the termination petition had been filed, the father had seen the child once and had written letters to the mother, sent a gift, and emailed the child. Id. ¶ 11.

¶16 The district court concluded that the child deserved a “healthy, stable family relationship” with the stepfather, who was the child’s father figure, and that it was in the child’s best interest for the adoption to go forward. Id. ¶ 15 (cleaned up). Because the adoption could not occur without termination of the father’s parental rights, the district court determined “by clear and convincing evidence that it [was] ‘strictly necessary’” to terminate the father’s rights. Id. Our court reversed because the district court’s conclusion that termination was in the child’s best interest went “against the clear weight of the evidence.” Id. ¶ 34. We will discuss some of the applicable reasoning from In re L.L.B. in our ensuing analysis.

¶17      Here, the district court based its decision that termination was in the best interest of EE and LE primarily on two categorical concerns. First, the court stated that the children needed permanency by reasoning that it was “in the best interest of the children to have a normal family life and a permanent home and to have a positive nurturing family relationship with a mother and father.” Second, the court reasoned that Father’s absence while incarcerated required termination of his rights because “weekly visits at the prison . . . are not an adequate substitute to a father in the home and do little to maintain the bond between parent and child.” But categorical concerns such as these are not enough to overcome the legislative presumption that it is in the best interest of children to be raised by their natural parents. We now address why these concerns are insufficient grounds to terminate Father’s rights.

  1. Permanency

¶18 “As our supreme court has explained, categorical concerns about the lack of permanence of an option other than adoption are not enough, otherwise termination and adoption would be strictly necessary across the board.” In re L.L.B., 2023 UT App 66, ¶ 23, 532 P.3d 592 (cleaned up). Just as in In re L.L.B., while we understand the concern about what Stepfather’s legal rights may be regarding the children if Mother dies or Mother and Stepfather divorce,[4] this concern is present in many termination cases, and it does not lead us to the conclusion here “that termination of a parent’s rights is in the [children’s] best interest.” Id.

¶19      Relatedly, Father argues that the district court erred because it did not find that “the present quality of the [c]hildren’s relationship with Stepfather would be changed by adoption.” We agree and see no evidence on the record that—excluding a tragedy like Mother’s death—the adoption will change the living situation or custody of the children. The absence of such a change “is a factor that may weigh against termination in some cases.” In re B.T.B., 2018 UT App 157, ¶ 56, 436 P.3d 206 (cleaned up), aff’d, 2020 UT 60, 472 P.3d 827. Just as in In re L.L.B., we see no findings from the district court that EE and LE’s “current living situation [is] not healthy and stable” or that their living situation will change in any way if Stepfather does not adopt them. See 2023 UT App 66, ¶ 27. Indeed, we see no evidence, or even an assertion, that Stepfather’s love, care, or attachment would change in the absence of an adoption decree.

¶20      Thus, the categorical concern of stability and permanency does not support the court’s decision to terminate Father’s parental rights.

  1. Incarceration

¶21      Because Father has been in and out of prison for much of the children’s lives, the district court relied on the categorical concern of his incarceration to support its termination decision. While it is true that it is much harder for incarcerated parents to be engaged in their children’s lives, the legislature’s policy that we must begin with an assumption that it is in the best interest of children “to be raised under the care and supervision of [their] natural parents” does not support a categorical rule that incarcerated parents’ rights should be terminated. In re D.S., 2023 UT App 98, ¶ 18, 535 P.3d 843 (cleaned up), cert. granted, Jan. 25, 2024 (No. 20230877). In In re D.S., our court recently reversed a juvenile court’s termination of parental rights in the case of a father who was incarcerated at the time. Id. ¶ 33. The father there expressed “a desire to have a stronger relationship” with his children. Id. ¶ 11 (cleaned up). This court determined that “a parent’s desire to build and maintain—coupled with efforts to actually maintain—a meaningful relationship with a child is a factor that will often weigh in favor of . . . a determination that it is in the child’s best interest to keep the relationship intact.” Id. ¶ 27. Our court also explained that the father’s desire to have visitation with his children upon his release should also be “viewed positively” in the best-interest inquiry. Id.

¶22      Here, Father is currently incarcerated and has not, at the present, turned his life around like the father in In re L.L.B, 2023 UT App 66, ¶ 30, 532 P.3d 592However, Father has expressed that he misses the children and has a desire to “support them in their daily lives, their school, [and] their personal affairs.” Father said that he is “glad that they are living a decent” life, but he still wants to be a part of that life. We acknowledge and credit Father’s desire to build a relationship with the children despite his incarceration. Additionally, from 2013 to 2018, Father interacted with the children in the only avenue available to him as an incarcerated parent—through “at most, a weekly visit” at the prison. And though these visits did not continue during his subsequent periods of incarceration, it was at this point that Father had no means of contacting his children due to Mother’s actions.

¶23      Furthermore, there is no evidence that Father’s relationship with EE and LE is harmful to them—just as in In re L.L.B. where there was no finding that the father’s presence “affirmatively harmed” the child or that the father’s “attempts to exercise his parental rights” in any way “negatively affected or disrupted” the child’s life. 2023 UT App 66, ¶ 24; see also In re D.S., 2023 UT App 98, ¶ 24 (reversing termination of an incarcerated father’s parental rights in part because there was “no indication that [the father’s] continuing relationship” with the children was “harmful to them, rather than merely perhaps inconvenient”). Here, neither party has raised any concerns about Father ever

posing a threat to or endangering the children. This is important. Even in In re L.L.B., though the father had turned his life around, there were instances in the past of concern for the child’s safety, such as the four-wheeling accident and supervised visits over fear of the father’s substance abuse. See 2023 UT App 66, ¶ 4. We note that in In re L.L.B our court emphasized that courts must weigh parental conduct in the past against later conduct and that the father was a “presently fit and capable” parent. Id. ¶ 29 (cleaned up). We only point to this concern to emphasize that no such circumstance exists here.

¶24      Thus, not only is the district court’s reliance on the fact of Father’s incarceration unsupported in this case, but the creation of such a categorical rule goes against Utah’s statutes and caselaw.

III. Other Concerns

¶25      Mother and Stepfather, in an effort to distinguish In re L.L.B. from the present case, point to the fact that, unlike Father, the father in that case made “many” attempts to communicate with the children after his incarceration. 2023 UT App 66, ¶ 29, 532 P.3d 592. However, Father’s argument is well-taken that the district court determined this lack of communication was “largely the result of Mother and Stepfather’s interference.” Mother moved the children without telling Father or providing any means of contacting them. This lack of communication should not be held wholly against Father as it was the result of Mother’s actions; to do so would certainly encourage other parents to prevent communication in an effort to similarly strengthen their cases for termination of parental rights.

¶26      Relatedly, any lack of relationship—or as the court put it “destruction” of the relationship—between the children and Father’s extended family was due to Mother’s lack of support and her “failure to respond to [the extended family’s] efforts . . . to see the children.” Mother’s failure to respond to these efforts should likewise not be held against Father.

¶27      Thus, looking holistically at the evidence presented, as courts are required to do, see id. ¶ 21, we conclude that the evidence does not clearly and convincingly demonstrate that termination of Father’s parental rights was in EE’s and LE’s best interest. In our view, the primary bases for the district court’s decision were its categorical conclusions about the need for permanency and the insubstantial nature of a parent/child relationship when a parent is incarcerated. We view Utah precedent as precluding reliance on such categorical concerns. And we view the remainder of the district court’s findings to be insufficient to meet the required burden of proof once these bases are removed from the analysis. Given our legislature’s clear expression that, “as a matter of state policy, the default position is that it is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents,” id. ¶ 31 (cleaned up), we must reverse.

¶28      The court’s order in the adoption decree relied on the termination of all Father’s “rights, duties and responsibilities, including residual parental rights.” Accordingly, with our reversal of the termination order, we also reverse the adoption decree. While this decision is final, it does not preclude the possibility of future termination and adoption proceedings if there is a material change in circumstances.

CONCLUSION

¶29      The district court’s conclusion that the termination of Father’s parental rights was in the best interest of EE and LE was against the clear weight of the evidence. As a consequence of this error, the court also erred when it granted Stepfather’s adoption of the children in reliance on termination of Father’s rights. We therefore reverse.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] Regarding this opinion’s omission of periods following initials, see A.W. v. Marelli, 2024 UT App 8, ¶ 1 n.1. This practice is consistent with The Chicago Manual of Style, which states that if “an entire name is abbreviated, spaces and periods can usually be omitted.” The Chicago Manual of Style Online ¶ 10.12 (17th ed. 2017).

[2] A third child, JE, was initially a part of these proceedings but has since turned eighteen and is no longer included.

[3] In the same case, our supreme court determined that a court may terminate parental rights only “when it concludes that a different option is in the child’s best interest and that termination is strictly necessary to facilitate that option.” In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827 (emphasis added). The district court here made the legal determination that the legislature intended a strictly necessary requirement to apply to the Utah Adoption Act (UAA) for district courts. Yet, the court did not make any subsidiary findings or give reasoned analysis as to whether termination was strictly necessary here; instead, it simply noted in the order’s conclusion that it was strictly necessary to terminate Father’s rights to allow the adoption to proceed. Both parties make arguments on appeal whether the district court erred in this conclusion but neither addresses whether the strictly necessary requirement is even appropriate to apply.

The UAA applies to district courts and reads as follows: “The district court may terminate an individual’s parental rights in a child if . . . the individual’s parental rights are terminated on grounds described in Title 80, Chapter 4, Termination and Restoration of Parental Rights, and termination is in the best interests of the child.” Utah Code § 78B-6-112(5)(e).

Comparatively, the Termination of Parental Rights Act applies to juvenile courts and reads as follows: “[I]f the juvenile court finds termination of parental rights, from the child’s point of view, is strictly necessary, the juvenile court may terminate all parental rights with respect to the parent if the juvenile court finds any one of the [listed grounds for termination].” Id. § 80-4-301(1) (emphasis added).

The case in which our supreme court stated that the best interest of the child analysis includes the strictly necessary requirement was an appeal from juvenile court. See In re B.T.B., 2020 UT 60, ¶ 1. The supreme court has not yet addressed whether this analysis also applies to appeals from a district court— particularly given the absence of the “strictly necessary” language in the UAA.

Our court recently acknowledged, but did not answer, this same question in In re L.L.B. when it determined that it did not need to address the issue because “even without considering the strictly necessary part of the best-interest analysis . . . there [was] not clear and convincing evidence supporting the district court’s conclusion that termination of Father’s parental rights was in [the child’s] best interest.” 2023 UT App 66, ¶ 18, 532 P.3d 592. We conclude the same and will not address the issue further.

[4] The legislature might wish to consider that our court frequently sees this issue raised by stepparents who are concerned over what their legal role will be in a child’s life if their spouse—the child’s natural parent—dies. A statute addresses this concern for grandparents, but no such legal protections exist for stepparents. See Utah Code § 30-5-2(4); see also In re S.T.T., 2006 UT 46, ¶ 30, 144 P.3d 1083 (upholding the statute recognizing that the death of one parent creates potential conflict between the surviving parent and the “in-law” grandparents and, accordingly, providing “an avenue for grandparents and grandchildren to maintain their relationship” through visitation rights).

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In re Adoption of M.A. – 2024 UT 6 – petition to unseal adoption records – good cause

In re Adoption of M.A. – 2024 UT 6

This opinion is subject to revision before final publication in the Pacific Reporter

2024 UT 6 IN THE SUPREME COURT OF THE STATE OF UTAH

In the matter of the adoption of M.A.

MARIANNE TYSON,  Appellant.

No. 20221097

Heard November 8, 2023

Filed February 22, 2024

On Certification from the Court of Appeals

Third District, Salt Lake County

The Honorable Laura S. Scott No. 223902369

Attorney: David Pedrazas, Millcreek, for appellant

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the

Court, in which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN,

JUSTICE HAGEN, and JUSTICE POHLMAN joined.

ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 Marianne Tyson wants to see the court records that memorialized her 1978 adoption.[1] Tyson does not know who her birth parents are but hopes to learn “health, genetic, or social information” about them to inform her doctors about any medical predispositions she may have.

¶2 The Utah Legislature has made a number of policy choices concerning adoption records. “An adoption document and any other documents filed in connection with a petition for adoption are sealed” and closed from public view for a century following the adoption. UTAH CODE § 78B-6-141(2), (3)(e). The Legislature has also decided that those sealed adoption records can be inspected or copied when a petitioner has shown “good cause.” See id. § 78B-6-­141(3)(c). The Legislature has not, however, defined good cause. This court has implemented the Legislature’s “good cause” directive through Utah Rule of Civil Procedure 107(d). That rule instructs a court to determine “whether the petitioner has shown good cause and whether the reasons for disclosure outweigh the reasons for non-disclosure.” UTAH R. CIV. P. 107(d).

¶3 The district court denied Tyson’s petition to examine her adoption records. The court reasoned that good cause “require[d] something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition of [Tyson]” and that to require less would “severely undermine[]” the “Legislature’s policy determination that adoption records should be sealed for 100 years.”

¶4 Tyson appeals, arguing in part that the district court misinterpreted the statute. We agree and remand to permit the district court to reassess Tyson’s petition under the correct standard.

BACKGROUND

¶5 Tyson was less than a year old when she was adopted in 1978. Some four decades later, she petitioned the district court to unseal her adoption file to discover “health, genetic, or social information” about her birth parents. Before her petition, Tyson had requested records from Utah’s voluntary adoption registry, which could not find a parental match.[2] In her petition, Tyson claimed that her doctors had requested family medical history regarding “menopause, high blood pressure and/or stroke” and that she could not provide the history because of her lack of access to her birth parents’ records. Tyson argued that her lack of family medical history was sufficient good cause to unseal her record under section 78B-6-141(3)(c). With respect to rule 107’s balancing requirement, she contended that her desire to understand her family medical history forty-four years after her adoption outweighed any interest in keeping the record sealed from her view.

¶6 Before the district court, Tyson admitted she was not aware that she suffered from any genetic condition for which it would be beneficial to have a better understanding of her family’s medical history. The court asked for additional briefing on the question of how it should interpret good cause. The court noted that “as I interpret the statute correctly or incorrectly, good cause is something more than simply the adult adoptee’s desire to have a general understanding of health or background or ethnicity or who the parents are.”

¶7 At the next hearing, Tyson continued to argue that her right to know her birth parents and their respective medical histories outweighed the birth parents’ privacy interests. The district court denied Tyson’s petition. It recognized that “good cause” is not defined in the statute nor in rule 107. The court also noted that there was no controlling precedent to provide a definition. The court nonetheless concluded that good cause “require[d] something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition of [a] [p]etitioner.” The court reasoned that to require less would “severely undermine[]” the “Legislature’s policy determination that adoption records should be sealed for 100 years. ”

¶8 The district court acknowledged that Tyson correctly asserted that “[i]t is the intent and desire of the Legislature that in every adoption the best [interest] of the child should govern and be of foremost concern in the court’s determination.” (First referencing UTAH CODE § 78B-6-102; and then citing In re Adoption of B.B., 2017 UT 59, ¶ 35, 417 P.3d 1.) But the court also noted that the Legislature has decided that an unmarried mother is entitled to privacy regarding her pregnancy and adoption plan and that it protected this right through the one-hundred-year seal and the good cause requirement for unsealing. (Citing UTAH CODE § 78B-6­-102(5)(b), (7).) The court refused to use the best interest of the child standard for its inquiry, instead adhering to the good cause standard it had outlined.

¶9 The district court next conducted the balancing that rule 107 contemplates and determined that Tyson’s proffered reasons for unsealing her adoption records did not outweigh her birth mother’s privacy interests. The court found this was especially true “given the confidentiality that the statute afforded [the birth mother] when she made the decision to place [Tyson] for adoption over 40 years ago.” The court also noted that “in the absence of good cause, the court is required to guard the confidentiality of adoption records consistent with the Utah Legislature’s policy that such records be sealed.” In accordance with this analysis, the court determined that Tyson was not entitled to obtain the requested records and denied her petition.

STANDARD OF REVIEW

¶10 The Legislature has given district courts discretion to decide if good cause exists to unseal adoption records. We review that decision for an abuse of that discretion. But “[w]hen district courts have discretion to weigh factors[] [or] balance competing interests, . . . those discretionary determinations must rest upon sound legal principles.” State v. Boyden, 2019 UT 11, ¶ 21, 441 P.3d 737. A “[m]isapplication of the law constitutes an abuse of discretion.” Id. ¶ 19. Thus, “when a legal conclusion is embedded in a district court’s discretionary determination, we peel back the abuse of discretion standard and look to make sure that the court applied the correct law.” Id. ¶ 21. We review a lower court’s statutory interpretation for correctness. Scott v. Benson, 2023 UT 4, ¶ 25, 529 P.3d 319.

ANALYSIS

¶11 Tyson raises three arguments on appeal. She first claims that the best interest of the child is the overriding consideration in all adoption cases. And therefore, Tyson contends, the district court abused its discretion when it failed to consider whether the unsealing of her adoption records was in her best interest. Tyson next argues that the district court abused its discretion when it concluded that she was not entitled to obtain the records under Utah Code section 78B-6-141(3)(c). Finally, she contends that the district court abused its discretion when it held that the interest in non-disclosure outweighed Tyson’s justifications to unseal the records under Utah Rule of Civil Procedure 107.[3]

I. THE GOOD CAUSE STANDARD, NOT THE BEST INTEREST OF THE CHILD STANDARD, APPLIES TO PETITIONS TO UNSEAL ADOPTION RECORDS

¶12 Tyson first asserts that the district court erred because it failed to afford primacy to the “child’s best interest” in its analysis. Before the district court, Tyson argued that the Legislature has recognized that “in every adoption the best interest of the child should govern” and that standard should apply to her petition. (Quoting UTAH CODE § 78B-6-102(1).) The court refused to apply that standard and instead analyzed Tyson’s petition using what it understood to be the good cause standard found in Utah Code section 78B-6-141(3)(c).

¶13 Tyson argues that as an adult who was adopted as a minor, she maintains the protections that the law affords to adopted children.[4] Tyson advocates that the Legislature’s mandate—that “in every adoption the best interest of the child should govern”— applies to all proceedings related to a child’s adoption, regardless of when the proceedings occur. Tyson further argues that because “the best interests of the child are paramount[,] . . . [w]hen the interests of a child and an adult are in conflict, the conflict must be resolved in favor of the child.” (Citing In re Adoption of B.B., 2017 UT 59, ¶ 35 n.14, 417 P.3d 1.) Tyson contends we should categorically consider her interest, “as the adult adoptee, over the interest of her birth parents.”

¶14 Even assuming, without deciding, that the child’s best interest standard would otherwise apply to this proceeding, a basic canon of statutory interpretation defeats Tyson’s argument. “When we interpret a statute, we start with the plain language of the provision, reading it in harmony with other statutes in the same chapter and related chapters.” Buck v. Utah State Tax Comm’n, 2022 UT 11, ¶ 27, 506 P.3d 584 (cleaned up). “And where there is an inconsistency between related statutory provisions, the specific provision controls over the general.” Latham v. Off. of Recovery Servs., 2019 UT 51, ¶ 35, 448 P.3d 1241.

¶15 Here, Tyson wants us to promote the general over the specific. Section 78B-6-102(1) speaks about the “intent and desire of the Legislature” generally regarding adoptions, in that “in every adoption the best interest of the child should govern.” Section 78B­6-141(3)(c) speaks directly to the issue presented here—what a petitioner must show to unseal adoption records. We presume that the Legislature intended the more specific provision to control over the general statement. Therefore, the district court did not err when it applied the good cause standard instead of examining what was in Tyson’s best interest.

II. THE DISTRICT COURT ERRED WHEN IT RELIED ON THE LEGISLATURE’S DECISION TO SEAL ADOPTION RECORDS FOR ONE HUNDRED YEARS TO DERIVE THE MEANING OF “GOOD CAUSE”

¶16 The district court concluded that a desire to obtain health information “unrelated to a specific medical condition” was categorically insufficient to make a good cause showing under section 78B-6-141(3)(c). The court relied on what it perceived as the Legislature’s strong emphasis on privacy in adoption statutes to reach that conclusion. Tyson’s desire to provide family medical history to her doctors regarding “menopause, high blood pressure and/or stroke” did not, in the court’s eyes, constitute good cause to unseal her adoption records.

¶17 Tyson challenges the district court’s definition of good cause. She argues that the privacy concerns the Legislature addresses lose their potency over time. Tyson claims her birth mother has enjoyed over forty years of privacy and that affording her further confidentiality cannot outweigh Tyson’s desire to know her family medical history. Specifically, Tyson states that the only reason the Legislature protects a birth mother’s privacy is to assure “the permanence of an adoptive placement.” (Quoting UTAH CODE § 78B-6-102(5)(b).) Tyson argues that “once the Adoptee is an adult, there is no other interest in protecting the privacy of the mother and/or adoptee” because permanence has been achieved. In other words, “once the adoptee has become an adult, the legislative intent has been met and satisfied.” So, according to Tyson, “[t]he interest of Adult Adoptee[s] [like Tyson] should outweigh whatever interest the [S]tate has in protecting . . . [the] privacy of the mother from an Adult Adoptee.”

¶18 Utah Code section 78B-6-141(3)(c) states that an adoption petition and all other documents filed in connection with a petition for adoption “may only be open to inspection and copying . . . upon order of the court expressly permitting inspection or copying, after good cause has been shown.” When it applied this provision to Tyson’s petition, the district court stated that good cause required Tyson to show “something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition.” The court further reasoned that “if this was all that was required to show good cause, the Utah Legislature’s policy determination that adoption records should be sealed for 100 years would be severely undermined.” In essence, the court concluded that a desire to see one’s medical record unrelated to a specific medical condition could not constitute good cause as a matter of law because it would weaken the privacy protections the statute affords to birth parents.

¶19 The Legislature did not define good cause in the context of section 78B-6-141(3)(c). This stands in contrast to other statutory provisions where the Legislature makes clear what it intends good cause to mean. For example, in Utah Code section 32B-14-102(3), the Legislature tells us that good cause equates to “the material failure by a supplier or a wholesaler to comply with an essential, reasonable, and lawful requirement imposed by a distributorship agreement if the failure occurs after the supplier or wholesaler acting in good faith provides notice of deficiency and an opportunity to correct.”

¶20 At times, the Legislature has granted courts broad discretion by not defining good cause, only to add a definition after it sees how the courts have applied the standard. We noted in State v. Ruiz that, under a prior version of the plea withdrawal statute, judges “had broad discretion to determine the scope of circumstances that constituted ‘good cause’ and warranted withdrawal of a plea.” 2012 UT 29, ¶ 31, 282 P.3d 998. But we also noted that the Legislature had amended the statute so that “judges may now grant a motion to withdraw only when they determine that a defendant’s plea was not knowingly and voluntarily entered.” Id. ¶ 32.

¶21 When a court deals with an undefined good cause standard, it has discretion to look to the facts and arguments presented to decide the question. Although it deals with a rule and not a statute, Reisbeck v. HCA Health Services of Utah, Inc. is instructive. See 2000 UT 48, ¶¶ 5–15, 2 P.3d 447. The appellant in Reisbeck failed to file her notice of appeal within the thirty days that Utah Rule of Appellate Procedure 4(a) requires and sought a discretionary extension from the trial court for “good cause” under Utah Rule of Appellate Procedure 4(e). Id. ¶¶ 5, 7. We refused to “establish any specific criteria for determining good cause” because “the assessment of the justifications offered by a moving party will remain highly fact-intensive, and because any given justification may entail aspects both within and beyond the moving party’s control.” Id. ¶¶ 14–15 (cleaned up). That is, an undefined good cause standard provides courts with discretion to consider the merits of individual cases.

¶22 Here, the district court attempted to breathe a more specific meaning into the phrase “good cause.” Although it is understandable that the court would want more guidance than the statute provides, it interpreted the statute in a fashion that rewrote the law. The district court opined that good cause must mean “something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition of [Tyson].” The court reasoned that to require less would “severely undermine[]” the “Legislature’s policy determination that adoption records should be sealed for 100 years.”

¶23 But the statute already balances the policy determination that records be sealed for one hundred years against a petitioner’s desire to see those records. The Legislature resolved the question of when a petitioner can have access to those records by stating that a petitioner can unseal those records whenever she can show a court that good cause exists to do so. To impose additional requirements—such as more than a general desire to know one’s medical history—is inconsistent with the statute’s language. Stated differently, if the Legislature had wanted to impose a requirement that a petitioner point to something more than wanting to know her medical history, it could have put that in the statute. It did not, and it was error for the court to do so.

III. THE DISTRICT COURT DID NOT CONSIDER THE REASONS FOR DISCLOSURE IN ITS RULE 107 DETERMINATION

¶24 The district court not only concluded that Tyson had failed to establish good cause under section 78B-6-141(3)(c), it also determined that she could not meet the showing Utah Rule of Civil Procedure 107(d) requires.

¶25 Rule 107 provides, in relevant part, that: (i) a petition to open adoption records “shall identify the type of information sought and shall state good cause for access”; (ii) if seeking “health, genetic or social information, the petition shall state why the health history, genetic history or social history of the Bureau of Vital Statistics is insufficient for the purpose“; and (iii) in its resolution of the petition, “[t]he court shall determine whether the petitioner has shown good cause and whether the reasons for disclosure outweigh the reasons for non-disclosure.”[5] UTAH R. CIV. P. 107(b), (d).

¶26 Here, the district court ruled that Tyson’s “reasons for wanting access to the adoption records” did not “outweigh her birth mother’s interest in privacy.” But instead of balancing both interests under rule 107, the court focused solely on the birth mother’s privacy interests. The court did not consider the reasons for disclosure. This is likely because the court had already discounted Tyson’s desire to see her adoption records when it interpreted “good cause.” In other words, once the court determined that Tyson could not show good cause under section 78B-6-141(3)(c), it may have concluded that it had nothing to put on the disclosure side of the scale when the court balanced disclosure against non-disclosure.

¶27 We remand to permit the district court to evaluate Tyson’s petition under a correct interpretation of section 78B-6-141(3)(c) and to conduct a rule 107 balancing that gives weight to both the birth mother’s privacy interests and Tyson’s reasons for wanting to see her adoption records.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] In juvenile matters, we typically refer to the subject of the case by their initials. Tyson used her name in the district court briefing and in the briefing before this court. We acknowledge the importance of maintaining confidentiality in juvenile cases, but because Tyson is an adult who uses her full name in court documents, we do so as well.

[2] The Utah Adoption Registry is a voluntary, mutual-consent registry that helps adult adoptees born in Utah and their birth parents and blood-related siblings reunite with one another. See UTAH CODE § 78B-6-144.

[3] On appeal, Tyson asserts that “[e]very person has the constitutional and natural right to know their health, genetic or social information” and that by denying her that right and refusing to unseal her adoption records, we are denying her equal protection under the law as guaranteed by the Fourteenth Amendment. But Tyson has failed to offer any authority or legal basis to support that argument. Advancing a successful argument requires more than dangling an interesting soundbite. “A party may not simply point toward a pile of sand and expect the court to build a castle.” Salt Lake City v. Kidd, 2019 UT 4, ¶ 35, 435 P.3d 248. Tyson has inadequately briefed her constitutional argument, and we will leave the question for a case in which it has been fully briefed.

[4] Tyson cites the District of Columbia high court to support her proposition that the legal protections afforded to children should extend to minor adoptees who have become adults. (Citing In re G.D.L., 223 A.3d 100 (D.C. 2020).) That case is not helpful because the District of Columbia’s unsealing statute is significantly different from Utah’s. The D.C. statute provides that adoption records may only be unsealed “when the court is satisfied that the welfare of the child will . . . be promoted or protected.” D.C. CODE § 16-311.

[5] At first blush, Utah Rule of Civil Procedure 107 appears to smear some extra-textual gloss on the statute when it requires a petitioner to state why she cannot get medical information from the Bureau of Vital Statistics, and when it instructs a court to assess whether the “reasons for disclosure outweigh the reasons for non­disclosure.” Tyson does not challenge rule 107 and we will leave that question for another case.

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H.B. 194

Another potential law up for consideration in the 2024 Utah legislative session is H.B. 194. This bill would, if passed, amend provisions relating to adoption and child placement by amending the definition of “relative” for purposes of child placement to include second cousins. Up to this point, the law does not recognize a second cousin as a relative qualified to have a child placed with for adoptions or following the termination of a child’s parent’s or parents’ parental rights . H.B. 194 would make second cousins qualified relatives. I’m not sure there was any pressing need for such a law, but expanding the pool of relatives qualified to adopt or to care for a child who, for one reason or another, cannot live with one or both of its parents to include second cousins doesn’t strike me as a terrible idea.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Can Adoptive Parents Lose Their Kids When They Divorce?

Adoptive parents cannot lose custody of the children they adopted merely because they divorce. The children of adoptive parents are treated no differently in divorce than children who are issue of the marriage (“issue of the marriage” means the children are the biological children of the married couple). Divorcing parents who are not unfit parents cannot be deprived of the legal and physical custody of their children merely because they divorce. Instead, the court will award custody to one or both of the parents (such as “sole custody,” which means that the children live primarily with one parent and the other parent exercises “visitation” with the children on weekends, holidays, and in the summertime; or joint custody, which means that the children reside with each of the parents a portion of the year, year after year).

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Can-adoptive-parents-lose-their-kids-when-they-divorce

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In Re A.H. – 2022 UT App 114 – Termination of Parental Rights

2022 UT App 114

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF

A.H., J.H., J.H., L.H., N.H., S.H., AND E.H., PERSONS UNDER EIGHTEEN YEARS OF AGE.

N.J.H. AND S.H., Appellants, v. STATE OF UTAH, Appellee.

Opinion

Nos. 20210353-CA and

20210354-CA

Filed October 6, 2022

Fourth District Juvenile Court, Provo Department

The Honorable Suchada P. Bazzelle No. 1145453

Alexandra Mareschal, Attorney for Appellant N.J.H.

Kirstin H. Norman, Attorney for Appellant S.H.

Sean D. Reyes, Carol L.C. Verdoia, and John M.

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYA N M. HARRIS authored this Opinion, in which

JUDGE DAVID N. MORTENSEN and SENIOR JUDGE KATE APPLEBY concurred.[1]

HARRIS, Judge:

¶1 After a bench trial, the juvenile court terminated S.H.’s (Mother) and N.J.H.’s (Father) (collectively, Parents) parental rights regarding the two youngest of their seven children: A.H. and L.H. (the Subject Children). The court did not terminate Parents’ rights regarding their other five children; it accepted the parties’ stipulation that the best interest of those children would be served by placing them in a guardianship with relatives. But despite those same relatives being willing to take and care for (by either adoption or guardianship) the Subject Children as well, the court determined that the Subject Children’s best interest would be served by termination of Parents’ rights and adoption by their foster parents. In separate appeals that we consider together in this opinion, Parents challenge that decision, asserting that termination of their rights was neither strictly necessary nor in the best interest of the Subject Children. We agree and reverse.

BACKGROUND

¶2 Mother and Father are the parents of seven children (the Children), each born approximately two years apart. The eldest (E.H.) was born in 2005, and the two youngest (A.H. and L.H.) were born in February 2015 and December 2016, respectively. Mother is the biological parent of all seven of the Children. Father is the biological parent of the six youngest Children and the legal parent of all of them; he adopted E.H. when E.H. was an infant. Mother and Father met in New Mexico, which is where the parents of E.H.’s biological father (Grandparents) live.[2] Parents moved to Utah, with the Children then born, in 2007.

¶3 Over the years, Grandparents developed a close relationship not only with E.H.—their biological grandson—but with the other Children as well. They made trips to Utah on at least an annual basis during which they spent time with the Children, and they engaged in regular telephonic contact as well. After L.H. was born in 2016, he required a lengthy stay in the newborn intensive care unit, and Grandmother took three weeks off from her job as a nurse to come to Utah and help.

¶4 In June 2017, the Division of Child and Family Services (DCFS) filed a petition for protective supervision, asserting that Father had physically abused N.H., one of the older sons, and that L.H.—who was then just a few months old—was malnourished and failing to thrive. DCFS’s plan, at that point, was to leave the Children in the home and provide supportive services. After adjudicating N.H. abused as to Father and the other Children neglected as to Father, the juvenile court granted DCFS’s requested relief and ordered that Father have only supervised contact with the Children. For the time being, the Children remained in the home under Mother’s care.

¶5 In August 2017, however, DCFS filed a petition seeking custody of the Children, citing not only the issues raised in its previous petition but also a more recent incident involving Mother and L.H. In response to a report of reckless driving, police found Mother slumped over the steering wheel of her parked car with L.H. in the backseat, and a search of the vehicle turned up several prescription medications in a container not intended for prescriptions, as well as a red straw with “white powder” inside it. Police arrested Mother on suspicion of, among other things, impaired driving; she was later able to provide prescriptions for all the medications found in the car.

¶6 After a hearing, the court granted DCFS’s requested relief and placed the Children in the temporary custody of DCFS. The Children were removed from Mother’s care later that same day and, when caseworkers went to the home to effectuate the court’s order, they observed Mother “wobbling back and forth” and having “a hard time keeping her eyes open.” Initially, DCFS caseworkers—with Mother’s agreement—arranged a safety plan in which Mother would leave the home and the Children would stay there, in their familiar environment, cared for by Mother’s brother. But Mother knowingly failed to follow that plan, and returned to the home without permission two days later. As a result of Mother’s actions, DCFS removed the Children from the home and placed them in a group home for children.

¶7 But that placement was temporary, and DCFS eventually needed to move the Children to foster care placements. But because no available foster care placement could accommodate all seven Children, DCFS found it necessary to split the Children up into three different placements. The oldest two were placed in one foster home, the next three in a second, and the Subject Children in a third. Three months later, the oldest two were placed with a paternal aunt. For almost a year, the seven Children were separated into these three groups, and the different groups saw each other only during Parents’ supervised parent-time; they were sometimes permitted to call each other, but DCFS did not facilitate any in-person sibling visitation during this period.

¶8 At later hearings, the juvenile court adjudicated the children neglected as to Mother. The court noted L.H.’s “failure to thrive” and the incident involving the parked car, as well as Mother’s criminal history—which involved both drug crimes and retail theft—and her “history of mental health issues that [could] place the [C]hildren at risk of harm.” Despite these concerns, however, the goal remained reunification and, over the ensuing months, Parents complied with the court’s direction well enough that, by July 2018, the family was able to reunify in the home. For the next nine months, the family was together—for the most part[3]—and doing reasonably well, and DCFS anticipated that it might be able to close the case in the spring of 2019. But three events occurred in early 2019 that prompted DCFS to reconsider.

¶9 First, in March 2019, Father injured two of the older Children, and DCFS made a supported finding of physical abuse by Father. In the wake of this incident, and in an effort to avoid a second removal of the Children from the home, Father agreed to move out and to have only supervised visits with the Children. When caseworkers visited the home following Father’s departure, they became concerned about Mother’s ability to care for the Children on her own; in particular, caseworkers observed several incidents in which Mother left the younger Children unattended.

¶10 Second, in late April 2019, police were called to the home at 1:54 a.m. and found L.H., then just two years old, alone in the family car, which was parked in front of the house. Mother explained that she had been out shopping, gotten home late, and then taken a phone call while L.H. was still out in the car asleep.

¶11 Third, in early May 2019, Mother had an encounter with police while in her car at a fast-food restaurant. Officers observed Mother responding quietly and slowly to questions, and they discovered in the car a plastic bag and an unlabeled prescription bottle containing pills later identified as controlled substances. In addition, officers found a razor blade with white residue and a rolled-up dollar bill in the vehicle, evidence that suggested Mother had been misusing the drugs. Mother passed a field sobriety test, and officers later determined that she had valid prescriptions for the pills.

¶12 Following these incidents, DCFS filed a new petition, again seeking to remove the Children from the home and place them in state custody. The juvenile court again adjudicated the Children abused and neglected as to each Parent, and again placed them into the custody of DCFS. The Children were extremely emotional when they learned of the court’s order removing them from the home for a second time; in fact, officials even had to use physical force to restrain two of the older sons when the time came to take them into custody. This time, the seven Children were sent to four placements: one of the older sons was placed in a short-term behavioral health facility because of his aggressive behavior during the removal; two of the older sons were placed together; and the two next-oldest sons and the Subject Children were returned to their respective previous foster placements. Just a few weeks later, six of the Children—all but the oldest—were placed together with a single foster family in a different county, but this short reunion lasted only about two months.

¶13 In August 2019, with the school year approaching, Parents requested that the Children be returned to Utah County, a request that again required the Children to be split up. This time, the two oldest were placed together; the next three were placed together in a new placement; and the Subject Children were—for the first time—placed with the family (the Foster Family) who now wishes to adopt them.[4] The Subject Children bonded very quickly with Foster Family, calling the parents “mom and dad” within just a few weeks of being placed with them. Still, the primary goal remained reunification, and the court ordered additional reunification services. However, DCFS still did not facilitate any sibling visitation, but “left that mostly up to [the] foster parents.” Although the foster families initially managed “a few meet-ups on their own,” these efforts diminished over time, despite the absence of any indication that the Children—including the Subject Children—did not want to see each other.

¶14 At a court hearing in July 2019, shortly after the second removal, Mother’s attorney requested that Grandparents—who were and remain willing to take all seven of the Children—be considered as a possible placement. The court was open to this suggestion but, because Grandparents reside in New Mexico, the court ordered DCFS to “initiate an ICPC[5] as to” Grandparents. But DCFS delayed acting upon the court’s order for nearly four months, until late October 2019. DCFS attributed the delay, in part, to inadvertence related to a caseworker switch that was occurring right then, but the new caseworker later testified that her “understanding” of the situation was that DCFS “made a decision not to proceed” with the ICPC process “because reunification services were still being offered.” Owing at least in part to the four-month delay in getting it started, the ICPC report was still not completed by the beginning of the eventual termination trial in October 2020. On the third day of trial, a DCFS witness explained that New Mexico had just finished its end of the process and had given its “approval” the day before, and that DCFS had filled out its final form the night before.

¶15 The ICPC report, when it was finally completed, raised no concerns with regard to Grandparents, and concluded that their home would be an appropriate placement for the Children. Indeed, one of the DCFS caseworkers testified at trial that she had “no concerns directly about [Grandparents] and their ability to be a safe home.” But none of the Children were actually placed with Grandparents until October 2020, due in large part to the delays associated with completion of the ICPC report.

¶16 For several months following the second removal of the Children from the home, the primary permanency goal remained reunification, and DCFS continued to provide reunification services to the family. But in the fall of 2019, after yet another substance use incident involving Mother, DCFS became dissatisfied with Parents’ progress and asked the court to change the primary permanency goal. At a hearing held at the end of October 2019, the court agreed, terminated reunification services, and changed the primary permanency goal to adoption with a concurrent goal of permanent custody and guardianship. A few weeks later, the State filed a petition seeking the termination of Parents’ rights with regard to all seven Children.

¶17 The court originally scheduled the termination trial to occur at the end of February 2020, but the State requested a continuance because it was working on placing the Children with Grandparents, was waiting for the ICPC report, and wanted “to ensure [that] the Grandparents kn[ew] what they [were] getting into.” The court granted the State’s requested continuance and rescheduled the trial for the end of March 2020. On March 12— the day before all “non-essential” court hearings in Utah were postponed by administrative order[6] due to the emerging COVID19 pandemic—all parties filed a stipulated motion asking that the trial be postponed yet again because there was “an ICPC request pending approval” and it was “highly anticipated by all parties that the results of the ICPC [would] resolve all issues pending before the Court.” The court granted the stipulated motion and continued the trial, but did so without date because the termination trial was deemed “to be a non-essential hearing.” Eventually, after the COVID-related administrative order was amended to allow some non-essential hearings to go forward, the court rescheduled the trial for October 2020, to take place via videoconference.

¶18 In the meantime, despite the fact that the ICPC report was not yet completed, the five oldest Children visited Grandparents in New Mexico for several weeks during the summer of 2020. DCFS did not allow the Subject Children to participate in that visit, not based on any concern about Grandparents’ ability to provide appropriate care for them, but because caseworkers believed that such a lengthy visit away from Foster Family would be “scary and upsetting” to the Subject Children.

¶19 During this time, the parties and their attorneys were preparing for trial. From the beginning of the case, Parents had each been provided with a court-appointed lawyer (collectively, Appointed Counsel) to represent them. But toward the end of July 2020, Parents asked a private lawyer (Private Counsel) to represent them at trial.[7] Private Counsel agreed, and Parents paid him a retainer. Parents informed Private Counsel of upcoming pretrial disclosure deadlines, and even gave him a list of fifteen witnesses Parents wanted to call at trial; Private Counsel told them that he would file the appropriate documents and that they did not need to contact their Appointed Counsel. Eventually, Parents discovered that no pretrial disclosures had been made and no motions for extensions of the deadlines had been filed.

¶20 The trial was finally held in October 2020. The first day was spent solely trying to clear up confusion about who was representing Parents. Appointed Counsel appeared for trial, but they indicated that they were unprepared to proceed given the lack of communication from Parents over the weeks leading up to trial. Private Counsel appeared as well, even though he had not filed a notice of appearance, and requested that the trial be continued. The court—not knowing the full picture of what had happened behind the scenes with Parents’ attempts to change counsel—chastised Private Counsel for the “very, very late notice and request” and denied the continuance, expressing concern that eleven months had already passed since the trial had originally been set. The court then recessed for the day to allow the parties to confer and negotiate about possible permanency options short of termination of Parents’ rights.

¶21 Those negotiations bore fruit, at least in part. With Private Counsel assisting Parents, the parties were able to reach a stipulation that it was in the best interest of the oldest five Children to be placed with Grandparents under an order of permanent custody and guardianship. But the parties were unable to reach a similar stipulation with regard to the Subject Children, and therefore the trial went forward as to them. At that point, Private Counsel withdrew from representing Parents, leaving Appointed Counsel to handle the trial even though they had not—given the lack of communication with Parents—made many of the usual preparations for a trial.

¶22 In support of its case, the State presented testimony from four DCFS caseworkers, two therapists, Mother’s former and current probation officers, and the mother from the Foster Family (Foster Mother). Foster Mother testified that the Subject Children had developed a strong bond with Foster Family and “love[d] spending time with [them].” She also stated that the Subject Children refer to her three children as “their brother and sisters,” that “[n]obody is ever left out amongst the kids,” and that L.H. “believes he is part of [their] family” and “has said, on multiple occasions, that he’s already adopted.” The two therapists testified that the Subject Children did indeed have a strong bond with Foster Family; one of them stated that it was “the most secure attachment [she had] ever witnessed . . . between a foster parent and a foster child,” and offered her view that it would be “hugely devastating” for them if they were removed from Foster Family.

¶23 Several of the caseworkers testified about the strength of the bond between the Subject Children and their older siblings, and they painted a picture in which those bonds were originally very strong but had begun to weaken over time as the Subject Children spent less time with their siblings and became more attached to Foster Family. One of the first caseworkers to work with the family testified that the bonds had been strong among all the Children, including the Subject Children. Another testified about how emotional the older children were upon learning that they were to be removed from the home a second time and again separated from most of their siblings. But another caseworker— who had been assigned to the family in 2019—testified that the Subject Children’s bond to their older siblings was weakening as they became more attached to Foster Family. In general, the caseworkers voiced concerns about separating siblings, offering their view that ordinarily “children should stay together” and that placing siblings together “is understood under most circumstances . . . to be beneficial to the kids.”

¶24 Parents were prohibited from introducing many of their witnesses because they had failed to make their required pretrial disclosures. In particular, Parents were prepared to call one of the Subject Children’s former foster parents as well as some of the older Children, who would each have apparently testified that the bonds between the Subject Children and their siblings had been, and still remained, very strong. But the court refused to allow Parents to call these witnesses because they had not been timely disclosed. The court did, however, allow Parents to offer testimony of their own, and to call Grandparents to testify.

¶25 For their part, Parents testified about how closely bonded the Children had been before DCFS became involved. Father testified that the older siblings had expressed a desire to all be together and noted that, if they were placed with Grandparents, the Subject Children would not only be with siblings, but also with cousins, and would have a large network of familial support. Mother testified that she, too, wanted the Children to be kept together and stated that she knew she was “not what [the Children] deserve” “right now,” but offered her view that, at some point in the future, after she has “[gotten] [her]self together,” she “will be what’s best for them.”

¶26 Grandfather testified that he and Grandmother told DCFS, right from the start, that they were willing to take all seven children. He explained that they were accustomed to large families, having raised eight children of their own; he noted that two of those children lived nearby, meaning that the Children, if they lived with him, would have aunts, uncles, and cousins in the vicinity. Grandfather testified that he and Grandmother had renovated their house to accommodate all seven children and that they were able, financially and otherwise, to take on the responsibility. He acknowledged that raising seven children was not how he had originally envisioned spending his retirement years, but he offered his view that “no matter what else I could be doing in the next ten or twenty years,” what mattered most to him was “that [he] could be doing something to make a difference in the lives of these kids.” Grandmother testified that she had bonded with A.H. during her three-week stay with the family after L.H. was born, and she offered her view that it had been difficult to get Foster Mother to facilitate telephonic or virtual visits between the older siblings and the Subject Children during the older siblings’ summer 2020 visit to New Mexico.

¶27 After trial, the court took the matter under advisement for six months, issuing a written decision in May 2021. In that ruling, the court terminated Parents’ rights as to A.H. and L.H. It found sufficient statutory grounds for termination of Parents’ parental rights, including Father’s physical abuse of some of the older sons, Parents’ neglect of L.H. when he was malnourished and failing to thrive as an infant, and neglect of the Children for failing to protect them from Mother’s substance use. Similarly, the court found that Mother had neglected the Children by failing to properly feed L.H., insufficiently supervising the Subject Children, and improperly using drugs. Moreover, the court found that Mother’s “substance abuse and criminal behavior” rendered her unfit as a parent.

¶28 The court next found that DCFS had made “reasonable efforts towards the permanency goal of reunification.” It noted that DCFS has been involved with the family since April 2017 and, “during the arc of the case, circumstances changed frequently and there were many setbacks in the attempts to reunify the children with the parents.” The court concluded that “reunification efforts were not successful through no fault of DCFS.”

¶29 Finally, as to best interest, the court determined—in keeping with the parties’ stipulation—that, with regard to the oldest five siblings, “a permanent custody and guardianship arrangement” with Grandparents “would serve their best interests as well as, or better than, an adoption would.” But the court saw it differently when it came to the Subject Children, concluding that their best interest would be best served by the facilitation of an adoption by Foster Family, and that termination of Parents’ rights was strictly necessary to advance that interest. The court reached that decision even though it meant permanently separating the Children, and even though the court acknowledged that Grandparents were “certainly appropriate caregivers.” The court offered several reasons for its decision. First, it noted that the Subject Children were very young—A.H. was two-and-a-half years old, and L.H. was eight months old, when they were first removed from the family home—and that, as a result, they “had a very short time to be with their older siblings.” Second, the court concluded that the strength of the bond between the Subject Children and their siblings was not particularly strong, opining that the Subject Children “have little beyond a biological connection” to their siblings. In this vein, the court downplayed any positive effects that might come from keeping the Children together, describing the older siblings as “a large and unruly group” that “cannot be depended upon to protect” the Subject Children. Third, the court discussed the unquestionably strong bond that the Subject Children had formed with Foster Family. Fourth, the court concluded that disruption of the Subject Children’s “placement at this time would be very detrimental” and would “put them at unnecessary risk for future emotional and mental health issues.” Fifth, the court expressed concern that, absent termination, Parents would retain some level of parental rights and might attempt “to regain custody of the [C]hildren in the future,” an eventuality the court believed would “pose a risk to” the Subject Children. And finally, the court emphasized the importance of stability, stating that “the [Subject Children] and [Foster Family] deserve, and indeed need, the highest level of legal protection available, which would be achieved through adoption.” For these reasons, the juvenile court terminated Parents’ rights with regard to the Subject Children.

ISSUE AND STANDARD OF REVIEW

¶30 Parents now appeal the juvenile court’s order terminating their parental rights, but their appeal is narrowly focused. Parents do not challenge the juvenile court’s determination that statutory grounds exist for terminating their parental rights. However, Parents do challenge the court’s determination that termination of their parental rights was strictly necessary and in the best interest of the Subject Children. We review a lower court’s “best interest” determination deferentially, and we will overturn it “only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶¶ 22, 31, 496 P.3d 58 (quotation simplified). But “such deference is not absolute.” Id. ¶ 32. We do not afford “a high degree of deference” to such determinations; rather, we simply apply “the same level of deference given to all lower court findings of fact and ‘fact-like’ determinations of mixed questions.” Id. ¶¶ 29–30. In addition, our deference must be guided by the relevant evidentiary standard applicable in termination of parental rights cases: the “clear and convincing” evidence standard. See In re G.D., 2021 UT 19, ¶ 73, 491 P.3d 867. “Although we defer to juvenile courts’ [best-interest] determinations, in reviewing their conclusions we do so with an exacting focus on the proper evidentiary standard,” and “we will not only consider whether any relevant facts have been left out but assess whether the juvenile court’s determination that the ‘clear and convincing’ standard had been met goes against the clear weight of the evidence.” Id.[8]

ANALYSIS

¶31 The right of parents to raise their children is one of the most important rights any person enjoys, and that right is among the fundamental rights clearly protected by our federal and state constitutions. See Troxel v. Granville, 530 U.S. 57, 65–66 (2000) (stating that “the interest of parents in the care, custody, and control of their children” is “perhaps the oldest of the fundamental liberty interests” the court recognizes); see also In re J.P., 648 P.2d 1364, 1372 (Utah 1982) (“A parent has a fundamental right, protected by the Constitution, to sustain his relationship with his child.” (quotation simplified)). Our legislature has expressed similar sentiments, declaring that “[u]nder both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child,” see Utah Code Ann. § 80-4-104(1) (LexisNexis Supp. 2022), and that this interest “does not cease to exist simply because . . . a parent may fail to be a model parent,” id. § 80-4-104(4)(a)(i).

¶32 The “termination” of these fundamental “family ties . . . may only be done for compelling reasons.” See id. § 80-4-104(1). Under our law, a parent’s rights are subject to termination only if both parts of a two-part test are satisfied. First, a court must find that one or more statutory grounds for termination are present; these include such things as abandonment, abuse, or neglect. See id. § 80-4-301(1). Second, a court must find that termination of the parent’s rights is in the best interest of the children. See In re B.T.B., 2020 UT 60, ¶¶ 19–20, 472 P.3d 827. The party seeking termination of a parent’s rights bears the burden of proof on both parts of this test. See In re G.D., 2021 UT 19, ¶ 43, 491 P.3d 867 (stating that “petitioners in termination proceedings must prove termination is warranted”). And that party must make this required showing “by clear and convincing evidence.” Id.see also Santosky v. Kramer, 455 U.S. 745, 769–70 (1982) (concluding that the U.S. Constitution requires application of a “clear and convincing evidence” standard in parental termination proceedings).

¶33 As noted, Parents do not challenge the juvenile court’s determination that statutory grounds for termination exist in this case. Their challenge is limited to the second part of the test: whether termination of their rights is, under the circumstances presented here, in the best interest of the Subject Children.

¶34 “The best interest of the child has always been a paramount or ‘polar star’ principle in cases involving termination of parental rights,” although it is not “the sole criterion.” In re J.P., 648 P.2d at 1368. The assessment of what is in a child’s best interest is, by definition, “a wide-ranging inquiry that asks a court to weigh the entirety of the circumstances” surrounding a child’s situation, including “the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” See In re J.M., 2020 UT App 52, ¶¶ 35, 37, 463 P.3d 66 (quotation simplified). Because children inhabit dynamic environments in which their “needs and circumstances” are “constantly evolving,” “the best-interest inquiry is to be undertaken in a present-tense fashion,” as of the date of the trial or hearing held to decide the question. See In re Z.C.W., 2021 UT App 98, ¶¶ 12–13, 500 P.3d 94 (quotation simplified).

¶35 Our legislature has provided two related pieces of important guidance on the best-interest question. First, it has expressed a strong preference for families to remain together, establishing something akin to a presumption that a child’s best interest will “usually” be served by remaining with the child’s parents:

It is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents. A child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents.

Utah Code Ann. § 80-4-104(8). In that same statutory section, our legislature also emphasized that, “[w]herever possible, family life should be strengthened and preserved.” See id. § 80-4-104(12). And the “family” includes the child’s parents as well as the child’s siblings; indeed, in the related child custody context, our legislature has specifically identified “the relative benefit of keeping siblings together” as a factor that the court “may consider” when evaluating “the best interest of the child.” See id. § 30-3-10(2)(o) (LexisNexis 2019).[9]

¶36 Second, our legislature has mandated that termination of parental rights is permissible only when such termination is “strictly necessary.” See id. § 80-4-301(1). Our supreme court has interpreted this statutory requirement to mean that “termination must be strictly necessary to promote the child’s best interest.” See In re B.T.B., 2020 UT 60, ¶ 60. Indeed, a court’s inquiry into the strict necessity of termination should take place as part of the bestinterest inquiry that comprises the second part of the termination test. See id. ¶ 76 (stating that, “as part of [the best-interest inquiry], a court must specifically address whether termination is strictly necessary to promote the child’s welfare and best interest”).

¶37 In assessing whether termination is strictly necessary to promote a child’s best interest, courts “shall consider” whether “sufficient efforts were dedicated to reunification” of the family, and whether “the efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” See Utah Code Ann. § 80-4-104(12)(b). Indeed,

this part of the inquiry also requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights. In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest. But in other cases, courts should consider whether other less permanent arrangements might serve the child’s needs just as well.

In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). Courts that order termination of parental rights without appropriately exploring “feasible alternatives to termination” have not properly applied the second part of the two-part termination test. See, e.g.In re H.F., 2019 UT App 204, ¶ 17, 455 P.3d 1098 (reversing and remanding a juvenile court’s termination order because, among other things, “the court’s determination that termination was strictly necessary was not supported by an appropriate exploration of feasible alternatives to termination”).

¶38 In this case, Parents challenge the juvenile court’s best interest determination, including its subsidiary conclusion that termination of their rights was strictly necessary to promote the best interest of the Subject Children. As discussed herein, we find merit in Parents’ challenge. We recognize that we are reviewing the juvenile court’s determinations deferentially, and we do not lightly reverse a court’s best-interest determination. But the facts of this case simply do not amount to strict necessity, and therefore the best-interest requirement is not met. Stated another way, the evidence presented at trial did not constitute clear and convincing evidence that termination of Parents’ rights to the Subject Children would be in the best interest of those children. Under the specific circumstances of this case, the juvenile court’s determination was against the clear weight of the evidence, and on that basis we reverse.

¶39 In its written decision, the juvenile court set forth several reasons for its conclusion that termination of Parents’ rights was strictly necessary to promote the Subject Children’s best interest.[10] We discuss those reasons, in turn. Although the topics that the juvenile court focused on are certainly appropriate topics to consider when examining best interest, we conclude that the facts underlying those topics—in this case—do not support a determination that termination was strictly necessary to promote the best interest of the Subject Children.

¶40 The court began its best-interest examination by discussing the ages of the Subject Children and, relatedly, the fact that the bonds between the Subject Children and their siblings had deteriorated. The Subject Children are, as noted, the youngest of the seven Children and were very young—A.H. was two-and-ahalf years old, and L.H. was eight months old—when they were first removed from the family home. The juvenile court noted that, as a result, they “did not have the opportunity to live with their parents for as long as their older siblings” and “had a very short time to be with their older siblings.” These facts are unquestionably true, and one of the consequences of these facts is that the Subject Children had less-developed bonds with Parents and with their siblings than the other Children did. But this will almost always be true when children are removed from their homes as newborns or toddlers, and courts must be careful not to overemphasize the significance of the deterioration of familial bonds—particularly sibling bonds—when that deterioration is the result of court-ordered removal from the home at an early age. See, e.g.In re N.M., 186 A.3d 998, 1014 n.30 (Pa. Super. Ct. 2018) (vacating an order terminating parental rights in part because the lower court’s decisions during the case had been “designed to affect the bond between” the parents and the child “so that termination would be the natural outcome of the proceedings”).

¶41 The facts of this case present an interesting case study. The next-oldest of the Children was born in April 2013, and is less than two years older than A.H. He was only four years old at the time of the first removal, and yet the juvenile court determined that it would not be in his best interest for Parents’ rights to be terminated. Many of the differences—especially in terms of the strength of the sibling bonds—between the Subject Children’s situation and that of their barely-older brother are largely the result of decisions made by DCFS and the court during the pendency of these proceedings. In a situation like this, a court must be careful not to ascribe too much weight to circumstances that are of the court’s own making.

¶42 We do not doubt the juvenile court’s finding that, by the time of trial, the bonds between the Subject Children and the other Children were not as strong as the bonds between the five oldest Children. We take at face value the court’s statement that the Subject Children, at the time of trial, had “little beyond a biological connection” to their older siblings. But even the biological connection between siblings matters. The connection between siblings is, for many people, the longest-lasting connection they will have in life. Indeed, “the importance of sibling relationships is well recognized by . . . courts and social science scholars,” because “a sibling relationship can be an independent emotionally supporting factor for children in ways quite distinctive from other relationships, and there are benefits and experiences that a child reaps from a relationship with his or her brother(s) or sister(s) which truly cannot be derived from any other.” In re D.C., 4 A.3d 1004, 1012 (N.J. 2010) (quotation simplified); see also Aaron Edward Brown, He Ain’t Heavy, He’s My Brother: The Need for a Statutory Enabling of Sibling Visitation, 27 B.U. Pub. Int. L.J. 1, 5 (2018) (noting that “[t]oday’s children are more likely to grow up with a sibling than a father,” and that “[t]he sibling relationship is generally regarded to be the longest relationship a person will have because the relationship will typically last longer than a relationship with a parent or spouse”). Such bonds are often especially important “to children who experience chaotic circumstances” like abuse or neglect, because “in such circumstances, they learn very early to depend on and cooperate with each other to cope with their common problems.” In re D.C., 4 A.3d at 1013 (quotation simplified); see also In re Welfare of Child of G.R., No. A17-0995, 2017 WL 5661606, at *5 (Minn. Ct. App. Nov. 27, 2017) (“The sibling relationship is especially important for a young child with an unstable family structure as these siblings can provide secure emotional attachment, nurturing, and solace.”). Indeed, trial testimony from the DCFS caseworkers mirrored these sentiments, with the caseworkers stating that “children should stay together” and that placing siblings together “is understood under most circumstances . . . to be beneficial to the kids.”

¶43 And there is nothing in the record before us that indicates significant trouble among the sibling ranks. To the contrary, by all accounts the Children are quite loyal to one another, as best exemplified by their collective reaction—outrage—to being removed from the family home, and from each other, a second time in 2019. The juvenile court referred to them as a “large and unruly group,” but that description would seem to fit almost any group of seven siblings. The court also appeared concerned about “significant sibling rivalr[ies]” among some of the older Children but, again, we would be surprised to find a seven-member sibling group that didn’t have significant sibling rivalries. The court also offered its view that “[t]he older boys cannot be depended upon to protect” the Subject Children, but we think that’s an unfair expectation, as the court itself noted. And there are no allegations (for example, of intra-sibling abuse) about or among this sibling group that would counsel against keeping the group together.

¶44 We are also troubled, under the unusual circumstances of this case, by the fact that the deterioration of the Subject Children’s bonds with their siblings was due, in not-insignificant part, to the way this case was litigated, even apart from the removal and placement decisions. Notably, DCFS did not take any systematic steps to facilitate visitation between the three (and sometimes four) sibling groups that were placed in different homes, but instead “left that mostly up to [the] foster parents.”[11] In particular, DCFS did not allow the Subject Children to visit Grandparents with the rest of the Children during the summer of 2020. And Grandmother offered her perception that it had been difficult to get Foster Mother to facilitate telephonic or virtual visits between the older siblings and the Subject Children during the older siblings’ summer 2020 visit. Under these circumstances, it is no wonder that the Subject Children’s bond with their siblings began to wane. It is intuitive that relationships can become more distant without meaningful contact. To at least some degree, the deterioration of the sibling bonds is attributable to DCFS’s (and the various foster parents’) actions in failing to facilitate regular sibling visitation.

¶45 In addition, DCFS’s delay in starting the ICPC process appears to have also played a role in the way this case turned out. In July 2019, the juvenile court ordered that “an ICPC” be conducted to explore the possibility of placing the Children with Grandparents in New Mexico. But DCFS—perhaps intentionally, according to one of the caseworkers—delayed acting upon the court’s ICPC order for nearly four months, until late October 2019. Delays in obtaining ICPC reports are not necessarily uncommon, and can be just an unfortunate part of the process of communicating between agencies of different states. But such delays are troubling when they are attributable to a state agency’s refusal to even get the process started, despite a court order requiring it to do so. Although DCFS could not have known it at the time, its failure to timely initiate the ICPC process may have mattered more in this case than in others, because of the eventual emergence, in early 2020, of the COVID-19 pandemic.

¶46 Recall that, in the fall of 2019 and early 2020, after DCFS filed its termination petition, all parties were on the same page: they were working toward placing the Children—all of them— with Grandparents in New Mexico. Indeed, it was “highly anticipated by all parties that the results of the ICPC [would] resolve all issues pending before the Court.” But before a placement with Grandparents could happen, the ICPC report needed to be completed, and the parties twice stipulated to continuances of the termination trial specifically so that the ICPC report could be finished, and so that they could “ensure [that] the Grandparents kn[ew] what they [were] getting into.” These continuances resulted in the trial being rescheduled for late March 2020, which in turn resulted in the trial being postponed again because of the emergence of the pandemic. The ICPC report was not completed until October 2020, and by then, the Subject Children had been with Foster Family for more than a year and had begun to develop meaningful bonds there. Under these circumstances, it is hard not to wonder what might have happened if DCFS had begun the ICPC process in July 2019, as it had been ordered to do.[12]

¶47 Next, the court—appropriately—discussed at some length the Subject Children’s bond with Foster Family. There is no doubt that Foster Family is an appropriate adoptive placement, and that Foster Parents are doing a wonderful job caring for the Subject Children. The court made unchallenged findings in this regard, noting that Foster Parents are the ones “who care for them on a daily basis, feed them, hug them, and put them to bed,” and that, from the Subject Children’s point of view, Foster Parents “are their parents.” We do not minimize the significance of these findings. They are important, and are a necessary condition to any adoption-related termination of parental rights. After all, if an adoptive placement is not working out, an adoption into that placement is very unlikely to be finalized.

¶48 But while the existence of an acceptable adoptive placement is a necessary condition to any adoption-related termination, it is not a sufficient one. At some level, we certainly understand the impulse to want to leave children in—and perhaps make permanent—a putative adoptive placement in which the children are thriving. And we recognize—as the juvenile court observed here—that taking a child out of a loving adoptive placement in order to reunite the child with family can be detrimental to the child, at least in the short term. But in order to terminate parental rights to facilitate an adoption, a court must have before it more than just a loving and functional adoptive placement from which it would be emotionally difficult to remove the child. Termination of parental rights must be “strictly necessary to promote the . . . welfare and best interest” of the children in question. See In re B.T.B., 2020 UT 60, ¶ 76, 472 P.3d 827. And in order to reach that conclusion, a court must do more than make a finding about the acceptability of the adoptive placement—it must examine potential options, short of termination, that might also further the best interest of the children in question. Id. ¶¶ 66–67. In particular, and especially in light of our legislature’s guidance that families should be kept together whenever possible, see Utah Code Ann. § 80-4-104(8), (12), courts must investigate kinship placement possibilities, including options for permanent guardianship. And if one of those placements turns out to be an option that can promote the child’s best interest “just as well,” then it is by definition not “strictly necessary” to terminate the parent’s rights. See In re B.T.B., 2020 UT 60, ¶¶ 66–67.

¶49 Moreover, in this context courts must keep in mind the “clear and convincing” evidentiary standard. See In re G.D., 2021 UT 19, ¶ 44, 491 P.3d 867. If there exists a completely appropriate kinship placement through which the family can remain intact, the “strictly necessary” showing becomes significantly more difficult to make. We stop well short of holding that, where an acceptable kinship placement exists, it can never be strictly necessary to terminate a parent’s rights. But in such cases, the proponent of termination must show, by clear and convincing evidence, that the adoptive placement is materially better for the children than the kinship placement is. After all, if the two placements can each “equally protect[] and benefit[]” the child’s best interest, then by definition there does not exist clear and convincing evidence in favor of terminating a parent’s rights. See In re B.T.B., 2020 UT 60, ¶ 66. And in this case, the necessary showing was not made.

¶50 Perhaps most significantly, there is not a hint of any evidence in the record before us that placement with Grandparents is flawed. The ICPC report (finally) came back clean; that report raised no concerns with regard to Grandparents, and concluded that their home would be an appropriate placement for the Children. The five older siblings had a lengthy visit with Grandparents in the summer of 2020, and all went well. And just before trial, the parties stipulated that the five oldest

Children should be placed with Grandparents on a long-term basis, subject to a permanent custody and guardianship arrangement. The court approved this stipulation, agreeing with the parties “that a permanent custody and guardianship arrangement” would serve the best interest of the five oldest Children. It even found that Grandparents are “certainly appropriate caregivers.” And on appeal, all parties agree that Grandparents are acceptable and loving caregivers; no party has even attempted to take issue with Grandparents’ ability to provide a loving and stable home for the Children. There is no dispute that Grandparents have the capacity and ability, from a financial standpoint as well as otherwise, to care for all seven Children, and stand ready and willing to do so, regardless of whether that takes the form of an adoption or a permanent guardianship arrangement.

¶51 The juvenile court opted to go in a different direction, primarily for three related reasons. First, it emphasized how “detrimental” and “destabilizing” it would be for the Subject Children to be removed from Foster Family. Second, the court emphasized that the Subject Children need stability and permanency, and determined that adoption—as opposed to guardianship—could best provide that stability. Third, the court expressed concern that, absent an adoption, Parents might attempt—at some later point in time—to get back into the lives of the Subject Children, and perhaps even “regain custody,” an eventuality the court believed would “pose a risk to” the Subject Children. In our view, these stated reasons do not constitute clear and convincing reasons to terminate Parents’ rights.

¶52 With regard to permanency and stability, our supreme court has recently clarified that the mere fact that adoptions—as a category—provide more permanency and stability than guardianships do is not enough to satisfy the statutory “strictly necessary” standard. See In re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606. In that case, the court held that the lower court fell into legal error in concluding that [a guardianship option] would not provide the “same degree of permanency as an adoption.” That is not the question under our law. A permanent guardianship by definition does not offer the same degree of permanency as an adoption. And there is always some risk that the permanent guardianship could come to an end, or be affected by visitation by the parent. If these categorical concerns were enough, termination and adoption would be strictly necessary across the board. But such categorical analysis is not in line with the statutory standard.

Id. The court then noted that, as part of the “strictly necessary” analysis, a court “must assess whether a permanent guardianship can equally protect and benefit the children in the case before it.” Id. ¶ 25 (quotation simplified). The court made clear that the statutory requirements were “not met by the categorical concern that a permanent guardianship is not as stable or permanent as an adoption,” and instead “require[] analysis of the particularized circumstances of the case before the court.” Id.

¶53 As applied here, this recent guidance renders insufficient—and more or less beside the point—the juvenile court’s apparent belief that an adoption was better than a guardianship simply because it was more permanent and more stable. All adoptions are at least somewhat more permanent than guardianships, and therefore that conclusion, standing alone, is not enough to constitute clear and convincing evidence supporting termination. It is certainly appropriate for courts in termination cases to discuss the potential need for permanency and stability. But in doing so, and when selecting an adoptive option over a guardianship option, a court in a termination case must articulate case-specific reasons why the added layer of permanency that adoptions offer is important and why adoption would better serve the best interest of the children in question than the guardianship option would.

¶54 The court’s concern about the possibility of Parents reentering the Children’s lives is, on this record, not an adequate case-specific reason. As an initial matter, it—like the lack of permanency—is a feature of the entire category of guardianships. It will always be true that, in a guardianship, a parent retains what the juvenile court here referred to as “residual rights,” while in an adoption the parent’s rights are terminated forever. This kind of categorical concern is not enough to constitute clear and convincing evidence in support of termination.

¶55 Moreover, we question whether—in many cases, including this one—a parent’s desire to re-engage in their child’s life should be viewed as negatively as the juvenile court appeared to view it. Here, we return to the statutory guidance offered by our legislature: that “family life should be strengthened and preserved” “[w]herever possible,” and that it is usually “in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” See Utah Code Ann. § 80-4-104(8), (12). We note our own observation that, “[i]n many cases, children will benefit from having more people—rather than fewer—in their lives who love them and care about them.” See In re B.T.B., 2018 UT App 157, ¶ 55, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827. And we acknowledge Parents’ point that a parent whose child has been placed in a permanent guardianship arrangement in a child welfare proceeding has no independent right to petition to change or dissolve the guardianship. See Utah Code Ann. § 78A-6-357(3)(d) (LexisNexis Supp. 2022). Only the guardian has that right. See id. And there is no evidence, in this record, that Grandparents will be particularly susceptible to inappropriate pressure from Parents to seek a change in the terms of any guardianship arrangement. In addition, there is no evidence that, if the Subject Children were placed into a guardianship with Grandparents, it would be harmful to them for Parents to retain the possibility of maintaining some form of contact with them (as they have with regard to the other Children), as supervised by court order and by Grandparents acting as guardians.[13] In other words, the juvenile court did not emphasize any case-specific issues that make us especially concerned about the possibility of Parents attempting to re-enter the Children’s lives at some point in the future.

¶56 We are thus left with the court’s concern—shared by the Subject Children’s therapists—about the disruption in the Subject Children’s lives that would be caused by removing them from Foster Family and placing them with Grandparents, alongside their siblings. This is of course a legitimate concern, and one that courts should take into account in situations like this. If and when the Subject Children are ever placed into a guardianship with Grandparents, and taken from Foster Family, that will no doubt be traumatic for them, at least in the short term. We acknowledge the validity of such concerns, and do not intend to minimize them. But in this case, focusing too much on this more-present possibility of emotional trauma risks minimizing the longer-term emotional trauma that permanent severance of the sibling bonds will likely someday trigger. In this specific and unique situation, the juvenile court’s discussion of potential emotional trauma associated with removal from Foster Family does not constitute clear and convincing evidence supporting termination.

¶57 For all of these reasons, we conclude that the juvenile court’s best-interest determination was against the clear weight of the evidence presented at trial. The State failed to prove, by clear and convincing evidence, that termination of Parents’ rights to Subject Children was strictly necessary, especially given the presence of another available and acceptable option—permanent guardianship with Grandparents, alongside their five siblings— that would not require permanent severance of familial bonds and that would serve the Subject Children’s best interest at least as well as adoption. See In re G.D., 2021 UT 19, ¶ 75 (“[W]hen two placement options would equally benefit a child, the strictlynecessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.”). Under the unique circumstances of this case, termination of Parents’ rights is not strictly necessary to promote the Subject Children’s best interest.

CONCLUSION

¶58 Accordingly, we reverse the juvenile court’s order of termination, and remand the case for further proceedings consistent with this opinion. We offer a reminder that best-interest determinations are to be conducted in present-tense fashion, as of the date of the trial or hearing convened to consider the matter. See In re Z.C.W., 2021 UT App 98, ¶ 14, 500 P.3d 94. Our holding today is that, based on the evidence presented at trial in October

2020, termination of Parents’ rights was not strictly necessary to promote the Subject Children’s best interest. On remand, the juvenile court should re-assess best interest. If nothing has materially changed since October 2020, then we expect the court to enter orders designed to work (perhaps quite gradually, in the court’s discretion) toward integration of the Subject Children into a placement with Grandparents, alongside their siblings. But if there is evidence that matters have materially changed since October 2020, the court may need to consider that evidence in some fashion, see id. ¶ 15, and re-assess best interest based on the situation at the time of the hearing.

 

[1]Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(7).

[2] In this opinion, for ease of reference, we refer to E.H.’s paternal grandparents as “Grandparents,” and we refer to them individually as “Grandmother” and “Grandfather,” even though any biological relationship exists only with E.H. and not with the other six Children.

 

[3] L.H. was removed from the home for a one-month period during this time, again because of concerns that he was malnourished and “failing to thrive.”

[4] These arrangements were a bit fluid during this period—at one point, the oldest four Children were combined into one placement, and the fifth-oldest was placed with Foster Family along with the Subject Children. However, the mother of the Foster Family testified at trial that, after a while, the fifth child often got upset at how his younger siblings were becoming so attached to Foster Family, and so she eventually asked that he be placed elsewhere.

 

[5] The abbreviation “ICPC” refers to the Interstate Compact on the Placement of Children, an interstate agreement that has been adopted by all fifty states. See Utah Code Ann. § 62A-4a-701 (LexisNexis 2018). The ICPC allows child welfare agencies from different states to more easily cooperate regarding placement of children across state lines.

 

[6] See Administrative Order for Court Operations During Pandemic, Utah Supreme Court (Mar. 13, 2020), https://www.utcourts.gov/alerts/docs/20200311%20-%20Pandem ic%20Administrative%20Order.pdf [https://perma.cc/3EGH-3V3Z].

[7] The facts recited in this paragraph regarding Parents’ communications with their various attorneys are not in the record, but are included in the materials submitted on appeal in support of Parents’ claim of ineffective assistance of counsel.

[8] Parents also raise other issues, including an assertion that Private Counsel rendered deficient performance that prejudiced them at the termination trial. Although we acknowledge the strength of Parents’ assertion that Private Counsel rendered ineffective assistance, and discuss in passing the problems they had with him, we need not reach the merits of that claim or any of their other claims because we reverse on the merits of their main claim.

[9] A court’s consideration of the importance of sibling relationships is arguably even more important in the termination/adoption context than it is in the child custody context, simply because of the permanency of termination and adoption. When split custody is ordered in a domestic case, the children will not live together all the time, but their overarching family relationship remains intact; they will remain siblings and, depending on visitation schedules, they will likely see each other several times each month. But when—as in this case—siblings are separated for purposes of adoption, the familial bonds, including the sibling bonds, are more permanently affected.

[10] Parents assert that the juvenile court erred by limiting its best interest inquiry to the Subject Children, rather than considering whether termination of Parents’ rights to the Subject Children was in the best interest of all the Children. Although we are far from persuaded by Parents’ assertion, we need not further concern ourselves with it, because for purposes of our analysis we assume, without deciding, that the juvenile court properly focused on the Subject Children when conducting the best-interest inquiry. Even assuming the propriety of that more limited focus, we nevertheless find the court’s ultimate best-interest determination unsupported by clear and convincing evidence.

[11] DCFS’s actions in this regard were arguably contrary to statute. See Utah Code Ann. § 62A-4a-205(12)(a) (LexisNexis Supp. 2022) (stating that DCFS must “incorporate reasonable efforts to . . . provide sibling visitation when siblings are separated due to foster care or adoptive placement”); see also id. § 80-3307(12)(a) (requiring DCFS to “incorporate into the child and family plan reasonable efforts to provide sibling visitation if . . . siblings are separated due to foster care or adoptive placement”).

[12] The juvenile court addressed this issue in its written ruling, and downplayed the significance of the delayed ICPC report. It expressed its view that, even if DCFS had timely requested the ICPC report, the case would not have come out differently. First, it assumed that the ICPC process would have taken a year to complete even if the report had been requested in July 2019. We wonder about that, and in particular wonder whether any of the delays in completing the ICPC report were due to the emergence of the pandemic. But more to the point, the court indicated that it would have made the same termination decision in July 2020 as it made in October 2020. However, the court does not account for the fact that all parties to the case, including DCFS, were on the same page at least as late as March 12, 2020, and anticipated placing all the Children with Grandparents as soon as the ICPC report came back. Had the ICPC report come back significantly earlier, while the parties were still in agreement, things almost certainly would have been different. We doubt that the juvenile court would have rejected the parties’ stipulation on that point, just as it did not reject the parties’ October 2020 stipulation regarding the five oldest Children.

[13] Indeed, concerns about Parents potentially getting back into the lives of the Subject Children appear especially overblown under the facts of this case, given the fact that the juvenile court approved the stipulation for a permanent guardianship arrangement for the other five Children. The court does not convincingly explain why it is concerned for the Subject Children and not the others, stating only that the potential for the Parents to “regain custody . . . might not be devastating for the older children, but it will certainly be devastating to” the Subject Children. Presumably, this is a reference to the fact that the Subject Children are younger and have less of a pre-existing relationship with Parents and the other Children, an aspect of this case that we have already discussed.

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In Re J.E. 2023 UT App 3, Voluntary Declaration of Paternity

2023 UT App 3

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF J.E.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

D.E., Appellant, v. STATE OF UTAH, Appellee.

Opinion

No. 20210921-CA

Filed January 20, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Annette Jan No. 1198329

D.E., Appellant Pro Se

Sean D. Reyes, Carol L.C. Verdoia, and John M.

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Julie J. Nelson, Debra M. Nelson, Alexandra

Mareschal, and Kirstin Norman, Attorneys for

Amicus Curiae Utah Indigent Appellate Defense Division

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER concurred.

HARRIS, Judge:

¶1 D.E. (Father) obtained—at least for a while—parental rights regarding J.E. (Child) when he and Child’s mother (Mother) duly signed and filed a voluntary declaration of paternity (the VDP). Later, however, genetic testing revealed that Father is not Child’s biological father. Based on those test results, the guardian ad litem (the GAL) appointed to represent Child raised a challenge to the VDP, which the juvenile court sustained, later issuing an order invalidating the VDP and declaring it “void.”

¶2 Father now challenges that order, asserting that the GAL (on behalf of Child) had no right under applicable law to challenge the VDP. We first determine that we have jurisdiction to consider Father’s appeal. And on the merits, we conclude that the juvenile court correctly determined that, under the circumstances presented here, Child has statutory standing to challenge the VDP. On that basis, we affirm the court’s decision to reach the merits of Child’s challenge and to sustain that challenge. But the court should not have declared the VDP “void,” and we remand for correction of the language used in the court’s order and for such other proceedings as might be appropriate.

BACKGROUND[1]

¶3 In 2021, Father and Mother were residing together—but not married—with three children: then-one-year-old Child and his two older siblings. All three children are Mother’s biological children, and Father’s paternity had been established as to the older two children. At the time, both Mother and Father were uncertain whether Father was the biological father of Child, because they were both aware that Mother had engaged in sexual activity with both Father and another man in 2019, around the time Child had been conceived. But neither Father nor any other man had established paternity with regard to Child.

¶4 In early 2021, Father was arrested and charged with aggravated assault involving domestic violence, as well as commission of domestic violence in front of a child, related to an incident in which Mother accused him of attempting to smother her with a pillow in front of the children. The charging document labeled Father a “habitual violent offender,” explaining that he had previously been convicted of domestic violence against Mother in connection with a 2019 incident. Father remained incarcerated on these new charges for several weeks. Mother also obtained a civil protective order against Father, which remained in effect for several months, until she asked for it to be dismissed.

¶5 A few weeks after Father’s arrest, Mother was arrested and incarcerated on charges of drug possession. Mother later admitted that she had been using methamphetamine. At that point, the Department of Child and Family Services (DCFS) filed a petition seeking custody of the children, and the court granted that request at a subsequent shelter hearing.

¶6 A month later, in May 2021, Mother remained incarcerated—she was eventually released in August—but Father had been released from jail after the criminal charges against him were dismissed. The record before us does not disclose the reasons for the dismissal of the criminal case, but the dismissal occurred on the date set for preliminary hearing, and it was entered without prejudice. Neither the State nor the juvenile court viewed the dismissal of the criminal charges as an exoneration of Father; indeed, the court eventually scheduled an evidentiary hearing to consider whether Father had committed domestic violence against Mother and, at the conclusion of that hearing, found that all three children were “neglected by” Father.

¶7 After his release from jail, Father requested that the children be returned to his custody. The court denied that request, but did order that Father be allowed supervised visitation with at least some of the children.

¶8 At another hearing a couple of weeks later, the GAL first raised the issue of Child’s paternity, and asked that the court order genetic testing to determine whether Father was indeed Child’s biological father. Neither Father nor Mother opposed this request, and the court therefore ordered that genetic testing take place, an order that necessarily required that Father, Mother, and Child all separately submit to genetic testing.

¶9 On August 5, 2021, Father submitted a biological sample for genetic testing. Mother and Child, however, did not submit biological samples until August 19. On August 18, the day before Mother and Child submitted their samples, Father and Mother signed and filed the VDP. On that form, they both swore that they “believe[d]” that Father was Child’s biological father. And Father answered “no” to a question asking whether “the birth mother, child, and biological father” had “submitted to genetic testing.” The Utah Office of Vital Records and Statistics accepted the VDP as valid, and that same day issued an amended birth certificate for Child, listing Father as Child’s father.

¶10 Following the filing of the VDP, Father (through counsel) filed a motion seeking visitation with Child, alleging that DCFS had been “not allowing” him to have visitation because the GAL “is opposed to the visits.” The GAL filed a response that asked the court to postpone its decision on visitation with Child until the results of the genetic testing were known. In that same opposition memorandum, the GAL raised a challenge to the VDP, specifically invoking sections 78B-15-302 and -307 of the Utah Code. In particular, the GAL asserted that Father had fraudulently answered some of the questions on the VDP, and asserted that, if the pending genetic testing excluded Father as Child’s biological father, the VDP could also be challenged on the ground that there had been a material mistake of fact. In reply, Father asserted that the VDP, which had been accepted by the Office of Vital Records and Statistics, gave him parental rights as Child’s father, and that he was therefore entitled to visitation. He also requested a hearing regarding the GAL’s challenge to the VDP.

¶11 In late September 2021, while Father’s motion for visitation was pending, the genetic test results came back and demonstrated that Father is not Child’s biological father.

¶12 Eventually, the court held an evidentiary hearing to consider Father’s motion for visitation. At that hearing, the court heard brief testimony, under oath, from both Father and Mother. After their testimony, the GAL asserted that Father should be denied visitation because, among other reasons, Father was not Child’s biological father. In connection with that argument, the GAL pressed the challenge to the VDP that she had raised in her opposition brief and asked for the VDP to “be declared void and be rescinded,” specifically asking for that relief to be “entered pursuant to [section] 78B-15-623” of the Utah Code (referred to herein as “Section 623”), a statutory provision the GAL had not mentioned in her opposition brief. Section 623 provides, in relevant part, that “[a] child is not bound by a determination of parentage” unless “the determination was based on an unrescinded declaration of paternity and the declaration is consistent with the results of genetic testing.” See Utah Code Ann. § 78B-15-623 (LexisNexis 2018). The GAL asserted that the VDP was subject to a challenge by Child because the results of the genetic testing indicated that Father was not Child’s biological father. In addition, the GAL pressed the arguments that had been raised in her brief, asserting that the VDP was fraudulent because Father had allegedly been less than candid when he stated that he “believe[d]” that he was Child’s father and when he answered “no” to the question on the form about genetic testing.

¶13 At the conclusion of the hearing, and after a brief recess, the court in an oral ruling granted the GAL’s request to invalidate the VDP, relying on Section 623 and on the fact that the genetic testing had conclusively determined that there was no biological relationship between Father and Child. Addressing Father, the court stated, “[Y]ou are not the father of [Child] at this point.” And the court declined Father’s invitation to order that he receive visitation with Child but, given Father’s established biological relationship with the other two children and given the fact that Father was “probably the only parental figure on the male side that [Child] has know[n],” the court nevertheless left the door open for DCFS to “allow” Father to have visitation with Child if DCFS believed that visitation would serve Child’s best interest. The court later signed a minute entry reflecting its oral ruling, therein declaring that the VDP “is void.”

ISSUES AND STANDARDS OF REVIEW

¶14 Father appeals the juvenile court’s decision to invalidate the VDP and to declare it void. At the center of Father’s challenge is his assertion that Child, by and through the GAL, does not possess statutory standing to challenge the VDP. This question is one of statutory interpretation, and on such matters we afford no deference to trial courts’ decisions. See State v. Outzen, 2017 UT 30, ¶ 5, 408 P.3d 334 (“We review questions of statutory interpretation for correctness, affording no deference to the [trial] court’s legal conclusions.” (quotation simplified)).

¶15 But before reaching the merits of Father’s appeal, we must first determine whether we have jurisdiction to adjudicate it.[2]

“Questions about appellate jurisdiction are questions of law” that, by definition, arise for the first time in the appellate setting. See Zion Village Resort LLC v. Pro Curb U.S.A. LLC, 2020 UT App 167,

¶ 21, 480 P.3d 1055 (quotation simplified); see also Powell v. Cannon, 2008 UT 19, ¶ 9, 179 P.3d 799 (“The question of whether an order is final and appealable is a question of law.” (quotation simplified)).

ANALYSIS

I. Jurisdiction

¶16 Before we may reach the merits of Father’s appeal, we must first assess whether we have jurisdiction to adjudicate it. For the reasons discussed, we conclude that we do.

¶17 “As a general rule, an appellate court does not have jurisdiction to consider an appeal unless the appeal is taken from a final order or judgment that ends the controversy between the litigants.” Copper Hills Custom Homes LLC v. Countrywide Bank, FSB, 2018 UT 56, ¶ 10, 428 P.3d 1133 (quotation simplified); see also Williams v. State, 716 P.2d 806, 807 (Utah 1986) (noting that one of the “traditional principles of appellate review” is “the final judgment rule,” which generally (subject to a few exceptions) prevents appellate courts from reviewing an appeal unless it comes “from a final judgment concluding all of the issues in the case”). The final judgment rule promotes efficiency by preventing the piecemeal litigation and seriatim appeals that would result if litigants were permitted, by right, to immediately appeal any adverse ruling by a trial court.

¶18 Conceptually, “the finality of an order in juvenile proceedings is determined the same way as the finality of an order in other courts.” In re A.F.,2007 UT 69, ¶ 3, 167 P.3d 1070 (quotation simplified). Indeed, in juvenile courts, as in other courts, a “final order is one that ends the current . . . proceedings, leaving no question open for further judicial action.” Id. (quotation simplified). Certainly, an order in a juvenile court case that completely resolved all matters as to all parties would be a final order, just as a similar order would be in a district court case.

¶19 But it is fair to say that, in appeals from juvenile court, finality is viewed somewhat more flexibly than in the district court context. “In the child welfare arena, the determining factor in deciding if an order is final and appealable is whether it effects a change in the permanent status of the child.” Id. Because a child’s status can change more than once, and because a “juvenile court frequently retains jurisdiction over cases [even] after some of the issues have been finally resolved,” see In re K.F., 2009 UT 4, ¶ 36, 201 P.3d 985 (quotation simplified), “in child welfare proceedings, unlike traditional civil cases, appeals may be heard from more than one final judgment,” In re A.F.,2006 UT App 200, ¶ 8, 138 P.3d 65, aff’d, 2007 UT 69, 167 P.3d 1070 (quotation simplified). Therefore, a determination of whether a juvenile court order is final and appealable “requires pragmatic analysis of the order itself.” Id. ¶ 9.

¶20 Under this “pragmatic analysis,” “it is the substance, not the form, of the . . . order that matters . . . because the determination whether an order is final and appealable turns on the substance and effect of the order.” Id. (quotation simplified). Any order that effects a “permanent change in the child’s status vis-à-vis the child’s parent” is considered final. See In re K.F., 2009 UT 4, ¶ 36. Particular types of orders that are considered final include those “entered upon disposition of an adjudicated petition of abuse, neglect, or dependency” and those “terminating parental rights,” see id. (quotation simplified), as well as “orders that otherwise relieve a party from further litigation,” see In re A.F., 2006 UT App 200, ¶ 10. On the other hand, shelter orders and orders that “merely terminate reunification services and change the child’s permanency goal to adoption” are not considered final because they contemplate “further judicial action” regarding the parent and the child. See In re K.F., 2009 UT 4, ¶ 37.

¶21 Father asserts that the juvenile court’s order declaring the VDP void is final and appealable because it “effectively terminated the parental rights statutorily conferred upon him” through the VDP. We agree with Father, as does the State. From a finality perspective, the court’s order declaring the VDP void is analogous to an order terminating parental rights, because the order canceled theretofore-valid parental rights that Father had (at least temporarily) acquired by virtue of filing a voluntary declaration of paternity that was accepted by the Office of Vital Records and Statistics. See Scott v. Benson, 2021 UT App 110, ¶ 22 n.4, 501 P.3d 1148 (“A [voluntary declaration of paternity] is valid and effective if it meets all the basic statutory requirements and is accepted by the Office of Vital Records.”), cert. granted, 509 P.3d 196 (2022). In analogous contexts, we have determined that similar orders are final and appealable. See In re A.S., 2007 UT App 72U, para. 1 (per curiam) (holding that an order dismissing a putative father “from the termination case and denying a motion for genetic testing” was final and appealable because it “dismissed [the putative father] as a party and relieved him from further litigation”); see also In re A.F., 2006 UT App 200, ¶ 10 (stating that “orders that otherwise relieve a party from further litigation” are appealable).

¶22 The fact that litigation regarding Child continues in the juvenile court is not dispositive of the question of appealability of the subject order. See In re E.L.F., 2011 UT App 244, ¶ 5, 262 P.3d 1196 (recognizing that a “juvenile court’s retention of jurisdiction over a child does not necessarily defeat finality”); see also In re K.F., 2009 UT 4, ¶ 36 (stating that a “juvenile court frequently retains jurisdiction over cases [even] after some of the issues have been finally resolved” (quotation simplified)). The fact that the juvenile court left the visitation door slightly ajar for Father likewise does not defeat finality, under the unique circumstances presented here; the court’s order deprived Father of all parental rights, leaving DCFS with sole discretion to determine whether, and to what extent, Father may visit Child.

¶23 Applying a pragmatic analysis here, we conclude that the subject order, by eliminating all of Father’s claimed parental rights, effected a “permanent change in the child’s status vis-à-vis” Father, see In re K.F., 2009 UT 4, ¶ 36, and effectively ended Father’s involvement in the case. Under these circumstances, the order from which Father appeals must be considered final, and we therefore have jurisdiction to consider the merits of his appellate challenge.

II. The Merits of Father’s Appeal

¶24 We begin our analysis of the merits of Father’s appeal with a discussion of voluntary declarations of paternity, and by explaining how Father did—at least for a time—secure valid parental rights regarding Child. We then list some of the ways in which voluntary declarations of paternity can be challenged, and conclude that Child (through the GAL) had standing to raise one such challenge, and that Child’s challenge has merit. Accordingly, we conclude that the juvenile court correctly sustained Child’s challenge to the VDP, but should not have referred to it as “void.”

A

¶25 There are a number of ways for a parent to establish a legally valid parent-child relationship, many of which are “based on the notion that parents should generally have parental rights regarding their biological children.” See Scott v. Benson, 2021 UT App 110, ¶ 18, 501 P.3d 1148, cert. granted, 509 P.3d 196 (2022); see also Lehr v. Robertson, 463 U.S. 248, 256–57 (1983) (recognizing “[t]he intangible fibers that connect parent and child”); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (holding that a biological father’s interest “in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest,” constitutional protection). “In most cases, parental status is established, based on an assumed biological connection, simply by presumption of circumstance.” Scott, 2021 UT App 110, ¶ 19. For example, in the absence of a valid gestational agreement, a mother establishes a parental relationship with any child to whom she gives birth. See Utah Code Ann. § 78B-15-201(1)(a)(i) (LexisNexis 2018).

¶26 Some fathers also obtain parental rights by presumption of circumstance. For instance, a father-child relationship is established when a man “and the mother of the child are married to each other” when the child is born. Id. §§ 78B-15-201(2)(a), -204(1)(a). But a father who is not married to the mother of the child must take additional steps to establish his paternity.

¶27 One avenue open to unmarried biological fathers is to establish paternity by declaration, an option that—crucially— requires the written consent of the child’s mother. See id. §§ 78B15-301, -302. A successful declaration of paternity, “duly signed and filed, has the same effect as a judicial determination of paternity.” In re S.H., 2005 UT App 324, ¶ 15, 119 P.3d 309. To be effective, both the mother and declarant father must sign the declaration “in the presence of two witnesses” and make several statements “under penalty of perjury.” See Utah Code Ann§ 78B15-302(1). Of particular relevance here, the parties must also attest that the child “whose paternity is being declared” does not have a presumed, adjudicated, or declarant father, and they must “state whether there has been genetic testing and, if so, that the declarant man’s paternity is consistent with the results of the testing.” See id. § 78B-15-302(1)(d), (e). “A declaration of paternity shall be considered effective when filed and entered into a database established and maintained by the Office of Vital Records.” Id. § 78B-15-302(9).

¶28 Father chose this avenue; he and Mother jointly signed and filed the VDP on August 18, 2021, after answering several written questions under penalty of perjury. As already noted, they both averred that they “believe[d]” Father to be Child’s biological father, and Father answered “no” to a question asking whether “the birth mother, child, and biological father [had] submitted to genetic testing.” The Office of Vital Records and Statistics accepted the VDP as valid, and that same day issued an amended birth certificate for Child, listing Father as Child’s father. At that point, Father’s parental rights regarding Child were definitively established. See id. § 78B-15-305(1) (LexisNexis 2018) (stating that “a valid declaration of paternity filed with the Office of Vital Records is equivalent to a legal finding of paternity of a child and confers upon the declarant father all of the rights and duties of a parent”); see also Scott, 2021 UT App 110, ¶ 22 n.4 (“A declaration is valid and effective if it meets all the basic statutory requirements and is accepted by the Office of Vital Records.”); In re S.H., 2005 UT App 324, ¶ 15 (stating that a declaration of paternity “duly signed and filed, has the same effect as a judicial determination of paternity”).

B

¶29 Declarations can, however, be challenged after they have been accepted by the Office of Vital Records and Statistics. See Scott, 2021 UT App 110, ¶ 23 (“Voluntary declarations of paternity are, however, subject to challenge.”). Applicable statutes permit several different types of challenges to validly filed declarations. For example, a declaration may be challenged as “void” if it fails to meet certain threshold criteria regarding the existence of another potential father. See Utah Code Ann. § 78B15-302(3) (referred to herein as “Section 302”). Alternatively, a “signatory” of a declaration may rescind it within sixty days, without specifying any reason. Id. § 78B-15-306(1) (referred to herein as “Section 306”). Further, after the rescission period has expired, a declaration may be challenged by certain parties “on the basis of fraud, duress, or material mistake of fact.” See id. § 78B-15-307 (referred to herein as “Section 307”). And as relevant here, Section 623 provides that “[a] child is not bound by a determination of parentage . . . unless . . . the determination was based on an unrescinded declaration of paternity and the declaration is consistent with genetic testing.” See id. § 78B-15-623(2).

¶30 Before the juvenile court, the GAL raised a challenge to the VDP and, by the time of the hearing, had elected to ground that challenge largely in Section 623.[3] The court accepted the GAL’s Section 623 argument, and Father challenges that decision here on appeal. For the reasons that follow, we conclude that the juvenile court correctly found merit in the GAL’s Section 623 challenge.

¶31 Section 623 begins by stating that “a determination of parentage is binding on . . . all signatories to a declaration . . . of paternity . . . and . . . all parties to an adjudication [of parentage] by a tribunal.” Id. § 78B-15-623(1). The next section of the statute provides as follows:

(2) A child is not bound by a determination of parentage under this chapter unless:

(a) the determination was based on an unrescinded declaration of paternity and the declaration is consistent with the results of genetic testing;

(b) the adjudication of parentage was based on a finding consistent with the results of genetic testing and the consistency is declared in the determination or is otherwise shown; or

(c) the child was a party or was represented in the proceeding determining parentage by a guardian ad litem.

Id. § 78B-15-623(2). The precise question presented is whether Section 623 gives a child the right to challenge a putative father’s duly filed declaration of paternity on the basis that the declaration is inconsistent with genetic testing results. We hold that it does.

¶32 The question before us is, at root, one of statutory interpretation. “When interpreting a statute, our primary objective is to ascertain the intent of the legislature, the best evidence of which is the plain language of the statute itself.” Taylor v. Taylor, 2022 UT 35, ¶ 28, 517 P.3d 380 (quotation simplified). In examining the language of a statute, “we do not view individual words and subsections in isolation; instead, our statutory interpretation requires that each part or section be construed in connection with every other part or section so as to produce a harmonious whole.” Penunuri v. Sundance Partners Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984 (quotation simplified); see also State v. Bess, 2019 UT 70, ¶ 25, 473 P.3d 157 (“We read the plain language of the statute as a whole and interpret its provisions in harmony with other statutes in the same chapter and related chapters.” (quotation simplified)). And if this exercise “provides a workable result, we need not resort to other interpretive tools, and our analysis ends.” Torrie v. Weber County, 2013 UT 48, ¶ 11, 309 P.3d 216 (quotation simplified). In accordance with these principles, we begin our analysis with an overview of the relevant statute’s structure.

¶33 The statute in question is the Utah Uniform Parentage Act (the Act), codified at Title 78B, Chapter 15 of the Utah Code. See Utah Code Ann. §§ 78B-15-101 to -902 (LexisNexis 2018). Section 623’s reference to “a determination of parentage under this chapter,” then, refers to any determination of parentage made under any of the various parts of the Act. See id. § 78B-15-623(2) (emphasis added). Part 3 of the Act governs voluntary declarations of paternity, see id. §§ 78B-15-301 to -313, and Part 6 of the Act governs judicial adjudications of parentage, see id. §§ 78B-15-601 to -623. Indeed, the term “determination of parentage,” as used in Section 623, has a specific statutory definition: our legislature has provided that a “determination of parentage” means either (a) “the establishment of the parent-child relationship by the signing of a valid declaration of paternity under Part 3,” or (b) “adjudication [of parentage] by a tribunal” under Part 6. See id. § 78B-15-102(9).

¶34 In this case, any parental rights claimed by Father are derived not from any judicial adjudication of paternity but, rather, from the VDP. Indeed, the Act is clear with regard to the effect of a properly filed declaration of paternity: “a valid declaration of paternity filed with the Office of Vital Records is equivalent to a legal finding of paternity of a child and confers upon the declarant father all of the rights and duties of a parent,” without the necessity of initiating judicial proceedings or obtaining a court order. See id. § 78B-15-305(1); see also In re S.H., 2005 UT App 324, ¶ 15 (stating that a declaration of paternity “duly signed and filed, has the same effect as a judicial determination of paternity”). Phrased in the language of Section 623, then, the “determination of parentage” at issue here took place pursuant to Part 3, not Part 6, and it occurred not in any courtroom but at the front counter (or its metaphorical online equivalent) at the Office of Vital Records and Statistics.

¶35 As noted, Section 623 provides that “[a] child is not bound by a determination of parentage” unless at least one of three criteria are met. See Utah Code Ann. § 78B-15-623(2). With regard to the specific “determination of parentage” at issue here, none of the three listed criteria are met.

¶36 First, the “determination of parentage” at issue in this case was not “based on an unrescinded declaration of paternity” that is “consistent with genetic testing.” See id. § 78B-15-623(2)(a). To be sure, the determination of parentage here was based on an “unrescinded declaration of paternity”; after all, Father’s only claim to paternity was made through the VDP, and neither Father nor Mother had exercised any rights they had, pursuant to Section 306, to rescind the VDP within sixty days of signing it. See id. § 78B-15-306. But the unrescinded VDP at the heart of Father’s paternity claim turned out to be entirely inconsistent with the genetic test results that came back in September 2021. For this reason, the “determination of parentage” at issue here was not based on a declaration of paternity that was “consistent with the results of genetic testing.” Id. § 78B-15-623(2)(a) (emphasis added). Thus, the first criterion is inapplicable.

¶37 The second criterion is likewise inapplicable, for two reasons. First, this criterion applies only to an “adjudication of parentage,” see id. § 78B-15-623(2)(b), and no such adjudication occurred here, where Father’s parental rights, if any, are derived under Part 3, from the VDP, rather than through a judicial process. And second, this criterion also depends upon “genetic testing” being “consistent with” the adjudication of parentage and, as already noted, the genetic testing in this case excluded Father from any biological relationship with Child. See id.

¶38     Finally, the third criterion has no application either. That criterion applies if “the child was a party or was represented in the proceeding determining parentage by a guardian ad litem.” Id. § 78B-15-623(2)(c). To be sure, Child was represented by the GAL in the proceedings before the juvenile court, and is represented by the GAL in this appeal. But Child was not involved, in any way, in the “proceeding determining parentage” at issue here. Again, that “proceeding” occurred on August 18, 2021, when Father and Mother appeared at the Office of Vital Records and Statistics to fill out the VDP, and when that office accepted the VDP they filed. That proceeding took place entirely outside of court, and Child had no voice or representation therein. Accordingly, the third criterion is likewise inapplicable.

¶39 Because none of the three exceptional criteria apply here, Section 623 provides that Child is “not bound by [the] determination of parentage” in this case. See id. § 78B-15-623(2) (emphasis added). In our view, this language must necessarily mean that Child has the right to challenge the VDP.[4]

¶40 The words “not bound by” are not defined in the Act. In such a situation, we “interpret the statutory language according to the plain meaning of its text.” See O’Hearon v. Hansen, 2017 UT App 214, ¶ 24, 409 P.3d 85 (quotation simplified). And in doing so, we give the words the meaning they are given in ordinary daily usage. See State v. Rincon, 2012 UT App 372, ¶ 10, 293 P.3d 1142 (“When construing a statute, words that are used in common, daily, nontechnical speech, should, in the absence of evidence of a contrary intent, be given the meaning which they have for laymen in such daily usage.” (quotation simplified)).

¶41 In our view, the words “not bound by” must include a right to challenge the determination of parentage. A child who has no right to challenge the determination in question, even in a case where none of the three statutory criteria applied, would effectively be bound by it. Stated another way, in order to be “not bound by” something, there must exist a way to get out from under its obligations. After all, the words “not bound by” would be deprived of all effective meaning if a child had no right to challenge the determination of parentage at issue. Even Father and the amicus curiae both acknowledge, in recently filed briefs, that Child has statutory standing to challenge the VDP under Part 6. For these reasons, we conclude that Section 623 provides Child the right to challenge the VDP—an unrescinded declaration of paternity upon which Father’s claim to paternity is based—on the ground that the declaration is inconsistent with “the results of genetic testing.” See Utah Code Ann. § 78B-15-623(2)(a).

¶42 Once it is established that Child has the right to mount a challenge to the VDP, we must turn to the merits of that challenge. And Father, here on appeal, does not seriously contest the merits of Child’s attack on the VDP. Father instead acknowledges, as he must, that the genetic testing excluded him as Child’s biological father, and that the genetic testing is, therefore, inconsistent with his claims to paternity under the VDP. Accordingly, the juvenile court correctly determined that Child’s Section 623 challenge to the VDP was meritorious.

¶43 But while the juvenile court’s ruling is correct on its merits, the court used incorrect nomenclature to describe the effect of its ruling. The court ruled that the VDP “is void,” thereby apparently purporting to invalidate it ab initio and render it without force or effect from the date it was filed. This was incorrect. A challenge to a declaration of paternity based on inconsistency with genetic testing is a challenge alleging “a material mistake of fact.” See id. § 78B-15-307(5) (stating that “genetic test results that exclude a declarant father . . . constitute a material mistake of fact”). And as we explained in Scott, the effect of a successful challenge on this basis—as opposed to a challenge grounded in Section 302 or Section 306—is “not that the declaration of paternity is rendered void from its inception” but, instead, that the “declaration will be set aside, on a going-forward basis.” See 2021 UT App 110, ¶ 40.

¶44 In our view, a challenge brought by a child under Section 623 alleging that genetic testing is inconsistent with a declarant father’s declaration is substantively similar to the type of challenge we examined in Scott. Neither challenge is grounded in Sections 302 or 306, statutory provisions that expressly provide that voidness will result from a successful challenge. And both challenges arise from the same set of circumstances, namely, genetic testing that does not match a putative father’s claims to paternity. We therefore hold that, where a child makes a successful Section 623 challenge to a declaration of paternity, the result is that the declaration “will be set aside, on a going-forward basis,” and will not be declared void from the date of its inception. See id. As applied to this case, these principles dictate that Father had legal parental rights for some three months, from August 18 through November 16, 2021, but that his parental rights ended, prospectively, with entry of the court’s order sustaining Child’s Section 623 challenge.

¶45 Finally, both Father and the amicus curiae—in recently filed supplemental briefs—raise the potential applicability of section 78B-15-608 of the Utah Code (referred to herein as “Section 608”), a statutory section that allows a court, under certain conditions, to “disregard genetic test results that exclude the . . . declarant father.” Father asserts, for the first time in his supplemental brief, that he should be entitled to a hearing to determine whether the genetic test results eliminating him as Child’s biological father should be “disregarded” pursuant to Section 608. But Father makes this request for the first time in this recent brief; he did not raise a Section 608 defense to the GAL’s challenge before the juvenile court, nor did he mention Section 608 in either his opening or reply brief on appeal. Under these circumstances, Father has raised this legal theory far too late for us to consider it in the context of this appeal. Cf. Viertel v. Body Firm Aerobics LLC, 2022 UT App 96, ¶ 11, 516 P.3d 791 (“Appellants are not permitted to raise matters for the first time in a reply brief.” (quotation simplified)).

¶46 The amicus curiae, for its part, asserts that it was “mandatory” for the juvenile court to have conducted a Section 608 inquiry, including a “best interest of the child” analysis, even in the absence of a request by Father for it to do so; in this vein, the amicus curiae argues that the juvenile court committed plain error by not engaging in that analysis sua sponte. In particular, the amicus curiae rests its argument on statutory language stating that the court “shall consider the best interest of the child.” See Utah Code Ann. § 78B-15-608(2) (emphasis added). But in our view, the amicus curiae overreads the statute.

¶47 As we interpret it, Section 608 does not compel a juvenile court, in every instance in which any challenge to a VDP is sustained, to undertake a Section 608 analysis even if none of the parties request it. Litigants are entitled to select the specific defenses they raise to an opponent’s claim. The general rule, applicable in both district and juvenile courts, is that parties must request specific relief in order for a court to award it. Our judicial process ordinarily does not require courts to step in and examine legal theories that the parties have not themselves raised. See State v. Johnson, 2017 UT 76, ¶ 14, 416 P.3d 443 (“Under our adversarial system, the parties have the duty to identify legal issues and bring arguments before an impartial tribunal to adjudicate their respective rights and obligations.”). In this case, Father—who was represented by counsel at the time—elected to defend against the GAL’s challenge to the VDP by calling into question the GAL’s (or

Child’s) right to even mount the challenge. Father did not raise Section 608 as a possible defense, and he did not ask the juvenile court—in the event it concluded that the GAL had standing to challenge the VDP—to disregard the results of the genetic testing pursuant to Section 608.

¶48 We take the amicus curiae’s point that, whenever a party does specifically invoke Section 608 and ask a court to disregard genetic test results, that court must “consider the best interest of the child” in determining whether to do so. See Utah Code Ann. § 78B-15-608(2). But courts do not have an obligation to sua sponte raise Section 608, and undertake its concomitant best-interest analysis, in every case in which they are asked to consider a challenge to a VDP.[5] See Utah Stream Access Coal. v. VR Acquisitions, LLC, 2019 UT 7, ¶ 41, 439 P.3d 593 (stating that “judges are neutral arbiters—not advocates,” and that judges “keep [themselves] out of the business of second-guessing the pleading decisions of the parties”); cf. Scott, 2021 UT App 110, ¶ 43 (noting that the lower court, in that case, turned to a Section 608 analysis only at the “request” of one of the parties). If a putative parent wants a court to take the rather drastic and unusual step of disregarding the results of genetic testing, it will ordinarily be the parent’s responsibility to raise the issue.

¶49 And even assuming, for the purposes of the discussion, that plain error review is available here, see Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 42 n.10, 507 P.3d 357 (suggesting that plain error review may be available in certain types of civil cases, including termination of parental rights cases), we reject the amicus curiae’s assertion that, on the record before us, the juvenile court committed plain error by not invoking Section 608 sua sponte. Plain error occurs only when a court commits an obvious prejudicial error. See Johnson, 2017 UT 76, ¶ 20. Here, the juvenile court committed no obvious error. Nothing in Section 608 indicates that it is to be applied in every case, even sua sponte, regardless of whether any party ever invokes it. And the amicus curiae cites no appellate court case that so indicates. Where the law is not clear, a court does not commit obvious error. See State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276 (“To establish that the error should have been obvious to the trial court, [a litigant] must show that the law governing the error was clear at the time the alleged error was made.”).

¶50 For these reasons, the juvenile court did not plainly err by not sua sponte undertaking an analysis pursuant to Section 608. And because Father did not raise that issue either before the juvenile court or in his initial brief, we decline to address Father’s argument that the court should have conducted such an analysis. We offer no opinion, however, regarding whether the issue could properly be raised after remand, especially given the fact that the juvenile court left the door open to Father’s involvement in the case going forward.

CONCLUSION

¶51 We have jurisdiction to consider the merits of Father’s appeal, because the juvenile court’s order canceled the parental rights that Father had temporarily acquired by filing the VDP and thereby effected a permanent change in Child’s status regarding Father. But on the merits of that appeal, we conclude that the juvenile court correctly sustained the GAL’s Section 623 challenge to the VDP, even if the court should not have used the word “void” to describe the result of its ruling. We therefore affirm the juvenile court’s decision to sustain the GAL’s challenge to the VDP, but remand with instructions for the court to modify its order to indicate that it has prospective effect only, and for such other proceedings as may be appropriate.

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] “We recite the facts in a light most favorable to the juvenile court findings.” In re K.J., 2013 UT App 237, ¶ 2 n.2, 327 P.3d 1203 (quotation simplified).

[2] After recognizing this jurisdictional question, we issued a Sua Sponte Motion for Summary Disposition, explaining that this appeal was being considered for summary disposition “on the basis that this court lacks jurisdiction because the order appealed from was not a final, appealable order.” We then ordered the parties to submit briefing on the jurisdictional question, which they did. Later, we also provided the parties the opportunity to submit supplemental briefing on the statutory standing question. Father and the GAL submitted supplemental briefs, and an amicus curiae submitted a brief on this topic as well. We appreciate the assistance of the parties and the amicus curiae in submitting supplemental briefing.

[3] As noted already, the GAL’s pre-hearing briefing before the juvenile court invoked Sections 302 and 307, but not Section 623. In their briefing on appeal, the parties include some discussion of other potential avenues for challenge. No party invokes Section 306, and both the State and the GAL appear to concede that the GAL—apparently because Child is not a “signatory” to the VDP—does not have statutory standing to challenge the VDP under Section 307. But the State does appear to invoke Section 302 in connection with its argument that the VDP was “fraudulently executed,” and on that basis appears to ask us to affirm the juvenile court’s ruling on this alternative ground. We have serious doubts about the merits of this argument, primarily because none of the three criteria for voidness set forth in Section 302 are present here, but also because any evidence of fraud on the part of Father or Mother is thin at best: they were not sure whether Father was Child’s biological parent, but had a basis to “believe” that he was, and Father’s answer about the state of genetic testing was technically correct, because on August 18 neither Mother nor Child had yet submitted samples for genetic testing. But we need not delve deeper into the State’s alternative argument, because we affirm the substance of the court’s ruling under Section 623.

[4] After all, Part 6 of the Act expressly provides that “the child” may maintain “a proceeding to adjudicate parentage,” and thereby challenge a parent’s paternity. See Utah Code Ann. § 78B-15-602(1). All parties to this appeal agree that a child has statutory standing under Part 6 to challenge a parent’s paternity.

[5] The amicus curiae runs into the same problem with its other best-interest related argument. It points out that guardians ad litem have authority created by statute, and that they are appointed “to represent the best interest of a minor.” See Utah Code Ann. § 78A-2-803(1)(a)(i) (LexisNexis Supp. 2022). It asserts that the GAL in this case, by challenging Father’s paternity, acted outside Child’s best interest, pointing out that Child has no other father figure in his life, and offering its view that “it is difficult to see how it can be in a child’s best interest to challenge the paternity of the only father figure participating in the case.” We acknowledge this argument, and agree with the amicus curiae that guardians ad litem have a statutory obligation to carefully consider whether the actions they take on a child’s behalf are in the child’s best interest. But ordinarily any challenge to a guardian ad litem’s actions as being outside a child’s best interest must come from one of the parties rather than from a court sua sponte, and must be raised in the first instance in the district or juvenile court. No such challenge was levied here by any party before the juvenile court, rendering the merits of any such challenge inappropriate for appellate review.

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In re Adoption of E.M.F. – 2022 UT App 43 time in which to appeal

In re Adoption of E.M.F… – 2022 UT App 43

THE UTAH COURT OF APPEALS

IN THE MATTER OF

THE ADOPTION OF E.M.F. AND M.S.F.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

S.S. AND B.S.,

Appellants,

v.

J.F.,

Appellee.

Opinion

No. 20200490-CA

Filed March 31, 2022

Second District Court, Ogden Department

The Honorable Joseph M. Bean

No. 182900024

Jason B. Richards, Attorney for Appellants

Emily Adams and Sara Pfrommer, Attorneys

for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY concurred.

POHLMAN, Judge:

¶1        In this stepparent adoption case, B.S. (Mother) and S.S. (Stepfather) appeal the district court’s order denying their petition to terminate the parental rights of J.F. (Father), with whom Mother shares two children, E.M.F. and M.S.F. (collectively, the Children). We do not reach the merits of the case, however, because we dismiss this appeal for lack of jurisdiction. Although Mother and Stepfather contend that the court rule dictating this result is unconstitutional on its face and as applied, we conclude that Mother and Stepfather have not demonstrated that exceptional circumstances exist for us to consider their constitutional argument.

BACKGROUND

¶2        Mother and Father were involved in a relationship between 2009 and 2014, during which time the Children were born. Mother has always had full physical custody of the Children since her separation from Father. Later, Mother married Stepfather. Mother and Stepfather then petitioned for Stepfather to adopt the Children and to terminate Father’s parental rights.

¶3        The matter proceeded to a two-day bench trial in December 2018. After hearing the evidence, the district court concluded that Mother and Stepfather had “not met their burden by clear and convincing evidence of any of the statutory requirements for terminating [Father’s] rights,” and the court accordingly denied the petition for adoption. The court announced its findings of fact and conclusions of law in court, explaining, “That will be the order of the Court.” It further announced that it did not “inten[d] to do written findings of fact and conclusions of law” but that “[c]ertainly anybody who would like to can do it themselves and submit it to the Court for approval.”[1] Similarly, the court’s December 11, 2018 minute entry from trial states, “The court does not intend on issuing written findings of facts and conclusions of law, either party may submit their own consistent with the court’s ruling for approval if they wish.” That minute entry was signed electronically and designated as an order of the court on December 13, 2018.

¶4        Neither side chose to submit findings and conclusions consistent with the court’s decision,[2] and neither side submitted a proposed judgment pursuant to rule 58A(c)(1) of the Utah Rules of Civil Procedure. Aside from the court’s exhibit tracking record filed a few days after trial, nothing more was filed in the case until Father, acting pro se, moved to release the trial transcripts on March 11, 2019. In his motion, Father asserted that the “records and transcripts [were] required for [him] to prepare findings of fact and conclusions of law requested by [the district court judge].” One month later, the court entered a certificate of destruction, stating that the court clerk had destroyed the exhibits on April 4, 2019.

¶5        Nothing else was entered on the court’s docket until December 2019, when Mother and Stepfather’s attorneys withdrew, and then Mother and Stepfather, acting pro se, filed an objection to a proposed findings of fact, conclusions of law, and order prepared by Father.[3] Among other objections, Mother and Stepfather complained that Father “failed to properly provide a copy of the proposed order to [them] before filing the document with the Court.” The court held a telephone conference the next month during which it indicated that the proposed findings “will be held due to the pending objection.” At a later hearing, the court decided to “sustain[]” Mother and Stepfather’s objection and ordered Father to submit amended findings with two specific revisions.

¶6        As ordered, Father then filed a proposed amended findings of fact, conclusions of law, and order. Finally, on June 9, 2020, the district court signed the amended findings of fact, conclusions of law, and order. The court reiterated its conclusion—rendered 546 days earlier—that, as a matter of law, Mother and Stepfather had “not met their burden to show by clear and convincing evidence any of [the] statutorily required bases for terminating [Father’s] parental rights,” and the court thus denied the petition for adoption. On June 22, 2020, Mother and Stepfather filed a notice of appeal.

ISSUES AND STANDARDS OF REVIEW

¶7        On appeal, Mother and Stepfather challenge the district court’s denial of their adoption petition. But Father contends that this court lacks jurisdiction to consider the merits of the appeal, arguing that Mother and Stepfather did not timely file a notice of appeal in light of rule 58A of the Utah Rules of Civil Procedure. In response, Mother and Stepfather insist that they timely appealed under their view of the relevant timeline and rule 58A. “Whether appellate jurisdiction exists is a question of law.” Greyhound Lines, Inc. v. Utah Transit Auth., 2020 UT App 144, ¶ 22, 477 P.3d 472 (cleaned up). Likewise, the interpretation of a rule of civil procedure is a question of law. See Ghidotti v. Waldron, 2019 UT App 67, ¶ 8, 442 P.3d 1237.

¶8        In the event that this court agrees with Father on the correct operation of rule 58A, Mother and Stepfather assert that the rule is unconstitutional on its face and as applied to the facts of this case. Constitutional challenges present “questions of law.” Menzies v. State, 2014 UT 40, ¶ 27, 344 P.3d 581, abrogated on other grounds by McCloud v. State, 2021 UT 51, 496 P.3d 179. But when, as here, an issue was not preserved in the district court, “the party must argue that an exception to preservation applies.” State v. Johnson, 2017 UT 76, ¶ 27, 416 P.3d 443.

ANALYSIS

¶9        We begin by addressing Father’s contention that this court lacks appellate jurisdiction over this matter. We then address Mother and Stepfather’s constitutional argument aimed at defeating Father’s jurisdictional contention.

I. Appellate Jurisdiction

¶10 Father contends that this court does not have appellate jurisdiction to consider this appeal. According to Father, because a separate judgment was not filed after the district court announced its findings and order from the bench on December 11, 2018, the decision was considered final and appealable 150 days after that date under rule 58A(e)(2)(B) of the Utah Rules of Civil Procedure and any notice of appeal should have been filed within thirty days of May 10, 2019. Father asserts that the court’s amended findings of fact, conclusions of law, and order—entered on June 9, 2020—could not “restart the period for filing a notice of appeal” and that Mother and Stepfather’s June 22, 2020 notice of appeal was therefore untimely. In contrast, Mother and Stepfather contend that the June 9, 2020 order constituted the required separate judgment and that they timely filed their notice of appeal from that order.[4] We agree with Father.

¶11      This case turns on the application of rule 58A of the Utah Rules of Civil Procedure to determine when the time to appeal began to run. Rule 58A(a) provides that “[e]very judgment and amended judgment must be set out in a separate document ordinarily titled ‘Judgment’—or, as appropriate, ‘Decree.’” Utah R. Civ. P. 58A(a). Of particular import here, rule 58A(e) states,

(e) Time of entry of judgment.

(e)(1) If a separate document is not required, a judgment is complete and is entered when it is signed by the judge and recorded in the docket.

(e)(2) If a separate document is required, a judgment is complete and is entered at the earlier of these events:

(e)(2)(A) the judgment is set out in a separate document signed by the judge and recorded in the docket; or

(e)(2)(B) 150 days have run from the clerk recording the decision, however designated, that provides the basis for the entry of judgment.

Id. R. 58A(e). This provision “makes explicit the time of entry of judgment” and resolves the problem of “endlessly hanging appeals.” Griffin v. Snow Christensen & Martineau, 2020 UT 33, ¶¶ 12, 14, 467 P.3d 833 (cleaned up).

¶12 The parties agree that “a separate document” was required in this case, so they therefore agree that rule 58A(e)(1) does not apply here. See Utah R. Civ. P. 58A(a); see also Griffin, 2020 UT 33, ¶ 17 (stating that a judgment “must be set out in a separate document that is prepared by the prevailing party and signed and docketed by the court”). Accordingly, this case falls under rule 58A(e)(2).

¶13      Rule 58A(e)(2) sets forth two events, the earlier of which will trigger the time when a judgment becomes complete and entered. The first occurs when “the judgment is set out in a separate document signed by the judge and recorded in the docket.” Utah R. Civ. P. 58A(e)(2)(A). In Griffin, the Utah Supreme Court explained that when rules 58A(a) and 58A(e)(2)(A) are “properly implemented, the separate judgment signals clearly that the case is over and the appeal and post-judgment motion clock has started to run.”[5] 2020 UT 33, ¶ 17.

¶14      Alternatively, “when the prevailing party fails to prepare a separate judgment, rule 58A(e)(2)(b) creates a backstop by establishing that the ‘entry of judgment’ occurs once ‘150 days have run from the clerk recording the decision, however designated, that provides the basis for the entry of judgment.’” Id. (quoting Utah R. Civ. P. 58A(e)(2)(B)); see also id. ¶ 25 n.5; Utah R. Civ. P. 58A advisory committee notes to 2015 amendments (“[I]f a separate document is required but is not prepared, judgment is deemed to have been entered 150 days from the date the decision—or the order confirming the decision—was entered on the docket.”). Indeed, the current version of rule 58A(e)(2) was adopted in response to the supreme court’s direction for the rule to “set a maximum time . . . for filing an appeal in cases where the district court’s judgment has not otherwise been finalized.” Central Utah Water Conservancy Dist. v. King, 2013 UT 13, ¶ 27, 297 P.3d 619; see also Utah R. Civ. P. 58A advisory committee notes to 2015 amendments (explaining that the current rule addressed “the ‘hanging appeals’ problem” that the supreme court identified in King); Griffin, 2020 UT 33, ¶¶ 9–11, 14.

¶15      Here, at the end of the bench trial, the district court ruled in favor of Father and announced its findings of fact and conclusions of law on the record on December 11, 2018. Neither side prepared a separate judgment, and thus rule 58A(e)(2)(A) did not apply. See Griffin, 2020 UT 33, ¶ 17. Nevertheless, the clerk “record[ed] the decision, however designated, that provides the basis for the entry of judgment” when the clerk recorded the court’s December 11, 2018 minute entry. See Utah R. Civ. P. 58A(e)(2)(B). The “backstop” of rule 58A(e)(2)(B) therefore kicked in to “establish[] that the ‘entry of judgment’ occur[red] once ‘150 days ha[d] run from the clerk recording the decision.’” See Griffin, 2020 UT 33, ¶ 17 (quoting Utah R. Civ. P. 58A(e)(2)(B)). We thus agree with Father that the court’s judgment was complete and entered in May 2019—after 150 days had transpired since the clerk recorded the court’s minute entry in December 2018. See Utah R. Civ. P. 58A(e)(2)(B).

¶16      Further, because a party’s notice of appeal “shall be filed . . . within 30 days after the date of entry of the judgment or order appealed from,” Utah R. App. P. 4(a), and because Mother and Stepfather’s June 22, 2020 notice of appeal was filed more than thirty days after May 2019, we conclude that their appeal was untimely,[6] see Serrato v. Utah Transit Auth., 2000 UT App 299,

¶ 11, 13 P.3d 616 (indicating that deadlines for notices of appeal “must be adhered to in order to prevent cases from continually lingering and to ensure finality in the system”). “Where an appeal is not properly taken, this court lacks jurisdiction and we must dismiss.” Bradbury v. Valencia, 2000 UT 50, ¶ 8, 5 P.3d 649. Accordingly, we have no choice but to dismiss Mother and Stepfather’s appeal without reaching its merits. See id.

II. The Constitutionality of Rule 58A

¶17 Notwithstanding, Mother and Stepfather contend that if rule 58A operates to deprive this court of jurisdiction over their appeal, rule 58A is unconstitutional on its face and as applied to the facts of this case because the rule “fails to provide notice to parties when an order is final for the purposes of appeal.” At the outset, Mother and Stepfather concede that they did not preserve this issue and that they are thus raising it for the first time on appeal. Given this lack of preservation, Mother and Stepfather further recognize that this court “generally will not consider an issue, even a constitutional one, which the appellant raises on appeal for the first time.” (Quoting State v. Webb, 790 P.2d 65, 77 (Utah Ct. App. 1990).) Yet they suggest this court should reach the constitutional issue under either the plain error or the exceptional circumstances exception to the preservation rule.

¶18 Mother and Stepfather “must establish the applicability” of an exception to the preservation rule to raise the issue on appeal. See State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443. But appellants will not carry their burden of persuasion on an unpreserved issue if they do not supply “a plain error or exceptional circumstances analysis because, in failing to do such an analysis, [they] will have necessarily failed to explain why we should reach the issue of which [they] complain[].” Baumann v. Kroger Co., 2017 UT 80, ¶ 25, 416 P.3d 512. We conclude that Mother and Stepfather have not established that either exception applies, and thus we decline to reach this constitutional issue on its merits.

¶19      Although Mother and Stepfather mention the plain error exception to the preservation rule, they have not applied the elements of plain error to this case. See Johnson, 2017 UT 76, ¶ 20 (“To demonstrate plain error, a defendant must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.” (cleaned up)). They thus have not engaged in a plain error analysis, much less shown that the district court plainly erred by not sua sponte declaring rule 58A unconstitutional. As a result, they have not carried their burden to establish the applicability of this exception. See Baumann, 2017 UT 80, ¶ 25; State v. Padilla, 2018 UT App 108, ¶ 19, 427 P.3d 542 (rejecting a plain error claim when the appellant “made no attempt to develop or establish” the claim).[7]

¶20 Mother and Stepfather alternatively suggest that the exceptional circumstances exception should apply, warranting our consideration of the constitutional issue for the first time on appeal. But they similarly offer little analysis on this score. They contend only that the constitutionality of rule 58A presents “a unique constitutional question, because it directly pertains to the time set to appeal” and “there is no method to preserve a constitutional challenge that only becomes an issue of controversy on appeal.” We are not persuaded.

¶21 Our supreme court has directed that the “exceptional circumstances doctrine is applied sparingly, reserving it for the most unusual circumstances where our failure to consider an issue that was not properly preserved for appeal would have resulted in manifest injustice.” Johnson, 2017 UT 76, ¶ 29 (cleaned up). Courts “apply this exception . . . where a rare procedural anomaly has either prevented an appellant from preserving an issue or excuses a failure to do so.” Id. (cleaned up). And once a party shows that a rare procedural anomaly exists, it “opens the door to a deeper inquiry” in which “additional factors must be considered to determine whether an appellate court should reach an unpreserved issue.” Id. Such factors include whether our failure to consider the issue “would result in manifest injustice,” whether “a significant constitutional right or liberty interest is at stake,” and judicial economy. Id. ¶ 37 (cleaned up). This exception thus requires a “case-by-case assessment.” Id. ¶ 38. But it cannot be used “as a free-floating justification for ignoring the legitimate concerns embodied in the preservation and waiver rules.” Id.

¶22 Mother and Stepfather have not met their burden of establishing that exceptional circumstances are present here. This is so because they have not analyzed whether they encountered a rare procedural anomaly and they have not engaged in any “deeper inquiry” of the additional factors relevant to this exception. See id. ¶ 29.

¶23      Without putting it in terms of a rare procedural anomaly, Mother and Stepfather suggest that the constitutional question regarding rule 58A became relevant only on appeal and that they were unable to complain to the district court about notice not being built into the rule. But rule 58A was in operation and became applicable once the district court announced its ruling in court on December 11, 2018.

¶24      Rule 58A(a) requires that “[e]very judgment . . . be set out in a separate document ordinarily titled ‘Judgment,’” and, as the prevailing party, Father should have, “within 14 days . . . after the court’s decision,” “prepare[d] and serve[d] on the other parties a proposed judgment for review and approval as to

form.” See Utah R. Civ. P. 58A(c)(1). But when Father did not timely serve a proposed judgment, rule 58A(c) gave Mother and Stepfather the option of preparing a proposed judgment themselves. See id. (“If the prevailing party or party directed by the court fails to timely serve a proposed judgment, any other party may prepare a proposed judgment and serve it on the other parties for review and approval as to form.”). They did not exercise that option.

¶25 Because the parties did not avail themselves of the opportunity to prepare a proposed judgment that would lead to the judgment being entered under rule 58A(e)(2)(A), the parties’ inaction meant that, by default, the backstop of rule 58A(e)(2)(B) applied, meaning that a judgment was entered once “150 days ha[d] run from the clerk recording the decision, however designated, that provides the basis for the entry of judgment.” See id. R. 58A(e)(2)(B). In other words, time was ticking toward the second event—entry of judgment under rule 58A(e)(2)(B). If Mother and Stepfather wished to appeal the district court’s decision and were concerned that they did not know when judgment would be entered (and thus when they could file a notice of appeal), they had reason to raise that concern with the district court. Parties “cannot sleep on [their] rights and just hope for a favorable outcome.” See Dahl v. Harrison, 2011 UT App 389, ¶ 28, 265 P.3d 139, abrogated on other grounds by R.O.A. Gen., Inc. v. Chung Ji Dai, 2014 UT App 124, 327 P.3d 1233.

¶26      And while it would have been unusual, it is not obvious to us that Mother and Stepfather could not have asked the district court for a declaration that rule 58A(e)(2) was unconstitutional on the ground that it did not provide for enough notice of the events relating to entry of judgment. See State v. Van Huizen, 2019 UT 01, ¶ 27, 435 P.3d 202 (stating that appellants “[have] the burden to show that [they were] unable to object . . . at the proper time”). Mother and Stepfather contend that their constitutional challenge only became “an issue of controversy on appeal.” But their complaint lies with an alleged uncertainty that materialized once the district court recorded its decision without entering a separate document to memorialize its finality, and that complaint materialized long before Mother and Stepfather filed their appeal. Under these circumstances, it is inadequate for them to simply assert that they were unable to preserve their constitutional claim. See In re X.C.H., 2017 UT App 106, ¶ 31, 400 P.3d 1154 (requiring parties invoking the exceptional circumstances exception to “demonstrate how the actual circumstances [they] encountered in the [district] court process prevented [them] from raising the [unpreserved] claim”); see also Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 21 n.3 (refusing to apply the exceptional circumstances exception when the appellant did “not discuss the threshold inquiry of the exceptional circumstances exception” and thus did not establish that a rare procedural anomaly existed).

¶27      Moreover, Mother and Stepfather have not engaged in the “deeper inquiry” this court must carry out to determine whether to reach an unpreserved issue under the exceptional circumstances exception. See Johnson, 2017 UT 76, ¶ 29. For example, they have not explained why our failure to consider the constitutional issue “would result in manifest injustice.” See id. ¶ 37 (cleaned up). And based on the record before us, it is far from apparent that it would be unjust for us not to consider Mother and Stepfather’s constitutional challenge to the application of rule 58A, for a couple of reasons.

¶28 First, Mother and Stepfather cannot demonstrate on this record that they did not receive notice of the entry of the district court’s decision. There is a signed minute entry in the court’s docket dated two days after the court announced its decision from the bench. Yet Mother and Stepfather make no mention of this order on appeal; instead, they focus on an unsigned minute entry and ask us to assume they did not receive notice of its entry because no certificate of service is attached. Because Mother and Stepfather do not account for the court’s signed minute entry, and because their argument depends on assumptions, the alleged injustice about which they complain is far from manifest.[8]

¶29 Additionally, even if we were to accept Mother and Stepfather’s invitation to assume they did not receive notice of the minute entry recording the district court’s decision, Mother and Stepfather (while still represented by counsel) had ways to easily resolve their claimed problem of lacking notice of when the clerk recorded the court’s decision. They were present when the court announced its decision from the bench and informed the parties that its pronouncement would stand as the order of the court. Surely, counsel understood that the court’s decision would be recorded in the docket within a few days. But if Mother and Stepfather desired even more certainty, they could have submitted a proposed judgment and, upon its entry, been confident that their time to appeal was running. See Utah R. Civ. P. 58A(e)(2)(A). And at any time during the months following the court’s announcement of its decision from the bench, Mother and Stepfather could have checked the docket[9] or called the court clerk to determine the date on which the court’s decision was recorded. But Mother and Stepfather forwent all these opportunities. In light of these missed opportunities, we do not believe that it would be manifestly unjust for us to decline to reach the unpreserved constitutional issue.[10] Cf. Dahl, 2011 UT App 389, ¶ 28 (stating that parties “cannot sleep on [their] rights”). For these reasons, we will not apply the exceptional circumstances exception here.

CONCLUSION

¶30 We agree with Father that we lack jurisdiction over this appeal, and we thus dismiss it. We also conclude that Mother and Stepfather have not established the applicability of any exception to the preservation rule and that we therefore may not reach the merits of their constitutional challenge to rule 58A of the Utah Rules of Civil Procedure.


 

[1] Mother and Stepfather filed proposed findings of fact and conclusions of law on the second day of trial, prior to the court announcing its decision. Their filing did not reflect the district court’s announced decision, and the court did not sign that document.

[2] Rule 52(a)(1) of the Utah Rules of Civil Procedure provides, “In all actions tried upon the facts without a jury or with an advisory jury, the court must find the facts specially and state separately its conclusions of law. The findings and conclusions must be made part of the record and may be stated in writing or orally following the close of the evidence. Judgment must be entered separately under Rule 58A.” And rule 54(a) specifies that “‘Judgment’ as used in these rules includes a decree or order that adjudicates all claims and the rights and liabilities of all parties or any other order from which an appeal of right lies.” Utah R. Civ. P. 54(a).

[3] This proposed document is not in the record. Mother and Stepfather assert that Father submitted this proposed order to the court on or about December 16, 2019—more than a year after the court announced its ruling from the bench.

[4] Mother and Stepfather assert that Father’s “failure to oppose the entry of the [June 2020] order should be deemed a waiver” of Father’s challenge to appellate jurisdiction. But “because subject matter jurisdiction goes to the heart of a court’s authority to hear a case, it is not subject to waiver and may be raised at any time, even if first raised on appeal.” In re adoption of Baby E.Z., 2011 UT 38, ¶ 25, 266 P.3d 702 (cleaned up); see also Widdison v. State, 2021 UT 12, ¶ 100 n.26, 489 P.3d 158 (Lee, J., concurring in judgment) (“Jurisdiction is not an argument that can be waived or ignored by the parties.”). We therefore reject this argument.

[5] We recognize that because Griffin v. Snow Christensen & Martineau, 2020 UT 33, 467 P.3d 833, was not issued until June 10, 2020, the parties did not have the benefit of its analysis until then. Nevertheless, the parties still should have been aware of the relevant court rules bearing on the events that would trigger the thirty-day period for filing an appeal. Cf. Serrato v. Utah Transit Auth., 2000 UT App 299, ¶ 9, 13 P.3d 616 (stating that “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute excusable neglect” (cleaned up)).

[6] Father originally raised his jurisdictional argument in a motion for summary disposition, which a judge on this court denied on the ground that the June 2020 order was “the proper order used for determining appellate jurisdiction.” Mother and Stepfather now assert that because this court already rejected Father’s “exact same argument” when his motion for summary disposition was denied, the doctrine of claim preclusion bars Father from raising the issue again in his appellate brief. We disagree.

The doctrine of claim preclusion “bars a party from prosecuting in a subsequent action a claim that has been fully litigated previously.” Haskell v. Wakefield & Assocs. Inc., 2021 UT App 123, ¶ 13, 500 P.3d 950 (emphasis added) (cleaned up); see also IHC Health Services, Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 26 n.20, 196 P.3d 588 (explaining that res judicata, of which claim preclusion is a branch, “is more appropriately used to describe the binding effect of a decision in a prior case on a second case”). Because Father is not seeking to prosecute a claim that was adjudicated in a prior action, the doctrine of claim preclusion does not apply. Instead, Father seeks reconsideration of the conclusion, rendered in this case, that this court has jurisdiction over this appeal. This panel has the discretion to entertain Father’s request.

This court’s previous order was signed by a single judge, and rule 23(e) of the Utah Rules of Appellate Procedure “allows a panel of this court to review the actions of the single judge.” Envirotech Corp. v. Callahan, 872 P.2d 487, 501 n.12 (Utah Ct. App. 1994); see also Utah R. App. P. 23(e)(3) (“[T]he action of a single justice or judge may be reviewed by the court.”). Further, while an appeal is pending, this court “remains free” to reconsider its decisions. Cf. IHC Health Services, 2008 UT 73, ¶¶ 26–27 (explaining that the law of the case doctrine generally “allows a court to decline to revisit issues within the same case once the court has ruled on them”). Under the law of the case doctrine, this court enjoys the discretion not to reconsider a prior ruling, id. ¶ 26, but the doctrine “does not prohibit a judge from catching a mistake and fixing it,” Gillmor v. Wright, 850 P.2d 431, 439 (Utah 1993) (Orme, J., concurring).

Here, we exercise our discretion to reconsider the fundamental issue of appellate jurisdiction. See State v. Brown, 2021 UT 11, ¶ 10, 489 P.3d 152 (“Jurisdiction is the blood in our judicial system. Because of its vitalness, we have an independent obligation to ensure that we have it over all matters before us.” (cleaned up)).

[7] After this case was briefed and argued, this court issued Kelly v. Timber Lakes Property Owners Ass’n, 2022 UT App 23, in which we held that plain error review is not available in ordinary civil cases. Id. ¶ 44. Whether plain error review is available in this adoption proceeding is an unanswered question. Mother and Stepfather have not engaged on that question, and for purposes of our analysis, we assume, without deciding, that plain error review is available in this case.

[8] Preserving an issue in the district court is important because, among other things, “it allows an issue to be fully factually, procedurally, and legally developed in the district court.” Baumann v. Kroger Co., 2017 UT 80, ¶ 25, 416 P.3d 512. And “[w]ithout the benefit of a fully developed record illustrating both the district court’s thinking and the factual development bearing on the issue at hand, an appellate court is necessarily handicapped in reaching a well-considered decision.” True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 25, 427 P.3d 338. Here, the parties dispute whether the district court “ever provided notice or a copy of the clerk’s minute entry to the parties.” This is the type of factual dispute that could and should have been fleshed out in the district court, and the fact that it wasn’t hinders our ability to analyze the merits of Mother and Stepfather’s constitutional argument. See id.cf. Diversified Equities, Inc. v. American Sav. & Loan Ass’n, 739 P.2d 1133, 1136 (Utah Ct. App. 1987) (“Whether a party should be charged with ‘actual notice,’ either in the sense of having actual knowledge or being on inquiry notice, turns on questions of fact.”).

[9] Mother and Stepfather contend that “pursuant to Utah Code Ann. § 78B-6-141(2),” adoption cases are “sealed upon decision and the docket is not readily available on the Utah court’s Xchange system.” Thus, they suggest, they could not have reviewed the docket to determine when the clerk recorded the court’s decision. But section 78B-6-141 does not, by its terms, apply to the court’s docket. And even if it did, it states that any sealed documents are “open to inspection and copying . . . by a party to the adoption proceeding (i) while the proceeding is pending; or (ii) within six months after the day on which the adoption decree is entered.” Utah Code Ann. § 78B-6-141(3)(a) (LexisNexis 2018). Here, where no separate judgment was entered by the court and the court’s signed minute entry is not designated as private or sealed on the docket, it is not apparent that Mother and Stepfather could not have accessed the docket within the 180 days before their appeal was due to ascertain the exact date on which the court’s decision was recorded.

[10] It is also not apparent that if we were to reach the unpreserved issue, we would conclude rule 58A is unconstitutional as written. Mother and Stepfather contend that rule 58A is unconstitutional because it does not require notice of when the court records the decision, and the Utah Rules of Civil Procedure do not otherwise “provide for the service of signed orders through the E-Filing system.” Although we do not resolve this constitutional challenge expressly, we note that Mother and Stepfather are mistaken. Rule 5(b)(3)(A) of the Utah Rules of Civil Procedure provides that “except in the juvenile court,” “[a] paper is served . . . by . . . the court submitting it to the electronic filing service provider, if the person being served has an electronic filing account.”

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In re J.L… 2022 UT 12 – termination of parental rights

2022 UT 12 

IN THE SUPREME COURT OF THE STATE OF UTAH 

STATE OF UTAH, in the Interest of J.A.L. and J.O.L.,
Persons Under Eighteen Years of Age 

J.L. and J.A.,
Appellants, 

STATE OF UTAH,
Appellee. 

No. 20200271 

Heard September 16, 2021
Filed February 24, 2022 

On Certification from the Court of Appeals 

Fifth District Juvenile, Iron County
The Honorable Troy A. Little
No. 1161641, 1161642 

Attorneys:1  

Alexandra Mareschal, J. Frederic Voros, Jr., Julie J. Nelson, Salt Lake
City, Christa G. Nelson, Cedar City, for appellant J.L. 

Colleen K. Coebergh, Salt Lake City, Candice N. Reid, Cedar City,
for appellant J.A. 

Sean D. Reyes, Att’y Gen., Carol L. C. Verdoia, John M. Peterson,
Asst. Att’ys Gen., Salt Lake City, for appellee 

Martha Pierce, Salt Lake City, Guardian ad Litem
for J.A.L. and J.O.L. 

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and
JUSTICE PETERSEN joined. 

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court: 

¶1 This is an appeal from a juvenile court order terminating the parental rights of the mother and father of two children. The Division of Child and Family Services has been engaged with this family since at least July 2018. A range of support services has been provided over time. The children were removed from the mother’s custody in December 2018 and placed in foster care. And at various times both the father and mother have been subject to a court order prohibiting contact between them and to orders requiring treatment for domestic violence, substance abuse, and mental health issues. 

¶2 The Division initially pursued a permanency goal of reunification with the parents. When reunification failed, the Division petitioned to change the goal to adoption. After a hearing and an order granting the new permanency goal, the children were moved to a kinship placement with the father’s brother in Arkansas. The uncle had agreed to adopt the children. And after a subsequent hearing on the termination of parental rights, the juvenile court entered an order terminating the parental rights of both the mother and father. 

¶3 In the termination proceeding, the juvenile court found that both parents were “unfit” and had “neglected” the children. The court based its determination on factors listed in Utah Code section 78A-6-508(2)—concluding that the children were “abused and neglected” by “[t]he domestic violence perpetrated by the Father and the Mother’s failure to protect the children,” and that the parents’ substance abuse “render[ed] [them] unable to care for the children.” 

¶4 After finding statutory grounds to terminate, the court determined that termination was “strictly necessary” in the “best interest” of the children. It concluded that the children could not be returned home “today”—or “at this point”—because the mother and father had failed to sufficiently rehabilitate themselves. And it held that the children’s “tremendous need for permanency and stability” could not be met while preserving the parents’ rights within a permanent custody and guardianship arrangement. 

¶5 Six weeks after the termination order was entered, the adoptive placement with the uncle failed. The children returned to state custody in Utah. 

¶6 After the kinship placement failed, the father and mother filed motions for post-judgment relief. The mother sought 60(b)(6) relief in light of the “extraordinary circumstances” of the failure of the kinship placement. The father filed a 60(b)(6) motion on the same grounds. He also sought relief under 60(b)(5), asserting that the failed kinship placement meant that the judgment was “no longer equitable.” The juvenile court denied the motions. 

¶7 The mother and father appealed. The court of appeals certified the matter to this court based on a perceived need for our review of “a challenge to the current appellate standard of review in child welfare proceedings” and to consider “an issue regarding the effect of statutory changes on supreme court case law.” 

¶8 The mother and father raise different claims of error on appeal. The mother challenges only the juvenile court’s findings, made at an evidentiary permanency hearing and allegedly at a subsequent review hearing, that she appeared “under the influence” at various hearings. She asserts that a judge is not qualified to make such findings without expert testimony. And she contends that the court denied her due process of law by making the findings without giving her notice and an opportunity to be heard. 

¶9 The father challenges the juvenile court’s best interest determination2 and the court’s denial of his motions for post-judgment relief. As an initial matter, the father asks us to conduct de novo review of termination proceedings—and overturn the deferential standard of review established in State ex rel. B.R., 2007 UT 82, 171 P.3d 435. He also asks us to require specific factual findings and legal conclusions in parental rights termination orders. Regardless of our decision on the appropriate standard of review, the father contends that the juvenile court erred in concluding that termination of the father’s rights was “strictly necessary” to promote the “best interest” of the children. 

¶10 We affirm in part and reverse and vacate in part. First, we note that the mother’s claims are unpreserved and hold that she has failed to carry the burden of establishing plain error. Second, we reject the father’s request that we abandon a deferential standard of review of a best interest determination but find threshold legal errors in the juvenile court’s best interest analysis—in the assessment of whether the father had made sufficient progress in his rehabilitation under Utah Code section 78A-6-509(1)(b), and in the assessment of whether termination of parental rights is “strictly necessary” under Utah Code section 78A-6-507. Third, we vacate and remand for a new best interest determination under the law as clarified in this opinion. In so doing, we note that the mother failed to highlight the legal errors identified by the father in her briefs on appeal but conclude that the mother’s rights should be on the table on remand in the unique circumstances of this case. 

I 

¶11 The mother challenges the juvenile court’s findings that she appeared “under the influence” at court hearings. She asserts that the judge is not qualified to make such findings without expert testimony. And she claims that the court infringed her right to due process by making these findings without notice that the observations were being made and without affording her an opportunity to respond. 

¶12 None of these points was preserved in the juvenile court, however. To succeed on appeal, the mother would therefore need to make a showing of plain error—that “(1) an error exists; (2) the error should have been obvious to the trial court; and (3) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome.” State v. Low, 2008 UT 58, ¶ 20, 192 P.3d 867 (citations and internal quotation marks omitted).3 And the mother has failed to carry that burden. 

¶13 We have previously upheld a juvenile court’s legal conclusions based on observations of “outbursts” made in open court. In re T.E., 2011 UT 51, ¶¶ 44–45, 266 P.3d 739. And the juvenile court in this case did not even go so far as to make a legal conclusion. It relied on its observation of the mother in court to require her to be subjected to testing for substance use—a follow-up under a standing order requiring ongoing substance abuse testing.4 So we do not see how it could have been error—and certainly not an obvious error—for the court to use its observations as a basis for such testing where the mother’s sobriety was already at issue. 

¶14 Nor do we see a basis for concluding that any alleged error was prejudicial. In the termination order, the court refers to its “personal observations” of the mother only once—as a single consideration in a set of reasons supporting one of the five grounds for termination found by the court. And earlier in the proceedings, the court continued reunification services for the mother despite making a concurrent finding that “[t]hree quarters of the times the Mother is in court it appears she [is] under the influence of drugs”— and despite terminating reunification services as to the father in the same evidentiary permanency hearing. The mother has not established that there is any likelihood that her parental rights would not have been terminated if the juvenile court had not ordered testing on the basis of its observations, or if it had afforded the mother the right to respond that she asserts as a matter of due process. 

II 

¶15 The father challenges the termination of his parental rights on two grounds. He contends that the juvenile court erred in (a) concluding that termination of his rights was “strictly necessary” in the “best interest” of the children; and (b) denying his motions for post-judgment relief. We reverse on the first ground and decline to reach the second because it is mooted by our threshold decision. 

A 

¶16 The father prefaces his challenge to the juvenile court’s best interest analysis with a request that we overrule our longstanding case law on the standard of review of parental rights termination orders—requesting that we replace the established deferential standard of review with a de novo review for correctness. But we rejected parallel requests in two recent decisions. See In re G.D., 2021 UT 19, ¶¶ 1, 3, 491 P.3d 867; State ex rel. E.R., 2021 UT 36, ¶ 13, 496 P.3d 58. And the father has not identified a persuasive ground for reconsidering these decisions. 

¶17 In E.R. we clarified that the best interest inquiry is a fact-like “mixed determination of law and fact” that is subject to deferential review. 2021 UT 36, ¶¶ 17, 22. Appellate deference, of course, is not absolute. The juvenile court’s best interest analysis may be set aside if it is “against the ‘clear weight of the evidence.’” Id. ¶ 6. It is also subject to reversal where it is premised on a threshold legal error. See id. ¶ 16 (noting that we “afford [n]o deference” to the juvenile court’s “analysis of abstract legal questions” (alteration in original) (citation and internal quotation marks omitted)). 

¶18 We reverse the juvenile court’s termination of the father’s parental rights on this basis. The juvenile court’s order was infected by two legal errors. And those errors foreclose the usual basis for deference to the conclusion that termination of the father’s rights was “strictly necessary” in the “best interest” of the children under Utah Code section 78A-6-507(1) (2020).5 See Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 2020 UT 47, ¶ 78, 469 P.3d 1003 (citation omitted) (holding that a district court’s findings were not owed deference where they were “infected by legal error”). 

1 

¶19 In terminating the father’s parental rights, the juvenile court concluded that it would be “neglectful” to “[r]eturn[] the children to the Father today.” (Emphasis added.) It also found that a reunification of the children with the father would introduce a significant “safety risk” “at this time.” (Emphasis added.) And it raised the concern that the father might not “be successful outside of treatment” given the lack of “any indication of future success” based on “the Father’s past.” 

¶20 These statements are premised on legal error. In a case where the child is not in the parent’s physical custody, the court must consider a set of “specific considerations” in assessing whether termination is strictly necessary in the best interest of children. UTAH CODE § 78A-6-509. And the listed considerations include “the effort the parent or parents have made to adjust their circumstances, conduct, or conditions to make it in the child’s best interest to return [the child to the] home after a reasonable length of time.” Id. § 78A-6509(1)(b) (emphasis added). 

¶21 The statute does not establish a specific timeframe for parents to “adjust their circumstances, conduct, or conditions.” But it does afford a parent a “reasonable length of time” to make any necessary adjustments. And that requires the court to consider whether any needed adjustments were made within a reasonable time. 

¶22 The court retains a measure of discretion in deciding on the length of the “reasonable” time.6 But by statute it must exercise that discretion. And the juvenile court failed to do so here. It held that the father “ha[d] failed to appropriately adjust” his “circumstances, conduct, or conditions to make return in the children’s best interest.” In so doing, it failed to consider whether he had had a “reasonable length of time” to do so.7 And it exacerbated the problem by focusing on static assessments that it would be “neglectful” to “[r]eturn[] the children to the Father today” and would introduce a significant “safety risk” if they returned to him “at this time.” 

2 

¶23 The juvenile court also premised its termination decision on concerns about the “tremendous need for permanency and stability” of the children. It considered the possibility of preserving the father’s legal rights while awarding permanent custody to a guardian. But it rejected that move on the ground that it “would not . . . offer the same degree of permanency as an adoption,” given that a permanent guardianship could be terminated at the request of the guardian or at least subject to visitation by the father. And it held that this “lack of stability would be harmful for the children.” 

¶24 This too was error. The court was right to consider the feasibility of a permanent guardianship. See In re B.T.B., 2020 UT 60, ¶¶ 66–67, 472 P.3d 827 (explaining that the “strictly necessary” analysis requires consideration of the possibility of “feasible options” like awarding custody to a permanent guardian (citation and internal quotation marks omitted)). But it fell into legal error in concluding that this option would not provide the “same degree of permanency as an adoption.” That is not the question under our law. A permanent guardianship by definition does not offer the same degree of permanency as an adoption. And there is always some risk that the permanent guardianship could come to an end, or be affected by visitation by the parent. If these categorical concerns were enough, termination and adoption would be strictly necessary across the board. But such categorical analysis is not in line with the statutory standard. 

¶25 By statute, the juvenile court must assess whether a permanent guardianship can “equally protect[] and benefit[]” the children in the case before it. G.D., 2021 UT 19, ¶ 75 (citation omitted). That standard is not met by the categorical concern that a permanent guardianship is not as stable or permanent as an adoption. It requires analysis of the particularized circumstances of the case before the court. No such analysis is presented here. And the court’s categorical dismissal of the possibility of a permanent guardianship is a further ground for reversal of the juvenile court’s decision. 

B 

¶26 The above legal errors undermine our confidence in the juvenile court’s basis for terminating the father’s parental rights. They also foreclose the need for us to consider the father’s challenge to the denial of his motions for post-judgment relief. The correctness of the denial of those motions is mooted by our decision to reverse in light of the legal errors in the parental termination order. 

III 

¶27 The father has established that the juvenile court’s termination order was infected by the above-noted legal errors. That leaves the question of the effect of those errors on our disposition on appeal. We conclude that a remand to the juvenile court is appropriate. And we hold that both parents’ legal rights should be on the table on remand. 

A 

¶28 The juvenile court’s threshold legal errors foreclose the usual basis for deference to its factual findings and mixed determinations. In the face of such errors, an appellate court has at least two options. It may reverse and remand to the lower court for rehearing under a correct legal standard.8 Or it may review the lower court’s findings under a non-deferential standard of review.9 We take the former course of action here in light of the important role that our juvenile courts play in applying a complex body of law to a matter encompassing an extensive factual and procedural record. 

B 

¶29 In the parties’ briefing on appeal, only the father identified the above-noted legal errors as a basis for reversal. The mother’s appeal was limited to her challenge to the juvenile court’s findings that she appeared “under the influence” in court. 

¶30 The father urges this as a basis for concluding that the mother is foreclosed from participating in the proceedings on remand, or from having her rights on the table in a new “best interest” analysis in line with the refinements in our law set forth above. See supra ¶¶ 21–22, 24–25. He notes that a claim is generally waived if not raised on appeal. See State v. Johnson, 2017 UT 76, ¶¶ 15–16, 416 P.3d 443. And he asks us to hold that the mother forfeited her stake in a remand under claims of legal error that she failed to advance on appeal. 

¶31 The father’s position finds some threshold footing in our law. As a general rule, our courts respect the prerogatives of the parties in deciding which claims to pursue (or forgo) in litigation. See Utah Stream Access Coalition v. VR Acquisitions, LLC, 2019 UT 7, ¶¶ 36–37, 439 P.3d 593. In deference to those prerogatives, and in the interest of judicial economy and repose, the parties are generally stuck with the moves they make in litigation. Patterson v. Patterson, 2011 UT 68, ¶¶ 15–17, 266 P.3d 828. Our courts do not lightly second-guess the parties by reviving a claim they have forfeited by their pleading or briefing decisions.10  

¶32 The mother presumably would be foreclosed from participating in the proceedings on remand if she had failed to file an appeal.11 But the mother did file an appeal. And the father has cited no case law that controls in the unusual circumstances presented here—where two appellants filed briefs on appeal and one of them has identified a legal error that affected not just both of the appellants but also the interests of other parties to this proceeding (the children). 

¶33 In these circumstances, we are reluctant to give conclusive, controlling effect to the briefing decisions of the parties. The juvenile court’s legal missteps infected its decision to terminate both the father’s and the mother’s legal rights.12 And those missteps may bear significant consequences not just for the parents but for their children. The rights and interests of the parents and the children are not only substantial but intertwined. On remand, the decision whether to terminate one parent’s rights could be affected by the decision whether to terminate the other’s rights. And the decision whether one or both parents should retain their rights may have substantial bearing on the analysis of the best interest of the children.13  

¶34 With these concerns in mind, we conclude that the mother’s briefing decisions should not foreclose her from participating in the case on remand. Both parents’ legal rights should be on the table. 

¶35 In remanding, we are not foreclosing the possibility that concerns expressed in the juvenile court’s order—such as the risk and effects of domestic violence—may be a sufficient basis for termination of the parents’ legal rights. Nor are we suggesting that the parents have not yet had a “reasonable length of time” to adjust their “circumstances, conduct, or conditions.” On these and other points, we are simply holding that the juvenile court’s opinion is too affected by legal error to merit deference on appeal. And we are sending the matter back to the juvenile court to exercise its discretion under a correct formulation of the law. 

IV 

¶36 We vacate the juvenile court’s order terminating the parental rights of the parents. In so doing, we leave in place any threshold orders not challenged on appeal—such as the court’s order establishing the parents’ unfitness. But we remand the case for rehearing on the question whether termination of their parental rights is strictly necessary in the best interest of the children, under the governing legal standard as clarified in this opinion. 

http://www.utcourts.gov/opinions/view.html?court=supopin&opinion=In re J.L…20220224.pdf 

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After a divorce, should my kids be with me or with the mom?

First, you need to understand that you’re asking the wrong question.

Child custody is not a zero-sum game; otherwise stated, when parents divorce, or when unmarried parents separate, where you get the idea that the children must be in the custody of one parent or the other, but not in the joint custody of both?

Perhaps it has come from the idea you been taught most of your life that children of divorced or separated parents must spend the majority of their time in the custody of one parent. I’m 52 years old at the time I write this, and throughout my youth I was taught that very thing.

Not only were we taught the children should spend most of their time in the custody of just one parent, but we were taught that the parent that should be the “custodial” or primary custodial” parent was the mother. Almost always the mother. The mother, unless it could be proven that the mother was heinously unfit to have custody of the children. It was not uncommon to hear about perfectly good and decent fathers not being awarded custody or not being awarded joint physical custody of their children even when mom had a substance abuse problem or was physically and/or emotionally abusive.

The idea that children could be or should be cared for equally or as near to equally as possible by both parents was in the not so distant past unthinkable. The idea of children being cared for by their fathers was believed to be emotionally and psychologically damaging to children, especially very young children. The more research that is conducted on the subject, however, the more we learn that such thinking is wrong. I’ll be the first to admit that, especially in American culture, it seemed somewhat intuitive to believe that children might need or fare better in the care of their mothers instead of their fathers, but it turns out that’s false.

Unfortunately, the legal profession and the courts have been very slow to accept, let alone embrace, this fact. But things are changing in the legal profession and the courts, and at a comparatively rapid pace.

Now (I write this May 27, 2021), things are different, or I should say they are becoming different. As well they should be. Just as this country realized it made no sense to make the black man or woman sit at the back of the bus and that all citizens deserve fair and equal treatment under the law, it makes no sense to deny children of as much love and care and companionship of both of their loving, fit parents as possible.

To crib from C.S. Lewis a bit, asking which fit parent the children are better off with is like asking which blade of the scissors we’re better off with.

When children have to loving, caring parents who are physically and emotionally and financially capable of providing the minimally necessary levels of care their children require, there is no to deny children the benefits of being reared by both parents equally. Period.

I am a divorce lawyer in Utah. For those of you who are currently facing or who are contemplating a possible divorce or child custody dispute in Utah, you may find these statutory criteria that the courts are supposed to apply when making child custody determinations:

Utah Code:


Section 10
. Custody of a child — Custody factors.

Section 10.1. Definitions — Joint legal custody — Joint physical custody.

Section 10.2. Joint custody order — Factors for court determination — Public assistance.

And these sections are worth reviewing to get an idea of what the definitions of child custody are, whether that be legal custody or physical custody:


Section 33
. Advisory guidelines.

Section 34. Parent-time — Best interests — Rebuttable presumption.

Section 34.5. Supervised parent-time.

Section 35. Minimum schedule for parent-time for children 5 to 18 years old.

Section 35.1. Optional schedule for parent-time for children 5 to 18 years of age.

Section 35.2. Equal parent-time schedule.

Section 35.5. Minimum schedule for parent-time for children under five years of age.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/After-a-divorce-should-my-kids-be-with-me-or-with-the-mom/answer/Eric-Johnson-311

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How exactly does shared custody work? Does the child end up being like that kid from Jacqueline Wilson’s “The Suitcase Kid”?

How exactly does shared custody work? Does the child end up being like that kid from Jacqueline Wilson’s “The Suitcase Kid”?

The child certainly can be like the child (Andrea) from Jacqueline Wilson’s “The Suitcase Kid,” if under a shared parenting arrangement 1) the child divides his/her time living with both the father and mother and 2) each parent wants the child to live only with him/her and tries to persuade the child to do so.

But shared custody (also known as joint custody or—when the child spends equal time with both parents—joint equal or 50/50 custody) does not inexorably condemn the child to have a “Suitcase Kid” experience, as long as the parents place the happiness and mental and emotional health of the child above the parents’ respective self-interest. Treat your child the way you would want to be treated, were you in the child’s shoes!

It’s not popular these days to state what we all know: the best thing a fit parent can do for a child is to rear that child in a family in which that parent is married happily to the child’s other parent. Short of that, the next best thing a fit parent can do for a child is to ensure the child is reared as much as possible by both parents. Children of fit parents love both parents and want to be loved and cared for by both parents as much as possible (duh). Do it for them! They deserve it. It’s the least that divorced or separated parents can do for their children.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-exactly-does-shared-custody-work-Does-the-child-end-up-being-like-that-kid-from-Jacqueline-Wilsons-The-Suitcase-Kid/answer/Eric-Johnson-311

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In re Adoption of B.F.S – 2020 UT App 149 – venue for adoption vs. venue for petition for determination of rights

2020 UT App 149
THE UTAH COURT OF APPEALS
IN THE MATTER OF THE ADOPTION OF B.F.S., A PERSON UNDER EIGHTEEN YEARS OF AGE.
HEART TO HEART ADOPTIONS INC., Appellant.

Opinion
No. 20190933-CA
Filed November 5, 2020

Third District Court, Tooele Department
The Honorable Matthew Bates
No. 192300046

Lonn Litchfield, Attorney for Appellant

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and KATE APPLEBY concurred.

MORTENSEN, Judge:

¶1        Heart to Heart Adoptions Inc. (the Agency) appeals the district court’s denial and dismissal of its petition for a determination of rights and interests in B.F.S. (Child) and an order for temporary custody on the bases of improper venue and Child’s best interests. We reverse.

BACKGROUND

¶2        Child was born in Michigan in March 2019. Shortly thereafter, Child’s unwed mother executed a consent to Child’s adoption and relinquished Child to the Agency, a licensed child-placing agency in Utah. The Agency sought to place Child with potential adoptive parents in Minnesota. The Agency filed a petition in Utah’s Third District Court for a determination of rights, see Utah Code Ann. § 78B-6-109 (LexisNexis 2018), and for an order of temporary custody, see id. § 78B-6-134 (2018), to facilitate Child’s adoption.

¶3        Though the petition was unopposed, the court denied and dismissed it. Citing Utah Code section 78B-6-105(1), the court found that Utah was not a proper venue because Child was not born in Utah and the prospective adoptive parents did not reside in Utah. Citing Utah Code section 78B-6-102(1), the court also found that Child’s best interests were not served by resolution of the petition by a Utah court “that has no interest in the placement of [Child].”

¶4        The Agency appealed.[1] During oral argument, the Agency indicated the determination sought in the underlying action subsequently may have been adjudicated in another court. This court requested additional briefing on the issue of mootness. Following briefing, we conclude the public interest exception applies and proceed to resolve the issues appealed.[2]

 

ISSUES AND STANDARDS OF REVIEW

¶5        The Agency asserts that the district court erred in denying and dismissing the petition by arguing the court misinterpreted Utah Code section 78B-6-105(1). “We review questions of statutory interpretation for correctness, affording no deference to the district court’s legal conclusions.” In re adoption of B.N.A., 2018 UT App 224, ¶ 8, 438 P.3d 10 (cleaned up).

¶6        The Agency also contends that the court erred in denying and dismissing the petition based on the court’s determination of Child’s best interests under Utah Code section 78B-6-102(1). When reviewing a decision regarding a prospective adoptee’s best interests, we afford the district court’s decision “a high degree of deference.” In re J.M., 2020 UT App 52, ¶ 24, 463 P.3d 66 (cleaned up). We will reverse only for clear error, “which we find when the result is against the clear weight of the evidence or leaves us with a firm and definite conviction that a mistake has been made.” Id. (cleaned up).

ANALYSIS
I.

¶7        The Agency argues that the district court erred in dismissing the petition based on the court’s conclusion under Utah Code section 78B-6-105 that venue was improper in Utah. We agree.

¶8        To begin, the statute provides,

Adoption proceedings shall be commenced by filing a petition with the clerk of the district court either:

(a) in the district where the prospective adoptive parent resides;

(b) if the prospective adoptive parent is not a resident of this state, in the district where:

(i) the adoptee was born;

(ii) the adoptee resides on the day on which the petition is filed; or

(iii) a parent of the proposed adoptee resides on the day on which the petition is filed; or

(c) with the juvenile court as provided in Subsection 78A-6-103(1).

Utah Code Ann. § 78B-6-105(1) (LexisNexis 2018). In the case of In re adoption of B.N.A., 2018 UT App 224, 438 P.3d 10, we recognized that section 78B-6-105(1) is the venue statute for adoption proceedings. Id. ¶ 24. Adoption proceedings seek judicial acts creating a parent-child relationship and terminating the parental rights of others with respect to the proposed adoptee. See Utah Code Ann. § 78B-6-103(2) (2018); In re adoption of B.H., 2020 UT 64, ¶ 37. A determination of rights and interests in a child is not an adoption proceeding but is precursory to the adoption petition.[3] See Utah Code Ann. § 78B-6-109 (2018) (determination of rights prior to adoption petition). Therefore, the venue provision in section 78B-6-105 does not apply to a petition for a determination of rights under section 78B-6-109 brought pursuant to section 78B-6-134 for an order of temporary custody.

¶9 Neither section 78B-6-109 nor section 78B-6-134 contains a venue provision. Accordingly, a petition for a determination of rights and an order of temporary custody is controlled by the general catch-all venue provision. See Carter v. University of Utah Med. Center, 2006 UT 78, ¶ 12, 150 P.3d 467 (holding that the general catch-all venue provision applies when neither an act’s venue provision nor any other venue provision controls). That provision states, “In all other cases an action shall be tried . . . in any county designated by the plaintiff in the complaint,” “[i]f none of the defendants resides in this state.” Utah Code Ann. § 78B-3-307(1), (3) (LexisNexis 2018). The action in this case is not contested and has no defendants or respondents. As such, the Agency was entitled to adjudication of the petition in the district where it was filed. Accordingly, the district court erred in dismissing the petition for lack of venue.

II.

¶10 The Agency also contends the district court erred in denying and dismissing the petition based on the court’s determination of Child’s best interests under Utah Code section 78B-6-102(1). We agree.

¶11 Section 78B-6-102 sets out our legislature’s intent for the Utah Adoption Act, including the “desire . . . that in every adoption the best interest of the child should govern and be of foremost concern in the court’s determination.” Utah Code Ann. § 78B-6-102(1) (LexisNexis 2018). Assuming that this intent extends to the action at issue, we conclude it was in Child’s best interests for the district court to adjudicate the Agency’s petition.

¶12 The Agency is Utah based. As such, it is regulated by Utah law, and Utah has an interest in ensuring the Agency conducts its business accordingly. Likewise, Utah has an interest in ensuring the Agency receives the benefits and protections of Utah law. Utah also has an interest in protecting adoptees who are in the custody and control of Utah-based agencies, regardless of whether those adoptees are born in or placed with adoptive parents in Utah.

¶13 Additionally, “the state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner, [and] in preventing the disruption of adoptive placements.” Id. § 78B-6-102(5)(a); In re adoption of K.T.B., 2020 UT 51, ¶ 42, 472 P.3d 843 (quoting same); see also In re adoption of J.S., 2014 UT 51, ¶ 41, 358 P.3d 1009 (state’s strong interest in immediate and secure adoptions for eligible newborns); In re adoption of B.B.D., 1999 UT 70, ¶ 14, 984 P.2d 967 (state’s compelling interest in adoption process). And both the state and a child have a complementary interest in achieving “a determination that a child can be adopted” and doing so in a manner that is “final as well as immediate.” Wells v. Children’s Aid Society of Utah, 681 P.2d 199, 203 (Utah 1984), abrogated on other grounds by In re adoption of J.S., 2014 UT 51, 358 P.3d 1009; see also In re adoption of B.Y., 2015 UT 67, ¶¶ 32, 46 n.10, 356 P.3d 1215 (state’s interests in facilitating adoption expeditiously and speedily identifying persons to assume parental role). These interests are present whether the prospective adoptee originates from Utah, is intended to be placed in Utah, resides in Utah, or is in the custody and control of a Utah-based agency. Here, the Agency is Utah based and had custody and control of Child. Therefore, both the Agency and Child were entitled to the protections and benefits of Utah law.

¶14      The denial of the petition impeded the determination that Child could be adopted. The court’s order denied Child the stability the legislature sought to effectuate in passing the Utah Adoption Act. The court’s finding that the petition should be adjudicated in a “state in which the prospective parents live or the state in which the child was born or resides, not a state, like Utah, that has no interest in the placement of the child,” was therefore clearly erroneous.

CONCLUSION

¶15      We conclude that the district court erred in dismissing the Agency’s petition for a determination of rights and interests in Child and for an order of temporary custody on the grounds of venue. We also determine that the court clearly erred in so doing based on its determination of Child’s best interests. Reversed.

Utah Family Law, LC | divorceutah.com | 801-466-9277

——————-

[1] This action was unopposed at the district court and remains unopposed on appeal. In connection with proceedings that “involve[] the termination and creation of parental rights,” this action falls within “the constitutional grant of judicial power to the courts,” and it is appropriate for our court to review the action “despite the lack of adversariness.” In re Gestational Agreement, 2019 UT 40, ¶ 18, 449 P.3d 69.

[2] The Agency’s supplemental brief indicates that Child’s adoption was finalized in Minnesota in November 2019, arguably rendering this action moot. Nevertheless, because we conclude that the public interest exception applies in these circumstances, we reach the issues appealed. We recognize “an exception to the mootness doctrine when the case: (1) affects the public interest, (2) is likely to recur, and (3) because of the brief time that any one litigant is affected, is likely to evade review.” Timothy v. Pia, Anderson, Dorius, Reynard & Moss LLC, 2019 UT 69, ¶ 32, 456 P.3d 731 (cleaned up). The present appeal is one of three submitted to us on almost identical facts. In each case, the district court ruled that Utah courts could not entertain the petition for a determination of rights based on grounds addressed here. In each case, when the court denied relief, the Agency was forced to await the determination of rights in the courts of another state where the eventually identified adoptive parents resided. Accordingly, these issues are not only likely to recur, but have recurred. Additionally, awaiting appellate review delays the finalization of the adoption. Furthermore, these issues are important to Utah adoption agencies and potential adoptees, and will continue to evade review. Because facilitating the adoption of children in the custody and control of Utah adoption agencies is in the public interest, we exercise our discretion to reach the merits in this case.

[3] We note that adoption agencies do not always have prospective adoptive parents identified for a child when a petition is filed. Nonetheless, an agency has an interest in the determination of rights in a child to establish control and custody of the prospective adoptee and to facilitate a future adoption. It thus makes little sense to deny an adoption agency the benefit of the law based on a venue provision premised on the location of prospective adoptive parents—who may not have been identified yet. And the language of the statute does not dictate such an outcome. Although the legislature may amend the venue provision to expressly provide for venue in a district in which an adoption agency operates to prevent confusion, the absence of that language does not call for the result reached by the district court in this case.

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In re Adoption of B.H. – 2020 UT 64 – UCCJE and ICPC

This opinion is subject to revision before final publication in the Pacific Reporter

2020 UT 64

IN THE SUPREME COURT OF THE STATE OF UTAH

In the Matter of the Adoption of B.H.,
a person under eighteen years of age

P.H. and A.D., Respondents,

v.

C.S., Petitioner.

No. 20190560
Heard April 10, 2020
Filed September 16, 2020

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake
The Honorable Robert P. Faust
No. 162900039

Attorneys:
Jessica S. Couser, Holladay, Benjamin K. Lusty, Salt Lake City, for respondents
Julie J. Nelson, Salt Lake City, Lisa B. Lokken, Cottonwood Heights, for petitioner

JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.
JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION

¶1 This case involves an interstate adoption. At the time of the child’s birth, the child’s mother (Mother) was a Montana resident and gave birth to the child there. Mother chose to place the child for adoption with two Utah residents, the Respondents (Adoptive Parents). Because the adoption involved an interstate placement of the child, Mother and Adoptive Parents were required to comply with the Interstate Compact on the Placement of Children (ICPC). UTAH CODE §§ 62a-4a-701 to -711.

¶2 Mother and Adoptive Parents followed the ICPC process. However, on a required ICPC request form, Mother did not list the Petitioner (Father) as the child’s father, even though he was her husband at the time and therefore the child’s legal father. Mother and Father had been separated for quite some time, and she believed he was not the child’s biological father. On the request form, she listed as the child’s father the man she believed to be the biological father.

¶3 Adoptive Parents filed an adoption petition in Utah district court. After taking temporary custody of the child in Montana, they returned with the child to Utah. They soon learned that Mother might still be married to Father, and they served him with notice of the adoption petition. Father successfully intervened in the proceeding and sought custody of the child. Adoptive Parents petitioned to terminate Father’s parental rights within the adoption proceeding. In the meantime, a genetic test revealed that Father was not only the child’s legal father, he was the child’s biological father as well.

¶4 The district court held a bench trial and concluded that Father had abandoned the child and was an unfit parent. The court terminated his parental rights and then finalized the adoption. Father appealed.

¶5 Father argued in the court of appeals that the district court lacked jurisdiction over the termination proceeding under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). UTAH CODE §§ 78B-13-101 to –318. Father also argued that Mother’s failure to include him on the ICPC request form invalidated the adoption. The court of appeals rejected both arguments. But it set aside the adoption decree because it did not state that the requirements of the ICPC had been complied with, as required by the Adoption Act.[1] Accordingly, the court of appeals remanded to the district court for the court to address this insufficiency.

¶6 We granted Father’s petition for certiorari. We affirm.
BACKGROUND[2]

¶7 Mother and Father, both residents of Montana, were married in 2008. They eventually separated. Mother planned to file for divorce but had not yet done so when she learned she was pregnant. She was unsure who the biological father was, but she believed it was likely a man named D.G. She ultimately decided to place her child for adoption with Adoptive Parents, who are Utah residents. At the time of the adoption petition, Mother was legally married to Father.

¶8 Adoptive Parents filed a petition for adoption in Utah district court. The child was born in Montana four days later. Adoptive Parents traveled to Montana and were at the hospital within hours of the birth.

¶9 Because the adoption would involve placement of the child across state lines, the parties to the adoption were required to comply with the ICPC. Mother completed ICPC form 100A, titled Interstate Compact on the Placement of Children Request (request form). Notably, on the request form Mother identified D.G. as the child’s father. Both Mother and D.G. voluntarily relinquished their parental rights.

¶10 Mother appointed Adoptive Parents as temporary guardians. Once the child was discharged from the hospital, Adoptive Parents took custody of the child. They stayed for a few days in a Montana hotel before returning to Utah with the child. They moved for temporary custody in the Utah district court in which they had filed the adoption petition. The court granted the motion, effective as of the child’s date of birth.

¶11 Around this time, Adoptive Parents learned that Mother might still be married. They quickly sent notice of the adoption proceedings to Father. Father timely moved to intervene in the case. And the district court granted the motion.

¶12 While the adoption proceeding was pending in Utah, Father filed for divorce in Montana and listed the child “as a child of the marriage.” The Montana court ordered genetic testing of Father and the child pursuant to Montana law. The genetic test revealed that Father was the child’s biological father.

¶13 Adoptive Parents petitioned to terminate Father’s parental rights within the Utah adoption proceeding, pursuant to Utah Code sections 78B-6-112[3] and -133 of the Utah Adoption Act (Adoption Act). The district court held a bench trial on the termination petition. But the court paused before issuing its ruling and asked the parties to brief whether the court had jurisdiction to terminate Father’s parental rights in light of his Montana residency.[4]

¶14 Adoptive Parents argued that the district court had subject matter jurisdiction over the termination proceeding pursuant to the Adoption Act because the termination was “for the purpose of facilitating the adoption of the child.” (Citing UTAH CODE § 78B-6-112(1)).

¶15 In response to the district court’s briefing request, Father contested the court’s subject matter jurisdiction for the first time. He asserted that jurisdiction was governed not by the Adoption Act but by the UCCJEA. And he argued that under the UCCJEA, Montana was the child’s home state and should have jurisdiction over the termination proceeding. Father also asserted that because his name was not on the request form, the placement did not comply with the ICPC. According to Father, this was a jurisdictional defect.

¶16 The district court did not explicitly rule on the parties’ briefing. But it ultimately exercised jurisdiction over the termination proceeding. It ruled on the merits of the termination petition, finding that Father had abandoned the child and was an unfit parent due to his alcohol abuse, drug addiction, and extensive criminal history, among other things. The court then finalized the adoption.

¶17 In the adoption decree and the accompanying findings of fact and conclusions of law, the district court did not explicitly conclude that the requirements of the ICPC had been met, as required by the Adoption Act. See id. § 78B-6-107(1)(a). However, the district court did make some findings relevant to ICPC compliance, including that “[t]he pre-placement and post-placement adoptive evaluations have been filed with the Court, and they confirm that the adopting parents are fit to parent [the child]” and “Mother’s Relinquishment and ICPC forms from Montana have been filed with the court.” The court concluded that “[t]he requirements of [the Adoption Act] have been met.”

¶18 Father appealed. He argued that “Utah cannot terminate a parent’s rights in the context of an adoption without that court having acquired jurisdiction to do so under the UCCJEA.” In re Adoption of B.H., 2019 UT App 103, ¶ 16, 447 P.3d 110. As the court of appeals explained, “Father contends that, under these facts, jurisdiction under the UCCJEA is a prerequisite to jurisdiction under the Adoption Act.” Id.

¶19 The court of appeals rejected this argument. It noted that the UCCJEA explicitly states that it does not govern adoption proceedings. Id. ¶ 17. And it concluded that the Adoption Act “expressly confers subject matter jurisdiction to terminate parental rights for the purpose of facilitating an adoption.” Id. ¶ 12 (citing UTAH CODE § 78B-6-112(1)).

¶20 Father also asserted that the adoption was invalid because Mother failed to comply with the ICPC when she did not list him as the child’s father on the request form. The court of appeals agreed that this was a material deficiency, but it concluded it was not a jurisdictional defect. In re Adoption of B.H., 2019 UT App 103, ¶ 28. The court noted, however, that the Adoption Act requires that a final decree of adoption state that the ICPC “ha[s] been complied with.” Id. ¶ 26. Because the district court failed to make such a conclusion, the court of appeals set aside the decree. Id. ¶ 30. It remanded to the district court for additional factfinding regarding ICPC compliance. Id. It also stated that, if necessary, Adoptive Parents could “still undertake steps to comply with the ICPC prior to reinstating the adoption decree.” Id. ¶ 27 n.7.

¶21 Father petitioned for certiorari, which we granted. We exercise jurisdiction under Utah Code section 78A-3-102(3)(a).

ISSUES AND STANDARD OF REVIEW

¶22 The questions before us are: (1) whether the court of appeals erred in concluding compliance with the UCCJEA is not a prerequisite to a termination of parental rights within an adoption proceeding and in concluding the requirements of the UCCJEA would have been met in this case if it applied, and (2) whether the court of appeals erred in remanding for a determination of compliance with the ICPC.

¶23 “On certiorari, this court reviews the decision of the court of appeals for correctness, giving no deference to its conclusions of law.” State v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650.

ANALYSIS

¶24 Father argues that the court of appeals erred in concluding that the UCCJEA did not apply to the termination petition and the district court had subject matter jurisdiction based solely on the Adoption Act. We agree with the court of appeals that the UCCJEA does not govern jurisdiction over a termination petition brought under the Adoption Act.

¶25 Father also argues that the district court lacked subject matter jurisdiction because Mother failed to comply with the ICPC. Here as well, we agree with the court of appeals. The ICPC deficiency was not a jurisdictional defect. The ICPC does not purport to regulate jurisdiction among party states. And in the event of a violation of its terms, the remedy it provides is the potential for punishment of the alleged violator. It does not provide for the revocation of a child placement or the loss of jurisdiction in the receiving state.

¶26 We first address the applicability of the UCCJEA.

I. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

¶27 Father argues that the UCCJEA governs jurisdiction over the termination proceeding and that it confers jurisdiction upon Montana, not Utah. As the court of appeals observed, the UCCJEA states clearly that it does not apply to proceedings under the Adoption Act. UTAH CODE § 78B-13-103(2)(a). The premise of Father’s argument is that the termination of his parental rights is separate from the adoption proceeding, and that it falls under the Termination of Parental Rights Act. See id. §§ 78A-6-501 to –515. Specifically, Father asserts “Utah cannot terminate an out-of-state parent’s rights under the Termination of Parental Rights Act without the Utah court first having acquired jurisdiction to do so under the UCCJEA, even if the termination is in anticipation of an adoption.”

¶28 When a child custody determination involves parties from more than one state, the UCCJEA “exists to ‘[a]void jurisdictional competition and conflict with courts of other States.’” Nevares v. Adoptive Couple, 2016 UT 39, ¶ 11, 384 P.3d 213 (alteration in original) (citation omitted). Specifically, “the UCCJEA promotes a framework wherein a single state is vested with jurisdiction to make child custody determinations.” Id. And “a uniform set of rules . . . determine[s] which state is best positioned to adjudicate custody disputes.” Id. Under the UCCJEA, a court can exercise jurisdiction over an “initial child custody determination” if it is determined to be the “home state”[5] of the child, or in other limited circumstances. UTAH CODE § 78B­13-201(1). Once a state has exercised jurisdiction under the UCCJEA, that state has “exclusive, continuing jurisdiction” until neither the child nor a parent resides in the state, or the child and parents no longer have significant connections to the state. Id. § 78B-13-202(1). Father argues that Montana is the child’s home state under the UCCJEA, and therefore Utah lacks subject matter jurisdiction to terminate his parental rights.

¶29 Proceedings to terminate parental rights are considered “child custody proceedings” that are subject to the UCCJEA. Id. § 78B-13-102(4) (defining “child custody proceeding” to include termination of parental rights). So the UCCJEA would apply to a termination petition filed under the Termination of Parental Rights Act.

¶30 However, the UCCJEA expressly does not govern “an adoption proceeding.” Id. § 78B-13-103(2)(a). And it defines an adoption proceeding broadly as “any proceeding under Title 78B, Chapter 6, Part 1, Utah Adoption Act.” Id. § 78B-13-103(1). Adoptive Parents filed the termination petition under sections 112 and 133 of the Adoption Act, which provide a mechanism for termination of a person’s parental rights in connection with a contested adoption. Id. §§ 78B-6-112(1), (5), -133. The termination petition may either be “joined with a proceeding on an adoption petition,” id. § 78B-6-112(2)(a), or filed as a separate petition before or after the adoption petition is filed, id. § 78B-6-112(2)(b). But as Father notes, the grounds for termination are those found in the Termination of Parental Rights Act. See id. § 78B-6-112(5)(e).

¶31 Accordingly, the question before us is whether a termination petition filed under the Adoption Act is a “proceeding under [the Adoption Act],” which is not governed by the UCCJEA, or a proceeding under the Termination of Parental Rights Act, which is governed by the UCCJEA. This is a matter of statutory interpretation. The point of statutory interpretation “is to ascertain the intent of the legislature.” Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (citation omitted). Because the best evidence of legislative intent is the statute’s plain language, we begin there. Id.

¶32 Since we are assessing the interaction of two statutes, it is important to evaluate the statutory framework as a whole. We first examine the procedural and substantive features of a termination proceeding under the Termination of Parental Rights Act, and then make a comparison to a similar proceeding brought under subsections 112 and 133 of the Adoption Act.

A. Termination under the Termination of Parental Rights Act

¶33 Under the Termination of Parental Rights Act, “[a]ny interested party . . . may file a petition for termination of the parent-child relationship with regard to a child.”[6] UTAH CODE § 78A-6-504(1). Such a petition must be brought in the juvenile court. Id. § 78A-6-103(2)(e) (providing that “[t]he juvenile court has original jurisdiction over any proceeding concerning . . . the termination of the legal parent-child relationship in accordance with [the] . . . Termination of Parental Rights Act, including termination of residual parental rights and duties”).

¶34 After a petition has been filed, the petitioner must provide notice to “the parents, the guardian, the person or agency having legal custody of the child, and any person acting in loco parentis to the child.” Id. § 78A-6-506(1)(a). The notice must indicate the “(i) nature of the petition; (ii) time and place of the hearing; (iii) right to counsel; and (iv) right to appointment of counsel for a party whom the court determines is indigent and at risk of losing the party’s parental rights.” Id. § 78A-6-506(1)(b). Importantly, a parent whose rights are subject to being terminated is automatically a party to the proceeding and no intervention is required. See id. § 78A-6-506.

¶35 If the juvenile court terminates a parent’s rights in a child, the Termination of Parental Rights Act contemplates continued juvenile court involvement to find a permanent placement for the child.[7] Until that happens, the Act provides for review hearings at which the “agency or individual vested with custody of the child” reports on the “plan for permanent placement of the child” until the plan has been accomplished. Id. § 78A-6-512(2).

¶36 And although a termination “divests the child and the parents of all legal rights, powers, immunities, duties, and obligations with respect to each other,” id. § 78A-6-513(1), a termination under the Termination of Parental Rights Act does not completely foreclose reunification. A parent whose parental rights have been terminated may seek guardianship and reunification with the child under certain circumstances. Id. § 78A-6-511(6).

B. Termination under the Adoption Act

¶37 Conceptually, the Adoption Act treats the termination of any pre-existing parental rights in the child as part of an adoption. The Act defines an “adoption” not only as the creation of the relationship between the child and the adoptive parents, but also as the termination of the legal relationship between the child and any other person. Id. § 78B-6-103(2) (defining adoption as “the judicial act that: (a) creates the relationship of parent and child where it did not previously exist; and (b) . . . terminates the parental rights of any other person with respect to the child”).[8] In harmony with this definition of “adoption,” the Adoption Act provides a mechanism not only for the creation of a new parent-child relationship, but also for the termination of any other person’s rights in the child. In connection with the adoption of a child, a court has jurisdiction to terminate another person’s rights in the child if the person voluntarily relinquishes their parental rights, fails to intervene in the proceeding, is an unmarried biological father who has failed to perfect his parental rights, or the court determines the person is not the child’s parent. Id. § 78B-6-112(5)(a)–(d). And relevant here, if a person whose consent is required contests the adoption, the Act provides a mechanism for determining whether the person’s rights should be terminated. Id. §§ 78B-6-112(5)(e), -133.

¶38 A termination proceeding brought under the Adoption Act is procedurally different than such a proceeding brought under the Termination of Parental Rights Act. Notably, the Adoption Act provides that “a petition filed under [section 112] is subject to the procedural requirements of this chapter.” Id. § 78B­6-112(8).

¶39 First, jurisdiction varies between termination petitions brought under the two laws. As discussed, proceedings brought under the Termination of Parental Rights Act are within the juvenile court’s exclusive jurisdiction. Id. § 78A-6-103(2)(e). But termination petitions brought in connection with a contested adoption may be handled in the district court. Id. § 78B-6-112(1). A district court has jurisdiction over a termination proceeding only if it is brought to facilitate the adoption of a child. Id.

¶40 Additionally, the manner in which a parent whose rights are subject to termination learns of and becomes a party to the termination proceeding varies based on whether the petition arises under the Adoption Act or the Termination of Parental Rights Act. As explained above, supra ¶ 34, when a petition is filed under the Termination of Parental Rights Act, the petitioner must give notice to a parent whose rights are subject to termination. And the parent is automatically a party to the proceeding. Supra ¶ 34.

¶41 But that is not the case when the termination arises under the Adoption Act. A person in Father’s position, who is the presumed father of the child, must receive notice of the adoption petition. UTAH CODE § 78B-6-110(2)(a), (h). The required content of this notice differs from that required by the Termination of Parental Rights Act. Compare id. § 78B-6-110(5), with id. § 78A-6-506(1)(b). The Adoption Act requires that the notice contain specific information unique to an adoption proceeding, including: (1) the intervention requirements in subsection 110(6)(a);[9] (2) the consequences for failing to intervene listed in subsection 110(6)(b);[10] and (3) where a copy of the petition for adoption may be acquired. Id. § 78B-6-110(5)(c)– (d), (f).

¶42 Although a presumed father of a child must be notified of an adoption petition, he is not automatically a party to the adoption proceeding. He must move to intervene. Id. § 78B-6­110(6)(a). And “[a]n individual who files a motion to intervene in an adoption proceeding . . . is not a party to the adoption proceeding, unless the motion to intervene is granted.” Id. § 78B-6-141(5)(a)(i). Unlike a proceeding under the Termination of Parental Rights Act, if the presumed father does not intervene the court may terminate his rights in the child without him ever being a party to the proceeding. Id. § 78B-6-112(5)(c).

¶43 Finally, in some ways the two laws provide for substantively different proceedings. The proceedings are similar in that the grounds for termination are the same under both acts. See id. §§ 78A-6-507, 78B-6-112(5)(e). The Adoption Act cross-references the factors that are found in the Termination of Parental Rights Act. Id. § 78B-6-112(5)(e).

¶44 But because terminations under the Termination of Parental Rights Act do not necessarily include a permanent placement for the child, that Act contemplates continued juvenile court review hearings until a permanent placement is found. Supra ¶ 35. And it does not completely foreclose reunification. Supra ¶ 36.

¶45 In contrast, when parental rights are terminated under the Adoption Act and the court enters an adoption decree, that Act does not provide for continued court involvement. A new parent-child relationship has been formed. Id. § 78B-6-103(2)(a)– (b). The former parent’s rights in and obligations to the child are extinguished. Id. § 78B-6-138. And there is no provision for reunification with the parent whose rights were terminated.

¶46 In sum, when a potential adoptive parent petitions for a termination of another’s parental rights under the Adoption Act, except for the cross-reference to the grounds for termination, the petitioner follows the provisions of the Adoption Act, not the parallel provisions of the Termination of Parental Rights Act. And in numerous ways, those provisions are different.

C. Adoptive Parents’ Petition

¶47 Here, Adoptive Parents filed the petition to terminate Father’s parental rights under the Adoption Act. See id. §§ 78B-6-112(1), -133. It was filed in the district court as part of the adoption proceeding. See id. § 78B-6-112(2)(a). The district court had jurisdiction over the termination proceeding only because Adoptive Parents sought the termination to facilitate the adoption of the child. See id. § 78B-6-112(1). Adoptive Parents initially notified Father of the adoption petition as required by the Adoption Act. See id. § 78B-6-110(2), (5). And Father had to move to intervene to be included in the proceeding. See id. § 78B-6­110(6)(a). He was not automatically a party as he would have been had the termination been brought under the Termination of Parental Rights Act.

¶48 Yet Father argues the termination is a proceeding under the Termination of Parental Rights Act, even though it was brought under the Adoption Act, because the Adoption Act references the grounds for termination outlined in the Termination of Parental Rights Act.[11] See id. § 78B-6-112(5)(e). We disagree with Father’s reasoning. The Adoption Act’s cross-reference to the grounds for termination found in the other act does not mean that a contested termination brought under the Adoption Act actually arises under the Termination of Parental Rights Act. See Anderson v. Anderson, 416 P.2d 308, 309–10 (Utah 1966) (concluding where one statute merely cross-references another statute, the entirety of that referenced statute is not necessarily incorporated into the other). It means only that the same considerations apply whenever a termination is sought, whether or not it is in connection with an adoption. The cross-reference to the shared grounds for termination does not take this proceeding outside of the Adoption Act.

¶49 We conclude that the language and structure of the Adoption Act make clear that a termination petition such as the one here, which is brought under sections 112 and 133 in connection with an adoption, is a proceeding under the Adoption Act. The Adoption Act contemplates that an adoption involves both the judicial act that “creates the relationship of parent and child where it did not previously exist,” and “terminates the parental rights of any other person with respect to the child.” UTAH CODE § 78B-6-103(2). And the Act establishes a particular framework that permits potential adoptive parents to petition for termination if the adoption is contested.[12] Id. §§ 78B-6-112, -133.

¶50 Accordingly, we conclude that the instant termination petition and related proceedings are “adoption proceedings” as defined in the UCCJEA. We affirm the court of appeals’ determination that the UCCJEA does not govern subject matter jurisdiction here. Because we find the UCCJEA inapplicable, we do not address whether the court of appeals erred in concluding that the requirements of that statute would have been met if it did apply.

II. INTERSTATE COMPACT ON THE PLACEMENT OF

CHILDREN

¶51 We now address Father’s argument that the court of appeals erred in remanding the case to the district court for supplemental factfinding regarding compliance with the ICPC. The court of appeals concluded that Mother’s ICPC request form was defective because she listed D.G. instead of Father as the child’s father. In re Adoption of B.H., 2019 UT App 103, ¶ 28, 447 P.3d 110. But the court held that this defect did not deprive the district court of jurisdiction or otherwise require dismissal of the adoption petition. Id. However, because the district court did not include a conclusion that the ICPC “ha[d] been complied with” in the adoption decree— as required by the Adoption Act, UTAH CODE § 78B-6-107(1)(a)—the court of appeals set aside the decree. In re Adoption of B.H., 2019 UT App 103, ¶ 30. It then remanded to the district court for additional factfinding, and if necessary to give Adoptive Parents an opportunity to cure the ICPC deficiency before moving for reinstatement of the decree. Id. ¶ 27 n.7. Neither party has contested the court of appeals’ determination that the ICPC request was materially defective, so that issue is not before us.

¶52 Father contends it was error for the court of appeals to remand to the district court for additional factfinding and to permit the Adoptive Parents to cure the ICPC deficiency if necessary. He asserts that the ICPC must be complied with before filing an adoption petition and that the failure to do so constitutes an irreparable jurisdictional defect. He contends that because the ICPC notice was defective, Mother’s attempt to invoke the jurisdiction of Utah courts is invalid and the deficiency can no longer be cured.[13] Father asserts that this means Montana has jurisdiction over the child and that any new ICPC request must be filed in Montana.

¶53 We agree with the court of appeals that the deficient ICPC request form does not deprive the Utah court of jurisdiction. A reading of the ICPC reveals that it does not purport to govern jurisdiction among party states or strip jurisdiction from a receiving state as a remedy for a violation of its terms.

¶54 The ICPC “provides a uniform legal framework for the placement of children across State lines in foster homes and[] adoptive homes.” CRS REPORT FOR CONGRESS, RL32070, INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN: ICPC, 1 (2003). It is a compact among party states[14] “to cooperate with each other in the interstate placement of children” to ensure that (1) children requiring placement “receive the maximum opportunity to be placed in a suitable environment”; (2) the receiving state “may have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child”; (3) the sending state “may obtain the most complete information on the basis of which to evaluate a projected placement before it is made”; and (4) “[a]ppropriate jurisdictional arrangements for the care of the children will be promoted.” UTAH CODE § 62A-4a-701 art. I(1)–(4). Its “chief function . . . is to protect the interests of children and of the States by requiring that certain procedures be followed in the making and the maintenance of interstate child placements.” CRS REPORT FOR CONGRESS, RL32070, INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN: ICPC, 1 (2003).

¶55 To this end, the ICPC requires that a “sending agency” comply with its terms and with any applicable laws of the receiving state that govern the placement of children in that state. UTAH CODE § 62A-4a-701 art. III(1). A “sending agency” is:

[A] party state, officer, or employee thereof; a subdivision of a party state, or officer or employee thereof; a court of a party state; a person, corporation, association, Indian tribe, charitable agency, or other entity which sends, brings, or causes to be sent or brought any child to another party state.

Id. § 62A-4a-701 art. II(2). Here, Mother is the “sending agency” because she is the “person” who caused the child to be sent to Utah with Adoptive Parents.

¶56 Father is correct that Mother was required to comply with the ICPC before sending the child to Utah with Adoptive Parents. See id. § 62A-4a-701 art. III(2) (requiring compliance “[p]rior to sending, bringing, or causing any child to be sent or brought into a receiving state for placement”).

¶57 However, it does not follow that her deficient attempt to do so constitutes an irreparable jurisdictional defect. The ICPC addresses the consequences of a failure to comply with its terms, and none of them involve transferring jurisdiction over the child from the receiving state to the sending state or reversing a child placement. The ICPC provides that a violation of its provisions constitutes a violation of “the laws respecting the placement of children” of both the sending state and the receiving state. Id. § 62A-4a-701 art. IV. And such a violation “may be punished or subjected to penalty in either jurisdiction in accordance with its laws.” Id. Father does not identify a law in either state that would require a reversal of the placement or a loss of jurisdiction in Utah under the circumstances here.

¶58 Additionally, the ICPC provides that in the case of a violation by a sending agency, “any violation shall constitute full and sufficient grounds for the suspension or revocation of any license, permit, or other legal authorization held by the sending agency which empowers or allows it to place, or care for children.” Id. Notably, this provision focuses on penalties and punishments directed at the noncompliant entity. It does not provide for reversing the placement that resulted from the violative behavior or the loss of jurisdiction over the child in the receiving state. We agree with the court of appeals that the penalties for noncompliance contemplated in the ICPC do not “divest the district court of jurisdiction.” In re Adoption of B.H., 2019 UT App 103, ¶ 28.

¶59 Father also asserts that because Mother’s attempt to invoke the jurisdiction of Utah courts was lacking, the sending jurisdiction retains jurisdiction. But that is incorrect. One provision of the ICPC speaks to “retention of jurisdiction.” See UTAH CODE § 62A-4a-701 art. V. It states,

The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment, and disposition of the child which it would have had if the child had remained in the sending agency’s state, until the child is adopted, reaches majority, becomes self-supporting, or is discharged with the concurrence of the appropriate authority in the receiving state.

Id. § 62A-4a-701 art. V(1) (emphasis added). This preserves the sending agency’s jurisdiction over the child, not the sending state’s jurisdiction over the child.[15] Here, that is Mother; not Montana.[16]

¶60 Father also argues that because the Adoption Act requires compliance with the ICPC, the adoption is invalid because of the defective ICPC request. Father is correct that the Adoption Act requires compliance with the ICPC. See id. § 78B-6-107(1)(a) (stating “in any adoption proceeding . . . the court’s final decree of adoption shall state that the requirements of [the ICPC] have been complied with”). However, the Adoption Act does not provide for a dismissal of the adoption petition or a loss of jurisdiction as a result of noncompliance.

¶61 The provision of the Adoption Act that most closely addresses the circumstances here functions similarly to the ICPC— it provides for remedies against the alleged wrongdoer. Utah Code section 78B-6-106(2) states,

Any person injured by fraudulent representations or actions in connection with an adoption is entitled to pursue civil or criminal penalties in accordance with existing law. A fraudulent representation is not a defense to strict compliance with the requirements of this chapter and is not a basis for dismissal of a petition for adoption, vacation of an adoption decree, or an automatic grant of custody to the offended party. Custody determinations shall be based on the best interests of the child, in accordance with the provisions of Section 78B-6-133.

(Emphasis added.) Accordingly, even assuming Mother knowingly made a fraudulent misrepresentation on the ICPC request form, the Adoption Act explicitly rejects dismissal of the petition or transfer of custody to Father as a consequence.

¶62 We agree with the court of appeals that the ICPC deficiency in this case is not a jurisdictional defect. Neither the ICPC nor the Adoption Act provides for a loss of jurisdiction in the Utah district court or a dismissal of the adoption petition under these circumstances.

¶63 Even so, we also agree with the court of appeals that it is necessary to set aside the adoption decree in its current form and remand to the district court for further proceedings. The Adoption Act requires that the district court state in the adoption decree that the ICPC was complied with. And although the district court concluded that the requirements of the Adoption Act had been met, the court did not support this conclusion with the necessary determination of ICPC compliance.

¶64 As we have explained, this deficiency is not a jurisdictional defect. Neither the ICPC nor the Adoption Act requires dismissal of the petition or a loss of jurisdiction in the district court. But the fact remains that the district court’s conclusions of law in support of the adoption decree are insufficient. Accordingly, we set aside the decree and remand to the district court for further proceedings. We leave the form and scope of those proceedings to the district court’s discretion.

CONCLUSION

¶65 We affirm. We agree with the court of appeals that the Adoption Act rather than the UCCJEA governs subject matter jurisdiction over the termination petition. Accordingly, the district court had subject matter jurisdiction over this proceeding. We also conclude that the deficient ICPC request form is not a jurisdictional defect under the ICPC or the Adoption Act. However, the district court’s conclusions of law in support of the adoption decree were inadequate. We set aside the adoption decree and remand to the district court for further proceedings consistent with this opinion.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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[1] The Adoption Act requires that, “the court’s final decree of adoption shall state that the requirements of Title 62A, Chapter 4a, Part 7, Interstate Compact on Placement of Children, have been complied with.” UTAH CODE § 78B-6-107(1)(a).

[2] “On appeal from a bench trial, we view and recite the evidence in the light most favorable to the trial court’s findings.” Utah State Tax Comm’n v. See’s Candies, Inc., 2018 UT 57, ¶ 5 n.2, 435 P.3d 147 (citation omitted).

[3] This provision has since been amended by 2020 Utah Laws Ch. 392 (S.B. 170). However, the changes to this section are not substantive, so we cite to the current version of the code.

[4] The parties briefed both subject matter and personal jurisdiction and some additional arguments that they do not raise on appeal. We describe only the arguments that are relevant to the issues before us.

[5] A “home state” is defined as:

[T]he state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

UTAH CODE § 78B-13-102(7).

[6] However, if the petition to terminate parental rights is brought on behalf of the Division of Child and Family Services, it must be brought by the attorney general. UTAH CODE § 78A-6­504(2).

[7] The court may “place the child in the legal custody and guardianship of a licensed child placement agency or the division for adoption” or “make any other disposition of the child authorized under Section 78A-6-117.” Id. § 78A-6-511(2). And if a suitable adoptive placement is not available, the juvenile court must determine whether there is a relative who desires to adopt the child; may order a search to determine whether there are relatives who are willing to adopt the child; and if such a relative is located, make a finding as to whether the relative is fit to adopt the child, and place the child for adoption with the relative unless it is not in the child’s best interest to do so. Id. § 78A-6-511(4).

[8] We note the definition includes two exceptions that apply to an adoption by a person who is married to one of the biological parents. As that is not the situation here, we do not address those exceptions.

[9] Id. § 78B-6-110(6)(a) (“A person who has been served with notice of an adoption proceeding and who wishes to contest the adoption shall file a motion to intervene in the adoption proceeding: (i) within 30 days after the day on which the person was served with notice of the adoption proceeding; (ii) setting forth specific relief sought; and (iii) accompanied by a memorandum specifying the factual and legal grounds upon which the motion is based.”).

[10] Id. § 78B-6-110(6)(b) (“A person who fails to fully and strictly comply with all of the requirements described in Subsection (6)(a) within 30 days after the day on which the person was served with notice of the adoption proceeding: (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.”).

[11] He acknowledges that certain types of termination arise under the Adoption Act—for example, a voluntary relinquishment or a failure to intervene. Id. § 78B-6-112(5)(a)–(c).

[12] Father argues that if we conclude the Adoption Act unambiguously permits the district court to exercise its jurisdiction to terminate an out-of-state parent’s parental rights without first complying with the UCCJEA, we should reject such a reading as absurd. We “will not apply the absurdity doctrine unless ‘the operation of the plain language . . . [is] so overwhelmingly absurd that no rational legislator could have intended the statute to operate in such a manner.’” Bagley v. Bagley, 2016 UT 48, ¶ 28, 387 P.3d 1000 (alterations in original) (citation omitted). So the absurdity doctrine applies “only if the legislature could not reasonably have intended the result.” Id. But it appears that the legislature did intend for Utah district courts to exercise jurisdiction over adoption proceedings potentially involving out-of-state individuals whose consent is required, such as Father. The Adoption Act states that “[i]f a person whose consent for the adoption is required . . . cannot be found within the state, the fact of the minor’s presence within the state shall confer jurisdiction on the court in proceedings under this chapter as to such absent person,” provided the person was given proper notice. UTAH CODE § 78B-6-105(4)(a). Service of notice also vests the court with jurisdiction over the person. Id. § 78B-6-105(5). Of course, in such circumstances the person whose consent is required will not necessarily give it. This provision seems to necessarily contemplate Utah courts exercising jurisdiction in an adoption proceeding involving an out-of-state person whose consent is required, which could lead to a contested termination proceeding. Accordingly, we reject Father’s absurdity argument.

[13] The court of appeals also observed that Mother might have complied with the ICPC through a cover letter that identified Father as her husband, but this document was not submitted in the district court. So Father argues that the court of appeals should not have remarked upon this letter. We do not consider this letter in our analysis.

[14] The ICPC “is a statutory agreement between all [fifty] states, the District of Columbia and the US Virgin Islands.” Am. Pub. Hum. Servs. Ass’n, ICPC FAQ’S,

https://aphsa.org/AAICPC/AAICPC/icpc_faq_2.aspx#:~:text=T%20he%20Interstate%20Compact%20on%20the%20Placement%20of%%2020Children%20(ICPC)%20is,and%20the%20US%20Virgin%20Islan%20ds.&text=It%20sets%20forth%20the%20requirements,be%20place%20d%20out%20of%20state%20(last%20visited%20July%2023,%202020). (last visited July 23, 2020).

[15] 15 This provision is concerned with the child’s care, not jurisdiction between member states. It preserves the sending agency’s jurisdiction over and financial responsibility for the child until another individual or entity, including the child, assumes responsibility for the child or the child “is discharged with the concurrence of the appropriate authority in the receiving state.” UTAH CODE § 62A-4a-701 art. V(1).

[16] 16 Father relies on In re Adoption of T. M. M. for support. 608 P.2d 130 (Mont. 1980). In that case, the prospective adoptive parents did not comply with the ICPC at all. Id. at 133. The biological mother, who had relinquished her parental rights, challenged the adoption and sought to revoke her own relinquishment. Id. at 132. The Montana Supreme Court held that “the failure of the prospective adoptive parents to comply with the terms and procedures of the [ICPC] constitute[d] full and sufficient grounds for the revocation of the parent’s consent.” Id. at 134 (internal quotation marks omitted). The Montana Supreme Court appears to have equated the revocation of the mother’s consent with the “suspension or revocation of any license, permit, or other legal authorization held by the sending agency.” Id. (citation omitted). We are not inclined to adopt this interpretation of the language of the ICPC.

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Can I petition the courts for custody of a child who is homeless?

Yes. In the jurisdiction where I practice family law, there are several ways to seek and obtain custody of child who is not your biological offspring:

  • petition for guardianship
  • petition to terminate parental rights/petition for adoption
  • request for child protective order

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Can-I-petition-the-courts-for-custody-of-a-child-who-is-homeless/answer/Eric-Johnson-311

Tags: , , , ,

Can I petition the courts for custody of a homeless child?

Yes. In the jurisdiction where I practice family law, there are several ways to seek and obtain custody of child who is not your biological offspring:
  • petition for guardianship
  • petition to terminate parental rights/petition for adoption
  • request for child protective order

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Can-I-petition-the-courts-for-custody-of-a-child-who-is-homeless/answer/Eric-Johnson-311

Tags: , , , , , , , , , , ,

In re adoption of B.H. – 2019 UT App 103 – UCCJEA and ICPC

In re adoption of B.H. 2019 UT App 103

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ADOPTION OF B.H., A PERSON UNDER EIGHTEEN YEARS OF AGE.P.H. AND A.D.,
Appellees,

v.

C.S.,
Appellant.

Opinion No. 20171038-CA
Filed June 13, 2019
Third District Court, Salt Lake Department

The Honorable Robert P. Faust
No. 162900039

Julie J. Nelson, Alexandra Mareschal, and Lisa Lokken, Attorneys for Appellant
Jessica S. Couser and Benjamin K. Lusty, Attorneys for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBYconcurred.

MORTENSEN, Judge:

¶1        Although M.S. (Mother) and C.S. (Father) had been married since 2008, Mother claimed that a man other than Father (Purported Father) was the biological parent of B.H. (Child), who was born in Montana in early 2016. Within one week of Child’s birth, Mother voluntarily relinquished her parental rights and Child was placed into the custody of P.H. and A.D (Adoptive Parents), who resided in Utah. Adoptive Parents filed a petition for adoption in the State of Utah. Father was served notice of the adoption proceedings and he intervened in the action. After a bench trial, the district court terminated Father’s parental rights and finalized the adoption. On appeal, Father argues that (1) the district court lacked subject matter jurisdiction to terminate his parental rights and (2) the district court erred in finalizing the adoption because the Interstate Compact on the Placement of Children (ICPC)[1] request form, filled out by Mother, was materially deficient in that it listed Purported Father, rather than Father, as the parent of Child. We conclude that the district court had jurisdiction, but set aside the adoption decree and remand for additional findings and conclusions on compliance with the ICPC.

BACKGROUND

¶2        Child was born in Montana on January 30, 2016. Less than one week after Child’s birth, Mother and Purported Father voluntarily relinquished their parental rights and consented to place Child for adoption with Adoptive Parents, who resided in Utah. Child was discharged from the hospital and placed into the custody of Adoptive Parents on February 5, 2016. Adoptive Parents remained in Montana until an ICPC request form 100A, listing Mother and Purported Father as Child’s parents, was approved by all the required ICPC administrators on February 9, 2016.[2] The record indicates that Adoptive Parents transported Child to Utah the next day, on February 10, 2016.

¶3        Adoptive Parents initiated adoption proceedings by filing a petition (Adoption Petition) on January 26, 2016. On February 10, 2016, Adoptive Parents filed a Motion for Temporary Custody of Child and indicated that they had “recently learned that [Mother] is still technically married to [Father]” and Adoptive Parents were “working on determining paternity and/or providing notice to address any legal interests [of Father].” The district court granted temporary custody of Child to Adoptive Parents the next day (Temporary Custody Order).

¶4        On February 22, 2016, Adoptive Parents sent notice of the adoption proceedings to Father. Father intervened two weeks later.

¶5        Meanwhile, Father filed for divorce from Mother in Montana on March 14, 2016. As part of the divorce, the Montana court ordered genetic testing of Father and Child, which determined that Father was Child’s biological parent.

¶6      On June 29, 2016, Adoptive Parents petitioned the district court—in the adoption proceedings—to terminate Father’s parental rights (Termination Petition). The district court held a bench trial on the Termination Petition on July 31, 2017. After the trial, but before ruling on Father’s parental rights, the district court ordered the parties to file a memorandum addressing whether the court had jurisdiction to terminate Father’s parental rights. The district court concluded that it had jurisdiction under Utah Code section 78B­6-105, terminated Father’s parental rights, and finalized the adoption.

¶7        Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶8        Father raises two issues. First, he contends that the district court erred in concluding that it had jurisdiction to terminate his parental rights. Issues concerning jurisdiction are reviewed for correctness and we grant no deference to the district court’s conclusion. State v. Wynn, 2017 UT App 211, ¶ 11, 407 P.3d 1113; see also State v. Nicholls, 2006 UT 76, ¶ 3, 148 P.3d 990; In re A.J.B., 2017 UT App 237, ¶ 12, 414 P.3d 552.

¶9        Second, Father contends that the district court erred in finalizing the adoption, because the ICPC was not complied with. “‘The proper interpretation and application of a statute is a question of law which we review for correctness . . . .’” In re P.F.B., 2008 UT App 271, ¶ 10, 191 P.3d 49 (omission in original) (quoting Gutierrez v. Medley, 972 P.2d 913, 914–15 (Utah 1998)).

ANALYSIS

I. Jurisdiction

¶10 Father contends that the district court erred in terminating his parental rights, because the court lacked jurisdiction under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).[3] Father also contends that the court lacked jurisdiction under the Utah Adoption Act, see generally Utah Code Ann. §§ 78B-6-101 to -146 (LexisNexis 2018),[4] because, under these facts, jurisdiction under the UCCJEA must be established as a prerequisite to jurisdiction under the Adoption Act. We review jurisdictional requirements under the Adoption Act and UCCJEA in turn.

A. Adoption Act

¶11 The Adoption Act confers jurisdiction over adoption proceedings “in the district where the prospective adoptive parent resides.” Utah Code Ann. § 78B-6-105(1)(a) (LexisNexis 2018). Thus, as an initial matter, where Adoptive Parents reside in Utah and the Adoption Petition was filed in Utah, the district court below properly exercised jurisdiction under the Adoption Act. But Father argues that the district court lacked jurisdiction to terminate his parental rights under the Adoption Act “because the termination proceeding is not itself the adoption proceeding.” This argument is unavailing for two reasons.

¶12 First, the Adoption Act expressly confers subject matter jurisdiction to terminate parental rights for the purpose of facilitating an adoption. Id. § 78B-6-112(1). Section 78B-6-112 also expressly states that a petition to terminate parental rights may be “(a) joined with a proceeding on an adoption petition; or (b) filed as a separate proceeding before or after a petition to adopt the child is filed.” Id. § 78B-6-112(2). Here, Adoptive Parents initiated the adoption proceedings by filing the Adoption Petition in January 2016. And in June 2016, Adoptive Parents filed the Termination Petition in the same adoption proceedings. Because the Adoption Act expressly provides for jurisdiction over a petition to terminate parental rights when that petition is filed within an adoption proceeding, and because that procedure was followed here, we conclude that the district court had jurisdiction over both the Adoption Petition and the Termination Petition.

¶13 Father cites the dissenting opinion in Osborne v. Adoption Center of Choice, 2003 UT 15, 70 P.3d 58, to support his argument that the termination proceeding was separate from the adoption proceedings. See id. ¶ 53 (Durham, J., dissenting) (“[A determination of parental rights] is not an adoption proceeding, but a separate proceeding that precedes an adoption proceeding.” (cleaned up)). This argument falls short for two reasons. First, despite the dissent’s position in Osborne, the majority held that the district court did not exceed its jurisdiction by making a parental-rights determination within the adoption proceedings. Id. ¶¶ 12–13, 29 (majority opinion). Second, the relevant portion of the Utah Code in effect at the time Osborne was decided provided that a petition for determination of parental rights may be filed “‘at any time prior to the filing of a petition for adoption.’” Id. ¶ 45 (Durham, J., dissenting) (emphasis added) (quoting Utah Code Ann. § 78-30-4.24 (2002)). However, this provision was amended after Osborne and permits a determination of parental rights to be requested by petition any time prior to the “finalization of an adoption,” id. § 78B-6-109(1)(a)–(b) (LexisNexis 2018) (emphasis added), or by motion within an adoption proceeding, id. § 78B-6-109(2). Accordingly, because precedent and the applicable Utah statute allow for a determination of parental rights within an adoption proceeding, we conclude that Father’s argument is without merit.

¶14 Second, the district court in this case had jurisdiction to terminate Father’s parental rights, despite the fact that he resides in Montana, because Father received notice of the adoption proceedings and intervened. The Adoption Act provides that “the fact of the minor’s presence within the state shall confer jurisdiction . . . , provided that due notice has been given in accordance with the Utah Rules of Civil Procedure.” Id. § 78B-6-105(4)(a); cf. Beltran v. Allan, 926 P.2d 892, 898 (Utah Ct. App. 1996) (holding that an out-of-state father was subject to Utah’s statutory scheme and therefore required to file notice of paternity because he was on notice that the mother was in Utah to place their child for adoption). Here, Father received notice of the adoption proceedings on February 22, 2016. Specifically, he was served notice that (1) adoption proceedings had been filed in Utah, (2) he could intervene in the adoption proceedings, and (3) his failure to intervene would result in a waiver and forfeiture of all rights in relation to Child. This notice was sufficient to confer jurisdiction to the district court under section 78B-6-105(4)(a) of the Adoption Act.

¶15 The exercise of jurisdiction over a non-resident is not unique to this case. Our supreme court in In re adoption of B.B.D., 1999 UT 70, 984 P.2d 967, held that when a non-resident father intervened in adoption proceedings, he “voluntarily invoked and submitted to the jurisdiction of Utah, its laws, and its court system.” Id. ¶ 29. This holding illustrates that when an out-of-state father intervenes in adoption proceedings, he has not only waived personal jurisdiction but also submitted to Utah’s laws. Id. ¶¶ 30–33; see also Beltran, 926 P.2d at 898 (holding that an out-of-state father was subject to Utah’s statutory scheme upon receiving notice). Accordingly, Father’s intervention in the adoption proceedings invoked the jurisdiction of the district court, including jurisdiction to terminate Father’s parental rights as part of the overall adoption proceedings.

B. UCCJEA

¶16 Father argues that “Utah cannot terminate a parent’s rights in the context of an adoption without that court having acquired jurisdiction to do so under the UCCJEA.” In other words, Father contends that, under these facts, jurisdiction under the UCCJEA is a prerequisite to jurisdiction under the Adoption Act. We disagree.

¶17 Father first relies on section 78B-13-201 of the UCCJEA, which provides that the UCCJEA is the “exclusive jurisdictional basis for making a child custody determination.” Utah Code Ann. § 78B-13-201(2) (LexisNexis 2018). The UCCJEA also expressly provides, however, that “[t]his chapter does not govern . . . an adoption proceeding.” Id. § 78B-13-103(2). And the UCCJEA defines “adoption proceeding” broadly: “For purposes of this section, ‘adoption proceeding’ means any proceeding under Title 78B, Chapter 6, Part 1, Utah Adoption Act.” Id. § 78B-13-102(1). Thus, where the plain language of the UCCJEA unambiguously excludes the UCCJEA from adoption proceedings, Father’s argument misses the mark.

¶18      Father next contends that the Adoption Act acknowledges that jurisdiction must be established under the UCCJEA in order to terminate an out-of-state parent’s rights. Father raises the point that the Adoption Act requires courts to make a finding that an adoption complies with the ICPC. See id. § 78B-6-107(1). Father then argues that compliance with the ICPC necessarily requires “that the jurisdiction requirements of the UCCJEA be satisfied.” We are not persuaded.

¶19 First, the Adoption Act requires only that an adoption comply with the ICPC, not the ICPC and the UCCJEA. Given the legislature’s expressed directive that the UCCJEA does not govern adoption proceedings, the UCCJEA and ICPC are distinct and separate titles under the Utah Code, and the ICPC does not expressly reference the UCCJEA, we are hard-pressed to conclude that the legislature intended compliance with the ICPC to mean compliance with the ICPC and the UCCJEA. See Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (“The best evidence of the legislature’s intent is the plain language of the statute itself.” (cleaned up)).

¶20      Second, that the ICPC overlaps with the Adoption Act in some respects and with the UCCJEA in others does not create overlap between the Adoption Act and the UCCJEA—especially given the clear legislative directive that the UCCJEA does not govern adoption proceedings. The ICPC defines placement as “the arrangement for the care of a child in a family free, adoptive, or boarding home, or in a child-caring agency or institution.” Utah Code Ann. § 62A-4a-701 art. II(4) (LexisNexis 2018). In other words, adoptions are only one of several “arrangement[s] for the care of a child” contemplated and governed by the ICPC. Accordingly, even if the jurisdictional requirements of the UCCJEA must be met under some scenarios also governed by the ICPC, it does not follow that a party must comply with the UCCJEA to satisfy the ICPC in every instance.

¶21 Father contends that Nevares v. Adoptive Couple, 2016 UT 39, 384 P.3d 213, illustrates that jurisdiction under the UCCJEA must be established prior to jurisdiction under the Adoption Act. In Nevares, our supreme court grappled with jurisdiction under the UCCJEA when a father filed a paternity action in Utah, id. ¶ 2, despite the fact that the child and the adoptive parents resided in Illinois at the time the action was filed, id. ¶ 7. Ultimately, the court held that Utah did not have UCCJEA jurisdiction over the father’s paternity action because (1) Utah ceased to be the child’s home state when he moved to Illinois, id. ¶¶ 16–17, and (2) although Illinois was not the child’s home state (because he had not resided there for more than six months prior to the father’s paternity action), jurisdiction in Illinois was proper because the child had “a significant connection with Illinois” vis-à-vis his physical presence in the state and the fact that the adoptive parents had resided in Illinois for more than five years, id. ¶ 21 (cleaned up).

¶22 The facts in Nevares are both instructive and distinguishable. Nevares is instructive because it illustrates that even if the UCCJEA applied in this case, Utah would have jurisdiction. Here, as in Nevares, Child has no “home state.” Although Montana was Child’s home state from January 30, 2016 (Child’s date of birth), to February 10, 2016 (when Child moved to Utah), Montana ceased to be Child’s home state when Child moved to Utah with Adoptive Parents. See id. ¶ 16 (“Utah ceased to be [the child’s] home state once he moved to Illinois with [the adoptive parents].”). Further, when the Adoption Petition and Motion for Temporary Custody were filed in Utah, Child had not resided in Utah for more than six months; and therefore, Utah was not Child’s home state. See id. However, also like the child in Nevares, Child in this case had significant ties to Utah sufficient to confer jurisdiction under the UCCJEA. Specifically, Child was present in Utah, and Adoptive Parents, who were acting as Child’s parents, resided in Utah. Thus, Nevares demonstrates that jurisdiction would have been proper under the UCCJEA if it applied to this case.[5] See id. ¶ 21.

¶23 Nevares is also distinguishable and demonstrates that the UCCJEA is not applicable in this case. The UCCJEA governed jurisdiction in Nevares because the father filed the paternity action in Utah prior to the time the adoptive parents filed the petition for adoption in Illinois. Id. ¶ 7. Thus, the provision in Utah’s UCCJEA providing that the UCCJEA does not apply to adoption proceedings was not triggered, and therefore, Nevares is distinguishable from this case because it concerned a paternity action, not an adoption.

¶24      Simply put, we disagree with Father’s contention that the

legislature’s directive that the UCCJEA does not govern adoption proceedings should be interpreted to mean that the UCCJEA operates to, in effect, govern adoption proceedings. Instead, we conclude that the district court had jurisdiction to terminate Father’s parental rights and finalize the adoption decree under the Adoption Act.[6]

II. Compliance with the ICPC

¶25 Next, Father contends that the district court erred in finalizing the adoption because the ICPC was not complied with as the result of Mother listing Purported Father on the ICPC request form rather than Father. The ICPC “is a uniform law that has been enacted by all fifty states, the District of Columbia, and the U.S. Virgin Islands.” Alternative Options & Services for Children v. Chapman, 2004 UT App 488, ¶ 2, 106 P.3d 744. The ICPC requires that “[p]rior to sending, bringing, or causing any child to be sent or brought into a receiving state . . . the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state.” Utah Code Ann. § 62A-4a-701 art. III(2) (LexisNexis 2018) (listing information that the sending state is required to provide to the receiving state). Compliance with the ICPC can be evidenced by approval of a uniform ICPC-100A request form. See American Public Human Services Association, ICPC Regulations, Regulation No. 2, (8)(d), https://aphsa.org/AAICPC/AAICPC/ICPC_Regulations.as px [https://perma.cc/LZ24-GRSF] (“The receiving state ICPC-100A approval expires six months from the date the 100A was signed by receiving state.”). Further, the Adoption Act requires that “[i]n any adoption proceeding . . . the court’s final decree of adoption shall state that the requirements of [the ICPC] have been complied with.” Utah Code Ann. § 78B-6-107(1) (LexisNexis 2018).

¶26      As an initial matter, the district court did not state that the ICPC had been complied with. Its findings of fact and conclusions of law for adoption of Child state that the ICPC request form was filed with the court and “[t]he requirements of Title 78B, Chapter 6, Part 1, Utah Adoption Act, have been met.” These findings, however, are silent as to compliance with the ICPC. Therefore, remand is necessary for further findings as to whether the ICPC was complied with.

¶27 Father cites In re adoption of T.M.M., 608 P.2d 130 (Mont. 1980), a Montana case, to support his contention that non­compliance with the ICPC must result in vacatur of the adoption decree. In re adoption of T.M.M. is distinguishable from this case, however, because the Montana Supreme Court held that the adoptive parents failed to comply with the ICPC when they moved a child to Montana without ever notifying a Montana ICPC administrator. Id. at 134. Here, the ICPC request form was approved by Montana’s ICPC administrator on February 8, 2016 and Utah’s ICPC administrator on February 9, 2016—prior to Child moving to Utah with Adoptive Parents. Accordingly, where ICPC administrators were notified and indeed approved the ICPC request form before Child moved to Utah, the facts of In re adoption of T.M.M. simply do not support Father’s position. Further, a finding of compliance with the ICPC may be supported by the record in this case.[7]

¶28 We acknowledge that the ICPC form in this case was defective in that it listed Purported Father, rather than Father, as Child’s parent. This defect does not, however, deprive Utah courts of jurisdiction. To be sure, under the ICPC, a party could be subject to criminal penalties for knowingly violating the ICPC, see Utah Code Ann. § 62A-4a-711 (LexisNexis 2018),[8] but such a violation does not amount to non-compliance with the ICPC sufficient to divest the district court of jurisdiction or unwind the adoption, id. § 62A-4a-701 art. IV (“[A]ny violation [of the ICPC] shall constitute full and sufficient grounds for the suspension or revocation of any license, permit, or other legal authorization held by the sending agency . . . .”); see also In re Adoption No. 10087, 597 A.2d 456, 465 (Md. 1991) (“The fact that the ICPC had been violated in this case does not mandate dismissal; rather it indicates the need for a prompt determination of the best interest of this child.”).

¶29 Furthermore, any alleged non-compliance with the ICPC did not deprive Father of his rights because he received notice of the adoption proceedings, intervened, and received a trial concerning the termination of his parental rights. If Father had not received notice of, and had not intervened in, the adoption proceedings, the court could have been divested of jurisdiction under the Adoption Act. See Utah Code Ann. § 78B-6-105(4)(a) (LexisNexis 2018). But that is not what happened here. Therefore, any alleged defects in the ICPC request form did not divest the court of jurisdiction. Nevertheless, because the district court did not state that the ICPC requirements were complied with, we set aside the adoption decree and remand for further findings and conclusions on this issue.

CONCLUSION

¶30      The district court possessed subject matter jurisdiction to terminate Father’s parental rights and potentially finalize the adoption of Child under the Adoption Act, and because the UCCJEA expressly states that it does not govern adoption proceedings, UCCJEA jurisdiction was not required. Finally, we set aside the adoption decree and remand for additional findings and conclusions on whether the requirements of the ICPC have been complied with.

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] The ICPC “is a uniform law that has been enacted by all fifty states, the District of Columbia, and the U.S. Virgin Islands.” Alternative Options & Services for Children v. Chapman, 2004 UT App 488, ¶ 2, 106 P.3d 744. “The purpose of the ICPC is to promote cooperation among the states in the interstate placement of children to ensure that the best interests of children are met.” Id. Utah’s version of the ICPC is codified at Utah Code sections 62A-4a-701 to -711.

[2] The ICPC requires that an ICPC-100A “Interstate Compact Placement Request” form be approved by an ICPC administrator in both the sending state and receiving state before a prospective adoptive child may be transported across state lines. See American Public Human Services Association, ICPC Regulations, https://aphsa.org/AAICPC/AAICPC/ICPC_Regulations.aspx [https://perma.cc/LZ24-GRSF].

[3] The UCCJEA is codified at Utah Code sections 78B-13-101 to -318.

[4] Because the statutory provisions in effect at the relevant time do not differ in any material way from those now in effect, unless otherwise indicated, we cite the current version of the Utah Code.

[5] Even if analysis under the UCCJEA resulted in “concurrent jurisdiction” by virtue of Father’s presence in Montana, Utah would nonetheless have priority jurisdiction because the Adoption Petition, Motion for Temporary Custody, and Temporary Custody Order were filed in Utah prior to Father’s divorce action in Montana. See Liska v. Liska, 902 P.2d 644, 647–48 (Utah Ct. App. 1995) (holding that Utah had primary jurisdiction under the UCCJEA because a divorce decree, which determined child custody, originated in Utah prior to the action filed in Colorado).

[6] Father also contends that the district court should have declined jurisdiction because Mother engaged in unjustifiable conduct by listing Purported Father on the ICPC request form. See Utah Code Ann. § 78B-13-208(1) (LexisNexis 2018) (“[I]f a court of this state has jurisdiction under this chapter because a person invoking the jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction . . . .”). But because this provision falls under the UCCJEA, we conclude that it does not apply to jurisdiction conferred by the Adoption Act.

[7] Compliance with the ICPC requires that written notice, containing specific information, be submitted to ICPC administrators, see Utah Code Ann. § 62A-4a-701 art. III(2) (LexisNexis 2018), not necessarily that all the specific information be set forth on the ICPC request form 100A. Adoptive Parents, in their brief, indicate that the complete ICPC packet submitted to Montana’s ICPC administrator contained information not included on the ICPC request form, including a cover letter identifying Father as Mother’s husband. Accordingly, on remand, it may be necessary to add the complete ICPC packet to the record in order to find that the ICPC was complied with in this case. And given that noncompliance with the ICPC would not divest the court of jurisdiction, in the event that the current record and complete ICPC packet still do not comply with the ICPC, Adoptive Parents can still undertake steps to comply with the ICPC prior to reinstating the adoption decree.

[8] Section 62A-4a-711 was not enacted until 2017 and therefore does not apply to Mother in this case.

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2018 UT App 224 – In re Adoption of B.N.A. – wrong district court

2018 UT App 224 – In re Adoption of B.N.A.

THE UTAH COURT OF APPEALS
IN THE MATTER OF THE ADOPTION OF B.N.A.,
A PERSON UNDER EIGHTEEN YEARS OF AGE

C.E.L., Appellant,
v.
T.L. AND A.L., Appellees.

Opinion No. 20180316-CA
Filed December 6, 2018

Third District Court, Tooele Department
The Honorable Matthew Bates
No. 172300016

Karra J. Porter and Crystal Lynn Orgill, Attorneys for Appellant

Ronald D. Wilkinson, Marianne P. Card, and Sara Pfrommer, Attorneys for Appellees

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1        Utah adoption law provides that “[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court . . . in the district where the prospective adoptive parent resides.” Utah Code Ann. § 78B-6-105(1)(a) (LexisNexis Supp. 2018). In this case, we must determine what the consequences are, under this statute, if prospective adoptive parents file an adoption petition in the wrong district. The biological father (Father) of the child in question (Child) contends that the statute speaks to a court’s subject-matter jurisdiction, and asserts that a petition filed in the wrong district must be dismissed for lack of jurisdiction. The prospective adoptive parents (Petitioners), on the other hand, contend that the statute speaks simply to venue, and assert that when a petition is filed in the wrong district, the court has jurisdiction to continue to adjudicate the case, but must transfer the case upon request to the proper district. For the reasons set forth herein, we find Petitioners’ position persuasive, and therefore affirm the district court’s decision to deny Father’s motion to dismiss.

BACKGROUND

¶2        In early 2014, Father engaged in a brief romantic relationship with a woman (Mother) who became pregnant and gave birth to Child in November 2014. After the relationship ended, Father asserts that he had no further communication or interaction with Mother, and therefore claims to have been unaware of Mother’s pregnancy or of Child’s existence until after Child was born, and unaware that he was Child’s father until December 2017. It is undisputed that Father has never had any relationship with Child, who is now four years old.

¶3        In the meantime, in the spring of 2017 Mother decided to place Child for adoption, and began working with an adoption agency toward that end. The adoption agency selected Petitioners as a potential adoptive family, and Petitioners filed a petition for adoption in April 2017. Despite the fact that Petitioners reside in Utah County, part of Utah’s Fourth Judicial District, they filed their petition in Tooele County, part of Utah’s Third Judicial District.

¶4        Immediately after filing their petition, Petitioners asked the court to authorize a “commissioner” to take Mother’s relinquishment, in accordance with Utah Code section 78B-6-124(1)(b). The court approved Petitioner’s request, and signed an order appointing a representative of the adoption agency to take Mother’s relinquishment. After the order was signed, Mother met with the representative and signed a document relinquishing her parental rights to Child. One of that document’s provisions stated that Mother’s relinquishment was irrevocable “as to [Petitioners],” but that Mother was “not . . . consenting to the adoption of [Child] by any other person or persons.” In addition, the document provided that, “[i]f [Petitioners] are unable to complete the adoption of [Child] for any reason, and the adoption petition is dismissed or denied, it is in [Child’s] best interest that he be returned to [Mother’s] custody and control.”[1] Soon after Mother signed the relinquishment, Petitioners filed a copy of it with the court, and a few days later the court signed an order awarding temporary custody of Child to Petitioners.

¶5        Just a few months later, before the adoption was finalized, Mother filed a motion to set aside her relinquishment, asserting that she did not sign the document freely and voluntarily. The district court, after a half-day evidentiary hearing, determined that Mother had acted voluntarily and was not under duress or undue influence, and denied Mother’s motion. The court’s decision to deny Mother’s motion is not at issue in this appeal.

¶6        About a month later, in early January 2018, Father entered an appearance in the adoption case and filed a motion seeking leave to intervene, asking that the adoption proceedings be dismissed. A few weeks later, Father filed a second motion, raising for the first time his argument—advanced here in this appeal—that the district court did not have subject-matter jurisdiction over the case because Petitioners filed their petition in the wrong district.

¶7        After full briefing and oral argument, the district court denied Father’s motion to dismiss, and determined that it did have subject-matter jurisdiction over the case. Father then asked for permission to appeal the district court’s interlocutory order regarding jurisdiction, and we granted that request.

ISSUE AND STANDARD OF REVIEW

¶8        The issue presented in this case is one of statutory interpretation: whether Utah Code section 78B-6-105(1)(a) acts as a limit on a district court’s subject-matter jurisdiction, or is merely a venue statute. “We review questions of statutory interpretation for correctness, affording no deference to the district court’s legal conclusions.” State v. Stewart, 2018 UT 24, ¶ 5 (quotation simplified).

ANALYSIS

¶9        The statute in question states, in fairly straightforward language, that “[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court,” and that, if the prospective adoptive parent is a Utah resident, the petition is to be filed “in the district where the prospective adoptive parent resides.” Utah Code Ann. § 78B-6-105(1)(a). All parties agree that this language demands that adoption proceedings be initiated by the filing of a petition. And all parties agree that, at least in adoption cases that are to be filed in district court rather than juvenile court, see id. § 78B-6-105(1)(c), and in which the prospective adoptive parent is a Utah resident, see id. § 78B-6-105(1)(a), this petition is supposed to be filed in the district where the prospective adoptive parent resides. On these points, the language appears plain and unambiguous.

¶10 The statute is not as plain, however, when it comes to setting forth the consequences that attach when a petitioner files an adoption petition in the wrong judicial district.[2] Father asserts that a petition filed in the wrong district must be dismissed, because he reads the statute as speaking to a court’s subject-matter jurisdiction to adjudicate the case. Petitioners, on the other hand, point out that any Utah district court has subject-matter jurisdiction over adoption cases as a class, and read the statute as a venue provision that does not implicate a court’s jurisdiction, but merely allows any party to request that the petition be transferred to the proper district. To resolve this dispute, we start by examining the concept of subject-matter jurisdiction, and then return to a further examination of the text of the statute.

¶11 “The notion of ‘jurisdiction’ is a slippery one.” In re adoption of B.B., 2017 UT 59, ¶ 125, 417 P.3d 1. The word “jurisdiction” means “different things in different circumstances.” Id. Sometimes, it is used to refer to “the scope of a court’s power to issue a certain form of relief,” while at other times the word is used to refer to “the territorial authority of the court that issues a decision,” but “neither of these notions of jurisdiction goes to a court’s subject-matter jurisdiction.” Id. ¶¶ 125–27.

¶12 Subject-matter jurisdiction is a “special” type of jurisdictional concept, one that is “distinct from other notions of jurisdiction in that we require our courts to consider such issues sua sponte” and, unlike other notions of jurisdiction, we “do not allow the parties to waive or forfeit [subject-matter jurisdiction] from consideration.” Id. ¶ 128. This distinction is “crucial,” because “[i]f an issue is subject-matter jurisdictional, the general rules of finality and preservation are off the table,” and that can “undermine the premises of efficiency, speedy resolution, and finality that generally undergird our justice system.” Id.

¶13 Because subject-matter jurisdiction is “special” and “distinct” from other jurisdictional concepts, see id., due to the fact that “parties can raise subject matter jurisdiction at any time during a proceeding, it makes sense to cabin the issues that fall under the category of subject matter jurisdiction,” Johnson v. Johnson, 2010 UT 28, ¶ 10, 234 P.3d 1100; see also In re adoption of B.B., 2017 UT 59, ¶ 129 (stating that “our law has been careful to cabin the notion of subject-matter jurisdiction”). In recent years, our supreme court has made a concerted effort to do just that, “routinely rebuff[ing] attempts by litigants to recast merits arguments as issues of subject-matter jurisdiction,” and instructing trial courts that they must “guard[] against the faux elevation of a court’s failure to comply with the requirements for exercising its authority to the same level of gravity as a lack of subject matter jurisdiction.” In re adoption of B.B., 2017 UT 59, ¶ 130 n.14 (quotation simplified); see also Johnson, 2010 UT 28, ¶ 9 (stating that “[t]he concept of subject matter jurisdiction does not embrace all cases where the court’s competence is at issue,” and that “[w]here the court has jurisdiction over the class of case involved, judgment is not void on the ground that the right involved in the suit did not embrace the relief granted”); Chen v. Stewart, 2004 UT 82, ¶ 36, 100 P.3d 1177 (determining that the parties mischaracterized their claim as one grounded in subject-matter jurisdiction in a futile attempt to avoid waiver), abrogated on other grounds by State v. Nielsen, 2014 UT 10, 326 P.3d 645. In Johnson, for instance, the court held that a district court had subject-matter jurisdiction over a divorce case, even though the parties were never actually legally married to begin with, because subject-matter jurisdiction is generally determined by reference to a “class of cases, rather than the specifics of an individual case.” Johnson, 2010 UT 28, ¶ 10. “Because the district court clearly has the authority to adjudicate divorces, looking to the specific facts of a particular case is inconsistent with our usual definition of subject matter jurisdiction.” Id. ¶ 12.

¶14 In fact, our supreme court has limited the concept of subject-matter jurisdiction to two specific situations: “(a) statutory limits on the authority of the court to adjudicate a class of cases,” and “(b) timing and other limits on the justiciability of the proceeding before the court (such as standing, ripeness, and mootness).” In re adoption of B.B., 2017 UT 59, ¶ 121 (quotation simplified); see also id. ¶ 153 (stating that “[o]ur law has long assessed subject-matter jurisdiction at the categorical level—encompassing only statutory limits on the classes of cases to be decided by the court and traditional limits on justiciability”). Neither of these situations is present here.

¶15 Starting with the second category first, Father does not assert that any of the common “justiciability” doctrines apply here, and therefore we need not analyze the potential applicability of any of those doctrines to the facts of this case.

¶16 And with regard to the first category, the text of the statute in question contains no express “limits” on the authority of Utah district courts to adjudicate adoption cases generally, as a class. Even Father wisely concedes that “[d]istrict courts may generally handle adoptions.” Indeed, “in Utah our district courts are courts of general jurisdiction” that have “general power to hear ‘all matters civil and criminal’ so long as they are ‘not excepted in the Utah Constitution and not prohibited by law.’” Id. ¶ 143 (quoting Utah Code section 78A-5-102(1)). More specifically, as concerns adoption cases, our supreme court has noted that “Utah district courts clearly have subject matter jurisdiction over adoption proceedings as a class of cases.” In re adoption of Baby E.Z., 2011 UT 38, ¶ 34, 266 P.3d 702; see also In re adoption of B.B., 2017 UT 59, ¶ 137 (stating that, “[b]y statute, our Utah courts are expressly authorized to assume jurisdiction over adoption petitions”).

¶17 When the legislature intends to place a statutory limit on a district court’s jurisdictional ability to hear a category of cases, it certainly knows how to do so expressly. See In re adoption of B.B., 2017 UT 59, ¶ 143 (stating that “[t]he code . . . places certain restrictions on the jurisdiction of our district courts,” but that such restrictions “are expressly denominated as such—as jurisdictional limits”). For instance, the legislature will identify certain claims as within the “exclusive jurisdiction” of an administrative agency or of a particular type of court, see, e.g., Utah Code Ann. § 34A-2-407(12)(a)–(b) (LexisNexis Supp. 2018) (identifying claims within the “exclusive jurisdiction” of the Labor Commission); id. § 78A-6-103(2) (Supp. 2018) (identifying the “exclusive jurisdiction” of juvenile courts over certain matters), or will note that “no court has jurisdiction” to entertain certain actions, see, e.g., id. § 31A-27a-105(1)(b) (2017) (stating that “[n]o court has jurisdiction to entertain, hear, or determine a delinquency proceeding commenced by any person other than the commissioner of this state”). The subsection of the statute at issue here has no such express limitation on jurisdiction. See id. § 78B-6-105(1)(a).[3] It does not identify adoption cases as within the “exclusive jurisdiction” of the judicial district in which the prospective adoptive parent resides, nor does it state that “no court” but the courts in the district in which the adoptive parents reside has jurisdiction over a case.[4]

¶18 Indeed, while the linguistic structure of the statutory subsection in question is not at all similar to other statutes containing express jurisdictional limits, it is quite similar to other statutes concerning venue. Several of Utah’s venue statutes require that a particular cause of action “be brought and tried” or “commenced and tried” in a particular location. See, e.g., id. § 78B-3-305(1) (stating that “[a]ll transitory causes of action arising outside the state, except those mentioned in Section 78B-3-306, shall . . . be brought and tried in the county where any defendant resides”); id. § 78B-3-306 (stating that “[a]ll transitory causes of action arising outside the state in favor of residents of this state shall be brought and tried in the county where the plaintiff resides, or in the county where the principal defendant resides”). We find it difficult to ignore the similarities between these venue statutes and the statute in question, which states that “[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court . . . where the prospective adoptive parent resides.” See id. § 78B-6-105(1)(a).

¶19      Moreover, in 2004 the legislature amended the title of the statute. Before the amendment, the statute had been captioned “Jurisdiction of district and juvenile court – Time for filing.” See id. § 78-30-7 (LexisNexis 2003).[5] In the 2004 legislative session, without materially altering the relevant language of the statute itself, the legislature changed the title of the statute to read as it does now: “District court venue – Jurisdiction of juvenile court – Jurisdiction over nonresidents – Time for filing.” See Adoption Amendments, ch. 122, § 11, 2004 Utah Laws 546, 553;[6] see also Utah Code Ann. § 78B-6-105. “The title of a statute is not part of the text of a statute, and absent ambiguity, it is generally not used to determine a statute’s intent. However, it is persuasive and can aid in ascertaining the statute’s correct interpretation and application.” Blaisdell v. Dentrix Dental Sys., Inc., 2012 UT 37, ¶ 10, 284 P.3d 616 (quotation simplified). In this case, in which we must determine whether the statute is a jurisdictional statute or a venue statute, we find it significant that the legislature has specifically categorized the statute as one speaking to venue rather than to subject-matter jurisdiction.

¶20 Despite all of these persuasive indications that the relevant statute speaks only to venue and not to subject-matter jurisdiction, Father directs us to two of our previous decisions that have referred to the statute as “jurisdictional.” See In re adoption of S.L.F., 2001 UT App 183, 27 P.3d 583; In re adoption of K.O., 748 P.2d 588 (Utah Ct. App. 1988). Father asserts that those cases constitute binding authority that the statute is jurisdictional and compel the dismissal of Petitioner’s petition.

¶21 Father’s argument certainly has some force. In those cases, we did refer to the statute as containing a “jurisdiction requirement,” see In re adoption of K.O., 748 P.2d at 591; see also In re adoption of S.L.F., 2001 UT App 183, ¶ 17, and even went so far as to state that “[w]ithout knowing the [petitioners’] residence . . . , this Court cannot ascertain whether or not the trial court had jurisdiction to grant the adoption,” In re adoption of K.O., 748 P.2d at 591. In one of the cases, we implicitly rejected the argument Petitioners advance here, namely, that the adoption statute was merely a “venue” statute, and held that “until the adoption petition was properly filed in Second District Court, where [the prospective adoptive parent] resides, the proceeding had not been ‘commenced’ as required” by the statute. In re adoption of S.L.F., 2001 UT App 183, ¶ 16 n.1.[7] And in the other, we specifically stated that, if the trial court on remand “determines that it had no jurisdiction to hear the adoption because the [petitioners] were not residents of Cache County, Utah at the time of filing, that proceeding was void.” In re adoption of K.O., 748 P.2d at 592.

¶22 It is undeniably the case that one panel of this court is bound to follow the previous decisions of another panel of this court, unless we make a specific decision to overrule or disavow the earlier precedent. See State v. Legg, 2018 UT 12, ¶ 9, 417 P.3d 592 (stating that “[u]nder the doctrine of horizontal stare decisis, the first decision by a court on a particular question of law governs later decisions by the same court,” and specifically holding that “[t]he doctrine of horizontal stare decisis applies as between different panels of the court of appeals” (quotation simplified)). However, the principle of horizontal stare decisis only applies if the previous precedent remains robust. See United States v. Plouffe, 445 F.3d 1126, 1128 (9th Cir. 2006) (stating that “where an intervening higher authority has issued an opinion that is clearly irreconcilable with our prior circuit precedent, a panel is free to act disregarding that precedent” (quotation simplified)); see also 21 C.J.S. Courts § 190 (2018) (stating that “stare decisis does not preclude a decision that reflects developments in the law since the courts must consider statutory or case law changes that undermine or contradict the viability of prior precedent”).

¶23 While the two cases upon which Father relies have not been explicitly overruled, two developments have taken place in the decades since those cases were decided that cause us to doubt the continuing vitality of those cases’ discussions of jurisdiction. First, both of those cases were decided prior to 2004, when our legislature amended the title of the statute to specify that the statute, at least as concerns district courts, is intended to speak to venue and not to jurisdiction. Second, since those cases were decided, our supreme court has significantly “cabin[ed] the issues that fall under the category of subject matter jurisdiction,” Johnson, 2010 UT 28, ¶ 10, and has made clear that subject-matter jurisdiction applies to only two situations, neither of which is present in this case. Our fealty is first and foremost to the mandates of our supreme court and to the enactments of our legislature, and where our precedent conflicts with more recent supreme court pronouncements or statutory changes, we are duty-bound to follow the path our supreme court and our legislature have set. See Ortega v. Ridgewood Estates LLC, 2016 UT App 131, ¶ 30, 379 P.3d 18 (“We are bound by vertical stare decisis to follow strictly the decisions rendered by the Utah Supreme Court.” (quotation simplified)); Beltran v. Allen, 926 P.2d 892, 898 (Utah Ct. App. 1996) (stating that “it is the Utah statute, as interpreted by majority holdings of the Utah Supreme Court, which controls the outcome of this case”).[8]

¶24 For these reasons, we conclude that Utah Code section 78B-6-105(1)(a) speaks to venue, and does not limit a court’s subject-matter jurisdiction. Accordingly, unless the adoption is one that must be filed in juvenile court pursuant to Utah Code section 78A-6-103(1)(o), see Utah Code Ann. § 78B-6-105(1)(c), any district court has subject-matter jurisdiction to adjudicate an adoption case, even one filed in the wrong district, but must transfer the case to the correct district upon the filing of a proper request. Cf. id. § 78B-3-308 (stating that, when a case is filed in the wrong venue, a party may file “a written motion requesting the trial be moved to the proper county”).

CONCLUSION

¶25 The provision in Utah’s adoption code that requires that an adoption case be “commenced” by the filing of a petition in a particular judicial district is a provision that speaks to venue, and not to subject-matter jurisdiction. Petitioners did indeed file their petition in the wrong venue, but this did not deprive the court of subject-matter jurisdiction, because any district court in Utah has subject-matter jurisdiction over any adoption case that does not have to be filed in juvenile court. The consequence for filing in the wrong district is not automatic dismissal; it is that any party, upon proper motion, may request that the case be transferred to the correct district. Unless and until such a request is made, however, the court in which the case is filed may continue to adjudicate the case, and its rulings are not void. For all of these reasons, we affirm the district court’s decision to deny Father’s motion to dismiss for lack of subject-matter jurisdiction, and we remand the case to the district court for further proceedings consistent with this opinion.

Utah Family Law, LC | divorceutah.com | 801-466-9277

———————————————————–

[1] 1. This provision of the relinquishment explains why the parties are litigating about whether Utah Code section 78B-6-105(1)(a) speaks to subject-matter jurisdiction or to venue: if the statute is jurisdictional, Petitioners’ petition should be dismissed, and in that event Father intends to assert that Child should be returned to Mother’s custody and control.

[2] Father emphasizes the statute’s use of the word “shall,” which is usually interpreted as a mandatory command, see Utah Code Ann. § 68-3-12(1)(j) (LexisNexis 2016) (defining “shall” as meaning “that an action is required or mandatory”), and argues that adoption petitioners are commanded to file their adoption petition in the proper district. This argument is correct, as far as it goes, but the legislature’s use of the word “shall,” in this context, fails to answer the question at the center of this dispute because it tells us nothing about what the intended consequences are for filing the petition in the wrong place. Indeed, this case nicely illustrates one reason why some legal scholars have noted that the word “shall” is “a semantic mess”: because “a recurrent issue in the huge constellation of shall-must holdings” concerns “the effect of failing to honor a mandatory provision’s terms,” which presents “an issue for a treatise on remedies, not interpretation.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 113, 115 (2012).

[3] Father points out that subsection (1)(c) of the statute appears to be jurisdictional, in that it places some adoption cases within the exclusive jurisdiction of the juvenile court, and infers therefrom that the other subsections must therefore also be jurisdictional. Father is arguably correct that subsection (1)(c) speaks to a juvenile court’s subject-matter jurisdiction—that provision states that adoption proceedings “shall be commenced by filing a petition” in “juvenile court as provided in Subsection 78A-6-103(1).” See Utah Code Ann. § 78B-6-105(1)(c) (LexisNexis Supp. 2018). The referenced section of the Juvenile Court Act states that “the juvenile court has exclusive original jurisdiction” over “adoptions” in cases where “the juvenile court has previously entered an order terminating the rights of a parent and finds that adoption is in the best interest of the child.” See id. § 78A-6-103(1)(o) (Supp. 2018). This language does appear to encompass express limits on the authority of courts other than juvenile courts to hear a particular sub-class of adoption cases. However, it does not follow that, just because subsection (c) is jurisdictional, subsections (a) and (b) must also be jurisdictional. On this issue, the title of the statute provides helpful guidance, instructing us that the statute concerns itself with “[d]istrict court venue” but with “[j]urisdiction of juvenile court.” See id. § 78B-6-105; see also infra ¶ 19. As we read the statute, the legislature has placed most adoption cases within the broad subject-matter jurisdiction of district courts, but has placed one sub-class of adoption cases within the narrower subject-matter jurisdiction of juvenile courts. Within the first (broader) category, we do not perceive the legislature as having set any jurisdictional limits on the ability of any particular judicial district or individual district court to hear any of the cases that fall within their purview.

[4] Furthermore, unlike some other comparable state statutes, see, e.g., Wyo. Stat. Ann. § 1-22-109 (2018) (requiring specific documents to be filed with an adoption petition), Utah’s statute does not impose any requirements on petitioners to file specific documents (such as, for instance, relinquishments or consents) with adoption petitions. Father points to some of these other state statutes, and notes that courts in other states have found such requirements to be jurisdictional. See, e.g., In re JWT, 2005 WY 4, ¶¶ 5–6, 104 P.3d 93. Father’s argument is unavailing here, however, because Utah’s statute imposes no such requirements, and therefore we need not consider whether our legislature intended any such requirements to be jurisdictional.

[5] In 2008, Utah Code section 78-30-7 was renumbered as Utah Code section 78B-6-105. See Title 78 Recodification and Revision, ch. 3, § 864, 2008 Utah Laws 48, 443.

[6] The “redline” version of the bill that effected the title change did not show the new title in “redline” format, even though all proposed changes to the body of the statute were clearly marked. Father infers from this that the legislators themselves (as opposed, presumably, to legislative staff) may not have known that the title was even being changed, and therefore asserts that “the title change does not imply any legislative intent.” We find Father’s argument speculative—we simply do not know why the change to the title of the bill was not redlined, or whether that fact has any significance. Legislative history certainly has a role to play in helping courts interpret ambiguous statutes, see, e.g., Allred v. Saunders, 2014 UT 43, ¶ 18, 342 P.3d 204 (stating that “it is sometimes appropriate to consider legislative history when interpreting statutes”), but in order to shed any meaningful light on the question of statutory meaning, the legislative history in question must itself be “reliable,” see Graves v. North E. Services, Inc., 2015 UT 28, ¶ 67, 345 P.3d 619 (stating that “[w]e may resolve ambiguities in the text of the law by reference to reliable indications of legislative understanding or intent” (emphasis added)). It is certainly mysterious that the title change was not redlined even though the rest of the proposed (…continued)

changes were. But without knowing more about the reasons why that happened, or about what (if any) significance that had to the legislators who considered the bill, we find Father’s argument insufficiently persuasive to overcome the basic fact that, prior to 2004, the title proclaimed the statute to be jurisdictional, but that since 2004, the legislature has chosen a title that proclaims the statute to be a venue statute, at least as concerns district courts.

[7] Even in In re adoption of S.L.F., there is some indication that— prior to our supreme court’s more recent cases—this court and the district courts were conceptualizing subject-matter jurisdiction too broadly. In that case, a potential adoptive parent filed an adoption petition in Salt Lake County (in the Third Judicial District), even though she lived in Davis County (in the Second Judicial District). See In re adoption of S.L.F., 2001 UT App 183, ¶ 3, 27 P.3d 583. Later, the parent made a “motion for a change of venue,” asking that the petition be transferred to Davis County. Id. ¶ 5. The Salt Lake County district court granted the motion, and transferred the petition to Davis County. Id. Had there been a jurisdictional defect of the kind Father envisions, transfer would not have been possible— indeed, the only action a court without jurisdiction can take is to dismiss the case. See, e.g., Hollenbach v. Salt Lake City Civil Service Comm’n, 2013 UT App 62, ¶ 3, 299 P.3d 1148 (per curiam) (stating that “when a court lacks jurisdiction, it retains only the authority to dismiss the action” (quotation simplified)). No party took issue with the Salt Lake County district court’s decision to transfer (rather than dismiss) the case, and we did not reach the propriety of that transfer on appeal.

[8] Father also argues that construing the relevant statute as a venue statute rather than as a jurisdictional statute would have “constitutional implications,” because he points out that fathers are required to “strictly” comply with other provisions of Utah’s adoption code, and argues that “it would be unconstitutional to impose a ‘strict compliance’ standard for biological fathers but a more relaxed standard for adoptive parents.” Our conclusion herein regarding the meaning of the relevant statute—and, specifically, regarding the intended consequences of filing a petition in the wrong district—has nothing to do with requiring “strict” or “relaxed” compliance with the statutory mandates. Our conclusion is simply that the legislature intended the statute to function as a venue statute, and therefore a court does not lack subject-matter jurisdiction over an adoption petition filed in the wrong district any more than it would lack subject-matter jurisdiction over a divorce case or a tort case filed in the wrong county. We see no constitutional infirmities with the legislature’s creation of a venue statute in this context, and therefore reject Father’s constitutional arguments.

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In re Adoption of B.N.A. – 2018 UT App 224 – adoption subject matter jurisdiction

2018 UT App 224

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ADOPTION OF B.N.A.,
A PERSON UNDER EIGHTEEN YEARS OF AGE

C.E.L.,
Appellant,
V.
T.L. AND A.L.,
Appellees.

Opinion
No. 20180316-CA
Filed December 6, 2018

Third District Court, Tooele Department
The Honorable Matthew Bates
No. 172300016

Karra J. Porter and Crystal Lynn Orgill, Attorneys for Appellant

Ronald D. Wilkinson, Marianne P. Card, and
Sara Pfrommer, Attorneys for Appellees

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1        Utah adoption law provides that “[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court . . . in the district where the prospective adoptive parent resides.” Utah Code Ann. § 78B-6-105(1)(a) (LexisNexis Supp. 2018). In this case, we must determine what the consequences are, under this statute, if prospective adoptive parents file an adoption petition in the wrong district. The biological father (Father) of the child in question (Child) contends that the statute speaks to a court’s subject-matter jurisdiction, and asserts that a petition filed in the wrong district must be dismissed for lack of jurisdiction. The prospective adoptive parents (Petitioners), on the other hand, contend that the statute speaks simply to venue, and assert that when a petition is filed in the wrong district, the court has jurisdiction to continue to adjudicate the case, but must transfer the case upon request to the proper district. For the reasons set forth herein, we find Petitioners’ position persuasive, and therefore affirm the district court’s decision to deny Father’s motion to dismiss.

BACKGROUND

¶2        In early 2014, Father engaged in a brief romantic relationship with a woman (Mother) who became pregnant and gave birth to Child in November 2014. After the relationship ended, Father asserts that he had no further communication or interaction with Mother, and therefore claims to have been unaware of Mother’s pregnancy or of Child’s existence until after Child was born, and unaware that he was Child’s father until December 2017. It is undisputed that Father has never had any relationship with Child, who is now four years old.

¶3        In the meantime, in the spring of 2017 Mother decided to place Child for adoption, and began working with an adoption agency toward that end. The adoption agency selected Petitioners as a potential adoptive family, and Petitioners filed a petition for adoption in April 2017. Despite the fact that Petitioners reside in Utah County, part of Utah’s Fourth Judicial District, they filed their petition in Tooele County, part of Utah’s Third Judicial District.

¶4        Immediately after filing their petition, Petitioners asked the court to authorize a “commissioner” to take Mother’s relinquishment, in accordance with Utah Code section 78B-6­124(1)(b). The court approved Petitioner’s request, and signed an order appointing a representative of the adoption agency to take Mother’s relinquishment. After the order was signed, Mother met with the representative and signed a document relinquishing her parental rights to Child. One of that document’s provisions stated that Mother’s relinquishment was irrevocable “as to [Petitioners],” but that Mother was “not . . . consenting to the adoption of [Child] by any other person or persons.” In addition, the document provided that, “[i]f [Petitioners] are unable to complete the adoption of [Child] for any reason, and the adoption petition is dismissed or denied, it is in [Child’s] best interest that he be returned to [Mother’s] custody and control.”[1] Soon after Mother signed the relinquishment, Petitioners filed a copy of it with the court, and a few days later the court signed an order awarding temporary custody of Child to Petitioners.

¶5        Just a few months later, before the adoption was finalized, Mother filed a motion to set aside her relinquishment, asserting that she did not sign the document freely and voluntarily. The district court, after a half-day evidentiary hearing, determined that Mother had acted voluntarily and was not under duress or undue influence, and denied Mother’s motion. The court’s decision to deny Mother’s motion is not at issue in this appeal.

¶6        About a month later, in early January 2018, Father entered an appearance in the adoption case and filed a motion seeking leave to intervene, asking that the adoption proceedings be dismissed. A few weeks later, Father filed a second motion, raising for the first time his argument—advanced here in this appeal—that the district court did not have subject-matter jurisdiction over the case because Petitioners filed their petition in the wrong district.

¶7        After full briefing and oral argument, the district court denied Father’s motion to dismiss, and determined that it did have subject-matter jurisdiction over the case. Father then asked for permission to appeal the district court’s interlocutory order regarding jurisdiction, and we granted that request.

ISSUE AND STANDARD OF REVIEW

¶8        The issue presented in this case is one of statutory interpretation: whether Utah Code section 78B-6-105(1)(a) acts as a limit on a district court’s subject-matter jurisdiction, or is merely a venue statute. “We review questions of statutory interpretation for correctness, affording no deference to the district court’s legal conclusions.” State v. Stewart, 2018 UT 24, ¶ 5 (quotation simplified).

ANALYSIS

¶9        The statute in question states, in fairly straightforward language, that “[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court,” and that, if the prospective adoptive parent is a Utah resident, the petition is to be filed “in the district where the prospective adoptive parent resides.” Utah Code Ann. § 78B-6-105(1)(a). All parties agree that this language demands that adoption proceedings be initiated by the filing of a petition. And all parties agree that, at least in adoption cases that are to be filed in district court rather than juvenile court, see id. § 78B-6-105(1)(c), and in which the prospective adoptive parent is a Utah resident, see id. § 78B-6­105(1)(a), this petition is supposed to be filed in the district where the prospective adoptive parent resides. On these points, the language appears plain and unambiguous.

¶10 The statute is not as plain, however, when it comes to setting forth the consequences that attach when a petitioner files an adoption petition in the wrong judicial district.[2] Father asserts that a petition filed in the wrong district must be dismissed, because he reads the statute as speaking to a court’s subject-matter jurisdiction to adjudicate the case. Petitioners, on the other hand, point out that any Utah district court has subject-matter jurisdiction over adoption cases as a class, and read the statute as a venue provision that does not implicate a court’s jurisdiction, but merely allows any party to request that the petition be transferred to the proper district. To resolve this dispute, we start by examining the concept of subject-matter jurisdiction, and then return to a further examination of the text of the statute.

¶11 “The notion of ‘jurisdiction’ is a slippery one.” In re adoption of B.B., 2017 UT 59, ¶ 125, 417 P.3d 1. The word “jurisdiction” means “different things in different circumstances.” Id. Sometimes, it is used to refer to “the scope of a court’s power to issue a certain form of relief,” while at other times the word is used to refer to “the territorial authority of the court that issues a decision,” but “neither of these notions of jurisdiction goes to a court’s subject-matter jurisdiction.” Id. ¶¶ 125–27.

¶12 Subject-matter jurisdiction is a “special” type of jurisdictional concept, one that is “distinct from other notions of jurisdiction in that we require our courts to consider such issues sua sponte” and, unlike other notions of jurisdiction, we “do not allow the parties to waive or forfeit [subject-matter jurisdiction] from consideration.” Id. ¶ 128. This distinction is “crucial,” because “[i]f an issue is subject-matter jurisdictional, the general rules of finality and preservation are off the table,” and that can “undermine the premises of efficiency, speedy resolution, and finality that generally undergird our justice system.” Id.

¶13 Because subject-matter jurisdiction is “special” and “distinct” from other jurisdictional concepts, see id., due to the fact that “parties can raise subject matter jurisdiction at any time during a proceeding, it makes sense to cabin the issues that fall under the category of subject matter jurisdiction,” Johnson v. Johnson, 2010 UT 28, ¶ 10, 234 P.3d 1100; see also In re adoption of B.B., 2017 UT 59, ¶ 129 (stating that “our law has been careful to cabin the notion of subject-matter jurisdiction”). In recent years, our supreme court has made a concerted effort to do just that, “routinely rebuff[ing] attempts by litigants to recast merits arguments as issues of subject-matter jurisdiction,” and instructing trial courts that they must “guard[] against the faux elevation of a court’s failure to comply with the requirements for exercising its authority to the same level of gravity as a lack of subject matter jurisdiction.” In re adoption of B.B., 2017 UT 59, ¶ 130 n.14 (quotation simplified); see also Johnson, 2010 UT 28, ¶ 9 (stating that “[t]he concept of subject matter jurisdiction does not embrace all cases where the court’s competence is at issue,” and that “[w]here the court has jurisdiction over the class of case involved, judgment is not void on the ground that the right involved in the suit did not embrace the relief granted”); Chen v. Stewart, 2004 UT 82, ¶ 36, 100 P.3d 1177 (determining that the parties mischaracterized their claim as one grounded in subject-matter jurisdiction in a futile attempt to avoid waiver), abrogated on other grounds by State v. Nielsen, 2014 UT 10, 326 P.3d 645. In Johnson, for instance, the court held that a district court had subject-matter jurisdiction over a divorce case, even though the parties were never actually legally married to begin with, because subject-matter jurisdiction is generally determined by reference to a “class of cases, rather than the specifics of an individual case.” Johnson, 2010 UT 28, ¶ 10. “Because the district court clearly has the authority to adjudicate divorces, looking to the specific facts of a particular case is inconsistent with our usual definition of subject matter jurisdiction.” Id. ¶ 12.

¶14 In fact, our supreme court has limited the concept of subject-matter jurisdiction to two specific situations: “(a) statutory limits on the authority of the court to adjudicate a class of cases,” and “(b) timing and other limits on the justiciability of the proceeding before the court (such as standing, ripeness, and mootness).” In re adoption of B.B., 2017 UT 59, ¶ 121 (quotation simplified); see also id. ¶ 153 (stating that “[o]ur law has long assessed subject-matter jurisdiction at the categorical level—encompassing only statutory limits on the classes of cases to be decided by the court and traditional limits on justiciability”). Neither of these situations is present here.

¶15 Starting with the second category first, Father does not assert that any of the common “justiciability” doctrines apply here, and therefore we need not analyze the potential applicability of any of those doctrines to the facts of this case.

¶16 And with regard to the first category, the text of the statute in question contains no express “limits” on the authority of Utah district courts to adjudicate adoption cases generally, as a class. Even Father wisely concedes that “[d]istrict courts may generally handle adoptions.” Indeed, “in Utah our district courts are courts of general jurisdiction” that have “general power to hear ‘all matters civil and criminal’ so long as they are ‘not excepted in the Utah Constitution and not prohibited by law.’” Id. ¶ 143 (quoting Utah Code section 78A-5-102(1)). More specifically, as concerns adoption cases, our supreme court has noted that “Utah district courts clearly have subject matter jurisdiction over adoption proceedings as a class of cases.” In re adoption of Baby E.Z., 2011 UT 38, ¶ 34, 266 P.3d 702; see also In re adoption of B.B., 2017 UT 59, ¶ 137 (stating that, “[b]y statute, our Utah courts are expressly authorized to assume jurisdiction over adoption petitions”).

¶17 When the legislature intends to place a statutory limit on a district court’s jurisdictional ability to hear a category of cases, it certainly knows how to do so expressly. See In re adoption of B.B., 2017 UT 59, ¶ 143 (stating that “[t]he code . . . places certain restrictions on the jurisdiction of our district courts,” but that such restrictions “are expressly denominated as such—as jurisdictional limits”). For instance, the legislature will identify certain claims as within the “exclusive jurisdiction” of an administrative agency or of a particular type of court, see, e.g., Utah Code Ann. § 34A-2-407(12)(a)–(b) (LexisNexis Supp. 2018) (identifying claims within the “exclusive jurisdiction” of the Labor Commission); id. § 78A-6-103(2) (Supp. 2018) (identifying the “exclusive jurisdiction” of juvenile courts over certain matters), or will note that “no court has jurisdiction” to entertain certain actions, see, e.g., id. § 31A-27a-105(1)(b) (2017) (stating that “[n]o court has jurisdiction to entertain, hear, or determine a delinquency proceeding commenced by any person other than the commissioner of this state”). The subsection of the statute at issue here has no such express limitation on jurisdiction. See id. § 78B-6-105(1)(a).[3] It does not identify adoption cases as within the “exclusive jurisdiction” of the judicial district in which the prospective adoptive parent resides, nor does it state that “no court” but the courts in the district in which the adoptive parents reside has jurisdiction over a case.[4]

¶18 Indeed, while the linguistic structure of the statutory subsection in question is not at all similar to other statutes containing express jurisdictional limits, it is quite similar to other statutes concerning venue. Several of Utah’s venue statutes require that a particular cause of action “be brought and tried” or “commenced and tried” in a particular location. See, e.g., id. § 78B-3-305(1) (stating that “[a]ll transitory causes of action arising outside the state, except those mentioned in Section 78B­3-306, shall . . . be brought and tried in the county where any defendant resides”); id. § 78B-3-306 (stating that “[a]ll transitory causes of action arising outside the state in favor of residents of this state shall be brought and tried in the county where the plaintiff resides, or in the county where the principal defendant resides”). We find it difficult to ignore the similarities between these venue statutes and the statute in question, which states that “[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court . . . where the prospective adoptive parent resides.” See id. § 78B-6-105(1)(a).

¶19      Moreover, in 2004 the legislature amended the title of the statute. Before the amendment, the statute had been captioned “Jurisdiction of district and juvenile court – Time for filing.” See id. § 78-30-7 (LexisNexis 2003).[5] In the 2004 legislative session, without materially altering the relevant language of the statute itself, the legislature changed the title of the statute to read as it does now: “District court venue – Jurisdiction of juvenile court – Jurisdiction over nonresidents – Time for filing.” See Adoption Amendments, ch. 122, § 11, 2004 Utah Laws 546, 553;[6] see also Utah Code Ann. § 78B-6-105. “The title of a statute is not part of the text of a statute, and absent ambiguity, it is generally not used to determine a statute’s intent. However, it is persuasive and can aid in ascertaining the statute’s correct interpretation and application.” Blaisdell v. Dentrix Dental Sys., Inc., 2012 UT 37, ¶ 10, 284 P.3d 616 (quotation simplified). In this case, in which we must determine whether the statute is a jurisdictional statute or a venue statute, we find it significant that the legislature has specifically categorized the statute as one speaking to venue rather than to subject-matter jurisdiction.

¶20 Despite all of these persuasive indications that the relevant statute speaks only to venue and not to subject-matter jurisdiction, Father directs us to two of our previous decisions that have referred to the statute as “jurisdictional.” See In re adoption of S.L.F., 2001 UT App 183, 27 P.3d 583; In re adoption of K.O., 748 P.2d 588 (Utah Ct. App. 1988). Father asserts that those cases constitute binding authority that the statute is jurisdictional and compel the dismissal of Petitioner’s petition.

¶21 Father’s argument certainly has some force. In those cases, we did refer to the statute as containing a “jurisdiction requirement,” see In re adoption of K.O., 748 P.2d at 591; see also In re adoption of S.L.F., 2001 UT App 183, ¶ 17, and even went so far as to state that “[w]ithout knowing the [petitioners’] residence . . . , this Court cannot ascertain whether or not the trial court had jurisdiction to grant the adoption,” In re adoption of K.O., 748 P.2d at 591. In one of the cases, we implicitly rejected the argument Petitioners advance here, namely, that the adoption statute was merely a “venue” statute, and held that “until the adoption petition was properly filed in Second District Court, where [the prospective adoptive parent] resides, the proceeding had not been ‘commenced’ as required” by the statute. In re adoption of S.L.F., 2001 UT App 183, ¶ 16 n.1.[7] And in the other, we specifically stated that, if the trial court on remand “determines that it had no jurisdiction to hear the adoption because the [petitioners] were not residents of Cache County, Utah at the time of filing, that proceeding was void.” In re adoption of K.O., 748 P.2d at 592.

¶22 It is undeniably the case that one panel of this court is bound to follow the previous decisions of another panel of this court, unless we make a specific decision to overrule or disavow the earlier precedent. See State v. Legg, 2018 UT 12, ¶ 9, 417 P.3d 592 (stating that “[u]nder the doctrine of horizontal stare decisis, the first decision by a court on a particular question of law governs later decisions by the same court,” and specifically holding that “[t]he doctrine of horizontal stare decisis applies as between different panels of the court of appeals” (quotation simplified)). However, the principle of horizontal stare decisis only applies if the previous precedent remains robust. See United States v. Plouffe, 445 F.3d 1126, 1128 (9th Cir. 2006) (stating that “where an intervening higher authority has issued an opinion that is clearly irreconcilable with our prior circuit precedent, a panel is free to act disregarding that precedent” (quotation simplified)); see also 21 C.J.S. Courts § 190 (2018) (stating that “stare decisis does not preclude a decision that reflects developments in the law since the courts must consider statutory or case law changes that undermine or contradict the viability of prior precedent”).

¶23 While the two cases upon which Father relies have not been explicitly overruled, two developments have taken place in the decades since those cases were decided that cause us to doubt the continuing vitality of those cases’ discussions of jurisdiction. First, both of those cases were decided prior to 2004, when our legislature amended the title of the statute to specify that the statute, at least as concerns district courts, is intended to speak to venue and not to jurisdiction. Second, since those cases were decided, our supreme court has significantly “cabin[ed] the issues that fall under the category of subject matter jurisdiction,” Johnson, 2010 UT 28, ¶ 10, and has made clear that subject-matter jurisdiction applies to only two situations, neither of which is present in this case. Our fealty is first and foremost to the mandates of our supreme court and to the enactments of our legislature, and where our precedent conflicts with more recent supreme court pronouncements or statutory changes, we are duty-bound to follow the path our supreme court and our legislature have set. See Ortega v. Ridgewood Estates LLC, 2016 UT App 131, ¶ 30, 379 P.3d 18 (“We are bound by vertical stare decisis to follow strictly the decisions rendered by the Utah Supreme Court.” (quotation simplified)); Beltran v. Allen, 926 P.2d 892, 898 (Utah Ct. App. 1996) (stating that “it is the Utah statute, as interpreted by majority holdings of the Utah Supreme Court, which controls the outcome of this case”).[8]

¶24 For these reasons, we conclude that Utah Code section 78B-6-105(1)(a) speaks to venue, and does not limit a court’s subject-matter jurisdiction. Accordingly, unless the adoption is one that must be filed in juvenile court pursuant to Utah Code section 78A-6-103(1)(o), see Utah Code Ann. § 78B-6-105(1)(c), any district court has subject-matter jurisdiction to adjudicate an adoption case, even one filed in the wrong district, but must transfer the case to the correct district upon the filing of a proper request. Cf. id. § 78B-3-308 (stating that, when a case is filed in the wrong venue, a party may file “a written motion requesting the trial be moved to the proper county”).

CONCLUSION

¶25 The provision in Utah’s adoption code that requires that an adoption case be “commenced” by the filing of a petition in a particular judicial district is a provision that speaks to venue, and not to subject-matter jurisdiction. Petitioners did indeed file their petition in the wrong venue, but this did not deprive the court of subject-matter jurisdiction, because any district court in Utah has subject-matter jurisdiction over any adoption case that does not have to be filed in juvenile court. The consequence for filing in the wrong district is not automatic dismissal; it is that any party, upon proper motion, may request that the case be transferred to the correct district. Unless and until such a request is made, however, the court in which the case is filed may continue to adjudicate the case, and its rulings are not void. For all of these reasons, we affirm the district court’s decision to deny Father’s motion to dismiss for lack of subject-matter jurisdiction, and we remand the case to the district court for further proceedings consistent with this opinion.

[1] This provision of the relinquishment explains why the parties are litigating about whether Utah Code section 78B-6-105(1)(a) speaks to subject-matter jurisdiction or to venue: if the statute is jurisdictional, Petitioners’ petition should be dismissed, and in that event Father intends to assert that Child should be returned to Mother’s custody and control.

[2] 2. Father emphasizes the statute’s use of the word “shall,” which is usually interpreted as a mandatory command, see Utah Code Ann. § 68-3-12(1)(j) (LexisNexis 2016) (defining “shall” as meaning “that an action is required or mandatory”), and argues that adoption petitioners are commanded to file their adoption petition in the proper district. This argument is correct, as far as it goes, but the legislature’s use of the word “shall,” in this context, fails to answer the question at the center of this dispute because it tells us nothing about what the intended consequences are for filing the petition in the wrong place. Indeed, this case nicely illustrates one reason why some legal scholars have noted that the word “shall” is “a semantic mess”: because “a recurrent issue in the huge constellation of shall-must holdings” concerns “the effect of failing to honor a mandatory provision’s terms,” which presents “an issue for a treatise on remedies, not interpretation.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 113, 115 (2012).

[3] 3. Father points out that subsection (1)(c) of the statute appears to be jurisdictional, in that it places some adoption cases within the exclusive jurisdiction of the juvenile court, and infers therefrom that the other subsections must therefore also be jurisdictional. Father is arguably correct that subsection (1)(c) speaks to a juvenile court’s subject-matter jurisdiction—that provision states that adoption proceedings “shall be commenced by filing a petition” in “juvenile court as provided in Subsection 78A-6-103(1).” See Utah Code Ann. § 78B-6-105(1)(c) (LexisNexis Supp. 2018). The referenced section of the Juvenile Court Act states that “the juvenile court has exclusive original jurisdiction” over “adoptions” in cases where “the juvenile court has previously entered an order terminating the rights of a parent and finds that adoption is in the best interest of the child.” See id. § 78A-6-103(1)(o) (Supp. 2018). This language does appear to encompass express limits on the authority of courts other than juvenile courts to hear a particular sub-class of adoption cases. However, it does not follow that, just because subsection (c) is jurisdictional, subsections (a) and (b) must also be jurisdictional. On this issue, the title of the statute provides helpful guidance, instructing us that the statute concerns itself with “[d]istrict court venue” but with “[j]urisdiction of juvenile court.” See id. § 78B-6-105; see also infra ¶ 19. As we read the statute, the legislature has placed most adoption cases within the broad subject-matter jurisdiction of district courts, but has placed one sub-class of adoption cases within the narrower subject-matter jurisdiction of juvenile courts. Within the first (broader) category, we do not perceive the legislature as having set any jurisdictional limits on the ability of any particular judicial district or individual district court to hear any of the cases that fall within their purview.

[4] Furthermore, unlike some other comparable state statutes, see, e.g., Wyo. Stat. Ann. § 1-22-109 (2018) (requiring specific documents to be filed with an adoption petition), Utah’s statute does not impose any requirements on petitioners to file specific documents (such as, for instance, relinquishments or consents) with adoption petitions. Father points to some of these other state statutes, and notes that courts in other states have found such requirements to be jurisdictional. See, e.g., In re JWT, 2005 WY 4, ¶¶ 5–6, 104 P.3d 93. Father’s argument is unavailing here, however, because Utah’s statute imposes no such requirements, and therefore we need not consider whether our legislature intended any such requirements to be jurisdictional.

[5] In 2008, Utah Code section 78-30-7 was renumbered as Utah Code section 78B-6-105. See Title 78 Recodification and Revision, ch. 3, § 864, 2008 Utah Laws 48, 443.

[6] The “redline” version of the bill that effected the title change did not show the new title in “redline” format, even though all proposed changes to the body of the statute were clearly marked. Father infers from this that the legislators themselves (as opposed, presumably, to legislative staff) may not have known that the title was even being changed, and therefore asserts that “the title change does not imply any legislative intent.” We find Father’s argument speculative—we simply do not know why the change to the title of the bill was not redlined, or whether that fact has any significance. Legislative history certainly has a role to play in helping courts interpret ambiguous statutes, see, e.g., Allred v. Saunders, 2014 UT 43, ¶ 18, 342 P.3d 204 (stating that “it is sometimes appropriate to consider legislative history when interpreting statutes”), but in order to shed any meaningful light on the question of statutory meaning, the legislative history in question must itself be “reliable,” see Graves v. North E. Services, Inc., 2015 UT 28, ¶ 67, 345 P.3d 619 (stating that “[w]e may resolve ambiguities in the text of the law by reference to reliable indications of legislative understanding or intent” (emphasis added)). It is certainly mysterious that the title change was not redlined even though the rest of the proposed changes were. But without knowing more about the reasons why that happened, or about what (if any) significance that had to the legislators who considered the bill, we find Father’s argument insufficiently persuasive to overcome the basic fact that, prior to 2004, the title proclaimed the statute to be jurisdictional, but that since 2004, the legislature has chosen a title that proclaims the statute to be a venue statute, at least as concerns district courts.

[7] 7. Even in In re adoption of S.L.F., there is some indication that— prior to our supreme court’s more recent cases—this court and the district courts were conceptualizing subject-matter jurisdiction too broadly. In that case, a potential adoptive parent filed an adoption petition in Salt Lake County (in the Third Judicial District), even though she lived in Davis County (in the Second Judicial District). See In re adoption of S.L.F., 2001 UT App 183, ¶ 3, 27 P.3d 583. Later, the parent made a “motion for a change of venue,” asking that the petition be transferred to Davis County. Id. ¶ 5. The Salt Lake County district court granted the motion, and transferred the petition to Davis County. Id. Had there been a jurisdictional defect of the kind Father envisions, transfer would not have been possible— indeed, the only action a court without jurisdiction can take is to dismiss the case. See, e.g., Hollenbach v. Salt Lake City Civil Service Comm’n, 2013 UT App 62, ¶ 3, 299 P.3d 1148 (per curiam) (stating that “when a court lacks jurisdiction, it retains only the authority to dismiss the action” (quotation simplified)). No party took issue with the Salt Lake County district court’s decision to transfer (rather than dismiss) the case, and we did not reach the propriety of that transfer on appeal.

[8] 8. Father also argues that construing the relevant statute as a venue statute rather than as a jurisdictional statute would have “constitutional implications,” because he points out that fathers are required to “strictly” comply with other provisions of Utah’s adoption code, and argues that “it would be unconstitutional to impose a ‘strict compliance’ standard for biological fathers but a more relaxed standard for adoptive parents.” Our conclusion herein regarding the meaning of the relevant statute—and, specifically, regarding the intended consequences of filing a petition in the wrong district—has nothing to do with requiring “strict” or “relaxed” compliance with the statutory mandates. Our conclusion is simply that the legislature intended the statute to function as a venue statute, and therefore a court does not lack subject-matter jurisdiction over an adoption petition filed in the wrong district any more than it would lack subject-matter jurisdiction over a divorce case or a tort case filed in the wrong county. We see no constitutional infirmities with the legislature’s creation of a venue statute in this context, and therefore reject Father’s constitutional arguments.

My boyfriend wants to adopt my son, but my son doesn’t want to be adopted.

How should I respond to a boyfriend that is determined to adopt my child if we marry even though the father pays child support and the child seems stressed by the idea of effectively changing fathers despite really liking my boyfriend?

First, it’s good that he is willing to adopt your son (as opposed to seeing him as an annoyance), even though it’s bad that he wants to take the boy from his biological father.

So how do you respond?

You stand firm and tell your boyfriend:

  • that the father of your child A) has rights parental that your boyfriend does not have; and B) rights to the child that are stronger than the rights (if any) the boyfriend would have as a stepfather.
  • that if the child does not want to be adopted because he already has a responsible father that he knows and loves, then no judge is going to grant a petition for the boy to be adopted by someone else.

You tell your boyfriend that the best way he can foster and maintain a relationship that is mutually beneficial for him and the boy alike is to support the boy’s relationship with his loving, responsible, biological dad. The son’s respect for you will grow because of the respect you have for him and for his relationship with his father.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-should-I-respond-to-a-boyfriend-that-is-determined-to-adopt-my-child-if-we-marry-even-though-the-father-pays-child-support-and-the-child-seems-stressed-by-the-idea-of-effectively-changing-fathers-despite-really/answer/Eric-Johnson-311

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