In re J.B. , 2018 UT 15 ( 2018 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 15
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH, in the interest of J.B., a person under eighteen years
of age.
J.M.B.,
Appellant,
v.
STATE OF UTAH,
Appellee.
No. 20151083
Filed April 24, 2018
On Direct Appeal
Second District Juvenile Court, Farmington
The Honorable J. Mark Andrus
No. 1091623
Attorneys:
Scott L. Wiggins, Salt Lake City, for appellant
Sean D. Reyes, Att’y Gen., Carol L. C. Verdoia, John M. Peterson,
Asst. Att’ys Gen., Salt Lake City, for appellee
Martha Pierce, Salt Lake City, for Office of Guardian ad Litem
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and
JUDGE TOOMEY joined.
Due to her retirement, JUSTICE DURHAM did not participate herein;
COURT OF APPEALS JUDGE KATE A. TOOMEY sat.
JUSTICE PETERSEN became a member of the Court on November 17,
2017, after oral argument in this matter and accordingly did not
participate.
IN RE J.B.
Opinion of the Court
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 J.B. is the biological child of J.J. When J.J. gave birth to
J.B. in 2010, she was involved in a relationship with J.M.B. Later,
when J.J. and J.M.B. split up, J.M.B. became J.B.’s legal guardian.
J.M.B. was also given custody of the child. J.M.B.’s guardianship and
custody were subsequently terminated after a third party called the
police to report child neglect.
¶2 At that time J.B. was placed into the custody of the
Division of Child and Family Services (Division). And the State
petitioned the juvenile court to award custody and guardianship of
J.B. to the Division. During the custody and guardianship trial,
J.M.B., who was representing herself, chose to remove herself from
the trial proceedings. The trial continued in her absence. The juvenile
court then determined that J.M.B.’s guardianship rights should be
terminated. It also found that reunification services between J.M.B.
and J.B. would not be appropriate. J.M.B. filed this appeal.
¶3 During oral arguments on appeal, the Guardian ad
Litem renewed a motion to dismiss for lack of jurisdiction. The
Guardian ad Litem asserted that this appeal is moot because J.B.’s
adoption had been finalized for more than one year and a governing
statute bars any person from contesting the adoption after one year
from the date of a finalized adoption. See UTAH CODE
§ 78B-6-133(7)(b).
¶4 We deny the motion to dismiss and reach the merits of
J.M.B.’s appeal. We conclude that the case is not moot because
J.M.B.’s action and appeal satisfy the time constraints set forth in
Utah Code section 78B-6-133(7)(d). And we affirm the juvenile
court’s order terminating J.M.B.’s guardianship and custody. In so
doing we reject the principal arguments raised by J.M.B. on this
appeal.
¶5 First we conclude that the juvenile court had jurisdiction
to vacate the district court’s orders yielding guardianship rights to
J.M.B. We explain that juvenile courts have statutory authority to
modify a district court’s order if the child also falls within the
juvenile court’s jurisdiction. See UTAH CODE § 78A-6-104(4)(a).
Second we hold that J.M.B. waived her statutory right to counsel.
This determination is based on evidence in the record reflecting that
J.M.B. reasonably understood the proceedings and was aware of her
right to counsel but nonetheless took actions in a clear effort to
proceed pro se. Third we decline to reach a final series of arguments
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Opinion of the Court
raised by J.M.B. because she failed to preserve these matters in the
juvenile court proceedings below.
I
¶6 J.B. was born to J.J. in 2010 while she was in a
relationship with J.M.B. When that relationship ended J.M.B.
petitioned the district court for custody of J.B. The district court
awarded joint physical and legal custody to both J.J. and J.M.B. In so
doing the court suggested, among other things, that J.M.B. was
“entitled to parenting rights in [J.B.].”1 J.M.B. was also ordered to
pay child support.
¶7 The custody arrangement was changed a few months
later when J.M.B. sought to take J.B. with her on a move to Colorado.
At that point the district court awarded J.M.B. sole physical custody
but retained the joint legal custody arrangement. And under this
arrangement J.J. was ordered to pay child support to J.M.B.
¶8 In October 2015, J.M.B. and J.B. traveled from Colorado
to Utah. They stopped at a McDonald’s in Davis County. While in
the McDonald’s playroom, J.B. approached a third party, A.H.,
asking for food. A.H. noticed that the child was wearing a visibly
soiled diaper and dirty clothes. A.H. walked J.B. out of the
McDonald’s playroom to order her food.
¶9 J.M.B. never approached A.H. or J.B. during the time that
A.H. spoke with J.B., bought her food, and watched her eat. After
some time went by, A.H. confronted J.M.B. At that point J.M.B.
walked J.B. out to the truck to change her diaper and clothing. A.H.
then assumed that J.M.B. was leaving with the child and called the
police to report what he perceived to be a case of neglect.
¶10 When the police arrived, one officer separated J.B. from
the rest of the scene and took her to the bathroom. J.M.B. refused to
cooperate with the police. She made statements about giving up on
the child. And she refused to provide any names of relatives with
whom J.B. could be placed. Eventually the police arrested J.M.B. on
an outstanding warrant, and J.B. was placed into the temporary
custody of the Division.
_____________________________________________________________
1The basis for this suggestion is unclear. J.M.B. is not a biological
parent of J.B.
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IN RE J.B.
Opinion of the Court
¶11 A series of juvenile court hearings ensued, including
shelter and child welfare hearings. J.M.B. retained counsel for some
of those hearings but eventually terminated her counsel and
proceeded pro se.
¶12 J.M.B. was represented by attorney Jordan Putnam at the
child welfare hearing. At some point Putnam sought to withdraw as
counsel. J.M.B. initially opposed Putnam’s request, asserting that
“allow[ing] him to withdraw would delay the case.” But when
Putnam detailed J.M.B.’s outbursts and lack of cooperation with
counsel, J.M.B. conceded that the attorney-client relationship was
irreparable. The juvenile court then granted Putnam’s request to
withdraw as counsel. It also raised concerns about J.M.B.’s ability to
retain counsel and to prepare for trial in the limited time available.
¶13 J.M.B. insisted that she wished to proceed. She asserted
that she did not have plans to get an attorney and contended that she
could be prepared in time for trial. The court asked J.M.B. at least
two more times whether she intended to proceed to trial without an
attorney. Each time J.M.B. was firm in her desire to proceed pro se
and identified motions she intended to file. And each time she
insisted that she wanted to keep the previously scheduled trial dates.
J.M.B. then proceeded to represent herself for the remainder of the
child welfare hearing and the trial.
¶14 The key question at trial was whether J.M.B. had
physically neglected J.B. In her opening statement J.M.B. asked the
court to recognize her as J.B.’s parent (and not just a guardian). In so
doing she cited the district court’s order referring to her as a parent.
She also alluded to broad, evolving notions of parenthood. But she
cited no legal grounds for her purported status as a parent. Indeed
her participation at trial did not extend much further than the
opening statements.
¶15 At an early stage in the proceedings J.M.B. insisted that
she could not get a fair trial and left the courtroom. At that point she
told the court that it “may try the rest of th[e] trial in [her] absence.”
The juvenile court asked J.M.B. three times if she intended not to
participate in the trial. She repeatedly told the court that she had no
obligation to J.B. and expressly stated that she was choosing to leave
mid-trial.
¶16 After J.M.B. left the trial, the Guardian ad Litem asked
the court to make an inference that J.M.B. no longer had an interest
in J.B. and should no longer have standing in the case. The juvenile
court found “the cumulative effect of the statements [and] of having
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Opinion of the Court
left the court twice” sufficient to imply that J.M.B. no longer had an
interest in pursuing custody. The State then proceeded by proffer.
J.M.B. subsequently reappeared in an attempt to interrupt the trial
several times, but the court refused to hear J.M.B. and allowed the
State to continue with the proffer.
¶17 The juvenile court found that J.M.B. had neglected J.B. It
also determined that reunification efforts would not be in the best
interest of the child. J.M.B. filed this appeal.
II
¶18 Before addressing J.M.B.’s arguments on the merits we
first consider the Guardian ad Litem’s challenge to our jurisdiction.
The Guardian ad Litem contends that J.M.B.’s appeal is moot in light
of Utah Code section 78B-6-133(7)(b). That provision “imposes
limitations on the right to contest adoptions.” In re Adoption of T.B.,
2010 UT 42, ¶ 19, 232 P.3d 1026. It states that “[n]o person may
contest an adoption after one year from the day on which the final
decree of adoption is entered.” UTAH CODE § 78B-6-133(7)(b).
¶19 The Guardian ad Litem claims that J.M.B.’s appeal is
foreclosed by this provision. Because J.B.’s adoption was finalized on
September 22, 2016, and J.M.B. did not move to stay the adoption
proceedings until September 29, 2017, the Guardian ad Litem insists
that J.M.B. is statutorily barred from challenging the adoption on this
appeal. And the Guardian ad Litem contends that this appeal is
accordingly moot.
¶20 We disagree. The cited statute includes an exception to
the general rule. It states that “[t]he limitations on contesting an
adoption action, described in this Subsection (7), do not prohibit a
timely appeal of: (i) a final decree of adoption; or (ii) a decision in an
action challenging an adoption, if the action was brought within the
time limitations described in Subsections (7)(a) and (b).” Id.
§ 78B-6-133(7)(d). And J.M.B.’s appeal in this case was timely under
this provision.
¶21 The juvenile court proceeding that J.M.B. challenges on
this appeal involved “a decision in an action challenging an
adoption” within the meaning of the cited statute. As in In re
Adoption of T.B., J.M.B.’s action did not “expressly call[] for the
adoption [of J.B.] to be set aside.” 2010 UT 42, ¶ 23. But she did
advance a position that was “clearly incompatible with the
termination of [her] parental rights” in an adoption. Id. And for that
reason the juvenile court proceeding qualifies as “an action
challenging an adoption” under our decision in In re Adoption of T.B.
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IN RE J.B.
Opinion of the Court
¶22 In the T.B. case we noted that section 133(7) expressly
“prohibits three groups of persons—parties to the adoption
proceeding, persons served with notice of the adoption proceeding,
and persons who have executed a consent to the adoption or a
relinquishment of parental rights—from contesting adoptions at all
(other than by appeal in the adoption proceeding itself).” Id. ¶ 19
(citing UTAH CODE § 78B-6-133(7)(a)). But we also observed that “the
statute contemplates that a person not within these categories may
bring a challenge to an adoption decree” by “mounting a collateral
attack”—“so long as the challenge is brought within one year of the
entry of the decree of adoption.” Id. ¶¶ 20, 21. And we held that “a
separate action challenging the adoption, on whatever ground, is a
proper means of challenging an adoption decree” under subsection
133(7)(d). Id. ¶ 21. We accordingly recognized the viability of an
appeal from a decision in such an action so long as the underlying
action “was brought within the time limitations described in
Subsections (7)(a) and (b).” Id.; UTAH CODE § 78B-6-133(7)(d).
¶23 The appeal in this case is a timely, proper proceeding
under the framework set forth in T.B. In the juvenile court
proceedings at issue on this appeal J.M.B. mounted a collateral attack
on the adoption of J.B. She did so not by “expressly calling for the
adoption to be set aside” but by advancing a position that was
“clearly incompatible with the termination of [her] parental rights”
in an adoption. In re Adoption of T.B., 2010 UT 42, ¶ 23. And because
that action was timely (within one year of the entry of the decree of
adoption), J.M.B. is entitled to pursue her timely appeal in this
proceeding. That defeats the Guardian ad Litem’s mootness
challenge.
III
¶24 We affirm the juvenile court’s decision on the merits.
First we conclude that the juvenile court had jurisdiction to vacate
the district court’s custody orders. Second we find that J.M.B. waived
her statutory right to counsel. And last we reject J.M.B.’s attempts to
establish parental rights under the in loco parentis doctrine and the
Custody and Visitation for Persons Other than Parents Act, Utah
Code section 30-5a-103, on the ground that these arguments were
unpreserved.
A
¶25 J.M.B. first challenges the juvenile court’s decision on
jurisdictional grounds. She asserts that the juvenile court’s
concurrent jurisdiction under Utah Code section 78A-6-104(4) does
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Opinion of the Court
not vest the juvenile court with the authority “to collaterally attack
or completely vacate” the district court orders.
¶26 We disagree. Where, as here,
a support, custody, or parent-time award has been
made by a district court in a divorce action or other
proceeding, and the jurisdiction of the district court in
the case is continuing, the juvenile court may acquire
[concurrent] jurisdiction in a case involving the same
child if the child is dependent, abused, [or] neglected.
UTAH CODE § 78A-6-104(4)(a). And the juvenile court’s concurrent
jurisdiction encompasses the power to alter the district court’s
dispositions so long as it is necessary to secure the safety and welfare
of the child: “The juvenile court may, by order, change the
custody, . . . support, parent-time, and visitation rights previously
ordered in the district court as necessary to implement the order of
the juvenile court for the safety and welfare of the child.” Id.
§ 78A-6-104(4)(b).
¶27 This is a case of continuing jurisdiction of the district
court and concurrent jurisdiction of the juvenile court. The district
court had continuing jurisdiction over the custody proceedings
involving J.M.B. and J.J. (J.B.’s mother). And the juvenile court
acquired concurrent jurisdiction after the allegations of neglect of J.B.
came to light. When J.M.B. was charged with neglect the juvenile
court acquired concurrent jurisdiction under Utah Code section
78A-6-104(4). That jurisdiction encompassed the power to “change”
the district court’s orders as necessary to implement the juvenile
court’s decision and to preserve “the safety and welfare of the child.”
Id. For that reason the juvenile court had jurisdiction to enter the
orders it entered in this case and J.M.B.’s jurisdictional challenge
accordingly fails.
B
¶28 J.M.B. next challenges the juvenile court’s decision on the
ground that she was deprived of a right to counsel. We recognize
this right but affirm the juvenile court’s conclusion that J.M.B.
waived it.
¶29 J.M.B. had a statutory right to counsel as J.M.B.’s
guardian. By statute a guardian has a right to “be informed that [she]
may be represented by counsel at every stage of the proceedings” in
any action initiated by the state in juvenile court. UTAH CODE
§ 78A-6-1111(1)(a). Yet Utah courts have held that a guardian may
waive this right so “long as the record as a whole reflects the
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IN RE J.B.
Opinion of the Court
[guardian’s] reasonable understanding of the proceedings and
awareness of the right to counsel.” State ex rel. A.E., 2001 UT App
202, ¶ 12, 29 P.3d 31 (citation omitted). And we conclude that the
record supports such a conclusion here.
¶30 J.M.B.’s attorney filed a motion to withdraw as counsel
during the child welfare hearing, just a few weeks before the trial
proceedings that are currently on appeal. At that point the juvenile
court (and all involved parties) offered to move the trial dates in
order to allow J.M.B. to look for another attorney. Yet J.M.B.
announced that she did not intend to get another attorney, but
intended to proceed pro se. The judge asked J.M.B. two more times
whether she intended to proceed without an attorney. And J.M.B.
confirmed her preference all three times.
¶31 The juvenile court concluded that this amounted to
waiver. It found that J.M.B. had been “previously advised of the
nature of the proceedings, of her rights under the law, . . . and the
right to trial and the right to present evidence in her defense” as well
as her “right to be represented by counsel at every stage of the
proceedings.” From this the court concluded that J.M.B. had
“acknowledged her right to representation” but waived that right
when she “chose to proceed pro se.”
¶32 J.M.B. has not challenged these findings. And we
accordingly affirm.
¶33 The record on appeal would have been clearer if the
court had expressly reminded J.M.B. of her statutory right to counsel
and asked her to confirm her knowing and voluntary waiver on the
record. That would have been a “best practice.”2 But the question
presented isn’t whether the court followed best practices. It is
whether the “record as a whole” shows that J.M.B. knew that she
had a right to counsel and knowingly waived that right. Id. (citation
omitted). We hold that the record supports that conclusion. We
affirm on the basis of the juvenile court’s unchallenged findings.
_____________________________________________________________
2 See State v. Frampton, 737 P.2d 183, 187 n.12 (Utah 1987) (noting a
“best practice” colloquy for making “clear on the record” that waiver
is knowing and voluntary in a criminal case).
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Opinion of the Court
C
¶34 J.M.B. proceeded to represent herself at trial. But she
only participated in a small portion of the trial before announcing
that she did not have any obligations to J.B. and left the courtroom.
At that time, the juvenile court found that J.M.B. no longer had an
interest in asserting a right to custody. And the court proceeded to
conclude that J.M.B. had neglected J.B. and that reunification services
would not be provided.
¶35 J.M.B. seeks to challenge these determinations on appeal.
She asserts that the juvenile court erred in concluding that she was a
guardian, and not a parent, for purposes of the adjudication
proceedings. She claims, specifically, that she acquired parental
rights under the doctrine of in loco parentis and under the Custody
and Visitation for Persons Other than Parents Act, Utah Code
section 30-5a-103. We affirm without reaching these arguments
because they were not preserved.
¶36 As a general rule we “will not consider an issue unless it
has been preserved for appeal.” Patterson v. Patterson, 2011 UT 68,
¶ 12, 266 P.3d 828 (citation omitted). To preserve an issue for appeal
an appellant must have “presented [it] to the district court in such a
way that the court has an opportunity to rule on [it].” Id. (second
alteration in original) (citation omitted). We affirm because J.M.B.
did not present the in loco parentis or statutory grounds for
establishing parental rights to the juvenile court and has not
established a basis for an exception to the general requirement of
preservation.
¶37 In the brief portion of the trial in which J.M.B.
participated she asserted a vague notion of a parental right in J.B.
But she never identified any “supporting evidence or relevant legal
authority” for her position. Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d
366 (citation omitted). Certainly she did not refer to the doctrine of in
loco parentis or cite Utah Code section 30-5a-103.3 And that foils her
_____________________________________________________________
3 Even if the statutory argument were preserved, neither the
statute nor the district court’s loose language in its order made
petitioner a parent. Section 30-5a-103 applies only to a person other
than a parent as defined under the Custody and Visitation for
Persons Other than Parents Act. The act defines “parent” as “a
biological or adoptive parent” and “[p]erson other than a parent” as
“a person related to the child by marriage or blood.” UTAH CODE
(continued . . .)
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IN RE J.B.
Opinion of the Court
attempt to raise these issues on this appeal. The mere mention of “an
issue without introducing supporting evidence or relevant legal
authority” is not adequate preservation. Id. (citation omitted). To
preserve an issue a party must give the lower court a meaningful
opportunity to rule in its favor. And that requires, at a minimum, the
presentation of some supporting evidence or relevant authority. This
conclusion holds, moreover, even for a pro se party. See State v.
Winfield, 2006 UT 4, ¶¶ 19, 28, 128 P.3d 1171 (concluding that pro se
status “d[oes] not obviate” a party’s duty of preservation).
¶38 J.M.B. seeks to avoid this conclusion on appeal by
invoking the doctrine of plain error. But that argument is unavailing.
Any alleged error in the application of the doctrine of in loco parentis
or under Utah Code section 30-5a-103 is by no means obvious. We
are not convinced that there was error in the failure to extend these
doctrines to J.M.B. Certainly there is no controlling authority
supporting J.M.B.’s arguments on appeal. At a minimum, we can say
that any alleged error would not have been apparent to the juvenile
court. For that reason we decline to reach these unpreserved issues.
(continued . . .)
§ 30-5a-102. J.M.B. is not related to J.B. by blood and she was never
married to J.B.’s mother. So J.M.B. does not qualify as “parent” or
“person” as defined by the act.
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