D.T. v. C.M.

2011 UT App 407, 267 P.3d 930, 2011 WL 5995914
CourtUtah Supreme Court
DecidedDecember 1, 2011
DocketNo. 20100857-CA
StatusPublished
Cited by21 cases

This text of 2011 UT App 407 (D.T. v. C.M.) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D.T. v. C.M., 2011 UT App 407, 267 P.3d 930, 2011 WL 5995914 (Utah 2011).

Opinion

OPINION

DAVIS, Presiding Judge:

1 1 D.T. (Father) and S.T. (Mother) (collectively, Parents) appeal an order terminating their parental rights to S.Y.T. (Child) and granting custody to C.M., Child's half-sister (Sister). We affirm.

BACKGROUND 1

T2 Child was born in February 2000 and resided in Tennessee with Parents for the majority of her upbringing. Father is the biological parent of both Child and Sister, who are thirteen years apart in age. Father has a history of sexually abusing his children. He sexually abused his stepdaughter (Stepdaughter) for four years, ending when she was seventeen. On one occasion, Father's son (Son) inadvertently walked in on Father while he was abusing Stepdaughter. Father also abused Sister for an entire summer that Sister stayed with him when she was thirteen, just after Child was born.2 On at least one occasion that summer, Mother, who is Sister's stepmother, facilitated the abuse of Sister by physically restraining her. Sister reported the abuse when she was sixteen and ceased visiting Father after that point.

13 Several years later, in 2006, Sister traveled to Tennessee from Utah to visit friends and check in on Child, at which time Mother asked Sister to take Child back to Utah for the summer. Sister agreed and cared for Child during that summer and then returned Child to Parents. In March 2007, Parents contacted Sister to request that she take Child again, this time for possibly a few years while Parents rectified problems with their housing situation. Sister agreed and moved Child into her Utah home in April 2007, where Child remained until January 2008. Upon Child's move to Utah, Sister petitioned the Utah district court for guardianship of Child. Parents consented to the guardianship, and the district court approved the appointment on May 3, 2007. The guardianship was to remain in effect "until ... [Clhild reaches the age of majority or until changed by Order of the Court."

T4 Approximately five months later, on October 18, 2007, Parents petitioned the same Utah court to revoke the guardianship order, explaining that they were rescinding their consent to the guardianship appointment because Sister refused their requests to return Child to them. The district court granted Parents' motion to terminate guardianship on November 8, 2007, and ordered Sister to return Child to Parents. On November 20, 2007, Sister submitted a petition for a protective order, stating that she was "concerned for the safety of ... [Clhild" in light of Father's history of sexual abuse and Mother's conduct in support of that abuse. On December 31, 2007, in the period between the filing and ruling on the first protective order, Sister filed a petition to terminate Parents' parental rights (the Termination Petition). The first protective order petition was transferred from the district court to the juvenile court where it was denied on January 9, 2008, based on the juvenile court's determination that no exigency existed. Consequently, Sister returned Child to Parents in early January 2008 and filed a second protective order petition on January 11, 2008.3 The second protective order petition [935]*935was granted, and Child was returned to Sister around February 2008.

15 Parents filed a motion to dismiss the Termination Petition and an answer to the Petition, arguing that the Utah courts lacked subject matter jurisdiction under the Utah Uniform Child Custody Jurisdiction and En-foreement Act (UUCCJEA),4 that Utah was an inconvenient forum, that Parents never physically or sexually abused Sister, and that Sister beat Child on at least one occasion. Parents also alleged that Sister provided them with false contact information and hid Child from Parents with the intent to take Child from them permanently. In support of that assertion, Parents stated that they drove to Utah between May and June 2007 to "try and locate [Sister] and [Child,] but it became apparent that [Sister] was hiding [Child] from [them] and [they] were unable to find them." Parents' motion to dismiss the Termination Petition also stated that they filed a document rescinding Sister's guardianship appointment on June 1, 2007, with a court in Tennessee. Parents claim their recision was faxed to the Utah Fifth District Court and to the police department in St. George, Utah, on June 1, 2007.

T6 In a hearing on Parents' motion to dismiss the Termination Petition, the Utah juvenile court determined that Utah is the home state of Child and that Child has significant connections to Utah, but that Utah is nonetheless an inconvenient forum (the Inconvenient Forum Order). The juvenile court stated, "Tennessee will become the State of original jurisdiction, and in the event the State of Tennessee declines, the judges from both Courts will talk." The juvenile court gave Sister ninety days to file an action in Tennessee and concluded that Utah would maintain "emergency jurisdiction under Utah Code [section] 78B-13-204" until Tennessee took jurisdiction. The Utah juvenile court judge contacted the Tennessee judge assigned to the case after Sister filed a termination petition in that state. In the telephone conversation between the courts, for which the parties were not present, the Tennessee judge "declined jurisdiction, finding that the primary nex[uls for the issues was in the State of Utah." The communication was memorialized in a memorandum authored by the Utah court and an order issued by the Tennessee court, both of which were promptly mailed to the parties. See generalty Utah Code Ann. $ 78B-13-110(4) (2008) (requiring the courts to make a record of the communication, to promptly inform the parties of the communication, and to grant the parties access to the record made), id. § 78B-183-110(5) (defining "record" in this context to include a memorandum "made by a court after the communication"). The ree-ord of the communication indicates that the courts "discussed the general nature of the case and the overall jurisdiction question.... [The Utah court] ... explained that [it] had previously ruled that the case should be heard in Tennessee as the most convenient forum[] for the reasons set forth in [its] written ruling on the issue."

T 7 The Termination Petition then proceeded in Utah and was heard over the course of a three-day bench trial in 2010. The juvenile court heard testimony from Stepdaughter, Sister, Father, Mother, and Son as to the allegations of sexual abuse. Sister and her husband each testified that they intended to adopt Child if Parents' parental rights were terminated. The juvenile court ultimately found that Parents had

sexually abused [Stepdaughter] and [Sis-Despite the sincere denials by Fa[936]*936ther and Mother, and the other evidence which they submitted, the Court [was] persuaded by the credible testimony of [Sister}, [Stepdaughter,] and [Son]. The Court heard testimony by these three witnesses that they either witnessed or experienced sexual abuse by Father and/or Mother and the Court [found] that their testimony carries the day.

The juvenile court then concluded that

[tlhe sexual abuse committed by Father and Mother against a sibling constitutes neglect within the definition of the Juvenile Court Act because of the risk of harm to [Child]. Utah Code Ann. § 78A-6-105(25)(a)(iv) [ (Supp. 2011) ]. Neglect is a ground for termination of parental rights. [Id.] § 78A-6-507(1)(b) [ (2008) ].

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Cite This Page — Counsel Stack

Bluebook (online)
2011 UT App 407, 267 P.3d 930, 2011 WL 5995914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dt-v-cm-utah-2011.