*1 lich, (5th Cir.1984). F.2d 1219-20 circumstances, those the trial
Under “obliged grant unnecessary re this Stewart,
quest.” F.2d at 631. Heritage
The record indicates that when complaint, its
moved to amend Landon had yet responsive pleading.
not filed a Ac-
cordingly, the court had no discretion to
deny Heritage’s motion to amend. The
judgment of the district court is therefore
reversed, and the case is remanded so that
Heritage may complaint. amend its JACKSON, JJ.,
DAVIDSON
concur.
STATE of Utah In the W.D.,
Interest of DRAKE, Appellant.
Christine
No. 870578-CA. Appeals
Court of of Utah.
March Plenk, Burkhardt, Jeffrey
Bruce City, appellant. *2 An order Dam, Sjogren, to California.” of tem- Sandra L. returned R. Van Paul porary custody, placing of W.D. respondent. City, for Salt Lake Family Services with the Division DAVIDSON, GARFF and Before Services”), (“Family by was issued the ORME, JJ. hearing pursuant A shelter to Utah court. (Supp.1988) held Code Ann. 78-3a-30 was
DAVIDSON, Judge: day. the case the next worker notify to find to her of 18, 1987, juvenile was unable Drake November the On result, custody hearing. a left the As was court dismissed pending a Sep- Family day, The next Services. more ruling California was the that 2, appeared, met with the tember Drake convenient forum to determine priate and worker, the case and was informed about parents The custody of W.D. natural give to her hearing. shelter Drake refused affirm. appeal the dismissal. We W.D. request address and did not another hear- ing. FACTS facts, petition these same a was filed On birth, Drake to Christine Prior W.D.’s 3, September in which also California on Mick, parents, natural W.D.’s and William dependent alleged that was a child. W.D. Francisco, in California. together lived San hearing in on A was held San Francisco previously given to anoth- Drake had birth given September 4. Notice was to both child, I.D., 1984, er in but California author- Mick, and and Mick was Drake protective custody. into taken her ities had Following hearing, de- the a with counsel. sought the return Drake and order for W.D. was issued. On tention authorities, California over a child so the to September officials flew years, several conducted evalua- period of City, picked up from Salt Lake W.D. Fami- place- parents, administered tions of the ly personnel, and returned with Services programs, ment and were involved court him California. to parents. the hearings with September Judge Matheson On hearing July Following a held on parte an ex signed dismissing the order court recom- the California at which Subsequently, Drake and case Utah. parental rights mended termination set the Mick moved to aside dismissal. I.D., left Francisco and traveled Drake San granted motion and new hear- This eight City. to Lake She was months Salt state’s date set to consider the motion to Utah be- pregnant with and came hearing on to A was held the 5th dismiss. had decided that Utah cause she and Mick During the 18th November to law allow them retain hearing, parents repre- were each of stayed after be- this child its birth. presented by side sented counsel each Drake arrived
hind in San Francisco. conclusion, argument. At the evidence bringing City August on that California the court found belongings. money and little few with her appropriate and convenient forum to more month, at that she lived vari- custody, granted For most of the state’s determine city, including the places within the ous motion to dismiss.
women’s shelter. question before us is whether The Custody Act 24, 1987, Uniform Child Jurisdiction August On Drake delivered (“UCCJA”), 78-45c-l to Hospital. days Two Utah Code Holy W.D. at Cross (1987), required juvenile court to later, leaving -26 hospital, Drake left the defer jurisdiction rather than to Cali- retain August after Drake had behind. On conve- fornia as the more W.D., petition was filed to visit failed nient forum. . juvenile by state. The with the alleged dependent W.D. was a that DISCUSSION that had child and W.D., adjudicate argue that willing parents The first Califor over and was any did not have basis legal status the infant nia the "infant’s since Drake left over W.D. before child birth” with Drake and whether the state is was born. “person acting parent.” However, we need not decide that issue. Unlike the adopted Like California has PKPA1 the give Utah UCCJA does not (West UCCJA. Cal. Civil Code preference sig to the “home state.” The pertinent provisions The of these nificant connection or substantial connec They provide are identical. statutes that a *3 play tion basis “comes into either when the jurisdiction has state court to make or mod- home state test cannot be met or as an ify custody any a child order of the alternative to following that test” 9 UCCJA conditions are met: (U.L.A.) comment, (1988) 3 144 (emphasis § (a) This state ... is the home state of added). though may Even a certain state the child at the time of commence- state,” be the “home if “the child and his proceeding_ ment of. the equal stronger have or ties with (b) It is in the best interest of the child another state” that other state also has jur- that a court of this state assume jurisdiction. Id.; Superi see also Smith v. isdiction because the child ... and his County, or Court San Mateo 68 Cal. parents, or the child and at least one 457, App.3d Cal.Rptr. (1977). 137 352 contestant, significant have a connec- Therefore, the fact that Utah techni state, tion with this and ... there is cally jurisdiction have “home state” will in this available state substantial evi- prevent having not California from also concerning dence the child’s jurisdiction under the “substantial connec care, protection, or training, future tion” basis. personal relationships; (c) physically present The child is in this case, In the instant Drake and had state and ... the child has been aban- years. lived California for several necessary doned or ... it is in an nearly was conceived and carried to term emergency protect to the child be- there. At the time Califor- subjected cause he has been to or filed, living nia was still San threatened with mistreatment or only Francisco2 and Drake had left to find neglected abuse or is otherwise another state with more favorable dependent.... Drake, laws. Under these circumstances 78-45c-3(l) (1987); Utah Code Ann. Cal. § Mick and W.D. all had substantial connec- (West 1983). Civil Code 5152 California, thereby meeting § tions with requirement first of the substantial connec- The statutes define “home state” as “the Additionally, tion test. California authori- immediately preced- state in which the child parents’ ties had information on the mode parents, the time involved lived with his living, psychological makeup, marital re- parent, person acting parent, or a for skills, lationship, parenting past in- months, at least six consecutive and in the terrelationship with- W.D.’s older sister. case of a child less than six months old the enough required This was to meet the need which the child lived from birth care, pro- evidence on any substantial W.D.’s persons mentioned.” Utah tection, training, relationships 78-45c-2(5) (1987); to satis- Code Ann. Cal.Civil § 5151(5). fy requirement. Although the second Code Under this definition Cali- § California, qualify fornia fails to phys- as W.D.’s “home had his never been in desirable, may qualify presence state.” Utah ical “while not a as W.D.’s “home [was] here, prob- prerequisite jurisdiction state” since he was to determine born but 5152(3); custody.” lems arise in whether the child “lived from his CaLCivilCode see § Act, 1. Kidnapping Parental The Prevention 28 U.S. facts and circumstances considered are (West . Supp.1988). C.A. 1738A The PKPA those in existence when the was filed. dependency apply neglect does not to child (Alaska Rexford, P.2d 478 631 Rexford proceedings, Dep’t Human Sers. State ex rel. Avinger, v. (1986), 104 N.M. 720 P.2d 292 important and so is not to the resolution of this case. 78-45c-3(3) (1987). purpose, quib not Given this we will also Utah Code point at which one court or ble over to the de- jurisdiction had issue acquired priority-in-time jurisdiction. other was trans- tention order even before W.D. attempted courts to exercise Had the both ported that state.3 matter, continuing pri jurisdiction over argue Alternatively, parents ority-in-time important. been Donaldson, filed in Guardianship had been Utah that since In re Cal.App.3d Cal.Rptr. four temporary order issued (1986). priori has not days prior, the California court was jurisdiction “yield jurisdic can ty-in-time “exercising substantially in appropri is the more tion” if another court conformity this act” when it issued its Bodenheimer, ate forum. The detention order. Uniform Custody Legis Act: A Child Jurisdiction 78-45e-6(l) (1987)lim- Code Ann. Remedy Caught Children in the lative court’s its the exercise of a Laws, 22 Yand.L.Rev. *4 Conflict under some circumstances: (1969). 1231 exercise its A court of this state shall not Finally, parents argue the that the if the time jurisdiction under this act at determining discretion in court abused its filing proceeding a con- the appropriate the that California was more cerning the of the child was litigate custody of forum in which to the in court of another state exer- pending cising jurisdiction substantially in con- appropriate Just forum is the most which act, proceed- formity this unless the with by is determined the best interests of the ing stayed by the court of the other 78-45c-7(3) Ann. child. Utah Code § state this state is a more because (1987); 78-45c-3(1)(b) Ann. Utah Code § other priate forum or for reasons. (1987); Henderson, 628 P.2d Tuttle v. by provision. is bound a similar (Utah 1981). Trent v. 1276 See also 1983). 5155(1) (West Cal.Civil Code § 1987); Trent, (Utah P.2d 383 Kel 735 reject parents’ interpretation the We (Utah App. ly Draney, 754 P.2d 95 v. filing peti section. The unilateral of a this taken into Several factors be prohibit filing in the tion one state does not by judge determining the in account best petition in of a another state which also has interests: Peterson, jurisdiction. Peterson v. 464 (a) recently if another state is or was the (Me.1983). impor A.2d 205 But more state; child’s home 78-45c-6(1) tantly, purpose the of section (b) if another state has a closer connec- in encourage judicial “is to restraint exer the child and his or tion with cising jurisdiction whenever another and one or more of with the child the position in appears to be a better to deter contestants; mine of a child.” 9 UCCJA (c) concerning if substantial evidence the (U.L.A.) 7, comment, (1988). 234 Ulti § care, protec- child’s or future mately, important it is “less which court tion, training, personal relation- jurisdiction exercises but that courts ships readily is more available in an- partnership in several states involved act state; other bring possible about the best solution for a (d) parties agreed if the on another (U.L.A.)prefato child’s future.” 9 UCCJA appropriate; forum is no less note, (1988) added). ry (emphasis 118 See Brokus, also Brokus v. 420 N.E.2d (e) (Ind.App.1981); Rexford, 1247 v. by the exercise of Rexford (Alaska 1980). 631 P.2d 479 court of this state would contravene Although petition, subsequent we cannot condone the manner in we believe the hearings provided parents adequate pro- which W.D. was taken to California before the due Judge jurisdiction, protect rights. declined nor Matheson the cess to their See In re Summers (Utah 1980). Wulffenstein, misstatement of information contained in the 616 P.2d imple- for in tion was the means purposes stated any of the menting that decision. 78-45c-1. 78-45c-7(3). Utah Code I Utah court erred in dismiss- believe the Furthermore, “[although child is filed it rather than the the the custody proceeding, staying proceeding in autho- simply as center of attention 78-45c-7(5) is directed toward ... in inquiry main rized Utah Code Ann. making prediction (1987).1 simply and toward were too unsettled adults Events superior ability concerning outright the future dismissal. The Utah to warrant the child of them to surround kept of one proceeding should have been alive affection, necessary security, and all pending further clarification the situa- growing needs of a child.” Boden- other in tion: Would Drake remain Utah and heimer, In at 1223. Vand.L. Rev. here, legitimate residence establish a case, con- substantial information instant would she return to California? Would th¿ past cerning parents’ abilities and histo- join in stay on in California or Drake only The mother had ry in California. Utah, If Mick came to Cali- Utah? Utah, had lived for recently come to but in retain over fornia fact Finally, exposed years California. since W.D. was Utah and was still born shop coming to Utah was to purpose in in Utah when the California jurisdiction. filed? circumstances, cannot Under these we Indeed, happened, joined it judge his discretion in de- say the abused are enrolled Drake two *5 ciding that California had access to classes, parenting placed has been information, relevant greatest amount of here, and Utah social work- a shelter home child, so, in interests of the and the best assisting the transition to uni- ers are with appropriate the most and convenient was all under the fication of the —but litigate custody of forum to court. Had the supervision of a California alive, affirm. kept We action here the Utah been position in a to monitor would have been GARFF, J., concurs. have reactivated the the situation and could proceeding apparent it after became ORME, Judge (concurring and greatest actually have the that Utah dissenting): family. interest in W.D. and his analysis set I concur in the substantive considered, that, things Conceding all agree opinion in the main and with forth initially seemed the may have that the Utah court did not the conclusion jurisdiction, to exercise sensible forum deciding that Cali- abuse its “discretion nonetheless, the Utah court should greatest amount of had access to the fornia proceeding it merely stayed the before so, information, the. best relevant dismissing outright. I would rather than it child, the most interests dismissal, remand with the order of litigate vacate forum to priate and convenient merely stay- to enter an order disagree only instructions I of W.D.” per- proceeding, thereby ac- the Utah that dismissal of the Utah conclusion recited, falsely 78-45c-7(5) under my empha- provides, 2. The California Section 1. emergency peijury, penalty that W.D. was in sis: when it is an inconvenient If the court finds that September of another state is a forum and that a court filed there on forum, may appropriate dismiss the hearing it more proceedings, held on the Mick attended may stay proceedings or it day, The actual facts that same with counsel. custody proceeding upon be condition that hearing fortunately emerged the Cali- at the promptly in another named state commenced decision, fully informed of court made its fornia upon any be other conditions actually in Utah at the that W.D. was the fact just including proper, the condition that time. moving party stipulate his consent and sub- jurisdiction of the other forum. mission to the motion, to reas- Utah, on mit family. this Utah jurisdiction over
sert COMPANY, & EDWARDS
SMITH Compensation Workers’
and/or Petitioners, Fund OF COMMISSION
INDUSTRIAL Fund, UTAH, Injury Second Respondents. Youngfield, Douglas
No. 880114-CA. Appeals of Utah.
Court 8, 1989.
March *6 Wendy Moseley, B.
James R. Black petitioners. City, Lake Salt Dam, Wainwright, Mark E. R. Paul Van Boorman, City, Erie V. respondents. DAVIDSON,
Before GARFF and GREENWOOD, JJ.
DAVIDSON, Judge: Douglas Youngfield a claim for filed compensation benefits with the workers’ The administrative Commission. Industrial (A.L.J.) judge Young- law concluded that injury causally field’s related to his employment at & Edwards is- Smith Co. and sued an interim order tem- which awarded porary disability Young- total benefits to