State in Interest of R.N.J.

• Decision Date: 22 November 1995
• Docket Number: No. 950266-CA,950266-CA
• Citation: 908 P.2d 345
• Parties: STATE of Utah, in the INTEREST of R.N.J., fka R.N.P., a person under eighteen years of age. T.B., Respondent and Appellant, v. M.M.J., Petitioner and Appellee.
• Court: Utah Court of Appeals

Page 345

908 P.2d 345

64 USLW 2399

STATE of Utah, in the INTEREST of R.N.J., fka R.N.P., a person under eighteen years of age T.B., Respondent and Appellant, v. M.M.J., Petitioner and Appellee.

No. 950266-CA.

Court of Appeals of Utah.

Nov. 22, 1995.

Gary W. Pendleton, St. George, for Appellant.

Glen D. Watkins and Bruce Wycoff, Salt Lake City, for Appellee.

G. Michael Westfall, St. George, Guardian ad Litem for R.N.J.

Before ORME, BILLINGS, and WILKINS, JJ.

WILKINS, Judge:

T.B., the mother of R.N.J., appeals the juvenile court's order that granted the petition of M.M.J., the adoptive father of R.N.J., to voluntarily terminate his parental rights to R.N.J.

BACKGROUND

R.N.J.'s mother met the adoptive father in November 1987. At that time, R.N.J., who was the legal daughter of both her biological parents, was living with her mother but not with her biological father. The following year, in December 1988, the mother divorced R.N.J.'s biological father. A few days after the divorce, she married the adoptive father. R.N.J. was four years old at the time of this marriage. R.N.J., her mother, and the adoptive father subsequently lived together as a family.

More than four years later, in March 1993, the adoptive father and the mother filed a petition for the adoptive father to adopt R.N.J. The court entered a Decree of Adoption in April 1993, after the parental rights of R.N.J.'s biological father were terminated. Thereafter, the adoptive father became R.N.J.'s legal father, possessing all the rights and duties of a legal parent.

In June 1993, after the mother had moved to California with R.N.J. and the couple's other child, the mother sued the adoptive father for separation in a California court. Within a few weeks, the adoptive father sued the mother for divorce in a Utah court. The Utah action was dismissed, and the parties stipulated that jurisdiction of the divorce proceedings would be vested in a specified court in California. That court took jurisdiction of the divorce proceedings, including issues of child custody, support, and visitation. The California court entered a judgment granting the divorce in September 1994. The judgment gave the mother custody of R.N.J., did not grant the adoptive father any visitation rights, in accordance with his own request, and ordered the adoptive father to pay child support.

In October 1993, the adoptive father filed a petition in Utah to annul R.N.J.'s adoption or to terminate his parental rights to R.N.J. In January 1995, the district court dismissed with prejudice the adoptive father's claim for annulment, and the parties agreed to proceed to trial exclusively on the adoptive father's claim for voluntary termination of his parental rights. The district court judge ordered the case transferred to the juvenile court. The juvenile court judge simultaneously appointed the district court judge to handle the case as a juvenile court judge, and that same day the case was tried.

After trial, the court found "only by the barest preponderance of the evidence" that it was in R.N.J.'s best interest to terminate the adoptive father's parental rights and obligations. The court filed its order in March 1995. Thereafter, the mother filed this appeal.

ANALYSIS

On appeal, the mother questions the jurisdiction of the juvenile court to consider the matter under the Utah Uniform Child Custody Jurisdiction Act (Utah UCCJA), and whether the trial court should have applied a clear and convincing standard of proof rather than a preponderance of the evidence standard in the termination proceeding.

I. Jurisdiction

We first resolve two jurisdictional issues regarding this case. First, we raise, sua sponte, the issue of whether the district court judge's appointment as a juvenile court judge pro tem was valid. Although we conclude that the appointment was invalid, we also conclude that under the de facto officials doctrine the district court judge's actions while acting as a juvenile court judge are valid as to the parties and the public. Second, we conclude that the trial court had subject matter jurisdiction because this proceeding was not a "child custody proceeding" under the UCCJA.

A. Appointment of District Court Judge as Juvenile Court Judge

We first address whether the trial judge's appointment as a juvenile court judge was valid, an issue we raise sua sponte. Generally, "if a [party] has not raised an issue on appeal, we may not consider the issue sua sponte." State v. Rodriguez, 841 P.2d 1228, 1229 (Utah App.1992) (citing State v. Larocco, 794 P.2d 460, 473 (Utah 1990) (plurality opinion)). However, whether the trial judge had authority to hear and render judgment in this case raises a question as to whether the trial court had jurisdiction. If the trial judge was not acting with proper authority as a juvenile court judge, then as a district court judge, he lacked jurisdiction. See Utah Code Ann. § 78-3a-16(2)(f) (Supp.1995) ("[T]he juvenile court has exclusive original jurisdiction in proceedings ... to terminate the legal parent-child relationship...."). Jurisdictional issues may be raised for the first time on appeal. Jefferies v. Jefferies, 895 P.2d 835, 838 (Utah App.1995). Therefore, we raise this issue sua sponte even though neither party raised it below or on appeal. Cf. Salt Lake City v. Ohms, 881 P.2d 844, 852-53 & 866-67 (Utah 1994) (agreeing, in majority and dissenting opinions, that because circuit court had authority to decide case, competency of circuit court commissioners to decide case was question of their power and authority, not question of subject matter jurisdiction of circuit court).

According to the Utah Code of Judicial Administration, an active judge may temporarily serve as a judge "of a court with equal or different jurisdiction in the same or a different geographical division" and will enjoy, while serving in that court, "the same powers as a judge of that court." Utah R.Jud.Admin. 3-108(3) (1995). In order to serve in this way, however, the judge must be assigned to the other court either by the presiding officer of the Judicial Council or by the state court administrator with the approval of the Council's presiding officer. Id. The presiding officer of the Judicial Council is the chief justice of the Utah Supreme Court. Utah Const. art. VIII, § 12(2); Utah R.Jud.Admin. 1-101(1)(Q).

This procedure was not followed by the trial court. The district court judge was temporarily appointed to act as a juvenile court judge in this case by an order signed only by the juvenile court judge. The record does not include an appointment by the chief justice of the Utah Supreme Court, or by the state court administrator acting with the approval of the chief justice. Therefore, the trial court judge acted without the legal authority of a juvenile court judge when he heard and decided this case.

However, the trial judge's judgment is valid as to the parties and the public the same as if he had been properly appointed because his actions in this case fall within the de facto officials doctrine. Under this The landmark definition of de facto officers accepted by the Utah Supreme Court in 1983 includes the situation in this case where a judge acted under color of a known appointment that was void because the appointing body lacked power to appoint the judge. Vance v. Fordham, 671 P.2d 124, 131 n. 5 (Utah 1983). Therefore, although the trial court technically acted without legal authority, we will consider his order valid as between the parties to this action and as to the public.

doctrine, persons who assume official authority under color of a valid appointment and with public acquiescence in the authority are considered de facto officials even though they are technically ineligible for the public office. State v. Menzies, 845 P.2d 220, 226 (Utah 1992). "In the interest of justice, the actions of a de facto official are considered valid as to third persons and the public." Id. But cf. Ohms, 881 P.2d at 854-55 (holding that, although de facto doctrine would validate past actions of commissioners, the actions of the commissioner that petitioner challenged would be deemed invalid to reward petitioner for challenging an unconstitutional statute). Utah courts have relied on this doctrine a number of times to uphold the actions of those acting without proper authority in a public office, including the actions of district court judges sitting on the supreme court and, more recently, the actions of court commissioners filling judicial roles. See, e.g., Ohms, 881 P.2d at 853-54; In re Thompson's Estate, 72 Utah 17, 87, 269 P. 103, 128 (1927).

B. Jurisdiction under the UCCJA

The mother argues that the trial court lacked subject matter jurisdiction to hear this case because the California court that issued the couple's divorce judgment retained jurisdiction of all custody issues under the Utah Uniform Child Custody Jurisdiction Act (Utah UCCJA) (codified at Utah Code Ann. §§ 78-45c-1 to 78-45c-26 (1992 & Supp.1995)). The mother bases her argument on the premise that the voluntary termination of the adoptive father's parental rights in, and obligations to, R.N.J. is a custody issue under the Utah UCCJA. We disagree.

Rather, we conclude that a proceeding involving the termination of a parent's rights and obligations is not a custody proceeding under the Utah UCCJA. This conclusion is supported by Utah's statutory scheme. A "custody determination" is defined in the Act as "a court decision and court orders and instructions providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person." Utah Code Ann. § 78-45c-2(2) (1992). A "custody proceeding" under the Utah UCCJA, "includes proceedings in which a custody determination is one of several issues, such as an action for dissolution of marriage." Id. § 78-45c-2(3). Therefore, although these definitions make clear...