STATE оf Utah, in the INTEREST of R.N.J., fka R.N.P., a person under eighteen years of age.
T.B., Respondent and Appellant,
v.
M.M.J., Petitioner and Appellee.
Court of Appeals of Utah.
*346 Gary W. Pendleton, St. George, for Appellant.
Glen D. Watkins and Bruce Wycoff, Salt Lake City, for Appellee.
G. Michael Westfall, St. George, Guardian ad Litem for R.N.J.
Before ORME, BILLINGS, and WILKINS, JJ.
WILKINS, Judge:
T.B., the mother of R.N.J., appeals the juvenile court's order that granted the petition of M.M.J., the adoptive father of R.N.J., to voluntarily terminate his parental rights to R.N.J.
BACKGROUND
R.N.J.'s mother met the adoptive father in November 1987. At that time, R.N.J., who was the legal daughter of both her biological parents, was living with her mother but not with her biological father. The follоwing year, in December 1988, the mother divorced R.N.J.'s biological father. A few days after the divorce, she married the adoptive father. R.N.J. was four years old at the time of this marriage. R.N.J., her mother, and the adoptive father subsequently lived together as a family.
More than four years later, in March 1993, the adoptive father and the mother filed a petition for the adoptive father to adopt R.N.J. The court entered a Decree of Adoption in April 1993, after the parental rights of R.N.J.'s biological fathеr were terminated. Thereafter, the adoptive father became R.N.J.'s legal father, possessing all the rights and duties of a legal parent.
In June 1993, after the mother had moved to California with R.N.J. and the couple's other child, the mother sued the adoptive father for separation in a California court. Within a few weeks, the adoptive father sued the mother for divorce in a Utah court. The Utah action was dismissed, and the parties stipulated that jurisdiction of the divorce proceedings would be vested in a specified court in California. That court took jurisdiction of the divorce proceedings, including issues of child custody, support, and visitation. The California court entered a judgment granting the divorce in September 1994. The judgment gave the mother custody of R.N.J., did not grant the adoptive father any visitation rights, in accordance with his own request, and ordered the adoptive father to pay child support.
In October 1993, the adoptive father filed a petition in Utah to annul R.N.J.'s adoption or to tеrminate his parental rights to R.N.J. In January 1995, the district court dismissed with prejudice the adoptive father's claim for annulment, and the parties agreed to proceed to trial exclusively on the adoptive father's claim for voluntary termination of his parental rights. The district court judge ordered the case transferred to the juvenile court. The juvenile court judge simultaneously appointed the district court judge to handle the case as a juvenile court judge, and that same day the case was tried.
*347 After trial, the court found "only by the barest preponderance of the evidence" that it was in R.N.J.'s best interest to terminate the adoptive father's parental rights and obligations. The court filed its order in March 1995. Thereafter, the mother filed this appeal.
ANALYSIS
On appeal, the mother questions the jurisdiction of the juvenile court to consider the matter under the Utah Uniform Child Custody Jurisdiction Act (Utah UCCJA), and whether the trial court should have applied a clear and convincing standard of proof rather than a preponderance of the evidence standard in the termination proceeding.
I. Jurisdiction
We first resolve two jurisdictional issues regarding this case. First, we raise, sua sponte, the issue of whether the district court judge's appointment as a juvenile court judge pro tern was valid. Although we conclude that the appointment was invalid, we also conclude that under the de facto officials doctrine the district court judge's actions while acting as a juvenile court judge are valid as to the parties and thе public. Second, we conclude that the trial court had subject matter jurisdiction because this proceeding was not a "child custody proceeding" under the UCCJA.
A. Appointment of District Court Judge as Juvenile Court Judge
We first address whether the trial judge's appointment as a juvenile court judge was valid, an issue we raise sua sponte. Generally, "if a [party] has not raised an issue on appeal, we may not consider the issue sua sponte." State v. Rodriguez,
According to the Utah Code of Judicial Administration, an active judge may temporarily serve as a judge "of a court with equal or different jurisdiction in the same or a different geographical division" and will enjoy, while serving in that court, "the same powers as a judge of that court." Utah R.Jud.Admin. 3-108(3) (1995). In order to serve in this way, however, the judge must be assigned to the other court either by the presiding officer of the Judicial Council or by the state court administrator with the approval of the Council's presiding officer. Id. The presiding officer of the Judicial Council is the chief justice of the Utah Supreme Court. Utah Const. art. VIII, § 12(2); Utah R.Jud.Admin. 1-101(1)(Q).
This procedure was not followed by the trial court. The district court judge was temporarily appointed to act as a juvenile court judge in this case by an order signed only by the juvenile court judge. The record does not include an appointment by the chief justice of the Utah Supreme Court, or by the state court administrator acting with the approval of the chief justice. Therefore, the trial court judge acted without the legal authority of a juvenile court judge when he heard and decided this case.
However, the trial judge's judgment is valid as to the parties and the public the same as if he had been properly appointed because his actions in this case fall within the de facto officials doctrine. Under this *348 doctrine, persons who assume official authority under color of a valid appointment and with public acquiescence in the authority are considered de facto officials even though they are technically ineligible for the public office. State v. Menzies,
The landmark definition of de facto officers accepted by the Utah Supreme Court in 1983 includes the situation in this case where a judge acted under color of a known appointment that was void because the appointing body lacked power to appoint the judge. Vance v. Fordham,
B. Jurisdiction under the UCCJA
The mother argues that the trial court lacked subject matter jurisdiction to hear this case because the California court that issued the couple's divorce judgment retained jurisdiction of all custody issues under the Utah Uniform Child Custody Jurisdiction Act (Utah UCCJA) (codified at Utah Code Ann. §§ 78-45c-1 to 78-45c-26 (1992 & Supp. 1995)). The mother bases her argument on the premise that the voluntary termination of the adoptive father's parental rights in, and obligations to, R.N.J. is a custody issue under the Utah UCCJA. We disagree.
Rаther, we conclude that a proceeding involving the termination of a parent's rights and obligations is not a custody proceeding under the Utah UCCJA. This conclusion is supported by Utah's statutory scheme. A "custody determination" is defined in the Act as "a court decision and court orders and instructions providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person." Utah Code Ann. § 78-45c-2(2) (1992). A "custody proceeding" under the Utah UCCJA, "inсludes proceedings in which a custody determination is one of several issues, such as an action for dissolution of marriage." Id. § 78-45c-2(3). Therefore, although these definitions make clear that the California case involving the dissolution of the parties' marriage and the custody of R.N.J. was a custody proceeding under the Utah UCCJA, these definitions do not clarify whether this proceeding involving the termination of the adoptive father's rights and obligations also was a custody proceeding.
Other provisions of the Utah Code, however, lead to the conclusion that a termination proceeding is not a custody proceeding. The Juvenile Courts Act specifically separates termination of parental rights proceedings and custody proceedings. Juvenile courts are granted exclusive original jurisdiction in cases involving the termination of a parent's rights, with a limited exception not relevant here. See Utah Code Ann. § 78-3a-16(2)(f) (Supp.1995); id. § 78-30-4.16(1)(b). District courts, however, have original jurisdiction over cases involving "questions of custody," and the juvеnile court may only hear custody cases if they have first been certified by the district court. Id. § 78-3a-16(3); see also id. § 78-3a-17(4).
In addition, our conclusion is consistent with the general principle "that when two statutory provisions conflict, the more specific provision will prevail over the more general provision." Williams v. Public Serv. Comm'n,
Our conclusion is also supported by the principle that "`the later expression of the legislature'" сontrols when statutes conflict or overlap in their treatment of the same subject matter. Murray City v. Hall,
Following this statutory scheme, Utah's appellate courts also have kept separate the concepts оf "child custody" and "termination of parental rights." See, e.g., Sanderson v. Tryon,
The mother cites cases from other states to support her argument that we should find that a case involving the termination of a parent's rights is a child custody proceeding under the Utah UCCJA. See In re David C.,
We conclude that the provisions of the Utah UCCJA do not apply to a case such as this that involves the termination of parental rights and obligations.
II. Standard of Proof
The mother also argues that the trial court erred by applying a preponderance of evidence standard rather than requiring proof by clear and convincing evidence.[1] Whether the trial court applied the wrong standard of proof is a question of law hinging on an interpretation of section 78-3a-406(3) of the Utah Code and Rule 41 of the Utah Rules of Juvenile Procedure. "We review questions of statutory interpretation for correctness giving no deference to the trial court's interpretation." Wells v. Wells,
The adoptive father argues that thе mother is barred from raising the issue for the first time on appeal. Under almost all circumstances, "matters not raised in the pleadings nor put in issue at the trial may not be raised for the first time on appeal." James v. Preston,
*350 The policy behind requiring an appellant to first raise an issue in the trial court is one of judicial economy and orderly procedure. See Clegg v. Lee,
However, in this case, the issue оf whether the trial court applied the wrong standard of proof is not an issue that "`depends on controverted factual questions whose relevance thereto was not made to appear at trial.'" James,
Furthermore, although this general rule applies in almost all cases, clearly defined exceptions to the general rule exist. One such exception we have already addressed: Issues regarding the jurisdiction of the trial court, or of this court, to hear the matter may be raised for the first time on appeal. Jefferies v. Jefferies,
Other exсeptions to this blanket proscription involve instances of plain error or exceptional circumstances. See State v. Archambeau,
Failure to argue plain error or exceptional circumstances is usually fatal to an appellant's claim. Id.; State v. Peterson,
Notably, this casе is about the adoptive father's attempts to avoid his legal parental obligations; this case only incidentally concerns his parental rights. The adoptive father has already clearly demonstrated his attitude toward the "rights" of his father-daughter relationship with R.N.J. He waived any claim to visitation with R.N.J. under the divorce decree entered in California. In addition, he filed the petition that gave rise to this case, which sought to undo *351 the adoption of R.N.J. as if from its very inception, or to terminate his parental rights. Therefore, what the adoptive father actually seeks to terminate in this case are his duties as a father to R.N.J., specifically his duty to support her. Thus, in this case we are not dealing with the financial interests of the mother; we are dealing with the financial obligations of the adoptive father to his daughter, R.N.J. It is R.N.J.'s right to parental support that is the centerpiece of the father's voluntary termination of his legal parental duties. The adoptive father seeks to end his legal obligations to support, care for, and love R.N.J. Therefore, in this instance we raise the plain error exception sua sponte as one of the narrow classes of cases involving a judge-made rule intended to promote judicial efficiency that would, if applied, impinge on the best interests of a child.
Two requirements must be met to find plain error. First, the error must be "plain," such that "from our examination of the record, we must be able to say that it should have been obvious to a trial court that it was cоmmitting error." State v. Eldredge,
The first requirement is easily met because the juvenile court's error was "plain." "The Court shall in all cases [under the TPR Act] require the petitioner to establish the facts by clear and convincing evidence." Utah Code Ann. § 78-3a-406(3) (Supp.1995). In addition, Rule 41(b) of the Utah Rules of Juvenile Procedure provides that "cases involving the permanent deprivation of parental rights must be proved by clear and convincing evidence." That these provisions control the standard of proof to be applied in this case should have been evident to the trial court.
The second requirement for plain error is also met. The trial court found that R.N.J.'s best interests were served by terminating the adoptive father's parental rights and obligations only "by the barest preponderance of the evidence." Since the preponderance standard was "barely" met, the court could not have found that terminating the adoptive father's rights and obligatiоns would have been in R.N.J.'s best interests by the significantly higher clear and convincing standard. In other words, if the court had applied the correct standard, R.N.J. would not have lost her right to be supported by her father. Use of the wrong standard of proof, which culminated in her loss of that support, clearly prejudiced her.
Only in the most aggravated and difficult cases do the best interests of the child call for the court to relieve a living, capable, and solvent parent of the obligation to support the parent's child. Publiс policy strongly favors parents bearing the burdens of support for their children, financial and otherwise. See Utah Code Ann. § 78-45-3(1) (Supp.1995) ("Every father shall support his child...."); id. § 78-45-4(1) ("Every woman shall support her child...."); cf. Hills v. Hills,
As is often the situation, the personal and financial dispute between the mother and adoptive father was played out on the battlefield of the child's well-being, and her financial, social, and familial stability. However, it was with just such difficulties in mind that the legislature mandated a greater burden on the parent, adoptive or natural, who seeks to voluntarily relieve himself of the duty to support his child. Clear and convincing proof of the material and relevant facts is mandated. These facts must convince the court "that termination is in thе child's best interest." Utah Code Ann. § 78-3a-407(7) (Supp.1995).
CONCLUSION
We conclude that the trial judge was not properly appointed to act as a juvenile court judge, but that his acts are valid and binding as to the parties and the public under the de facto public official doctrine. We further conclude that Utah's TPR Act vests exclusive original jurisdiction in the Utah Juvenile Court to hear the adoptive father's petition to voluntarily terminate his parental relationship with R.N.J., and that the Utah UCCJA does not apply to termination actions.
Having determined that the trial court had adequate jurisdiction to hear and decide the matter, we further conclude that it was plain error for the trial court to apply a standard other than one of clear and convincing proof of the ultimate fact necessary to terminate the parent-child relationship, and we accordingly reverse.
ORME, P.J., and BILLINGS, J., concur.
NOTES
Notes
[1] The trial court appointed a Guardian ad Litem to protect the interests of R.N.J. Unfortunately, the Guardian ad Litem, like the mother, failed to raise the issue of the standard of proof at the trial level. The child, and derivatively her mother, were harmed by the error.
Fortunately, our plain error analysis of the claim allows the mother to raise the issue of whether the trial court applied the proper standard of proof for the first time on appeal. Both the mother and the adoptive father addressed the issue in their briefs and on oral argument. Again, unfortunately, the Guardian ad Litem elected not to participate in thе appeal on behalf of the child.
[2] See, e.g., Ex parte Brooks,