O'Hearon v. Hansen

2017 UT App 214THE UTAH COURT OF APPEALS
RICK O’HEARON,
Appellant,
v.
EDWARD HANSEN,
Appellee.
Opinion
No. 20160178-CA
Filed November 24, 2017
Seventh District Court, Price Department
The Honorable George M. Harmond
No. 154700225
David S. Head, Attorney for Appellant
McKette H. Allred, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
JILL M. POHLMAN and DIANA HAGEN concurred.
HARRIS, Judge:
¶1 In November 2015, the mother (Mother) of three children
(the Children) was tragically killed in a car accident. For the
preceding eight years, the Children had lived with Mother and
her husband, Rick O’Hearon (Stepfather). Soon after the car
accident, Stepfather filed a petition (the Petition), pursuant to
Utah’s Custody and Visitation for Persons Other than Parents
Act (the Act), 1 seeking custody of the Children and asserting that
since 2007 he had “assumed the role and obligations” of the
Children’s father. Upon motion from the Children’s father
Edward Hansen (Father), the district court dismissed
1. The Act is codified at Utah Code Ann. §§ 30-5a-101 to -104
(LexisNexis Supp. 2017).
O’Hearon v. Hansen
Stepfather’s Petition. The district court determined that the
Petition did not allege facts sufficient to meet all of the
requirements of the Act, specifically the seventh requirement,
which requires Stepfather to prove that Father either (a) “is
absent” or (b) “is found by a court to have abused or neglected
the child.”
¶2 We conclude that Stepfather has—at least for the
purposes of review pursuant to rule 12(b)(6) of the Utah Rules of
Civil Procedure—made allegations sufficient to satisfy all seven
of the requirements of the Act. We first conclude that Stepfather
has alleged facts that, if true, would meet the first six
requirements of the Act. We then analyze the seventh
requirement of the Act in detail, and conclude that Stepfather
has not sufficiently alleged that Father “is found by a court to
have abused or neglected the child,” but that Stepfather has
alleged facts that, if proven to be true, may meet the Act’s
requirement that Father “is absent.” In reaching this conclusion,
we determine that the phrase “is absent” contemplates a present-
tense inquiry, not a backward-looking inquiry, and requires a
petitioner to prove that the parent is, at the time of the filing of
the petition, currently not present for the purposes of parenting
the children. Accordingly, because we conclude that Stepfather
has alleged facts sufficient to potentially meet all seven
requirements of the Act, we reverse the district court’s order
dismissing the Petition for failure to state a claim upon which
relief can be granted.
BACKGROUND
¶3 Because this case comes to us after dismissal of the
Petition pursuant to rule 12(b)(6) of the Utah Rules of Civil
Procedure, we recite the facts as set forth in the Petition, and
accept that the facts alleged therein are true. See Williams v.
Bench, 2008 UT App 306, ¶ 2 n.2, 193 P.3d 640.
20160178-CA 2 2017 UT App 214O’Hearon v. Hansen
¶4 Between 2007 and the time of filing of the Petition, the
Children resided with Mother and Stepfather in Stepfather’s
home. During those years, Mother and Stepfather “provided
exclusive care” for the Children, and Stepfather “assumed the
role and obligations” of the Children’s father and “emotionally
and financially cared for” the Children. In so doing, Stepfather
“developed an emotional bond and a parent-child relationship”
with the Children.
¶5 On the other hand, according to the Petition, Father “has
been absent from” the Children’s lives and has “only
sporadically visited” the Children. Indeed, Father “rarely visited
the minor children and when [Father] did visit . . . it was limited
to an hour visit, once a month.” In addition, Father “has
neglected” the Children “by leaving them in [Stepfather’s] care
since 2007 and [by] not providing for their emotional and
physical needs.” In the Petition, Stepfather also alleged that
Father “does not have a stable residence for the minor children
to reside [in]” and that Father “is incapable of caring for the
minor children on his own.”
¶6 Following Mother’s death, Stepfather did not seek to
wholly terminate Father’s parental rights. 2 Instead, Stepfather
2. Based on the facts alleged in his Petition, this may have been
an option for Stepfather pursuant to the Termination of Parental
Rights Act. See Utah Code Ann. §§ 78A-6-501 to -515 (LexisNexis
2012). “Any interested party . . . may file a petition for
termination of the parent-child relationship with regard to a
child.” Id. § 78A-6-504(1). A court adjudicating a petition for
termination of parental rights “may terminate” those rights if it
finds, among other things, that “the parent has abandoned the
child.” Id. § 78A-6-507(1). It is considered “prima facie evidence”
of abandonment if the parent has “failed to communicate with
the child by mail, telephone, or otherwise for six months.” Id.
§ 78A-6-508(1)(b) (LexisNexis Supp. 2017).
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filed the Petition, seeking sole legal and physical custody of the
Children pursuant to the Act, but not seeking to entirely
eliminate Father’s opportunity for visitation. Even if a court
granted the Petition in its entirety, Father could still obtain an
order entitling him to parent-time, because his parental rights
would remain intact. In addition to seeking custody, Stepfather
also sought an order requiring Father to pay child support and
to share equally in paying the Children’s medical expenses.
¶7 After being served with the Petition, Father responded by
filing a motion to dismiss. Father argued that, although Mother
had been awarded sole physical custody of the Children after
their divorce, the divorce decree ceased to operate upon
Mother’s death pursuant to this court’s decision in Nielson v.
Nielson, 826 P.2d 1065 (Utah Ct. App. 1991). He further argued
that he had “the right to the sole legal and physical custody and
control of the children over [Stepfather], absent termination or
suspension of [Father’s] parental rights.” Because Stepfather had
not sought to terminate Father’s parental rights, Father asserted
that, even assuming the allegations in the Petition were true,
dismissal was nonetheless warranted. Father’s motion did not
reference the Act.
¶8 The district court granted Father’s motion to dismiss. In
its order the district court discussed the Act and explained that
Stepfather could prevail on his Petition only if he could establish
all seven of the Act’s requirements by clear and convincing
evidence, including the seventh one that requires a petitioner to
demonstrate either (a) that Father “is absent” or (b) that Father
“is found by a court to have abused or neglected the child.” See
Utah Code Ann. § 30-5a-103(2)(g) (LexisNexis Supp. 2017). The
district court concluded that Stepfather could not meet this
seventh requirement, but limited its analysis to the “is absent”
part of that requirement, and determined that Stepfather’s
allegation that Father had visited the Children “once per month”
foreclosed Stepfather’s ability to prove that element. The district
court stated that, even if this allegation were true, “this pattern is
20160178-CA 4 2017 UT App 214O’Hearon v. Hansen
far too frequent to allow the court to conclude that [Father] has
voluntarily absented himself from his children’s lives.”
Therefore, “even construing the complaint in the light most
favorable to [Stepfather] and making all reasonable inferences in
his favor . . . [Father] has visited his children regularly and thus
is not absent under” the Act.
¶9 Stepfather appeals.
ISSUE AND STANDARD OF REVIEW
¶10 The sole issue in this appeal is whether the district court
properly granted Father’s motion to dismiss. In reviewing a
district court’s grant of a motion to dismiss for failure to state a
claim upon which relief can be granted, we accept all facts
alleged as true, Osguthorpe v. Wolf Mountain Resorts, LC, 2010 UT
29, ¶ 10, 232 P.3d 999, and “indulge[] all reasonable inferences”
in favor of the non-moving party, Haik v. Salt Lake City Corp.,
2017 UT 14, ¶ 7, 393 P.3d 285 (citation and internal quotation
marks omitted). A district court should grant a motion to
dismiss only if it is clear from the allegations that the non-
moving party would not be entitled to relief under the set of
facts alleged or under any facts it could prove to support its
claim. Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 14, 243 P.3d 1275. 3
3. The Act contains a requirement that any petition filed
thereunder “shall include detailed facts supporting the
petitioner’s right to file the petition including the criteria set
forth in Subsection (2) and residency information as set forth in
Section 78B-13-209.” See Utah Code Ann. § 30-5a-103(5). We are
not asked to determine, and therefore do not opine upon,
whether this statutory provision imposes special pleading
burdens upon petitioners that would require us to employ a
standard of review different from the standard generally applied
to review of decisions granting motions to dismiss.
20160178-CA 5 2017 UT App 214O’Hearon v. Hansen
We review a district court’s ruling on a motion to dismiss for
correctness. In re Adoption of Baby E.Z., 2011 UT 38, ¶ 10, 266 P.3d
702.
ANALYSIS
¶11 The Act itself recites that “it is the public policy of this
state that parents retain the fundamental right and duty to
exercise primary control over the care, supervision, upbringing,
and education of their children.” Utah Code Ann. § 30-5a-103(1).
This statutory proclamation is in line with United States
Supreme Court precedent declaring that parents have a
fundamental constitutional right to parent their children. See
Troxel v. Granville, 530 U.S. 57, 66 (2000) (recognizing that “the
Due Process Clause of the Fourteenth Amendment [of the
United States Constitution] protects the fundamental right of
parents to make decisions concerning the care, custody, and
control of their children”). 4 Pursuant to this fundamental right,
the terms of the Act acknowledge “a rebuttable presumption
that a parent’s decisions are in the child’s best interests.” See
Utah Code Ann. § 30-5a-103(1). However, a parent’s
fundamental right to raise a child is not absolute. “A parent’s
rights must be balanced against the state’s important interest in
protecting children from harm.” Jensen ex rel. Jensen v.
Cunningham, 2011 UT 17, ¶ 74, 250 P.3d 465 (citing In re J.P., 648
P.2d 1364, 1377 (Utah 1982)). To protect a child from harm, a
court may remove a child from the child’s home and place the
child in the protective custody of the State, see Utah Code Ann.
§ 78A-6-302(1) (LexisNexis Supp. 2017), or even go so far as to
“terminate all parental rights” if certain criteria are met, see id.
§ 78A-6-507(1)(a)–(i) (LexisNexis 2012).
4. Father has not asserted that the Act is unconstitutional, and
therefore we confine our analysis to the terms of the Act itself.
20160178-CA 6 2017 UT App 214O’Hearon v. Hansen
¶12 Similarly, “every state in the nation has enacted some
form of a non-parent visitation statute” that allows, under
certain circumstances, a non-parent to gain custodial or
visitation rights, even without going so far as to terminate the
legal parents’ rights. See Holly M. Davis, Non-Parent Visitation
Statutes: Was Troxel v. Granville Their Death-Knell?, 23 Whittier
L. Rev. 721, 736 (2002) (collecting various statutes that provide
an opportunity for non-parents to establish visitation or custody
rights). The enactment of these statutes is due, in part, to “the
‘recognition of [the] changing realities of the American family.’”
Id. at 737 (alteration in original) (quoting Troxel, 530 U.S. at 64).
Utah is no exception; in 2008, our legislature enacted the Act,
creating a pathway for non-parents, under limited
circumstances, to win an order of custody or visitation regarding
children who are not legally theirs.
¶13 Under the Act, the requirements imposed upon
petitioners are understandably onerous. A court “may find” the
parental presumption rebutted, and “grant custodial or
visitation rights to a person other than a parent,” only if the
petitioner proves, by clear and convincing evidence, that seven
requirements are met. See Utah Code Ann. § 30-5a-103(2). The
first six of these requirements concern the petitioner’s
relationship with the child, see D.A. v. D.H., 2014 UT App 138,
¶ 9, 329 P.3d 828 (stating that “[t]he first six factors . . . require
the court to examine the nature and quality of the relationship
between the child and the non-parent”), and require the
petitioning non-parent to prove the following:
(a) the person has intentionally assumed the role
and obligations of a parent;
(b) the person and the child have formed an
emotional bond and created a parent-child type
relationship;
20160178-CA 7 2017 UT App 214O’Hearon v. Hansen
(c) the person contributed emotionally or
financially to the child’s well being;
(d) assumption of the parental role is not the result
of a financially compensated surrogate care
arrangement;
(e) continuation of the relationship between the
person and the child would be in the child’s
best interests; [and]
(f) loss or cessation of the relationship between the
person and the child would be detrimental to
the child.
Utah Code Ann. § 30-5a-103(2)(a)–(f). The seventh factor, by
contrast, concerns the status of the child’s current legal parent.
See D.A., 2014 UT App 138, ¶ 14 (stating that “‘the parent’ in
subsection (2)(g) unambiguously refers to the parent whose
presumption is being challenged”). To meet this seventh
requirement, the petitioner must demonstrate that the legal
parent either (a) “is absent,” or (b) “is found by a court to have
abused or neglected the child.” Utah Code Ann. § 30-5a-
103(2)(g). If the petitioner successfully demonstrates the
existence of all seven factors, then the court “may” award the
petitioner custodial or visitation rights. Id. § 30-5a-103(2).
A
¶14 We begin our analysis by examining the first six factors—
the ones concerning the relationship between Stepfather and the
Children. Although the district court did not discuss these
factors (because the district court believed that the seventh
requirement was not met), Father nonetheless invites us to
affirm the district court’s decision on the alternative ground that
Stepfather has also not alleged facts sufficient to meet the first six
requirements. We decline this invitation.
20160178-CA 8 2017 UT App 214O’Hearon v. Hansen
¶15 In his Petition, Stepfather alleges that he has “assumed
the role and obligations of the minor children’s father”; has
“provided exclusive care for the minor children”; has
“developed an emotional bond and a parent-child relationship”
with the Children; and has “emotionally and financially cared
for the minor children.” These allegations are sufficient to meet
the first three requirements. See id. § 30-5a-103(2)(a)–(c)
(requiring that the non-parent assume the “role and obligations
of a parent,” “form[] an emotional bond and create[] a parent-
child type relationship,” and “contribute[] emotionally or
financially to the child’s well being”). Further, Stepfather alleges
that he “has not been compensated for caring for the minor
children,” an allegation sufficient to satisfy the fourth
requirement that there be no “financially compensated surrogate
care arrangement.” See id. § 30-5a-103(2)(d). Finally, the Petition
asserts “that continuation of the relationship with the minor
children is in the minor children’s best interest and the loss of
this relationship would be detrimental to the minor children.”
This allegation meets the final two requirements relating to the
parent-child relationship. See id. § 30-5a-103(2)(e), (f) (requiring
the non-parent to show that “continuation of the relationship . . .
would be in the child’s best interest” and that “loss or cessation
of the relationship . . . would be detrimental to the child”).
¶16 As noted, given the procedural posture of the case, we
must assume that all of these allegations are true. Accordingly,
we are satisfied that Stepfather has alleged facts that, if proven,
would satisfy the first six requirements of the Act.
B
¶17 Next, we turn to the question of whether Stepfather has
alleged facts sufficient to satisfy the Act’s seventh requirement,
pursuant to which Stepfather must demonstrate that Father
either (a) “is absent,” or (b) “is found by a court to have abused
or neglected the child.” Id. § 30-5a-103(2)(g). In order to reach a
decision on this question, we must first ascertain the meaning of
20160178-CA 9 2017 UT App 214O’Hearon v. Hansen
those phrases (neither of which are separately defined in the
Act). After arriving at a definition of those phrases, we will
examine Stepfather’s Petition to determine whether the
allegations set forth there are sufficient to survive Father’s
motion to dismiss.
1
¶18 The phrase “is absent” contains two words—“is” and
“absent”—and both require our attention. One might think that
the word “is” is plain enough on its face, but as our supreme
court recently noted in a case almost entirely devoted to an
exploration of the word’s definition, the question of “what the
meaning of the word ‘is’ is” was complicated enough to
“capture[] the nation’s attention” back in 1999. See Scott v. Scott,
2017 UT 66, ¶ 1 (internal quotation marks omitted). Fortunately
for our analysis, we have guidance from our supreme court on
the question.
¶19 In Scott, our supreme court was asked to explore the
meaning of the term “is cohabitating,” as that term is used in a
different section of Title 30 of the Utah Code. That statute states
that alimony obligations terminate if the payor spouse can
establish that the payee spouse “is cohabitating with another
person.” See Utah Code Ann. § 30-3-5(10) (LexisNexis Supp.
2017) (emphasis added). In Scott, the payee spouse had
apparently been living with another person, and the payor
spouse believed this relationship amounted to cohabitation. See
Scott, 2017 UT 66, ¶ 3. However, the payee spouse ended the
cohabiting relationship “months before [the payor spouse] filed
his motion” to terminate alimony payments. Id. At the time the
motion to terminate alimony was filed, the payee spouse was not
cohabiting with any other person. On those facts, both the
district court and this court determined that the payee spouse
had cohabited, and that alimony payments should terminate as a
result of the past cohabitation. Id. ¶ 1.
20160178-CA 10 2017 UT App 214O’Hearon v. Hansen
¶20 The supreme court reversed, however, and declared, in a
Seussian burst of anapestic tetrameter, 5 that “is should mean is
and not was or has been.” Id. The court carefully examined the
tense of the verb used by the legislature, and determined that,
“[i]n light of the statute’s plain language, we cannot see how a
showing of anything less than present or ongoing cohabitation
meets the statute’s terms head-on.” Id. ¶ 23. The court continued
its analysis by concluding that “[t]he present tense is demands
the condition to be present at the time the paying spouse
declares before the court that a former spouse is cohabiting,” and
“[t]hat declaration takes place on the date of filing” of the
motion to terminate alimony. Id. ¶ 30. Because any cohabitation
had ceased prior to the time of filing, the supreme court held
that the payor spouse’s motion to terminate did not meet the
requirements of the statute and that alimony payments must
continue.
¶21 We perceive no material differences—indeed, no
differences at all—between the manner in which the word is is
used in the alimony statute and the manner in which that same
word is used in the Act. Accordingly, Scott requires us to
interpret the word is in the phrase “is absent” in the same way.
In the Act, the legislature used the same present tense form of
the verb “to be” as it used in the alimony statute. There, as here,
“is should mean is and not was or has been.” Id. ¶ 1. In Scott, the
date from which this present-tense inquiry was taken was the
5. Illustrative examples from Dr. Seuss’s writings abound, but
one that somehow seems apt here, given the discussion about
plain meaning, is Horton’s declaration that:
I meant what I said
And I said what I meant . . .
An elephant’s faithful
One hundred per cent!
Dr. Seuss, Horton Hatches the Egg 16, 21, 26, 38 (1940).
20160178-CA 11 2017 UT App 214O’Hearon v. Hansen
date of the filing of the motion to terminate alimony—the date
that the “paying spouse declares before the court that a former
spouse is cohabiting.” Id. ¶ 30. Here, the operative date is the
date of the filing of Stepfather’s Petition—the date Stepfather
declared before the court that Father “is absent.” Thus, to
succeed on his Petition, Stepfather must allege—and eventually
prove—that Father was “absent” as of December 1, 2015, the
date Stepfather filed his Petition.
¶22 We emphasize that this is not a backward-looking
inquiry. 6 It is a snapshot in time, taken on December 1, 2015, and
6. The district court appeared to presume that a backward-
looking inquiry was required; indeed, the court rested its
decision on the allegation that Father had periodically visited the
Children in the past and therefore could not be considered
“absent.” This notion is supported by dicta in our decision in
D.A. v. D.H., 2014 UT App 138, ¶¶ 15–18, 329 P.3d 828. There, we
discussed certain comments made by legislators during the
passage of the Act, some of which appeared to envision a
backward-looking inquiry into a parent’s “absence.” Id. ¶ 16(referencing comments by Sen. Hillyard). We acknowledge some
inconsistency between our conclusion today and the dicta in
D.A. v. D.H. We are, however, constrained by the supreme
court’s more recent decision in Scott, which commands a plain
language analysis, even if we have reason to believe that the
legislature may have intended something different than what the
plain language dictates. See Scott v. Scott, 2017 UT 66, ¶¶ 26, 28
(stating that “we start from the premise that we should discern
what the legislature intended from the plain language of the text
unencumbered by notions of what we think the legislature must
have wanted the language to accomplish,” and that “it is our
obligation to take the plain language at face value and trust the
legislature to amend the statute if it intended a different result”);
see also Smith v. Price Dev. Co., 2005 UT 87, ¶ 16, 125 P.3d 945(continued…)
20160178-CA 12 2017 UT App 214O’Hearon v. Hansen
examining whether, on that date, Father was “absent.” Because it
is a present-tense, snapshot-in-time inquiry, evidence of Father’s
past actions will be of only tangential relevance 7 in conducting
that inquiry.
¶23 Having determined that a parent’s “absen[ce]” must be
analyzed in present-tense fashion, as of the date of the filing of a
petition under the Act, we must now turn to the question of
what “absent” means. When we interpret statutory language,
“our primary goal” is to ascertain the “true intent and purpose
of the Legislature.” Rent-A-Center West, Inc. v. Utah State Tax
Comm’n, 2016 UT 1, ¶ 13, 367 P.3d 989 (citation and internal
quotation marks omitted).
¶24 If the Act itself had a definition of “absent,” we would of
course look there first. See State v. Rasabout, 2015 UT 72, ¶ 43, 356
P.3d 1258 (Lee, J., concurring) (stating that a “threshold
question” in statutory interpretation “is whether the legislative
text conveys some specialized meaning” such as “a statutorily
defined term, a scientific phrase, or a legal term of art” and, if it
(…continued)
(stating that courts “may turn to secondary principles of
statutory construction or look to a provision’s legislative history
only if [courts] find the provision ambiguous”).
7. By “tangential relevance,” we refer to situations where
evidence may be helpful to set the stage or to paint a more
complete background picture of the parties’ situation in aid of
explaining how the present-tense circumstances that are alleged
to constitute “absence” came to be. Such background
information is likely admissible, and may even be essential as a
practical matter to assist the factfinder in completely
understanding the parties’ situation, but it does not directly bear
on the question of whether a legal parent “is absent” as of the
date a petition is filed.
20160178-CA 13 2017 UT App 214O’Hearon v. Hansen
does, “the specialized meaning controls”). Here, the Act does not
provide a separate definition of the term “absent,” and we are
unaware of any specialized meaning of the term that ought to
apply. In such cases, we must interpret the statutory language
“according to the ‘plain’ meaning of [its] text.” See Olsen v. Eagle
Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465; see also Anadarko
Petroleum Corp. v. Utah State Tax Comm’n, 2015 UT 25, ¶ 11, 345
P.3d 648 (stating that “[w]hen interpreting a statute, we look first
to the plain and ordinary meaning of its terms”); Reynolds v.
Bickel, 2013 UT 32, ¶ 10, 307 P.3d 570 (stating that “[t]he best
evidence of the legislature’s intent is the plain language of the
statute itself” (citation and internal quotation marks omitted)).
¶25 A “starting point” for a court’s “assessment of ordinary
meaning is the dictionary.” See State v. Bagnes, 2014 UT 4, ¶ 14,
322 P.3d 719. In this case, there is remarkable uniformity
among dictionaries as to the definition of the word in question.
All dictionaries that we consulted, or that were brought to
our attention during this case, define “absent,” first and
foremost, as “not present.” See, e.g., Absent, Cambridge English
Dictionary, dictionary.cambridge.org/us/dictionary/english/absent
[https://perma.cc/2FS7-XF2B] (“not present” or “not in the place
where you are expected to be”); Absent, English Oxford
Living Dictionaries, en.oxforddictionaries.com/definition/absent
[https://perma.cc/CJ5L-9XBK] (“not present in a place, at an
occasion, or as part of something”); Absent, Merriam-Webster,
www.merriam-webster.com/dictionary/absent [https://perma.cc/
DME2-BNZP] (“not present at a usual or expected place”);
Absent, New Oxford American Dictionary 6 (3d ed. 2010) (“not
present in a place”); Absent, Webster’s Third New Int’l
Dictionary 6 (1993) (“not present or not attending”). 8
8. Even the infamous Urban Dictionary concurs, defining
“absent” as “the state of not being where you are supposed to
be.” See Absent, Urban Dictionary, www.urbandictionary.com/
(continued…)
20160178-CA 14 2017 UT App 214O’Hearon v. Hansen
¶26 When a term is not defined within a particular section of
the Utah Code, courts may also look to other sections of the Utah
Code to see whether the same term is defined elsewhere. See
Wasatch Crest Ins. Co. v. LWP Claims Adm’rs Corp., 2007 UT 32,
¶ 13, 158 P.3d 548 (stating that “[a]lthough the Utah Insurance
Code does not define the term ‘distribution,’ the term is defined
elsewhere in the Utah Code”); see also LeBeau v. State, 2014 UT 39,
¶ 34, 337 P.3d 254 (stating that “[t]hough the Legislature did not
specifically define ‘interests of justice’ in the aggravated
kidnapping statute, it has provided guidance elsewhere in the
Utah Code”). There are several places in the Utah Code—outside
of the Act—where the legislature has defined the word “absent”
and, as with the dictionary definitions, each time the legislature
has defined “absent” it has done so, in context, to essentially
mean “not present.” See Utah Code Ann. § 53-2a-802(1)(a)(i)
(LexisNexis Supp. 2017) (defining “absent” in the Emergency
Interim Succession Act as “not physically present or not able to
be communicated with for 48 hours”); id. § 53A-11-101(1)(a)
(LexisNexis 2016) (defining “absent” in the educational context
(…continued)
define.php?term=Absent [https://perma.cc/8QAT-TYN3]. We
recognize that our search for various meanings of the word
“absent” is not as thorough as that advocated by proponents of
“corpus linguistics,” see State v. Rasabout, 2015 UT 72, ¶ 57, 356
P.3d 1258 (Lee, J., concurring) (defining “corpus linguistics” as
“access[ing] large bodies of real-world language to see how
particular words or phrases are actually used in written or
spoken English,” and advocating for its more widespread use in
judicial decision-making), but we note that where the
Cambridge and Oxford Dictionaries, on the one hand, and the
Urban Dictionary, on the other hand, both agree upon the basic
meaning of a word, we can be fairly confident that we have
arrived at the meaning of the word that is “actually used in
written or spoken English.” See id.
20160178-CA 15 2017 UT App 214O’Hearon v. Hansen
as the “failure of a school-age minor assigned to a class or class
period to attend the entire class or class period”); id. § 10-3-
301(1)(a) (LexisNexis Supp. 2017) (defining “absent” in the
Municipal Code as where a “municipal officer fails to perform
official duties, including the officer’s failure to attend each
regularly scheduled meeting that the officer is required to
attend”).
¶27 Based on these authorities, we conclude that the word
“absent” means “not present,” and that a parent “is absent,” as
that term is used in context in the relevant section of the Act, if
the parent is not present for the purpose of parenting the child.
There could be various forms that such “absence” might take. A
parent who is incarcerated or hospitalized (or in drug or alcohol
rehabilitation) on a long-term basis may fit the definition of
“absent,” because such a parent may not be able to be present for
the purpose of parenting the child. Alternatively, a parent who
simply does not wish to parent the child, even if that parent is
physically residing in close proximity and is otherwise able to
parent the child, may also be “absent” as that term is used in the
Act. On the other side of the coin, however, a parent who, at the
time of the filing of a petition under the Act, is present and
willing to parent the child will usually not meet the definition of
“absent.” 9
9. We have purposefully not referenced the word “fit” in
describing the definition of the word “absent,” because we do
not think the “absence” inquiry was intended to devolve into
litigation over parental fitness. If the legislature had intended a
present and willing but otherwise unfit parent to meet the
requirements of subsection (g)(i), it could have used a word
other than “absent,” or at a minimum added language to that
effect. Its decision not to include any direct language about
parental fitness must be presumed to have been intentional. See
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d
(continued…)
20160178-CA 16 2017 UT App 214O’Hearon v. Hansen
¶28 The question of whether a parent “is absent” is a question
of fact that will ordinarily be reserved for the factfinder. We note
also that the burden of demonstrating that a parent “is absent”
falls upon the petitioner, and that this burden requires proof by
clear and convincing evidence. See Utah Code Ann. § 30-5a-
103(2) (stating that custody or visitation rights may be afforded
to a person “who, by clear and convincing evidence, has
established all” seven requirements).
¶29 This simple and straightforward interpretation of the
word “absent” appears to us to be in line with the policy
considerations that motivated passage of the Act. A legal
parent’s rights are fundamental. Id. § 30-5a-103(1). Legal parents
retain constitutional privileges “to exercise primary control over
(…continued)
863 (stating that “we assume, absent a contrary indication, that
the legislature used each term [in a statute] advisedly,” that “the
expression of one term should be interpreted as the exclusion of
another,” and that courts “seek to give effect to omissions in
statutory language by presuming all omissions to be purposeful”
(citation and internal quotation marks omitted)). Indeed, there
are other statutory avenues available to a non-parent who
believes that a legal parent is unfit. The second part of subsection
(g), for instance, allows a petitioner to meet the Act’s seventh
requirement by demonstrating that the legal parent “is found by
a court to have abused or neglected the child.” See Utah Code
Ann. § 30-5a-103(2)(g)(ii). And there are other statutory options,
apart from the Act itself. See, e.g., id. § 78A-6-304 (LexisNexis
2012) (allowing “any interested person” to file a petition seeking
intervention by the Division of Child and Family Services, a
petition that may be granted for reasons including parental
abuse or neglect); id § 78A-6-507(c) (allowing a petitioner to seek
termination of a parent’s rights if that parent is “unfit or
incompetent”).
20160178-CA 17 2017 UT App 214O’Hearon v. Hansen
the care, supervision, upbringing, and education of their
children,” and “[t]here is a rebuttable presumption” that a legal
parent’s decisions “are in the child’s best interests.” Id. Unless
the legal parent’s rights are terminated, that parent has the
primary right to parent the child, a right that ordinarily trumps
any interest claimed by stepparents, grandparents, or any other
interested non-parent. See, e.g., Jones v. Barlow, 2007 UT 20, ¶ 39,
154 P.3d 808 (stating that “[i]t is a fundamental tenet of our
common law that the only persons having any actually vested
interest in the custody of a child cognizable by the law are the
parents,” and that “[o]ther relatives of a child merely have some
dormant or inchoate right or interest in the custody and welfare
of children that matures only upon the death or termination of
the rights of the parents” (citation and internal quotation marks
omitted)). The Act was enacted to create a pathway for non-
parents to obtain legal rights of custody and visitation, but only
in situations where the legal parent “is found to have abused or
neglected the child,” or where the legal parent “is absent.” See
Utah Code Ann. § 30-5a-103(2)(g). In situations where a legal
parent has not been found to have abused and neglected his
child, and where that parent is present and willing to parent the
child, the legal parent’s rights are properly prioritized. It is
therefore entirely in keeping with these principles for the Act to
apply only in situations where the legal parent is not present for
the purpose of parenting the child, or where the legal parent is
found to have abused or neglected the child.
¶30 In summary, then, to demonstrate that a legal parent “is
absent” under the Act, the petitioner must prove, by clear and
convincing evidence, that at the time the petition was filed the
legal parent was not present for the purpose of parenting the
child.
2
¶31 A petitioner can also satisfy the Act’s seventh requirement
by demonstrating that the parent “is found by a court to have
20160178-CA 18 2017 UT App 214O’Hearon v. Hansen
abused or neglected the child.” See id. § 30-5a-103(2)(g)(ii). As
with the “is absent” option, the first word of the statutory
language is the present-tense verb is. We see no reason to
interpret the word is in one option any differently than in the
other. Accordingly, for the reasons set forth above, we conclude
that, in order to meet this element, a petitioner must be able to
allege and prove that, at the time of the filing of the petition, the
parent is at that point already “found by a court to have abused
or neglected the child.”
¶32 It follows from this conclusion that the determination of
“abuse” or “neglect” must already have been made, most likely
by either a juvenile court or another district court. 10 The statute
does not contemplate that a determination of abuse or neglect
can be made in the context of, and at the conclusion of, an action
filed pursuant to the Act. This conclusion is not only compelled
by the legislature’s use of the present-tense verb is, but is also
bolstered by the legislature’s use of the phrase “found by a
court.” Findings are always made by judicial or quasi-judicial
tribunals, and there is no need to specify—if the findings are to
be made in the context of the case initiated by the petition—that
the findings must be made by a court. Indeed, if the legislature
had intended for the finding of abuse or neglect to be made in
the context of the newly-filed petition, the legislature could
easily have so indicated by simply stating that the seventh
10. For this reason, we need not concern ourselves here with
ascertaining the specific definition of “abuse” or “neglect” under
the Act. Because any determination of “abuse” or “neglect” must
have already been made before the filing of any petition under
the Act, a court—potentially even a court in another state—will
have already applied definitions of those terms from other
contexts, presumably using the definitions similar to those found
in Utah’s Juvenile Court Act. See Utah Code Ann. § 78A-6-105(1)
(LexisNexis Supp. 2017) (abuse); id. § 78A-6-105(27) (neglect).
20160178-CA 19 2017 UT App 214O’Hearon v. Hansen
requirement could be met if the parent “has abused or neglected
the child.” The legislature’s careful use of the phrase “is found
by a court to have abused or neglected the child” connotes an
intent that this finding had to have been made by a court prior to
the filing of the petition.
¶33 Accordingly, if a determination of abuse or neglect has
not already been made by a court at the time of the filing of the
petition, then the parent is not “found by a court to have abused
or neglected the child.”
3
¶34 Now that we have ascertained the definitions of the
relevant terms, we must examine Stepfather’s Petition to
determine whether Stepfather adequately alleged facts that
might satisfy the Act’s seventh requirement.
¶35 Clearly, Stepfather has not pleaded allegations sufficient
to succeed on the “abuse or neglect” alternative. Stepfather
alleged in the Petition that Father “has neglected the minor
children by leaving them in [Stepfather’s] care since 2007 and not
providing for their emotional or physical needs.” However, he
nowhere alleges that a court had previously found Father “to
have abused or neglected the child[ren].” See Utah Code Ann.
§ 30-5a-103(2)(g)(ii). Thus, the Petition failed to allege sufficient
facts to meet the statutory requirements on that ground.
¶36 The Petition does, however, allege sufficient facts to assert
that Father was “absent” on December 1, 2015, the time of the
filing of the Petition. Chief among those are the allegations
found at paragraph twenty-two of his petition, where Stepfather
alleges that Father “has been absent from the minor children’s
lives,” and has left “them in [Stepfather’s] care since 2007.”
While stated in a backward-looking way, the use of the phrase
“since 2007” may suggest that Stepfather believes the situation is
ongoing and has not changed over the years. This allegation—
20160178-CA 20 2017 UT App 214O’Hearon v. Hansen
viewed generously and in a light most favorable to Stepfather—
could possibly mean that Father was and remains absent, even
as of the time of the filing of the Petition. In addition, of some
potential relevance are Stepfather’s present-tense allegations that
Father “is incapable” of caring for the Children, and that Father
“does not have a stable residence” at which the Children can
reside. Taken together, and viewed in the light most favorable to
Stepfather, the allegations contained in the Petition are sufficient
to state a claim that Father was “absent” at the time the Petition
was filed. As a result, the district court should not have granted
Father’s motion to dismiss on this ground.
¶37 Specifically, the district court’s singular focus on Father’s
previous visits was incorrect. Even assuming that Father
regularly visited the Children in the past, and that he was
perfectly ready, willing, and able to parent the Children in the
past, he can still be considered “absent” under the Act if, as of
the date of the filing of the Petition, he was no longer present for
the purposes of parenting the Children. Cf. Scott, 2017 UT 66,
¶ 10 (holding that a spouse who had previously cohabited, but
was no longer cohabiting at the time of the filing of the operative
motion, could continue to receive alimony payments).
¶38 We express no opinion about whether Stepfather will
ultimately be able to succeed on the merits of his claim that
Father was “absent” as of December 1, 2015. Many of
Stepfather’s allegations are backward-looking assertions about
Father’s previous relationship with the Children that, as noted,
bear only a tangential relationship to the relevant inquiry.
Further proceedings are necessary to ascertain whether
Stepfather’s allegation that Father “has been absent from” the
Children’s lives “since 2007” was intended to include present-
tense allegations. Likewise, it is unclear whether Stepfather’s
present-tense allegations that Father “is incapable” of parenting
the Children and that Father “does not have a stable residence”
are intended to assert “absence” as the Act defines it. If by these
allegations Stepfather intends to assert that Father, despite his
20160178-CA 21 2017 UT App 214O’Hearon v. Hansen
willingness to parent the Children, is simply an unfit parent who
should not be allowed to do so, that allegation will be
insufficient because it does not go to “absence.” On the other
hand, if the allegations are intended to convey that Father “is
incapable” of parenting the Children and that he has no “stable
residence” because he is not present for some reason, those
allegations may state facts that might help Stepfather prove that
Father “is absent.” We note that Father’s appearance in this case,
and his active defense of it, tends to indicate that he may very
well be present and willing to parent the Children, but all such
factual issues are beyond the scope of this appeal. Ultimately, we
cannot predict whether Stepfather will succeed in his endeavor
to win an order of custody or visitation under the Act. Certainly,
the Act’s requirements are onerous and strict, as one would
expect given the law’s entirely appropriate concern for the rights
of legal parents. But all we are asked to determine here is
whether Stepfather has pleaded facts sufficient to survive a
motion to dismiss, and we conclude that he has.
CONCLUSION
¶39 Stepfather has alleged facts that, if later proven to be true,
could potentially satisfy all seven of the Act’s requirements.
Accordingly, his Petition should not have been dismissed for
failure to state a claim. We therefore reverse the district court’s
order, and remand this case to the district court for further
proceedings consistent with this opinion.
20160178-CA 22 2017 UT App 214