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Tag: ICPC

In re R.G. – 2023 UT App 144 THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF R.G., A PERSON UNDER EIGHTEEN YEARS OF AGE.

G.G.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220635-CA

Filed November 24, 2023

Second District Juvenile Court, Ogden Department

The Honorable Tasha Williams

No. 1183589

Keith Andrew Fitzgerald, Attorney for Appellant

Sean D. Reyes and John M. Peterson,

Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 G.G. (Father) appeals the juvenile court’s order terminating his parental rights to R.G. (Child). Father argues the juvenile court erred in finding that termination of his parental rights was strictly necessary, because placement of Child with Father’s sister in another state was an option. Because Father has not persuaded us that the court committed reversible error, we affirm its order terminating Father’s parental rights.

BACKGROUND[1]

¶2        Child was born in January 2020. The following day, the Division of Child and Family Services (DCFS) received a referral indicating that Child’s mother (Mother)[2] had tested positive for illegal substances both at the time of Child’s birth and during her pregnancy. Thereafter, a DCFS caseworker put a safety plan in place and Child was allowed to leave the hospital and return home with Father and Mother.

¶3        Almost exactly one month later, the juvenile court held a pretrial shelter hearing, which Father did not attend. Following the hearing, the court entered an order removing Child from Father’s and Mother’s custody and placing Child in the temporary custody of DCFS. That same day, a DCFS caseworker (Caseworker) held a kinship meeting to discuss placement options for Child. Despite being informed of the meeting, neither Father nor Mother chose to attend. Nevertheless, Caseworker identified an in-state kinship placement with a foster family (Foster Family) that had previously adopted two of Child’s biological half-siblings.

¶4        A verified petition for custody and legal guardianship was filed one day after the shelter hearing. A few days later, Mother told Caseworker that she wanted Child to be placed with Father’s sister (Aunt), who lived in Georgia. Father made the same request.

¶5        In March 2020, Father attended a pretrial hearing on the verified petition. Based on Father’s admissions to the allegations in the petition, the juvenile court adjudicated Child neglected as to Father.[3] Child was placed in DCFS’s custody, and the court set Child’s permanency goal as reunification with a concurrent goal of adoption. The court ordered that reunification services be provided to Father and that Father comply with a child and family plan.

¶6        In May 2020, Caseworker contacted Aunt to begin the placement process provided by the Interstate Compact on the Placement of Children (the ICPC).[4] Caseworker explained that the next step was to fill out paperwork to send to the Utah state office. She noted that the time required to complete the paperwork would depend on how soon she could obtain the necessary documents, including Child’s social security card and birth certificate. Because Caseworker did not have those documents for Child on file, she requested them from the parents and from the social security office.

¶7        For the remainder of 2020, the juvenile court held periodic review hearings as required by statute. At the first hearing in June,

the court ordered DCFS “to move forward with the ICPC.” At a hearing in August, the State informed the court that “the ICPC has been put on hold due to [DCFS] not having a social security number, or birth certificate for [Child].”

¶8        After multiple failed attempts to obtain Child’s social security card and birth certificate from the parents, Caseworker was finally able to obtain the documents from the social security office, which had taken several extra months due to closures related to the COVID-19 pandemic. On November 6, 2020, DCFS informed the juvenile court that it had completed its portion of the ICPC paperwork and asked the court to send the paperwork to Georgia so that the Georgia state office could complete its part. The juvenile court signed the order on November 10.

¶9        Reunification services to Father were terminated in February 2021 due to Father’s noncompliance with the child and family plan. In June, the State filed a petition to terminate Father’s parental rights.

¶10 In September 2021, the juvenile court held a pretrial hearing on the termination petition, during which the status of the ICPC was discussed. Father’s counsel indicated that Aunt had “completed and submitted” to Georgia all the required paperwork. However, DCFS reported that Caseworker had contacted the Georgia state office regarding the ICPC but there had been no information provided as to its status. Father then addressed the court. He explained that Aunt notified him that morning that she had completed the ICPC paperwork. Father also informed the court that he was willing to relinquish his rights to Child if Aunt could adopt her, and he reminded the court that his desire “from the get-go” had been to place Child with Aunt. Based in part on the unresolved questions related to the status of the ICPC, the court scheduled a second pretrial hearing to take place in October.

¶11      At the October pretrial hearing, the State reported the status of the ICPC:

[DCFS] was able to get an update from the state of Georgia and that update was filed with the Court. It does show that there were some additional documents that need to be turned in. There was a deadline of July 30th for those to be submitted and as of the date of the report which is dated September 13th, they have not been turned in. I don’t think we have anything more current than that as far as what’s happening with the ICPC but it appears that is stalled until the family turns in the necessary documents.

In response to this update, Aunt told the court that she had submitted the completed ICPC paperwork, completed a required class, and was currently participating in a home study. After discussing the status of the ICPC, the parties discussed its relevance. The guardian ad litem (the GAL) and the State indicated that the ICPC was a “backup plan” because Child was in a kinship placement with Foster Family and had been there for a “long” time. Mother and Father disagreed with this assessment. Counsel for both parents stated that the original reason for requesting the ICPC was to allow Aunt to be the primary placement. Following this discussion, the court concluded that regardless of Child’s placement goal, the parties were in “a holding pattern” and Child could not yet be placed with Aunt because “the home study hasn’t been approved” and the ICPC was therefore not complete.

¶12      Trial on the State’s petition to terminate parental rights began in November 2021. Despite having proper notice, Father failed to appear at the termination trial. Father’s counsel moved to be released due to this failure, and the juvenile court granted counsel’s motion. The trial then proceeded by proffer. At the close

of trial, the court entered an order terminating Father’s parental rights, which Father subsequently appealed. Thereafter, the State, the GAL, Father, and Mother filed a stipulated motion for summary reversal. This court granted the motion and accordingly vacated the termination order and remanded the matter for a new trial.

¶13 The second termination trial occurred over the course of three days in April 2022. The juvenile court heard testimony from Caseworker, Father, and Child’s foster parents (Foster Parents). Caseworker testified that at the beginning of the case, Father expressed interest in having Child placed with Aunt in Georgia. Caseworker explained that because Aunt lives out-of-state, DCFS cannot place Child with Aunt unless Aunt has an approved ICPC. Caseworker testified that she started the ICPC process in April 2020 and that she completed the ICPC paperwork and sent it to Georgia in November 2020. Caseworker stated that she would have been able to submit the paperwork sooner had Father provided Child’s social security card and birth certificate to her directly, but because he did not, Caseworker had to obtain the documents from the social security office, which had been closed due to the COVID-19 pandemic.

¶14 Caseworker testified that since submitting the ICPC paperwork, she had received “minimal updates” from Georgia— despite the fact that she had followed up “[a]bout every month” —and that she did not have any control over the Georgia state office. She explained that she did not contact Aunt directly during the ICPC process because the “proper channel” for all communication related to an ICPC is between the state offices; however, Caseworker testified that had Aunt contacted DCFS and requested visitation, DCFS “would have given it to her.” Caseworker noted that the most recent ICPC update from Georgia was given on February 3, 2022, which stated, “Home study is being written with an expected completion date of 2/14/2022. Will be sent for approval at that time.” At the time of trial, however,

Caseworker had not been informed whether the home study had been approved or not, nor had she received any kind of final report on the ICPC.

¶15      Lastly, Caseworker testified that under DCFS guidelines, Child was considered to be in a kinship placement because she was placed with Foster Family—the family that had adopted two of Child’s biological half-siblings. Caseworker also noted that DCFS has no “level of preference” for different kinship placements. Therefore, even if the approved ICPC had been received, DCFS had already satisfied its “internal standards” by placing Child with kin.

¶16 Regarding placement options, Father testified that although Child “is in good hands” with Foster Family, he wanted her to be placed with Aunt, a desire that he had expressed since the beginning of the case. Father acknowledged that Aunt has never met Child and that removing Child from Foster Family would be a “disruption.” However, Father blamed DCFS for the delay in the ICPC approval, claiming that Aunt had done “everything she possibly could.”

¶17 Foster Parents both testified about Child’s strong relationship with Foster Family. Child’s foster mother (Foster Mother) stated that Child is “almost inseparable” from her foster sibling and that Child and her biological half-siblings “have a great relationship.” Foster Parents expressed their desire to adopt Child, and Foster Mother explained that it would be “devastating” for the entire family, including Child, if Child were to be removed from their home.

¶18      In addition, Foster Mother testified that allowing Child to remain in contact with Father might not be in her best interest because “[t]here’s just a lot of anxiety that happens with [Child] after visits.” Specifically, Child “was having night terrors . . . when we were doing visits. She would wake up crying, but you couldn’t actually wake her up. She was just crying . . . .” Foster

Mother stated that the night terrors stopped when the visits with Father stopped.

¶19      Moreover, Father had a history of engaging in violent and threatening behavior. Specifically, Father threatened Caseworker when she canceled a visit after Father failed to check in, and from then on, DCFS was required to provide extra security during Father’s visits. Father also threatened Foster Parents and had been found looking up Foster Parents’ contact information. And Father admitted to committing violent acts against Mother on several occasions.

¶20 On June 28, 2022, approximately two months after the termination trial, the juvenile court entered a thirty-page order terminating Father’s parental rights to Child. The court found that DCFS made “reasonable efforts” in pursuing the ICPC, including that Caseworker had worked to obtain the necessary documentation and complete the ICPC paperwork as quickly as possible, that Caseworker followed up on the status of the ICPC “about every month,” that Georgia had provided “minimal updates” on the ICPC throughout the case, and that Father’s testimony that Aunt had completed the ICPC and was “cleared” was not credible. Further, the court found that it was in Child’s best interest to remain with Foster Family because Child had become “integrated” into Foster Family, because Child had developed strong bonds with her foster sibling and half-siblings, and because removing Child from her existing placement would be difficult. Moreover, the court found that Aunt “did not request contact with [Child] and has not met her.” Based on these findings, the court concluded that termination was strictly necessary to protect Child’s best interest. It explained:

[T]his Court must consider all the permanency options for [Child] and whether she can be equally protected and benefitted by an option other than termination. One option is for a placement with

[Aunt] in Georgia. However, at the time of trial the ICPC had not been approved, legally barring such placement. Further, at this point, the placement is not in [Child’s] best interest. [Child] has never met [Aunt] and [Aunt] has never requested visits with her. [Child] has no familial relationship with [Aunt]. . . . When viewed from [Child’s] point of view, as required by statute, termination is strictly necessary so that the loving family attachments she has made with [Foster Family] and her biological [half-siblings] can be preserved through adoption.

¶21      Father filed a notice of appeal of the juvenile court’s termination order on July 7, 2022. On July 18, the court held a post-termination review hearing. Because Father’s parental rights had been terminated, he did not attend the hearing; only the State, Caseworker, and the GAL were present. The parties discussed Child’s welfare as well as the status of the ICPC. Following the hearing, the court issued an order indicating that the ICPC had been approved but declining to alter Child’s placement. The court reasoned as follows:

[DCFS’s] court report indicates that [Child] continues to do well in the foster placement with her biological siblings. In June, 2022 [DCFS] received an approved ICPC from Georgia for [Aunt]. [Aunt] has never met [Child] and has no relationship with her. She never requested contact or updates during the case. It would not be appropriate or in [Child’s] best interest to change placements at this point in the case so [DCFS] sent a Case Closure Form to Georgia.

ISSUE AND STANDARDS OF REVIEW

¶22 Father appeals the juvenile court’s order terminating his parental rights to Child, arguing that the court erred in concluding it was strictly necessary to terminate his parental rights. “We review deferentially a lower court’s best-interest determination and will overturn it only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.”[5] In re J.J.W., 2022 UT App 116, ¶ 18, 520 P.3d 38 (quotation simplified)However, Father acknowledges that he did not raise this issue below, and he therefore asks us to review the court’s strictly necessary determination for plain error.[6] To succeed on a claim of plain error, Father must show that “(1) an error exists; (2) the error should have been obvious to the juvenile court; and (3) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome.” In re S.T., 2022 UT App 130, ¶ 14, 521 P.3d 887 (quotation simplified).

ANALYSIS

¶23      Father argues the juvenile court erred in determining that

it was strictly necessary to terminate his parental rights because the court did not adequately consider other feasible placement options for Child. Father’s challenge largely concerns the court’s consideration of the ICPC and whether Aunt was a feasible placement option. Because Father did not raise this issue below, to succeed on appeal he must show that a harmful error exists and that the error should have been obvious to the juvenile court. See In re J.A.L., 2022 UT 12, ¶ 12, 506 P.3d 606.

¶24 “Because the relationship between parent and child is constitutionally protected, a court may only terminate parental rights upon a finding that termination is strictly necessary to the best interest[] of the child.”[7] In re S.T., 2022 UT App 130, ¶ 33, 521 P.3d 887 (quotation simplified). Here, the juvenile court determined it was strictly necessary to terminate Father’s parental rights because there was no option available, short of termination and adoption, that would equally protect and benefit Child. In

 

making this determination, the court considered, among other options, permanent guardianship with Foster Parents and permanent guardianship with Aunt. Ultimately, the court decided against placement with Aunt for two reasons. First, Aunt was in Georgia, and “at the time of trial the ICPC had not been approved, legally barring such placement.” Second, placement with Aunt was not in Child’s best interest because Child “has never met [Aunt] and [Aunt] has never requested visits with her. [Child] has no familial relationship with [Aunt].”

¶25      Father assails the juvenile court’s reasoning on both points. As to the first, Father contends the ICPC was approved before termination was ordered and therefore it should have been adjudicated with the termination petition. And as to the second, Father contends the court’s analysis was inadequate and based on categorical concerns. For the reasons discussed below, his attack is unavailing.

¶26      First, Father mischaracterizes the record regarding the ICPC. Father asserts that the ICPC “was definitively completed before the written order of termination of parental rights [was] entered” but that the results were “concealed by DCFS until post-termination proceedings.”[8] But Father’s position on this point is undermined by his concession that “[n]one of the parties can conclusively state [when the ICPC was approved] because [DCFS] never presented this information.” Indeed, it is unclear from the record whether DCFS received the approved ICPC before or after the court entered its final order terminating Father’s parental rights. The only definitive information available in the record is that the termination trial was held in April 2022; the court entered its termination order on June 28; and on July 18, the court held a post-termination review hearing, during which DCFS reported that in June 2022 it had “received an approved ICPC from Georgia” for Aunt. Therefore, while the approved ICPC may have been received by DCFS while the matter was still under advisement by the court, Father has not demonstrated that this was absolutely the case.

¶27 Furthermore, regardless of whether the approved ICPC was presented to the juvenile court pre- or post-termination, on the facts of this case, Father cannot demonstrate that the court’s strictly necessary determination would have been any different had it received the ICPC earlier.[9] As an initial matter, it is undisputed that DCFS informed the court about the approved ICPC and the court considered the implications of that approval during a post-termination review hearing. Indeed, during the review hearing, the court stated that although the ICPC for Aunt had been approved, “[i]t would not be appropriate or in [Child’s] best interest to change placements at this point in the case.” The court reasoned that Child “continues to do well in the foster placement with her biological [half-]siblings,” whereas Aunt “has never met [Child] and has no relationship with her. [Aunt] never requested contact or updates during the case.” Because the court’s decision to not change Child’s placement post-termination rested at least in part on Aunt’s lack of engagement throughout the duration of the years-long case—including after the ICPC was approved—there is no indication that an earlier receipt of the approved ICPC would have had any bearing on the court’s reasoning. See In re G.D., 2021 UT 19, ¶ 81, 491 P.3d 867 (finding that a juvenile court’s strictly necessary analysis was not deficient where the court declined to “admit and consider the evidence [the appellants] presented after trial” because neither Utah law nor Utah caselaw “requires a juvenile court to consider supplemental evidence that merely elaborates on a factor the court already considered in its ‘strictly necessary’ analysis—especially when that evidence does not address or refute the considerations on which the court relied to reach its conclusion”).

¶28 Relatedly, Father glosses over the import of an approved ICPC. While an approved ICPC is a precursor to any out-of-state placement, an approved ICPC does not guarantee placement. After a child is removed from a parent’s custody, the juvenile court must “determine whether there is a relative . . . who is able and willing to care for the child.” Utah Code § 80-3-302(6)(a). If the court identifies an out-of-state relative as a potential placement, the court must comply with the procedures and requirements outlined in the ICPC before ordering that the child be placed in another state. See id. § 80-2-905. Following the approval of an ICPC, the court “shall give preferential consideration to a relative’s . . . request for placement of the child, if the placement is in the best interest of the child.” Id. § 80-3-302(7)(a)(i) (emphasis added). In other words, the plain language of the statute “does not guarantee that an identified relative . . . will receive custody of the child.” Id. § 80-3-302(18). Accordingly, the court was not required to place Child with Aunt if doing so was not in Child’s best interest. And as discussed below, the court’s best interest analysis was adequate to foreclose placement with Aunt.

¶29      Moreover, contrary to Father’s assertion, the juvenile court properly considered feasible placement options other than termination and adoption. As stated above, the court articulated two reasons in support of its strictly necessary determination. In addition to concluding that Aunt was legally barred as a placement option because the ICPC was still pending, the court found that placement with Aunt was not in Child’s best interest because Child “has never met [Aunt] and [Aunt] has never requested visits with her. [Child] has no familial relationship with [Aunt].” On the facts of this case, this determination was not erroneous.

¶30      Our legislature has expressed a strong preference for maintaining familial bonds. To that end, a court may terminate a parent’s rights only if termination is strictly necessary to promote a child’s best interest. Courts ordering termination “must start the best interest analysis from the legislatively mandated position that ‘[w]herever possible, family life should be strengthened and preserved.’” In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827 (quoting Utah Code § 80-4-104(12)(a)). However, once a parent is found to be unfit, a court may terminate the parent’s rights if doing so “is strictly necessary for the welfare and best interest of the child.” Id. ¶ 62. At this stage, the court must “consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered.” Utah Code § 80-4-104(12)(a).

¶31      In evaluating whether termination is strictly necessary, a juvenile court must consider, “among other relevant factors,” whether “the efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” Id. § 80-4-104(12)(b)(ii). This requires the court to “explore whether other feasible options exist that could address

the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). This inquiry cannot be satisfied merely by relying on the “categorical concern” that adoption offers the highest degree of permanency.” In re J.A.L., 2022 UT 12, ¶ 25. Instead, the court must analyze the “particularized circumstances of the case” and explore whether an alternative arrangement “can equally protect and benefit the children in the case before it.” Id. (quotation simplified). And “when two placement options would equally benefit a child, the strictly necessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.” In re G.D., 2021 UT 19, ¶ 75.

¶32 Father contends the juvenile court erred in finding that termination was strictly necessary because the court ignored that Aunt “was the preferred placement” and instead relied on “categorial concerns” to support its determination. However, neither point is well taken, and the court’s rationale is sufficient to justify its decision to terminate Father’s parental rights.

¶33 Father asserts that Aunt “was the preferred placement” because “[t]his is a case where both placement options would equally benefit” Child and “placement with [Aunt] did not necessitate termination of parental rights.” This assertion is without merit. Our caselaw is clear that the preferential status afforded to a placement option that does not necessitate termination exists only where the two placement options “equally benefit” the child. See id. But here, there is no evidence to suggest that placement with Aunt would “equally benefit” Child.

¶34 Indeed, the juvenile court’s comprehensive termination order included multiple findings concerning Aunt. Specifically, the court found that Caseworker had contacted Aunt in May 2020 to start the ICPC process. Despite this contact, at the time of trial approximately two years later, Aunt had “not request[ed] contact

with [Child] and [had] not met her.” Although Aunt may have not been available as a placement option prior to approval of the ICPC, nothing was preventing her from contacting Child and forming a relationship with her. And given the duration of the proceedings, Aunt was given ample time to do so.

¶35      Conversely, the juvenile court found that Child was in an appropriate adoptive placement with Foster Family. Among other things, Child had been living with Foster Family since “shortly before she turned one month old,” and Child had developed strong bonds with her foster sibling and two half-siblings. Yet Father does not grapple with the import of these relationships. Notably, Child is in a kinship placement with Foster Family since Child’s biological half-siblings were adopted into Foster Family. Moreover, as this court has recently recognized, “the biological connection between siblings matters.” See In re A.H., 2022 UT App 114, ¶ 42, 518 P.3d 993 (“The importance of sibling relationships is well recognized by courts and social science scholars, because a sibling relationship can be an independent emotionally supporting factor for children in ways quite distinctive from other relationships, and there are benefits and experiences that a child reaps from a relationship with his or her brother(s) or sister(s) which truly cannot be derived from any other. Such bonds are often especially important to children who experience chaotic circumstances like abuse or neglect, because in such circumstances, they learn very early to depend on and cooperate with each other to cope with their common problems.” (quotation simplified)), cert. granted, 525 P.3d 1279 (Utah 2023). Given the court’s competing findings about each potential placement, we cannot say that placing Child with Aunt—an individual she has never met—would equally benefit Child where Child is already in a kinship placement with her half-siblings. As a result, Aunt was not a preferred placement.

¶36 Moreover, the juvenile court did not merely rely on categorical concerns when determining that termination was strictly necessary. On this point, Father contends the court’s decision was based on the categorical concern that removing a child from a foster family with whom the child is bonded will disrupt and negatively impact the child’s life. See id. ¶ 56. To be sure, the court’s determination hinged in large part on Child’s attachments to Foster Family, including to her two biological half-siblings, and the potential detriment to Child that would result from removal from that placement. However, the court’s conclusion was also based on the fact that Aunt’s relationship with Child was nonexistent and that placing Child with Aunt would therefore be particularly destabilizing. Consideration of the effects of a potential disruption, when based on case-specific facts, is entirely proper. Indeed, courts are statutorily required to consider continuity of care when determining whether to terminate parental rights. See Utah Code § 80-4-303(1)(a) (requiring courts to consider “the physical, mental, or emotional condition and needs of the child”); id. § 80-4-304(5) (requiring courts to consider “the length of time the child has lived in a stable, satisfactory foster home and the desirability of the child continuing to live in that environment”). And this court has recently recognized as much, noting that the potential effect of changing a placement is “a legitimate concern, and one that courts should take into account.” In re A.H., 2022 UT App 114, ¶ 56. In sum, the court’s determination here was not based on a categorical concern inasmuch as the court considered case-specific facts such as the impact of the potential disruption in light of Child’s nonexistent relationship with Aunt.

¶37 Finally, and very importantly, even if Father is correct in his assertion that the ICPC was completed before the termination trial, the ICPC approval and resulting potential for placement with Aunt was not the lynchpin of the juvenile court’s strictly necessary determination. As discussed above, placement with Aunt was not in the best interest of Child because of the shortcomings in that option as identified by the court. And a permanent guardianship with Foster Parents put in place to preserve Father’s residual parental rights and ensure Child’s connection to her half-siblings was also not in Child’s best interest as the court identified significant problems with Father’s continued parental connection to Child vis-à-vis Foster Family. Specifically, the court found that Child had “already experienced anxiety and night terrors during visits” with Father and that Father’s “threats toward [Foster Family] and his propensity for violence puts [Child and Foster Family] at risk.”

CONCLUSION

¶38 Father has not shown the juvenile court clearly erred in determining that it was strictly necessary to terminate his parental rights. Regardless of when the court received the approved ICPC, it adequately considered the results. Further, an approved ICPC does not guarantee placement, and Father has not demonstrated that the court plainly erred when considering other feasible placement options. Accordingly, we affirm the court’s order terminating Father’s parental rights.

 

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

 

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

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

2020 UT 64

IN THE SUPREME COURT OF THE STATE OF UTAH

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

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

v.

C.S., Petitioner.

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

On Certiorari to the Utah Court of Appeals

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

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

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

INTRODUCTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARD OF REVIEW

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

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

ANALYSIS

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

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

¶26 We first address the applicability of the UCCJEA.

I. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

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

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

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

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

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

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

A. Termination under the Termination of Parental Rights Act

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

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

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

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

B. Termination under the Adoption Act

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

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

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

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

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

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

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

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

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

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

C. Adoptive Parents’ Petition

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

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

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

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

II. INTERSTATE COMPACT ON THE PLACEMENT OF

CHILDREN

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

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

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

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

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

[5] A “home state” is defined as:

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

UTAH CODE § 78B-13-102(7).

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

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

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

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

[10] Id. § 78B-6-110(6)(b) (“A person who fails to fully and strictly comply with all of the requirements described in Subsection (6)(a) within 30 days after the day on which the person was served with notice of the adoption proceeding: (i) waives any right to further notice in connection with the adoption; (ii) forfeits all rights in relation to the adoptee; and (iii) is barred from thereafter bringing or maintaining any action to assert any interest in the adoptee.”).

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

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

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

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

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

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

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

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

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

THE UTAH COURT OF APPEALS

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

v.

C.S.,
Appellant.

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

The Honorable Robert P. Faust
No. 162900039

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

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

MORTENSEN, Judge:

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

BACKGROUND

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

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

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

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

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

¶7        Father appeals.

ISSUES AND STANDARDS OF REVIEW

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

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

ANALYSIS

I. Jurisdiction

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

A. Adoption Act

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

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

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

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

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

B. UCCJEA

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

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

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

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

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

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

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

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

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

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

II. Compliance with the ICPC

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

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

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

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

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

CONCLUSION

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

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

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

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

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

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

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

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

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

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

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