*1 1 Having himself, recused Justice participate herein; HOWE does not Second Judge
District PARLEY R. BALDWIN sat.
Frank
ADOPTION CHOICE, CENTER OF corporation,
a Utah S.S, J.S. and
Adoptive Parents, Respondents.
No. 20020515.
Supreme Court of Utah.
2,May *2 Nelson, McConkie, F. Merrill David M. Amicus Curiae City, for Lake
Salt Council.
DURRANT, Chief Justice. Associate Osborne, resi- a North Carolina Frank T1 decision appeals' dent, challenges the court extraordinary relief. for denying petition extraordinary relief sought Osborne by way petition aof appeals court of relief,. injunctive mandamus writ denial, reasserts Osborne challenging the original in his he made arguments questioning appeals, court of before authority to courts whether non-resident exert and whether adoption proceedings fathers have a mean- putative fathers non-resident de- jurisdictional raise opportunity ingful issues these raises Because Osborne fenses. extraordinary aof in the context them, first must reaching we relief, before even entitled Osborne whether determine Thus, extraordinary relief receive whether us is before question threshold denied properly extraordinary Because relief petition for entitled he is not shown Osborne unnecessary for us relief, it is extraordinary issues. Since substantive other reach the existence to show has failed Osborne extraordinary relief grounds on affirm. we granted, may be
BACKGROUND resident. Carolina is a North T2 Osborne Baker, Angela relationship with began He resident, November Carolina a North also 2000, Baker became In December pregnant. Osborne pregnancy, During her
T3 in North home at Osborne's Baker cohabited living with Os- Baker While Carolina. had con- she him that borne, informed she inquire ageney Utah tacted an upon its the child placing about peti- City, for Lake Lowry, Salt Phillip E. disapproval with expressed birth. tioner. result, assured Baker idea, as a place would she Armstrong, Jenkins, Richard J. Larry S. adoption. respondents. City, for Lake Salt August Baker left Os- early T4 In PROCEDURAL HISTORY and traveled to Utah borne's home 14, 2002, February T8 On Osborne filed place and to the child for give intent to birth petition in chal- verified a Utah district court August in- labor was On lenging subject matter the child. That Baker delivered duced and *3 adoption regarding courts of the Utah and informed day, called Osborne same she child. son, a that she had him that she had borne adoption child for place not to decided petition, 19 In with this on connection returning to North that she was and 20, 2002, February subpoe- Osborne issued a the child. Carolinawith Center, Adoption seeking na to the name and Carolina, returning Upon to North adoptive parents, address of the the names of a with her mother for week and Baker lived attorneys adoption pro- involved in the However, then back in with Osborne. moved ceeding, county which the 2001, 10, again she once moved December filed, proceeding was and the names of all During period out of home. Osborne's judges rulings had issued or orders cohabitation, attempted on two Osborne In adoption. response, associated with the Baker to execute a occasions to convince 26, 2002, February Adoption on Center paternity.
voluntary She re- declaration quash subpoena, arguing that moved to fused to do so. Osborne had waived his notice and consent 2002, again early January Baker T6 In related to the under Utah that she intended to re informed Osborne adoption law. place adoption, for turn to Utah and the child 4, 2002, January did. Baker which she On 2002, court, 1, 10 On March the district Adoption relinquished parental rights her request, argument at Osborne's heard on Center"), Choice, ("Adoption a Center of Inc. Adoption quash. Center's motion to Osborne principal adoption agency its office Utah represented by hearing. was counsel Orem, Utah, located in so that the child could Subsequent hearing, Osborne filed two thereafter, placed adoption. Shortly supplemental memoranda of law in he formally relinquished also Baker's husband argued that the event district court any parental rights regarding subject it were to conclude that matter placement adop consented to the child's adoption, pre- was over Adoption tion with Center. Center pared argue that court the district lacked placed couple then the child with a but re him because he custody responsibility tained of and was a North resident who did not Carolina pursuant Code Ann. 78- Utah necessary have the minimum contacts (2002), pending the finalization 80-4.22 Utah. {11 8, 2002, Adoption On March 2002, Center 11, February T7 On Osborne filed petition filed a for determination of birth paternity custody action in North Caro G lina.2 rights relating pursuant father's to the child day appears 1. It from the record in this case that order was issued the before the Utah Court legally Appeals married to a man other than Baker was issued its memorandum decision con- during Osborne and Baker's relation- cerning petition for a writ of manda- ship. injunctive mus and relief in Utah. See infra T1 16-18. 1, 2002, July 2. On North Carolina district court 17, 2002, On the North Carolina district July restraining against issued order temporary restraining replaced temporary court Center, Baker, Adoption adoptive par- and the preliminary injunction Doe, with a to the same effect. ents, Jane aimed at identified as John and injunction preliminary put At the time the preventing "taking any steps to fur- them from prosecute perfect any pro- court ther effect, into the North Carolina district court was receipt copies of both the Utah district rights, ceeding affecting [Osborne's] Appeals' specifically any court's and the Utah adoption proceeding pend- orders Court of now ing involving This [K.S.B.]." minor 2, 2002, memorandum decision. July
G1 Petition for Determi- (2002) Center's Ann. 78-80-4.24 Code Act, Judgment Rights. Birth Declaratory nation of Father's On June the Utah 2002,Adoption Center moved the federal dis- 78-83-1, -2 §§ petition along or, copy of the complaint sent a Center trict court to dismiss Osborne's acceptance of alternative, summary judgment. notice attorney. at to Osborne's service 18, 2002, sought a June On process. accept service of torney refused to restraining temporary order from the federal its moved to allow Adoption Center enjoin Adoption Center and district on March heard without notice to be finalizing adoptive parents 18, 2002, the district 12 On March subject hearing adoption. At a on the quash. motion to Adoption Center's the federal district court re June so, held that district court doing requested temporary re to issue the fused *4 complied with the has not "Frank Osborne straining order.4 paren- requirements preserving legal law" and that "Osborne rights under Utah tal OF APPEALS' DISPOSITION5 COURT according any take action has failed to ¶16 day the federal district On the same requirements, and so has waived statutory request injunctive court denied Osborne's may have other- right child] he any [the relief, petition filed a for a writ of Osborne appeal the dis- did wise had." Osborne injunctive mandamus relief Instead, 27, ruling. on March trict court's Specifically, filing in the appeals. court of voluntary 2002, filed a notice of Osborne appeals, request before the court of Osborne petition. of his dismissal appeals ed that the court of 29, 2002, the district 113 On March every against mandamus issue a writ of proceed Adoption motion to Center's enjoin in the state of Utah to district court 2002, April the district notice. On without any proceedings to finalize the conducted stating that signed an order ..., at issue issue a adoption of the child § 78-80- pursuant to Utah restraining against temporary order 4.14(5), including Frank any person, Os- formalizing adoption, respondents from borne, claiming putative natural to be the restraining temporary issue to have of the minor child is deemed against of Choice to Center any right in rela- waived and surrendered identity adoptive parents reveal the child, including tion to the minor stayed, and they may be served and so judicial proceeding con- to notice of declaring [he] finally to issue an order adoption of the nection directly adop- in the may intervene either adoption of the child is his consent to the ... bring a collateral action tion or required. challenge pending proceeding dismissing peti- voluntarily 114 After waiving jurisdictional grounds without on court, complaint, filed a Osborne jurisdiction any personal defense. 4, 2002, District States April United ¶17 appeals July the court of On Utah, claiming District of viola- Court for the ap court of petition.6 The denied Osborne's pro- Amendment due of his Fourteenth tions "failed to establish peals held that Osborne requested, among oth- cess Osborne requirements" any of [the] he has met injunctive stay finalization things, relief to er § 78-30-4.14 to establish Code Ann. proceeding regarding adoption and the originated the court of action allows 5. The instant of the Utah Code 3. Section 78-30-4.24 "[aluy party petition appeals. the court [to] interested and interests a determination of person claim an interest in a child whether from the record It is not clear 78-30- code]." [the at it ruled appeals was aware the time court of 4.24. petition North Carolina on Osborne's restraining temporary district court issued present action 4. The status Osborne's federal supra note 2. order. See the record. is unclear from any rights court, to the child. Osbornev. appeal ques- On to this Choice, 20020489-CA, Center Case No. tions the appeals' court of denial of his at- (Utah Ct.App. July 1-2 Further tempt present through for ex- more, appeals traordinary the court of determined that challenge relief a to the exercise personal jurisdiction failed to meet the Osborne had him 78-80-14.15, gov of Utah Code Ann. courts. argues that Utah courts do context, personal jurisdiction erns non-resident fathers be because he is a North Carolina resident who does not have absolutely "he cause took action his home state of North Carolina for the five minimum contacts with Utah sufficient for prior relinquish months to the mother's personal Utah courts to exercise Ultimately, ment." Id. at 2. the court of over him consistent with the due appeals simply protections concluded that Osborne "has of the Fifth and Fourteenth Amendments to the United States Constitu- any timely preserve failed to take action to this child." Id. tion. Center maintains that the arguments concerning 18 As Osborne's writ of certiorari should be dismissed as im- jurisdiction, personal the court providently granted, arguing that Osborne's concluded that extraordinary relief question only *5 appeals of improper was and never arises when defendant is called to defend by should have been entertained court of in court. an action The district court did appeals place. jurisdic- in the first As to the attempt personal not need or to exercise Osborne, question posed by tional jurisdiction over He lost [Osborne]. his argues personal jurisdiction Center over rights by operation to the child of law Osborne is irrelevant because Osborne never statutory steps when he failed to take the perfected rights his in the child. other required protect rights.... his Further- words, Osborne would be entitled due more, [Osborne], plaintiff, it is seeking as a process protections only if depriv- were in relief Utah courts who has invoked the ing interest, liberty property him of some jurisdiction of the Utah courts. The fact possess Osborne does not in con- action, law, operation that court and the nection with the child because of his failure unprotected parental affected the father's rights to secure Finally, the child. rights implicate personal jurisdic- does argues juris- Center that Utah has protect tion. If [Osborne] wants to adoption diction under the status relinquished assert his in a child exception require- to the minimum contacts adoption he must take the neces- jurisdiction. personal ment for the exercise sary protect action to simply Utah law. He cannot stand on the ANALYSIS "sidelines" and claim that Utah courts lack jurisdiction over him. I.. STANDARDOF REVIEW Id. at 2-8. appeals, 122 Before the court of Os 8, 2002, July
119 On petitioned extraordinary Osborne moved to borne relief un der rule 65B of the Utah Rules of Civil temporarily stay the district court's order finalizing adoption pending an en bane Procedure rule 19 of the Utah Rules of hearing peti before this court on Appellate petition requested Procedure. His certiorari, tion for writ of "directly he filed on an order that allow him would August 2002. We bring writ of intervene ... or a collateral action ... challenge pending adoption proceeding stayed certiorari the finalization of adoption pending jurisdictional grounds this decision.7 on waiving any without argument 7. The court heard oral lifting in this case on should be affirmed. An order our Immediately argu- stay December 2002. finalizing after oral of the district court's order parties, adoption ment pending the court met in conference the issuance of this decision appeal. majority signed day, and deliberated on the the same with a notation that an agreed opinion opinion. the court decision of the court of would follow. This is that
G3 properly before this arguments are The court of jurisdiction defense." request both be appeals denied Osborne's court. person attempted no court cause '] sought following relief 25 Osborne it deter him and because jurisdiction over al appeals: the court of before challenge right to lost his that he had
mined
every
against
1.
writ of mandamus
"[A]
operation of law when
adoption "by
enjoin
in the state of Utah to
district court
statutory steps required to
take the
failed to
any proceeding
to finalize the
conducted
Adoption Cen
rights."
v.
protect his
[K.S.B.];"
adoption
20020489-CA,
Choice,
2at
No.
Case
ter of
restraining
order
temporary
2. "[A]
2002)
(Utah
(citing Swayne v.
July
Ct.App.
finalizing the
against
respondents
(Utah
Servs.,
637, 640
795 P.2d
L.D.S. Social
adoption;"
1990).
properly refused to "is
it
Whether
restraining
temporary
order
3. "[A]
every district court
against
writ
...
sue a
of Choice to
against the
Center
enjoin any proceeding
the state of Utah
identity
adoptive parents
reveal the
adoption of the child
finalizethe
conducted to
stayed;"
they may
so
be served
that we
is a matter
in this matter"
at issue
declaring
[he]
"[An
See Renn
for an abuse of discretion.
review
directly intervene
either
Pardons,
P.2d
Bd.
Utah State
challenge
...
bring a collateral action
(Utah
juris-
pending
proceeding
waiving
per-
grounds without
dictional
EXTRAORDINARY
II. PETITION FOR
sonal
defense."
RELIEF
extraordinary
Because of the nature
extraordinary
relief
123 Petitions
seeking
purpose
and the
relief
is
Rules
governed
rule 65B
are
petitions,
which he
the writ of mandamus for
65B(a);
R. Civ. P.
Procedure. Utah
of Civil
65B(d)
by rule
petition governed
*6
Renn,
Because rule
904 P.2d
accord
Procedure.
Rules of Civil
of the Utah
types of
provides for several different
65B
may
Extraordinary
be
126
relief
relief,
granting
peti
a
extraordinary
before
65B(d)
right
"the
granted
rule
under
relief,
extraordinary
"a court must
authority
judicial
for]
wrongful use of
sought, the
nature of the relief
look to the
authority."
R.
failure
and the
alleged
petition,
circumstances
65B(a). However, only
person
"[al
Civ. P.
Renn,
sought."
type
of writ
purpose of
interests are threatened
aggrieved or whose
relief
If the nature of the
P.2d at 683.
904
rule
any
enumerated" under
by
of the acts
cireumstances,
or the
alleged
sought,
65B(d)
extraordinary relief.
may petition for
sought do not
type of
purpose of the
writ
below,
65B(d)(1).
cited
For the reasons
Id.
under rule 65B for ob
the conditions
meet
did not
court of
hold that
we
extraordinary
any
types of
taining
it denied Osborne's
its discretion when
abuse
available,
cannot be
then such relief
relief
ag
has
been
petition because Osborne
granted.
have not been
his interests
grieved
65B,
may
person
a
According
4 24
to rule
by any of the acts enumerated
threatened
extraordinary
"[wlhere
relief
petition for
65B(d). Thus, he is not entitled
rule
remedy
adequate
is
plain, speedy and
other
extraordinary
relief.
65B(@). It
R. Civ. P.
available." Utah
First,
petition for extraordi
a
has met
questionable whether Osborne
"every dis
nary relief cannot be directed
extraordinary relief.
obtaining
condition for
Rule 19
in the state of Utah."
trict court
has,
he
assuming that he
Regardless, even
plain
rule
Appellate Procedure
conditionsin
failed to meet the other
has
Rules
extraordinary
extraordinary ly
petition
a
for an
allows for
obtaining
type of
65B
person, or
judge, ageney,
"directed to a
Os- writ
requested. To the extent
relief he has
19(a) (emphasis
R.App. P.
entity." Utah
by present-
attempts to cloud the issue
borne
added).
explicit provi
rule also makes
This
jurisdictional arguments
ing additional
judge,
respondent
"on the
sions for service
petition,
raised in his
that were not
brief
agency, person or entity."
(emphasis
65B(d)(2)(B).
petition
does not
added). According
plain
language of
present
any cireumstances
suggesting that
extraordinary
rule
writ cannot be ad
any Utah court
perform
failed to
an act
every
dressed to
once;
of the state at
required by
Therefore,
law.
may
he
only
particular
to a
court or
particular
to a
obtain extraordinary
ground.
relief on this
judge. Extraordinary relief is
only
available
right
particular
131 Finally, extraordinary
a
wrong,
general
not a
may
relief
ized, amorphous one.
granted
be
where the district court refused
petitioner
denied the
right
to which he
Second,
even if Osborne had properly
or she is
65B(d)@)(C).
entitled.
petitioned
Al
to have an extraordinary writ di
though Osborne claims that he
has a
only
rected
to the district court in which the
entitling him to challenge the adoption pro
adoption he seeks to contest is taking place,
ceeding and to challenge the
per
exercise of
could not have
granted.
been
sonal
him,
over
point
Under
provisions
cannot
65B(d),
of rule
person
may
Utah court that
obtain
only
relief
has refused or
under four limited
denied
him legally
cognizableright.
cireumstances, and the facts of this
po
case
tentially implicate only three of these cireum-s
132 Regarding putative
pa
fathers'
tances.8 Because
grounds
none of the
al
rights,
rental
Supreme
United States
leged in
relate to
of these
Court
explained
that "the existence or
cireumstances, however,
limited
the court of
nonexistence of a substantial relationship be
appeals properly exercised its discretion in
parent
tween
and child is a relevant criterion
denying
petition.
in evaluating both
parent
129 The first cirenmstance under
and the best interests of the child." Lehr v.
which extraordinary
relief
is Robertson,
266-67,
U.S.
108 S.Ct.
where the district court "has exceeded its
6G§ biological father- allegation of mere fa on biological 30-4.15(4) "unmarried allows hood. chal to state" in another resides who ther for child placement mother's lenge the challenge an to If Osborne wants state in another if he resided to court in a Utah appear must he adoption, most "complied with has mother Os- right to do so. he has that establish of requirements complete stringent court so, and no Utah yet done has not borne or resided previously mother where state doing Because so. him from prohibited has preserve protect located, to in order court a district to not shown has Osborne child" in the that would any rights is entitled that he 78-80-4.15(4). enacting at issue. K.S.B., adoption of challenge the him to allow expressly legislature statute, the Utah for petition upon which exists ground no father an unmarried "that provided granted. may extraordinary be relief not, may state in another resides who reasonably presumed cireumstance, be every granting consider may even we Before T 37 with, comply strictly of, and know allege relief, must petition extraordinary re who fathers putative for requirements" nature and of a relief seek circumstances legisla Thus, the Utah state. in this side may extraordinary relief for which purpose avenue alternative enacted has ture Renn, 904 See rule 65B. be state live out fathers putative does petition at 688. P.2d their establish extraordinary granting criteria meet the al- the cireumstances none because relief ( attempt made Yet, has any of the relate leged in complied he has show Os- Since relief. obtaining such grounds other any or state of this requirements court any Utah point to cannot borne recog legally establish jurisdiction, authority or its has exceeded adop whose relationship with nized duty, or refused perform failed Thus, interrupt. intends establish that would any rights him denied "has that Osborne correctly noted appeals extraordinary relief upon which grounds timely action take failed to simply properly appeals granted, Osborne, child." to this preserve peti- denying his its discretion exercised refusing to By1. 20020489-CA No. Case tion. comply with mother where the state this state him placed resided, Osborne. previously CONCLUSION cannot courts where position self ques brief, ¶38 focuses individual interested In his as an him recognize proceed us: challenge an before issue rights to the threshold beyond tions its dis refusing to take abused differently, the court whether ing. Stated ex pre he has denying Osborne's to establish cretion opportunity has de peti rights, Osborne Because *8 his traordinary served relief. challenge the ability grounds available himself prived not based tion was not abuse did appeals relief, the court adoption. its deci Therefore, we affirm its discretion. every out-of- to allow If we decided deny petition. his sion adoption contest father to putative demonstration making some without WILKINS, RUSSON, Justice paren- his preserved 139 Justice he has in Associate concur BALDWIN Judge and gate for open the we would rights, tal opinion. DURRANT's putative Justice he is the Chief claim person out-of-state pro- adoption interrupt a Utah and father participate does HOWE T40 Justice he is alleging simply ceeding R. PARLEY Judge herein, District Second does law that Utah and biological sat. BALDWIN adoptions not halt should to him. We apply DURHAM, Justice, Chief dissenting: request borne's for a writ of mandamus to prevent the finalization of his child's adop majority 1 41 opinion declares that the tion, together with an allowing him to petitioner is not entitled to an extraordinary intervene in the adoption child's proceeding procedure writ because he has failed to com- without waiving objection personal jur ply with a statute whose isdiction, the appeals court of first held that challenges as deprivation unconstitutional "fully strictly and of his process. due The result compl[{ied]"with Utah Code section 78-30- that the child, father of a with whom he lived 4.14(2)'s statutory requirements in order to and supported whom he for the first five satisfy Utah Code 78-380-4.14(5). section life, months of its and whom the child's moth- The court appeals proceeded then to ex er unilaterally and clandestinely removed amine whether Osborne had nevertheless ac from his home state, and their resident quired parental rights under a different Utah prevent, means to require even section, which makes certain allowances on, hearing placement of that child with for unmarried biological fathers who do not strangers adoption in Utah. reside in Utah. See Utah Code Ann. 78-30- [ 42 Neither our system constitutional nor 4.15(4). Similar 78-30-4.14(5)'s to section our national network of laws respecting juris- compliance strict requirement, however, this diction over children and their parents per- requires statute that the father comply with mit such a result. "the stringent most complete require 148 Frank Osborne has ments characterized state where the previ mother situation as a catch-22. ously When the district resided or was located." Utah Code the motion 78-80-4.15(4)(d). The court of ap Center of Center") Choice ("Adoption peals held that to al Osborne had not satisfied this low its Petition For Determination of Birth requirement. Rights Father's under Utah Code section 78- T44 A complex array of interests are in- 30-4.24 to be heard without notice to Os volved whenever father seeks to borne, and subsequently terminated Os challenge an interstate The state borne's rights,1 Osborne feared that legitimate has a interest, dictated a con- appeal the court's decision would be to cern for the best interests of a subject himself to Utah's jurisdic ensuring the stability of process tion. This was precisely the result that Os and avoiding uprooting a child who has lived sought borne to avoid when he initially re significant for a period adoptive parents. fused to accept service of on the See In re Doe, Baby Boy petition. Center's Osborne acted (Utah P.2d At time, the same out of the conviction that Carolina, North one state's statutory law must not be allowed rather than proper was the forum for to infringe unfairly on the constitutional determining rights. Osborne's rights of an unmarried father who efforts to avoid subjecting himself to the resides in another state. See major- id. The jurisdiction of Utah courts led him first ity's application of laws when challenge subject Utah's matter deciding to which Osborne is enti- over his adoption, child's then to federal dis tled tilts the balance too far toward the inter- court, trict finally to his private ests of adoption agencies, ignoring extraordinary relief from the court the uniform already laws place to regulate in the proceeding below. Addressing Os interstate custody adoptions that, The district court held under Utah Code strictly comply" statutory requirements *9 78-30-4.14(5), section plaintiff had "waived and preserve in order to rights. Utah any right surrendered in relation to the [minor] 78-30-4.14(5) Code (2002). §Ann. In the case child, including right the to any judicial notice of of a old, child less than six months require- these proceeding in connection adoption of registration ments include putative with Utah's the child, and his consent of the adoption registry before the birth mother relin- child is required." not holding This was based quishes the child for § See id. 78-30- language on the 78-30-4.14(5), of section which 4.14(2)(b). requires an biological unmarried "fully father to (Utah Ct.App.1996) R.N.L., 918P.2d father. rights of due the Compact is Interstate the ("The of purpose have courts that Utah I believe Because proposed authorities state inform to determine to jurisdiction matter subject inter child's the protect they can adoption so and rights, Frank cir evaluating the ascertaining and est vio- here Adoption Code Utah the applying placement."). proposed. the of cumstances re- I process, to due lates Osborne's Code, was born child if a the Under dissent. spectfully adoption for state, the in another require the with compliance affirm must JURISDICTION MATTEii SUBJECT I. Compact. Utah Interstate the of ments 78-80-4.24, of part section Code T45 Utah however, Here, this § 78-80-15.1. Ann. Code "[alny interest- Code, allows Utah's child the because avoided was requirement a deter- for court the "petition to party" ed here flew mother the after in born any of interests and the of mination up for child give the intending to apparently in a child an may claim who person labor induced a doctor at birth and adoption the to prior any time chapter, this under Com The Interstate (on August Code adoption." filing aof however, moth the because applies, pact still original (2002). In the $ 78-30-4.24 Ann. infant the with Carolina to North er returned interpret- the proceeding, district did and day in Utah only one spending after matter subject it giving as this statute ed five-month-old the to Utah return agency's adoption a Utah over jurisdiction in the again with January until child out-of-state terminate attempt to up for adoption, the giving of tention child However, in- this father's Com- Interstate the of purpose T47 One in the provisions conflicts terpretation jurisdiction- "[alppropriate promote is to pact of Chil- Placement Compact on Interstate of the children" care the arrangements al Code Compact"), ("Interstate dren inter- of course in the lines eross state who (2000), the Uniform and § 62A-4a-701 Ann. © Id. relingquishments. or adoptions state Enforcement and Custody Jurisdiction Child In- 1)(4). the 62A-4a-701(Article Under § §§ 78- Ann. Code ("UCCJEA"), Utah Act "re- agency" "sending the Compact, terstate -818 to 45c-101 to child sufficient the tain[s] the custo- relation matters all determine Adoption Code the Between A. Conflicts treatment, disposi- and care, supervision, dy, Compact Interstate the if it would the child of a child Compact, Interstate the 46 Under sending agen- had remained child the brought into or sent to be supposed is . . . Such adopted. is state, the child until cy's the "send until placement state another power the include also shall the mother,2 notifies here, the agency," ing its child or the return the cause or effect the receiving state the authorities public custody pur- location another transfer ageney the parents, child identity (Article § 62A-4a-01 law." suant and the brought, bewill child to which V)). authorities action, reasons agency" "sending {48 Here, writing, agency, sending "notify the then mother, relinquished child's placement proposed effect and, terms Adoption Center inter contrary to to be appear does "all contract, terminated § 62A- relinquishment Ann. child." ests child. custody" [her] IID(2)(®); In Re 4a-7Ol(Article leaving the child aunt, guardian or his "sending statutory definition Included guardian nonagency sends, or brings, relative or ... which person "a agency" is 62¥-4a-701(Article receiving to another state." brought or be sent causes 62A-4a-701(Ar- brings into a child VIID(1). parent who A Utah Code party state." relinquishing it excludes specifically purpose of ID(2). receiving for the statute state ticle re- therefore a child into bringing of sending agency for or [tlhe grand- step-parent, parent, agency." ceiving "sending as a qualifies sister, uncle adult brother parent, adult *10 Assuming that such a contract would be val- make "an initial custody child determination" Carolina, id in North the (1) mother's relin- only if Utah is the child's home state on quishment custody likely would entail ter- the date the proceeding (2) begins, a court of jurisdiction mination of over her under the another state jurisdiction does not have or is Compact Interstate the terms of the Inter- not a if more appropriate (8) forum, all other Compact state had otherwise been met. might courts that jurisdiction under the Since the of the Interstate preceding provisions have declined to exer Compact were met, not otherwise however, it, (4) cise or no state would otherwise have the mother's attempt jurisdiction transfer jurisdiction. § 78-45c-201(1). Id. The to Utah as a receiving state is flawed. Juris- "home state" is "the state in which a child diction over the child thus still follows the lived with a parent or person a acting as a mother, not Adoption Center, the and Os- parent for at least six consecutive months borne should be entitled to sue the mother in immediately before the commencement of a North Carolina for custody or a parental custody child proceeding," or for a child less rights determination since both he and the than six old, months "the which the mother are North Carolina residents. child lived from birth persons of the (49 Adoption Code, 78-45e-102(7). Under the § Id. adop- Thus, the mentioned." Utah was not the agency child's has home "the state when custody and Adoption Center child," control of initiated its proceeding. onee the child has been relinquished North Carolina agency. § was the state, Id. 78-80- child's home 4.22(2). and North However, Carolina courts did provision refuse to must be jurisdiction. exercise together fact, read provisions North Car of the In- olina court has ruled Compact terstate it when has exclusive interstate transfer jurisdiction over question child is involved. agency parental is not and issued a entitled to custody temporary re unless there has straining been compliance against order Interstate Com- Center prevent it pact. from proceeding Otherwise the Interstate Compact child's can adoption3 simply Baker, Osborne v. bypassed, be No. and its 02-CvD- purposes defeat- (N.C. ed, Gen. by Justice, Ct. relying on conflicting Dist. Ct. Div. state law. July 1, 150 Under a reading consistent with the T52 A Compact, then, Interstate Utah court could tempo- Cen- rary emergency jurisdiction ter "if has no child is child that would present allow it bring this state and action to terminate has Os- been abandoned or borne's it is necessary in an emergency Utah Code protect § 78-80-4.24. child child, because the or a sibling parent subjected B. Between the Adoption or threatened with Conflicts mistréatment or abuse." Code and the UCCJEA 78-45c-204(1). § Code Ann. Here, the child 1[ viewed as by abandoned Similarly, under UCCJEA, a Utah mother, although so, Osborne. Even no lacks to terminate custody determination made The UCCJEA only court is in effect until a court of a considers proceeding regarding paternity state having non-emergency jurisdiction un- or for termination rights to be der the UCCJEA issues an order regarding one in which a custody child's ("legal custody, custody. child's § 78-45c-204(2). physical custody, parent-time") is an issue. § Code Ann. 78-45c-102(3),(4). The 153 The UCCJEA does govern "an gives UCCJEA Utah court to adoption proceeding." 78-45e-103(1).4 3. The subsequently replaced restraining 1999 to exclude proceedings. Unif. preliminary with a injunction. supra See Custody Child Jurisdiction & Enforcement Act T7 n. 2. § 103 This provision was enacted Utah in 2000. Utah Code Ann. 78-45c-103. 4. The National Conference of Commissioners on enactment, Prior to its the UCCJEA widely Uniform State Laws amended the UCCJEA in.
69 the that belief the under tion, presumably: was here issue at However, proceeding the jurisdiction subject matter § 78-30- had court Ann. trial Code under brought and 78-30-4.24 sections Code to under party interested an 4.24, allows does the UCCJEA that and 78-33-1 a father's determine to court the understanding in However, a an to such prior" any time apply. "at rights parental added). adoption a Utah and parent (emphasis one allows effect for juris- the around run an end a make but agency proceeding," "adoption an is This UCCJEA, to the of requirements adop dictional an precedes that proceeding separate aIf parent. the other disadvantage of the Supreme The Oklahoma proceeding. tion is rights parental brought terminate proceeding action similar considering a Court, an part of indistinguishable pre- a law, that an held considered state Oklahoma under indepen- than parental rather proceeding, adoption terminate proceeding adoption UCCJEA, by the governed proceeding adoption proceeding ancillary to an dent rights are UCCJEA underlying purposes jur the declined had court trial (even the though proceeding adoption actual defeated. the over isdiction adoptive the where state the of favor in that provision The UCCJEA T55 did not resided), UCCJEA the so parents two where situation governs explicitly D., Boy Baby v.White apply. of po- have states in different courts initiated (holdingthat (Okla.2000) 212, 220-21 P.3d 10 regarding a conflicting proceedings tentially emergency exercised properly trial the custo- the rights and parental parent's birth Five Okla proceeding). the over jurisdiction § 78-45c- Code See a child. dy of opinion, majority the joined justices homa complied Carolina North The 206. result, dis three and the in concurred one that, un- determined and provision this with dissenting the of Two 223. at Id. sented. the UCCJEA, not Utah it and the der expansive majority's the that argued justices the determination forum appropriate "effec jurisdiction emergency application failure court's This parental juris subject matter eviscerate[s] tively jurisdiction subject matter Utah's to address ter and adoption dictional and to action Center's the over They proceedings." mination in a 78-30-4.24 section Code interpret Utah continued: will UCCJEA the with consistent manner na- any state from mother A birth pre- purpose the UCCJEA's eviscerate with to Oklahoma travel may now tion be- exists that now very conflict venting the place and parents adoptive prospective courts. North Carolina the Utah tween in Okla- adoption ageney with deemed she is and the Compact Because homa. Interstate the T56 Both of this child, courts the her specifically designed abandoned have been UCCJEA emergency may assume children transfers interstate govern parental the terminate proceed then the unfair avoid attenu- how matter father interpreta- rights of An involved. parties various connection non-existent 78-80-4.24 section ated of Utah ' state. to terminate agency a Utah allows father of a child's rights parental entitled may well when even majority has {54 Here, law of jurisdic- emergency question reached father, custody to the give See, eg., proceedings. apply to held child. any contact had (Okla.1997); had never 621, E.E.B. L.S., P.2d In re argument strengthens (N.J. only a rationale D.A., Such 446 A.2d 89 N.J. pre-adoption apply in from to result should appears UCCJEA provision where especially In re Clau in proceedings, as that situations unfortunate sen, (1993), relationship developed 502 N.W.2d question has parent 442 Mich. (predecessor rights can be UCCJA applying the so where resulted UCCJEA) adoption context the most possible quickly as as determined after parents, adoptive its removal a child's jurisdiction. appropriate a half years, two living with them (OQ child's home state is inconsistent with both *12 exception is to allow residing individuals in Compact
the Interstate
and the UCCJEA.
one state to
resolve their own
relation-
ship
These
can be
simply by
conflicts
avoided
with others who are not within the state.
recognizing
Otherwise,
that an action under
section 78-
individuals would
in
be left
forced,
30-4.24 for the
of an
limbo or would
out-of-
at substantial
in-
determination
expense,
to travel to the
rights
custody
state birth father's
is a
deter-
convenience
independent
adoption pro-
mination
of an
home state to file their action.
defendant's
ceeding
governed by
and is
the UCCJEA.
provides
£59 D.A.
example
a suitable
case,
minor,
rationale.
In that
a
one of
II. DUE PROCESS-PERSONAL
parents
whose
had abused him and both of
JURISDICTION
whom had been forced
relinquish custody
to
years
of him six
they
earlier when
were
157 The UCCJEA's rational scheme as
facing felony charges,
brought
had been
to
signing
jurisdiction
default
to a child's home
by
his aunt and had lived here with her
require
state does not
that state to have
significant
for a
time.
Id. at %4. The minor's
personal jurisdiction
parents
over both
guardian
litem, together
State,
ad
child in
parental
rights
to make a
filed a motion to
parents' pa-
terminate the
forego
termination
If
provi
decision.
we
rights,
rental
Id. at
guardian
112-5. The
sions of the
making pre-
UCCJEA when
State,
ad litem and
charged
both
with
adoption parental
rights
determinations,
protecting
interests,
the minor's best
thus
however,
process requires that,
due
in such a
acted on his behalf to determine his status
this,
proceeding as
a Utah court at least have
respect
to
parents.
personal
jurisdiction
parent
over the
whose
terminating.5
it is
T 60 In
original
trial court proceeding
~
(58
here,
contrast,
at issue
in
Cen-
Contrary
to
Center's
ter,
for-profit
a
adoption agency, sought
argument, I do not believe that this court's
terminate biological
father's
(In W.A.),
in
decisions D.4. v. State
re
2002
proceed
order to
with its business of facili-
127,
607,
(In
UT
68 P.3d
v.
and State F.A.
re
tating
of a child whose "home
W.A.),
126,
100,
2002 UT
63 P.3d
lead to the
state" had never
been Utah. The
jurisdiction
conclusion that
can
assert
private
Center is a
entity
public
under no
exception
Osborne under the status
obligation
protect
a child's best interests.
requirement.
the minimum contacts
The ra
These
interests are not
unfairly
served
underlying
tionale
these cases in fact leads to
preventing
biological parent
who has devel-
opposite
conclusion.
analysis
As the
oped a relationship with his child from as-
clear,
that
makes
the status excep
opinion
serting
It is the role of
tion
apply
plaintiff
when a
seeking
protect
courts to
the interests of both
determination
of his
her status with re
parent
and child
considering
further
spect
D.4.,
to an out-of-state defendant.
whether "traditional
play
notions of fair
1120-21,
Arizona to establish a home for them and their gave child at the time the mother up re Doe, (Utah
Baby Boy 717 P.2d 690-91
1986). Similarly, in Ellis v. Social Services (Utah
Department,
615 P.2d
and held that ineligible Osborne was for this exeeption not, because lan-
guage § 78-80-4.15(4)(d), of Utah
"complied stringent with the most and com-
plete requirements of" state, his home North
Carolina. However,
T 70 more than Osborne's out-of-
state status is relevant here. The crucial