D.T. v. C.M. (In re S.Y.T.), 20100857–CA.

• Decision Date: 01 December 2011
• Docket Number: No. 20100857–CA.,20100857–CA.
• Citation: 267 P.3d 930,696 Utah Adv. Rep. 19,2011 UT App 407
• Parties: In the interest of S.Y.T., a person under eighteen years of age.D.T. and S.T., Appellants, v. C.M., Appellee.
• Court: Utah Court of Appeals

2011 UT App 407

267 P.3d 930

696 Utah Adv. Rep. 19

In the interest of S.Y.T., a person under eighteen years of age.D.T. and S.T., Appellants,

v.C.M., Appellee.

No. 20100857–CA.

Court of Appeals of Utah.

Dec. 1, 2011.

Michael Rawson, St. George, for Appellants.

Terry L. Hutchinson, St. George, for Appellee.

Martha Pierce, Salt Lake City, Guardian ad Litem.Before Judges DAVIS, McHUGH, and ROTH.

OPINION

DAVIS, Presiding Judge:

¶ 1 D.T. (Father) and S.T. (Mother) (collectively, Parents) appeal an order terminating their parental rights to S.Y.T. (Child) and granting custody to C.M., Child's half-sister (Sister). We affirm.

BACKGROUND ¹

¶ 2 Child was born in February 2000 and resided in Tennessee with Parents for the majority of her upbringing. Father is the biological parent of both Child and Sister, who are thirteen years apart in age. Father has a history of sexually abusing his children. He sexually abused his stepdaughter (Stepdaughter) for four years, ending when she was seventeen. On one occasion, Father's son (Son) inadvertently walked in on Father while he was abusing Stepdaughter. Father also abused Sister for an entire summer that Sister stayed with him when she was thirteen, just after Child was born.² On at least one occasion that summer, Mother, who is Sister's stepmother, facilitated the abuse of Sister by physically restraining her. Sister reported the abuse when she was sixteen and ceased visiting Father after that point.

¶ 3 Several years later, in 2006, Sister traveled to Tennessee from Utah to visit friends and check in on Child, at which time Mother asked Sister to take Child back to Utah for the summer. Sister agreed and cared for Child during that summer and then returned Child to Parents. In March 2007, Parents contacted Sister to request that she take Child again, this time for possibly a few years while Parents rectified problems with their housing situation. Sister agreed and moved Child into her Utah home in April 2007, where Child remained until January 2008. Upon Child's move to Utah, Sister petitioned the Utah district court for guardianship of Child. Parents consented to the guardianship, and the district court approved the appointment on May 3, 2007. The guardianship was to remain in effect “until ... [C]hild reaches the age of majority or until changed by Order of the Court.”

¶ 4 Approximately five months later, on October 18, 2007, Parents petitioned the same Utah court to revoke the guardianship order, explaining that they were rescinding their consent to the guardianship appointment because Sister refused their requests to return Child to them. The district court granted Parents' motion to terminate guardianship on November 8, 2007, and ordered Sister to return Child to Parents. On November 20, 2007, Sister submitted a petition for a protective order, stating that she was “concerned for the safety of ... [C]hild” in light of Father's history of sexual abuse and Mother's conduct in support of that abuse. On December 31, 2007, in the period between the filing and ruling on the first protective order, Sister filed a petition to terminate Parents' parental rights (the Termination Petition). The first protective order petition was transferred from the district court to the juvenile court where it was denied on January 9, 2008, based on the juvenile court's determination that no exigency existed. Consequently, Sister returned Child to Parents in early January 2008 and filed a second protective order petition on January 11, 2008.³ The second protective order petition was granted, and Child was returned to Sister around February 2008.

¶ 5 Parents filed a motion to dismiss the Termination Petition and an answer to the Petition, arguing that the Utah courts lacked subject matter jurisdiction under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UUCCJEA),⁴ that Utah was an inconvenient forum, that Parents never physically or sexually abused Sister, and that Sister beat Child on at least one occasion. Parents also alleged that Sister provided them with false contact information and hid Child from Parents with the intent to take Child from them permanently. In support of that assertion, Parents stated that they drove to Utah between May and June 2007 to “try and locate [Sister] and [Child,] but it became apparent that [Sister] was hiding [Child] from [them] and [they] were unable to find them.” Parents' motion to dismiss the Termination Petition also stated that they filed a document rescinding Sister's guardianship appointment on June 1, 2007, with a court in Tennessee. Parents claim their recision was faxed to the Utah Fifth District Court and to the police department in St. George, Utah, on June 1, 2007.

¶ 6 In a hearing on Parents' motion to dismiss the Termination Petition, the Utah juvenile court determined that Utah is the home state of Child and that Child has significant connections to Utah, but that Utah is nonetheless an inconvenient forum (the Inconvenient Forum Order). The juvenile court stated, “Tennessee will become the State of original jurisdiction[, and i]n the event the State of Tennessee declines, the judges from both Courts will talk.” The juvenile court gave Sister ninety days to file an action in Tennessee and concluded that Utah would maintain “emergency jurisdiction under Utah Code [section] 78B–13–204” until Tennessee took jurisdiction. The Utah juvenile court judge contacted the Tennessee judge assigned to the case after Sister filed a termination petition in that state. In the telephone conversation between the courts, for which the parties were not present, the Tennessee judge “declined jurisdiction, finding that the primary nex[u]s for the issues was in the State of Utah.” The communication was memorialized in a memorandum authored by the Utah court and an order issued by the Tennessee court, both of which were promptly mailed to the parties. See generally Utah Code Ann. § 78B–13–110(4) (2008) (requiring the courts to make a record of the communication, to promptly inform the parties of the communication, and to grant the parties access to the record made); id. § 78B–13–110(5) (defining “record” in this context to include a memorandum “made by a court after the communication”). The record of the communication indicates that the courts “discussed the general nature of the case and the overall jurisdiction question.... [The Utah court] ... explained that [it] had previously ruled that the case should be heard in Tennessee as the most convenient forum[ ] for the reasons set forth in [its] written ruling on the issue.”

¶ 7 The Termination Petition then proceeded in Utah and was heard over the course of a three-day bench trial in 2010. The juvenile court heard testimony from Stepdaughter, Sister, Father, Mother, and Son as to the allegations of sexual abuse. Sister and her husband each testified that they intended to adopt Child if Parents' parental rights were terminated. The juvenile court ultimately found that Parents had

sexually abused [Stepdaughter] and [Sister]. Despite the sincere denials by Father and Mother, and the other evidence which they submitted, the Court [was] persuaded by the credible testimony of [Sister], [Stepdaughter,] and [Son]. The Court heard testimony by these three witnesses that they either witnessed or experienced sexual abuse by Father and/or Mother and the Court [found] that their testimony carries the day.

The juvenile court then concluded that

[t]he sexual abuse committed by Father and Mother against a sibling constitutes neglect within the definition of the Juvenile Court Act because of the risk of harm to [Child]. Utah Code Ann. § 78A–6–105(25)(a)(iv) [ (Supp. 2011) ]. Neglect is a ground for termination of parental rights. [ Id.] § 78A–6–507(1)(b) [ (2008) ]. In addition, Father and Mother are unfit parents based on the sexual abuse, also a ground for termination. [ Id.] § 78A–6–507(1)(c).

The juvenile court then considered what was in the best interest of Child, weighing the foregoing with the fact that Sister and her husband were willing to adopt Child if the Termination Petition was granted. It concluded that Child faced a great enough risk of being sexually abused if left in the care of Parents that it was in Child's best interest that Parents' parental rights be terminated.

¶ 8 Parents then filed a motion pursuant to rule 59 of the Utah Rules of Civil Procedure to amend the findings or for a new trial (the Rule 59 Motion), contending that the sections of the Juvenile Court Act that the juvenile court relied on to terminate their parental rights “do not exist or do not apply,” that the juvenile court lacked personal jurisdiction over them, and that the juvenile court's findings were not supported by sufficient evidence. The juvenile court admitted that its citations to the Juvenile Court Act contained errors, and the court provided revised text to clarify the errors in the original order. The court rejected Parents' personal jurisdiction argument, explaining that lack of personal jurisdiction is an affirmative defense that was waived when Parents failed to argue it in their answer or by motion. Lastly, the juvenile court rejected Parents' insufficiency challenge, stating that there was sufficient evidence to support the court's findings. Parents appeal from the juvenile court's order terminating their parental rights and from its denial of the Rule 59 Motion.

ISSUES AND STANDARDS OF REVIEW

¶ 9 On appeal, Parents argue that Utah lacked subject matter jurisdiction over Child. Alternatively, Parents argue that the juvenile court erroneously determined that Utah was Child's home state under the UUCCJEA because Child was illegally retained in Utah by Sister. “Both jurisdictional questions and questions of statutory interpretation are questions of law that we review for correctness.” Meyeres v. Meyeres, 2008 UT App 364, ¶ 3, 196 P.3d 604 (internal quotation marks omitted).

¶ 10 Parents next argue...