Monday, February 18, 2013

Relinquishments Are Forever, Even When Not in the Best Interests of the Children.

In Re R.B.F.S. (B.J.M. and A.F.M. v. B.S.), 2012 UT 132, May 3, 2012

This case came to the Court of Appeals on Remand after In re R.B.F.S., 2011 UT 46, Utah Supreme Court August 2, 2011.  In August 2005, Father relinquished his parental rights and consented to the adoption by Mother’s (then unknown) future spouse.  The judge in the divorce matter rejected the stipulation because there was no Stepfather at that time, and because a relinquishment in District Court is only enforceable in conjunction with an adoption.

In April 2007, Mother and her new husband filed a Petition for adoption and incorporated Father’s relinquishment and Consent.  They did not notify Father.  The District Court terminated Father’s parental rights.  Father by way of letter objected to the district court decision.  Judge Hilder treated the letter as a motion to reconsider and denied the motion.  Father appealed on several grounds including jurisdiction.  The Court of Appeals set aside the termination and adoption because it found that the trial court did not have jurisdiction.  Mother petitioned for cert.  The Supreme Court the district court did have jurisdiction and remanded the matter to the Court of Appeals to consider Father’s other grounds.

Father asserts that the denial of the acceptance of the relinquishment became the Law of the Case and should not have been overturned by the second Judge.  Father also asserted that he should have been permitted to testify in regards to the Children’s’ best interests.

The Court of Appeals found that the law of the case doctrine does not prohibit a court from reconsidering issues that have been decided, but allows the court to decline to revisit decided issues.  Because the record does not show the existence of a completed adoption, the Court of Appeals declines to rule on the Court’s failure to consider Father’s testimony because Father’s claim is not yet ripe.

Finally, the Court found that the statute does not require a best interest analysis on its face and that Father failed to assert any Constitutional grounds to conduct such an analysis.  The Court takes considerable time in explaining its concern about the current Utah adoption act and calls on legislators to revise the act.


Appellate Procedure: Parties Cannot Stipulate Around Mootness

In Re L.O. (Navajo Nation v. State), 2012 UT 23, April 13, 2012

L.O. was a minor child and member of the Navajo Nation.  DCFS removed L.O. from the child’s parents and placed with a foster family.  L.O.’s parents relinquished their parental rights, and a Petition for Adoption was filed.  The Navajo Nation objected to the adoption and moved to transfer jurisdiction to the Nation.  The Juvenile Court denied the motion because the Nation had waited too long, and allowed the foster parents to adopt.  The Nation Appealed.

Before the Appeal could be heard, the Nation consented to the adoption.  However, DCFS and the Nation agreed that the issues would not be mooted and that the appeal could go forward because of the important public policy grounds.

The Court of Appeals dismissed the case because the issues were moot.  The Nation petitioned cert which resulted in this opinion.  The Supreme Court affirmed the Court of Appeals and found that the parties cannot stipulate around mootness.  In short, if the issue is dead, the parties cannot resurrect the issue by agreeing that it is alive.  This case also failed to qualify for moot-review because that is likely to evade review because of the short duration of the claim at issue.

Friday, February 15, 2013

Contested Adoptions: Still a Race to the Courthouse and GAL Fees Can Be Awarded on Bad Faith Grounds

In Re A.W. (BWH and SH v. State), 2012 UT App. 109, March 13, 2012

BWH and SH were Foster-parents to A.W.  A.W. was removed because of allegations of sexual abuse.  A.W. was placed in respite care and adopted.  Prior to the completion of the Adoption, BWH and SH Petitioned to adopt A.W.  Their Petition failed to meet minimal procedural guidelines.  Further, DCFS supported allegations of sexual abuse against Foster-father, Foster-parents allowed their license to lapse, and Foster-father was convicted of disorderly conduct.  The trial court refused to join the cases and ultimately dismissed Foster-parent’s petition.  The Court also awarded fees to the Guardian ad Litem because the Petition was brought in bad faith and the GAL substantially prevailed. Foster-parent’s appealed.

The Court of Appeals affirmed the trial court’s dismissal of Foster-parent’s petition for adoption.  Because of the procedural failings, and the impossibility of placement with Foster-parent’s based on Father’s actions the Court found that the dismissal of Foster-parents was appropriate.  The Court of Appeals also found that because of the impossibility of prevailing on the merits the award of attorney fees to the Guardian ad Litem was appropriate.

Ongoing Cohabitation Not a Requirement to Prove Common Law Marriage

Richards v. Brown, 2012 UT 14, March 13, 2012

Richards and Brown were never married.  Richards attempted to prove the existence of a common law marriage.  The trial court found that Richards had failed to prove the existence of an unsolemnized marriage within the 1-year statute of repose because Richards failed to file the action within one year of his cohabitation with Brown.  Richards appealed.  See Richards v. Brown, 2009 App. UT 315.  The Court of Appeals reversed the trial court and found that Richards was not necessarily time barred and that while the cohabitation may have ended more than a year before filing, the Court failed to make sufficient findings that the underlying relationship ended more than one year prior to the filing of the action.  Brown Appealed.

The Supreme Court affirmed the Court of Appeals and sent the case back to trial court to determine when a triggering event occurred. The statue of repose begins to run only when one of the parties: stops assuming marital rights, duties, and obligations; stops holding himself or herself out as the spouse of the other party; or loses legal capacity.  Termination of cohabitation does not necessarily trigger the statute of repose.

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