Opinion
Case No. 20000461-CA.
Filed March 7, 2002.
Appeal from the Third District Juvenile, Sandy Department, The Honorable Olof A. Johansson.
Scott L. Wiggins, Salt Lake City, for Appellant.
Mark L. Shurtleff and Carol L. Verdoia, Salt Lake City, for Appellee.
Martha Pierce, Salt Lake City, Guardian Ad Litem.
Before Judges Billings, Bench, and Thorne.
OPINION
¶ 1 Appellant E.A. appeals from an order terminating his parental rights to W.A. We reverse.
BACKGROUND
¶ 2 W.A. was born in February of 1989 to E.A., his biological father, and D.A., his biological mother. Presently, E.A. is incarcerated in Oklahoma after being convicted of sexual abuse of a child and lewd molestation of a child, and D.A. is reportedly incarcerated in Texas for similar convictions. In 1995, a Kentucky court placed W.A. in the temporary custody and guardianship of his sister, D.D. D.D. subsequently moved with W.A. to Utah, and in February of 1998, she contacted the Utah Division of Child and Family Services (DCFS) indicating that she could no longer care for W.A. As a result, DCFS filed a dependency petition regarding W.A.
¶ 3 Following a dependency hearing, the juvenile court determined W.A. to be a "dependent" child "who is homeless or without proper care through no fault of his parent, guardian, or custodian." Utah Code Ann. § 78-3a-103(1)(h) (Supp. 1998). The court therefore granted the petition and awarded DCFS custody and guardianship of W.A.
¶ 4 In October of 1998, DCFS and the guardian ad litem filed a petition to terminate E.A.'s parental rights to W.A. E.A. responded with a motion to dismiss the petition, arguing that the juvenile court lacked personal jurisdiction over him. After reviewing E.A.'s argument, the juvenile court concluded that the abandonment of W.A. was an ongoing act, and that this on going act invoked Utah's long-arm statute providing Utah with sufficient minimum contacts to establish personal jurisdiction over E.A. Alternatively, the court held that the parent-child relationship was a "status" relationship, and therefore, the "status exception to the personal jurisdiction requirement" provided the court with sufficient jurisdiction to adjudicate the parent-child relationship even if the court lacked personal jurisdiction over E.A.
DCFS and the guardian's office also petitioned to terminate D.A.'s parental rights, however, that petition is not the subject of this appeal.
¶ 5 Ultimately, the juvenile court determined, inter alia, that E.A. had abandoned W.A., pursuant to Utah Code Ann. §§ 78-3a-407(1), -408(1)(c) (Supp. 1998), and that E.A. was an unfit parent, pursuant to Utah Code Ann. §§ 78-3a-407(3), -408(2)(e), -408(4)(a). The juvenile court also concluded that it was in W.A.'s best interests to terminate E.A.'s parental rights. As a result, the juvenile court terminated E.A.'s parental rights to W.A. E.A. now appeals.
ISSUES AND STANDARDS OF REVIEW
¶ 6 E.A. argues the juvenile court lacked personal jurisdiction over him because (1) Utah's long-arm statute does not provide for service of process in this matter; and (2) he has no contacts with the State of Utah. "[T]he propriety of the jurisdictional determination . . . [is] a question of law upon which we do not defer to the district court."Department of Soc. Servs. v. Vijil, 784 P.2d 1130, 1132 (Utah 1989).
E.A. also asserts the following errors: (1) the juvenile court erred by denying his Motion to Dismiss for insufficient process; (2) the juvenile court denied him due process by admitting copies of the dependency hearing minutes and the order into evidence, because he was neither represented by counsel nor present at the dependency hearing; and (3) the juvenile court erred in admitting his nolo contendere plea to sexual abuse of a child and lewd molestation of a child, as well as the Oklahoma judgment sending him to prison to serve a life sentence. As we have concluded that the jurisdictional issue is dispositive of E.A.'s appeal, we note his remaining claims, but do not address them.
ANALYSIS I. Personal Jurisdiction
¶ 7 E.A. argues the juvenile court lacked personal jurisdiction over him when it terminated his parental rights. Specifically, E.A. argues that Utah's long-arm statute, Utah Code Ann. § 78-27-24 (Supp. 1998), does not provide for out-of-state service of process in this matter. E.A. also argues that he lacks the requisite "minimum contacts" with Utah necessary to establish personal jurisdiction over him.
The dissent responds to another of E.A.'s arguments concerning the inapplicability of Utah's Uniform Child Custody Jurisdiction and Enforcement Act, see Utah Code Ann. § 78-45c-101 to -318 (Supp. 2001), to the present circumstance by citing to the Termination of Parental Rights Act (TPRA), see Utah Code Ann. § 78-3a-400-414 (Supp. 2001). Specifically, the dissent focuses on certain "safeguards" extended within the TPRA in an attempt to demonstrate not only that the State has jurisdiction over all termination of parental rights cases where the child resides within the state, but also in an attempt to demonstrate that E.A.'s due process rights were properly considered prior to and during the termination proceedings. What the dissent fails to recognize is that a violation of long held constitutional protections is not permissible simply because other procedural safeguards are satisfied.
¶ 8 Determining whether personal jurisdiction exists over a nonresident defendant requires a court to undertake the following two-prong analysis:
First, [this court] must determine whether Utah's long-arm statute encompasses the acts alleged in the complaint. Second, if we conclude that the alleged acts come within the long-arm statute's reach, we must consider whether the exercise of personal jurisdiction over defendant comports with the due process requirements of the Fourteenth Amendment of the United States Constitution.
Starways, Inc. v. Curry, 1999 UT 50, ¶ 6, 980 P.2d 204. Because we reach a different conclusion than the juvenile court, we address this analysis in reverse order.
A. Minimum Contacts
¶ 9 In denying E.A.'s Motion to Dismiss, the juvenile court determined that under the "'contacts' theory[,] . . . jurisdiction lies with this Court." We agree with the juvenile court that E.A. has the requisite "minimum contacts," International Shoe v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158 (1945), with Utah to satisfy the due process prong of the analysis, albeit for the specific reasons we articulate below.
¶ 10 The United States Supreme Court has held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution permits a forum state to assert personal jurisdiction over a nonresident defendant only when the defendant has "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'"International Shoe, 326 U.S. at 316, 66 S.Ct. at 158 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343 (1940)).
¶ 11 In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228 (1958), the United States Supreme Court explained that determining whether a nonresident defendant has the requisite minimum contacts with the forum state
will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.
Id. at 253, 78 S.Ct. at 1240 (citing International Shoe, 326 U.S. at 319, 66 S.Ct. at 159-60). Later, in Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, the Supreme Court reemphasized that "an essential criterion in all cases is whether the 'quality and nature' of the defendant's activity is such that it is 'reasonable' and 'fair' to require him to conduct his defense in that State." Id. at 92, 98 S.Ct. at 1697 (quoting International Shoe, 326 U.S. at 319, 66 S.Ct. at 159-60).
¶ 12 Unlike the facts in Kulko, the "quality and nature" of E.A.'s acts, namely, knowingly permitting the State of Utah to provide financial, emotional, and physical care to W.A. "'purposefully availed [E.A.]' of the 'benefits and protections'" of Utah's laws. Id. at 94, 98 S.Ct. at 1698 (citing Shaffer v. Heitner, 433 U.S. 186, 216, 97 S.Ct. 2569, 2586 (1977)). Although E.A. did not bring W.A. into Utah, once W.A. was in DCFS custody, the State, through its child welfare programs established by the Legislature, necessarily provided for W.A.'s well-being. E.A., as a parent, had the responsibility of providing for W.A. and instead chose, for whatever combination of reasons, to allow Utah to step into the role of provider.
The Supreme Court determined that appellant's contacts with California, namely "actively and fully consent[ing] to [his daughter] living in California for the school year," were insufficient to show that he had "purposefully avail[ed]" himself of the "benefits and protections of California's laws." Kulko v. Superior Court of Cal., 436 U.S. 84, 94, 98 S.Ct. 1690, 1698 (1978) (quotations and citation omitted).
¶ 13 Furthermore, E.A. was aware that DCFS had custody and control of W.A. As such, E.A.'s "'conduct and connection with [Utah] are such that he should reasonably anticipate being haled into court here'" to adjudicate his parental rights. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183 (1985) (quoting World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567 (1980)). We therefore conclude that E.A. has established sufficient minimum contacts with Utah to satisfy due process requirements.
Had E.A. successfully made alternate arrangements for the care of W.A. upon discovering the situation, we may have had a different case.
B. Utah's Long-Arm Statute
¶ 14 The remaining hurdle that must be overcome before Utah can assert personal jurisdiction over E.A. is service of process upon E.A., who has at all times been outside of the State during the pendency of this action, and this hurdle therefore necessarily involves the reach of our long-arm statute. In Utah, a litigant initiates an action through the filing of a complaint or a petition, and service of process upon the named defendants. See Utah R. Civ. P. 3-4. When the named defendants are only found out-of-state, our long-arm statute provides for jurisdiction in a variety of situations. See Utah Code Ann. § 78-27-24 (Supp. 2001).
Any person, notwithstanding section 16-10a-1501, whether or not a citizen or resident of this state, who in person or through an agent does any of the following enumerated acts, submits himself, and if an individual, his personal representative, to the jurisdiction of the courts of this state as to any claim arising out of or related to:
(1) the transaction of any business within this state;
(2) contracting to supply services or goods in this state;
(3) the causing of any injury within this state whether tortious or by breach of warranty;
(4) the ownership, use, or possession of any real estate situated in this state;
(5) contracting to insure any person, property, or risk located within this state at the time of contracting;
(6) with respect to actions of divorce, separate maintenance, or child support, having resided, in the marital relationship, within this state notwithstanding subsequent departure from the state; or the commission in this state of the act giving rise to the claim, so long as that act is not a mere omission, failure to act, or occurrence over which the defendant had no control; or
(7) the commission of sexual intercourse within this state which gives rise to a paternity suit under Title 78, Chapter 45a, to determine paternity for the purpose of establishing responsibility for child support.
Utah Code Ann. 78-27-24 (Supp. 2001).
¶ 15 Here, the juvenile court attempted to invoke Utah's long-arm statute by determining that E.A.'s abandonment constituted a continuing and tortious act. See id. § 78-27-24(3). The juvenile court, however, conceded that Utah's long-arm statute "appears ill-fit to deal with termination of parental rights cases." We agree.
¶ 16 We conclude that Utah's long-arm statute does not provide for service of process in this matter. The record does not reflect that E.A. has ever (1) been within the State; (2) conducted business in the State; (3) committed a tortious injury within the State; or (4) owned or used real property situated within the State. While other conduct could be added to the list of actions that would support long-arm jurisdiction, the Legislature has thus far not chosen to do so. Therefore, we must conclude that the long-arm statute is unavailable in this case, and thus, Utah does not have personal jurisdiction over E.A.
See Utah Code Ann. § 78-27-24(6), (7).
See id. § 78-27-24(1)-(3), (5).
See id. § 78-27-24(3).
See id. § 78-27-24(4).
II. The Status Exception
¶ 17 The juvenile court found, in the alternative, that personal jurisdiction was unnecessary, citing the "status" exception, which is mentioned in Shaffer v. Heitner, 433 U.S. 186, 208 n. 30, 97 S.Ct. 2569, 2582 n. 30 (1977). E.A. argues the juvenile court's application of the "status" exception to the personal jurisdiction requirement violated his due process rights. We agree.
¶ 18 In Shaffer, the Supreme Court briefly addressed the existence of a possible exception to the requirement of personal jurisdiction when adjudicating claims involving certain relationships between parties. Id. at 208, 97 S.Ct. at 2582. In this discussion, the Court noted, "We do not suggest that jurisdictional doctrines other than those discussed in text, such as the particularized rules governing adjudications of "status," are inconsistent with the standard of fairness." Id. at 208 n. 30, 97 S.Ct. at 2582 n. 30.
The dissent argues that by citing the Traynor article in its "status" footnote, see Shaffer v. Heitner, 433 U.S. 186, 208 n. 30, 97 S.Ct. 2569, 2582 n. 30 (1977), the Shaffer court must have "contemplated that child custody adjudications, and more specifically termination proceedings, are included within the "status" exception." We, however, do not agree with this analysis and, moreover, see no support for this position in either Shaffer or any Supreme Court case that followed. It is also important to note that while the dissent relies on language from pages 661 and 662 of the Traynor article, the Shaffer Court seems to have purposefully avoided citing to this section. It seems unlikely that in citing only to a small portion of the Traynor article in the footnote that the Court intended to adopt all of language and analysis found in the Traynor article.
¶ 19 However, the Supreme Court has yet to hold that a "status" exception applies to proceedings involving the terminations of parental rights. Further, although it is clear that a "status" exception has been applied to divorce proceedings, the Court has expressly concluded that a "status" exception does not apply to the financial aspects of a marital dissolution, i.e., alimony, child support, and property division. See Kulko v. Superior Court of Cal., 436 U.S. 84, 100-01, 98 S.Ct. 1690, 1701 (1978). Perhaps even more importantly, the Supreme Court has expressly stated that it is "plain beyond the need for multiple citation that a natural parent's desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397 (1982) (quotations and citations omitted). Indeed, the Court terms such rights a "fundamental liberty interest." Id. at 759, 102 S.Ct. at 1397.
The application of the "status" exception to divorce proceedings permits a forum state to dissolve a marriage without ever possessing personal jurisdiction over a party defendant.
The dissent attempts to minimize the impact of Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388 (1988), by focusing on the principal holding of the case concerning standards of proof in termination hearings. However, in doing so, the dissent fails to acknowledge the clear language of Santosky, "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents. . . ."Id. at 753, 102 S.Ct. at 1394-95 (emphasis added). Such language highlights the reason for Santosky holding that rather than a preponderance of the evidence, clear and convincing evidence was the appropriate standard of proof required to terminate parental rights.
¶ 20 Nevertheless, we concede that some jurisdictions have determined the parent-child relationship to be a "status" relationship. Those courts have therefore specifically applied a "status" exception to overcome deficiencies in the personal jurisdiction requirement in proceedings involving the termination of parental rights. See, e.g., In re Appeal in Maricopa County, 543 P.2d 454 (Ariz.Ct.App. 1975); In re M.L.K., 768 P.2d 316 (Kan.Ct.App. 1989); In re M.S.B., 611 S.W.2d 704 (Tex.Civ.App. 1981).
¶ 21 For example, in In re M.S.B., the Texas Court of Civil Appeals defined "status" as "a 'relationship between two persons, which is not temporary in its nature, is not terminable at the will of either and with which the State is concerned. Marriage is a status . . . and so too is the relationship of parent and child, whether natural or adoptive.'" 611 S.W.2d at 706 (quoting Reese, Marriage in American Conflict of Laws, 26 Int'l Comp. L.Q. 952, 953 (1977)) (alteration in original). The Texas court thus concluded that "[i]t cannot be doubted that the parent-child relationship creates a status, and that a suit seeking to terminate such relationship is a status adjudication as much as a suit to determine custodial rights." Id.
¶ 22 Similarly, in In re Appeal in Maricopa County, the Arizona Court of Appeals explained that the State, "in its capacity as parens patriae[,] has a very substantial interest in the [termination] proceeding." 543 P.2d at 459. Accordingly, the court continued, "when the issue is primarily between the state in its parens patriae capacity and an absent non-consenting spouse, the state is justified in providing for effective termination proceedings, even in the absence of in personam jurisdiction over a non-consenting parent." Id.
¶ 23 However, in light of the Supreme Court's clear declaration that parental rights are a fundamental liberty interest, and that "'state intervention to terminate the relationship between [a parent] and [the] child must be accomplished by procedures meeting the requisites of the Due Process Clause," Santosky, 455 U.S. at 753, 102 S.Ct. at 1394 (quoting Lassiter v. Department of Soc. Servs., 452 U.S. 18, 37, 101 S.Ct. 2153, 2165 (1981) (Blackmun, J., dissenting)) (alterations in original); see also Lassiter, 452 U.S. at 24-32, 101 S.Ct. at 2158-2162, we find it difficult to reconcile the personal jurisdiction requirement necessary to adjudicate contract rights, money damage awards, and support obligations for children with the decisions of these jurisdictions not to require the same stringent due process and personal jurisdiction requirements for proceedings that would terminate a parent and child relationship.
While we agree with the dissent that several jurisdictions have applied a "status" exception in cases similar to this case, as we have stated we do not find these cases persuasive. See In re Appeal in Maricopa County. 543 P.2d 454, 459 (Ariz.Ct.App. 1975); In re M.L.K., 768 P.2d 316, 319 (Kan.Ct.App. 1989); In re adoption of Copeland, 43 S.W.2d 483, 487 (Tenn.Ct.App. 2000). Moreover, our reading of Supreme Court precedent suggests that the nature of termination proceedings demands a strict adherence to procedural safeguards, and that the legal prestidigitation found in the application of "status" exceptions to these cases are unlikely to satisfy those requirements. See Santosky v. Kramer, 455 U.S. 743, 753, 102 S.Ct. 1388, 1395 (1982) (stating "If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs."); Kulko v. Superior Court of Cal., 436 U.S. 84, 92, 98 S.Ct. 1690, 1697 (1978) (stating that "While the interests of the forum State and of the plaintiff in proceeding with the cause in the plaintiff's forum of choice are, of course, to be considered, an essential criterion in all cases is whether the 'quality and nature' of the defendant's activity is such that it is 'reasonable' and 'fair' to require him to conduct his defense in that State." (Citations omitted) (emphasis added)).
¶ 24 Indeed, although the facts of this matter clearly show E.A. to be an unfit parent, and that it is in W.A.'s best interest for the juvenile court to terminate E.A.'s parental rights, we cannot escape the conclusion that applying a "status" exception to termination proceedings may lead to unfortunate consequences in future cases. As the United States Supreme Court has carefully noted:
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.
Santosky, 455 U.S. at 753-54, 102 S.Ct. at 1394-95 (emphasis added). "We therefore reject respondent['s] . . . claim that a parental rights termination proceeding does not interfere with a fundamental liberty interest." Id. at 754 n. 7, 102 S.Ct. at 1395 n. 7.
¶ 25 Recognizing the fundamental liberty interest at stake in a proceedings involving the termination of parental rights, other jurisdictions have held that a state must meet its Fourteenth Amendment obligation to obtain personal jurisdiction over a parent prior to attempting to terminate his or her parental rights. SeeIn re One Minor Child, 411 A.2d 951, 952-53 (Del. 1980) (holding no jurisdiction over appellant because of insufficient notice); In re R.G., 611 So.2d 71 (Fla.Ct.App. 1992) (per curiam); In re Doe, 926 P.2d 1290 (Haw. 1996);Phillips v. Thornerfelt, Nos. 85-CA-1075-S, 85-CA-1372-S, 1986 Ky. App. LEXIS 1116 (Ky.Ct.App. April 25, 1986); see also In re Vernon R., 991 P.2d 986 (N.M.Ct.App. 1999) (holding that a "status" exception was inapplicable to the specific facts of the case, but leaving open the question when a child's best interest is clearly at issue).
¶ 26 We find the facts of In re Doe to be particularly enlightening. In Doe, the subject child (Doe) was born in Australia and later taken to Hawaii by the father, where he sought reinstatement of his suspended Veterans Administration benefits. See Doe, 926 P.2d at 1292. The mother allowed the father to take Doe to Hawaii because she "mistakenly thought that Doe would need a visa to accompany her to the Philippines." See id.
¶ 27 At some point, the father became unable to care for Doe and requested assistance from the Philippine Consulate, which, in turn, referred the child to Hawaii's Department of Human Services (DHS). See id. DHS placed Doe in an emergency shelter home and ultimately filed a petition to have the family court determine Doe's best interests. See id. A summons was issued to the mother, however, she did not receive it until the day of the hearing, and the family court proceeded without personal jurisdiction over her, explaining that "technically this won't bind her because we haven't noticed her." Id.
¶ 28 The family court then conducted five hearings, wherein the mother was unrepresented by counsel and often without notice of the proceedings. See id. Throughout this ordeal, the mother regularly corresponded with DHS and the court, pleading for the return of her son.See id. at 1293. She also explained that "United States immigration officials refused to recognize [her marriage to the [f]ather] because [he] had not yet divorced a previous wife; as a result, [the] [m]other was unable to obtain a visa until July 1990." Id. The court possessed all of this information by March of 1988. See id.
¶ 29 The Philippine Department of Social Welfare (PDSW) conducted social studies and filed a report with the court recommending that Doe be returned to the mother in the Philippines. See id. at 1294. The PDSW report noted that the mother would be afforded additional protection and economic stability by her extended family, and through PDSW assistance if necessary. See id. However, the Hawaii family court terminated both the mother's and the father's parental rights. See id.
¶ 30 The mother appealed the family court's decision and the Hawaii Supreme Court reversed concluding that "[the] [m]other's due process rights were violated." Id.; (seeIn re John Doe (born 8/6/87), No. 15429 (mem. op. at 12 n. 8) (Haw. Feb. 19, 1993)). On remand, after a separate hearing on the issue of personal jurisdiction, the family court ruled that "it had personal jurisdiction" over the mother, and again terminated her parental rights. Id.
¶ 31 The mother again appealed, and the Hawaii Supreme Court again reversed concluding that the mother had "no contact" with Hawaii, and therefore, Hawaii did not have personal jurisdiction over her. Id. The court also noted the inherent unfairness of the proceeding against her, explaining that "[the] [m]other was required to travel to Hawaii as a prerequisite to reunification with her child; notwithstanding her known visa difficulties, DHS held [the] [m]other's absence against her." Id. at 1295.
¶ 32 The court concluded by addressing the applicability of the "status" exception to a proceeding dealing with the termination of parental rights, stating:
We are aware of the cases supporting the proposition that personal jurisdiction over a nonresident parent is not required for certain "status" determinations — such as child custody under the Uniform Child Custody Jurisdiction Act (UCCJA) — so long as the nonresident receives sufficient notice and an opportunity to participate in the proceedings. . . . A principal purpose of the UCCJA, however, is "to have custody litigation take place in the state where the child and his family have the closest connection." Balestrieri v. Maliska, 622 So.2d 561, 563 (Fla.Ct.App. 1993). . . . The Texas Supreme Court has articulated the general rule that "a family relationship is among those matters in which the forum state has such a strong interest that its courts may reasonably make an adjudication affecting that relationship even though one of the parties to the relationship may have had no personal contacts with the forum state."
In re S.A.V., 837 S.W.2d 80, 84 (Tex. 1994). . . .
But such cases do not involve the exercise of personal jurisdiction in a situation in which neither parent ever was or intended to be a resident of the state. . . . Here, the particular family relationship over which the State of Hawai'i asserts a compelling interest never existed within its jurisdiction because neither of the parents resided in or was domiciled in Hawaii. The policy underlying the foregoing cases simply does not apply to the present case.
Id. at 1299 (citations omitted).
¶ 33 Similarly, in Phillips, the Kentucky Court of Appeals refused to terminate a father's parental rights because the state lacked personal jurisdiction over him. 1986 Ky. App. LEXIS 1116, at *18. The Kentucky court concluded that "neither [Kentucky's] longarm statute nor those provisions relating to in personam jurisdiction in the UCCJA can confer jurisdiction over [the father] so as to interfere with his parental rights, unless [the father] had done something to avail himself of the benefits or protections of this forum." Id.
¶ 34 Finally, in In re Vernon R., the New Mexico Court of Appeals upheld a lower court decision refusing to terminate the father's parental rights for lack of personal jurisdiction. See id. 991 P.2d 986, 989 (N.M.Ct.App. 1999). The court explained that it agreed with "those courts that have held a straight termination proceeding, not involving custody, adoption, or other similar issues, to fall outside the [U]CCJA." Id. at 988. Further, the court explained that it disagreed with the mother's argument that terminating the father's rights "presents a status adjudication [for] which no personal jurisdiction over the parties is required." Id.
[The] [m]other's argument to this effect relies on custody cases, and she urges this Court to extend the same rationale to termination proceedings. We are not inclined to do so, because this would unreasonably extend the rationale of the [U]CCJA to a type of case that it was not intended to cover. The [U]CCJA is concerned with the adjudication of custody issues in an efficient manner that promotes cooperation among states and the best interest of the child, . . . goals which are not significantly advanced by termination of [the] [f]ather's parental rights under these circumstances.
Id.
¶ 35 The court also noted "the fundamental importance of parental rights," and therefore, "in personam jurisdiction is ordinarily required for termination." Id. at 988-89. Notwithstanding its specific ruling, the court did caution that where "the residence and caretaking of a child is at issue" it may revisit the exception from the personal jurisdiction requirement. Id. at 989.
¶ 36 These jurisdictions have recognized the fundamental liberty interest associated with parental rights, and the absolute necessity of comporting with due process requirements, including the establishment of personal jurisdiction, before depriving a parent of that fundamental interest.
¶ 37 Finally, we note that in Utah, terminating parental rights requires the juvenile court to make two, relatively separate findings before termination can occur. SeeIn re C.K., 2000 UT App 11, ¶ 18, 996 P.2d 1059.
First, the court must find that a specific ground for termination exists, finding the parent unfit or incompetent based on a ground enumerated in section 78-3a-407 of the Utah Code. Second, the court must find that termination of parental rights serves the best interests of the child. Each finding must be based on clear and convincing evidence.
Id. (emphasis added) (citations omitted). Accordingly, the juvenile court must find some enumerated parental misconduct before determining whether terminating the parent's rights is in the best interest of the child. We believe that such a finding, without first having personal jurisdiction over that parent, would violate due process, particularly when, as in this matter, the actual misconduct of E.A. occurred outside of Utah.
The dissent cites In re M.C., 940 P.2d 1229, 1237 (Utah Ct.App. 1997), in an attempt to distinguish between matters involving support and property, and matters involving parent-child relationships. While we agree that In re M.C. states clearly that "the State's policy when abused and neglected children are involved in termination cases [is to hold] [t]he child's welfare and best interest [to be] of paramount importance," 940 P.2d at 1237, we do not see how this policy can overcome the Constitutional requirement that a forum state must first have personal jurisdiction before it can render judgment on a party. See generally Kulko v. Superior Court of Cal., 436 U.S. 84, 91-92, 98 S.Ct. 1690, 1696-97 (1978). We also find unpersuasive the dissent's statement that "the parent alone has constitutionally protected rights and interests [in matters of property and support] because the financial obligation is one borne by the parent." In fact, after carefully reviewing Kulko, we conclude that the Supreme Court adopted a position substantially different from that proposed by the dissent, holding not that the parent's financial interests are deserving of protection, but rather that the parent himself is deserving of Due Process protections. See id. at 98-100, 98 S.Ct. at 1700-01. Moreover, in discussing the financial interests that were central to the underlying action, the Supreme Court clearly suggested that in the area of child support, the interests of the children are at least as important as the financial interests of the parent. See id.
¶ 38 In sum, we find the cases recognizing the fundamental importance of parental rights persuasive and note that the United States Supreme Court has yet to apply or extend a "status" exception to termination proceedings. Accordingly, we conclude that the juvenile court erred in relying upon the "status" exception to personal jurisdiction in denying E.A.'s Motion to Dismiss.
¶ 39 We further cannot escape the conclusion that the judiciary is not the proper branch of government to make state policy concerning the extension of our long-arm jurisdiction over absent parties. Were the legislature to amend the long-arm statute to allow for service of process in these types of cases, Utah could assert personal jurisdiction over E.A., and thus the juvenile court's decision to terminate E.A.'s parental rights would be supportable. However, as it stands, service of process in this matter is deficient for failure to comport with Utah's long-arm statute. Accordingly, because we conclude that a "status" exception to the due process requirement of personal jurisdiction does not extend to proceedings to terminate parental rights, the juvenile court did not have personal jurisdiction over E.A. when it terminated his parental rights.
Finally, the dissent notes that it is unlikely the courts of either Kentucky or Oklahoma would accept jurisdiction of this case and that absent such a "competing" state, Utah is in the best position to adjudicate this matter. The analysis set forth in Kulko easily disposes of this argument: "the fact that [Utah] may be the '"center of gravity"' for choice-of-law purposes does not mean that [Utah] has personal jurisdiction over the defendant." 436 U.S. at 98, 98 S.Ct. at 1700 (quoting Hanson v. Denckla, 357 U.S. 235, 254, 78 S.Ct. 1228, 1240 (1958)). We also note that the record evidences no determination by any other state reflecting an unwillingness to assert their claim of personal jurisdiction over E.A. on behalf of W.A. Absent such a declaration, we are unwilling to declare that a "vacuum" in the law exists and manufacture an exception.
¶ 40 The decision of the juvenile court is, therefore, reversed.
¶ 41 I CONCUR: Judith M. Billings, Associate Presiding Judge.
¶ 42 I respectfully dissent. I believe the analysis of the main opinion is seriously flawed.
¶ 43 The trial court held that because of the tortious act of abandonment and the failure to pay child support, pursuant to Utah Code Ann. § 78-27-24(3) and (6) (Supp. 2001), our long-arm statute reaches E.A. (Father). Without any analysis whatsoever, the main opinion simply declares that the acts alleged do not fall within our long-arm statute. Although we can affirm without significant analysis, see State v. Allen, 839 P.2d 291, 303 (Utah 1992) (declining to analyze or address all claims in writing), we cannot reverse without explaining why.
¶ 44 Furthermore, given the main opinion's conclusion that our long-arm statute does not afford personal jurisdiction in this case, the analysis of due process under the heading "A. Minimum Contacts" is meaningless dicta. The main opinion recognizes that the first question is "whether Utah's long-arm statute encompasses the acts alleged."Starways, Inc. v. Curry, 1999 UT 50, ¶ 6, 980 P.2d 204. Only if "the alleged acts come within the long-arm statute's reach, [do we] consider whether the exercise of personal jurisdiction over defendants comports with . . . due process." Id. It is nonsensical to try to address the points in reverse order.
¶ 45 Despite the foregoing, my greatest concern with the main opinion relates to its analysis under the heading "II. The Status Exception." Rather than following the mainstream line of cases from other jurisdictions, my colleagues have elected to follow a flawed legal analysis that elevates the rights of a parent over the rights of an innocent child. I believe that is a grave mistake.
¶ 46 As an alternative to personal jurisdiction, the trial court relied upon what is commonly known as the "status exception." In Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569 (1977), the United States Supreme Court acknowledged that "cases involving the personal status of the plaintiff, such as divorce actions, could be adjudicated in the plaintiff's home State even though the defendant could not be served within that State." Id. at 200, 97 S.Ct. at 2578 (citing Pennoyer v. Neff, 95 U.S. 714, 733-35 (1878)); see also Williams v. North Carolina, 317 U.S. 287, 298-99, 63 S.Ct. 207, 213 (1942) ("Thus it is plain that each state, . . . can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent."). InShaffer, the Supreme Court stated that the "particularized rules governing adjudication of status" are not inconsistent with the standard of fairness. Shaffer, 433 U.S. at 208 n. 30, 97 S.Ct. at 2582 n. 30.
¶ 47 The State argues that just as the status exception applies in a divorce context (severing a spousal relationship), it should also apply in a termination of parental rights context (severing a parent-child relationship). I agree.
¶ 48 In arguing against application of the status exception in this context, Father points to a law review article that the Shaffer Court cites to. Father quotes a portion of that article in support of his proposition that the Shaffer Court did not intend to include termination of parental rights within the status exception. The portion of the law review article that Father relies on reads as follows:
The United States Supreme Court has never explicitly included or excluded, in the status exception, child custody and termination of parental rights.
There is an element of contract and some equality of parties in the marital relationship. These are lacking in the parent-child relationship, and the interest of the state therefore becomes correspondingly larger in any action involving parent and child. Contracts of both parties with the state also take on larger and perhaps paramount importance, since the consequences of any action either declaring or terminating the relationship are so momentous to the parties. In conjunction with fair play, these considerations would normally preclude jurisdiction over a non-resident defendant having no contact with the forum state.
Roger J. Traynor, Is this Conflict Really Necessary?, 37 Tex. L.Rev. 657, 661 (1959). However, the next sentence, which Father omits, reads:
Nevertheless, even here we must recognize that the state where a child is present must be competent to regulate his custody whether his parent is present or not, and if the parent cannot be found or has failed to discharge his parental obligations, that state, given the best notice reasonably possible, should be free to promote the interest of the child by permitting his adoption.
Id. at 661-62 (footnote omitted). Hence, in favorably citing to this article, it appears that the Shaffer Court contemplated that child custody adjudications, and more specifically termination proceedings, are included within the status exception.
¶ 49 Although the issue has never been decided in Utah, other jurisdictions have expressly concluded that termination proceedings are included within the status exception. Texas has defined "status" as "'a relationship between two persons, which is not temporary in its nature, is not terminable at the will of either and with which the State is concerned. Marriage is a status . . . and so too is the relationship of parent and child, whether natural or adopted.'" In re M.S.B., 811 S.W.2d 704, 706 (Tex.Civ.App. 1981) (quoting Reese, Marriage in American Conflict of Laws, 26 Int'l Comp. L.Q. 952, 953 (1977)) (alteration in original). The Texas court concluded that "[i]t cannot be doubted that the parent-child relationship creates a status, and that a suit seeking to terminate such relationship is a status adjudication as much as a suit to determine custodial rights." Id.
¶ 50 Arizona has recognized that the state "in its capacity asparens patriae has a very substantial interest in the [termination] proceeding." In re Appeal in Maricopa County, 543 P.2d 454, 459 (Ariz.Ct.App. 1975). Because this interest is preeminent, "when the issue is primarily between the state in its parens patriae capacity and an absent non-consenting spouse, the state is justified in providing for effective termination proceedings, even in the absence of in personam jurisdiction over a non-consenting parent." Id. Other jurisdictions have held similarly. See, e.g., In re M.L.K., 768 P.2d 316, 319 (Kan.Ct.App. 1989) (concluding termination of parental rights "is nothing more than a determination of the legal status between the natural parent and the child," therefore, status exception applies); In re Adoption of Copeland, 43 S.W.3d 483, 487 (Tenn.Ct.App. 2000) (concluding termination proceeding was like custody proceeding because "principal determination is where and with whom a child should or should not live," therefore, a termination proceeding comes within the status exception).
¶ 51 The main opinion holds that since due process requires personal jurisdiction for a court to adjudicate financial matters, see Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690 (1978), then personal jurisdiction must also be required for the dissolution of the parent-child relationship. I disagree. The critical difference is that in matters of support and property, the parent alone has constitutionally protected rights and interests because the financial obligation is one borne personally by the parent. By comparison, matters concerning the parent-child relationship involve constitutionally protected rights and interests of both the parent and the child. We have previously stated that "when abused and neglected children are involved in termination cases: The child's welfare and best interest [are] of paramount importance, not the parent's rights." In re M.C., 940 P.2d 1229, 1237 (Utah Ct.App. 1997).
¶ 52 Father argues that the status exception should not be applicable because there are no "particularized rules governing" termination proceedings. Shaffer, 433 U.S. at 208 n. 30, 97 S.Ct. at 2582 n. 30. In making this argument Father argues that the Uniform Child Custody Jurisdiction Act (UCCJA), Utah Code Ann. §§ 78-45c-1 to -26 (1996), does not apply. Father argues, therefore, that there are no rules to protect his due process rights. Father refers to In re R.N.J., 908 P.2d 345 (Utah Ct.App. 1995), where this court concluded that "a proceeding involving the termination of a parent's rights and obligations is not a custody proceeding under the Utah UCCJA." Id. at 348. Father misreads this case because R.N.J. dealt with the question of subject matter jurisdiction, not personal jurisdiction. In evaluating Utah's statutory scheme, this court determined that the UCCJA did not apply because the Termination of Parental Rights Act (TPRA) is the more specific provision. See id. at 348-49. The fact that the UCCJA may not apply to this case does not, however, render the status exception inapplicable.
The legislature has subsequently overruled R.N.J. with the enactment of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which specifically includes "termination of parental rights" in the definition of "child custody proceeding." Utah Code Ann. § 78-45c-102(4) (Supp. 2001). The UCCJEA specifically states that "[p]hysical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient to make a child custody determination." Id. at § 78-45c-201(3).
¶ 53 Utah Code Ann. § 78-3a-104(1)(e) (1996) confers on the juvenile court "exclusive original jurisdiction in proceedings concerning: . . . the termination of the legal parent-child relationship in accordance with Part 4, Termination of Parental Rights Act, including termination of residual parental rights and duties." Id. The TPRA contains specific rules as to the following: contents of the petition to terminate, see id. § 78-3a-405; the notice to be given to the individuals involved, including their right to counsel and the standard of proof required, see id. § 78-3a-406; the grounds for termination, see id. § 78-3a-407; the evidence required to find grounds for termination, see id. § 78-3a-408; special circumstances the court should consider, see id. §§ 78-3a-409 to -410; disposition of the child upon termination, see id. § 78-3a-411; review following termination, see id. § 78-3a-412; and the effect of the decree, see id. § 78-3a-413. The TPRA provides ample "particularized rules,"Shaffer, 433 U.S. at 208 n. 30, 97 S.Ct. at 2582 n. 30, to ensure that even an absent parent's due process rights are protected during termination proceedings. In this case specifically, Father received notice of the proceedings and a copy of the petition to terminate and was appointed counsel to represent him at all stages of the proceedings. Had he asked, the juvenile court could easily have provided additional accommodations such as allowing him to give a deposition in Oklahoma that could then have been admitted in lieu of testimony, deposing any witnesses on his behalf, or video conferencing.
The majority relies heavily on Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388 (1982) for the proposition that its designation of parental rights as a fundamental liberty interest precludes our use of the status exception. See id. at 753-54, 102 S.Ct. at 1394-95. However, the issue in Santosky involved the standard of proof needed to terminate parental rights. The Court held that using "a 'fair preponderance of the evidence' standard in [termination proceedings] is inconsistent with due process." Id. at 758, 102 S.Ct. 1397. Utah law is in compliance with the decision in Santosky, because Utah courts use a "clear and convincing" evidence standard. Utah Code Ann. § 78-3a-406(3). Thus, I do not see how the majority reaches their conclusion that Santosky precludes the use of the status exception.
¶ 54 I would conclude, therefore, that the Utah juvenile court properly asserted jurisdiction in this case under the status exception. W.A. (Child) was brought to Utah by his legal custodian. Child was thereafter abandoned here, and has been cared for by the State since February 1998. Utah has immediate access to all relevant information concerning Child's welfare, progress, needs, and potential adoptive family.
¶ 55 If Utah is unable to assert jurisdiction over this termination proceeding, then no state can. Father suggested in oral argument that Kentucky might be an appropriate forum, because the decree granting custody and guardianship to Child's sister was issued there in 1995. However, "[a] court in a state where none of the parties reside[s] would be unlikely to become involved in view of the doctrine of forum non conveniens and issues of subject matter jurisdiction." Bartsch v. Bartsch, 636 N.W.2d 3, 9 (Iowa 2001). Likewise, a court in Oklahoma, which would have personal jurisdiction over Father, is unlikely to accept subject matter jurisdiction because Child is not physically present in the state, has not resided there since at least 1995, if ever, and is not where Child was abandoned. See Okla. Stat. Ann. tit. 10, § 7002-1.1(A)(1) (1998) (outlining circumstances where court has jurisdiction over child). An Oklahoma court is additionally unlikely to accept jurisdiction when another state has taken over the care and custody of Child, seen to his therapy and other needs, and placed him with a foster family he has bonded to and who is desirous of adopting him, since that state would be in a better position to evaluate the long-term best interests of Child. No other state is competing with Utah for jurisdiction, nor has any other state expressed an interest in doing so.
The cases the main opinion relies on for preclusion of the status exception are factually dissimilar in this regard. In In re Doe, 926 P.2d 1290, 1299 (Hawaii 1996) the child and mother had close connections with the Philippines, and the government in that jurisdiction was already involved in the case. Therefore, the Hawaii court concluded that there was an alternate forum better suited for the termination proceedings. See id. In In re Vernon R.V., 991 P.2d 987 (N.M.Ct.App. 1999), "'the actual physical possession and control of a child' was not at issue in the termination proceedings." Id. at 987 (citation omitted).
Therefore, the court refused to use the status exception because "there is no issue at this time that requires termination to settle a custody-related question." Id. at 988. However, the court also noted that the status exception may be applicable in cases involving termination of parental rights in anticipation of adoption. See id. In Phillips v. Thornerfelt, Nos. 85-CA-1075-S, 85-CA-1372-S, 1986 Ky. LEXIS 1116 (Ky.Ct.App. April 25, 1986), an unpublished decision, the court does not even discuss the status exception. The court merely concludes that because the mother and father had lived together in California, the child was born in California, and all relevant evidence was in California, the California court had jurisdiction and "had never declined to exercise it." Id. at *16.
¶ 56 I would hold that the status exception readily applies to this case. None of the other issues raised here have any merit. I would therefore affirm the judgment of the juvenile court.
Russell W. Bench, Judge