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Category: Stepparents

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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What Good Parents Need to Know About Child Custody Disputes with an Evil Parent

You hear and read on attorney websites stuff like, “Navigating child custody arrangements during divorce can be challenging.” That’s not the half of it. Child custody disputes with an evil parent are nastier and harder (and orders of magnitude more expensive) than most parents expect or can even imagine. I’m not exaggerating. I am really not exaggerating. Really, I am not exaggerating. Here are some crucial tips to consider for a smoother process.

  • If there is no valid child custody order issued by a court, the police cannot help you “enforce” your “child custody rights”. This is because you have no right to control what the other parent does with the children when it comes to exercising custody. The other parent can deny your requests to spend time with the children. He/she can even deny your requests to call the children on the phone or chat with them over video.

 

o   Even if there is a court order that clearly identifies the child custody and parent-time orders, it’s only as good as the will of the courts and the police to enforce it. Many police departments will either outright refuse to assist you in enforcing the order or will act as if “I can’t understand what the order means, so I can’t help you.”

  • Defend your reputation, your good name, and your parental fitness with everything you have.

o   Courts are afraid of making a mistake when they issue child custody and parent-time orders. Evil parents exploit this fear by accusing innocent, loving parents of terrible traits and acts, so that the court will “protect” the children from them by awarding custody to the other parent and/or restricting parent-time. Mere accusations—if they’re scary enough and skillfully spun—can be enough to force a court’s hand.

o   What kinds of accusations? Abuse! Abuse! Abuse! Physical abuse, sexual abuse, emotional abuse, and substance abuse are the most “successful”.

o   If you are accused wrongfully, defend yourself with everything you have. Point out the dearth of support for the allegations. If you can, get overwhelming amounts of proof in your favor. Live as perfect life as you possibly can. Be as perfect a parent as you can. Sure, it’s unfair unrealistic, but don’t expect the court to be sympathetic with you (especially if you’re a father). Don’t give the court any way to take the path of least resistance, to act “out of an abundance of caution,” or to indulge “better safe than sorry” thinking.

  • Document everything pertaining to the child custody and parent-time awards. Gather as much proof as you possibly can in support of your parental fitness, of your efforts to be there for your children, to spend time with them, to take care of them (feed them, bathe and clothe them, help with homework, play with them, exemplify good morals and values, etc.), so that the court cannot deny your requests without looking biased, ignorant, and/or incompetent.

o   Know what factors the court must consider when making the child custody and parent-time awards, then ensure you satisfy every single one of them beautifully (and if you cannot satisfy them all, explain why, and why that should not disqualify you from being awarded as much custody and parent-time as is in the best interest of the children

  • Here are the factors considered in Utah:
  • In a nutshell: the child’s needs and the parent’s ability to meet them
  • In total:

Utah Code § 30-3-10

–          evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent;

–          the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s:

–          physical needs;

–          emotional needs;

–          educational needs;

–          medical needs; and

–          any special needs;

–          the parent’s capacity and willingness to function as a parent, including:

–          parenting skills;

–          co-parenting skills, including:

(A) ability to appropriately communicate with the other parent;

(B) ability to encourage the sharing of love and affection; and

(C) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

–          ability to provide personal care rather than surrogate care;

–          in accordance with Subsection (10), the past conduct and demonstrated moral character of the parent;

–          the emotional stability of the parent;

–          the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;

–          whether the parent has intentionally exposed the child to pornography or material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;

–          the parent’s reasons for having relinquished custody or parent-time in the past;

–          duration and depth of desire for custody or parent-time;

–          the parent’s religious compatibility with the child;

–          the parent’s financial responsibility;

–          the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the child’s best interests;

–          who has been the primary caretaker of the child;

–          previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community;

–          the relative benefit of keeping siblings together;

–          the stated wishes and concerns of the child, taking into consideration the child’s cognitive ability and emotional maturity;

–          the relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child; and

–          any other factor the court finds relevant.

Utah Code § 30-3-10.2 (when seeking a joint custody award, and “joint custody” does not necessarily mean “equal time”; in Utah means that a parent exercises no less than 111 overnights with the children annually)

–          whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody or joint physical custody or both;

–          the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;

–          co-parenting skills, including:

–          ability to appropriately communicate with the other parent;

–          ability to encourage the sharing of love and affection; and

–          willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

–          whether both parents participated in raising the child before the divorce;

–          the geographical proximity of the homes of the parents;

–          the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal custody or joint physical custody or both;

–          the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;

–          the past and present ability of the parents to cooperate with each other and make decisions jointly; and

–          any other factor the court finds relevant.

 

Utah Code Section 30-3-34 (this is for determining parent-time, but the factors are equally relevant to the child custody award)

–          whether parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;

–          evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, a parent, or a household member of the parent;

–          the distance between the residency of the child and the noncustodial parent;

–          a credible allegation of child abuse has been made;

–          the lack of demonstrated parenting skills without safeguards to ensure the child’s well-being during parent-time;

–          the financial inability of the noncustodial parent to provide adequate food and shelter for the child during periods of parent-time;

–          the preference of the child if the court determines the child is of sufficient maturity;

–          the incarceration of the noncustodial parent in a county jail, secure youth corrections facility, or an adult corrections facility;

–          shared interests between the child and the noncustodial parent;

–          the involvement or lack of involvement of the noncustodial parent in the school, community, religious, or other related activities of the child;

–          the availability of the noncustodial parent to care for the child when the custodial parent is unavailable to do so because of work or other circumstances;

–          a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parent-time;

–          the minimal duration of and lack of significant bonding in the parents’ relationship before the conception of the child;

–          the parent-time schedule of siblings;

–          the lack of reasonable alternatives to the needs of a nursing child; and

–          any other criteria the court determines relevant to the best interests of the child.

Utah Code Section 30-3-35.2 (when seeking an award of equal physical custody)

–          A court may order the equal parent-time schedule described in this section if the court determines that:

–          the equal parent-time schedule is in the child’s best interest;

–          each parent has been actively involved in the child’s life; and

–          each parent can effectively facilitate the equal parent-time schedule.

–          To determine whether each parent has been actively involved in the child’s life, the court shall consider:

–          each parent’s demonstrated responsibility in caring for the child;

–          each parent’s involvement in child care;

–          each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;

–          each parent’s assistance with the child’s homework;

–          each parent’s involvement in preparation of meals, bath time, and bedtime for the child;

–          each parent’s bond with the child; and

–          any other factor the court considers relevant.

–          To determine whether each parent can effectively facilitate the equal parent-time schedule, the court shall consider:

–          the geographic distance between the residence of each parent and the distance between each residence and the child’s school;

–          each parent’s ability to assist with the child’s after school care;

–          the health of the child and each parent, consistent with Subsection 30-3-10(6);

–          the flexibility of each parent’s employment or other schedule;

–          each parent’s ability to provide appropriate playtime with the child;

–          each parent’s history and ability to implement a flexible schedule for the child;

–          physical facilities of each parent’s residence; and

–          any other factor the court considers relevant.

o   Be a class act at all times in your dealings with the other parent, no matter how much mud is slung and no matter how uncooperative antagonistic the other parent is. All the goodwill you’ve built up over a lifetime can be discounted and dismissed in an instant with just one angry outburst (no matter how much the other parent had it coming)

o   You do not build yourself up as a parent by tearing or trying to tear the other parent down. Be as honestly complimentary of the other parent as you can. No, don’t deny serious defects and faults, but unless the other parent is truly a monster, don’t try to paint the other parent as one—it’s not only evil, but it can backfire.

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

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My Ex-wife Is Married. Should Her and Her New Husband’s Total Household Income Be Used When Determining Child Support?

I really don’t understand why this question gets asked, and it is asked frequently. Actually, that’s not true. I do know why.

The people who usually ask this question are child support obligors (payors) who are suffering under the burden of their child support obligation. They resent having to pay so much child support, or even any child support of all. Frankly, I sympathize. Often, child support is calculated incorrectly, based upon an income that the child support obligor does not earn and never did earn. Sometimes child support is based upon the obligee falsely reporting his/her income is much lower than it really is. Other times, child support is based upon an award of child custody that is unfair to parent and child alike.

And so there are many discouraged child support obligors who become obsessed with finding a way to pay less or no child support. This obsession clouds their judgment. They begin to see “reasons” for reducing or eliminating the child support obligations that make no sense. One of these so-called reasons (that isn’t really a reason) is when the child support obligee remarries. The thinking goes in the minds of these hapless child support obligors that the remarried parent now has a new income source in the form of the income of the new spouse’s income. The problem with this argument is that while the parent may have a new spouse, that new spouse is a stepparent to the child, not that child’s parent. The child still has only two parents who are financially responsible for that child’s support. Stepparents do not have an obligation to support their stepchildren in Utah. And that is why parents who remarry do not have their spouses’ incomes included in their own incomes for child support calculation purposes in Utah.

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

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How can I help my stepdaughter get away from an abusive mother?

How can I help my 12-year-old step daughter get away from an emotionally abusive mother? 

Tell the child’s father (your husband) about the trouble and have him handle it. It’s not legally your fight. You should certainly share your observations and your suggestions, if sought, and you should offer to help in any reasonable way your husband my want or need you to help. But if Dad’s not on board, then no matter how much you want to help, it’s not your place to go it alone. 

Be supportive of your step-daughter and of your husband, but don’t be the one who initiates anything with the mother or the courts. Again, it’s not legally your fight. If you raise the concern you might do your step-daughter’s cause (and both her credibility as a victim and your credibility as a witness) a disservice by looking like a busybody, a “jealous wife” trying to smear the child’s mother to gain the child’s and your husband’s favor and loyalty.  

https://www.quora.com/How-can-I-help-my-12-year-old-step-daughter-get-away-from-an-emotionally-abusive-mother/answer/Eric-Johnson-311  

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

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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.”

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

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How do I best explain to my daughters that I am divorcing their stepmom?

What is the best way for me to explain to my 3 daughters that the reason in which I am divorcing their Assistant Prosecutor stepmother is because I wouldn’t let her legally adopt them and that I had an affair with one of her former friend’s?

I realize that there may be more to your question and its context than the question itself may indicate. I realize you may or may not be the only one to blame for the deterioration of your marriage. 

Do right by both your children and your wife. Resist the temptation to “correct” one mistake by making others in an effort to cover for past wrongs you have committed. 

I’d speak with a good (a good) psychologist or qualified counselor to help me confront how and why I came to this point and how my family did. I’d seek some help to understand what I should do going forward and why I should do so, how I should and can take responsibility for my actions in the past and for the future. 

I’d speak with a good (a good) child psychologist to gain an understanding of how to break this kind of news to your children and how to discuss any questions your children may have. 

I’d speak with my pastor or priest (or whoever your religious leader may be) to get some guidance as well. 

I’d be sure to be honest with my children, in a way that is sensitive to their age and maturity and needs. 

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

https://www.quora.com/What-is-the-best-way-for-me-to-explain-to-my-3-daughters-that-the-reason-in-which-I-am-divorcing-their-Assistant-Prosecutor-stepmother-is-because-I-wouldn-t-let-her-legally-adopt-them-and-that-I-had-an-affair-with/answer/Eric-Johnson-311  

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What are some cases of extended relatives getting visitation rights with children? 

In Utah, that question has been thoroughly discussed on the subject of grandparent visitation rights in the case of Jones v. Jones. and if you don’t want to read the rest of my answer, Jones vs. Jones set an extremely high bar for grandparents winning visitation rights, as well it should have. The idea of people other than parents having visitation rights with minor children is presumed inimical to parental rights and the integrity of the nuclear family. What follows is from some of the headnotes from the Westlaw report of Jones v. Jones, 307 P.3d 598 (Utah Ct.App. 2013):  

– Grandparents seeking court-ordered visitation must overcome the presumption that a parent’s decision with regard to grandparent visitation is in the grandchild’s best interests by clear and convincing evidence. West’s U.C.A. § 30–5–2(2);  

– Paternal grandparents failed to show that state’s interest in ordering visitation under Grandparent Visitation Statute was compelling, as required to prove that statute satisfied due process, although father was deceased and grandparents asserted they had enjoyed a substantial relationship with child before mother abruptly ended visitation two years before trial, where grandparent visitation evaluation contained no reference to harm suffered by child, the record described a healthy and normal grandparent-grandchild relationship, but not an exceptionally close one, and evaluator’s prediction that child may benefit in future from knowing her paternal grandparents in order to grieve her father’s death was speculative. U.S.C.A. Const.Amend. 14; West’s U.C.A. Const. Art. 1, § 7; West’s U.C.A. §§ 30–5–2, 78A–6–503(9). 

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

https://www.quora.com/What-are-some-cases-of-extended-relatives-getting-visitation-rights-with-children/answer/Eric-Johnson-311?prompt_topic_bio=1  

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What are tips for parents sharing custody during COVID-19?

What are the different tips for parents sharing custody during this COVID-19?

Best tip: don’t use COVID-19 as a pretext for withholding/preventing/sabotaging contact and care and communication between the children from the other parent. Don’t use COVID-19 as a pretext for alienating the children from the other parent. COVID-19 may raise some legitimate concerns and require some changes, even some necessary restrictions on contact between children and the parent(s), but where there’s a will to ensure that the loving bond between parent(s) and children is not unduly strained or damaged by COVID-19, there is a way.

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

https://www.quora.com/What-are-the-different-tips-for-parents-sharing-custody-during-this-COVID-19/answer/Eric-Johnson-311

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Can a mother lose custody even if the child is still very young?

Can a mother lose custody even if the child is still very young?

Are there any situations where a mother can lose custody even if their child is still very young (e.g., under 5 years old)?

Oh, heck yeah. Many possible situations. Rather than identify all the various ways that a mother of a young child could lose or not be awarded sole or primary custody of that child or children, let’s just examine the basis for determining whether a parent keeps, wins, or is deprived of custody of a child. All states have slightly different criteria but these criteria all come down to this: parental fitness.

Parental fitness is evaluated in the contexts of a parent’s desire and ability to provide for the child’s physical and emotional needs and welfare.

In Utah, where I practice family law and go to hearings and trials over child custody disputes, the factors the court must consider and factors that the court can consider when determining whether to award sole or joint custody are contained in these sections of the Utah Code and the Utah Rules of Judicial Administration:

Utah Code § 30–3–10:

(a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent;

(b) the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s:

(i) physical needs;

(ii) emotional needs;

(iii) educational needs;

(iv) medical needs; and

(v) any special needs;

(c) the parent’s capacity and willingness to function as a parent, including:

(i) parenting skills;

(ii) co-parenting skills, including:

(A) ability to appropriately communicate with the other parent;

(B) ability to encourage the sharing of love and affection; and

(C) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

(iii) ability to provide personal care rather than surrogate care;

(d) in accordance with Subsection (10), the past conduct and demonstrated moral character of the parent;

(e) the emotional stability of the parent;

(f) the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;

(g) whether the parent has intentionally exposed the child to pornography or material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;

(h) the parent’s reasons for having relinquished custody or parent-time in the past;

(i) duration and depth of desire for custody or parent-time;

(j) the parent’s religious compatibility with the child;

(k) the parent’s financial responsibility;

(l) the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the child’s best interests;

(m) who has been the primary caretaker of the child;

(n) previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community;

(o) the relative benefit of keeping siblings together;

(p) the stated wishes and concerns of the child, taking into consideration the child’s cognitive ability and emotional maturity;

(q) the relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child; and

(r) any other factor the court finds relevant.

Utah Code §30–3–10.2:

(a) whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody or joint physical custody or both;

(b) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;

(c) co-parenting skills, including:

(i) ability to appropriately communicate with the other parent;

(ii) ability to encourage the sharing of love and affection; and

(iii) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

(d) whether both parents participated in raising the child before the divorce;

(e) the geographical proximity of the homes of the parents;

(f) the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal custody or joint physical custody or both;

(g) the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;

(h) the past and present ability of the parents to cooperate with each other and make decisions jointly; and

(i) any other factor the court finds relevant.

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

https://www.quora.com/Are-there-any-situations-where-a-mother-can-lose-custody-even-if-their-child-is-still-very-young-e-g-under-5-years-old/answer/Eric-Johnson-311

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Judge says stay away from my paramour. Can judge do that?

Judge says stay away from my paramour. Can judge do that?

I became pregnant by my paramour after my husband and I separated. The court order states we are not to have paramours around our child. Will the judge take custody from me if I have my paramour around due to the situation?

I assume that your question is based upon a situation in which:

  • you and your husband have a child together (we’ll call that child “Child A”).
  • you and your husband are separated.
  • there is a divorce case pending, and the court has ordered that your paramour can not be around Child A (which is not an unusual order for courts to make, by the way).
  • at some point, whether before or after separation, you were impregnated by your paramour.

Now that you are pregnant by your paramour, it appears that both you and your paramour wants to be together to support one another during your pregnancy and be a witness to the miracle of birth as it unfolds. That’s understandable.

But there’s this court order that prohibits you from being with your paramour when you are with Child A. And you appear to want your paramour with you when you are with Child A. And you wonder whether the court would take custody of Child A from you if you violate the court’s order.

Your questions are essentially: is the court’s order fair? And will I lose custody if I disobey the court’s order?

The answers to your question (and for anyone in your situation) are:

Yes, the court’s order is fair. Reasonable minds can differ as to whether it is necessary that you be ordered to bar your paramour from being with you when Child A is also with you, but if a court concludes that having the paramour around might confuse the child as to who the child’s parent is and that exposing a child to adulterous relationships and/or that shacking up is morally and pragmatically unwise is well within a judge’s rational and sound discretion.

Yes, a court could base, in whole or in part, a decision to award custody of Child A to your husband upon the fact that you are disobeying its order barring you from being with your paramour when you are with Child A. Why? Because violating court orders shows that you cannot be trusted, that you place your interests ahead of law and order and/or ahead of what the court deems best for your child. Solution: don’t have your paramour around when you are scheduled to spend time with Child A. Is this hard? Perhaps. Is it worth it to ensure you don’t lose custody or parental rights? Of course.

https://www.quora.com/I-became-pregnant-by-my-paramour-after-my-husband-and-I-separated-The-court-order-states-we-are-not-to-have-paramours-around-our-child-Will-judge-take-custody-from-me-if-I-have-my-paramour-around-due-to-the/answer/Eric-Johnson-311?prompt_topic_bio=1

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

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Must I treat my stepchild the same as my biological child?

Would I be the bad person if I wanted to take my biological child on a weekend trip with me but didn’t want to bring my spouse’s child (my stepchild), with us?

Just you and your own child? No. Even if your stepchild were unhappy about it, you and your blood relative son are entitled to spend some time together by yourselves. Heck, my own father would take each of his kids on a little trip just the two of them (father and one) child for a one on one kind of experience with Dad. ‘Nothing at all wrong with what you’re contemplating.

There are some stepparents and stepchildren who form a strong and loving bond as deep as the bonds we associate with biological parents and children, but this is the exception, not the rule, and the difference between the parent-child and stepparent-stepchild relationship is not your “fault” nor is it your responsibility to change.

Of course you should show love and attention to your stepchild too, even if going on a trip with just your own son may be perceived by some as “loving the stepchild less.” It’s not. And your stepchild would benefit from learning—and it’s worth explaining this to your stepchild—sooner than later.

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

https://www.quora.com/Would-I-be-the-bad-person-if-I-wanted-to-take-my-biological-child-on-a-weekend-trip-with-me-but-didnt-want-to-bring-my-spouse-s-child-my-step-child-with-us/answer/Eric-Johnson-311

Can a stepparent get custody of a stepchild, if the biological/adoptive parent’s parental rights are terminated?

Question: If a child’s parents were to lose custody of him, and the only family member left was the stepparent’s family (not legally related), would the stepparent(s) get the child?

Answer: Not as a matter of right. They could try to get custody by petitioning the court for an award of custody, but stepparents have no inherent rights to custody of their stepchildren. They have to go to court to obtain an order of custody to obtain custody of stepchildren.

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

https://www.quora.com/If-a-childs-parents-were-to-lose-custody-of-them-and-the-only-family-member-left-was-the-stepparents-family-not-legally-related-would-they-get-the-child/answer/Eric-Johnson-311

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My in-laws don’t give their step-grandchild birthday gifts How would you handle this situation?

My in-laws don’t give their step-grandchild birthday gifts, although, they send lavish presents for no special occasion to their biological grandchildren. As a parent, how would you handle this situation? All 4 of the children are under 10 years old.

Here is how I see it as a parent: while it is awkward and upsetting (and unkind) that the grandparents won’t treat the step-grandchild the same way as their biological grandchildren, they are under no obligation to do so. They are free to choose what kind of people they are.

Because the step-child has no “right” or entitlement to gifts, neither he/she nor his/her parent can expect or demand that anyone give the step-grandchild gifts. This is hard for the step-grandchild to experience, but such is life. Disappointments and betrayals arise. We all have to face them. Trying to avoid or deny them only makes the inevitability of facing them more difficult.

Of course the child will suffer from the snubs (and it’s agonizing for a parent to witness it). You and the child can be more compassionate, more understanding, gain the blessings of forgiveness as a result. Or you and the child choose to nurse a grudge and all that it entails. Either way, the step-grandparents likely won’t care, so which option appeals to you most? Which is best for the child?

This does not mean, however, that you and your child must be gluttons for step-grandparent slights. The step-grandparents should rightly suffer the natural consequences of (not your spiteful responses to) their behavior. Because they are causing your family trouble by favoring certain children over others, it is perfectly reasonable for you to shield the child from routine humiliation, and the step-grandparents should not be surprised if they are not included in family events as often as they might otherwise have been.

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

https://www.quora.com/My-in-laws-don-t-give-their-step-grandchild-birthday-gifts-although-they-send-lavish-presents-for-no-special-occasion-to-their-biological-grandchildren-As-a-parent-how-would-you-handle-this-situation-All-4-of-the/answer/Eric-Johnson-311

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What document(s) do I need to travel with my children after divorce?

What do I need to travel by airplane or travel internationally with my children after divorce?

What you will need if you and your child are U.S. citizens and you and your child are going to travel by air with your child within the U.S. will likely not be as much as what you will need if you and your child are U.S. citizens and you and your child are going to travel internationally with your child. Still, a parental consent letter for international travel with a child will be more than sufficient to cover your needs for domestic travel with the child within the U.S. So for these reasons, this blog post will detail what you need and what I recommend you have to travel with a child internationally.

  • Your child must have a passport. To get a passport for a child (whether 16 years of age or younger) follow the requirements of the U.S. Department of State Bureau of Consular Affairs. Those requirements can be found by clicking here.
  • Unless you either have sole legal custody of your child or meet certain requirements, the consent of both parents is needed to obtain a passport for your child.

If you have sole legal custody of your child, this is what is required of you to obtain a passport for your child:

You must submit evidence of this with the application. Examples include:

  • Complete court order granting you sole legal custody of the child, such as a divorce decree or other custody order
  • Complete court order specifically permitting you to apply for your child’s passport (photocopy is acceptable)
  • Certified copy of the child’s birth certificate listing you as the onlyparent
  • Certified copy of an adoption decree listing you as the onlyparent
  • Certified copy of the judicial declaration of incompetence of the parent that cannot appear in person
  • Certified copy of the death certificate of the parent that cannot appear in person
  • If your ex-spouse will not cooperate and give consent for your child to apply for an obtain a passport, then you will need to obtain either a court order granting you sole legal custody of the child, such as a divorce decree or other custody order or a court order specifically permitting you to apply for your child’s passport

Click here to learn how to obtain a passport for children under the age of 16

If you cannot locate the other parent:

Letter of Parental Consent for International Travel

The U.S. Customs and Border Protection division of the Department of Homeland Security provides this on its website:

[QUESTION] If a child (under the age of 18) is traveling with only one parent or someone who is not a parent or legal guardian, what paperwork should the adult have to indicate permission or legal authority to have that child in their care?

[ANSWER] U.S. Customs and Border Protection (CBP) strongly recommends that unless the child is accompanied by both parents, the adult have a note from the child’s other parent (or, in the case of a child traveling with grandparents, uncles or aunts, sisters or brothers, friends, or in groups*, a note signed by both parents) stating “I acknowledge that my wife/husband/etc. is traveling out of the country with my son/daughter/group. He/She/They has/have my permission.”

Another good reason for having a parental consent letter for travel with a child (whether domestically or internationally) is because some airlines may require signed consent from the child’s other parent before allowing a child to board the plan. Because entry and departure requirements for travelers often vary from one destination to another, an immigration official may ask to see signed consent from the child’s other parent before allowing a child to leave the country.

As for what Customs and Border Protection recommends a parental consent letter contain, the CPB website provides:

What should a parental consent/permission letter look like?  Is there a Customs and Border Protection (CBP) form?

There is not a CBP Form letter but this is a letter you create.  The “Parental Consent Letter” should include the following elements:

Who

What

Where

When

Why

Contact information for the absent parent(s).

Having the letter notarized is not necessary but highly recommended.

For frequent border crossers, the letter should not exceed one year.  It is recommended to have the letter in English.

Here is a sample parental consent letter that I have prepared for some of my clients to use:

To Whom It May Concern:

I, _______________, am [the non-custodial parent] [the father] [the mother] [one of the parents] of the child more fully identified as:

Name: ______________ [first, middle, last], whose photograph is provided below for the purpose of identifying her

Date of birth: ______________

Place of birth: ______________

[If the child already has a passport and the child is traveling internationally, you may wish to include the following information in the parental consent letter:]

Child’s U.S. or foreign passport number:

Date and Place of issuance of child’s passport:

Date child’s passport expires:

______________ [name of the child]’s mother (and my [ex-wife] [ex-husband]) is ______________ [name of parent].

U.S. or foreign passport number:

Date and Place of issuance of [other parent’s] passport:

______________ [name of other parent, as it appears on other parent’s passport] has my consent

[to travel with our ______________ [son] [daughter], ______________ [child name] internationally as of the date appearing hereon and in the future.]

[to travel with our ______________ [son] [daughter], ______________ [child name], to [identify the foreign countries to which the child will travel] during the period between [start date] and [end date]. During that period, our [son/daughter] will be in the care and custody of [ex-spouse] and is anticipated to travel and/or stay with [identify other people the child will be traveling with, if any], the child’s [identify relationship(s), i.e., grandparent, aunt, uncle, coach, neighbor, etc.]. These fellow travelers can be reached at:

[Complete address of person(s) with whom child will be traveling/staying]

[Telephone number of person(s) with whom child will be traveling/staying]

[E-mail address of person(s) with whom child will be traveling/staying]

This photograph is a picture of [child] that accurately depicts her as of the date appearing hereon:

[include a recent, small, but clear photograph of the child here]

Signature:

 

_______________________________________

[printed out name of parent signing]

[Father/mother] of [child’s name]

STATE OF __________________________ )

: ss.

COUNTY OF _______________________ )

On this _____ day of ________________ 2018, personally appeared before me the undersigned, a Notary Public in and for said county and state [signing parent’s name], who is known to me to be the person who signed the foregoing document and who acknowledged to me that he signed it freely and voluntarily.

WITNESS my hand and official seal.

______________________________________

NOTARY PUBLIC

——————————–

Pro tip: Bring your child’s birth certificate (or certified copy of the birth certificate) with you to the airport to verify the child’s age and, in some instances, your relationship to the child.

Click here to know what documents, identification, and paperwork a U.S. citizen needs to travel internationally and/or into the United States.

Travel Provisions You May Want to Include in Your Decree of Divorce, if Your Decree Has Not Yet Been Issued

If you are not yet divorce and believe you might be traveling by airplane or internationally with your children after divorce, you may wish to cover some of these requirements in the provisions of your Decree of Divorce. You may want to include the following provisions in the decree of divorce:

  • express authorization for either parent to obtain a passport for each child;
  • express authorization for either parent to travel internationally with any or all of the children without having to obtain a letter of consent from the other parent
  • If there are compelling reasons to restrict a parent to traveling internationally with your children, or to restrict a parent to traveling with your children without your express written consent each time the children travel with that parent, you will want to ensure that you request that such provision are provided in your decree of divorce as well.

International Child Kidnapping Laws

For a good general explanation of the laws governing international parental abduction (kidnapping), visit this section of the U.S. State Department’s website on the subject.

 

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

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O’Hearon v. Hansen, 2017 UT App 214 – Utah’s Custody and Visitation for Persons Other than Parents Act

2017 UT App 214

THE UTAH COURT OF APPEALS

RICK O’HEARON,

Appellant,

EDWARD HANSEN, Appellee.

Opinion

No. 20160178-CA

Filed November 24, 2017

Seventh District Court, Price Department

The Honorable George M. Harmond No. 154700225

David S. Head, Attorney for Appellant

McKette H. Allred, Attorney for Appellee

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

HARRIS, Judge:

¶1 In November 2015, the mother (Mother) of three children (the Children) was tragically killed in a car accident. For the preceding eight years, the Children had lived with Mother and her husband, Rick O’Hearon (Stepfather). Soon after the car accident, Stepfather filed a petition (the Petition), pursuant to Utah’s Custody and Visitation for Persons Other than Parents Act (the Act),[1] seeking custody of the Children and asserting that since 2007 he had “assumed the role and obligations” of the Children’s father. Upon motion from the Children’s father Edward Hansen (Father), the district court dismissed Stepfather’s Petition. The district court determined that the Petition did not allege facts sufficient to meet all of the requirements of the Act, specifically the seventh requirement, which requires Stepfather to prove that Father either (a) “is absent” or (b) “is found by a court to have abused or neglected the child.”

¶2 We conclude that Stepfather has—at least for the purposes of review pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure—made allegations sufficient to satisfy all seven of the requirements of the Act. We first conclude that Stepfather has alleged facts that, if true, would meet the first six requirements of the Act. We then analyze the seventh requirement of the Act in detail, and conclude that Stepfather has not sufficiently alleged that Father “is found by a court to have abused or neglected the child,” but that Stepfather has alleged facts that, if proven to be true, may meet the Act’s requirement that Father “is absent.” In reaching this conclusion, we determine that the phrase “is absent” contemplates a present tense inquiry, not a backward-looking inquiry, and requires a petitioner to prove that the parent is, at the time of the filing of the petition, currently not present for the purposes of parenting the children. Accordingly, because we conclude that Stepfather has alleged facts sufficient to potentially meet all seven requirements of the Act, we reverse the district court’s order dismissing the Petition for failure to state a claim upon which relief can be granted.

BACKGROUND

¶3 Because this case comes to us after dismissal of the Petition pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure, we recite the facts as set forth in the Petition, and accept that the facts alleged therein are true. See Williams v.

Bench, 2008 UT App 306, ¶ 2 n.2, 193 P.3d 640.

¶4 Between 2007 and the time of filing of the Petition, the Children resided with Mother and Stepfather in Stepfather’s home. During those years, Mother and Stepfather “provided exclusive care” for the Children, and Stepfather “assumed the role and obligations” of the Children’s father and “emotionally and financially cared for” the Children. In so doing, Stepfather “developed an emotional bond and a parent-child relationship” with the Children.

¶5 On the other hand, according to the Petition, Father “has been absent from” the Children’s lives and has “only sporadically visited” the Children. Indeed, Father “rarely visited the minor children and when [Father] did visit . . . it was limited to an hour visit, once a month.” In addition, Father “has neglected” the Children “by leaving them in [Stepfather’s] care since 2007 and [by] not providing for their emotional and physical needs.” In the Petition, Stepfather also alleged that Father “does not have a stable residence for the minor children to reside [in]” and that Father “is incapable of caring for the minor children on his own.”

¶6 Following Mother’s death, Stepfather did not seek to wholly terminate Father’s parental rights.[2] Instead, Stepfather filed the Petition, seeking sole legal and physical custody of the Children pursuant to the Act, but not seeking to entirely eliminate Father’s opportunity for visitation. Even if a court granted the Petition in its entirety, Father could still obtain an order entitling him to parent-time, because his parental rights would remain intact. In addition to seeking custody, Stepfather also sought an order requiring Father to pay child support and to share equally in paying the Children’s medical expenses.

¶7 After being served with the Petition, Father responded by filing a motion to dismiss. Father argued that, although Mother had been awarded sole physical custody of the Children after their divorce, the divorce decree ceased to operate upon Mother’s death pursuant to this court’s decision in Nielson v. Nielson, 826 P.2d 1065 (Utah Ct. App. 1991). He further argued that he had “the right to the sole legal and physical custody and control of the children over [Stepfather], absent termination or suspension of [Father’s] parental rights.” Because Stepfather had not sought to terminate Father’s parental rights, Father asserted that, even assuming the allegations in the Petition were true, dismissal was nonetheless warranted. Father’s motion did not reference the Act.

¶8 The district court granted Father’s motion to dismiss. In its order the district court discussed the Act and explained that Stepfather could prevail on his Petition only if he could establish all seven of the Act’s requirements by clear and convincing evidence, including the seventh one that requires a petitioner to demonstrate either (a) that Father “is absent” or (b) that Father “is found by a court to have abused or neglected the child.” See Utah Code Ann. § 30-5a-103(2)(g) (LexisNexis Supp. 2017). The district court concluded that Stepfather could not meet this seventh requirement, but limited its analysis to the “is absent” part of that requirement, and determined that Stepfather’s allegation that Father had visited the Children “once per month” foreclosed Stepfather’s ability to prove that element. The district court stated that, even if this allegation were true, “this pattern is far too frequent to allow the court to conclude that [Father] has voluntarily absented himself from his children’s lives.” Therefore, “even construing the complaint in the light most favorable to [Stepfather] and making all reasonable inferences in his favor . . . [Father] has visited his children regularly and thus is not absent under” the Act.

¶9        Stepfather appeals.

ISSUE AND STANDARD OF REVIEW

¶10 The sole issue in this appeal is whether the district court properly granted Father’s motion to dismiss. In reviewing a district court’s grant of a motion to dismiss for failure to state a claim upon which relief can be granted, we accept all facts alleged as true, Osguthorpe v. Wolf Mountain Resorts, LC, 2010 UT 29, ¶ 10, 232 P.3d 999, and “indulge[] all reasonable inferences” in favor of the non-moving party, Haik v. Salt Lake City Corp., 2017 UT 14, ¶ 7, 393 P.3d 285 (citation and internal quotation marks omitted). A district court should grant a motion to dismiss only if it is clear from the allegations that the nonmoving party would not be entitled to relief under the set of facts alleged or under any facts it could prove to support its claim. Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 14, 243 P.3d 1275.[3] We review a district court’s ruling on a motion to dismiss for correctness. In re Adoption of Baby E.Z., 2011 UT 38, ¶ 10, 266 P.3d 702.

ANALYSIS

¶11 The Act itself recites that “it is the public policy of this state that parents retain the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of their children.” Utah Code Ann. § 30-5a-103(1). This statutory proclamation is in line with United States Supreme Court precedent declaring that parents have a fundamental constitutional right to parent their children. See Troxel v. Granville, 530 U.S. 57, 66 (2000) (recognizing that “the

Due Process Clause of the Fourteenth Amendment [of the United States Constitution] protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children”).[4] Pursuant to this fundamental right, the terms of the Act acknowledge “a rebuttable presumption that a parent’s decisions are in the child’s best interests.” See Utah Code Ann. § 30-5a-103(1). However, a parent’s fundamental right to raise a child is not absolute. “A parent’s rights must be balanced against the state’s important interest in protecting children from harm.” Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 74, 250 P.3d 465 (citing In re J.P., 648 P.2d 1364, 1377 (Utah 1982)). To protect a child from harm, a court may remove a child from the child’s home and place the child in the protective custody of the State, see Utah Code Ann. § 78A-6-302(1) (LexisNexis Supp. 2017), or even go so far as to “terminate all parental rights” if certain criteria are met, see id. § 78A-6-507(1)(a)–(i) (LexisNexis 2012).

¶12 Similarly, “every state in the nation has enacted some form of a non-parent visitation statute” that allows, under certain circumstances, a non-parent to gain custodial or visitation rights, even without going so far as to terminate the legal parents’ rights. See Holly M. Davis, Non-Parent Visitation Statutes: Was Troxel v. Granville Their Death-Knell?, 23 Whittier L. Rev. 721, 736 (2002) (collecting various statutes that provide an opportunity for non-parents to establish visitation or custody rights). The enactment of these statutes is due, in part, to “the ‘recognition of [the] changing realities of the American family.’” Id. at 737 (alteration in original) (quoting Troxel, 530 U.S. at 64). Utah is no exception; in 2008, our legislature enacted the Act, creating a pathway for non-parents, under limited circumstances, to win an order of custody or visitation regarding children who are not legally theirs.

¶13 Under the Act, the requirements imposed upon petitioners are understandably onerous. A court “may find” the parental presumption rebutted, and “grant custodial or visitation rights to a person other than a parent,” only if the petitioner proves, by clear and convincing evidence, that seven requirements are met. See Utah Code Ann. § 30-5a-103(2). The first six of these requirements concern the petitioner’s relationship with the child, see D.A. v. D.H., 2014 UT App 138, ¶ 9, 329 P.3d 828 (stating that “[t]he first six factors . . . require the court to examine the nature and quality of the relationship between the child and the non-parent”), and require the petitioning non-parent to prove the following:

  • the person has intentionally assumed the role and obligations of a parent;
  • the person and the child have formed an emotional bond and created a parent-child type relationship;
  • the person contributed emotionally or financially to the child’s well being;
  • assumption of the parental role is not the result of a financially compensated surrogate care arrangement;
  • continuation of the relationship between the person and the child would be in the child’s best interests; [and]
  • loss or cessation of the relationship between the person and the child would be detrimental to the child.

Utah Code Ann. § 30-5a-103(2)(a)–(f). The seventh factor, by contrast, concerns the status of the child’s current legal parent. See D.A., 2014 UT App 138, ¶ 14 (stating that “‘the parent’ in subsection (2)(g) unambiguously refers to the parent whose presumption is being challenged”). To meet this seventh requirement, the petitioner must demonstrate that the legal parent either (a) “is absent,” or (b) “is found by a court to have abused or neglected the child.” Utah Code Ann. § 30-5a103(2)(g). If the petitioner successfully demonstrates the existence of all seven factors, then the court “may” award the petitioner custodial or visitation rights. Id. § 30-5a-103(2).

A

¶14 We begin our analysis by examining the first six factors— the ones concerning the relationship between Stepfather and the Children. Although the district court did not discuss these factors (because the district court believed that the seventh requirement was not met), Father nonetheless invites us to affirm the district court’s decision on the alternative ground that Stepfather has also not alleged facts sufficient to meet the first six requirements. We decline this invitation.

¶15 In his Petition, Stepfather alleges that he has “assumed the role and obligations of the minor children’s father”; has “provided exclusive care for the minor children”; has “developed an emotional bond and a parent-child relationship” with the Children; and has “emotionally and financially cared for the minor children.” These allegations are sufficient to meet the first three requirements. See id. § 30-5a-103(2)(a)–(c) (requiring that the non-parent assume the “role and obligations of a parent,” “form[] an emotional bond and create[] a parentchild type relationship,” and “contribute[] emotionally or financially to the child’s well being”). Further, Stepfather alleges that he “has not been compensated for caring for the minor children,” an allegation sufficient to satisfy the fourth requirement that there be no “financially compensated surrogate care arrangement.” See id. § 30-5a-103(2)(d). Finally, the Petition asserts “that continuation of the relationship with the minor children is in the minor children’s best interest and the loss of this relationship would be detrimental to the minor children.” This allegation meets the final two requirements relating to the parent-child relationship. See id. § 30-5a-103(2)(e), (f) (requiring the non-parent to show that “continuation of the relationship . . . would be in the child’s best interest” and that “loss or cessation of the relationship . . . would be detrimental to the child”).

¶16 As noted, given the procedural posture of the case, we must assume that all of these allegations are true. Accordingly, we are satisfied that Stepfather has alleged facts that, if proven, would satisfy the first six requirements of the Act.

B

¶17 Next, we turn to the question of whether Stepfather has alleged facts sufficient to satisfy the Act’s seventh requirement, pursuant to which Stepfather must demonstrate that Father either (a) “is absent,” or (b) “is found by a court to have abused or neglected the child.” Id. § 30-5a-103(2)(g). In order to reach a decision on this question, we must first ascertain the meaning of those phrases (neither of which are separately defined in the Act). After arriving at a definition of those phrases, we will examine Stepfather’s Petition to determine whether the allegations set forth there are sufficient to survive Father’s motion to dismiss.

1

¶18 The phrase “is absent” contains two words—“is” and “absent”—and both require our attention. One might think that the word “is” is plain enough on its face, but as our supreme court recently noted in a case almost entirely devoted to an exploration of the word’s definition, the question of “what the meaning of the word ‘is’ is” was complicated enough to

“capture[] the nation’s attention” back in 1999. See Scott v. Scott, 2017 UT 66, ¶ 1 (internal quotation marks omitted). Fortunately for our analysis, we have guidance from our supreme court on the question.

¶19 In Scott, our supreme court was asked to explore the meaning of the term “is cohabitating,” as that term is used in a different section of Title 30 of the Utah Code. That statute states that alimony obligations terminate if the payor spouse can establish that the payee spouse “is cohabitating with another person.” See Utah Code Ann. § 30-3-5(10) (LexisNexis Supp. 2017) (emphasis added). In Scott, the payee spouse had apparently been living with another person, and the payor spouse believed this relationship amounted to cohabitation. See Scott, 2017 UT 66, ¶ 3. However, the payee spouse ended the cohabiting relationship “months before [the payor spouse] filed his motion” to terminate alimony payments. Id. At the time the motion to terminate alimony was filed, the payee spouse was not cohabiting with any other person. On those facts, both the district court and this court determined that the payee spouse had cohabited, and that alimony payments should terminate as a result of the past cohabitation. Id. ¶ 1.

¶20 The supreme court reversed, however, and declared, in a Seussian burst of anapestic tetrameter,[5] that “is should mean is and not was or has been.” Id. The court carefully examined the tense of the verb used by the legislature, and determined that, “[i]n light of the statute’s plain language, we cannot see how a showing of anything less than present or ongoing cohabitation meets the statute’s terms head-on.” Id. ¶ 23. The court continued its analysis by concluding that “[t]he present tense is demands the condition to be present at the time the paying spouse declares before the court that a former spouse is cohabiting,” and “[t]hat declaration takes place on the date of filing” of the motion to terminate alimony. Id. ¶ 30. Because any cohabitation had ceased prior to the time of filing, the supreme court held that the payor spouse’s motion to terminate did not meet the requirements of the statute and that alimony payments must continue.

¶21 We perceive no material differences—indeed, no differences at all—between the manner in which the word is is used in the alimony statute and the manner in which that same word is used in the Act. Accordingly, Scott requires us to interpret the word is in the phrase “is absent” in the same way. In the Act, the legislature used the same present tense form of the verb “to be” as it used in the alimony statute. There, as here, “is should mean is and not was or has been.” Id. ¶ 1. In Scott, the date from which this present-tense inquiry was taken was the date of the filing of the motion to terminate alimony—the date that the “paying spouse declares before the court that a former spouse is cohabiting.” Id. ¶ 30. Here, the operative date is the date of the filing of Stepfather’s Petition—the date Stepfather declared before the court that Father “is absent.” Thus, to succeed on his Petition, Stepfather must allege—and eventually prove—that Father was “absent” as of December 1, 2015, the date Stepfather filed his Petition.

¶22 We emphasize that this is not a backward-looking inquiry.[6] It is a snapshot in time, taken on December 1, 2015, and                                                                                                                  examining whether, on that date, Father was “absent.” Because it is a present-tense, snapshot-in-time inquiry, evidence of Father’s past actions will be of only tangential relevance[7] in conducting that inquiry.

¶23 Having determined that a parent’s “absen[ce]” must be analyzed in present-tense fashion, as of the date of the filing of a petition under the Act, we must now turn to the question of what “absent” means. When we interpret statutory language, “our primary goal” is to ascertain the “true intent and purpose of the Legislature.” Rent-A-Center West, Inc. v. Utah State Tax Comm’n, 2016 UT 1, ¶ 13, 367 P.3d 989 (citation and internal quotation marks omitted).

¶24 If the Act itself had a definition of “absent,” we would of course look there first. See State v. Rasabout, 2015 UT 72, ¶ 43, 356 P.3d 1258 (Lee, J., concurring) (stating that a “threshold question” in statutory interpretation “is whether the legislative text conveys some specialized meaning” such as “a statutorily defined term, a scientific phrase, or a legal term of art” and, if it does, “the specialized meaning controls”). Here, the Act does not provide a separate definition of the term “absent,” and we are unaware of any specialized meaning of the term that ought to apply. In such cases, we must interpret the statutory language “according to the ‘plain’ meaning of [its] text.” See Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465; see also Anadarko Petroleum Corp. v. Utah State Tax Comm’n, 2015 UT 25, ¶ 11, 345 P.3d 648 (stating that “[w]hen interpreting a statute, we look first to the plain and ordinary meaning of its terms”); Reynolds v. Bickel, 2013 UT 32, ¶ 10, 307 P.3d 570 (stating that “[t]he best evidence of the legislature’s intent is the plain language of the statute itself” (citation and internal quotation marks omitted)).

¶25 A “starting point” for a court’s “assessment of ordinary meaning is the dictionary.” See State v. Bagnes, 2014 UT 4, ¶ 14, 322 P.3d 719. In this case, there is remarkable uniformity among dictionaries as to the definition of the word in question. All dictionaries that we consulted, or that were brought to our attention during this case, define “absent,” first and foremost, as “not present.” See, e.g., Absent, Cambridge English Dictionary, dictionary.cambridge.org/us/dictionary/english/absent [https://perma.cc/2FS7-XF2B] (“not present” or “not in the place where you are expected to be”); Absent, English Oxford Living Dictionaries, en.oxforddictionaries.com/definition/absent [https://perma.cc/CJ5L-9XBK] (“not present in a place, at an occasion, or as part of something”); Absent, Merriam-Webster, www.merriam-webster.com/dictionary/absent [https://perma.cc/ DME2-BNZP] (“not present at a usual or expected place”); Absent, New Oxford American Dictionary 6 (3d ed. 2010) (“not present in a place”); Absent, Webster’s Third New Int’l Dictionary 6 (1993) (“not present or not attending”).[8]

¶26 When a term is not defined within a particular section of the Utah Code, courts may also look to other sections of the Utah Code to see whether the same term is defined elsewhere. See Wasatch Crest Ins. Co. v. LWP Claims Adm’rs Corp., 2007 UT 32,

¶ 13, 158 P.3d 548 (stating that “[a]lthough the Utah Insurance Code does not define the term ‘distribution,’ the term is defined elsewhere in the Utah Code”); see also LeBeau v. State, 2014 UT 39, ¶ 34, 337 P.3d 254 (stating that “[t]hough the Legislature did not specifically define ‘interests of justice’ in the aggravated kidnapping statute, it has provided guidance elsewhere in the Utah Code”). There are several places in the Utah Code—outside of the Act—where the legislature has defined the word “absent” and, as with the dictionary definitions, each time the legislature has defined “absent” it has done so, in context, to essentially mean “not present.” See Utah Code Ann. § 53-2a-802(1)(a)(i) (LexisNexis Supp. 2017) (defining “absent” in the Emergency Interim Succession Act as “not physically present or not able to be communicated with for 48 hours”); id. § 53A-11-101(1)(a) (LexisNexis 2016) (defining “absent” in the educational context as the “failure of a school-age minor assigned to a class or class period to attend the entire class or class period”); id. § 10-3301(1)(a) (LexisNexis Supp. 2017) (defining “absent” in the Municipal Code as where a “municipal officer fails to perform official duties, including the officer’s failure to attend each regularly scheduled meeting that the officer is required to attend”).

¶27 Based on these authorities, we conclude that the word “absent” means “not present,” and that a parent “is absent,” as that term is used in context in the relevant section of the Act, if the parent is not present for the purpose of parenting the child. There could be various forms that such “absence” might take. A parent who is incarcerated or hospitalized (or in drug or alcohol rehabilitation) on a long-term basis may fit the definition of “absent,” because such a parent may not be able to be present for the purpose of parenting the child. Alternatively, a parent who simply does not wish to parent the child, even if that parent is physically residing in close proximity and is otherwise able to parent the child, may also be “absent” as that term is used in the Act. On the other side of the coin, however, a parent who, at the time of the filing of a petition under the Act, is present and willing to parent the child will usually not meet the definition of “absent.”[9]

¶28 The question of whether a parent “is absent” is a question of fact that will ordinarily be reserved for the factfinder. We note also that the burden of demonstrating that a parent “is absent” falls upon the petitioner, and that this burden requires proof by clear and convincing evidence. See Utah Code Ann. § 30-5a-

103(2) (stating that custody or visitation rights may be afforded to a person “who, by clear and convincing evidence, has established all” seven requirements).

¶29 This simple and straightforward interpretation of the word “absent” appears to us to be in line with the policy considerations that motivated passage of the Act. A legal parent’s rights are fundamental. Id. § 30-5a-103(1). Legal parents retain constitutional privileges “to exercise primary control over  the care, supervision, upbringing, and education of their children,” and “[t]here is a rebuttable presumption” that a legal parent’s decisions “are in the child’s best interests.” Id. Unless the legal parent’s rights are terminated, that parent has the primary right to parent the child, a right that ordinarily trumps any interest claimed by stepparents, grandparents, or any other interested non-parent. See, e.g., Jones v. Barlow, 2007 UT 20, ¶ 39, 154 P.3d 808 (stating that “[i]t is a fundamental tenet of our common law that the only persons having any actually vested interest in the custody of a child cognizable by the law are the parents,” and that “[o]ther relatives of a child merely have some dormant or inchoate right or interest in the custody and welfare of children that matures only upon the death or termination of the rights of the parents” (citation and internal quotation marks omitted)). The Act was enacted to create a pathway for nonparents to obtain legal rights of custody and visitation, but only in situations where the legal parent “is found to have abused or neglected the child,” or where the legal parent “is absent.” See Utah Code Ann. § 30-5a-103(2)(g). In situations where a legal parent has not been found to have abused and neglected his child, and where that parent is present and willing to parent the child, the legal parent’s rights are properly prioritized. It is therefore entirely in keeping with these principles for the Act to apply only in situations where the legal parent is not present for the purpose of parenting the child, or where the legal parent is found to have abused or neglected the child.

¶30 In summary, then, to demonstrate that a legal parent “is absent” under the Act, the petitioner must prove, by clear and convincing evidence, that at the time the petition was filed the legal parent was not present for the purpose of parenting the child.

2

¶31 A petitioner can also satisfy the Act’s seventh requirement by demonstrating that the parent “is found by a court to have abused or neglected the child.” See id. § 30-5a-103(2)(g)(ii). As with the “is absent” option, the first word of the statutory language is the present-tense verb is. We see no reason to interpret the word is in one option any differently than in the other. Accordingly, for the reasons set forth above, we conclude that, in order to meet this element, a petitioner must be able to allege and prove that, at the time of the filing of the petition, the parent is at that point already “found by a court to have abused or neglected the child.”

¶32 It follows from this conclusion that the determination of “abuse” or “neglect” must already have been made, most likely by either a juvenile court or another district court.[10] The statute does not contemplate that a determination of abuse or neglect can be made in the context of, and at the conclusion of, an action filed pursuant to the Act. This conclusion is not only compelled by the legislature’s use of the present-tense verb is, but is also bolstered by the legislature’s use of the phrase “found by a court.” Findings are always made by judicial or quasi-judicial tribunals, and there is no need to specify—if the findings are to be made in the context of the case initiated by the petition—that the findings must be made by a court. Indeed, if the legislature had intended for the finding of abuse or neglect to be made in the context of the newly-filed petition, the legislature could easily have so indicated by simply stating that the seventh requirement could be met if the parent “has abused or neglected the child.” The legislature’s careful use of the phrase “is found by a court to have abused or neglected the child” connotes an intent that this finding had to have been made by a court prior to the filing of the petition.

¶33 Accordingly, if a determination of abuse or neglect has not already been made by a court at the time of the filing of the petition, then the parent is not “found by a court to have abused or neglected the child.”

3

¶34 Now that we have ascertained the definitions of the relevant terms, we must examine Stepfather’s Petition to determine whether Stepfather adequately alleged facts that might satisfy the Act’s seventh requirement.

¶35 Clearly, Stepfather has not pleaded allegations sufficient to succeed on the “abuse or neglect” alternative. Stepfather alleged in the Petition that Father “has neglected the minor children by leaving them in [Stepfather’s] care since 2007 and not providing for their emotional or physical needs.” However, he nowhere alleges that a court had previously found Father “to have abused or neglected the child[ren].” See Utah Code Ann. § 30-5a-103(2)(g)(ii). Thus, the Petition failed to allege sufficient facts to meet the statutory requirements on that ground.

¶36 The Petition does, however, allege sufficient facts to assert that Father was “absent” on December 1, 2015, the time of the filing of the Petition. Chief among those are the allegations found at paragraph twenty-two of his petition, where Stepfather alleges that Father “has been absent from the minor children’s lives,” and has left “them in [Stepfather’s] care since 2007.” While stated in a backward-looking way, the use of the phrase “since 2007” may suggest that Stepfather believes the situation is ongoing and has not changed over the years. This allegation— viewed generously and in a light most favorable to Stepfather— could possibly mean that Father was and remains absent, even as of the time of the filing of the Petition. In addition, of some potential relevance are Stepfather’s present-tense allegations that Father “is incapable” of caring for the Children, and that Father “does not have a stable residence” at which the Children can reside. Taken together, and viewed in the light most favorable to Stepfather, the allegations contained in the Petition are sufficient to state a claim that Father was “absent” at the time the Petition was filed. As a result, the district court should not have granted Father’s motion to dismiss on this ground.

¶37 Specifically, the district court’s singular focus on Father’s previous visits was incorrect. Even assuming that Father regularly visited the Children in the past, and that he was perfectly ready, willing, and able to parent the Children in the past, he can still be considered “absent” under the Act if, as of the date of the filing of the Petition, he was no longer present for the purposes of parenting the Children. Cf. Scott, 2017 UT 66, ¶ 10 (holding that a spouse who had previously cohabited, but was no longer cohabiting at the time of the filing of the operative motion, could continue to receive alimony payments).

¶38 We express no opinion about whether Stepfather will ultimately be able to succeed on the merits of his claim that Father was “absent” as of December 1, 2015. Many of Stepfather’s allegations are backward-looking assertions about Father’s previous relationship with the Children that, as noted, bear only a tangential relationship to the relevant inquiry. Further proceedings are necessary to ascertain whether Stepfather’s allegation that Father “has been absent from” the Children’s lives “since 2007” was intended to include presenttense allegations. Likewise, it is unclear whether Stepfather’s present-tense allegations that Father “is incapable” of parenting the Children and that Father “does not have a stable residence” are intended to assert “absence” as the Act defines it. If by these allegations Stepfather intends to assert that Father, despite his willingness to parent the Children, is simply an unfit parent who should not be allowed to do so, that allegation will be insufficient because it does not go to “absence.” On the other hand, if the allegations are intended to convey that Father “is incapable” of parenting the Children and that he has no “stable residence” because he is not present for some reason, those allegations may state facts that might help Stepfather prove that Father “is absent.” We note that Father’s appearance in this case, and his active defense of it, tends to indicate that he may very well be present and willing to parent the Children, but all such factual issues are beyond the scope of this appeal. Ultimately, we cannot predict whether Stepfather will succeed in his endeavor to win an order of custody or visitation under the Act. Certainly, the Act’s requirements are onerous and strict, as one would expect given the law’s entirely appropriate concern for the rights of legal parents. But all we are asked to determine here is whether Stepfather has pleaded facts sufficient to survive a motion to dismiss, and we conclude that he has.

CONCLUSION

¶39 Stepfather has alleged facts that, if later proven to be true, could potentially satisfy all seven of the Act’s requirements. Accordingly, his Petition should not have been dismissed for failure to state a claim. We therefore reverse the district court’s order, and remand this case to the district court for further proceedings consistent with this opinion.

——————————-

[1] . The Act is codified at Utah Code Ann. §§ 30-5a-101 to -104 (LexisNexis Supp. 2017).

[2] . Based on the facts alleged in his Petition, this may have been an option for Stepfather pursuant to the Termination of Parental Rights Act. See Utah Code Ann. §§ 78A-6-501 to -515 (LexisNexis 2012). “Any interested party . . . may file a petition for termination of the parent-child relationship with regard to a child.” Id. § 78A-6-504(1). A court adjudicating a petition for termination of parental rights “may terminate” those rights if it finds, among other things, that “the parent has abandoned the child.” Id. § 78A-6-507(1). It is considered “prima facie evidence” of abandonment if the parent has “failed to communicate with the child by mail, telephone, or otherwise for six months.” Id.

78A-6-508(1)(b) (LexisNexis Supp. 2017).

[3]. The Act contains a requirement that any petition filed thereunder “shall include detailed facts supporting the petitioner’s right to file the petition including the criteria set forth in Subsection (2) and residency information as set forth in Section 78B-13-209.” See Utah Code Ann. § 30-5a-103(5). We are not asked to determine, and therefore do not opine upon, whether this statutory provision imposes special pleading burdens upon petitioners that would require us to employ a standard of review different from the standard generally applied to review of decisions granting motions to dismiss.

[4] . Father has not asserted that the Act is unconstitutional, and therefore we confine our analysis to the terms of the Act itself.

[5] . Illustrative examples from Dr. Seuss’s writings abound, but one that somehow seems apt here, given the discussion about plain meaning, is Horton’s declaration that: I meant what I said And I said what I meant . . . An elephant’s faithful One hundred per cent!

Dr. Seuss, Horton Hatches the Egg 16, 21, 26, 38 (1940).

[6] The district court appeared to presume that a backwardlooking inquiry was required; indeed, the court rested its decision on the allegation that Father had periodically visited the Children in the past and therefore could not be considered “absent.” This notion is supported by dicta in our decision in D.A. v. D.H., 2014 UT App 138, ¶¶ 15–18, 329 P.3d 828. There, we discussed certain comments made by legislators during the passage of the Act, some of which appeared to envision a backward-looking inquiry into a parent’s “absence.” Id. ¶ 16 (referencing comments by Sen. Hillyard). We acknowledge some inconsistency between our conclusion today and the dicta in D.A. v. D.H. We are, however, constrained by the supreme court’s more recent decision in Scott, which commands a plain language analysis, even if we have reason to believe that the legislature may have intended something different than what the plain language dictates. See Scott v. Scott, 2017 UT 66, ¶¶ 26, 28 (stating that “we start from the premise that we should discern what the legislature intended from the plain language of the text unencumbered by notions of what we think the legislature must have wanted the language to accomplish,” and that “it is our obligation to take the plain language at face value and trust the legislature to amend the statute if it intended a different result”); see also Smith v. Price Dev. Co., 2005 UT 87, ¶ 16, 125 P.3d 945  (stating that courts “may turn to secondary principles of statutory construction or look to a provision’s legislative history only if [courts] find the provision ambiguous”).

[7] By “tangential relevance,” we refer to situations where evidence may be helpful to set the stage or to paint a more complete background picture of the parties’ situation in aid of explaining how the present-tense circumstances that are alleged to constitute “absence” came to be. Such background information is likely admissible, and may even be essential as a practical matter to assist the factfinder in completely understanding the parties’ situation, but it does not directly bear on the question of whether a legal parent “is absent” as of the date a petition is filed.

[8] . Even the infamous Urban Dictionary concurs, defining “absent” as “the state of not being where you are supposed to be.” See Absent, Urban Dictionary, www.urbandictionary.com/ define.php?term=Absent [https://perma.cc/8QAT-TYN3]. We recognize that our search for various meanings of the word “absent” is not as thorough as that advocated by proponents of “corpus linguistics,” see State v. Rasabout, 2015 UT 72, ¶ 57, 356

P.3d 1258 (Lee, J., concurring) (defining “corpus linguistics” as “access[ing] large bodies of real-world language to see how particular words or phrases are actually used in written or spoken English,” and advocating for its more widespread use in judicial decision-making), but we note that where the Cambridge and Oxford Dictionaries, on the one hand, and the Urban Dictionary, on the other hand, both agree upon the basic meaning of a word, we can be fairly confident that we have arrived at the meaning of the word that is “actually used in written or spoken English.” See id.

[9] . We have purposefully not referenced the word “fit” in describing the definition of the word “absent,” because we do not think the “absence” inquiry was intended to devolve into litigation over parental fitness. If the legislature had intended a present and willing but otherwise unfit parent to meet the requirements of subsection (g)(i), it could have used a word other than “absent,” or at a minimum added language to that effect. Its decision not to include any direct language about parental fitness must be presumed to have been intentional. See Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (stating that “we assume, absent a contrary indication, that the legislature used each term [in a statute] advisedly,” that “the expression of one term should be interpreted as the exclusion of another,” and that courts “seek to give effect to omissions in statutory language by presuming all omissions to be purposeful” (citation and internal quotation marks omitted)). Indeed, there are other statutory avenues available to a non-parent who believes that a legal parent is unfit. The second part of subsection (g), for instance, allows a petitioner to meet the Act’s seventh requirement by demonstrating that the legal parent “is found by a court to have abused or neglected the child.” See Utah Code Ann. § 30-5a-103(2)(g)(ii). And there are other statutory options, apart from the Act itself. See, e.g., id. § 78A-6-304 (LexisNexis 2012) (allowing “any interested person” to file a petition seeking intervention by the Division of Child and Family Services, a petition that may be granted for reasons including parental abuse or neglect); id § 78A-6-507(c) (allowing a petitioner to seek termination of a parent’s rights if that parent is “unfit or incompetent”).

[10] . For this reason, we need not concern ourselves here with ascertaining the specific definition of “abuse” or “neglect” under the Act. Because any determination of “abuse” or “neglect” must have already been made before the filing of any petition under the Act, a court—potentially even a court in another state—will have already applied definitions of those terms from other contexts, presumably using the definitions similar to those found in Utah’s Juvenile Court Act. See Utah Code Ann. § 78A-6-105(1) (LexisNexis Supp. 2017) (abuse); id. § 78A-6-105(27) (neglect).

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