Monday, April 16, 2012

Rebuttal Evidence Need Not Meet the Same Standard as a Prima Facie Case

R.E. v. B.B., 2011 UT 51, Utah Supreme Court August 23, 2011

Father and Mother divorced in 2003.  Father sporadically exercised his parent-time with the parties’ minor child.  On one visit, when mother picked up the child, the child smelled of marijuana. On that basis, Mother obtained a protective order, which prohibited Father’s contact with the child from February 2004 to December 2005.  In December 2005, Mother filed a Petition to Terminate Father’s Rights.  It was denied. Because the parents could not get along, Father’s mother would arrange the visits.  After a visit on April 1, 2007, Mother ceased to take Grandmother’s calls.  In 2007, Mother reinitiated her attempts to terminate Father’s parental rights on the grounds of abandonment. 

The trial court found that Father had abandoned the child shown by his lack of contact with the child for more than 6 months.  The Court of Appeals affirmed.  Father Appealed.

The Supreme Court found that while Mother had met the prima facie case for abandonment by showing a 6 month period with no contact, Father’s evidence need not rise to the level of clear and convincing in order to properly rebut the presumption of abandonment.  Instead Father must only persuade the fact finder that the petitioner has not established abandonment by clear and convincing evidence.

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