Parentage Infant Child F. v. Ferebauer

• Decision Date: 19 November 2013
• Docket Number: No. 30768–9–III.,30768–9–III.
• Citation: 313 P.3d 451
• Parties: In re the PARENTAGE OF Infant Child F. and Unborn Child F., Child, Michael Hunter, Petitioner and Alleged Father, v. Michelle Ferebauer, Robert Ferebauer, Respondents.
• Court: Washington Court of Appeals

313 P.3d 451

In re the PARENTAGE OF Infant Child F. and Unborn Child F., Child,

Michael Hunter, Petitioner and Alleged Father,

v.Michelle Ferebauer, Robert Ferebauer, Respondents.

No. 30768–9–III.

Court of Appeals of Washington,

Division 3.

Nov. 19, 2013.

Laura Anne Carlsen, McKinley Irvin, Tacoma, WA, for Appellant.

Patrick Timothy Roach, Attorney at Law, Pasco, WA, Kenneth Wendell Masters, Masters Law Group PLLC, Bainbridge Island, WA, for Respondents.

BROWN, J.

¶ 1 Michael Hunter's appeal concerns the paternity of the child Michelle Ferebauer gave birth to in Utah and immediately placed for adoption there in 2010. After Mr. Hunter unsuccessfully petitioned to intervene in the Utah adoption proceedings and did not appeal, the Washington superior court ruled his paternity petition was moot. Mr. Hunter contends the court erred in dismissing his paternity petition, giving full faith and credit to the Utah ruling, failing to enter findings of fact and conclusions of law, failing to enter a temporary order requiring genetic testing, denying his request to add the adoptive parents as indispensable parties, and allowing Ms. Ferebauer to participate in the proceedings. We conclude the superior court did not err in giving full faith and credit to the Utah court when dismissing Mr. Hunter's paternity petition without written findings. Therefore, we do not reach his other contentions, and affirm.

FACTS

¶ 2 Ms. Ferebauer met Mr. Hunter at work in February 2009. She was married to Robert Ferebauer at the time, but developed an intimate relationship in May or June 2009 with Mr. Hunter. In July 2009, Ms. Ferebauer became pregnant with a March 2010 due date. She informed Mr. Hunter that he was the father. Ms. Ferebauer petitioned to dissolve her marriage with Mr. Ferebauer and moved in with Mr. Hunter.¹ Mr. Hunter has two daughters from a prior marriage whom he and his prior spouse share custody. The Ferebauer–Hunter relationship soon ended due to Ms. Ferebauer's fears that Mr. Hunter would not be a good father. Mr. Hunter encouraged an abortion, but Ms. Ferebauer preferred adoption. Mr. Hunter at first agreed to the adoption and signed a consent to adopt and relinquishment of parental rights in January 2010. Mr. Hunter and Ms. Ferebauer then disagreed over whether the adoption should be open and he revoked his consent.

¶ 3 In February 2010, Ms. Ferebauer took a leave of absence from work and decided to go to Utah. She e-mailed Mr. Hunter, notifying him that she was going to Utah to be with friends and have the baby. Mr. Hunter responded that he did not know if he would ever see her or the baby again, but he wished Ms. Ferebauer luck.

¶ 4 On March 2, 2010, Ms. Ferebauer gave birth to a baby girl in Utah. Both Mr. Ferebauer and Ms. Ferebauer relinquished their parental rights and gave consent for adoption. Under Utah law, Mr. Ferebauer was the presumed father. SeeUtah Code Ann. § 78B–15–204(1)(a) (“A man is presumed to be the father of a child if ... he and the mother of the child are married to each other and the child is born during the marriage.”). To overcome this presumption, the unmarried biological father must sign a voluntary declaration of paternity. Utah Code Ann. § 78B–15–302, –303. Utah terminated all parental rights and approved adoption of Infant F to Washington adoptive parents, with whom Infant F has resided since birth.

¶ 5 Mr. Hunter filed a petition to establish paternity in Utah on June 23, 2010. On July 15, 2010, he sought to intervene or set aside the Utah order terminating his parental rights. On December 20, 2010, the Utah court entered a memorandum decision denying Mr. Hunter's motion to intervene. The court found Mr. Hunter never submitted a voluntary declaration of paternity that he executed with the birth mother as required by Utah law. Thus, the court concluded Mr. Hunter did not overcome Mr. Ferebauer's presumption of paternity and therefore, did not have standing to intervene. On March 23, 2011, the Utah court entered a final order denying Mr. Hunter's motion to intervene. Mr. Hunter did not appeal the Utah final order.

¶ 6 On a somewhat parallel course, Mr. Hunter petitioned in Washington to establish paternity. He served his Franklin County petition on the Ferebauers on May 14, 2010. The Ferebauers responded to Mr. Hunter's Washington petition, requesting dismissal in light of the Utah proceedings. After a November 2010 court commissioner's ruling that Washington had jurisdiction under Washington's Uniform Child Custody Jurisdiction Act chapter 26.27 RCW and/or the federal Parental Kidnapping Prevention Act of 1980 (PKPA), 28 U.S.C. § 1738A, the Ferebauers requested revision by a superior court judge. The Ferebauers argued the court should grant full faith and credit because Utah had jurisdiction and was continuing to exercise it. In December 2010, Mr. Hunter sought to join the adoptive parents and the child to the Washington action, and he asked for DNA testing. On January 11, 2011, a superior court judge stayed the Washington action pending a final order in Utah. The Washington court lifted the stay on July 21, 2011.

¶ 7 Finally, on December 12, 2011, the trial court dismissed the action as moot given Utah's ruling and Mr. Hunter's failure to appeal that ruling. The judge clarified, “I kept the case open in the event that Utah reversed itself in their appellate process and encouraged counsel to go back down [t]here to Utah and pursue the arguments that they had. They didn't do that. They abandoned the process and did not exhaust their remedies in Utah, and so this is where I find myself now. There's no possibility that Utah is going to reverse themselves and so I think that makes this case moot at this point.” Report of Proceedings (Dec. 12, 2011) at 44–45. Mr. Hunter appealed.

ANALYSIS

¶ 8 The issue is whether the trial court erred in dismissing Mr. Hunter's paternity petition as moot. Mr. Hunter contends the court erred in giving Utah's order full faith and credit.

¶ 9 We generally review a decision to dismiss for abuse of discretion. Spokane County v. E. Wash. Growth Mgmt. Hearings Bd., 173 Wash.App. 310, 323–24, 293 P.3d 1248 (2013). Dismissal for mootness, however, is a question of law this court reviews de novo. Hilltop Terrace Homeowner's Ass'n v. Island County, 126 Wash.2d 22, 29, 891 P.2d 29 (1995). Additionally, issues involving whether another state's judgment should be given full faith and credit by our courts are issues of law and reviewed de novo. SCM Grp. USA, Inc. v. Protek Mach. Co., 136 Wash.App. 569, 574, 150 P.3d 141 (2007).

¶ 10 As an initial matter, Mr. Hunter contends the court erred in not entering findings of fact and conclusions of law when dismissing his petition. CR 52(a)(2)(B) states that findings and conclusions are required “with all final decisions in adoption, custody, and divorce proceedings.” But, under CR 52(a)(5)(B), findings and conclusions are not required for “decisions of motions under rules 12 or 56 or any other motion, except as provided in rules 41(b)(3) and 55(b)(2) [neither apply here]. Mr. Hunter petitioned to establish paternity. The matter was decided on motions with the court ultimately dismissing based on mootness. Accordingly, findings and conclusions were not required. Moreover, since our review is de novo, findingsand conclusions are unnecessary for our analysis.

¶ 11 A case is moot if the court cannot provide the basic relief originally sought or can no longer provide effective relief. Blackmon v. Blackmon, 155 Wash.App. 715, 719, 230 P.3d 233 (2010). If a sister state's judgment is given full faith and credit in that there is no relief available in Washington, then the Washington proceedings would be rendered moot. See J.E.W. v. T.G.S., 935 So.2d 954, 962 (Miss., 2006) (Mississippi court gave full faith and credit to South Carolina custody decision, rendering proceedings in Mississippi moot).

¶ 12 The full faith and credit clause of the United States Constitution, U.S. Const. art. IV, § 1, generally requires a state to give a foreign judgment at least the res judicata effect which would be accorded in the state which rendered it. Durfee v. Duke, 375 U.S. 106, 109, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963). Full faith and credit requires that once an action is pursued to a final judgment, that judgment is conclusive in every other court as it is in the court which rendered the judgment. State v. Berry, 141 Wash.2d 121, 127–28, 5 P.3d 658 (2000). “The Full Faith and Credit Clause provides a means for ending litigation by putting to rest matters previously decided between adverse parties in any state or territory of the United States.' ” Id. at 127, 5 P.3d 658 (quoting In re Estate of Tolson, 89 Wash.App. 21, 29, 947 P.2d 1242 (1997)).

¶ 13 A party can collaterally attack a foreign judgment if the court did not have jurisdiction. Berry, 141 Wash.2d at 127–28, 5 P.3d 658. A party attacking a foreign judgment has the burden of establishing lack of jurisdiction. Williams v. Steamship Mut. Underwriting Ass'n, Ltd., 45 Wash.2d 209, 213, 273 P.2d 803 (1954) (Washington courts presume a court of general jurisdiction in a sister state has jurisdiction over the cause and the parties “unless disproved by extrinsic evidence or by the record itself.”).

¶ 14 Utah courts have jurisdiction over adoption where the child was born in the state and/or resides in the state on the day the adoption petition is filed. Utah Code Ann. § 78B–6–105(1). Furthermore, Utah has “jurisdiction to hear and decide a petition to terminate parental rights in a child if the party who filed the petition is seeking to terminate parental rights in the child for the purpose of facilitating the adoption of the child.” Utah Code Ann. § 78B–6–112(1). Because Infant F was born in Utah and resided in Utah on the day of the adoption petition and because termination of all parental rights was requested in Utah to facilitate the adoption, Utah has jurisdiction to decide the...