In re Adoption of SLF

• Decision Date: 07 June 2001
• Docket Number: No. 990750-CA.,990750-CA.
• Citation: In re Adoption of SLF, 27 P.3d 583, 2001 UT App 183 (Utah App. 2001)
• Parties: In the matter of the ADOPTION OF S.L.F., a minor. T.S., Appellee, v. L.F., P.P., and S.L.F., Appellants.
• Court: Utah Court of Appeals

27 P.3d 583

2001 UT App 183

In the matter of the ADOPTION OF S.L.F., a minor.

T.S., Appellee, v.L.F., P.P., and S.L.F., Appellants.

No. 990750-CA.

Court of Appeals of Utah.

June 7, 2001.

Kathleen M. McConkie, Salt Lake City, for Appellants.

Randy S. Ludlow, Salt Lake City, for Appellee.

Before BENCH, BILLINGS, and DAVIS, JJ.

OPINION

BILLINGS, Judge:

¶ 1 L.F. (Mother), P.P. (Grandmother) and S.L.F. (Child) appeal the trial court's ruling that Grandmother's adoption of Child does not terminate T.S.'s (Father) parental rights.We affirm.

BACKGROUND

¶ 2 In 1996Mother became pregnant as a result of a sexual relationship with Father.During the pregnancy, Father gave Mother money and purchased clothing, diapers, a changing table, and other items for Child.

¶ 3 Following Child's birth on March 26, 1997, Mother and Child resided with Grandmother in Davis County.On April 21, 1997, Grandmother filed an adoption petition, accompanied by Mother's consent, in Third District Court in Salt Lake County.Child's living conditions did not change after the petition was filed.In fact, Mother and Child have always resided with Grandmother, and due to health problems, Mother does not work and has always taken care of Child.

¶ 4 When the adoption petition was filed, Father also resided in Davis County.However, he was not told about the adoption petition or Mother's consent, and Mother and Grandmother permitted him to visit Child regularly, on average twice per month.

¶ 5 No actions were taken to complete the adoption until January 12, 1998, when Grandmother filed a motion for a change of venue to transfer the petition to Second District Court in Davis County.On February 9, 1998, that court granted the petition and entered an adoption decree.Sometime in February, Mother told Father about the adoption; however, Mother and Grandmother continued to permit Father to visit Child until early July 1998.

¶ 6 In addition to visiting Child, beginning in April 1997, Father voluntarily paid $165.00 per month in child support.In December 1997, Father received a raise and increased the support to $175.00.He made monthly payments until February 1998, when Mother refused further payments.Father also offered to place Child on his health insurance, but Mother refused his offer.

¶ 7 On September 15, 1998, Father filed a complaint alleging various fraud claims and that the adoption was a sham.The complaint demanded that the adoption be set aside, that Father be deemed Child's natural father, and that he be given parental rights.Appellants filed a motion to dismiss, but following a hearing, the trial court denied the motion.

¶ 8 Following a trial on Father's complaint, the trial court ruled the petition filed in Third District Court was improper because Utah's Adoption Statute(Adoption Statute) requires an adopting party to file the adoption petition in the district where the adopting party resides.Therefore, the trial court concluded Child was "placed for adoption" under the Adoption Statute after she was six months old, when the petition was transferred to Second District Court, the proper court.Because Mother and Child have continuously resided with Grandmother, the trial court also concluded Father was never put on notice that Child was "placed for adoption" as the statute contemplates.Furthermore, the trial court found that Father had established a "substantial relationship" with Child, given her age, by visiting her regularly under restrictions placed on him by Grandmother and Mother.The trial court also found that Father had assumed responsibility for Child by providing financial support during Mother's pregnancy and paying child support.The trial court therefore concluded the adoption was not final as to Father.Following the trial court's ruling, Father filed for and was awarded visitation in a paternity action.

ISSUES AND STANDARDS OF REVIEW

¶ 9Appellants argue they were denied due process because they were prepared to defend against fraud claims, but the trial court relied instead on compliance with the Adoption Statute to invalidate the adoption as to Father."Constitutional issues, including. . . due process, are questions of law which we review for correctness."In re K.M.,965 P.2d 576, 578(Utah Ct.App.1998).Appellants also argue the trial court improperly ruled Child was not "placed for adoption" until she was at least six months old, and therefore, Father was entitled to notice of the adoption.They further argue the trial court erred by permitting Father to contest a final adoption decree.These issues require statutory interpretation, which we review for correctness, giving no deference to the trial court.Seeid. at 579.

ANALYSIS

I.Due Process

¶ 10Appellants argue they were denied due process because the trial court effectively allowed Father to amend his complaint at trial to seek relief under the Adoption Statute.Issues not expressly raised in the pleadings may be tried by express or implied consent.SeeUtah R. Civ. P. 15(b).Although "[a]trial court may not base its decision on an issue that was tried inadvertently[,]"Colman v. Colman,743 P.2d 782, 785(Utah Ct.App.1987)(quotations and citation omitted), if an issue has been "fully tried, a court may decide the issue and deem the pleadings amended even if the issue was not originally pleaded."Shinkoskey v. Shinkoskey,2001 UT App 44, ¶ 6 n. 2, 19 P.3d 1005(citingFisher v. Fisher,907 P.2d 1172, 1176(Utah Ct.App.1995)).So long as the parties have "notice that a particular issue is being considered by a court" and that notice is "given sufficiently in advance of the proceeding to permit preparation," due process is satisfied.In re K.M.,965 P.2d 576, 579(Utah Ct.App.1998)(quotations and citations omitted).

¶ 11 The record shows Appellants had adequate notice that compliance with the Adoption Statute was at issue and the issue was fully tried.Father's complaint alleges Child's adoption was a sham with no purpose other than to prohibit him from acting as her natural father.Among other relief, the complaint requests that the adoption be set aside.In response, Appellants filed a motion to dismiss in which they argued the Adoption Statute does not permit adoptions to be set aside due to fraud.They also analyzed Father's failure to comply with Utah Code Ann. § 78-30-4.14(2)(b)(1996), which specifies the requirements an unmarried biological father must meet to be entitled to notice of an adoption when a child is "placed for adoption" before the child is six months old.Father responded by filing a memorandum in opposition in which he argued Child was never "placed for adoption" and analyzed his compliance with the requirements of Utah Code Ann. § 78-30-4.14(2)(a)(1996), which specifies the requirements an unmarried biological father must meet to be entitled to notice when a child is "placed for adoption" after the child is six months old.In addition to these pleadings, the transcript of the hearing on the motion to dismiss establishes Appellants were aware that compliance with the Adoption Statute would be tried.Moreover, at the beginning of trial, the court noted that based on the hearing on the motion to dismiss, filings and proposed findings of fact and conclusions of law, the issue the case hinged on was whether Child was six months old when she was "placed for adoption."

¶ 12 Not only were Appellants aware that compliance would be tried, they also had sufficient opportunity to prepare and to meet the issue.During the hearing on the motion to dismiss, Appellants' counsel noted he would be negligent if he did not conduct discovery in regard to Father's support payments.He then asked the trial court to allow him to depose Father.The trial was held over two months later.At the beginning of the trial, the court and Father's counsel agreed that resolution of the case depended on when Child was "placed for adoption."Instead of objecting or asking for a continuance, Appellants' counsel told the courthe was prepared to proceed.Not until the hearing on the objections to the findings of fact and conclusions of law did associated co-counsel suggest Appellants' counsel was unprepared at trial.

¶ 13 In sum, the record shows Appellants were aware that compliance with the Adoption Statute was at issue and had the opportunity to prepare and to meet the issue.Therefore, Appellants were not denied due process.Moreover, because Appellants did not object when compliance was tried, we conclude the issue was tried by implied consent.

II."Placed for Adoption" Under Section 78-30-4.14

¶ 14Appellants argue the trial court erred in ruling Father was entitled to notice of Child's adoption because she was "placed for adoption" under the Adoption Statute after she was six months old, when the adoption petition was transferred to a court which had jurisdiction.Under the Adoption Statute notice of adoption proceedings must be given to "any person . . . whose consent or relinquishment is required under Section 78-30-4.14 unless that right has been terminated by waiver, relinquishment, consent, or judicial action."Utah Code Ann. § 78-30-4.13(2)(a)(Supp.2000).Section 78-30-4.14 requires consent from "an unmarried biological father of an adoptee . . . only if the requirements and conditions of Subsection [78-30-4.14(2)(a)] or [78-30-4.14(2)(b)] have been proven."Utah Code Ann. § 78-30-4.14(1)(f)(1996).An unmarried biological father must meet subsection 78-30-4.14(2)(a)'s requirements if a child is "placed for adoption" more than six months after birth and subsection 78-30-4.14(2)(b)'s requirements if the child is "placed for adoption" within six months of birth.Seeid. at § 78-30-4.14(2)(a)(b).

¶ 15The trial court ruled Child was "placed for adoption" approximately on January 12, 1998, when the adoption petition was transferred to Second District Court.Because Child was more than six months old, the court ruled subsection...