In re C.C. and K.H. (S.C. v. State) , 2013 UT 26 ( 2013 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2013 UT 26301 P.3d 1000IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH, in the interest of C.C. and K.H.,
persons under eighteen years of age.
________________________________________________
S.C.,
Appellant,
v.
STATE OF UTAH,
Appellee.
No. 20120016
Filed: May 7, 2013
Fourth District Juvenile, Provo Dep’t
The Honorable Suchada P. Bazzelle
No. 1037317
Attorneys:
Ronald D. Wilkinson, Orem, Sara Pfrommer, Park City,
for appellant
John Swallow, Att’y Gen., John M. Peterson, Asst. Att’y Gen.,
Salt Lake City, for appellee, State of Utah
Charisma V. Buck, Lehi, for appellee, Adoptive Parents
Martha M. Pierce, Salt Lake City for the Office of the
Guardian ad Litem
CHIEF JUSTICE DURRANT authored the opinion of the Court,
in which ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, JUSTICE PARRISH, and JUSTICE LEE joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
INTRODUCTION
¶1 This case concerns competing petitions to adopt C.C., a
five-year-old child. C.C. was removed from his home by the Di-
vision of Child and Family Services (DCFS). After the juvenile
In re C.C.
Opinion of the Court
court terminated his mother’s parental rights, it faced two com-
peting petitions to adopt him—one from his grandmother and
the other from his foster parents. The court consolidated the
competing petitions, granted procedural priority to the foster
parents, and dismissed the grandmother’s petition without first
holding a hearing to consider the merits of her petition. We must
decide whether the juvenile court properly handled these com-
peting petitions.
¶2 We conclude that the juvenile court erred when it gave
priority to the foster parents’ petition and dismissed the grand-
mother’s petition without considering its merits. In order to prop-
erly determine the best interests of children placed for adoption,
courts must hold a hearing and consider the merits of each com-
peting adoption petition.
BACKGROUND
¶3 In 2010, at C.C.’s maternal grandmother’s (Grandmother)
request, DCFS removed C.C. from his home out of concern for his
welfare. The juvenile court ruled that C.C.’s mother had neglected
him and gave custody of C.C. to DCFS, which ultimately placed
him in a foster home with his current adoptive parents (Foster
Parents) on April 2, 2011.
¶4 DCFS initially sought to reunite C.C. with his mother.
Grandmother supported the reunification process and did not in-
itially seek custody of C.C. When C.C.’s mother failed to progress
toward reunification, however, DCFS terminated its reunification
services. DCFS set a new permanency goal of adoption for C.C.,
and, in May 2011, the State petitioned to terminate the parental
rights of C.C.’s mother (Termination Case).
¶5 On June 7, 2011, Grandmother filed a petition, styled as a
“Verified Petition for Relief” (Petition for Relief). The first heading
in the Petition for Relief states that the petition is for “Custody or,
in the Alternative, Grandparent’s Visitation.” The second heading
states the petition is for “Adoption; or in the Alternative Custody
or Guardianship; or in the Alternative Visitation.” Grandmother
filed her petition in the State’s Termination Case pursuant to the
Custody and Visitation for Persons Other Than Parents Act.1
1 UTAH CODE §§ 30-5a-101 to -104.
2
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¶6 Grandmother then attended several hearings in the Ter-
mination Case. At a contempt hearing for C.C.’s mother, the juve-
nile court suspended Grandmother’s visitation rights because the
visits had become confusing to C.C. Then, at the parental termina-
tion hearing, the juvenile court advised Grandmother that she
must complete a background check and undergo a home study
before the court would consider her as a placement for custody of
C.C. The court told Grandmother that she was responsible for
completing these requirements.
¶7 After filing her Petition for Relief, Grandmother initiated
discovery against the Guardian ad Litem (GAL) and DCFS. DCFS
disputed whether Grandmother was really a party to the State’s
Termination Case and asserted that she was not entitled to con-
duct discovery. The court told Grandmother to first file a motion
to intervene, which Grandmother did on September 22, 2011 (Mo-
tion to Intervene). The juvenile court ultimately denied Grand-
mother’s Motion to Intervene on December 2, 2011.
¶8 In the meantime, Grandmother appeared at a pretrial
hearing for her Motion to Intervene and her Petition for Relief in
November 2011. At this hearing, the juvenile court advised
Grandmother that it would not treat her Petition for Relief as an
adoption petition because it had not been filed properly. The court
told her that she must “perfect” her petition by filing the appro-
priate documents and fees.
¶9 The court terminated C.C.’s mother’s parental rights on
September 1, 2011, although the court did not enter its formal or-
der until November 30, 2011. Meanwhile, Foster Parents had filed
an adoption petition on September 21, 2011. Given the uncertain
status of Grandmother’s Petition for Relief, Foster Parents also
filed a “Motion to Clarify, Consolidate[, and] Give Priority” to
their adoption petition over Grandmother’s Petition for Relief
(Motion to Prioritize). On December 7, 2011, the juvenile court no-
tified Grandmother and Foster Parents that it would hold a joint
hearing to consider Grandmother’s Petition for Relief and Foster
Parent’s adoption petition. The court set the hearing for December
21, 2011. The court stated in its notice that it would consider ar-
guments as to whether (1) “the [Foster Parents’] Petition for
Adoption and [Grandmother’s Petition for Relief] should be con-
solidated” and (2) “which petition should have procedural priori-
ty.”
3
In re C.C.
Opinion of the Court
¶10 The day before the hearing, Grandmother perfected her
Petition for Relief as an adoption petition by filing the documents
and fees requested by the court, although she maintains that her
petition qualified as an adoption petition as of June 7 when she
first filed it. At the hearing, the court received proffers of evidence
and arguments on whether to consolidate and prioritize the com-
peting adoption petitions. The court then issued an order granting
priority to Foster Parents, stating that it would immediately move
forward with a hearing on the merits of Foster Parents’ petition
and would consider Grandmother’s Petition for Relief only if it
declined to approve Foster Parents’ adoption of C.C.
¶11 On December 23, 2011, the court granted Foster Parents’
adoption petition and dismissed Grandmother’s Petition for Re-
lief. Grandmother maintains that she did not receive notice of Fos-
ter Parents’ final adoption hearing until December 27, 2011—after
the court had granted Foster Parents’ petition. Grandmother ap-
peals from the court’s December 23 order granting Foster Parents’
petition and dismissing her Petition for Relief. We have jurisdic-
tion over this matter pursuant to section 78A-3-102(3)(b) of the
Utah Code.
ANALYSIS
¶12 On appeal, Grandmother argues that the juvenile court
erred in denying a hearing on the merits of her Petition for Relief,
granting priority to Foster Parents’ adoption petition, and deny-
ing her notice and an opportunity to appear at Foster Parents’
adoption hearing. She also claims the court erred by denying her
Motion to Intervene in the State’s Termination Case. These claims
present questions of statutory interpretation and also require us to
determine whether the juvenile court applied correct legal stan-
dards, all of which are reviewed for correctness.2 Finally, she ar-
gues that, if we remand the case, the juvenile judge should be dis-
qualified. We review this claim for correctness.3
2 Chen v. Stewart, 2004 UT 82, ¶ 19, 100 P.3d 1177; State v. Lusk,
2001 UT 102, ¶ 11, 37 P.3d 1103.
3 State v. Alonzo, 973 P.2d 975, 979 (Utah 1998) (“Determining
whether a trial judge committed error by failing to recuse himself
or herself . . . is a question of law . . . .”).
4
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¶13 We first consider whether Grandmother preserved her
claims for appeal. Based on an independent review of the record,
we conclude that Grandmother preserved her claim that she was
entitled to a hearing on the merits of her Petition for Relief. We
then consider the merits of that claim and whether the juvenile
court erred in denying her Motion to Intervene in the State’s Ter-
mination Case.
I. GRANDMOTHER PRESERVED HER CLAIM TO A HEAR-
ING ON THE MERITS OF HER PETITION FOR RELIEF AND, IN
MAKING THAT CLAIM ON APPEAL, SHE MAY ARGUE THAT
IN RE ADOPTION OF A.B. SHOULD BE OVERRULED; BUT SHE
EITHER FAILED TO PRESERVE HER OTHER ARGUMENTS OR
WE DECLINE TO REACH THEM
¶14 The State, GAL, and Foster Parents collectively argue that
Grandmother failed to preserve the following claims: (A) that
Grandmother was entitled to a hearing on the merits of her Peti-
tion for Relief; (B) that In re Adoption of A.B.4 is bad law and
should be overturned; (C) that Grandmother was entitled to no-
tice and an opportunity to appear at Foster Parents’ final adoption
hearing; (D) that the juvenile court should have taken the initia-
tive to order a home study and consideration of kinship place-
ment; and (E) that the juvenile judge should be disqualified.
¶15 As an initial matter, Grandmother’s opening brief does
not comply with the Utah Rules of Appellate Procedure. Rule 24
provides that “[t]he brief of the appellant shall contain under ap-
propriate headings . . . citation to the record showing that the is-
sue was preserved in the trial court; or . . . a statement of grounds
for seeking review of an issue not preserved in the trial court.”5 In
her opening brief, Grandmother did not provide any citations to
the record showing that she preserved her arguments. Further,
she did not state any ground for seeking review of an unpre-
served issue. We conclude, however, that Grandmother has pro-
vided sufficient citation to the record in her reply brief so as to sa-
tisfy her “burden of argument and research” on appeal.6 We
4 1999 UT App 315, 991 P.2d 70.
5 UTAH R. APP. P. 24(a).
6See Water & Energy Sys. Tech., Inc. v. Keil, 2002 UT 32, ¶ 21, 48
P.3d 888 (“[T]his court will not become simply a depository in
5
In re C.C.
Opinion of the Court
therefore exercise our discretion to overlook Grandmother’s tech-
nical noncompliance with rule 24.7
¶16 “We will not address an issue if it is not preserved or if
the appellant has not established other grounds for seeking re-
view.”8 In determining whether an issue has been preserved, we
have recognized the general rule that “the issue must be pre-
sented to the trial court in such a way that the trial court has an
opportunity to rule on that issue.”9 To give the court this oppor-
tunity, “(1) the issue must be raised in a timely fashion; (2) the is-
sue must be specifically raised; and (3) a party must introduce
supporting evidence or relevant legal authority.”10
¶17 “[W]e have recognized [only] three instances in which an
appellate court may address an issue for the first time on ap-
peal.”11 These include “(1) where the appellant establishes that the
trial court committed ‘plain error’; (2) where ‘exceptional circums-
tances’ exist; or (3) in some situations, where a claim of ineffective
assistance of counsel is raised on appeal.”12 Further, we are “pro-
which the appealing party may dump the burden of argument
and research.” (internal quotation marks omitted)); see also Hoyer
v. State, 2009 UT 38, ¶ 21, 212 P.3d 547 (declining to strike portions
of a party’s brief for failing to cite to the record because the party
provided amendments that relieved the court of “the expense and
time of performing the critical task of marshaling the evidence”
(internal quotation marks omitted)).
7 See Martinez v. Media-Paymaster Plus/Church of Jesus Christ of
Latter-day Saints, 2007 UT 42, ¶¶ 19–20, 164 P.3d 384 (stating, in
the context of a different provision of rule 24, that “[t]he review-
ing court . . . retains discretion to consider independently the
whole record”).
8 H.U.F. v. W.P.W., 2009 UT 10, ¶ 25, 203 P.3d 943.
9 Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366 (internal quota-
tion marks omitted).
10 Id. (internal quotation marks omitted).
11 State v. Weaver, 2005 UT 49, ¶ 18, 122 P.3d 566.
12 Id.6
Cite as: 2013 UT 26Opinion of the Court
cedurally barred” from considering any of these three instances if
the party fails to allege them in its opening brief.13
¶18 Below, we apply the above principles to determine
whether Grandmother preserved her claims.
A. Grandmother Preserved Her Claim that She Was Entitled to a
Hearing on the Merits of Her Petition for Relief
¶19 After an independent review of the record, we conclude
that Grandmother preserved her claim that she was entitled to a
hearing on the merits of her Petition for Relief. At the December
21 hearing, Grandmother presented two arguments to the juvenile
court in support of her claim to a hearing. First, she argued that
due process entitled her to a hearing, stating that “[a]t no time has
this Court set a hearing on [Grandmother’s] petition. . . . [Grand-
mother] has never been given [the] opportunity to be heard.” She
argued further that “[d]ue process requires not just an opportuni-
ty to attend a Court hearing or two, but an opportunity to partici-
pate meaningfully in the process.” Grandmother repeated this ar-
gument throughout the hearing.
¶20 Second, Grandmother argued that the “best interests of
the child” standard required the juvenile court to conduct a hear-
ing on the merits of her petition. She argued that, “[a]s the Court
is weighing things, we believe that it’s best interests that should
control and, certainly, with that at stake, that this Court should
give the opportunity to have a full evidentiary hearing to make
that assessment.” Grandmother also cited legal authority—the Ju-
venile Court Act—as authority to support her theory.
¶21 Finally, Grandmother gave the juvenile court an oppor-
tunity to rule on her claim that she was entitled to a hearing, and
the court addressed her argument in its order. The court noted
that Grandmother had “argued emphatically that her due process
rights have not yet been met regarding her Petition for Relief.”
But the court then granted procedural preference to Foster Parents
and concluded that it would grant a hearing to Grandmother only
if it denied Foster Parents’ petition. Because the juvenile court had
an opportunity to rule on her claim—and in fact did rule—we
conclude that Grandmother preserved her claim that she was en-
titled to a hearing on the merits of her Petition for Relief.
13 Id. ¶ 19.
7
In re C.C.
Opinion of the Court
B. Grandmother May Argue on Appeal that In re Adoption of A.B.
is Contrary to the “Best Interests of the Child” Standard, Even Though
She Did not Cite the Case in Her Arguments to the Juvenile Court
¶22 While before the juvenile court, Grandmother argued that
the best-interests standard entitles her to a hearing. She did not,
however, specifically argue that In re Adoption of A.B. should be
overruled, as she does now on appeal. We conclude that Grand-
mother’s argument concerning In re Adoption of A.B. can fairly be
seen as simply part of her broader argument that the “best inter-
ests of the child” standard requires the juvenile court to give her a
hearing on her petition. Accordingly, she did not need to specifi-
cally cite this case in order to argue on appeal that it should be
overturned.
¶23 In Torian v. Craig, we considered an instance of a litigant
raising new legal authority on appeal after having adequately
preserved his theory below.14 We held that a litigant did not have
a duty to preserve specific legal authority. Specifically, we stated
that “[a] litigant has no obligation to ‘preserve’ [her] citation to
legal authority.”15 We noted that “[i]f the foundation of a claim or
argument is presented in a manner that allows the district court to
rule on it, a party challenging the lower court’s resolution of that
matter is free to marshal any legal authority that may be relevant
to its consideration on appeal.”16
¶24 In this case, the juvenile court relied on In re Adoption of
A.B. to consolidate Grandmother’s Petition for Relief and later
dismiss the petition without a separate hearing. Grandmother
now argues that In re Adoption of A.B. should be overruled because
it is contrary to her theory that the “best interests of the child”
standard requires the juvenile court to provide her a hearing on
her petition. Because Grandmother preserved her broader argu-
ment that the best-interests standard entitles her to a hearing, she
may argue on appeal that In re Adoption of A.B. should be over-
ruled.
14 2012 UT 63, ¶¶ 18–19, 289 P.3d 479.
15 Id. ¶ 20.
16 Id.
8
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C. Grandmother Preserved Her Claim that She Was Entitled to No-
tice and an Opportunity to Participate at Foster Parents’ Adoption
Hearing, but it is Unnecessary to Reach This Issue on Appeal
¶25 Grandmother further argues that the juvenile court erred
when it granted Foster Parents’ adoption of C.C. without giving
her notice and an opportunity to participate. The State contends
that Grandmother did not preserve this due process claim and
notes that “[w]hile [she] might claim she was prevented from
doing so by lack of notice, nothing prevented [her] from filing a
post-judgment motion seeking to set aside the adoption based
upon her alleged lack of notice.” As to this latter point, we disag-
ree. Our preservation rule “does not require a party to file a post-
judgment motion before the trial court as a prerequisite to filing
an appeal.”17 Further, we have recognized that “[t]he general pre-
servation rule does not apply . . . when the alleged error first aris-
es in the lower court’s final order or judgment and thus, leaves no
opportunity for the party to object below or to bring issues to the
attention of the trial court.”18
¶26 Although the preservation rule does not bar review of
this issue, we decline to reach it given our resolution of this case
on alternative grounds. Because we conclude that the juvenile
court erred by dismissing Grandmother’s Petition for Relief with-
out a hearing on the merits, it is unnecessary to decide whether
Grandmother should have received notice and an opportunity to
participate at a hearing that now has no legal effect.19
D. Grandmother Failed to Preserve Her Claim that DCFS Has an
Ongoing Duty to Evaluate Relatives for C.C.’s Placement
¶27 Grandmother also argues that DCFS had an obligation to
initiate and conduct her home study and background checks even
after the 120-day preference period for relatives expired.20 Specifi-
17 Sittner v. Schriever, 2000 UT 45, ¶ 16, 2 P.3d 442.
18 State ex rel. D.B. v. State, 2012 UT 65, ¶ 34, 289 P.3d 459 (in-
ternal quotation marks omitted).
19See Gardner v. State, 2010 UT 46, ¶ 93, 234 P.3d 1115 (noting
“our obligation to avoid addressing constitutional issues unless
required to do so” (internal quotation marks omitted)).
20 See UTAH CODE § 78A-6-307(18).
9
In re C.C.
Opinion of the Court
cally, she contends “[t]he Juvenile Court should have ordered
DCFS to complete the home study by a date certain and then
scheduled a full evidentiary hearing on both petitions for a date at
which Grandmother could appear with all of the court-imposed
prerequisites met.” We conclude that Grandmother did not pre-
serve this issue. Indeed, she did not specifically raise it below or
give the juvenile court an opportunity to rule on it.
¶28 Instead, the closest Grandmother came to making this ar-
gument below was at the December 21 hearing when she stated,
“We have not received the DCFS home study, although we’ve
made that request, and believe that it would be inappropriate to
go forward without assessing [the] best interest[s of the child].”
Grandmother made a number of complaints about DCFS at the
hearing, but they all related to delay rather than a violation of
DCFS’s obligations to her. Further, Grandmother cited none of the
legal authority she now provides on appeal. Finally, Grandmother
has not argued that the court committed plain error or that excep-
tional circumstances exist that would permit us to consider this
issue for the first time on appeal. Accordingly, we conclude that
she failed to preserve this issue.
E. Grandmother is Free to Comply with Rule 63(b) and Assert Her
Claim of Judicial Bias Upon Remand
¶29 Finally, Grandmother argues that, in the event that we
remand this case, we should assign it to a different judge. But
Grandmother did not present this claim to the juvenile court. Utah
law is clear that “[a] party alleging judicial bias or prejudice must
first file an affidavit to that effect in the trial court.”21 Grandmoth-
er does not dispute this rule. But she claims that she did not learn
of the circumstances creating the bias until she received the record
as part of her appeal, so she “could not raise an issue of bias” be-
low.
¶30 We note, however, that Grandmother still has an oppor-
tunity to comply with this rule by filing an affidavit with the ju-
venile court upon remand. We have stated that “[t]o be timely, a
motion to disqualify should be filed at counsel’s first opportunity
21Campbell, Maack & Sessions v. Debry, 2001 UT App 397, ¶ 24,
38 P.3d 984; see also UTAH R. CIV. P. 63(b) (outlining process for
disqualifying a judge).
10
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after learning of the disqualifying facts.”22 Because Grandmother
did not discover the facts supporting her allegation of judicial bias
until after filing her appeal, she could not have complied with the
affidavit requirement while at the juvenile court. Accordingly, her
first opportunity to do so would be on remand. We therefore de-
cline to prematurely consider the merits of this claim.
II. TO PROPERLY EVALUATE THE BEST INTERESTS OF A
CHILD, COURTS MUST HOLD A HEARING ON THE MERITS
OF COMPETING ADOPTION PETITIONS
¶31 In its December 22 order, the juvenile court granted pro-
cedural preference to Foster Parents and ordered an evidentiary
hearing on their petition. The court stated that it would consider
Grandmother’s competing petition only if it denied Foster Par-
ents’ petition. Because the court later granted Foster Parents’ peti-
tion, it dismissed Grandmother’s competing petition without ad-
dressing its merits. Grandmother contends that this process of
prioritizing one adoption petition over another is improper be-
cause it violates the Adoption Act’s mandate that the best inter-
ests of the child should control.23 She argues that “if more than
one legitimately interested party wishes to adopt a child, it is im-
possible for the Juvenile Court to fully and fairly determine the
best outcome without conducting a full evidentiary hearing on the
respective merits of both.” We agree.24
¶32 As an initial matter, the parties dispute the date on which
Grandmother filed an adoption petition. Grandmother maintains
that the Petition for Relief she filed on June 7, 2011, was an adop-
tion petition. The juvenile court concluded, however, that
Grandmother’s Petition for Relief was not an adoption petition
until December 20, 2011, when she perfected her filing. Ultimate-
22 Camco Constr., Inc. v. Utah Baseball Acad., Inc., 2010 UT 63, ¶
17, 243 P.3d 1269 (internal quotation marks omitted).
23 UTAH CODE § 78B-6-102(1).
24 Grandmother also contends that the prioritization process
violates her fundamental due process right as a grandparent “to
have her petition considered and heard.” Because we base our
resolution of this issue on the best interests of the child, we need
not reach Grandmother’s alternative due process claim.
11
In re C.C.
Opinion of the Court
ly, we need not decide whether Grandmother’s Petition for Relief
constituted an adoption petition when she first filed it. All the
parties agree that Grandmother filed an adoption petition by De-
cember 20, 2011, before the juvenile court granted priority to Fos-
ter Parents. She thus timely filed a “competing” petition to adopt
C.C. because, as of December 20, 2011, when Grandmother per-
fected her Petition for Relief, C.C. was still available for adop-
tion.25
¶33 The process by which a court should consider competing
adoption petitions is a matter of first impression for this court.
Further, the Utah Adoption Act is silent on the issue.26 The court
of appeals, however, has developed case law to guide lower
courts facing this question. In In re Adoption of A.B., the court of
appeals considered competing petitions for the adoption of three
children.27 The adoptive parents, who were paternal cousins of the
children, filed first and received a hearing.28 On the day of their
hearing, the children’s maternal grandmother objected and filed
her own petition.29
¶34 The court of appeals relied on rule 42 of the Utah Rules of
Civil Procedure to consolidate the competing adoption petitions.30
It then determined that “[i]n a consolidated adoption proceeding,
the court may determine that one petition is the primary matter to
be decided and hear that petition first. If that petition is granted,
25 A petition filed after an adoption has already been finalized
would not be a “competing” adoption petition for purposes of our
analysis in this case because the child would no longer be availa-
ble for adoption.
26 See, e.g., J.N. v. State (In re Adoption of J.N.), 2000 UT App 73,
¶ 19, 997 P.2d 345 (stating that “Utah’s adoption statute does not
address [multiple] adoption petitions” (alteration in original) (in-
ternal quotation marks omitted)).
27 1999 UT App 315, ¶ 2, 991 P.2d 70.
28 Id. ¶ 6.
29 Id. ¶ 7.
30 Id. ¶ 14.
12
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the adoption placement is concluded and there is no need to con-
sider the second petition.”31 The court also noted, however, that
“[a]n examination of the comparative merits of the competing pe-
tition for adoption could fall appropriately within [the consolida-
tion] proceeding, if warranted.”32
¶35 The court in In re Adoption of A.B. found that the adoptive
parents filed first and were more compliant with Utah’s adoption
statute.33 It thus found it proper to prioritize and hear the adop-
tive parents’ petition first.34 The court noted that “[a]lthough the
[lower] court . . . briefly addressed grandmother’s petition to
adopt, the court was under no further legal obligation to do so
once it had granted the adoptive parents’ petition.”35 After In re
Adoption of A.B., it was clear that courts could consolidate and pri-
oritize competing adoption petitions. It also seemed clear that, af-
ter a court heard one petition, it had no duty to hear competing
petitions.
¶36 In In re Adoption of J.N., however, the court of appeals
suggested otherwise. In that case, an aunt and uncle sought to set
aside the adoption of their niece and nephew to nonrelatives.36
They filed for a restraining order after they received notice of the
adoptive parents’ hearing with time, place, and date redacted.37
Because it was unclear whether the aunt and uncle had filed a
competing adoption petition, the court of appeals remanded the
case to the juvenile court to determine whether appellants had ac-
tually filed a petition.38 But the court noted that “[w]hile the court
may consolidate adoption petitions and determine that one peti-
31 Id. (footnote omitted) (citation omitted).
32 Id. ¶ 14 n.4.
33 Id. ¶ 15.
34 Id.
35 Id.
36 2000 UT App 73, ¶ 1.
37 Id. ¶ 11.
38 Id. ¶ 18.
13
In re C.C.
Opinion of the Court
tion is the primary matter to be decided, notice must nevertheless
be given to all those who have unadjudicated adoption petitions
on file with the court in the matter, as they are also parties to the
judicial proceeding.”39 It then directed that “if the juvenile court
determines that appellants filed an adoption petition, they must
be afforded their due process rights to notice and a hearing.”40
¶37 In light of these opinions, it is unclear what duty, if any, a
court has to a party who files a competing adoption petition. We
now take the opportunity to clarify the law on this important is-
sue. We recognize at the outset that, although the Adoption Act is
silent on the issue of competing petitions, it nevertheless offers
guiding principles that direct our decision of this issue. Foremost
of these principles is that we must hold the child’s best interests
paramount: “[i]t is the intent and desire of the Legislature that in
every adoption the best interest of the child should govern and be
of foremost concern in the court’s determination.”41
¶38 Further, the Adoption Act directs that “the rights and in-
terests of all parties affected by an adoption proceeding must be
considered and balanced in determining what constitutional pro-
tections and processes are necessary and appropriate.”42 Finally,
the Adoption Act states that “the state has a compelling interest in
providing stable and permanent homes for adoptive children in a
prompt manner, [and] in preventing the disruption of adoptive
placements.”43
¶39 Based on these principles, we conclude that courts must
conduct a hearing on the merits of competing adoption petitions.
The prioritization process established by the court of appeals, and
followed here by the juvenile court, allows for prioritization of
one adoption petition over another on grounds potentially unre-
39 Id. ¶ 20 (citation omitted) (internal quotation marks omit-
ted).
40 Id.
41 UTAH CODE § 78B-6-102(1).
42 Id. § 78B-6-102(3).
43 Id. § 78B-6-102(5)(a).
14
Cite as: 2013 UT 26Opinion of the Court
lated to the best interests of the child. This process is therefore in-
consistent with the legislative directives in the Adoption Act.
¶40 In the case now before us, the juvenile court justified its
decision to prioritize Foster Parents’ petition over Grandmother’s
first on the ground that Grandmother did not file the documents
and fees requested by the court to perfect her petition as an adop-
tion petition until after Foster Parents had filed their adoption pe-
tition. Second, the court determined that Foster Parents’ petition
was more compliant with the Adoption Act because Grandmother
had failed to complete her pre-placement study and background
check. The court recognized that C.C. had lived with Foster Par-
ents for more than six months, thus qualifying Foster Parents for
entry of a final adoption decree44 and for a statutory preference as
foster parents.45 Finally, the court noted that Grandmother initial-
ly supported her daughter’s reunification with C.C. instead of
immediately seeking adoption, did not file her Petition for Relief
until nearly a year after C.C. was placed with DCFS, and did not
move for custody of C.C. during the 120-day kinship preference
period.46
¶41 All of the court’s stated reasons for prioritizing Foster
Parents’ petition may, in fact, be true. But it could nevertheless be
true that it is in C.C.’s best interest to be adopted by Grandmother
instead of Foster Parents. Questions of which party filed its peti-
tion first or which party is more compliant with the Adoption Act,
for example, do not necessarily relate to a child’s best interests.
And while statutory preferences provide important guidance,
they do not conclusively control what is ultimately in a child’s
best interests. Accordingly, in order to ensure that courts properly
44 See id. § 78B-6-136.5(1) (stating that “a final decree of adop-
tion may not be entered until . . . the child has lived in the home of
the prospective adoptive parent for six months”).
45 See id. § 78B-6-132(1) (stating that “the court shall give spe-
cial consideration to the relationship of the child with his foster
parents, if the child has been in that home for a period of six
months or longer”).
46 See id. § 78A-6-307(18)(a) (“Any preferential consideration
that a relative . . . is initially granted . . . expires 120 days from the
date of the shelter hearing.”).
15
In re C.C.
Opinion of the Court
analyze a child’s best interests when faced with multiple adoption
petitions, we conclude that competing petitioners are each entitled
to a hearing on the merits of their petitions.47
¶42 Requiring courts to conduct a hearing on the merits for
competing adoption petitions better balances “the rights and in-
terests of all parties affected by an adoption proceeding.”48 The
court of appeals’ prioritization process allows courts to prioritize
and grant one petition without considering the merits of the
second petition. This process allows parties’ important interests to
potentially go unassessed. But the Adoption Act, with its direction
to consider “the rights and interests of all parties,”49 contemplates
a more balanced and thorough approach. Such an approach re-
quires a hearing on the merits for competing adoption petitions.
¶43 Finally, we are mindful of the State’s compelling interest
“in providing stable and permanent homes for adoptive children
in a prompt manner [and] in preventing the disruption of adop-
tive placements.”50 We recognize that prioritizing one petition
over another could promote this interest by allowing courts to fo-
cus on the petition that—at a given point in the litigation—is more
timely and more compliant with the Adoption Act. We therefore
47 We are not the first court to conclude that a child’s best in-
terests should control a court’s decision between competing adop-
tion petitions. In In re Adoption of Redcrow, a district court in Mon-
tana was faced with competing petitions for adoption. 563 P.2d
1121, 1122 (Mont. 1977). It delayed determination of one petition
until the other petitioner could clear up defects in its petition. Id.
at 1123. The district court eventually granted the second petition,
and the first petitioner claimed on appeal that the district court
abused its discretion by delaying determination of its petition. Id.
The Montana Supreme Court affirmed. Specifically, it held that
“[t]he paramount consideration in deciding between . . . compet-
ing parties is what is in the best interests of the child.” Id. It noted
that it “cannot be forced to don blinders to other aspects of the
case on the theory that the early bird should catch the worm.” Id.
48 UTAH CODE § 78B-6-102(3).
49 Id.
50 Id. § 78B-6-102(5)(a).
16
Cite as: 2013 UT 26Opinion of the Court
stress that our opinion today does not prevent courts from mov-
ing forward with an adoption petition that is timely, compliant
with the law, and appears to be in the best interests of the child.
We simply conclude that it is in the best interests of children
placed for adoption to give competing petitioners a chance to as-
sert their interests.
¶44 To this end, courts are free to consolidate adoption peti-
tions pursuant to rule 42 of the Utah Rules of Civil Procedure51
and hold a joint evidentiary hearing to consider the relative merits
of competing petitions. Or, in their discretion, courts may instead
decide to consider the petitions separately when, for example,
privacy is a concern. Further, timeliness is still a relevant factor in
a court’s decision to grant one petition over another. A court may
take note, for example, of a competing petition’s level of statutory
compliance and its timeliness relative to the first petition’s stage
of advancement toward an ultimate award of adoption. But the
court’s decision to grant one petition over another must also rest
on the relative merits of the competing petitions as they relate to
the best interests of the child. Such a decision can only be made
after conducting a hearing on the merits for each competing peti-
tion. Accordingly, we conclude that the juvenile court erred in
prioritizing Foster Parents’ adoption petition and dismissing
Grandmother’s petition without first holding a hearing on its me-
rits.52
51 This rule provides that “[w]hen actions involving a common
question of law or fact are pending before the court, it may order
a joint hearing or trial of any or all the matters in issue in the ac-
tions.”
52 Grandmother also argues that the juvenile court violated the
Utah Rules of Civil Procedure by holding the consolidation hear-
ing on December 21, 2011, which was fifteen days after the Foster
Parents filed and mailed their Motion to Clarify, Consolidate and
Prioritize Petitions. She contends that this time period did not al-
low for the required response time under rule 7 and that the
court’s violation warrants reversal. Because we now decide to
overrule the court of appeals’ decisions relating to prioritization,
we do not reach this issue.
17
In re C.C.
Opinion of the Court
III. BECAUSE THE JUVENILE COURT DID NOT STATE
THAT ITS ORDER DENYING GRANDMOTHER’S MOTION TO
INTERVENE WAS FINAL FOR PURPOSES OF APPEAL, WE DO
NOT HAVE JURISDICTION TO CONSIDER IT
¶45 Grandmother argues that the juvenile court erred by de-
nying her Motion to Intervene in the State’s Termination Case.
GAL responds that Grandmother failed to timely appeal the juve-
nile court’s order denying Grandmother’s Motion to Intervene.
Specifically, the court issued its order denying Grandmother’s
Motion to Intervene on December 2, 2011, but Grandmother did
not file her notice of appeal until January 6, 2012, more than thirty
days later.53 Grandmother responds that “an order is not final un-
less it specifies that it is a final order” and that the “December 2
order contains no such language.” Accordingly, Grandmother as-
serts that, because the court’s December 2 order does not state that
it is final for purposes of appeal, her appeal rights have not been
cut off.54 We agree.
¶46 But as we recently held in Central Utah Water Conservancy
District v. King, the court’s failure to include this language de-
prives us of jurisdiction to hear the appeal until the court directs
that no additional order is necessary or a party prepares an order
consistent with the court’s decision.55 We therefore lack jurisdic-
tion to consider this claim and dismiss it without prejudice.
CONCLUSION
¶47 We conclude that the juvenile court erred when it priori-
tized Foster Parents’ adoption petition and dismissed Grand-
mother’s competing petition without first holding a hearing on its
merits. In order to properly determine the best interests of child-
ren placed for adoption, courts must hold a hearing and consider
the merits of competing petitions. We therefore reverse and re-
53 See UTAH R. APP. P. 4(a) (“In a case in which an appeal is
permitted as a matter of right . . . , the notice of appeal . . . shall be
filed with the clerk of the trial court within 30 days after the date
of entry of the judgment or order appealed from.”).
54 See Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 35, 201
P.3d 966.
55 2013 UT 13, ¶¶ 15, 25, __ P.3d __.
18
Cite as: 2013 UT 26Opinion of the Court
mand this case to the juvenile court for a hearing consistent with
this opinion.
19