State of Utah in the interest of K.S. and H.D.

----ooOoo----

State of Utah, in the interest of K.S. and H.D.,
persons under eighteen years of age.
______________________________

B.U. and B.U.,
Appellants,

v.

State of Utah and Adoptive Parents,
Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20001017-CA

F I L E D
June 6, 2002 2002 UT App 196 -----

Third District Juvenile, Salt Lake Department
The Honorable Andrew A. Valdez

Attorneys:
D. Bruce Oliver, Salt Lake City, for Appellants
Mark L. Shurtleff, John M. Peterson, and Thor B. Roundy, Salt Lake City, for Appellees
Martha Pierce, Salt Lake City, Guardian Ad Litem -----

Before Judges Jackson, Bench, and Davis.

DAVIS, Judge:

Maternal great-grandparents (Grandparents) claim the trial court violated their due process rights under the Fourteenth Amendment of the United States Constitution and their natural rights by (1) consolidating Grandparents' petition to transfer custody of minors K.S. and H.D. with Adoptive Parents' petition to adopt K.S. and H.D., (2) hearing Adoptive Parents' petition first, and (3) excluding Grandparents from participating in Adoptive Parents' petition hearing. We affirm.(1)

Assuming, for the sake of analysis, that Grandparents' custody petition is of the same dignity as the adoption petition and that proceedings in the same case need be formally consolidated, In re adoption of A.B., 1999 UT App 315, 991 P.2d 70, is controlling in this case. Where "two competing adoption petitions" are filed, Rule 42 of the Utah Rules of Civil Procedure applies. A.B., 1999 UT App 315 at ¶¶13-14 (citing Thiele v. Anderson, 1999 UT App 56,¶11, 975 P.2d 481 (indicating that because adoption statute does not contain a complete set of procedural guidelines to govern adoptions, rules of civil procedure have been implicitly accepted for use in Utah adoption cases)). Rule 42 "permits a court to order a joint hearing or consolidate proceedings when actions involve a common question of law or fact to avoid unnecessary delay." A.B., 1999 UT App 315 at ¶14.

"In a consolidated adoption proceeding, the court may determine that one petition is the primary matter to be decided and hear that petition first." Id. In deciding which petition is the primary matter, the court may "give procedural preference to the petition that is most compliant with the state's adoption statute." Id.(2) If the petition considered first "is granted, the adoption placement is concluded and there is no need to consider the second petition." Id.

In this case, Grandparents challenge the sufficiency of the evidence supporting the trial court's finding that Adoptive Parents' petition was the primary matter in these consolidated cases. When an appellant challenges the sufficiency of the evidence supporting a court's findings of fact, he or she must first "marshall [sic] the evidence in support of the findings and then demonstrate that despite this evidence, the [juvenile] court's findings are so lacking in support as to be against the clear weight of the evidence." In re D.G., 938 P.2d 298, 301 (Utah Ct. App. 1997) (alterations in original) (citations and quotations omitted). When an appellant fails to properly discharge his duty to marshal, we assume that "the evidence introduced at trial adequately supported the findings," and affirm the findings as written. Young v. Young, 1999 UT 38,¶34, 979 P.2d 338. Here, Grandparents failed to marshal the evidence in support of the trial court's finding that Adoptive Parents' petition should be considered first. Thus, we presume the trial court's finding was supported by adequate evidence.

Grandparents also claim the trial court lost jurisdiction under Utah Code Ann. § 78-30-7(2) (Supp. 2000)(3) to hear Adoptive Parents' petition for adoption when the petition was not filed within thirty days of K.S. and H.D.'s placement in Adoptive Parents' home. In making this argument, Grandparents fail to acknowledge that section 78-30-7(2) provides an exception to the thirty-day requirement for adoptions "arranged by a licensed child placing agency." Id. Grandparents' claim fails because Adoptive Parents' petition falls squarely within this exception.

Rule 33 of the Utah Rules of Appellate Procedure allows attorney fees to be awarded to the winning party in a frivolous appeal. This sanction applies to "egregious cases" where appeal is taken with no "reasonable legal or factual basis." Maughan v. Maughan, 770 P.2d 156, 162 (Utah Ct. App. 1989). Here, A.B. has been controlling precedent since 1999 and clearly contradicts each of Grandparents' claims on appeal. Grandparents have neither recognized A.B. as controlling precedent nor responded to Adoptive Parents' request for attorney fees. Accordingly, attorney fees incurred by Adoptive Parents on appeal, including their response to Grandparents' motion to strike, are awarded to Adoptive Parents.

Therefore, we remand for the limited purpose of determining attorney fees in accordance with this decision.
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Russell W. Bench, Judge

1. Grandparents' Motion to Strike Portions of Appellees' Briefs is denied.

2. Contrary to Grandparents' argument, Rule 4-107 of the Utah Code of Judicial Administration does not govern which petition should be heard first when petitions are consolidated. Instead, it governs what case number is assigned to the consolidated cases and which judge will hear the consolidated cases.

3. This section is now codified at Utah Code Ann. § 78-30-7(4) (Supp. 2001).