State ex rel. X.C.H. v. State, 20150613-CA

Decision Date29 June 2017
Docket NumberNo. 20150613-CA,20150613-CA
Citation400 P.3d 1154
Parties STATE of Utah, IN the INTEREST OF X.C.H., a Person Under Eighteen Years of Age. G.H., Appellant, v. State of Utah, Appellee.
CourtUtah Court of Appeals

Colleen K. Coebergh, Attorney for Appellant

Sean D. Reyes and John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Judge Michele M. Christiansen authored this Opinion, in which Judges J. Frederic Voros Jr. and Stephen L. Roth concurred.

Opinion

CHRISTIANSEN, Judge:

¶1 Appellant G.H. (Father) challenges the juvenile court's order terminating his parental rights in X.C.H. (Child). We affirm.

BACKGROUND

¶2 In November 2008, T.C. (Mother) gave birth to Child. In April 2010, the Division of Child and Family Services (DCFS) filed a verified petition alleging that Child was "abused, neglected, and/or dependent." The petition further alleged that "[G.H.] is the father of [Child]" and that G.H. was "believed to be residing in a detention facility in Montana." Father was not served with notice of the proceedings and did not appear. Nevertheless, the juvenile court "found the allegations of the State's petition to be true and correct" and incorporated the State's allegations regarding Father into its findings (the 2010 Order). After determining that Mother had been involved in multiple domestic violence incidents, the court ordered protective supervision services for Mother and Child. In October 2010, Mother and Child were released from protective services.

¶3 In 2014, the State filed another verified petition, seeking custody of Child. The petition stated that Father was Child's "alleged father."1 In April 2014, after a shelter hearing, the juvenile court granted the State's request for custody of Child. The court observed that Father had not been served with notice of the shelter hearing, that "paternity for [Child did] not appear to be established by the alleged father," and that Father was believed to reside "out of state." Child went to live with a foster family with whom he had previously resided.

¶4 On May 22, 2014, the State's petition was adjudicated as to Mother. Mother did not attend the hearing, and the juvenile court entered a default judgment against her. The juvenile court found that Father was Child's "alleged father" and that his whereabouts were unknown, but that Mother believed he was living in Montana. The court ultimately concluded that Child was neglected and that DCFS would retain custody.

¶5 In a verified petition filed on July 22, the State sought termination of Mother's parental rights. This petition again stated that Father was Child's "alleged father."

¶6 Around that time, a DCFS caseworker began efforts to locate Father. She looked on "Vine Link and the Montana State website" to see if Father was incarcerated; looked "through the [Office of Recovery Services database] and [DCFS's] SAFE website" for a phone number for Father and found that "there was a phone number in there, but it wasn't correct"; and asked Mother's family for Father's contact information. She did not "look in any search engines," use whitepages.com, or hire a constable or private investigator to help locate Father. She also did not check to see if Father's paternity of Child had been established in Montana.

¶7 Mother eventually provided the DCFS caseworker with contact information for Father. On July 30, the DCFS caseworker called Father and left him a message "that [DCFS] didn't have [proof of] paternity for him"; however, she did not actually speak with Father until September 2. At that time, the DCFS caseworker "told [Father] again that [DCFS] didn't have [proof of Father's] paternity, and he said that he would get it to [her] by Monday," which was "less than a week" away. Father, however, did not timely follow through, and DCFS did not get "the paternity paper" from him until December 5.2

¶8 Once DCFS received "the paternity paper" from Father, the DCFS caseworker maintained regular contact with him. The DCFS caseworker informed Father of a January 29, 2015 hearing related to Mother's termination trial, and the DCFS caseworker and Father met in person for the first time at that hearing.

¶9 Father's first supervised visit with Child took place on January 29 after the hearing, and Father had one more visit with Child on February 24. Father completed only one of his scheduled phone calls with Child even though the DCFS caseworker had rearranged the phone call schedule to accommodate Father's work schedule. Father provided no financial support, cards, or gifts for Child before the termination trial.

¶10 In February 2015, the juvenile court appointed Father's current counsel to represent him. And in April 2015, Father filed an answer in apparent response to the State's verified petition for termination of Mother's parental rights. In his answer, Father asserted that he "is [the] biological father of [Child], which has been established by DNA testing, and he believes this Court adjudicated him father."3 Somewhat contradictorily, he also objected "to any findings from [the 2010 Order] pertaining to him," which included the finding that Father "is the father of [Child]"—the very finding Father now claims amounted to an adjudication of his paternity.

¶11 The juvenile court held a termination trial on May 4, 2015.4 Both the DCFS caseworker and Child's foster father testified. At the conclusion of the trial, the juvenile court terminated Father's parental rights on grounds of abandonment and lack of anything other than token efforts at communication. The court also found it to be in Child's best interest to terminate Father's parental rights, observing that (1) Child had been cared for by his foster parents for more than a year; (2) he had formed an attachment to his foster family; (3) "[t]here [were] bonds of love and affection that exist[ed] in the [foster] home"; (4) Child had been thriving in the foster home; and (5) the foster parents were "meeting [Child's] needs and [were] willing to adopt him." The court expressed concern regarding DCFS's delay in contacting and locating Father, but it also observed that it was "not convinced that if [Father] had been located and joined in a more timely fashion, that there would have been a different result." Father challenges the juvenile court's order terminating his parental rights.

ISSUES

¶12 First, Father contends that the State violated its "statutory duties to notify [him] in a timely fashion[, which] resulted in a fundamentally unfair process." Second, Father contends that the juvenile court "facilitate[d] improper burden shifting, in violation of the due process clause, when it allowed a circumstance where the State made [Father] ‘prove’ paternity to [DCFS] before he was notified of any hearing." Third, Father contends that "there was insufficient evidence that [he] abandoned [Child], or made merely ‘token efforts.’ "

ANALYSIS
I. Notice

¶13 Father first contends that "the State's violations of statutory duties to notify [him] in a timely fashion resulted in a fundamentally unfair process."5 According to Father, "[t]he State had a duty to [notify him] of the adjudication on the initial Petition in 2014." (Citing Utah Code section 78A-6-310(1)(b).)

¶14 "The right to raise one's children is a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution." In re L.M. , 2013 UT App 191, ¶ 12, 308 P.3d 553 (brackets, citation, and internal quotation marks omitted); see also Utah Code Ann. § 78A-6-503(1) (LexisNexis 2012) ("Under both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent's child."). "Accordingly, that right may not be terminated without due process of law." In re L.M. , 2013 UT App 191, ¶ 12, 308 P.3d 553 ; see also U.S. Const. amend. XIV, § 1 ("No State shall ... deprive any person of life, liberty, or property, without due process of law[.]"); Utah Code Ann. § 78A-6-503(2) ( "The court shall provide a fundamentally fair process to a parent if a party moves to terminate parental rights."). Due process requires, at a minimum, "adequate notice and an opportunity to be heard in a meaningful manner." In re L.M. , 2013 UT App 191, ¶ 12, 308 P.3d 553 (citation and internal quotation marks omitted).

¶15 Here, Father contends that the 2010 Order constituted "an adjudication order stating he was the father." Thus, according to Father, "[t]he State had a duty to [notify him] of the adjudication on the initial Petition in 2014." (Citing Utah Code section 78A-6-310(1)(b).) We first consider whether the 2010 Order constituted an adjudication of Father's paternity.

¶16 Pursuant to section 78B-15-601 of the Utah Uniform Parentage Act (the Parentage Act), "[a]n adjudicative proceeding may be maintained to determine the parentage of a child." Utah Code Ann. § 78B-15-601(1) (LexisNexis 2012); see also id. § 78B-15-102(1) (" ‘Adjudicated father’ means a man who has been adjudicated by a tribunal to be the father of a child."). In a proceeding to adjudicate parentage, "a man whose paternity of the child is to be adjudicated" shall be joined as a party. Id. § 78B-15-603(2). Additionally, this court has previously observed that "[a]djudication is [t]he legal process of resolving a dispute.’ " Kielkowski v. Kielkowski , 2015 UT App 59, ¶ 16, 346 P.3d 690 (second alteration in original) (quoting Adjudication , Black's Law Dictionary 47 (9th ed. 2009)); cf. id. ¶ 18 (concluding that the district court did not adjudicate the husband's paternity where "[n]either party raised the parentage issue during the divorce proceedings" and the district court "simply entered a decree by default on a form that was automatically generated from [the husband's] verified petition and merely reiterated [the husband's] representation that there were ‘no children at issue in this marriage’ "); Reller v. Reller , 2012 UT App 323, ¶¶ 13–15, 291 P.3d 813 (concluding that...

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