State v. A.C.M.

2009 UT 30, 221 P.3d 185, 2009 Utah LEXIS 120
Utah Supreme Court·Decided May 29, 2009·No. No. 20070849·Published·Cited by 35 cases

Opinion

PARRISH, Justice:

INTRODUCTION

{1 Arturo Nuosci appeals the juvenile court's order terminating his parental rights over A.C.M. We affirm.

FACTS

12 ACM., a minor child, has lived with Matt and Toni Worthington since October 2004, when he was three months old. He began living with the Worthingtons after his biological father, Mr. Nuogei, was arrested by federal agents on numerous charges. Upon Mr. Nuose!'s arrest, A.C.M.'s biological mother, Rachel Sullivan, took custody of A.C.M., even though she had previously relinquished her parental rights pursuant to a surrogacy agreement with Mr. Nuoseci. Shortly thereafter, she placed A.C.M. with the Worthingtons for the purposes of adoption and again relinquished her rights.

13 The Worthingtons filed an adoption petition in the district court in November 2004, which was subsequently contested by both Mr. Nuosei and Ms. Sullivan. The district court found that neither of Ms. Sullivan's relinquishments of parental rights were valid, the first because it was improperly executed and an extension of an illegal surrogacy contract and the second because it was improperly executed. Though the district court found that both Mr. Nuosei and Ms. Sullivan were proper interveners in the adoption proceeding, and did not find either to be unfit, it awarded permanent custody to the Worthingtons under a best interests of the child analysis. In October 2006, this court reversed the district court's ruling, holding that although the Worthingtons may be the appropriate party to have temporary custody while A.C.M.'s permanent status is determined, the court could not permanently award custody to them because they were "legal strangers" to A.C.M., and neither biological parent had been found unfit. A.N. v. M.I.W. (In re P.N.), 2006 UT 64, ¶ 15, 148 P.3d 927.

T4 Mr. Nuosci responded to this court's ruling in November 2006 by filing a petition for permanent custody in the district court where the failed adoption petition was heard. Before the district court ruled on Mr. Nuosg-ei's petition, Ms. Sullivan and the Worthing-tons filed a joint petition in juvenile court to terminate Mr. Nuosei's parental rights. The district court then stayed proceedings pending resolution of the juvenile court action. Following a two-day trial, the juvenile court ruled that Mr. Nuose!'s rights should be terminated. -It found that Mr. Nuosei's history of deceptive criminal conduct, including the numerous federal felonies to which Mr. Nuosci pleaded guilty in 2005 and several prior convictions in Canadian courts, demonstrated his unfitness to parent A.C.M., par[188] ticularly because he had engaged in criminal conduct in the months just prior up to A.C.M.'s birth and had used A.C.M. to legitimize his existence under an assumed name. The criminal convictions deprived A.C.M. of a normal home and relationship with Mr. Nuosci during his nearly three-year prison sentence and, as a result, A.C.M. formed no bond or emotional attachment to Mr. Nuoseci. The juvenile court further found that, as a result of his eriminal convictions, Mr. Nuosei had been permanently deported to Canada and requiring A.C.M. to develop a relationship with his father "would be severely disruptive to [A.C.M.'s] physical, mental, and emotional condition." As additional support for the decision to terminate Mr. Nuosei's parental rights, the district court mentioned Mr. Nuosei's abusive behavior toward his ex-domestic-partner, Lonnie James, and toward Ms. Sullivan, finding that Mr. Nuosci has a history of violent behavior. Mr. Nusoci filed this appeal. We have jurisdiction under Utah Code section 78A-8-102(8)(b).

1 5 During the pendency of the petition to terminate Mr. Nuosei's parental rights, the Worthingtons and Ms. Sullivan appeared to be working toward a permanent custody solution. By August 2007, A.C.M. was occasionally spending the night at Ms. Sullivan's home. However, around Labor Day 2007, their relationship disintegrated. After the juvenile court announced its order terminating Mr. Nuosei's rights, but before the written order issued, Ms. Sullivan filed a petition for sole custody of A.C.M., and the Wor-thingtons filed a petition to terminate Ms. Sullivan's parental rights. The juvenile court has not yet held a hearing on either of these petitions.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Mr. Nuosci appeals on several grounds. First, he argues that the juvenile court did not have jurisdiction to hear a petition to terminate his parental rights because the district court had previously considered a contested adoption petition regarding A.C.M. Whether jurisdiction is proper is a legal question that we review for correctness, giving no deference to the lower court's determination. See State v. Moreno, 2009 UT 15, ¶ 7, 203 P.3d 1000.

17 Second, Mr. Nuosei argues that because the juvenile court previously considered his fitness and did not terminate his parental rights, the doctrine of res judicata bars relitigation of his fitness. The application of res judicata is a legal determination, and we review for correctness the juvenile court's decision not to apply it in this case. Grynberg v. Questar Gas Pipeline Co., 2003 UT 8, ¶ 21, 70 P.3d 1.

¶ 8 Finally, Mr. Nuoseci alleges the following deficiencies with the juvenile court's order and proceedings: that the court did not have sufficient grounds to terminate his rights, that it did not consider A.C.M.'s best interests, and that it did not consider his present ability and willingness to function as a parent. "Whether a parent's rights should be terminated presents a mixed question of law and fact." State ex rel. B.R. v. S.M., 2007 UT 82, ¶ 12, 171 P.3d 435. We afford great deference to the juvenile court's findings of fact and overturn the result only if the facts are against the clear weight of the evidence. Id. We review the juvenile court's interpretation of the Termination of Parental Rights Act for correctness. State ex rel. V.H. v. State, 2007 UT App 1, ¶ 10, 154 P.3d 867.

T9 Before we address these issues, we first address the guardian ad litem's argument that the order terminating Mr. Nuose!'s rights was not a final and appealable order, thereby depriving this court of jurisdiction to hear his appeal. We then address each of Mr. substantive contentions.

ANALYSIS

I. THE ORDER TERMINATING MR. NUOSCTS PARENTAL RIGHTS IS FINAL AND APPEALABLE

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State v. A.C.M., 2009 UT 30, 221 P.3d 185, 2009 Utah LEXIS 120 (Utah 2009).

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