State of Utah in the interest of H.J., M.J., and J.M.
Annotate this Casepublication in the Pacific Reporter.
IN THE UTAH COURT OF APPEALS
----ooOoo----
State of Utah, in the interest
of H.J., M.J., and J.M.,
persons under eighteen years
of age.
______________________________
J.M. and J.M.,
Appellants,
v.
State of Utah,
Appellee.
OPINION
(For Official Publication)
Case No. 981409-CA
F I L E D
August 5, 1999
1999 UT App 238
-----
Third District Juvenile,
Salt Lake Department
The Honorable Robert S.
Yeates
Attorneys:
Mary C. Corporon, Salt Lake
City, for Appellants
Jan Graham and John Peterson,
Salt Lake City, for Appellee
Martha Pierce and Tracy
S. Mills, Salt Lake City, Guardians Ad Litem
-----
Before Judges Bench, Billings, and Jackson.
BILLINGS, Judge:
¶1
Appellants, grandparents
of three children, H.J., M.J., and J.M., in the custody of Utah Division
of Child and Family Services (DCFS), appeal two orders of the juvenile
court.(1) The first order terminated the
parental rights of D.M., the children's mother. The second order dismissed
the grandparents' petition for adoption of the children. The appeals were
consolidated. We reverse and remand for proceedings consistent with our
opinion.
FACTS
¶2
In November 1996, DCFS removed
the oldest child, H.J., to protective custody after receiving an allegation
of abuse against her step-father.(2) DCFS
filed a petition alleging that H.J. and her siblings were abused, neglected,
or dependent children. After a hearing in January 1997, the court found
the children to be within the court's jurisdiction. The court permitted
the mother, D.M., to retain custody of the children. DCFS was to provide
family preservation services. The step-father was to have no contact with
the children.
¶3
In March 1997, DCFS discovered
the step-father was again living with the children. As a result, DCFS took
protective custody of the children and filed a motion for temporary custody.
Shortly after the children were removed, the step-father committed suicide,
and D.M. attempted suicide and was hospitalized. At the March 1997 shelter
hearing, the court found that DCFS acted reasonably in taking the children
into custody and permitted DCFS to retain temporary custody. The court
ordered DCFS to investigate appellant J.M. (grandmother) for fitness for
a possible kinship placement, and ordered DCFS to provide reunification
services to the mother and children.
¶4
DCFS initiated the evaluation
of grandmother for a kinship placement. Because grandmother lived in Los
Angeles, DCFS followed the Interstate Compact for the Placement of Children
(ICPC) process, and contacted Los Angeles social services to conduct a
home evaluation of grandmother. The evaluation was positive and recommended
the children be placed with grandmother.
¶5
On May 27, 1997, grandmother
filed a motion for temporary custody of the children. The motion alleged
that the children's mother indicated her desire that grandmother care for
the children. Additionally, the motion stated that grandmother was willing
to be monitored by appropriate agencies to insure the children were cared
for, would assure the children received therapy as needed, and would comply
with visitation limits as recommended by the children's therapists. At
the June 3 review hearing, the court continued the order of temporary custody
with DCFS, and set grandmother's motion for temporary custody for an evidentiary
hearing because the State opposed a kinship placement with grandmother.
The court did not permit grandmother access to caseworker or therapist
reports regarding the children.
¶6
At the August 22 temporary
custody evidentiary hearing, the children's caseworker and therapist testified
for the State. Both recommended the children remain in their current foster
and group home placements. Both testified the children were progressing
well and any disruption would likely result in a therapeutic setback. According
to the children's therapist, it would likely take at least six months for
the children to form a therapeutic bond with a new therapist. Also, the
therapist believed grandmother interacted inappropriately with the children
in her single visit after DCFS took custody because she failed to appreciate
their special needs resulting from abuse.
¶7
The court denied grandmother's
motion for temporary custody, finding that a disruption in placement or
counseling would be detrimental to the children. The court also found that
grandmother did not appreciate the children's special needs, and minimized
their problems. Additionally, the court found the children did not feel
safe in grandmother's home, and that grandmother would likely permit unauthorized
visits by D.M.(3) Based on these findings,
the court concluded placement of the children with grandmother at that
time would not be in the children's best interests. Consequently, the court
continued the order of temporary custody with DCFS and set the next review
hearing for October 23, 1997.
¶8
On October 9, 1997, grandmother
filed a verified petition requesting permanent custody of the children.
At the October 23 review hearing, the court set December 3, 1997, as the
date for hearing grandmother's petition. The court also designated December
3 as the twelve-month dispositional review.
¶9
At the December 3 hearing,
on the State's motion, the court dismissed grandmother's petition for permanent
custody without holding an evidentiary hearing. The court concluded the
issues in the petition had been previously addressed in the August 22 kinship
placement temporary custody hearing. After dismissing grandmother's petition
for permanent custody, the court excluded grandmother's attorney from the
courtroom for the dispositional hearing. The court then terminated reunification
services and set a permanency plan hearing for February 2, 1998.
¶10
On February 2, 1998, DCFS
filed a petition to terminate D.M.'s parental rights.(4)
At the February 2 hearing, the court set March 18 as a pretrial date for
the petition. The court also continued the order for temporary custody
with DCFS and recognized the permanency plan goal as adoption. At the March
pretrial hearing, the court set a trial date of June 8, 1998.
¶11
On May 29, 1998, grandmother
filed a petition to adopt the children. Included with the adoption petition
was a request for termination of parental rights of D.M. The court terminated
D.M.'s parental rights on June 8, 1998, after D.M. failed to appear for
trial on the State's petition.(5) Custody
of the children remained with DCFS, with the goal of adoption. The court
excluded grandmother's attorney from the courtroom for the termination
trial, agreeing with the State that grandmother was not an interested party.
¶12
DCFS filed a motion to dismiss
grandmother's adoption petition on July 6. The State claimed grandmother
had no standing to petition for adoption, and further, that the August
22 kinship temporary custody hearing established that placement with grandmother
would be inappropriate. The court dismissed the adoption petition on October
15, 1998, without holding an evidentiary hearing. The court concluded the
August 22, 1997, kinship temporary custody hearing settled matters regarding
placement of the children with grandmother. The court also held as a matter
of law that grandmother did not meet statutory requirements to file a petition
to adopt.
¶13
Grandmother now appeals
from the termination of parental rights order, specifically attacking the
continuation of custody with DCFS. She also appeals the order dismissing
her adoption petition.
ISSUES AND STANDARDS OF REVIEW
¶14
Initially, we must decide
whether grandmother has standing to appeal the order from the proceeding
terminating D.M.'s parental rights. The issue of standing is primarily
a matter of law, reviewed for correctness. See Kearns-Tribune
Corp. v. Wilkinson, 946 P.2d 372, 373 (Utah 1997). Factual findings
made by the trial court that bear on standing will be reviewed with deference.
See
id. at 374. Because standing involves important policy considerations,
appellate courts "will closely review trial court determinations of whether
a given set of facts fits the legal requirements for standing, granting
minimal discretion to the trial court." Id.
¶15
Second, we must determine
whether the trial court erred in dismissing grandmother's adoption petition
without holding an evidentiary hearing. The juvenile court based its dismissal
on the grounds of res judicata and statutory interpretation. The application
of res judicata is a question of law, reviewed for correctness with no
deference given to the trial court. See Gardner v. Madsen,
949 P.2d 785, 788 (Utah Ct. App. 1997). Issues of statutory interpretation
are also matters of law, reviewed for correctness with no deference given
to the trial court's interpretation. See A.E. v. Christean,
938 P.2d 811, 814 (Utah Ct. App. 1997).
ANALYSIS
I. Order Terminating Parental
Rights
and Continuing DCFS Custody
¶16
Grandmother appeals the
order terminating D.M.'s parental rights, asserting the court erred in
continuing custody with DCFS without holding a hearing regarding the best
interests of the children.
¶17
"Traditional standing criteria
require that the interests of the parties be adverse and that the party
'seeking relief have a legally protectible interest in the controversy.'"
State
ex rel A.H. v. Mr. & Mrs. H., 716 P.2d 284, 286 (Utah 1986) (quoting
Kennecott
Corp. v. Salt Lake County, 702 P.2d 451, 454 (Utah 1985)). Additionally,
"an appellant generally must show both that he or she was a party or privy
to the action below and that he or she is aggrieved by that court's judgment."
Society of Prof. Journalists v. Bullock, 743 P.2d 1166, 1171 (Utah
1987).
¶18
Under Utah law, notice of
a hearing on a petition to terminate parental rights must be provided to
the parents, guardian, and custodian of the children. See Utah Code
Ann. § 78-3a-406 (1996). Grandparents are not entitled to notice.
"Relatives other than the parents have no such rights in a child as to
require service of process in [a termination] proceeding, nor to have an
adjudication of the severance of any asserted right." Wilson v. Family
Servs. Div., Region Two, 554 P.2d 227, 230 (Utah 1976). Grandmother
was not a party to the proceedings below and did not have a protectible
legal interest affected by the court's ruling; therefore, she has no standing
to appeal the termination of D.M.'s parental rights. Cf. L.P.
v. W.L.P. and K.J.P., 590 So. 2d 334, 335 (Ala. Civ. App. 1991) ("A
person not a party to the proceeding below has no standing to bring an
appeal to this court.").
¶19
Fundamentally, however,
grandmother does not disagree with the termination of D.M.'s parental rights.
Rather, she seeks to appeal the portion of the order continuing DCFS custody
of the children without holding a hearing, when grandmother had previously
petitioned for permanent custody of the children. In challenging the termination
order, grandmother, in substance, attacks the summary dismissal of her
petition for permanent custody.
¶20
After her petition for temporary
custody was denied, grandmother filed a petition in October 1997 seeking
permanent custody of the children. The juvenile court dismissed the petition
without an evidentiary hearing on December 3, 1997, stating the custody
issues raised had already been addressed. The court dismissed the petition
on the same day that reunification services were terminated, and the State
recommended the goal be changed to adoption. The dismissal of the petition
effectively foreclosed grandmother from receiving a hearing on permanent
custody, even though the goal for the children had changed from reunification
to a permanent placement.
¶21
Arguably the trial court
erred in dismissing grandmother's permanent custody petition without holding
an evidentiary hearing. However, grandmother does not appeal from the specific
order dismissing her petition for permanent custody,(6)
but rather appeals from the termination order, and thus we conclude she
has waived this issue.(7) Moreover, we need
not address this issue further because our holding on grandmother's adoption
petition is dispositive at this stage of the proceedings. See State
v Morrison, 937 P.2d 1293, 1298 n.4 (Utah Ct. App. 1997).
II. Dismissal of Adoption Petition
¶22
Grandmother next contends
the juvenile court erred in dismissing her adoption petition. The State
puts grandmother in an untenable position by arguing that because she did
not have custody of the children, she is not entitled to a hearing on her
petition for adoption, thus summarily precluding grandmother from asserting
her interests in her grandchildren. If the State's arguments are correct,
then there would be no mechanism by which grandmother could protect her
interests when a permanency plan goal changes from reunification to adoption.
A. Order Denying Temporary Custody Not Final Order
¶23
As a threshold matter, the
State argues grandmother should have appealed the August 1997 order denying
grandmother temporary custody after an evidentiary hearing. The State asserts
that, by failing to do so, she has waived all custody and adoption issues.
The State relies on In re T.S., 927 P.2d 1124 (Utah Ct. App. 1996),
to support its argument.
¶24
In T.S., a grandparent
who had been granted permanent legal custody of her grandchild relinquished
custody back to DCFS and stipulated to a verified dependency petition.
See
id. at 1124-25. Subsequently, the grandparent filed a motion to restore
custody. The juvenile court held an evidentiary hearing to determine the
grandparent's status in relation to the child. At the hearing's conclusion,
the court determined it was not in the child's best interest to return
to grandparent's custody. The court also concluded that grandparent had
no residual custodial rights to the child because she had voluntarily transferred
custody back to DCFS and had admitted that the child was dependent. See
id. at 1125. The court continued the temporary custody with DCFS, and
ordered the service plan goal to change to permanent placement of the child
through adoption. See id. Grandparent did not appeal this order
terminating her custodial rights after a hearing on the merits. See
id.
¶25
Grandparent later filed
a motion requesting the restoration of reunification services to her and
the identification of reunification as the service plan goal rather than
adoption. The court denied her motion. Grandparent appealed this order
denying her motion for restoration of reunification services and a new
service plan. See id. at 1126. This court concluded that grandparent
had waived custody issues on appeal because she had failed to appeal the
order resolving all her legal custodial rights to the child. See id.
¶26
The State reads T.S.
to mean that court orders continuing temporary custody with DCFS or denying
temporary custody to petitioners are final, appealable orders. This reading
of T.S. is too broad. In T.S., the court made a final disposition
regarding grandparent's permanent custodial rights. This was a final determination
of permanent custody rights and thus appealable.(8)
¶27
The denial of a motion for
temporary custody pending a final disposition or placement of children
is not a final, appealable order, because the parties' legal rights and
relationships have not been finally determined. This court has noted:
[t]he finality of
an order in juvenile proceedings is determined in a manner similar to judgments
and orders in other matters. A final, appealable order is one that ends
the current juvenile proceedings, leaving no question open for further
judicial action. An order which does not completely determine the rights
of the parties . . . is merely interlocutory in nature. In re T.D.C.,
748 P.2d 201, 202 (Utah Ct. App. 1988) (memorandum decision).
¶28
In this case, grandmother's
rights and status in relation to her grandchildren were not completely
resolved in the August order, and thus the order was not appealable. By
its terms, the order was limited in scope. The court addressed only the
issue of whether grandmother was a suitable temporary kinship placement,
pursuant to statute. The court order denied grandmother's motion for temporary
custody, continued custody with DCFS, granted grandmother visitation rights
in the discretion of the children's therapist, and set a date for further
review. Grandmother still had a legal familial relationship with the children
and the opportunity to petition for permanent custody, and certainly for
adoption, at a later date when reunification was no longer the goal.
¶29
The dissent argues grandmother
should have appealed the court's order denying her motion for temporary
custody because the court made "a temporary disposition of custody while
making a final determination regarding the allegations in [appellant's]
underlying petition." In re T.H., 860 P.2d 370, 374 (Utah
Ct. App. 1993). However, this refers to the assignment of temporary custody
of children after allegations in a dependency or abuse petition are finally
determined in a civil proceeding, thereby depriving parents of custody
temporarily. No such petition was at issue here. The court only denied
a motion for temporary custody. Grandmother requested that one temporary
custodian, DCFS, be dismissed and the temporary custody of the children
be awarded to grandmother as another temporary custodian. Custody was temporary
rather than permanent because the court could still return the children
to the parent's home. Although the court made findings that grandmother
was not an appropriate placement for the children at that time, it did
not adjudicate grandmother's parental capacity. Thus, grandmother's custodial
rights had not been finally determined at the temporary custody evidentiary
hearing and she still had a legal relationship with her grandchildren.
¶30
Moreover, practical policy
considerations require that we reject the State's view. It would be a procedural
nightmare if all interim rulings on temporary custody in the juvenile court
were appealable as final orders. Potentially, each periodic review order
continuing DCFS custody would be subject to immediate appeal. See
Utah Code Ann. §§ 78-3a-121, 78-3a-310 (Supp. 1998) (providing
for continuing jurisdiction of juvenile court and periodic review of children's
status). Further, if a hearing on temporary custody is the sole opportunity
for a relative to challenge a denial of custody, what is now a short and
focused hearing on temporary kinship placement would become unwieldy and
complex, and would decide important issues prematurely.
¶31
After the temporary custody
hearing, parental status and permanent placement of the children were still
open questions for the court. Thus, because grandmother's legal rights
and status in relation to the children were not finally determined, she
could not have appealed this order. Certainly the failure to appeal an
interim custody order does not foreclose a subsequent hearing on the merits
of a totally separate issue and proceeding--a petition to adopt. As a result,
grandmother's appeal of the dismissal of her adoption petition is properly
before this court.
B. Right to a Hearing
¶32
Under Utah law, persons
with a special relationship to a child have a right to a hearing on adoption
or custody matters. See In re J.W.F., 799 P.2d 710 (Utah
1990); State ex rel Summers v. Wulffenstein, 616 P.2d 608 (Utah
1980) (Summers II); State ex rel Summers v. Wulffenstein,
571 P.2d 1319 (Utah 1977) (Summers I); Wilson, 554 P.2d at
231. The Utah Supreme Court has recognized that, although only parents
have a vested right in the custody of a child, under some circumstances
the "next of kin, such as [a] grandmother, do have some dormant or inchoate
right or interest in the custody and welfare of children who become parentless,
so that they may come forward and assert their claim." Wilson, 554 P.2d at 231 (holding grandmother had right to hearing before adoption of
grandchild when grandmother asserted interest promptly after parental rights
terminated). This is a strong interest that should be seriously considered
by the juvenile court, "at least to the extent of according . . . a hearing
and determination on the merits" of an adoption petition. Id.
¶33
The Utah Supreme Court re-emphasized
grandparents' dormant rights in Summers I. There, the court rejected
the State's argument that where a parent's rights have been terminated,
and the parent thereby prohibited from filing a petition regarding custody,
the grandparents are likewise prohibited from filing for custody. SeeSummers
I, 571 P.2d at 1320-21. The court noted that in a parental rights termination
proceeding only parental rights are involved. Thus, even after termination
of parental rights, grandparents are not precluded from asserting an interest
in the custody of their grandchildren. See id. Furthermore, in Summers
II, the court stated "we view that [dormant custody] interest as being
a liberty interest." Summers II, 616 P.2d at 610.
¶34
In this case, grandmother
has a sufficient connection to her grandchildren to warrant the right to
a hearing on her petition for adoption. She had regular contact with the
children prior to DCFS custody; she took care of the children for extended
periods; and she asserted her interest in the children promptly and offered
to provide the children with a stable home and support. In sum, grandmother's
relationship to her grandchildren under the circumstances of this case
entitles her to a hearing on her adoption petition.
C. Res Judicata Effect of August 22, 1997, Hearing
¶35
In its order dismissing
grandmother's adoption petition without an evidentiary hearing, the juvenile
court accepted the State's position that the August 22, 1997, hearing regarding
temporary custody satisfied any right grandmother had to a hearing on her
adoption petition, and res judicata banned further consideration of all
issues involving her and her grandchildren. The dissent addresses this
issue by asserting that the findings of the temporary custody hearing somehow
became binding in all subsequent proceedings concerning the children and
were the law of the case in the adoption proceedings. We disagree.
¶36
The purposes of res judicata
include promoting "judicial economy and the convenience afforded by finality
in legal controversies." In re J.J.T., 877 P.2d 161, 163 (Utah Ct.
App. 1994). However, this court has often expressed concern over strictly
applying the doctrine of res judicata in a juvenile court setting when
the best interests of children are at stake. See In re T.J.,
945 P.2d 158, 162 n.2 (Utah Ct. App. 1997) (noting with approval that many
states have "concluded that a strict application of res judicata in parental
termination proceedings is not warranted"); In re R.N.J., 908 P.2d 345, 350 (Utah Ct. App. 1995) (noting in some circumstances, "furtherance
of judicial efficiency and equity must give way when the central issue
to be decided concerns the best interests of a child"); In re J.L.W.,
900 P.2d 543, 549 (Utah Ct. App. 1995) (noting application of equitable
doctrines such as res judicata is inappropriate to "promote mere judicial
efficiency at the expense of a child's welfare"); In re J.J.T.,
877 P.2d 161, 163 ("[A] hyper-technical application of res judicata is
improper in adjudications where the welfare of children is at stake.");
see
also T.J., 945 P.2d at 164 (Wilkins, J., concurring) (noting
res judicata would not bar claims in juvenile court because, by their nature,
claims involving children would be different with passage of time).
¶37
Furthermore, the doctrine
of res judicata simply is not legally applicable in this case. Res judicata
has two branches: claim preclusion, barring the relitigation of previously
litigated claims between the same parties; and issue preclusion, barring
relitigation of issues decided, although the causes of action or claims
are not the same. See T.J., 945 P.2d at 162.
¶38
Claim preclusion involves
three elements:
First, both cases must involve
the same parties or their privies.
Second, the claim that is alleged
to be barred must have been presented in the first suit or must be one
that could and should have been raised in the first action.
Third, the first suit must have
resulted in a final judgment on the merits.
J.J.T., 877 P.2d at 163
(quoting Madsen v. Borthick, 769
P.2d 245, 247 (Utah 1988)).
¶39
We conclude claim preclusion
does not bar grandmother's adoption petition because adoption was not raised
in the August 22 hearing, nor could it have been presented. The evidentiary
hearing was for the specific purpose of determining whether grandmother
would be a suitable kinship placement for temporary custody of the children
when the goal was reunifying the children with their mother. Temporary
custody is the right to take care of the children during a transitional
time. Parents of the child retain residual rights, and the court retains
continuing jurisdiction. By definition, temporary custody is not a permanent
placement. Different rights and duties are involved in temporary custody
versus adoption. It follows that holding an evidentiary hearing on temporary
custody does not equate with a hearing regarding adoption. Thus, grandmother's
adoption petition is not barred by claim preclusion.(9)
¶40
"Issue preclusion, or collateral
estoppel, 'involves two different causes of action and only bars those
issues in the second litigation necessarily decided in the first.'" T.J.,
945 P.2d at 163 (citation omitted). Utah courts apply a four-part test
to evaluate collateral estoppel:
1. Was the issue
decided in the prior adjudication identical with the one presented in the
action in question?
2. Was there a final judgment on the merits?
3. Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?
4. Was the issue in the first case competently, fully, and fairly litigated? Id. (quoting State ex rel. Dep't of Soc. Serv. v. Ruscetta, 742 P.2d 114, 116 (Utah Ct. App. 1987)).
¶41
The State essentially argues
"custody is custody," and because the court found in August 1997 that grandmother
was not an appropriate temporary placement for the children when the goal
was reunification, she is barred from litigating her claim for adoption.
However, as previously explained, the issue decided in the prior adjudication
was not identical to the issue in the adoption petition. The hearing and
the court's findings went only to the issue of whether grandmother would
be an appropriate
temporary placement for the children. The legal
issues of temporary custody and permanent adoption are different; therefore
separate hearings are required.
¶42
The juvenile court apparently
tried to adapt a hearing, held for one specific purpose, to another purpose.
Judicial economy cannot justify the double use of hearings when the purpose
behind the hearings involves different issues of fact and law. SeeA.E.
v. Christean, 938 P.2d 811, 816 (Utah Ct. App. 1997). A hearing to
determine temporary custody when reunification is the goal involves different
issues of fact and law than a hearing on a petition for adoption. One cannot
substitute for the other. The prior evidentiary hearing was insufficient
for the purposes of the adoption petition.
¶43
The dissent contends that
because grandmother did not challenge the findings from the evidentiary
hearing on temporary custody and failed to allege new circumstances, those
findings became the law of the case. Thus, no additional hearing would
be required. However, the very nature of the proceedings involved demonstrates
a significant change in circumstances.
¶44
The temporary custody hearing
took place when reunification was still a goal and a possibility. The adoption
petition reflected that the goal for the children had changed to a permanent
placement through adoption; restoring custody to the children's parent
was no longer an option. Also, the legal significance of adoption differs
from temporary custody, requiring a different commitment and resulting
in different legal consequences. Although grandmother did not specifically
allege changed circumstances in her petition, the change in the goal for
placement of the children and the legal posture of the continuing juvenile
court proceedings provide sufficient changed circumstances to warrant a
new evidentiary hearing. Thus, the temporary custody hearing could not
preclude a hearing on grandmother's adoption petition.
¶45
Additionally, because of
the evolving nature of child welfare proceedings in juvenile court, strict
application of res judicata makes little sense in a series of juvenile
court hearings. The frequent hearings regarding the status of children
within juvenile court jurisdiction demonstrate that children's needs and
circumstances can, and do, change rapidly. Juvenile courts maintain continuing
jurisdiction which enables them to review and re-evaluate children's needs.
The res judicata doctrine does not lend itself well to such a setting,
when passage of time itself can result in substantially different circumstances.
See,
e.g., T.J., 945 P.2d at 164 (Wilkins, J., concurring) (noting
in juvenile court actions raising res judicata claims, "the claims are
practically never the same, nor are they likely ever to be," because of
time passing).
¶46
In addition, due process
concerns are implicated when a hearing for one purpose serves a second
purpose involving different issues. Due process requires "timely notice
which adequately informs the parties of the specific issues they must prepare
to meet." L.A.W. v. State, 970 P.2d 284, 294 (Utah Ct. App. 1998).
Furthermore, parties are "entitled to notice that a particular issue is
being considered by a court." Id. at 295. "[A]dequate notice and
an opportunity to be heard in a meaningful way are the very heart of procedural
fairness." Id. at 294. Due process is not met when notice is ambiguous
or insufficient to identify the issues to be considered, thus impeding
a party's preparation for the proceedings. See id.
¶47
In this case, grandmother
had no notice that a hearing regarding temporary custody would resolve
issues of adoption as well. She had no notice that the court would consider
this single evidentiary hearing to be dispositive of other issues not specifically
raised at the hearing. The hearing was styled only as a hearing on a motion
for temporary custody; nothing in the notice of the proceedings would indicate
that fitness for adoption would be settled by this hearing.
D. Statutory Interpretation
¶48
The juvenile court also
based its dismissal of grandmother's adoption petition on what the court
considered the petition's legal insufficiency under provisions of the adoption
statute.
¶49
Utah law provides that "[a]ny
minor child may be adopted by an adult person." Utah Code Ann. § 78-30-1
(1996). An adoptive parent must be at least ten years older than the adoptive
child. See id. § 78-30-2. There are no other specific requirements
for petitioners before they may file an adoption petition.
See
id. §§ 78-30-1 to -19. "[T]here are virtually no restrictions
on or exceptions to the right to petition contained in the statute." In
re Adoption of W.A.T., 808 P.2d 1083, 1085 (Utah 1991).
¶50
Furthermore, adoption petitioners
are entitled to a hearing under the adoption statute. "The court shall
conduct a full hearing on the petition for adoption and examine the parties
in interest under oath." Utah Code Ann. § 78-30-14(5) (1996). This
explicit language grants a right to a hearing even though other sections
would permit the court to dismiss the petition. See id. § 78-30-14(6)
(1996) (providing if DCFS placement report disapproves of adoption, court
may dismiss petition); id. § 78-30-3.5(5) (Supp. 1998) (providing
court may dismiss petition if person or agency conducting pre- or postplacement
evaluations disapproves adoption). The discretionary dismissal of a petition
after an unfavorable report reflects the court's role in evaluating a range
of evidence to determine the child's best interests.
¶51
The juvenile court found
the children did not live with grandmother for six months and that no postplacement
report was filed. While true in fact, this has no legal bearing on grandmother's
right to file a petition for adoption and thus her right to a full hearing
on her petition. The requirements of a postplacement report and residence
with prospective adoptive parents for six months must be met prior to finalizing
an adoption decree, not before a petition may be filed. See id.
§ 78-30-3.5(4) (Supp. 1998); id. § 78-30-14(7) (1996).
¶52
The court also noted that
DCFS had not given consent to grandmother to adopt the children, thus the
petition was without merit as a matter of law. Consent from the agency
placing a child for adoption is necessary prior to adoption. See id.
§ 78-30-4.14(1)(g). The dissent agrees that lack of DCFS consent obviated
the need for an adoption hearing. However, once again this prerequisite
for final adoption does not preclude a hearing on the merits of grandmother's
adoption petition.
¶53
The State, relying on Kasper
v. Nordfelt, 815 P.2d 747, 748 (Utah Ct. App. 1991), argues the lack
of DCFS consent effectively ends the petition. Such reliance on Kasper
is misplaced. In Kasper, this court found that the grandparents'
rights in a child were extinguished when the mother and sole parent of
the child voluntarily relinquished the child to a private adoption service
for adoption. See id. This court concluded the grandparents' petition
to adopt the child was meritless because they did not have the agency's
consent, and the agency had selected other parents. See id. at 749.
Kasper
is different from the case at hand because the agency was a private agency
with whom the mother deliberately and thoughtfully chose to place her child.
The mother appropriately exercised her own rights, and the grandparents
could not interfere with such an exercise.
¶54
In contrast, this case involves
a State termination of parental rights, parentless children, and grandparents
attempting to exercise their inchoate interests in custody of such children
when the children are in the temporary custody of the State. In arguing
that no adoption petition can be filed or heard on its merits without first
obtaining DCFS consent, DCFS in effect is attempting to insulate from judicial
review the key decisions of a state agency. This court has previously rejected
the State's implicit assertion that DCFS decisions and actions in withholding
consent to adoption are beyond judicial review. See In re Adoption
of J.J., 781 P.2d 465, 472 (Utah Ct. App. 1989) (memorandum decision)
(per curiam). We noted that DCFS lacks "'power to confer legal custody,
which by its nature is a judicial act. If one desires to assert an interest
in a child in the legal custody of [DCFS], such a proceeding is a judicial
function.'" Id. at 469 (quoting Summers I, 571 P.2d at 1322).
Thus, because it is the province of the court to determine legal custody
of children within its jurisdiction, the lack of DCFS consent does not
bar a hearing on grandmother's adoption petition. On the contrary, the
court is the proper place for a petitioner to challenge the withholding
of consent by the state agency.
¶55
In sum, we conclude the
juvenile court incorrectly interpreted and applied provisions of the adoption
statute in determining grandmother's adoption petition should be dismissed
without a hearing on the merits.(10)
CONCLUSION
¶56
Grandmother has no standing
to appeal the order terminating D.M.'s parental rights. However, we conclude
the juvenile court erred in dismissing grandmother's adoption petition
without holding an evidentiary hearing on the merits: Grandmother has a
special relationship with the children sufficient to entitle her to a hearing;
the court erred in relying on an evidentiary hearing held on temporary
custody more than one year earlier to satisfy grandmother's right to a
hearing; and finally, the court misinterpreted provisions of the adoption
statute in concluding the petition was legally insufficient. We thus reverse
and remand for an evidentiary hearing on the merits of grandmother's petition
to adopt her grandchildren.
______________________________
Judith M. Billings, Judge
-----
¶57
I CONCUR:
______________________________
Norman H. Jackson, Judge
1. The first J.M. referenced above is the maternal grandmother of the children; the second J.M. is the maternal step-grandfather of the children. The State asserts that the step-grandfather has no special status as a relative. For the purposes of this appeal, we accept without deciding the State's assertion, thus this analysis focuses on J.M., the maternal grandmother, as appellant.
2. H.J.'s step-father was the father of the youngest child, J.M. For ease of reference, he will be referred to as step-father.
3. The court included in its findings of facts that another foster parent was interested in adopting the children. It is unclear why this finding was made or was relevant to a motion for temporary custody. At the time of this hearing, reunification services were being provided, and adoption had not been identified as the goal.
4. The petition included a request to terminate the father's rights. His rights were terminated by an order dated July 14, 1998.
5. Although D.M.'s parental rights were effectively terminated on June 8 by virtue of the bench ruling, the order of termination was not filed until July 14. The termination of D.M.'s parental rights made moot that portion of grandmother's petition.
6. Grandmother's appeal of this order at this time may in any event have been untimely, if the order resolved any and all her rights to permanent custody of her grandchildren. See In re T.S., 927 P.2d 1124, 1127 (Utah Ct. App. 1996).
7. However, we note that it is critical that there be a mechanism for those who have a special relationship with children to assert their interests in custody. Utah recognizes that those with special interests have a right to a hearing. SeeIn re J.W.F., 799 P.2d 710, 714-15 (Utah 1990) (holding relatives other than parents have inchoate rights entitling them to custody hearing); Wilson, 554 P.2d 227, 231 (holding next-of-kin have dormant or inchoate interests in parentless children). To make the exercise of such a right meaningful, the hearing should be held at a point at which a relative still has a meaningful opportunity to gain custody of a child. Although a relative is not guaranteed custody, the longer a permanent custody hearing is delayed, the lower the chance of a noncustodial relative to obtain custody.
8. The
State does not rely on the dismissal of grandmother's permanent custody
petition to support its waiver argument under
T.S., nor could it
so rely. Although grandmother could have appealed the dismissal of her
permanent custody petition because the court finally determined one particular
legal relationship, her failure to appeal does not preclude her appeal
of the dismissal of her adoption petition. The dismissal of grandmother's
custody petition did not sever any rights grandmother had, as did the court
order in T.S.; rather, it simply did not extend additional rights
and responsibilities as requested. Further, the final disposition of the
children was still pending before the court, so there had been no final
resolution regarding grandmother's relationship to the children.
Finally, the adoption petition
addresses different issues than a petition for permanent custody. In a
permanent custody arrangement, parents retain residual rights to the children.
In contrast, adoption severs all parental rights, and creates a new legal
child-parent relationship. Accordingly, grandmother's failure to appeal
the summary dismissal of her permanent custody petition does not bar her
appeal from the dismissal of her adoption petition.
9. Also, the adoption petition is not precluded as a claim that could and should have been raised in the earlier proceeding. At the time of the hearing regarding temporary custody, reunification services were still being provided to the mother, and the children were not available for adoption.
10. The Guardian Ad Litem additionally argues the petition must allege that the children live with the petitioners, and absent such allegation, the petition fails. We can find no support for this reading of the statute and have found several cases in which petition filings were upheld even without an allegation of custody. See, e.g., Wilson v. Family Servs. Div., Region Two, 554 P.2d 227 (Utah 1976); In re J.W.F., 799 P.2d 710 (Utah 1990). Also, grafting this additional requirement onto the statute would potentially insulate DCFS's actions from judicial review by requiring actual custody before asserting any interest.
-----
BENCH, Judge (concurring and dissenting):
¶58
I fully concur with the
majority in holding that appellant grandmother has no standing to appeal
the order terminating D.M.'s parental rights. I dissent, however, from
that portion of the opinion concluding that the juvenile court erred in
dismissing appellant's adoption petition.
¶59
The majority opinion states:
"It is clear under Utah law that persons with a special relationship to
a child have a right to a hearing on adoption or custody matters." Indeed,
the cited cases squarely stand for that proposition. See, e.g.,
In
re J.W.F., 799 P.2d 710, 714 (Utah 1990); Summers v. Wulffenstein,
571 P.2d 1319, 1322 (Utah 1977); Wilson v. Family Servs. Div., Region
Two, 554 P.2d 227, 231 (Utah 1976). In each of the cited cases, the
juvenile court had summarily dismissed a petition for custody without any
hearing or determination on the merits.
¶60
The case at bar is easily
distinguished. Here, the juvenile court provided appellant a full evidentiary
hearing on her motion for custody in August 1997. After considering all
the testimony and evidence presented, the juvenile court entered detailed
findings, which included the following:
9. The March 15,
1997, visit [with appellant] was supervised by Jennifer E. Fordham, Ph.D.
psychologist. All three children regressed and deteriorated during and
after the visit. During the visit, [appellant] inappropriately responded
to the emotional needs of the children and didn't demonstrate appropriate
levels of concern for the children. [M.] "shutdown" emotionally and [J.]
withdrew from his grandmother during the course of the visit;
. . . .
15. [D.M.] has a history of domestic problems with males that has negatively impacted the children. [Appellant] knew or should have known of the problems yet did nothing to intervene;
16. At a June 3, 1997, hearing, the grandmother was ordered by this Court to contact appropriate treatment resources in her community that would be available for the children should they be placed with her. She was ordered to provide the information to the assigned Utah caseworker who was directed to assess the appropriateness of the services. It wasn't until August 20, 1997, two days before the hearing [on] the grandmother's motion for custody that [she] provided the requested information. The information provided consisted of resumes of two psychologist[s] and flyers about available programs[,] many of which were not appropriate for the needs of the children;
17. The grandmother does not appreciate the nature and severity of the neglect and abuse her grandchildren have experienced. She discounts and minimizes the children['s] problems and has never expressed any empathy for her grandchildren to the caseworker;
18. The children have stated that they do not feel safe in their grandmother's home. The children are apprehensive about living with [appellant's husband] who would be their primary caretaker during the work week as [appellant] is employed full time;
19. It is likely that the grandmother would allow the mother unauthorized access to the children if they were placed with her, since she doesn't appear to understand the gravity of the neglect and abuse the children have suffered;
. . . .
21. Any placement or therapeutic disruptions would be detrimental to the children. [J.] is in need of long term treatment and any interruption of his therapeutic relationships would be detrimental to him. It would likely take at least six months for the children to form a therapeutic relationship with another therapist.
22. [Appellant] loves her grandchildren and has a strong desire to assume custody of them but the children do not appear to share an emotional attachment with their grandmother. The court then concluded, Placement of the above-named children with the maternal grandmother and step-grandfather would not be in the children['s] best interest for the following reasons: a) The children are not comfortable with [appellant and her husband];
b) [Appellant] does not recognize the parent[s'] history of abuse of the children;
c) [Appellant] is not strong enough or committed enough to resist inappropriate requests by their mother for access to the children in accordance with the Court orders;
d) [Appellant] is not committed
to providing the proper therapeutic care for the children.
¶61
After entering these findings
of fact and conclusions of law, the juvenile court ordered that temporary
custody and guardianship of the children remain with DCFS. See Summers
v. Wulffenstein, 616 P.2d 608, 611 (Utah 1980) ("The Court showed,
in our opinion, a high degree of sensitivity to the desire of the appellant
to raise her grandchildren, but in deciding what would be in the best interest
of the children involved--which was the Court's paramount duty--decided
that custody should remain with DFS . . . .") (footnote omitted). Consequently,
at the August hearing the court clearly made "a temporary disposition of
custody while making a final determination regarding the allegations in
[appellant's] underlying petition." In re T.H., 860 P.2d 370, 374
(Utah Ct. App. 1993). Appellant did not contest the court's ruling.
¶62
Instead of challenging the
juvenile court's custody determination, appellant filed a verified petition
alleging that the children were dependent, and requesting that the court
grant her permanent custody. At the December 3, 1997 hearing on this petition,
appellant's counsel argued the dependency and custody issues to the juvenile
court. After this hearing, the court found that the same parties participated
in the August hearing, which adjudicated the same issues now raised in
this petition. More importantly, the court found appellant's petition "legally
insufficient on its face; the children are not dependant, they are in State's
care." The court therefore properly dismissed the deficient petition.
¶63
Subsequently, appellant
filed a petition for adoption. In this petition, appellant reasserted the
same facts that the juvenile court had addressed at the August hearing.
Once again, appellant wholly failed to assert any new or changed circumstances.
The juvenile court had already adjudicated and resolved these facts at
the full evidentiary hearing in August 1997. Because these findings remained
unchallenged, they became the law of the case and are binding in subsequent
proceedings. See In re T.S., 927 P.2d 1124, 1127 (Utah Ct.
App. 1996); see also Richardson v. Grand Cent. Corp., 572 P.2d 395, 397 (Utah 1977) (stating purpose of law of the case doctrine
is "to avoid the delays and the difficulties involved in repetitious contentions
and rulings upon the same proposition in the same case");
Salt Lake
City Corp. v. James Constructors, 761 P.2d 42, 45 (Utah Ct. App. 1988)
("The law of the case doctrine is particularly applicable when . . . a
subsequent motion fails to present the case in a different light, such
as when no new, material evidence is introduced.").
¶64
Appellant contends that
the juvenile court's previous temporary custody determination cannot be
applied to the adoption petition relating to permanent custody. At the
August hearing, however, the juvenile court adjudicated the very same issues
presented in the adoption petition. The court's ruling on the underlying
issues raised in appellant's first petition was a final determination on
the merits as applied to appellant. See In re T.H., 860 P.2d
at 374. Thus, because appellant failed to assert any change of circumstances
on her part, there was no need for the juvenile court to conduct another
full evidentiary hearing on the same issues it had previously adjudicated.(1)
Without changed circumstances, adoption placement with appellant would
not be in the children's best interests. See Utah Code Ann. §
78-30-1.5 (1996) ("It is the intent and desire of the Legislature that
in every adoption the best interest of the child should govern and be of
foremost concern in the court's determination."). This is especially true,
in light of the fact that "[a] final decree of adoption may not be entered
until the child has lived in the home of the adoptive parent or parents
for six months." Id. § 78-30-14(7) (1996). Therefore, the juvenile
court could not grant appellant the relief she requested in her adoption
petition because she never had custody of the children.
¶65
Additionally, at the October
15, 1998 hearing on the State's motion to dismiss appellant's adoption
petition, the court found, "The State of Utah is the current custodian
and guardian of the children and the State opposes the adoption by the
grandparents. The State's consent is necessary pursuant to [section] 78-30-4.14(1)(g)
inasmuch as DCFS is the licensed child placing agency for the children."
The court then properly dismissed the petition because appellant made no
showing that she obtained the statutorily required consent for adoption
from DCFS. See Utah Code Ann. § 78-30-4.14(1)(g) (1996) (providing
consent to adoption is required from "the licensed child-placing agency
. . . that is placing the child for adoption"); see also Kasper
v. Nordfelt, 815 P.2d 747, 749 (Utah Ct. App. 1991) (holding court
did not err in dismissing grandparents' adoption petition because without
consent of child placement agency, their adoption petition was meritless).
¶66
It is true that custody
decisions are not forever set in stone and remain subject to modification
"on the ground that a change of circumstances has occurred." Utah Code
Ann. § 78-3a-903(1) (Supp. 1998); see also Larson v. Larson,
888 P.2d 719, 722 n.2 (Utah Ct. App. 1994) (noting when modifying custody
order "[t]he court's obligation is to evaluate whether a particular change
in circumstances justifies upsetting the status quo in order to achieve
what is in the best interests of the children."). Appellant has never petitioned
the juvenile court to modify its custody orders based on a change of circumstances.
Although appellant attempts to assert changed circumstances to this court
on appeal, she failed to ever make that argument to the juvenile court.
"'The appellate courts of this state have consistently refused to address
issues . . . that are raised for the first time on appeal. This principle
applies equally to proceedings originating before the juvenile courts.'"
In
re M.L., 965 P.2d 551, 563 (Utah Ct. App. 1998) (quoting In re E.D.,
876 P.2d 397, 401 (Utah Ct. App. 1994) (citations omitted)). We are therefore
precluded from addressing these issues on appeal.
¶67
It should be further noted
that although appellant contends she was denied temporary custody because
out-of-state placement of the children would have interfered with parental
reunification services, the juvenile court made no such finding. The juvenile
court made no indication in its findings of fact or conclusions of law
that this was a factor in denying appellant temporary custody. To the contrary,
the court's findings indicate its genuine concern about appellant permitting
"the mother unauthorized access to the children if they were placed with
her, since she doesn't appear to understand the gravity of the neglect
and abuse the children have suffered." See Mullins v. Oregon,
57 F.3d 789, 797 (9th Cir. 1995) ("Also, we note that grandparents sometimes
may be unsuitable adoptive parents precisely because of their blood relationship,
especially in cases of abuse such as this in which there may be a well
founded fear that the grandparents will be unable to protect the children
from future parental contact and abuse.").
CONCLUSION
¶68
I agree that certain people,
because of their special relationship to a child, are entitled to a hearing
and "a determination as to whether it would be in the best interests of
the child for them to have custody." In re J.W.F., 799 P.2d at 714
(citing Wilson, 554 P.2d at 230). In this case, however, appellant
received a full and fair hearing on her motion for custody. After careful
consideration, and based on the children's best interests, the juvenile
court denied the motion. Appellant never directly challenged the court's
ruling by appeal or through a petition to modify the custody order. Therefore,
the juvenile court's ruling on the custody issue became the law of the
case when appellant raised the same issue in subsequent petitions.
¶69
Accordingly, I would affirm
the juvenile court, and hold that it properly dismissed appellant's adoption
petition.
______________________________
Russell W. Bench, Judge
1. Although the children's circumstances may have changed, appellant must show how her circumstances have changed since the court entered its findings regarding custody.
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