In re Adoption of A.F.K.
| Decision Date | 30 July 2009 |
| Docket Number | No. 20080581-CA.,20080581-CA. |
| Citation | 216 P.3d 980,2009 UT App 198 |
| Parties | In the matter of the ADOPTION OF A.F.K., a minor child. M.F.K. and C.K., Appellants, v. S.B. and K.B., Appellees. |
| Court | Utah Court of Appeals |
Steven Kuhnhausen, Salt Lake City, for Appellants.
Marlin J. Grant, Logan, for Appellees.
Martha Pierce, Salt Lake City, Guardian Ad Litem.
Before Judges GREENWOOD, BENCH, and ORME.
¶ 1 Appellants M.F.K. (First Mother) and C.K. (First Father) (collectively, First Parents)1 primarily focus on the narrow issue of whether the time period to establish prima facie abandonment under Utah Code section 78A-6-508(1)(a) begins to run at the time physical custody of a child is relinquished pursuant to a temporary guardianship arrangement or at the expiration of such an arrangement—removing from the abandonment analysis consideration of the time during which the temporary guardianship is in place. In light of our determination that Appellees K.B. (Second Mother) and S.B. (Second Father) (collectively, Second Parents) made a prima facie showing of abandonment under subsections (1)(b) and (1)(c) of section 78A-6-508, we do not definitively interpret the language of subsection (1)(a). We conclude, however, that a court may consider the actions or inactions of a parent while a child is in the care of another when making its determination whether abandonment occurred. Because First Parents did not take any action showing a continuing concern for A.F.K., or desire to be A.F.K.'s parents, during the six-month temporary guardianship and the five months thereafter, we affirm both the trial court's conclusion that First Parents abandoned A.F.K. and its various related rulings.
¶ 2 First Parents decided to adopt a foreign child and contacted Focus on Children (the Adoption Agency), which was run by Second Parents. Sometime thereafter, First Mother became pregnant with twins and gave birth in September 2005. Around the time the twins were born, First Parents received a referral for A.F.K., a child born in China in October 2004 and abandoned under a bridge. Because First Mother was caring for the newborn twins, First Father went to China alone in December 2005 to bring A.F.K. to her new home in Kansas. At the time A.F.K. arrived in First Parents' home, she was fourteen months old and had spent her entire life in an orphanage with multiple care-givers. In addition to A.F.K. and the two-month-old twins, First Parents had two other biological children, ages three and five when A.F.K. arrived.
¶ 3 A.F.K. did not transition well into First Parents' home. She showed jealous behavior and aggressive tendencies towards the twins—e.g., "biting, hitting, turning the twins over in their carriers and otherwise aggressively attacking the twins"—and seemed to need more one-on-one attention than First Parents could provide. First Mother also began suffering from postpartum depression. After about six months, First Parents determined it was best for A.F.K., as well as the remainder of their family, if A.F.K. went to live with another family.2
¶ 4 First Parents then contacted the Adoption Agency, and Second Parents agreed to personally care for A.F.K. temporarily. First Parents and Second Parents accordingly entered into a written temporary guardianship agreement in June 2006, whereby Second Parents agreed to act as A.F.K.'s temporary guardians for a little over six months. Under the terms of the agreement, Second Parents were to provide for all of A.F.K.'s needs during the six months, except First Parents continued to "be responsible for payment of medical insurance premiums associated with her current insurance coverage." The trial court found that the evidence, namely telephone calls and email between the two families, indicated that First Parents did not intend that this temporary placement be just for respite care but rather that they contemplated A.F.K. would be adopted by another family and that the temporary arrangement would facilitate that adoption.
¶ 5 At some point after Second Father flew to Kansas City, where First Father relinquished physical custody of A.F.K., First Parents expressed regret about their decision and Second Parents indicated a desire to adopt A.F.K. themselves. First Father responded to Second Parents' expressed desire, stating that it was originally First Parents' intention that Second Parents would help First Parents find another family to adopt A.F.K. Nonetheless, First Parents explained via email that they regretted relinquishing physical custody of A.F.K. because they had a particular type of adoptive family in mind for A.F.K. and wanted to actively participate in choosing her adoptive family. The type of couple they envisioned was one who had been unable to have kids of their own, who "desperately wanted" a child, and who would lavish love and attention on A.F.K., "mak[ing] her the central focus of the[ir] lives."3 First Father further requested that Second Parents return the original adoption papers so First Parents could proceed with their original plan for A.F.K.'s readoption, as a few adoptive couples matching their hoped-for description were available in Kansas.
¶ 6 The trial court, however, found that First Parents apparently changed their mind about whether Second Parents could adopt A.F.K. Indeed, an email dated August 4, 2006, from First Father to Second Father stated, "it's time to move forward with your formal adoption of [A.F.K.]." In response, Second Parents requested that First Parents "sign the necessary relinquishment and consent forms as soon as possible." First Parents never signed the requested forms.
¶ 7 The temporary guardianship agreement expired on December 31, 2006, and First Parents did not travel to Utah to retrieve A.F.K. or express a desire that A.F.K. be returned to them. On the contrary, "[First Father] sent an[other] email on January 23, 2007, copied to [First Mother], reconfirming their intent that [Second Parents] could adopt [A.F.K.]." First Parents did not notify Second Parents that they planned to take A.F.K. back to their home until they expressed that intent during a telephone call on May 20, 2007, about five months after the temporary guardianship expired. Second Parents, however, had already filed a petition for adoption in Utah's First District Court on November 29, 2006.4
¶ 8 After learning that First Parents wanted to regain custody of A.F.K., Second Parents sought an order of temporary custody in the First District Court. Second Parents also filed a petition for custody and termination of parental rights in juvenile court. The juvenile court ordered that the proceedings in both courts be consolidated in the First District Court, before Judge Low.5 After a hearing on July 16, 2007, Judge Low granted Second Parents temporary custody of A.F.K. First Parents were permitted visitation with A.F.K. and took full advantage of the opportunity, with First Mother visiting A.F.K. over thirty times while the matter was pending and First Father visiting five or six times.
¶ 9 During the course of the proceedings, an adoptive home study was performed to evaluate Second Parents' home as a suitable placement for A.F.K. The home study showed that A.F.K. had integrated well into Second Parents' home. She was not only attached to Second Parents but also to their other children who still lived in their home.6 The trial [c]ourt f[ound] that [A.F.K.] flourished in the home of [Second Parents]. When she first arrived . . ., she was underweight, appeared with leathery skin and dull/brittle hair and was in need of one-on-one attention. She developed her language skills and cognitive processes during this time (i.e.[, from] age 6 months to 3 years). [A.F.K.] was well-received and loved by everyone in [Second Parents'] home and they lavished their love and affections on her without regard from the first moment [Second Parents] received her and particularly after [First Father] gave the OK for [them] to go ahead and adopt her.
The court further found that A.F.K. had not developed the expected attachment or reattachment disorders after having been abandoned at birth, living in an orphanage for fourteen months, being in First Parents' care for six months, and living with Second Parents thereafter. The court found that "due to [Second Parents'] loving care and nurturing, [A.F.K.] was able to relate well in social settings, become comfortable around other adults, and was able to reach out and love others, even in nursery."
¶ 10 A bonding study was also performed to evaluate the relationship between A.F.K. and First Parents, and it revealed that a "positive attachment" between First Parents and A.F.K. existed. The study showed that she referred to First Father as "Hat Daddy" and to First Mother as "the Lady Mommy." She was comfortable with both parents, sought them out in uncomfortable situations, and was able to differentiate between First Mother's and First Father's personalities— for example, she knew what to expect from each parent during play time. She was also comfortable with their physical affection. The evaluator concluded that "[A.F.K.'s] behavior with [First Parents] was different [than] that of children who are observed with stepparents, siblings or extended relatives, and was consistent with children who are attached to their parents."7
¶ 11 The parties stipulated that the Chinese adoption would be considered valid for purposes of the proceedings, and Judge Low gave the stipulation its intended effect. After Judge Low retired and Judge Taylor took over the case, Judge Taylor expressed concern about the parties' stipulation that the Chinese adoption was valid because he did not think the adoption was ever finalized in the United States in accordance with federal or Kansas law. The court, however, engaged in the analysis necessary to determine whether "[First Parents'] parental rights, or whatever rights they may have had," should be...
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