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

Guardianship Placement May Lead to Change in Home-State of Child.

D.T. and S.T. v. C.M., 2011 UT App 407, Utah Court of Appeals December 1, 2011

Parents of 2 children had given voluntary custody and guardianship of the minor child to their older daughter, Sister.  Sister refused to return the child, and Parents moved the Court to terminate the voluntary guardianship.  The Court granted the motion.  Sister then obtained a protective order on behalf of the minor child and petitioned the Court to terminate parents’ parental rights based on Father’s sexual abuse of Sister and the minor child, and Mother’s facilitation of the abuse.  Parents moved to dismiss the petition to terminate their rights because Tennessee was the child’s home state.  The juvenile court found that, in spite of parents’ argument, Utah was the home state, but was an inconvenient forum.  Tennessee declined jurisdiction.  District Court denied the Motion to Dismiss and terminated Parents’ parental rights.  Parents appealed.

The Court of Appeals found that Utah Sister’s did not engage unjustifiable in conduct by retaining custody of the minor child.  Instead, Utah had jurisdiction because the child resided in Utah from April 2007 until November 2007 at the allowance of Parents.  The Court of Appeals also found that there is no violation of due process in excluding the parties from the jurisdictional conversation in the Court-to Court conversation.   Affirmed.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/JV_syt120111.pdf

Termination of Parental Rights Must Be in Child’s Best Interests

A.A. v. State of Utah, 2011 UT App. 397, Utah Court of Appeals November 25, 2011

District Court terminated Mother’s (A.A.’s) parental rights based on Mother’s unfitness because of mental illness.  Mother appealed and argued that the termination was not in the child’s best interest.

Mother argued that Daughter does not want to be adopted.  Daughter was having visits with mother and the state argued that such visits were an impediment to Daughter being adopted.  Several adoptive homes were tested, but at the time of trial and continuing during appeal is the fact that the child has no current prospective adoptive home.  While the lack of an adoptive placement does not preclude termination, it is a relevant factor.  Mother and daughter had established a loving relationship.  While Mother could not care for her daughter, the visits with Mother had been an integral part of the setting in which Daughter had flourished.  While Mother admits she is unfit, and generally terminating an unfit parent is in the child’s best interests, this is an exception.  Reversed and Remanded.


Full Decision Available at :http://www.utcourts.gov/opinions/appopin/JV_dra112511.pdf

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.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/TE082311.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

Right to Counsel in Child Welfare Case is Not a Constitutional Right

State in Re: J.R.G.F., R.F and R. G. v. B.A.F. and T.F. 2011 UT App 97 (Utah Court of Appeals, March 24, 2011).

The trial court terminated Mother’s and Father’s parental rights.  Mother and Father appealed and claimed that they were not informed of their statutory right to counsel prior to trial.  The court also denied their request for counsel mid-way through trial. 

The Court of Appeals found that even if what Mother and Father claimed was true, they must show that the denial of counsel prejudiced their case.  The statutory right to counsel under the child welfare act is different than a constitutional right to counsel.  With a statutory right to counsel, there is no presumption of prejudice when counsel has been denied.  To demonstrate prejudice the party must show a reasonable likelihood of a different outcome if the error had not been made.  Mother and Father failed to meet the burden because of the substantial evidence against them, including: both parents had lengthy criminal histories; both had failed to pay child support; both failed to consistently visit the child.  Conversely the adoptive placement provided a stable loving home, and the individuals were the only consistent parental figures in the child’s life.

Full Decision available at http://utcourts.gov/opinions/juv/JV_jrgf032411.pdf

In Child Welfare Trials, Parties are Permitted to Present Additional Evidence After the Initial Close of Their Case.

State of Utah In Re: M.G., M.G. v. State of Utah, 2011 UT App 5 (Utah Court of Appeals January 6, 2011).

At trial for termination of parental rights, the State presented its case and Father presented his defense.  At the close of Father’s case, he challenged the sufficiency of the evidence to terminate his parental rights.  The Juvenile Court stated that it had to alternatives (1) to dismiss the petition and require the state to refile, or (2) allow both parties the opportunity to put on additional evidence.  The Juvenile court chose the second option and reopened the case to accept further evidence.  At the conclusion of trial, the Juvenile Court terminated Father’s parental rights.  Father appealed.

On appeal, the Court of Appeals determined that it is within the Juvenile Court’s sound discretion to allow additional evidence to enable the Juvenile Court to make an informed decision.  This is based on the highly equitable nature of the Juvenile Court and the requirement to consider the best interest of the child in child welfare cases.

Note: It is the author’s belief that this decision could be used in all family law cases regarding the best interests of the child (i.e. if you lose on day one ask for an additional day to present further evidence)

Full Decision available at http://www.utcourts.gov/opinions/appopin/JV_mg010611.pdf

Juvenile Court, Termination of Parental Rights: Relinquishment is Irrevocable and Failure to Supply an Adequate Record = No Appellate Review.

Re: D.A., J.A. v. State of Utah, 2009 UT App. 4, (Utah Court of Appeals, Memorandum Decision, January 2, 2009).

J.A. the father of D.A. relinquished his rights. After the relinquishment, he appealed the termination arguing that the relinquishment was induced by undue influence of his counsel and that his counsel was ineffective. The Court outlined that when a parent relinquishes their parental rights, that relinquishment is irrevocable. Upon review of the record, the Court found that the father certified that he understood the relinquishment and voluntarily signed it. As to the claim that his counsel was ineffective, he provided no record from the trial court that supported his allegation. As such, the Court could not consider this claim.

Full Decision available at http://www.utcourts.gov/opinions/mds/JV_da010209.pdf