3 Grounds for Appeal without Preservation and Contested Adoption Petitions Must be Resolved Through Trial

S.C. v. State of Utah, 2013 UT 26  Utah Supreme Court May 7, 2013

Grandmother sought to adopt her grandson.  Mother’s parental rights were terminated and Foster Parents also sought to adopt. The trial court found that under In Re: A.B., the foster parents had priority and they were permitted to adopt.  Grandmother appeals.  This case was certified directly to the Supreme Court by the Court of Appeals.

The Court first finds that while Grandmother’s Brief failed to cite where in the record she preserved her claim, that in the reply brief the preservation issue was adequately addressed. And that while A.B. was not directly addressed by Grandmother at the trial level, she did address the “best interest” standard which opens the door to that argument on appeal.

The Court found that 1) the Best Interest of the child is paramount and 2) in order to evaluate the stability and the likelihood of future disruption in adoptive placements.  In order to evaluate those factors, a full evidentiary hearing is required in contested cases like this one. Reversed and remanded.

Courts have the option of hearing the Petitions together or having separate hearings on the adoption case when privacy is a concern.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/InreCC1326050713.pdf

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.

Affirmed

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/rbfs050312.pdf

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.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/JV_aw041212.pdf

Must File Adoption and Petition to Terminate Parental Rights in Order for District Court to Take Jurisdiction, However, Adoption Need Not Be 100% Ripe at Time of Filing

In re R.B.F.S., 2011 UT 46, Utah Supreme Court August 2, 2011

Father signed a relinquishment and consent to adoption  at the time of his divorce in 2005.  In 2007, Mother remarried and she and Stepfather filed to terminate Father's parental rights and complete Stepfather's Petition for Adoption without providing notice to Father.  The Trial Court granted the adoption and termination.  Father appealed.  Father argued that since Stepfather did not qualify to file the adoption proceeding (because the children had not lived with him for one year), the adoption was not properly before the district court and accordingly, neither was the Petition for Termination.  The Court of Appeals agreed with Father and set aside the termination and adoption.  Mother and Stepfather petitioned for, and were granted cert.
The Supreme Court found that the District Court did have jurisdiction to hear the termination because Stepfather had filed the adoption with the termination proceedings.  The Court found no additional requirement that Stepfather qualify perfectly for the adoption before filing to terminate Father's parental rights.  In sum, while an adoption must be filed with the Petition to Terminate Parental rights in order for the district court to have jurisdiction, the Adoption Petitioner need not comply with all of U.C.A. 78B-6-135(7)(b) before filing the actions. Reversed to Court of Appeals to consider any other grounds for appeal.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/InreRBFS080211.pdf

Two Month Relationship with Biological Child is Insufficient for Constitutional Protection

In Re Adoption of T.B.

T.M. v. B.B. & S.B., 2010 UT 42, (Utah Supreme Court May 14, 2010).

From birth, unwed biological father, T.M. (Father) maintained a relationship with his daughter.  He offered to pay expenses for the pregnancy, delivery, and had an informal agreement with Mother regarding care and custody of their daughter.  Prior to Mother’s relinquishment of parental rights to her parents, Father filed a Paternity action and filed a motion to set aside the adoption decree in the adoption case.  The paternity action was consolidated with the adoption action, and his motion to set aside and his petition for paternity were denied.  Father appealed. 

The Supreme Court found that while Father made several steps toward obtaining a right to withhold consent, it was not enough.  He failed to strictly comply with the statute; and his relationship, however regular and important to the child, was insufficient for full blown constitutional protection.  The Supreme Court stated that Father should have complied with strictly the statute.  He had not only the 50 days after Daughter’s birth to comply, but also had the time during the pregnancy.  Because he did not strictly comply, he has no right to withhold consent. Affirmed.

Dissent: Justice Nehring joined by the Chief Justice dissented finding that his relationship with Daughter was sufficient for constitutional protection.  Father did all he could

Special Note: 3-2 Decision

Full Decision available at http://www.utcourts.gov/opinions/supopin/TB051410.pdf

Unwed Biological Fathers Must Strictly Comply With the Statute to Be Entitled to Contest an Adoption

E.G. and N.G. v. C.C.D., 2010 UT App. 114, (Utah Court of Appeals, May 6, 2010).

C.C.D. challenges the adoption of his biological daughter, which took place without his consent.  The trial court found that C.C.D. did not strictly comply with Utah Code § 78B-6-121 because he failed to plan what he would do if he was deported.  The Court Appeals found that when strict compliance with the statute is required, the trial court shall not require more than the statute, therefore requiring a contingency plan for deportation was in error.  However, Because C.C.D. did not agree to pay child support in his affidavit he did not strictly comply with that provision of the statute.  Because of this failure, the Court Affirmed the trial court’s denial.  The Court also noted C.C.D. failed to properly raise and preserve the constitutional claims raised on appeal.

DISSENT: Judge Thorne opined that C.C.D. did strictly comply with the statute by agreeing to “assist Mother in taking responsibility for the unborn child, and to help mother with expenses.”  Judge Thorne also expressed concerns about the current policies expressed by the statute to divest unwed biological fathers of parental rights with very little due process and strict compliance. 

Full Decision available at http://www.utcourts.gov/opinions/appopin/babygirl101050610.pdf

Paternity: Failure to Comply Strictly with the Statute = Waiver Temporary Residence is a Qualifying Circumstance Appeals: Failure to Preserve the Iss

O’Dea v. Olea, 2009 UT 46, (Utah Supreme Court, July 28, 2009).

Father appeals district court’s order dismissing his paternity claim. Mother and Father had separated before Father learned of the pregnancy. Mother told father she had miscarried. Father learned that Mother had not miscarried, but instead was preparing for adoption. Father registered as a putative father in Wyoming and Montana and contacted LDS family services (the adoption agency). He again contacted Mother; she asked him not to contact her and told him she was in Utah and that he would never see the child.

Father engaged the police in his search for Mother, and made a website to find out about the child. On the website Mother’s mother responded that the child had been born and placed for adoption.

The child was born June 15, Father filed his notice with department of Human Services on September 8, (he testified that he had attempted to send it earlier, but the third party charged with mailing it failed to mail it).

The Court affirmed the trial court finding that because Father knew or should have known that Mother was in Utah, he was required to comply with the Utah statute by registering with Human Services within 80 days. Because he did not, he waived his right to notice.

Full Decision available at http://www.utcourts.gov/opinions/supopin/ODea072809.pdf

Adoption: To Challenge an Adoption, an Out-of-State Father Must Comply With State Requirements Where He and the Mother Resided

H.U.F. and G.F. v. W.P.W., 2009 UT App. 10, (Utah Supreme Court, February 10, 2009).

W.P.W. the putative father of Baby Girl Stine challenged the trial Court’s findings that he failed to comply with the Utah requirements to challenge the adoption of B.G.S. W.P.W. appealed on added that the trial court violated his equal protection and due process rights. This matter was certified to the Supreme Court bypassing review by the Utah Court of Appeals.

The Supreme Court affirmed the trial court. First, the Court found that W.P.W. failed to preserve his Constitutional claims (due process and equal protection) by failing to argue those claims to the trial court. Second, Father argued that he established his right to contest the adoption because he had no notice of the mother’s move to Utah and because he complied with the Arizona law; where he and mother resided prior to the birth of B.G.S. However, the Supreme Court found that in order to challenge the adoption, Arizona law required W.P.W. to file a Paternity action within 30 days of receiving notice of a possible adoption. W.P.W. failed to file for Paternity within the 30 days; therefore he did not comply with the most stringent requirements. Because of his failure, he could not contest the adoption. Additionally, he failed to comply with the Utah law because he had reason to believe that the mother was residing in Utah.

Full Decision available at http://www.utcourts.gov/opinions/supopin/HUF021009.pdf