Opinion
Case No. 20110678-CA
11-08-2012
State of Utah, in the interest of Z.Z., S.Z., S.Z., R.Z., and J.Z., persons under eighteen years of age. K.Z. and V.Z., Appellants, v. State of Utah, Appellee.
Attorneys: Marea A. Doherty, Duchesne, and Herbert W. Gillespie, Roosevelt, for Appellants Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee Martha Pierce, Salt Lake City, Guardian ad Litem
OPINION
Eighth District Juvenile, Duchesne Department, 167143
The Honorable Larry A. Steele
Attorneys: Marea A. Doherty, Duchesne, and Herbert W. Gillespie, Roosevelt, for
Appellants
Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, Guardian ad Litem
Before Judges Orme, Roth, and Christiansen. ORME, Judge: ¶1 K.Z. (Father) and V.Z. (Mother) appeal from an order of the juvenile court terminating their parental rights in their five children, as well as from a subsequent order denying their motions for a new trial. We affirm.
Section 78A-6-103 of the Utah Code vests the juvenile court with exclusive jurisdiction over all cases involving "a child who is an abused child, neglected child, or dependent child." Utah Code Ann. § 78A-6-103(1)(c) (Supp. 2012). Because no material amendments have been made to the relevant statutes since the events in issue, we cite the most current version of the Code as a convenience to the reader, except as otherwise noted.
BACKGROUND
¶2 The parents have an extensive history with the Utah Department of Child and Family Services (DCFS), dating as far back as 1997. They have had other children permanently removed from their custody in the past, and DCFS has opened sixteen cases involving the parents over the years. We hereafter set forth only the facts relevant to this appeal. ¶3 DCFS filed a Motion for Expedited Placement and a Petition for Custody in July 2009, alleging that the parents were habitual users of illegal drugs and that their children should be removed from their home. The parents were provided notice of the scheduled shelter hearing. Father was present at the hearing, but Mother failed to appear and a warrant was issued. At that time, the children were placed in the legal custody of DCFS but were unable to be placed in its physical custody because their whereabouts were unknown. The next month, both parents failed to appear for a pretrial hearing. The warrant for Mother was continued, and issuance of a warrant for Father was taken under advisement. ¶4 Two weeks later, the parents again failed to appear for a pretrial hearing. Counsel for Mother reported that he had been unable to make any contact with her. The warrant for Mother was left in effect, and a warrant for Father was issued. Late in 2009, DCFS filed a motion to close the custody case because it had become aware that the parents had fled to Colorado with their children. The court granted the motion in January 2010 and terminated DCFS's case at that time, but it specifically retained jurisdiction, ordering "that the custody and guardianship foster care case be terminated . . . and that the Court retain jurisdiction in this matter." ¶5 DCFS opened a new case regarding the parents in April 2010, after four of the children returned to Utah to visit relatives and the parents failed to pick them up as scheduled. At that time, DCFS did not know the location of Mother and the fifth child. DCFS knew that Father was incarcerated in Colorado but not his specific location. The court placed the four children in the interim custody of DCFS. DCFS then filed a new verified petition, and a continued shelter hearing was held later in April. The fifth child was recovered in May. DCFS eventually served notice on the parents through publication, and Mother and Father were also both served with notice prior to the termination trial held in April 2011. ¶6 Neither DCFS nor the court received any communication from the parents prior to the April 2011 trial date. On the morning of trial, the court received a faxed note from Mother's counsel in Colorado stating that the parents would not appear for the termination trial because of a conflicting criminal hearing in Colorado involving Mother. The parents, through counsel, moved for a continuance at that time, which the juvenile court denied. ¶7 The trial proceeded as scheduled, and the court entered an order on May 25, 2011, terminating the parents' parental rights. The parents filed motions for a new trial in June 2011. DCFS and the children's guardian ad litem objected on the basis that the parents had habitually failed to appear and did not request a continuance in advance of the actual day of trial. The juvenile court denied the motions for a new trial, and this appeal followed.
The parents' rights to another child they had together were terminated earlier. During the investigation involving that child, three children that Mother had with a man other than Father were removed and placed with their biological father.
DCFS alleged that Mother used methamphetamine and that Father took unprescribed controlled medication. Additionally, DCFS claimed that there were two other drug users living in the home with the parents and their children.
ISSUES AND STANDARDS OF REVIEW
¶8 On appeal, the parents argue that the juvenile court lacked subject matter jurisdiction to terminate their parental rights by reason of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). "[J]urisdictional questions and questions of statutory interpretation are questions of law that we review for correctness." In re P.F.B., 2008 UT App 271, ¶ 10, 191 P.3d 49. We accept the validity of the juvenile court's underlying factual findings unless the parents, as the appellants, demonstrate that the findings are clearly erroneous. See In re J.R., 2011 UT App 180, ¶ 2, 257 P.3d 1043 (per curiam). ¶9 The parents also argue that the juvenile court erred in denying their motions for a new trial. "Because a trial court has broad discretion to grant or deny a motion for a new trial under rule 59 of the Utah Rules of Civil Procedure, we will reverse only if there is no reasonable basis for the decision." In re Adoption of A.F.K., 2009 UT App 198, ¶ 17, 216 P.3d 980 (citation and internal quotation marks omitted). That said, "[w]hether a parent has been afforded adequate due process is a question of law, reviewed for correctness." In re J.B., 2002 UT App 268, ¶ 7, 53 P.3d 968.
ANALYSIS
I. Subject Matter Jurisdiction
¶10 The parents first assert that the juvenile court did not have subject matter jurisdiction to enter the order terminating their parental rights. "A challenge to jurisdiction is a threshold question that we must resolve before addressing the substantive issues on appeal." In re A.M., 2009 UT App 118, ¶ 13, 208 P.3d 1058. A. The Utah Juvenile Court Lost Exclusive Continuing Jurisdiction. ¶11 The parents do not challenge the actions of the juvenile court leading up to January 2010, when the court, while specifically retaining its own jurisdiction, granted DCFS's motion to terminate the case. They argue, however, that the juvenile court, through its January 2010 order, "fulfill[ed], in its entirety, the conditions required to divest the juvenile court of exclusive ongoing jurisdiction, and thus subject matter jurisdiction in this matter." We disagree. ¶12 Utah adopted the UCCJEA in 2000. See Utah Code Ann. § 78-45c-101 (2000) (current version codified at Utah Code Ann. § 78B-13-101 (2008)). The purpose of the UCCJEA is to create a systematic method for resolving jurisdictional issues when one or more states could potentially decide a child custody issue. Cf. In re D.S.K., 792 P.2d 118, 123 (Utah Ct. App. 1990) ("The UCCJA was promulgated to avoid jurisdictional competition and conflict, promote interstate cooperation, litigate custody where the child and family have the closest connections and where significant evidence concerning the child is most readily available, discourage continuing conflict over custody, deter abductions and unilateral removals of children, avoid relitigation of another state's custody rulings, and promote the exchange of information and mutual assistance between different states.").
Under the Utah UCCJEA, the court that entered the initial custody determination retains subject matter jurisdiction over future child custody determinations untilIn re A.M., 2009 UT App 118, ¶ 12, 208 P.3d 1058 (emphasis and footnote omitted) (quoting Utah Code Ann. § 78B-13-202(1) (2008)). The Utah juvenile court stripped itself of exclusive continuing jurisdiction when it specifically found that the parents and the children had left Utah. See Utah Code Ann. § 78B-13-202(1)(b). Therefore, Utah did not retain exclusive continuing jurisdiction over the parents and the children as of January 2010. B. Utah Is Nonetheless a Proper Forum Under Utah Code Section 78B-13-207. ¶13 Having determined that the Utah court lost exclusive continuing jurisdiction in January 2010, see Utah Code Ann. § 78B-13-202(1), we next turn to the question of whether the Utah court might still have validly exercised jurisdiction over the parents and the children when DCFS filed the instant case in April 2010.
"(a) a court of this state determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or
(b) a court of this state or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this state."
Utah's UCCJEA was renumbered in 2008, without any substantive revisions to the relevant sections. See Utah Code Ann. § 78B-13-101 amend. notes (2008).
The UCCJEA was preceded by the Uniform Child Custody Jurisdiction Act (UCCJA), Utah Code Ann. §§ 78-45c-1 to -26 (1998), as the statute addressing the coordination of child custody issues among the states. See In re W.A., 2002 UT 127, ¶ 17 n.4, 63 P.3d 607.
1. Utah Validly Exercised Temporary Emergency Jurisdiction.
¶14 The parents do not contend that DCFS invalidly exercised temporary emergency jurisdiction over the children in April 2010. Utah Code section 78B-13-204 provides that
[a] court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.Id. § 78B-13-204(1) (2008). See also In re D.S.K., 792 P.2d 118, 126 (Utah Ct. App. 1990) ("'[Temporary emergency jurisdiction] exists when a child has been abandoned and in emergency cases of child neglect. Presence of the child in the state is the only prerequisite. This extraordinary jurisdiction is reserved for extraordinary circumstances.'") (quoting UCCJA § 3, 9 U.L.A. comment 145 (1988)). Because the children's presence came to the attention of Utah authorities when the parents failed to pick them up from their relatives as scheduled, the children were considered effectively abandoned within Utah at that time. Therefore, DCFS's filing of its petition in April 2010 was procedurally proper.
We note that the Utah court could have potentially invoked temporary emergency jurisdiction as a way to assume the full jurisdiction it later exercised at the termination hearing. Utah Code section 78B-13-204 provides that
[i]f there is no previous child custody determination that is entitled to be enforced under this chapter, and if no child custody proceeding has been commenced in a court of a state having jurisdiction under Sections 78B-13-201 through 78B-13-203, a child custody determination made under this section remains in effect until an order is obtained from a court of a State having jurisdiction under Sections 78B-13-201 through 78B-13-203. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under Sections 78B-13-201 through 78B-13-203, a child custody determination made under this section becomes a final determination, ifUtah Code Ann. § 78B-13-204(2) (2008). There is also case law suggesting that temporary emergency jurisdiction can ripen into full jurisdiction in appropriate circumstances. See, e.g., In re Jaheim B., 87 Cal. Rptr. 3d 504, 508 (Ct. App. 2008) (holding that court's emergency jurisdiction was continual in a case where it was determined that a child had no home state and the reasons for the emergency jurisdiction were ongoing); In re Angel L., 72 Cal. Rptr. 3d 88, 95 (Ct. App. 2008) (noting that jurisdiction was appropriate because "there was no custody order or pending sister state custody proceeding").
(a) it so provides; and
(b) this state becomes the home state of the child.
However, in the May 2011 order terminating the parents' rights, the juvenile court asserted jurisdiction pursuant to section 78A-6-103(1)(c) of the Utah Code. SeeUtah Code Ann. § 78A-6-103(1)(c) (Supp. 2012) (stating that the juvenile court has exclusive continuing jurisdiction in proceedings concerning "a child who is an abused child, neglected child, or dependent child"). Because the children had been in the care of Utah authorities for over a year by that time, the court could have determined that Utah had again assumed home state jurisdiction. See id.§ 78B-13-204(2). However, because the juvenile court did not specifically rely upon temporary emergency jurisdiction as a basis for its final custody determination, we hesitate to impute this analysis to the court, sound as it may be.
2. Colorado Never Asserted Home State Jurisdiction.
a. The Location of the Parents and the Children Was Unknown
Between July and December 2009.
¶15 We next determine whether Colorado was the home state of the children. For purposes of the UCCJEA, "home state" is defined as "the 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. . . . A period of temporary absence of any of the mentioned persons is part of the period." Utah Code Ann. § 78B-13-102(7) (2008). It is clear that the children resided in Colorado for a few months before they were left with relatives in Utah, but the Utah court had no evidence before it that the children lived with either parent during that time—indeed, the court was aware that Father was incarcerated for some of that time—and no evidence that the courts of Colorado had assumed jurisdiction over the children. ¶16 DCFS filed a motion in December 2009 to close its then pending custody case against the parents. That motion was granted, with the court finding that "the family has left the jurisdiction and the children are enrolled in school in Colorado, which has been monitored by the authorities in the State of Colorado." This is the first definitive indication we are able to locate in the record that the parents and the children were no longer residents of Utah. The parents argue in their brief that "[f]or several months after such hearings [in July 2009] the juvenile court and DCFS did not know the family's [exact] whereabouts, but maintained information that they were in Colorado." The parents fail, however, to point to anything in the record indicating that DCFS and the juvenile court knew that the parents had absconded to Colorado with the children prior to December 2009. In fact, the court issued warrants for Mother and Father in August 2009, listing Utah addresses for each. There is nothing in the record to indicate that the parents and the children were in Colorado for very long before DCFS moved to close the prior custody case in December 2009. ¶17 Therefore, for purposes of our analysis, we assume that the children and the parents were residing in Colorado only as of December 2009. See generally Sullivan v. Sullivan, 2004 UT App 485, ¶ 12, 105 P.3d 963 ("In any event, if there were any doubt, it was incumbent upon [the parent] to request an evidentiary hearing [regarding the timeline for purposes of a home state jurisdiction determination] before the trial court. [The parent] never made such a request and has therefore not preserved the issue for appeal.") (internal citation omitted). Likewise, we are unable to discern exactly when the children returned to Utah but know that it was by April 2010, if not earlier. As a result, we must conclude that the children resided in Colorado from—at the longest—December 2009 to April 2010. Therefore, we conclude on the record before us that the children did not reside in Colorado for six months or more and that Colorado therefore did not qualify for home state jurisdiction over the children, see Utah Code Ann. § 78B-13-102(7) (defining home state jurisdiction), jurisdiction which it never purported to exercise in any event. ¶18 Additionally, because the children were abandoned in Utah, any jurisdiction that had arguably vested in Colorado ended when the children were left in Utah. See id. See also In re Marriage of Nurie, 98 Cal. Rptr. 3d 200, 212 (Ct. App. 2009) ("Home state means the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding.") (emphasis added) (internal quotation marks omitted); In re Burk, 252 S.W.3d 736, 739 (Tex. Ct. App. 2008) ("The purposes behind the UCCJEA suggest that a child's physical location is the central factor to be considered when determining a child's 'home state.'") (citation omitted). Accordingly, Colorado did not have home state jurisdiction.
b. The Parents Should Not Benefit from Removing the Children from Utah
in Violation of the July 2009 Order.
¶19 Even if we were to assume that the children had resided in Colorado for six months, Colorado would not likely have actually exercised jurisdiction even if that opportunity were presented. "'[I]f a court . . . has jurisdiction under [the UCCJEA] because a person invoking the jurisdiction has engaged in unjustifiable conduct, the court shall[, with limited exceptions,] decline to exercise its jurisdiction.'" In re S.Y.T., 2011 UT App 407, ¶ 14, 267 P.3d 930 (second and third alterations in original) (quoting Utah Code Ann. § 78B-13-208(1) (2008)). ¶20 Because the children were taken from Utah in direct contravention of the Utah court's July 2009 order granting custody to DCFS, the parents should not be allowed to divest the Utah court of jurisdiction through their misdeeds. See In re Marriage of Nurie, 98 Cal. Rptr. 3d at 228 ("A parent should not be allowed to unilaterally withhold a child from his home state in defiance of a valid court order, and then use the child's prolonged absence to argue that he has lost connection to the state."). Therefore, Utah should not be denied jurisdiction because Mother and Father wrongfully removed the children from Utah. ¶21 The Utah court properly exercised jurisdiction under the UCCJEA when it terminated the parents' rights over the children. The court did not need to rely on temporary emergency jurisdiction because Colorado had not assumed home state jurisdiction over the children and the parents. Therefore, the court had the requisite subject matter jurisdiction to enter the May 2011 order terminating Mother's and Father's parental rights.
If Colorado had asserted jurisdiction over the children, it is all but certain that Colorado would have ceded jurisdiction to Utah upon undertaking inconvenient forum analysis. See Colo. Rev. Stat. § 14-13-207 (2012) (detailing the considerations for determining whether another state might be a more convenient forum, including the length of time the child has resided out of state, the nature and location of evidence relevant to the litigation, the ability of the court to expeditiously decide the matter, and the familiarity of the court with the facts and issues of the case).
The parents have a long and eventful history in Utah. The children were recovered in Utah after being abandoned there by their parents. The parents and children have spent the majority of their lives in Utah. Utah had previously asserted jurisdiction, and the court specifically retained jurisdiction in its January 2010 order. See id.§ 78B-13-203 (outlining the requirements for modification jurisdiction under the UCCJEA).
The Utah court's May 2011 order terminating the parents' rights over the children indicated that the parents' history with the court was factored into the court's analysis. The court specified that reunification services were not ordered because "such services were not reasonable or appropriate due to the parents' long history with DCFS (including 16 supported cases) and the parents' refusal to communicate or cooperate with DCFS for over 5 months during the time the children were taken into DCFS custody on April 8, 2010." It is, therefore, highly likely that had an action been commenced in Colorado, the Colorado court, largely unfamiliar with the parents and the children, would have readily yielded to the Utah court upon learning of its extensive history with this family.
II. Due Process
¶22 The parents argue that they were denied their due process rights when the April 2011 trial was conducted despite their absence. They contend that the court abused its discretion when it denied their motions for a new trial. ¶23 "Proceedings to terminate parental rights must comport with the requirements of Due Process." In re A.E., 2001 UT App 202, ¶ 14, 29 P.3d 31 (citation and internal quotation marks omitted). This right is not boundless, however. The parents concede that "the juvenile court had no duty to ensure a parent's presence at a termination trial." While the parents were entitled to proper notice of the proceedings, "there is no absolute statutory or constitutional right to attend the trial" in child welfare matters, including termination proceedings. See id. (citation and internal quotation marks omitted). This court has held, in the context of a criminal sentencing hearing, that "[n]otice of the proceedings is alone sufficient to allow a defendant to exercise the right to be present by appearing, or to waive that right through voluntary absence." State v. Wanosik, 2001 UT App 241, ¶ 12, 31 P.3d 615, aff'd, 2003 UT 46, 79 P.3d 937. ¶24 The parents contend that they—especially Mother—were prevented from attending the April 2011 trial and should have been granted a continuance on the morning of trial. They ignore the fact that they were properly provided notice of the trial well before Mother's scheduling conflict arose in Colorado. Father's counsel accepted service on his behalf, and Mother was served in open court in Utah during a January 2011 pretrial hearing. The parents do not contest that they were provided notice and fail to explain how they were prevented from seeking a continuance in a timely fashion rather than on the very morning of their termination trial. ¶25 The circumstances of this case are even less compelling than the facts in In re A.E., where we found a similar argument to be unpersuasive:
Father argues that because he was incarcerated and, therefore, not a free agent, the juvenile court had a duty to either assure his presence at trial, or not hold the trial in his2001 UT App 202, ¶ 16 (citation and internal quotation marks omitted). Mother failed to submit any proof to the juvenile court indicating that she even attempted to reschedule her Colorado matter. And as noted, Mother failed to inform the Utah juvenile court of the conflict until the very morning of trial, even though she had been on notice of the trial date for nearly four months. Father's justification for missing the trial appears to be only that "he was in attendance with [Mother] in the Colorado criminal proceeding." Therefore, both Mother and Father failed to exercise any semblance of due diligence in attempting to be present for the termination proceeding in Utah or at least to seek a continuance in a timely manner. Because we conclude that Mother and Father's due process rights were not violated, it follows that the juvenile court did not err in denying the parents' motions for a new trial.
absence. However, Father has failed to show us how he exercised due diligence in attempting to be present for all stages of the trial, but was prevented from appearing by circumstances over which he had no control.
The parents argue that we should extend State v. Wanosik, 2001 UT App 241, 31 P.3d 615, aff'd, 2003 UT 46, 79 P.3d 937, to parental termination proceedings. Such an extension would do them no good, as the rationale of Wanosik is inapplicable because the reason for the parents' absence in this case was not unknown. See id. ¶ 21.
Furthermore, even if we were to conclude that the parents' due process rights were violated,
[t]he appellate court will only find prejudicial error after a review of the record demonstrates that there was a reasonable likelihood of a more favorable result for the [parents]. [W]e must review the record and determine whether there is a reasonable likelihood that the outcome of the termination hearing would have been more favorable to [the parents] had the juvenile court not [committed the due process violation].
CONCLUSION
¶26 The Utah juvenile court properly exercised temporary emergency jurisdiction when the children were recovered in Utah in April 2010. The children had been abandoned by their parents within the state after living in Colorado for an indeterminate amount of time. The juvenile court then properly determined that, without Colorado having opened a case involving the parents and the children, and without evidence that the parents and the children had lived in Colorado for a sufficient amount of time to establish home state jurisdiction in that state in any event, there was no other state with competing jurisdiction. Therefore, the Utah juvenile court had subject matter jurisdiction to terminate the parents' rights in their children. ¶27 Additionally, the juvenile court did not err in denying the parents' motions for a new trial. The parents were not denied due process when the court denied their request for a continuance and conducted the trial in their absence. ¶28 Affirmed. _________________ Gregory K. Orme, Judge ¶29 WE CONCUR: _________________ Stephen L. Roth, Judge _________________ Michele M. Christiansen, Judge
In re J.B., 2002 UT App 268, ¶ 9, 53 P.3d 968 (third alteration in original) (citations and internal quotation marks omitted). Based on the extensive evidence against the parents and their prior history with DCFS, it is all but certain that the result of the trial would have been no different had the parents attended the termination trial.