B.W.D. v. B.W. (In re Interest of S.W.)

• Decision Date: 17 July 2017
• Docket Number: No. 20160295,20160295
• Citation: 424 P.3d 7
• Parties: IN the INTEREST OF S.W. and D.W., persons under the age of eighteen. B.W.D., Appellant, v. B.W., Appellee.
• Court: Utah Supreme Court

424 P.3d 7

IN the INTEREST OF S.W. and D.W., persons under the age of eighteen.B.W.D., Appellant,

v.B.W., Appellee.

No. 20160295

Supreme Court of Utah.

Filed July 17, 2017

Matthew Hilton, Layton, Robert A. Alsop, North Salt Lake, for appellant.

J. Jarom Bishop, Ogden, for appellee.

Martha Pierce, Salt Lake City, for the Office of the Guardian ad Litem.

Justice Himonas authored the opinion of the Court, in which Chief Justice Durrant, Justice Durham, and Judge Orme joined.

On Certification from the Court of Appeals

Justice Himonas, opinion of the Court:

INTRODUCTION

¶ 1 B.W.D. appeals from a juvenile court order dismissing her petition for custody of her younger sisters, S.W. and D.W., and a separate order dismissing an Order to Show Cause. We reverse the juvenile court's dismissal of both orders and remand, holding that the court misapplied the Utah Uniform Child Custody Jurisdiction and Enforcement Act and deprived B.W.D. of due process.

BACKGROUND

¶ 2 Custody issues in this case began in 2004 when S.M.W. (Mother) and B.W. (Father), the parents of B.W.D. and her younger sisters, filed for divorce. The Fourth District Court of Utah originally awarded Mother custody in 2007, but transferred custody to Father in 2010. With the district court's approval, Father moved to Kansas in 2013, taking the younger sisters with him. B.W.D., who had turned eighteen before the move, remained in Utah.

¶ 3 The younger sisters visited Mother in Utah in May 2014. In June 2014, B.W.D. filed a child welfare petition alleging that Father had abused and neglected her younger sisters and asking the juvenile court to transfer custody of the two back to Mother. On July 2, 2014, the court imposed a temporary restraining order against Father and appointed a Guardian ad Litem to the case, but it later dismissed the order. The younger sisters were supposed to return to Father in Kansas in July 2014, but they ran away and eventually moved in with Mother. On February 18, 2016, after Mother's arrest for custodial interference, a district court in Kansas issued requisition orders for the younger sisters under the Interstate Compact for Juveniles. One month later, the Utah juvenile court issued an order granting the requisition orders, and it denied a petition for an emergency stay from Mother and B.W.D. Utah then returned the younger sisters to Kansas.

¶ 4 On March 24, 2016, B.W.D. filed an amended petition alleging abuse and neglect. This time, instead of asking the court to transfer custody of the children to Mother, B.W.D. petitioned the court to transfer custody solely to her. Without giving B.W.D. the opportunity to be heard, the juvenile court sua sponte dismissed that petition on March 31, 2016. In doing so, the court stated that Utah was an inconvenient forum and that it could therefore decline to exercise its jurisdiction because "[a] Kansas court is the more appropriate forum to address the allegations asserted and issues raised in petitioners' child welfare/custody action." See UTAH CODE § 78B-13-207(1) (a child welfare petition may be dismissed if "a court of another state is a more appropriate forum"). But the juvenile court based much of its decision on Utah Code section 78B-13-208, which provides that a court must decline jurisdiction if it would have jurisdiction only "because a person invoking the jurisdiction has engaged in unjustifiable conduct." Id. § 78B-13-208(1).¹ Without analyzing whether section 208 was a proper basis for terminating jurisdiction in a case where the court already had jurisdiction before any "unjustifiable conduct" allegedly occurred, the juvenile court dismissed B.W.D.'s petition under this section. But the court did not conclude that B.W.D. herself had engaged in unjustifiable conduct. Instead, based on Mother's arrest for custodial interference, the juvenile court stated that "[i]t is clear that Mother has engaged in unjustifiable conduct and should not be allowed to invoke the Court's jurisdiction." Without giving B.W.D. an opportunity to be heard, and with no direct evidence in support of its determination, the court then went on to impute Mother's misconduct to B.W.D., stating that "[a]bsent ... any statements whether or not [B.W.D.] knew of the girls' whereabouts while they were in hiding with Mother or that [B.W.D.] was not an accomplice in hiding her sisters," B.W.D. could not "benefit from invoking jurisdiction of this Court simply by dropping Mother as a co-petitioner."² The juvenile court therefore declined to exercise jurisdiction over the custody and welfare matter and dismissed the petition, stating that the matter could be brought in a Kansas court instead. See id. § 78B-13-208(1)(c) (a court may dismiss a petition under section 208 only if some other state is capable of asserting jurisdiction over the custody proceeding).

¶ 5 On April 1, 2016, the Guardian ad Litem filed a motion for an order to show cause (OSC) regarding Father's conduct after Kansas's requisition orders. The juvenile court dismissed the OSC on April 14, 2016, stating that it lacked jurisdiction regarding the welfare of the younger sisters as a result of its disposition of B.W.D.'s petition.

¶ 6 On April 15, 2016, B.W.D. filed a notice of appeal from both the order dismissing the custody and welfare petition and the order dismissing the OSC. The court of appeals then certified the case to the Utah Supreme Court under Utah Code section 78A-3-102(3)(b). The Guardian ad Litem filed a brief, but Father, for reasons unknown to us, declined to file an appellate brief.³

STANDARD OF REVIEW

¶ 7 We review a court's determination of jurisdiction for correctness, granting no deference to the lower court. In re A.C.M. , 2009 UT 30, ¶ 6, 221 P.3d 185. We will uphold a juvenile court's factual findings underpinning a jurisdictional determination unless they are clearly erroneous. In re W.A. , 2002 UT 127, ¶ 8, 63 P.3d 607.

ANALYSIS

¶ 8 B.W.D. argues that the juvenile court deprived her of due process because it did not provide her an opportunity to be heard before it made its custody determination. We are in complete agreement and reverse: the juvenile court erred in its analysis of whether Utah should retain exclusive, continuing jurisdiction over the custody matter for the younger sisters and, therefore, erred in dismissing B.W.D.'s petition. And because the court relied on its disposition of the petition to dismiss the OSC, our holding necessarily results in our reversal of that order too.

¶ 9 Utah has adopted a version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which aims to "[a]void jurisdictional competition and conflict with courts of other States in matters of child custody." Nevares v. Adoptive Couple , 2016 UT 39, ¶ 11, 384 P.3d 213 (alteration in original) (citation omitted). To accomplish this goal, the UCCJEA sets out a detailed analytical framework for courts to follow in determining whether they may assert or decline jurisdiction over a child custody matter.

¶ 10 Because a Utah court validly made the original custody decision for the younger sisters after their parents' divorce, Utah enjoys jurisdiction over all child custody determinations involving the siblings. See UTAH CODE § 78B-13-202(1) (providing that when a court of this state makes an initial custody determination, it enjoys "exclusive, continuing jurisdiction over the determination" until certain conditions are met). This jurisdiction is exclusive and continuing until the court "determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships," id. § 78B-13-202(1)(a), or that "neither the child, nor a parent, nor any person acting as a parent presently resides in this state," id. § 78B-13-202(1)(b). However, a court may "decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum." Id. § 78B-13-207(1). But it may dismiss a petition on this basis only after giving all parties the opportunity to brief the issue. Id. § 78B-13-207(2). Even then, dismissal is appropriate only once "a child custody proceeding [has been] commenced in another designated state." Id. § 78B-13-207(3).

¶ 11 Apart from a finding of an inconvenient forum, a court may also abdicate jurisdiction if the court "has jurisdiction under this chapter because a person invoking the jurisdiction has engaged in unjustifiable conduct." Id. § 78B-13-208(1). In that case, the court shall decline to exercise its jurisdiction unless all parents and guardians consent to the court's jurisdiction, another court with jurisdiction determines that the Utah court is the more appropriate forum, or no other state would have jurisdiction. Id.

¶ 12 Here, the juvenile court determined that "there appears to be substantial evidence in Utah regarding [the younger sisters'] protection, training, and personal relationships" and therefore exclusive, continuing jurisdiction in Utah may be proper. But, citing Utah Code section 78B-13-202(2), the court held that it "may decline to exercise its jurisdiction if the court determines it is an inconvenient forum." This was error. An inconvenient-forum analysis is governed by Utah Code section 78B-13-207 and requires the court to "allow the parties to submit information" and consider all relevant factors regarding whether it is appropriate for a court of another state to exercise jurisdiction. Id. § 78B-13-207(2). The court did none of this. Accordingly, to the extent that the court declined jurisdiction under section 207, its decision was in error.

¶ 13 The juvenile court also erred in making a determination of unjustifiable conduct under Utah Code section 78B-13-208(1). The juvenile court stated that "[i]t is...