In the matter of the adoption of A.A., B.S., and G.A., minors

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In the matter of the adoption of A.A., B.S., and G.A., minors.
______________________________

T.W. and E.W.,
Appellants,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020121-CA

F I L E D
October 3, 2002 2002 UT App 321 -----

Third District Juvenile, Salt Lake Department
The Honorable Sharon P. McCully

Attorneys:
Gregory B. Wall, Salt Lake City, for Appellants
Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee
Martha Pierce and Christine S. Decker, Salt Lake City, Guardians Ad Litem -----

Before Judges Davis, Orme, and Thorne.

DAVIS, Judge:

Where "two competing adoption petitions"(1) are filed, rule 42 of the Utah Rules of Civil Procedure applies. In re adoption of A.B., 1999 UT App 315,¶¶13-14, 991 P.2d 70; see also Thiele v. Anderson, 1999 UT App 56,¶¶15-16, 975 P.2d 481 (indicating because the 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 trial court may examine "the comparative merits of the competing petition for adoption" or may "give procedural preference to the petition that is most compliant with the state's adoption statute." Id. at ¶14 & n.4. If the petition considered first "is granted, the adoption placement is concluded and there is no need to consider the second petition." Id. at ¶14.

However, procedural preference does not necessarily require the trial court to hear the petition that is most compliant first. Where, as here, it appears to the court that the factual basis for one of the competing petitions cannot be established, the trial court may choose to dispose of that petition before considering the petition receiving procedural preference. See Slusher v. Ospital, 777 P.2d 437, 441 (Utah 1989) ("Of course, trial courts enjoy considerable discretion in deciding bifurcation and consolidation requests under rule 42."). Accordingly, the trial court followed correct procedures.

In this case, Grandparents failed to properly preserve the nonprocedural issues they raise on appeal and thus waived their right to appeal these issues.(2)See Hart v. Salt Lake County Comm'n, 945 P.2d 125, 129 (Utah Ct. App. 1997) ("To preserve a substantive issue for appeal, a party must first raise the issue before the trial court."). The trial court conducted a hearing concerning Grandparents' adoption petition on January 7, 2002. Grandparents were present at this hearing and were represented by counsel. However, during the hearing, Grandparents failed to raise any of the issues they now argue on appeal. In fact, Grandparents offered no objections and readily accepted the trial court's ruling, giving the trial court no indication that they had any factual or legal reason to disagree with the order.(3) Accordingly, we affirm the trial court's ruling.

In conclusion, the trial court correctly considered and dismissed Grandparents' adoption petition before considering Adoptive Parents' adoption petition. Furthermore, Grandparents failed to preserve their substantive claims for appeal. Therefore, we affirm the juvenile court's decision.
 
 

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

WE CONCUR:
 
 

______________________________
Gregory K. Orme, Judge
 
 

______________________________
William A. Thorne Jr., Judge

1. The trial court had before it both Grandparents' and Adoptive Parents' adoption petitions. The court dismissed Grandparents' petition because the petition "could not possibly comply" with "several sections of" the adoption statute, including Utah Code Ann. § 78-30-14(7) (1996) ("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."), and, presumably, Utah Code Ann. § 78-30-9(1) (Supp. 2002) ("The court shall examine each person appearing before it . . . and, if satisfied that the interests of the child will be promoted by the adoption, it shall enter a final decree of adoption."). In making its decision, the trial court noted that it knew the case well because it had reviewed the case monthly for the past year or year and one-half. In May 2000, during the trial court's involvement with the case, Grandmother relinquished custody of A.A. because her "bad heart" prevented her from permanently caring for A.A., and Adoptive Parents obtained custody of A.A., B.S., and G.A. Accordingly, the trial court concluded that A.A., B.S., and G.A. had been in the custody of Adoptive Parents "for a long period of time" and considered Adoptive Parents to be their family. After dismissing Grandparents' petition, the trial court scheduled a hearing for Adoptive Parents' adoption petition.

2. We need not address whether the trial court committed plain error or whether this case presents exceptional circumstances because Grandparents do not argue this on appeal. See, e.g., In re E.D., 876 P.2d 397, 401 (Utah Ct. App. 1998) (holding the party's "failure to assert on appeal that the trial court committed plain error or that exceptional circumstances exist precludes our further consideration of this issue").

3. During the hearing, Grandparents' counsel spoke only to introduce himself, to ask whether a petition for visitation would be "filed under the same case number" as the present case, and to assure the trial judge that he "[u]nderstood" a petition for visitation would not hinder Adoptive Parents' pending adoption petition.