Osborne v. Adoption Center of Choice

2003 UT 15, 70 P.3d 58, 472 Utah Adv. Rep. 25, 2003 Utah LEXIS 37, 2003 WL 2006839

• Court: Utah Supreme Court
• Decided: May 2, 2003
• Docket: 20020515
• Status: Published

Opinions

DURRANT, Associate Chief Justice.

T1 Frank Osborne, a North Carolina resident, challenges the court of appeals' decision denying his petition for extraordinary relief. Osborne sought extraordinary relief from the court of appeals by way of a petition for a writ of mandamus and injunctive relief,. In challenging the denial, Osborne reasserts the arguments he made in his original petition before the court of appeals, questioning whether Utah courts have the authority to exert personal jurisdiction over non-resident fathers in adoption proceedings and whether non-resident putative fathers have a meaningful opportunity to raise jurisdictional defenses. Because Osborne raises these issues in the context of a petition for extraordinary relief, before reaching them, we must first determine whether Osborne is even entitled to receive extraordinary relief Thus, the threshold question before us is whether the court of appeals properly denied Osborne's petition for extraordinary relief Because Osborne has not shown that he is entitled to extraordinary relief, it is unnecessary for us to reach the other substantive issues. Since Osborne has failed to show the existence of any grounds on which extraordinary relief may be granted, we affirm.

BACKGROUND

T2 Osborne is a North Carolina resident. He began a relationship with Angela Baker, also a North Carolina resident, in November 2000. In December 2000, Baker became pregnant.

T3 During her pregnancy, Osborne and Baker cohabited at Osborne's home in North Carolina. While Baker was living with Osborne, she informed him that she had contacted an adoption ageney in Utah to inquire about placing the child for adoption upon its birth. Osborne expressed disapproval with that idea, and as a result, Baker assured Osborne that she would not place the child for adoption.

T4 In early August 2001, Baker left Osborne's home and traveled to Utah with the intent to give birth and to place the child for adoption. On August 6, 2001, labor was induced and Baker delivered the child. That same day, she called Osborne and informed him that she had borne a son, that she had decided not to place the child for adoption in Utah, and that she was returning to North Carolina with the child.

15 Upon returning to North Carolina, Baker lived with her mother for a week and then moved back in with Osborne. However, by December 10, 2001, she once again moved out of Osborne's home. During this period of cohabitation, Osborne attempted on two occasions to convince Baker to execute a voluntary declaration of paternity. She refused to do so.

T6 In early January 2002, Baker again informed Osborne that she intended to return to Utah and place the child for adoption, which she did. On January 4, 2002, Baker relinquished her parental rights to Adoption Center of Choice, Inc. ("Adoption Center"), a Utah adoption agency with its principal office located in Orem, Utah, so that the child could be placed for adoption. Shortly thereafter, Baker's husband ¹ also formally relinquished any parental rights regarding the child and consented to the child's placement for adoption with Adoption Center. Adoption Center then placed the child with a couple but retained legal custody of and responsibility for the child, pursuant to Utah Code Ann. § 78-80-4.22 (2002), pending the finalization of the adoption.

T7 On February 11, 2002, Osborne filed a paternity and custody action in North Carolina.² G

PROCEDURAL HISTORY

T8 On February 14, 2002, Osborne filed a verified petition in a Utah district court challenging the subject matter jurisdiction of the Utah courts regarding the adoption of the child.

19 In connection with this petition, on February 20, 2002, Osborne issued a subpoena to Adoption Center, seeking the name and address of the adoptive parents, the names of the attorneys involved in the adoption proceeding, the county in which the adoption proceeding was filed, and the names of all judges who had issued any rulings or orders associated with the adoption. In response, on February 26, 2002, Adoption Center moved to quash the subpoena, arguing that Osborne had waived his notice and consent rights related to the adoption under Utah adoption law.

10 On March 1, 2002, the district court, at Osborne's request, heard argument on Adoption Center's motion to quash. Osborne was represented by counsel at the hearing. Subsequent to the hearing, Osborne filed two supplemental memoranda of law in which he argued that in the event the district court were to conclude that it had subject matter jurisdiction over the adoption, he was prepared to argue that the district court lacked personal jurisdiction over him because he was a North Carolina resident who did not have the necessary minimum contacts with Utah.

{11 On March 8, 2002, Adoption Center filed a petition for determination of birth father's rights relating to the child pursuant to Utah Code Ann. § 78-80-4.24 (2002) ³ and the Utah Declaratory Judgment Act, Utah Code Ann. §§ 78-83-1, -2 (2002). Adoption Center sent a copy of the petition along with a notice of the petition and an acceptance of service to Osborne's attorney. Osborne's attorney refused to accept service of process. Adoption Center moved to allow its petition to be heard without notice on March 21, 2002.

12 On March 18, 2002, the district court granted Adoption Center's motion to quash. In doing so, the district court held that "Frank Osborne has not complied with the legal requirements for preserving his parental rights under Utah law" and that "Osborne has failed to take any action according to the statutory requirements, and so has waived any right to [the child] he may have otherwise had." Osborne did not appeal the district court's ruling. Instead, on March 27, 2002, Osborne filed a notice of voluntary dismissal of his petition.

113 On March 29, 2002, the district court granted Adoption Center's motion to proceed without notice. On April 8, 2002, the district court signed an order stating that

pursuant to Utah Code Ann. § 78-80-4.14(5), any person, including Frank Osborne, claiming to be the putative natural father of the minor child is deemed to have waived and surrendered any right in relation to the minor child, including the right to notice of any judicial proceeding in connection with the adoption of the child, and his consent to the adoption of the child is not required.

114 After voluntarily dismissing his petition in state court, Osborne filed a complaint, on April 4, 2002, in the United States District Court for the District of Utah, claiming violations of his Fourteenth Amendment due process rights. Osborne requested, among other things, injunctive relief to stay finalization of the adoption and the proceeding regarding the Adoption Center's Petition for Determination of Birth Father's Rights. On June 4, 2002, Adoption Center moved the federal district court to dismiss Osborne's complaint or, in the alternative, for summary judgment.

15 On June 18, 2002, Osborne sought a temporary restraining order from the federal district court to enjoin Adoption Center and the adoptive parents from finalizing the adoption. At a hearing on the subject on June 21, 2002, the federal district court refused to issue the requested temporary restraining order.⁴

COURT OF APPEALS' DISPOSITION⁵

¶16 On the same day the federal district court denied Osborne's request for injunctive relief, Osborne filed a petition for a writ of mandamus and injunctive relief with the court of appeals. Specifically, in the filing before the court of appeals, Osborne requested that the court of appeals

issue a writ of mandamus against every district court in the state of Utah to enjoin any proceedings conducted to finalize the adoption of the child at issue ..., issue a temporary restraining order against the respondents from formalizing the adoption, issue a temporary restraining order against the Adoption Center of Choice to reveal the identity of the adoptive parents so they may be served and stayed, and finally to issue an order declaring that [he] may either directly intervene in the adoption or bring a collateral action ... to challenge the pending adoption proceeding on jurisdictional grounds without waiving any personal jurisdiction defense.

¶17 On July 2, 2002, the court of appeals denied Osborne's petition.⁶ The court of appeals held that Osborne "failed to establish he has met any of [the] requirements" of Utah Code Ann. § 78-30-4.14 to establish any rights to the child. Osborne v. Adoption Center of Choice, Case No. 20020489-CA, at 1-2 (Utah Ct.App. July 2, 2002). Furthermore, the court of appeals determined that Osborne had failed to meet the requirements of Utah Code Ann. § 78-80-14.15, which governs non-resident fathers in this context, because "he took absolutely no legal action in his home state of North Carolina for the five months prior to the mother's relinquishment." Id. at 2. Ultimately, the court of appeals concluded that Osborne "has simply failed to take any timely action to preserve his rights to this child." Id.

18 As to Osborne's arguments concerning personal jurisdiction, the court of appeals concluded that

the question of personal jurisdiction only arises when a defendant is called to defend an action in court. The district court did not need or attempt to exercise personal jurisdiction over [Osborne]. He lost his rights to the child by operation of law when he failed to take the statutory steps required to protect his rights.... Furthermore, it is [Osborne], as a plaintiff, seeking relief in Utah courts who has invoked the jurisdiction of the Utah courts. The fact that court action, and the operation of law, affected the father's unprotected parental rights does not implicate personal jurisdiction. If [Osborne] wants to protect and assert his rights in a child relinquished for adoption in Utah, he must take the necessary action to protect his rights under Utah law. He cannot simply stand on the "sidelines" and claim that Utah courts lack jurisdiction over him.

Id. at 2-8.

119 On July 8, 2002, Osborne moved to temporarily stay the district court's order finalizing the adoption pending an en bane hearing before this court on Osborne's petition for writ of certiorari, which he filed on August 1, 2002. We granted the writ of certiorari and stayed the finalization of the adoption pending this decision.⁷

1 20 On appeal to this court, Osborne questions the court of appeals' denial of his attempt to present through a petition for extraordinary relief a challenge to the exercise of personal jurisdiction over him by Utah courts. Osborne argues that Utah courts do not have personal jurisdiction because he is a North Carolina resident who does not have minimum contacts with Utah sufficient for Utah courts to exercise personal jurisdiction over him consistent with the due process protections of the Fifth and Fourteenth Amendments to the United States Constitution.

121 Adoption Center maintains that the writ of certiorari should be dismissed as improvidently granted, arguing that Osborne's petition for extraordinary relief from the court of appeals was improper and never should have been entertained by the court of appeals in the first place. As to the jurisdictional question posed by Osborne, Adoption Center argues that personal jurisdiction over Osborne is irrelevant because Osborne never perfected his rights in the child. In other words, Osborne would be entitled to due process protections only if Utah were depriving him of some liberty or property interest, an interest Osborne does not possess in connection with the child because of his failure to secure his rights in the child. Finally, Adoption Center argues that Utah has jurisdiction over the adoption under the status exception to the minimum contacts requirement for the exercise of personal jurisdiction.

ANALYSIS

I.. STANDARD OF REVIEW

122 Before the court of appeals, Osborne petitioned for extraordinary relief under rule 65B of the Utah Rules of Civil Procedure and rule 19 of the Utah Rules of Appellate Procedure. His petition requested an order that would allow him to "directly intervene ... or bring a collateral action ... to challenge the pending adoption proceeding on jurisdictional grounds without waiving any personal jurisdiction defense." The court of appeals denied Osborne's request both because no court attempted to exercise personal jurisdiction over him and because it determined that he had lost his right to challenge the adoption "by operation of law when he failed to take the statutory steps required to protect his rights." Osborne v. Adoption Center of Choice, Case No. 20020489-CA, at 2 (Utah Ct.App. July 2, 2002) (citing Swayne v. L.D.S. Social Servs., 795 P.2d 637, 640 (Utah 1990). Whether it properly refused to "issue a writ ... against every district court in the state of Utah to enjoin any proceeding conducted to finalize the adoption of the child at issue in this matter" is a matter that we review for an abuse of discretion. See Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 683 (Utah 1995).

II. PETITION FOR EXTRAORDINARY RELIEF

123 Petitions for extraordinary relief are governed by rule 65B of the Utah Rules of Civil Procedure. Utah R. Civ. P. 65B(a); accord Renn, 904 P.2d at 682. Because rule 65B provides for several different types of extraordinary relief, before granting a petition for extraordinary relief, "a court must look to the nature of the relief sought, the circumstances alleged in the petition, and the purpose of the type of writ sought." Renn, 904 P.2d at 683. If the nature of the relief sought, the alleged cireumstances, or the purpose of the type of writ sought do not meet the conditions under rule 65B for obtaining any of the types of extraordinary relief available, then such relief cannot be granted.

4 24 According to rule 65B, a person may petition for extraordinary relief "[wlhere no other plain, speedy and adequate remedy is available." Utah R. Civ. P. 65B(@). It is questionable whether Osborne has met this condition for obtaining extraordinary relief. Regardless, even assuming that he has, he has failed to meet the other conditions in rule 65B for obtaining the type of extraordinary relief he has requested. To the extent Osborne attempts to cloud the issue by presenting additional jurisdictional arguments in his brief that were not raised in his petition, such arguments are not properly before this court.

'] 25 Osborne sought the following relief in his petition before the court of appeals:

1. "[A] writ of mandamus against every district court in the state of Utah to enjoin any proceeding conducted to finalize the adoption of the child [K.S.B.];"

2. "[A] temporary restraining order against the respondents from finalizing the adoption;"

3. "[A] temporary restraining order against the Adoption Center of Choice to reveal the identity of the adoptive parents so they may be served and stayed;" and

4. "[An order declaring that [he] may either directly intervene in the adoption or bring a collateral action ... to challenge the pending adoption proceeding on jurisdictional grounds without waiving any personal jurisdiction defense."

Because of the nature of the extraordinary relief Osborne is seeking and the purpose of the writ of mandamus for which he petitions, Osborne's petition is governed by rule 65B(d) of the Utah Rules of Civil Procedure.

126 Extraordinary relief may be granted under rule 65B(d) to right "the wrongful use of judicial authority for] the failure to exercise such authority." Utah R. Civ. P. 65B(a). However, only "[al person aggrieved or whose interests are threatened by any of the acts enumerated" under rule 65B(d) may petition for extraordinary relief. Id. 65B(d)(1). For the reasons cited below, we hold that the court of appeals did not abuse its discretion when it denied Osborne's petition because Osborne has not been aggrieved by and his interests have not been threatened by any of the acts enumerated under rule 65B(d). Thus, he is not entitled to extraordinary relief.

127 First, a petition for extraordinary relief cannot be directed to "every district court in the state of Utah." Rule 19 of the Utah Rules of Appellate Procedure plainly allows for a petition for an extraordinary writ "directed to a judge, ageney, person, or entity." Utah R.App. P. 19(a) (emphasis added). This rule also makes explicit provisions for service "on the respondent judge, agency, person or entity." Id. (emphasis added). According to the plain language of rule 19, an extraordinary writ cannot be addressed to every court of the state at once; only to a particular court or to a particular judge. Extraordinary relief is available only to right a particular wrong, not a generalized, amorphous one.

128 Second, even if Osborne had properly petitioned to have an extraordinary writ directed only to the district court in which the adoption he seeks to contest is taking place, his petition could not have been granted. Under the provisions of rule 65B(d), a person may obtain relief only under four limited cireumstances, and the facts of this case potentially implicate only three of these cireum-stances.⁸ Because none of the grounds alleged in the petition relate to any of these limited cireumstances, however, the court of appeals properly exercised its discretion in denying Osborne's petition.

129 The first cirenmstance under which extraordinary relief may be granted is where the district court "has exceeded its jurisdiction or abused its discretion." Utah R. Civ. P. 65B(d)(@Q)(A). In his petition, Osborne does not describe a situation where any district court in Utah has exceeded its jurisdiction or abused its discretion. While Osborne seeks to cloud the issue by arguing that Utah courts had no jurisdiction over him, he fails to recognize that no Utah court exercised jurisdiction over him. As the court of appeals noted, "[the district court did not need or attempt to exercise personal jurisdiction over [Osborne].... The fact that court action, and the operation of law, affected the [putative] father's unprotected parental rights does not implicate personal jurisdiction." Osborne, Case No. 20020489-CA, at 2. Since no Utah court exercised personal jurisdiction over Osborne or abused its discretion, he may not obtain extraordinary relief on this ground.

130 Second, extraordinary relief may be granted where the district court "failed to perform an act required by law as a duty of office, trust or station." Utah R. Civ. P. 65B(d)(2)(B). Osborne's petition does not present any cireumstances suggesting that any Utah court failed to perform an act required by law. Therefore, he may not obtain extraordinary relief on this ground.

131 Finally, extraordinary relief may be granted where the district court refused or denied the petitioner a right to which he or she is entitled. Id. 65B(d)@)(C). Although Osborne claims that he has a right entitling him to challenge the adoption proceeding and to challenge the exercise of personal jurisdiction over him, he cannot point to any Utah court that has refused or denied him a legally cognizable right.

132 Regarding putative fathers' parental rights, the United States Supreme Court has explained that "the existence or nonexistence of a substantial relationship between parent and child is a relevant criterion in evaluating both the rights of the parent and the best interests of the child." Lehr v. Robertson, 463 U.S. 248, 266-67, 108 S.Ct. 2985, 77 L.Ed.2d 614 (1983). The Court further noted "[the legitimate state interests in facilitating the adoption of young children and having the adoption proceeding completed expeditiously that underlie the entire statutory scheme also justify a trial judge's determination to require all interested parties to adhere precisely to the procedural requirements of the statute." Id. at 251, 265, 108 S.Ct. 2985 (discussing a state statute that required putative fathers to register their "intent to claim paternity of a child born out of wedlock"). Until Osborne makes some showing that he is an interested party who has complied precisely with the procedural requirements necessary to challenge an adoption proceeding, Utah courts have an overriding interest in facilitating adoption.

£133 Utah law clearly provides a method for putative fathers in Osborne's position to show the existence of a substantial relationship with a child that vests them with rights to challenge an adoption. See Utah Code Ann. § 78-80-4.15 (2002). Section 78-30-4.15(4) allows an "unmarried biological father who resides in another state" to challenge the mother's placement of the child for adoption if he resided in another state with the mother and has "complied with the most stringent and complete requirements of the state where the mother previously resided or was located, in order to protect and preserve his parental interest and right in the child" at issue. Id. § 78-80-4.15(4). In enacting this statute, the Utah legislature expressly provided "that an unmarried biological father who resides in another state may not, in every cireumstance, be reasonably presumed to know of, and strictly comply with, the requirements" for putative fathers who reside in this state. Id. Thus, the Utah legislature has enacted an alternative avenue for putative fathers who live out of state to establish their parental rights.

( 34 Yet, Osborne has made no attempt to show that he has complied with the legal requirements of this state or of any other state in order to establish a legally recognized relationship with the child whose adoption he intends to interrupt. Thus, the court of appeals correctly noted that Osborne "has simply failed to take any timely action to preserve his rights to this child." Osborne, Case No. 20020489-CA at 1. By refusing to comply with the putative father requirements of this state or the state where the mother previously resided, Osborne. has placed himself in the position where Utah courts cannot recognize him as an interested individual with rights to challenge an adoption proceeding. Stated differently, by refusing to take the opportunity to establish that he has preserved his parental rights, Osborne has deprived himself of the ability to challenge the adoption.

135 If we decided to allow every out-of-state putative father to contest an adoption without making some demonstration to a Utah court that he has preserved his parental rights, we would open the gate for any out-of-state person to claim he is the putative father and to interrupt a Utah adoption proceeding by simply alleging that he is the biological father and that Utah law does not apply to him. We should not halt adoptions on the mere allegation of biological fatherhood.

136 If Osborne wants to challenge an adoption, he must appear in a Utah court to establish that he has a right to do so. Osborne has not yet done so, and no Utah court has prohibited him from doing so. Because Osborne has not shown to a district court that he is entitled to any rights that would allow him to challenge the adoption of K.S.B., no ground exists upon which his petition for extraordinary relief may be granted.

T 37 Before we may even consider granting extraordinary relief, a petition must allege circumstances and seek relief of a nature and purpose for which extraordinary relief may be granted under rule 65B. See Renn, 904 P.2d at 688. Osborne's petition does not meet the criteria for granting extraordinary relief because none of the cireumstances alleged in the petition relate to any of the grounds for obtaining such relief. Since Osborne cannot point to any Utah court that has exceeded its authority or jurisdiction, failed to perform any duty, or refused or denied him any rights that would establish grounds upon which extraordinary relief may be granted, the court of appeals properly exercised its discretion in denying his petition.

CONCLUSION

¶38 In his brief, Osborne focuses on questions beyond the threshold issue before us: whether the court of appeals abused its discretion in denying Osborne's petition for extraordinary relief. Because Osborne's petition was not based on any available grounds for relief, the court of appeals did not abuse its discretion. Therefore, we affirm its decision to deny his petition.

139 Justice RUSSON, Justice WILKINS, and Judge BALDWIN concur in Associate Chief Justice DURRANT's opinion. T 40 Justice HOWE does not participate herein, Second District Judge PARLEY R. BALDWIN sat.

1 . It appears from the record in this case that Baker was legally married to a man other than Osborne during Osborne and Baker's relationship.

2 . On July 1, 2002, a North Carolina district court issued a temporary restraining order against Baker, Adoption Center, and the adoptive parents, identified as John and Jane Doe, aimed at preventing them from "taking any steps to further prosecute or perfect any Utah court proceeding affecting [Osborne's] parental rights, specifically any adoption proceeding now pending and involving the minor child [K.S.B.]." This order was issued the day before the Utah Court of Appeals issued its memorandum decision concerning Osborne's petition for a writ of mandamus and injunctive relief in Utah. See infra T1 16-18.

On July 17, 2002, the North Carolina district court replaced the temporary restraining order with a preliminary injunction to the same effect. At the time the preliminary injunction was put into effect, the North Carolina district court was in receipt of copies of both the Utah district court's orders and the Utah Court of Appeals' July 2, 2002, memorandum decision.

3 . Section 78-30-4.24 of the Utah Code allows "[aluy interested party [to] petition the court for a determination of the rights and interests of any person who may claim an interest in a child under [the Utah adoption code]." Id. § 78-30-4.24.

4 . The present status of Osborne's federal action is unclear from the record.

5 . The instant action originated in the court of appeals.

6 . It is not clear from the record whether the court of appeals was aware at the time it ruled on Osborne's petition that the North Carolina district court had issued a temporary restraining order. See supra note 2.

7 . The court heard oral argument in this case on December 4, 2002. Immediately after oral argument by the parties, the court met in conference and deliberated on the appeal. The majority of the court agreed that the decision of the court of appeals should be affirmed. An order lifting our stay of the district court's order finalizing the adoption pending the issuance of this decision was signed the same day, with a notation that an opinion would follow. This is that opinion.

8 . The fourth basis on which extraordinary relief may be granted-'"where the Board of Pardons and Parole has exceeded its jurisdiction," Utah R. Civ. P. 65B(d)(2)(D)-is obviously inapplicable to the facts of this case and need not be discussed.