Nevares v. Adoptive Couple

• Decision Date: 26 August 2016
• Docket Number: No. 20151073,20151073
• Citation: 384 P.3d 213,2016 UT 39
• Parties: Bobby Nevares, Appellant, v. Adoptive Couple, Appellees.
• Court: Utah Supreme Court

384 P.3d 213

2016 UT 39

Bobby Nevares, Appellant,

v.Adoptive Couple, Appellees.

No. 20151073

Supreme Court of Utah.

Filed August 26, 2016

Wesley D. Hutchins, West Jordan, for appellant

Brent D. Wride and Tiffany M. Brown, Salt Lake City, for appellees

Justice Pearce authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Durham, and Justice Himonas joined.

On Certification from the Court of Appeals

Justice Pearce

, opinion of the Court:

¶1 The district court dismissed Bobby Nevares's action seeking to establish his paternity in and custody of a child he believes to be his son (Child). Child's prospective adoptive parents (Adoptive Couple) intervened and moved to dismiss, arguing that the district court lacked subject matter jurisdiction under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See UTAH CODE § 78B–13–101

to –318. We agree that the district court does not have subject matter jurisdiction to resolve custody issues involving Child and therefore affirm the district court.

BACKGROUND

¶2 Nevares filed this action to establish paternity and custody over Child. Both Nevares and Mother were, and remain, residents of Colorado. According to Nevares, Child was conceived during a brief relationship with Mother. Nevares did not become aware of the pregnancy until August 2010—approximately six weeks before Child's birth. At that time, Mother informed Nevares of her intention to place Child for adoption. In mid-September, Nevares visited a Colorado-based adoption agency and indicated on an “Anticipated Relinquishment Reply Form” that he intended to contest the termination of his parental rights.

¶3 Mother knew of Nevares's efforts to preserve his parental rights. But Mother nevertheless travelled to Utah two days before Child's birth without telling Nevares. Mother gave birth to Child in Utah on September 29, 2010, and on the next day she relinquished Child to Adoption Center of Choice, a Utah-based adoption agency.

¶4 Nevares learned Child had been born in Utah, and filed a petition in Utah district court to establish paternity. The petition, filed in October 2010, asked for immediate and sole custody of Child. Mother and Adoption Center of Choice opposed his petition, arguing that Nevares was precluded from establishing paternity because Mother was underage at the time of Child's conception. See UTAH CODE § 78B–6–111

(depriving unmarried biological fathers of notice and any right to consent to an adoption involving a child conceived as the result of a sexual offense). They also argued that Nevares had failed to perfect his paternal rights as Utah law requires. See id. § 78B–6–122. The district court agreed with Adoptive Couple's second argument and dismissed the case.

¶5 Nevares appealed the dismissal. In Nevares v. M.L.S. (Nevares I ), 2015 UT 34, 345 P.3d 719

, this court affirmed the district court's ruling that Utah Code section 78B–6–111 did not apply because the allegedly illegal sexual activity occurred between two Colorado residents in Colorado and therefore lacked a sufficient nexus to Utah to allow the application of section 78B–6–111. Nevares I , 2015 UT 34, ¶ 28, 345 P.3d 719. We concluded that Nevares would not have been held liable for a sexual offense under Utah law and was therefore not prevented from petitioning the court to establish his parental rights to Child. Id. However, we also held that the district court erred when it dismissed the case based upon Nevares's failure to take certain affirmative steps to perfect his parental rights. We concluded that the district court erroneously interpreted Utah law to require Nevares to avail himself of opportunities to establish his paternity under Colorado law, when Colorado law permitted, but did not require, such steps. Id. ¶ 24. We held that the district court's interpretation of Utah Code section 78B–6–122 violated due process principles because “[i]f we construed Utah law to require Nevares to fulfill requirements not imposed on him by Colorado law, we would be holding him to a legal regime to which he could not reasonably have expected to be bound.” Id. ¶ 25. We therefore reversed the district court's dismissal order and remanded for further proceedings. Id. ¶ 47.

¶6 At the time of the Nevares I

decision, neither this court nor Nevares knew Child's whereabouts. Adoptive Couple first appeared in the Utah litigation after remand from this court when Adoptive Couple intervened in Nevares's action to request that his suit be dismissed. Invoking the UCCJEA, Adoptive Couple argued that Illinois, and not Utah, had subject matter jurisdiction to make custody determinations concerning Child. See UTAH CODE § 78B–13–201. Adoptive Couple's district court pleadings brought to light a number of facts that the Utah courts, and presumably Nevares, had not previously known.

¶7 Adoptive Couple explained that Adoption Center of Choice placed Child with Adoptive Couple on the same day that Mother relinquished her rights to Child. Adoptive Couple had travelled to Utah from Illinois to accept Child into their lives. They remained in Utah for another week before they returned to Illinois with Child. Child was living in Illinois when Nevares filed his Utah paternity suit on October 18, 2010. Except for the first eight days of his life, Child has resided in Illinois. Adoptive Couple filed an adoption action in an Illinois court on November 4, 2010, and that same day the Illinois court issued an interim custody order granting them physical custody of Child. Adoptive Couple's Illinois adoption case remains pending.

¶8 After Adoptive Couple made the district court aware of this factual history, the district court granted their motion to dismiss. The district court concluded that Utah was not Child's home state for purposes of Utah Code section 78B–13–201

, as Child was not living in Utah with a parent or person acting as a parent at the time Nevares filed his action. The district court therefore dismissed the case for lack of subject matter jurisdiction. The district court also determined that even if Utah had been Child's home when Nevares filed his action, Utah is no longer a convenient forum to resolve the dispute. For this reason, the district court ruled that even if it possessed jurisdiction, it would decline to exercise it. See id. § 78B–13–207.

¶9 Nevares appeals.

ISSUES AND STANDARD OF REVIEW

¶10 Nevares raises multiple arguments challenging the district court's dismissal order, but we resolve his appeal on the threshold question of Utah's subject matter jurisdiction under the UCCJEA.¹ “ ‘Whether a district court has subject matter jurisdiction is a question of law’ and we review the district court's determination for correctness.” Summerhaze Co. v. Federal Deposit Insurance , 2014 UT 28, ¶ 8, 332 P.3d 908

(citation omitted).

ANALYSIS

¶11 The UCCJEA closely follows a model act that has been adopted in Utah, Illinois, and every other state except for Massachusetts. See UNIFORM CHILD CUSTODY JURISDICTION & ENFORCEMENT ACT , 9 U.L.A. 655 (1997).² The model act exists to “[a]void jurisdictional competition and conflict with courts of other States in matters of child custody.” Id. § 101 cmt.; see also Stephens v. Fourth Judicial District Court , 331 Mont. 40, 128 P.3d 1026, 1029 (2006)

(identifying one of the UCCJEA's primary purposes as “avoiding the jurisdictional competition and conflict that flows from hearings in competing states when each state substantively reviews subjective factors, such as ‘best interest,’ for purposes of determining initial jurisdiction.”). To that end, the UCCJEA promotes a framework wherein a single state is vested with jurisdiction to make child custody determinations and a uniform set of rules to determine which state is best positioned to adjudicate custody disputes. See People ex rel. A.J.C. , 88 P.3d 599, 615 (Colo.2004)

(“Because the jurisdictional provisions of the UCCJEA were crafted specifically to preclude simultaneous claims of jurisdiction by more than one state, it is clear under its provisions that a single jurisdiction has priority of jurisdiction.”).

¶12 The UCCJEA centers much of its analytical weight on the concept of “an initial child custody determination.” See UTAH CODE § 78B–13–201(1)

. Before a court can make an initial child custody determination, it must assess whether it has jurisdiction under the UCCJEA. Id. § 78B–13–201(1) ; see also id. § 78B–13–102(8) (“ ‘Initial determination’ means the first child custody determination concerning a particular child.”). Once a state makes an initial child custody determination, that state obtains exclusive, continuing jurisdiction, which exists until that state relinquishes or is divested of its exclusive jurisdiction in accordance with the UCCJEA or a similar act. See id. § 78B–13–202.

¶13 Despite the fact that this case has been pending in Utah for more than five years, it appears that Utah has never made an initial child custody determination with respect to Child. At least no party has directed this court's attention to any order that the UCCJEA would deem to be an initial custody determination. So, when Adoptive Couple moved to dismiss, the question for the district court was whether it had jurisdiction to make an initial custody determination.³

¶14 Utah Code section 78B–13–201

defines when a Utah court “has jurisdiction to make an initial child custody determination.” UTAH CODE § 78B–13–201(1). Except in circumstances implicating temporary emergency jurisdiction, a Utah court can make an initial child custody determination only if

(a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(b) a court of another state does not have jurisdiction under Subsection (1)(a), or

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