In Re Adoption of TH

2007 UT App 341, 171 P.3d 480, 2007 WL 3025206
Procedural entryThis page is a short order in In Re Adoption of TH. Read the opinion of the Court — 589 Utah Adv. Rep. 9
Court of Appeals of Utah·Decided October 18, 2007·No. 20060659-CA·Published

Opinion

171 P.3d 480 (2007)
2007 UT App 341

In the Matter of the ADOPTION OF T.H., a minor.
M.G., Petitioner and Appellant,
v.
M.S.H., Respondent and Appellee.

No. 20060659-CA.

Court of Appeals of Utah.

October 18, 2007.

*481 Richard G. Hackwell, Salt Lake City, for Appellant.

Marsha M. Lang, Salt Lake City, for Appellee.

Before BENCH, P.J., McHUGH and ORME, JJ.

OPINION

McHUGH, Judge:

¶ 1 M.G. (Stepfather) appeals the trial court's order dismissing his adoption petition on the ground that the parental rights of M.S.H. (Father) could not be terminated without clear and convincing evidence that termination would be in T.H.'s (Daughter) best interests. We affirm.

BACKGROUND

¶ 2 In February 1990, Daughter was born to Father and his then wife (Mother). In 1999, Father and Mother divorced in a bifurcated proceeding that left the issues of child custody and support pending (the divorce court action). Those issues were still pending in September 2000, when Father was arrested, in what would become the first of two prosecutions, for sexual exploitation of a minor.[1] Following his arrest, Father was jailed for seven days and was then released from custody to await trial.

¶ 3 While child custody issues were still pending, Father offered to stipulate to a temporary order in the divorce action, which would allow him to regain visitation[2] with Daughter if certain conditions were met. The divorce court approved the stipulated temporary order and entered it into the record. The temporary order barred Father from contacting Daughter until he had: (1) completed a psychiatric evaluation conducted by a qualified psychiatrist, not a general practitioner, including taking any medication if found necessary; (2) provided evidence of satisfactory progress in a sex offender treatment program; (3) submitted a report from sex offender treatment and an evaluation from his psychiatrist to Daughter's psychologist and the guardian ad litem showing satisfactory progress; and (4) complied with a reunification plan created by Daughter's psychologist. Father did not receive a copy of the stipulated temporary order at the time it was approved. However, the stipulation was drafted by Father's counsel and read into the record during a hearing at which Father was present.

¶ 4 Eventually, Father pleaded guilty to attempted sexual exploitation of a minor and dealing in material harmful to a minor, both third degree felonies. Prior to sentencing, Father requested entry into the State's sex offender treatment program, but was informed he would not be admitted until after sentencing. Larry Fox, Ph.D., conducted a psychological evaluation of Father as part of *482 his presentence report.[3] Father was sentenced to two consecutive terms of zero to five years incarceration in the Utah State Prison. Father's sentence was suspended, and he was placed on probation, which included ninety days jail time. Father served sixty days of the ninety-day sentence and was released from custody in September 2001.

¶ 5 In the fall of 2001, following his release from state custody, Father unsuccessfully attempted to contact Mother by telephone. Mother returned Father's telephone call and told him not to call anymore. In May 2002, Father was arrested and charged with a second incident of sexual exploitation of a minor. While the second set of charges was pending, the divorce court action was finalized. The temporary order, barring Father from contacting Daughter, was incorporated into the divorce court's permanent order. Father admits he received a copy of the final order.

¶ 6 Eventually, Father pleaded guilty to two counts of sexual exploitation of a minor in the second criminal action. Father was sentenced to two concurrent terms of one to fifteen years in the Utah State Prison, and he remained incarcerated until October 2005, when he was released on parole.

¶ 7 Sometime after the divorce, Mother married Stepfather. Shortly before Father's release, Stepfather filed a petition with the district court to adopt Daughter and sought to terminate Father's parental rights on grounds of abandonment and unfitness. At the termination hearing, Stepfather attempted to establish a prima facie case for abandonment based on Father's failure to contact Daughter for more than six months, show the normal interest of a natural parent without just cause, maintain regular contact and communication with Mother, and complete the conditions of the stipulated temporary order, which would have allowed him visitation with Daughter. See Utah Code Ann. § 78-3a-408(1) (Supp.2007) (discussing prima facie evidence of abandonment). Stepfather also attempted to prove a prima facie case of unfitness based on Father's convictions of attempted sexual exploitation of a minor and sexual exploitation of a minor. See id. § 78-3a-408(6) (discussing prima facie evidence of unfitness). However, Stepfather did not present any evidence that directly addressed whether terminating Father's parental rights would be in the best interests of Daughter.[4]

¶ 8 Following the hearing, the district court determined that Stepfather had failed to prove either Father's abandonment or his unfitness by clear and convincing evidence. The court also noted that even if the evidence supported a prima facie case for abandonment, Father had rebutted the presumption because the stipulated temporary order precluded his contact with Daughter. Furthermore, the court concluded that even if Father had not rebutted the presumption and clear and convincing evidence supported a ground for termination, Father's parental rights could not be terminated because there was no evidence presented that termination would be in Daughter's best interests.[5] Stepfather appeals.

ISSUE AND STANDARDS OF REVIEW

¶ 9 Stepfather argues that the district court misinterpreted Utah Code section 78-30-4.16, see Utah Code Ann. § 78-30-4.16 (Supp.2007), as requiring clear and convincing evidence that Daughter's best interests *483 would be served by terminating Father's parental rights. To the extent Stepfather challenges the district court's interpretation of Utah Code section 78-30-4.16, he raises "questions of law that we review for correctness, giving no particular deference to [the district] court['s] decisions." In re adoption of B.B.G., 2007 UT App 149, ¶ 4, 160 P.3d 9; see also In re C.K., 2000 UT App 11, ¶ 17, 996 P.2d 1059 ("Questions about . . . the legal accuracy of the trial court's statements present issues of law, which we review for correctness. . . ."). To the extent Stepfather challenges the district court's conclusion that the termination of parental rights would not be in Daughter's best interests, we review the decision for an abuse of discretion. See In re A.G., 2001 UT App 87, ¶ 7, 27 P.3d 562.

ANALYSIS

¶ 10 Stepfather challenges the district court's dismissal of the adoption petition on multiple grounds. First, Stepfather contends that the court improperly concluded that the facts could not support a prima facie case for abandonment or unfitness as grounds for termination under Utah Code sections 78-3a-407 and -408, see Utah Code Ann. §§ 78-3a-407, -408 (Supp.2007).

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