Adoption of B.O., Matter of

• Decision Date: 31 October 1996
• Docket Number: No. 960010-CA,960010-CA
• Citation: 927 P.2d 202
• Parties: In the Matter of the ADOPTION OF B.O., a minor. P.O., Appellant, v. S.G. and C.G., Appellees.
• Court: Utah Court of Appeals

Page 202

927 P.2d 202

In the Matter of the ADOPTION OF B.O., a minor.

P.O., Appellant, v. S.G. and C.G., Appellees.

No. 960010-CA.

Court of Appeals of Utah.

Oct. 31, 1996.

Russell Y. Minas, Salt Lake City, for Appellant.

Ronald C. Wolthuis, Salt Lake City, for Appellees.

Before DAVIS, Associate P.J., and BILLINGS and WILKINS, JJ.

OPINION

DAVIS, Associate Presiding Judge:

Appellant challenges the trial court's order terminating his parental rights in the context of an adoption proceeding. We affirm.

BACKGROUND

Born on April 16, 1984 in Morgan, Kentucky, B.O. is the natural daughter of appellant and L.M. Appellant and L.M. were married and living together at the time of B.O.'s birth; however, the couple separated approximately four months later. Thereafter, L.M. assumed physical custody of B.O. and relocated to Sandy, Utah. Appellant eventually relocated to California. L.M. and appellant divorced, and appellant was ordered to pay $25.00 per week in child support.

In Sandy, B.O. resided with her maternal grandparents and her aunt, appellee S.G., after L.M. relinquished physical custody of B.O. During this time, S.G. provided B.O.'s day-to-day care. In December 1991, appellees S.G. and C.G. married. At that time, S.G. moved from her mother's home to live with appellee C.G.; B.O. continued living with her maternal grandmother. Shortly thereafter, once appellees had settled into their new home, B.O. moved in with appellees and has been in their care and custody ever since. Thus, S.G. has been B.O.'s primary caretaker for the past eleven years, meeting B.O.'s day-to-day needs. Moreover, S.G. and C.G. have now filled parental roles for B.O. for nearly three years.

At all relevant times, appellant had knowledge of both an address and telephone number through which he could contact B.O. Moreover, appellees, as well as B.O.'s maternal grandparents, have encouraged B.O. to maintain a relationship with appellant. However, over the past eleven years, appellant has visited B.O. on only two occasions. Appellant's most recent visit occurred in 1992 when L.M. took B.O. to California to see her father. ¹ Thus, in the eleven years following his divorce from L.M., appellant initiated only one visit with B.O. At trial, appellant testified that he believed one visit every several years, coupled with one or two phone calls per year, was sufficient to adequately provide B.O. with a father figure.

In addition to this infrequent visitation schedule, appellant placed but one phone call or mailed one card to B.O. every four to six months. Appellant's Christmas and birthday correspondence to B.O. routinely arrived late, if at all. Appellant also made numerous unfulfilled promises to visit B.O. and/or send her special gifts without ever explaining his reasons for breaking them. Moreover, appellant concedes that he is at least $2000 in arrears of his child support obligation. ² He also had not paid child support as ordered under his divorce decree for at least two years, and as many as five years, prior to the trial on this matter. ³ Appellant resumed paying child support in June 1995, at least three months after the adoption petition was filed in the present case. Finally, appellant testified that he is unaware of who has been responsible for B.O.'s care during the past eleven years.

Appellees filed their Petition for Adoption on February 23, 1995. Appellant accepted service of the petition on March 28, 1995. On May 30, 1995, appellant filed a notice of opposition to the petition and a petition for child custody, thereby submitting to the jurisdiction of the Third District, Salt Lake Department. With proper notice having been given, a hearing was held on October 10, 1995 to determine whether appellant's parental rights should be terminated. At the hearing, appellant was present and represented by counsel when he withdrew his petition for child custody. After hearing testimony and receiving exhibits into evidence, the trial court took the matter under advisement. On October 31, 1995, the trial court issued its Memorandum Decision terminating appellant's parental rights. On November 29, 1995, the trial court entered its findings of fact and conclusions of law. Based on the facts adduced at trial, the trial court's conclusions of law stated:

1. [Appellees] have proven by clear and convincing evidence that [appellant] has made only token efforts to support and/or communicate with [B.O.];

2. [Appellant] is an unfit parent as provided in U.C.A. § 78-3a-401 et seq. (1953) as amended;

3. It is in the best interests and welfare of [B.O.] that the parental rights of [appellant] be terminated.

Accordingly, on November 29, 1995, the trial court also entered an order terminating appellant's parental rights. Finally, the trial court entered a Decree of Adoption on December 7, 1995, declaring appellees the legal parents of B.O. and relieving appellant "of any parental duties and all responsibilities for [B.O.]." This appeal followed.

ISSUES

Appellant raises three issues for our consideration: ⁴ (1) Whether the trial court improperly applied Utah Code Ann. § 78-3a-407 (Supp.1995) rather than Utah Code Ann. § 78-30-5 (Supp.1994) (repealed 1995) in terminating his parental rights; (2) whether the trial court's findings of fact are insufficient to support its determination that appellant is an unfit parent or that he only made token efforts to maintain a relationship with B.O.; and (3) whether Utah Code Ann. § 78-3a-407(6) (Supp.1995) unconstitutionally permits the termination of parental rights solely on the basis of token efforts to either communicate with or support a child.

ANALYSIS

I. Applicable Statute

Appellant initially argues that the trial court applied an improper legal standard in terminating his parental rights. The original petition in this matter was filed in February 1995. Appellant contends:

At that time the standard for determining whether [appellant's] consent was necessary to the adoption was governed by Utah Code Ann. § 78-30-5. However, in the 1995 legislative session, that provision was repealed, replacing the same, effective May 1, 1995, with Utah Code Ann. § 78-3a-407, a broader reaching standard. The Court should have but failed to apply the standard in effect when the Petition was filed.

However, at trial, when notified by the court that the applicable termination criteria were codified at section 78-3a-407, instead of section 78-30-5 upon which he had theretofore relied, appellant stated: "That's fine, because that goes directly to the abandonment issue, which was an argument that I was prepared to make today, was that 78-30-5 didn't go far enough.... We really should be looking at the standard implied, or the standard set forth in 78-[3a]-401, et seq." Appellant cannot both wholeheartedly support the application of a given statute at trial and then on appeal claim the court's application of that same statute was error. Because appellant failed to preserve the issue for appeal, his argument on the matter is without merit. Rasmussen v. Sharapata, 895 P.2d 391, 392 n. 2 (Utah App.1995).

However, this does not conclude our consideration of appellant's challenge. In State ex rel. R.N.J., 908 P.2d 345 (Utah App.1995), this court stated: "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.' " Id. at 349 (quoting James v. Preston, 746 P.2d 799, 801 (Utah App.1987)). This general rule is especially relevant where, as in this instance, factual determinations are at issue. Id. at 350. Nonetheless, as further noted in R.N.J., there are three exceptions to this rule: jurisdictional issues, plain error challenges, and exceptional circumstances challenges. Id. The latter two exceptions are not argued by appellant. Moreover, concerns over a child's best interests, which on occasion compel appellate courts to relax the requirements of the above given rule, are not paramount in this instance. ⁵ Id. (citing State ex rel. J.L.W., 900 P.2d 543, 549 (Utah App.1995)). Therefore, only the jurisdictional question remains.

During oral argument, appellant raised a jurisdictional challenge to the trial court's application of section 78-3a-407. Specifically, appellant argued that termination of parental rights cases brought under section 78-3a-407 are under the exclusive original jurisdiction of the juvenile court. Utah Code Ann. § 78-3a-16(2)(f) (Supp.1995) (repealed 1995) (current version at Utah Code Ann. § 78-3a-104(1)(e) (Supp.1996)), in effect at all times relevant to the hearing on this matter, provided:

(2) Except as otherwise provided by law, the juvenile court has exclusive original jurisdiction in proceedings:

....

(f) to terminate the legal parent-child relationship in accordance with Part 4, Termination of Parental Rights Act, including termination of residual parental rights and duties.

(Emphasis added.) Meanwhile, Utah Code Ann. § 78-30-4.16(1)(b) (Supp.1996), in effect at the time of the hearing, incorporates by reference section 78-3a-407 in granting district courts jurisdiction to "determine whether proper grounds for termination of [a] parent's rights exist and, if so, order that the parent's rights be terminated in accordance with the provisions of this chapter or Title 78, Chapter 3a, Part 4, Termination of Parental Rights Act." (Emphasis added.) Thus, at the time of trial, the trial court had concurrent jurisdiction over termination of parental rights cases decided pursuant to section 78-3a-407. Accordingly, because section 78-30-4.16 grants the trial court jurisdiction to decide section 78-3a-407 cases, appellant's challenge to the trial court's jurisdiction fails.

II. Trial Court's Findings Of Fact And Conclusions Of Law

Appellant next challenges several of the trial court's findings of fact. "We overturn findings of fact in a parental termination proceeding only if they are clearly erroneous.... To obtain a...