IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
In the Matter of R.B.F.S., A.M.F.S., ) OPINION
R.E.F.S., and O.J.F.S., minor children. )
____________________________________ ) Case No. 20080231‐CA
)
B.J.M. and A.F.M., )
) FILED
Petitioners and Appellees, ) (May 3, 2012)
)
v. ) 2012 UT App 132
)
B.S., )
)
Respondent and Appellant. )
‐‐‐‐‐
Third District, Salt Lake Department, 073900653
The Honorable Robert K. Hilder
Attorneys: Joshua F. King, Kaysville, for Appellant
Randy S. Ludlow, David J. Hardy, and Larry S. Jenkins, Salt Lake City,
for Appellees
‐‐‐‐‐
Before Judges McHugh, Davis, and Thorne.
McHUGH, Presiding Judge:
¶1 This case is before us on remand from the Utah Supreme Court with instructions
to address any remaining issues. See In re adoption of R.B.F.S. (R.B.F.S. II), 2011 UT 46,
¶ 22, 258 P.3d 583. We decide those issues now and affirm the trial court’s decision
enforcing B.S.’s (Father) voluntary relinquishment of his parental rights.
BACKGROUND
¶2 The background to this case is provided in‐depth in our prior opinion, In re
R.B.F.S. (R.B.F.S. I), 2009 UT App 223, 218 P.3d 908, and in the supreme court’s opinion,
R.B.F.S. II, 2011 UT 46. Accordingly, we do not restate the facts in detail here.
¶3 Father and A.F.M. (Mother) are the parents of four minor children (the Children).
The parents divorced in August 2005. One month later, Father executed a
relinquishment of his parental rights (the Relinquishment) in the presence of a notary
public. As part of the Relinquishment, Father “waive[d] any and all rights [he] ha[d] in
relation to the children.” He also consented to the adoption of the Children at some
future time and to the permanent termination of his parental rights. On the same date,
the parties entered into a stipulation (the Stipulation) to modify their divorce decree,
which incorporated the Relinquishment by reference. As part of the Stipulation, Father
consented to the adoption of the Children by Mother’s future spouse, even though a
spouse had not yet been identified. Nonetheless, Father agreed to continue paying
child support and medical expenses until the future adoption by Mother’s yet‐to‐be‐
identified husband was finalized.
¶4 In October 2005, Mother filed the Stipulation, incorporating the Relinquishment,
with the trial court. Judge Sandra N. Peuler rejected it on two grounds: first, because
“a relinquishment of parental rights” in the trial court is enforceable only in conjunction
with an adoption petition, and, second, because no stepfather had resided with the
Children for at least one year as required to finalize an adoption under Utah Code
section 78B‐6‐135(7)(b). After Judge Peuler declined to enforce the Stipulation, it is
undisputed that Father had substantial involvement with the Children and continued to
exercise visitation until his rights were eventually terminated.
¶5 On April 30, 2007, Mother and her new husband (Stepfather) filed a petition to
determine parental rights and a proposed order to terminate Father’s parental rights
based on the Relinquishment. Stepfather filed a separate adoption petition on the same
day. Because Judge Peuler was not available at the time, Judge Robert K. Hilder signed
the order terminating Father’s parental rights based on the Relinquishment. Mother
and Stepfather did not notify Father of these proceedings, and he therefore did not have
an opportunity to be heard before Judge Hilder executed the order.
¶6 When Father subsequently learned that the trial court had enforced the
Relinquishment, he wrote a letter to Judge Hilder objecting to the decision. Judge
20080231‐CA 2
Hilder treated Father’s letter as a motion to reconsider and notified Father, Mother, and
Stepfather of his intent to entertain further argument on the matter. After extensive
briefing and argument, Judge Hilder denied the motion to reconsider. On appeal, this
court reversed the trial court’s ruling on the ground that the petition to terminate
Father’s parental rights was not filed with a facially valid adoption petition as required
by Utah Code section 78B‐6‐112, and we therefore remanded the case to the trial court.
See R.B.F.S. I, 2009 UT App 223, ¶ 12; see also Utah Code Ann. § 78B‐6‐112 (2008)
(permitting an adoption petition to be filed separately in the trial court, so long as the
termination is “for the purpose of facilitating the adoption of the children”). In
particular, we determined that the trial court would have subject matter jurisdiction to
terminate Father’s parental rights only if there was good cause to grant the adoption,
despite the fact that Stepfather had not resided with the Children for a year. See R.B.F.S.
I, 2009 UT App 223, ¶¶ 10‐12 (citing Utah Code Ann. § 78B‐6‐135(7)(b) (allowing a
stepparent to adopt before residing with the children for a year upon a showing of good
cause)). Therefore, we remanded the matter to the trial court to resolve the factual
issues related to that court’s subject matter jurisdiction.
¶7 Mother appealed and the supreme court reversed our decision, holding that the
requirements of section 78B‐6‐135(7)(b) are not jurisdictional and, therefore, need not be
satisfied before the termination of the biological father’s parental rights. See R.B.F.S. II,
2011 UT 46, ¶ 22, 258 P.3d 583. As instructed by the supreme court, we now address the
remaining issues that Father raised in his initial appeal. See id.
ISSUES AND STANDARDS OF REVIEW
¶8 First, Father contends that Judge Hilder’s ruling terminating his parental rights
improperly overruled the decision of Judge Peuler in violation of the law of the case
doctrine. Our review of this issue is composed of two parts: Initially, we determine
whether the trial judge abused his discretion in revisiting a matter previously decided
by another judge. See In re E.H., 2006 UT 36, ¶ 32, 137 P.3d 809. We then review the
substance of the second judge’s decision, which in this case is an issue of law that we
review for correctness. See id.
¶9 Second, Father claims that the trial court erroneously precluded him from
testifying regarding the Children’s best interests because he has inchoate rights that
survived the relinquishment of his parental rights. Questions of standing are primarily
20080231‐CA 3
questions of law that we review for correctness. See Angel Investors, LLC v. Garrity, 2009
UT 40, ¶ 14, 216 P.3d 944. However, we do not give advisory opinions; an issue must be
ripe before we will consider it on appeal. See Carter v. Lehi City, 2012 UT 2, ¶ 93, 269
P.3d 141.
¶10 Third, Father contends that the trial court erred by looking solely to the plain
language of Utah Code section 78B‐6‐126 in determining that the statute applied to both
married fathers and unmarried fathers. Father also contends that the trial court erred in
concluding that a “best interests of the child” analysis was not required under the Utah
Adoption Act (the Adoption Act) before his parental rights could be terminated. See
Utah Code Ann. §§ 78B‐6‐101 to ‐145 (2008) (current version at id. (2008); id. (Supp.
2011)).1 Issues of “statutory interpretation are questions of law that we review for
correctness.” See In re adoption of B.W.G., 2007 UT App 278, ¶ 4, 167 P.3d 1099.
¶11 Finally, Father contends that enforcement of the Relinquishment was barred by
the doctrines of equitable estoppel, quasi‐estoppel, waiver, and laches. These equitable
claims present mixed questions of fact and law. See Richards v. Brown, 2009 UT App 315,
¶ 11, 222 P.3d 69, aff’d, 2012 UT 14, 704 Utah Adv. Rep. 39. We review the trial court’s
factual findings under a clear error standard “but review its legal conclusions for
correctness.”2 Id.
1
The trial court cited Utah Code section 78‐30‐4.12, which was repealed and
reincorporated, in substantially the same form, as section 78B‐6‐102(6). Compare Utah
Code Ann. § 78‐30‐4.12(3) (Supp. 2007), with id. § 78B‐6‐102(6) (2008). Because of
subsequent amendments to the Adoption Act, we cite to the 2008 version of the Utah
Code Annotated unless otherwise noted.
2
Father also argues that the trial court violated his due process rights by
terminating his parental rights without notice and a hearing. However, he provides no
authority or analysis in support and fails to explain how Judge Hilder’s treatment of his
letter as a motion to reconsider did not provide a sufficient opportunity to be heard.
Therefore, we do not consider this issue. See Smith v. Four Corners Mental Health Ctr.,
Inc., 2003 UT 23, ¶ 46, 70 P.3d 904 (holding that when an argument is inadequately
briefed we may decline to address it); see also Utah R. App. P. 24(a)(9) (discussing the
(continued...)
20080231‐CA 4
ANALYSIS
I. Law of the Case
¶12 Father contends that the law of the case doctrine prohibited Judge Hilder from
terminating his parental rights because Judge Peuler had already ruled on the validity
of the Relinquishment by declining to enforce the Stipulation. However, the Utah
Supreme Court has held that the “[l]aw of the case does not prohibit a district court
judge from revisiting a previously decided issue during the course of a case, regardless
of whether the judge has changed or remained the same throughout the proceedings.”
See Mid‐America Pipeline Co. v. Four‐Four, Inc., 2009 UT 43, ¶ 11, 216 P.3d 352. This is
true even when a second judge has taken over the case because “the two judges, while
different persons, constitute a single judicial office.” PC Crane Serv., LLC v. McQueen
Masonry, Inc., 2012 UT App 61, ¶ 43, 273 P.3d 396 (internal quotation marks omitted).
Instead, “‘the doctrine allows a court to decline to revisit issues within the same case
once the court has ruled on them.’” Mid‐America Pipeline Co., 2009 UT 43, ¶ 11 (quoting
IHC Health Servs., Inc. v. D&K Mgmt., 2008 UT 73, ¶ 26, 196 P.3d 588). This rule
tracks with the Utah Rules of Civil Procedure, which
provide that prior to final judgment, “any order or other
form of decision, however designated, that adjudicates fewer
than all the claims . . . is subject to revision at any time before
the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties.”
Id. ¶ 12 (omission in original) (quoting Utah R. Civ. P. 54(b)). Accordingly, Judge
Hilder was free to revisit the validity of the Relinquishment and Stipulation even
though both were previously decided by Judge Peuler.
II. Father’s Right to Testify as to the Children’s Best Interests
2
(...continued)
requirements of the argument section).
20080231‐CA 5
¶13 Father next argues that he retained inchoate rights in the Children that would
allow him to testify as to their best interests at the adoption proceeding. See Utah Code
Ann. § 78B‐6‐137 (requiring that prior to the final decree of adoption the trial court must
be “satisfied that the interests of the child will be promoted by the adoption”); Utah R.
Civ. P. 24(a) (providing that a party may intervene as of right “when the applicant
claims an interest relating to the property or transaction which is the subject of the
action and he is so situated that the disposition of the action may as a practical matter
impair or impede his ability to protect that interest, unless the applicant’s interest is
adequately represented by existing parties”). However, the record before us does not
indicate that any adoption proceeding has yet occurred or that Father has moved to
intervene in any proceeding. Consequently, Father’s argument that he was denied an
opportunity to testify concerning the Children’s best interests at such a proceeding is
not yet ripe and we do not consider it further. See Board of Trs. v. Keystone Conversions,
LLC, 2004 UT 84, ¶ 32, 103 P.3d 686 (requiring an issue to be ripe before it may be
considered on appeal).
III. Statutory Interpretation
¶14 Father contends that the trial court “erred in not looking beyond the plain
language of [Utah Code section 78B‐6‐126 (the Relinquishment Statute)] . . . to
legislative history and public policy to ascertain the statute[’]s intent.” The essence of
Father’s argument is that the statute was intended to apply only to biological fathers
who have no relationship with their children. Because he was married to Mother at the
time of the Children’s births or adoptions3 and had been continuously involved with
them until the trial court enforced the Relinquishment in April 2007, Father asserts that
the Relinquishment Statute is inapplicable. In support of this argument, however,
Father provides no citation to legislative history, relies solely on superseded case law to
advance a vague public policy argument,4 and fails to articulate how the
3
Father and Mother adopted three of their four children during their marriage.
4
Father relies on Taylor v. Waddoups, 121 Utah 279, 241 P.2d 157 (1952), apparently
arguing that the Relinquishment should be set aside as against public policy because it
was signed before a notary public and not before a judge. See id. at 160. However, the
statute in Taylor is no longer in effect and the relevant statute expressly provides that a
(continued...)
20080231‐CA 6
Relinquishment Statute is ambiguous. Although Father’s argument is inadequately
briefed, we exercise our discretion to review the trial court’s decision on this issue. See
Golden Meadows Props., LC v. Strand, 2011 UT App 76, ¶ 1 n.1, 249 P.3d 596 (exercising
discretion to consider the merits of an inadequately briefed argument), cert. denied, 263
P.3d 390 (Utah 2011); see also State v. Gamblin, 2000 UT 44, ¶ 8, 1 P.3d 1108 (“[W]e are not
obligated to strike or disregard a marginal or inadequate brief, and in this case we
choose to further address defendant’s arguments in the interests of justice.”).
A. The Relinquishment Statute Plainly Applies to Married Fathers
¶15 Principles of statutory interpretation require us to “look[] first to the plain
language” with the “primary objective” of giving effect to the legislature’s intent.
Savage v. Utah Youth Vill., 2004 UT 102, ¶ 18, 104 P.3d 1242 (internal quotation marks
omitted). If that language is clear, our inquiry is complete:
[I]t is elementary that we do not seek guidance from
legislative history and relevant policy considerations when
the statute is clear and unambiguous. Rather, “[w]e must be
guided by the law as it is . . . . When language is clear and
unambiguous, it must be held to mean what it expresses,
and no room is left for construction.”
C.T. ex rel. Taylor v. Johnson, 1999 UT 35, ¶ 13, 977 P.2d 479 (omission and second
alteration in original) (emphasis and citation omitted) (quoting Salt Lake Child & Family
Therapy Clinic v. Frederick, 890 P.2d 1017, 1020 (Utah 1995)) (additional internal
quotation marks omitted).
¶16 The Relinquishment Statute contained in the Adoption Act mandates that “[a]
consent or relinquishment is effective when it is signed and may not be revoked.” Utah
4
(...continued)
relinquishment may be signed before a notary public. See Utah Code Ann. § 78B‐6‐
124(3) (2008) (“The consent or relinquishment of any[one other than a birth mother or
adoptee] . . . may be signed before a Notary Public . . . .”). Father has not adequately
contested the Relinquishment’s validity on public policy grounds, and we therefore do
not consider whether it was void at its inception.
20080231‐CA 7
Code Ann. § 78B‐6‐126 (2008). The statute’s plain terms do not distinguish between
relinquishment by an unmarried father or relinquishment by a married father.
Although section 78B‐6‐102(6) states that “[i]n enacting this chapter, the Legislature . . .
prescribed the conditions for determining whether an unmarried biological father’s
action is sufficiently prompt and substantial to require constitutional protection,” this
language does not state that the Adoption Act was intended to apply only to unmarried
fathers.5 See id. § 78B‐6‐102(6)(a). Indeed, as the trial court correctly noted, several
provisions of the Adoption Act expressly distinguish between the rights of married and
unmarried fathers. Compare id. § 78B‐6‐110(2)(h) (providing that notice must be given to
“any person who is married to the child’s mother at the time she executes her consent to
the adoption or relinquishes the child for adoption”), with id. § 78B‐6‐110(3) (providing
conditions that an unmarried biological father must satisfy in order to be entitled to
notice of an adoption proceeding); compare also id. § 78B‐6‐120 (noting that “both
parents” must consent to an adoption or relinquishment for adoption of a child who
was “conceived or born within a marriage”), with id. § 78B‐6‐121 (noting that adoption
does not require the consent of an unmarried biological father unless certain
enumerated criteria are satisfied). By distinguishing between the rights of married and
unmarried fathers in certain sections of the Adoption Act, the legislature has indicated
that the act generally applies to both groups, unless otherwise provided in the statutory
language.
¶17 The Relinquishment Statute is plain on its face and does not distinguish between
married fathers and unmarried fathers. Therefore, we agree with the trial court that it
applies to both classes of individuals. Because Father properly executed the
Relinquishment, it was valid and enforceable when signed and the trial court did not
err in enforcing it.6 Cf. In re adoption of Baby B., 2012 UT 8, ¶ 34, 270 P.3d 486 (holding
5
Utah Code section 78B‐6‐103(17) defines an “unmarried biological father” as “a
person who: (a) is the biological father of a child; and (b) was not married to the
biological mother of the child . . . at the time of the child’s: (i) conception; or (ii) birth.”
See Utah Code Ann. § 78B‐6‐103(17) (2008) (current version at id. § 78B‐6‐103(19) (Supp.
2011)).
6
The Relinquishment was signed “before a Notary Public” as permitted by Utah
Code section 78B‐6‐124(3). See id. § 78B‐6‐124(3) (listing persons who may witness a
(continued...)
20080231‐CA 8
that under the Relinquishment Statute, a birth mother’s voluntary relinquishment of her
parental rights that was executed before the court as required by statute could be
enforced without further action from the court because it was “effective when it [was]
signed and [could] not be revoked” (internal quotation marks omitted)).
B. Necessity of a Best Interests Analysis
¶18 Father also argues that the trial court erred in determining that a best interests
analysis was not required before Father’s parental rights were terminated. Father relies
solely on the Utah Supreme Court’s decision In re E.H., 2006 UT 36, 137 P.3d 809, in
support of that position. However, the portions of In re E.H. cited by Father relate only
to the trial court’s responsibility to conduct a best interests analysis as part of the
subsequent adoption proceeding. See id. ¶ 48 (noting that a trial court has a “statutory
responsibility to conduct a meaningful inquiry into whether the proposed adoption . . .
[is] consistent with [the child’s] best interests”). Accordingly, In re E.H. is not
instructive regarding the question of whether a best interests inquiry must be
conducted prior to the enforcement of a parent’s voluntary relinquishment of his
parental rights.
1. The Statute Does Not Require a Best Interests Analysis Under These
Circumstances
¶19 Our reading of the statute is in accord with the interpretation adopted by the trial
court. Utah Code section 78B‐6‐112 provides that a “district court may terminate a
person’s parental rights in a child if: (a) the person executes a voluntary consent to
adoption, or relinquishment for adoption, of the child, in accordance with [the
requirements of the Adoption Act].” See Utah Code Ann. § 78B‐6‐112(5)(a). Unlike the
Juvenile Court Act, which provides that a juvenile court can terminate parental rights
only when there is a voluntary relinquishment and relinquishment is in the best
interests of the child, see Utah Code Ann. § 78A‐6‐507(1)(g), the Adoption Act does not
expressly require the trial court to conduct a best interests analysis prior to enforcing a
voluntary relinquishment of parental rights. The trial court must dismiss the adoption
petition and “award custody of the child in accordance with the child’s best interest”
6
(...continued)
consent for adoption).
20080231‐CA 9
only in a contested adoption where no grounds exist to terminate the parent’s parental
rights. See Utah Code Ann. § 78B‐6‐133(2)(b); see also id. § 78B‐6‐133(6)(b) (providing
that even in the absence of consent, the trial court “may also finalize the adoption if
doing so is in the best interest of the child”).
¶20 Father relinquished his parental rights and consented to the adoption by signing
the Relinquishment before a notary public. The statute plainly provides that the
Relinquishment was effective upon execution, without further action by the court. See
In re adoption of Baby B., 2012 UT 8, ¶ 34. The statute does not require a best interests
analysis before a relinquishment becomes effective.
2. Father Has Not Advanced Any Constitutional Arguments Regarding the Trial
Court’s Failure to Conduct a Best Interests Analysis Prior to Enforcing the
Relinquishment
¶21 In its opinion reversing our prior decision and remanding this case for further
consideration, the Utah Supreme Court noted that “a best interests analysis may be
constitutionally required before a child’s familial relationships can be terminated.”
R.B.F.S. II, 2011 UT 46, ¶ 7 n.6, 258 P.3d 583. While the United States Supreme Court
has not explicitly imposed such a requirement, several justices have indicated that
children may have a fundamental liberty interest in preserving family relationships.
For example, in Troxel v. Granville, 530 U.S. 57 (2000), Justice Stevens authored a dissent
stating, “[I]t seems to me extremely likely that, to the extent parents and families have
fundamental liberty interests in preserving such intimate relationships, so, too, do
children have these interests, and so, too, must their interests be balanced in the
equation.” Id. at 88‐89 (Stevens, J., dissenting). Furthermore, the Utah Supreme Court
has directly indicated that children have a fundamental right “to be reared by [their]
natural parent[s].” In re Castillo, 632 P.2d 855, 856 (Utah 1981); see also Hutchison v.
Hutchison, 649 P.2d 38, 41 (Utah 1982) (noting that a child has a “natural right to be
reared, where possible, by his or her natural parent”).
¶22 However, Father has neither attempted to raise the issue of the Children’s
constitutional rights nor argued that the failure to consider their best interests before
severing the parent‐child relationship renders the statute unconstitutional either facially
or as applied. Consequently, we do not consider the Children’s constitutional rights
further. See O’Dea v. Olea, 2009 UT 46, ¶ 18, 217 P.3d 704 (“The presence of a
constitutional issue does not excuse an appellant from complying with the preservation
20080231‐CA 10
rules set by this court and the Utah Rules of Appellate Procedure.” (citing State v.
Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346)); see also Troxel, 530 U.S. at 93 n.2 (Scalia, J.,
dissenting) (“I note that respondent is asserting only, on her own behalf, a substantive
due process right to direct the upbringing of her own children, and is not asserting, on
behalf of her children, their First Amendment rights of association or free exercise. I
therefore do not have occasion to consider whether, and under what circumstances, the
parent could assert the latter enumerated rights.”).
¶23 The Adoption Act unambiguously provides that the Relinquishment was
effective when executed and could not be revoked. Father has not argued that the
statute is unconstitutional, either on his own behalf or on behalf of the Children.
Consequently, we conclude that the trial court did not err by enforcing the
Relinquishment without first conducting a best interests analysis.
3. The Absence of a Statutory Requirement that the Best Interests of the Children
Be Considered Before Severing an Existing Parent‐Child Relationship Is
Problematic
¶24 Despite the unequivocal and unambiguous nature of the Adoption Act, we
consider it unlikely that the Utah Legislature contemplated circumstances such as those
present here. In contrast to an unmarried father of a child not yet born, Father had a
significant relationship with the Children from the time they were born or adopted into
the marriage until the trial court enforced the Relinquishment. During these years, the
Children bonded with Father. Although Father voluntarily relinquished his parental
rights at the time of the divorce, he did so in favor of a hypothetical future spouse
whose qualifications to parent the Children could not then be assessed and who might
never have materialized. Furthermore, when he executed the Relinquishment, Father
simultaneously agreed to continue fulfilling his role as the Children’s father until
Mother could locate a person willing to marry her and adopt the Children. For nearly
two years after Father executed the Relinquishment, he provided financial support and
exercised parent‐time with the Children.7 Thus, the bond between Father and the
Children was permitted to strengthen during this time. Consequently, we share the
7
Mother and Father disagree as to whether Father was in full compliance with his
support obligations.
20080231‐CA 11
Utah Supreme Court’s concerns about the Children’s constitutional right to continue
that parent‐child relationship.
¶25 Furthermore, although Father executed the Relinquishment upon Mother’s
assurance that it would be used only to facilitate a stepfather adoption, according to
Father’s supplemental notification under rule 24(j) of the Utah Rules of Appellate
Procedure and Mother’s acknowledgment at oral argument, the prospective Stepfather
withdrew his petition to adopt the Children after the trial court ruled that the
Relinquishment effectively terminated Father’s parental rights. The automatic and
irrevocable nature of the Relinquishment under circumstances such as these prevents
the trial court from considering significant events that occur after the execution of a
Relinquishment but before adoption by a stepparent is assured. As this case illustrates,
a petition for adoption filed with an action to terminate the parental rights of an existing
parent might be withdrawn after the trial court exercises jurisdiction and enforces a
relinquishment. See R.B.F.S. I, 2009 UT App 223, ¶ 12 n.10, 218 P.3d 908. The strict
enforcement of a valid relinquishment under these circumstances prevents the trial
court from assuring that there is an adult ready, willing, and able to parent the children
before the existing parent’s rights and obligations are eliminated. This is particularly
troublesome where the existing parent’s rights and obligations were terminated without
any consideration of the best interests of the children. Where the existing parent’s
relinquishment is enforced before the adoption by the stepparent is assured, the
children are at greater risk of becoming wards of the state.
¶26 Although the Children in this case continue to have relationships of varying
degrees with Mother, it is generally preferable for children to enjoy a parental
relationship with two parents bound by affection and law to nurture and support them.
Where an involved and fit father’s parental rights are voluntarily relinquished and no
stepfather actually adopts, the children will be rendered “legal orphans” if the mother
later dies or is otherwise unable to parent them.
¶27 Where there is a fit parent with a significant relationship to the Children who
wishes to parent them, it may be prudent not to foreclose that possibility until another
qualified and willing adult actually assumes the parental role. Indeed, the
consequences to the children if they lose the one remaining parent can be horrific. A
recent article in the Virginia Journal of Social Policy and the Law examines the devastating
effects of placing children in foster care rather than permitting them to maintain a
20080231‐CA 12
relationship with a willing parent whose parental rights were previously terminated.8
See LaShanda Taylor, Resurrecting Parents of Legal Orphans: Un‐Terminating Parental
Rights, 17 Va. J. Soc. Pol’y & L. 318 (2010). These “legal orphans” often have little
chance of finding adoptive parents:
It is difficult to determine the number of legal orphans in the
United States. In 1999, one source estimated that there were
between 40,000 and 80,000 children who had been freed for
adoption but had not yet been adopted nationwide. Another
source approximated that there were 5,970 legal orphans
created in 1997 and 24,219 in 1999. The U.S. Department of
Health and Human Services estimates that on September 30,
2006, there were 129,000 children waiting to be adopted.
Id. at 326 (footnotes omitted). Furthermore, “the absence of a legal parent has negative
social, emotional, and financial effects,” id. at 326‐27, and if the children remain in foster
care until they “age out” of the system at majority, they “experience dire outcomes in an
array of well‐being indicators, including homelessness, criminal involvement, mental
and physical health, educational level, and reliance on public assistance,” id. at 328‐29
(footnotes omitted). While we do not suggest that reestablishing a relationship between
an unfit parent and a child is advisable, this data may support delaying the
effectiveness of a fit and involved parent’s voluntary relinquishment until the trial court
is assured that another qualified adult will adopt and parent them. In addition, the
enforcement of the Relinquishment of a fit and involved parent simultaneously with the
adoption by the stepparent seems to foster the State’s compelling interest “in providing
stable and permanent homes for adoptive children in a prompt manner, in preventing
the disruption of adoptive placements, and in holding parents accountable for meeting
the needs of the children.” See Utah Code Ann. § 78B‐6‐102(5)(a) (2008). Of course it is
the exclusive role of the Utah Legislature to evaluate such policy issues. Nevertheless,
8
At oral argument, counsel for Mother confirmed that two of the Children are
now in foster care because Mother is unable to provide for their significant special
needs. Father contends that he could provide the care needed by these Children due to
his training as a nurse.
20080231‐CA 13
we express our concerns for that body’s consideration when next it revises the
Adoption Act.9
IV. Equitable Estoppel and Quasi‐Estoppel
¶28 Finally, Father argues that the doctrines of equitable estoppel and quasi‐estoppel
preclude enforcement of the Relinquishment.10 The doctrine of equitable estoppel
would prevent Mother and Stepfather from enforcing the Relinquishment if Father
could show
first, “a statement, admission, act or failure to act by
[Mother] inconsistent with a claim later asserted”; next,
“reasonable action or inaction by [Father] taken or not taken
on the basis of [Mother’s] statement, admission, act, or
failure to act”; and, third, “injury to [Father] that would
result from allowing [Mother] to contradict or repudiate
such statement, admission, act, or failure to act.”
Youngblood v. Auto‐Owners Ins. Co., 2007 UT 28, ¶ 14, 158 P.3d 1088 (quoting Nunley v.
Westates Casing Servs., Inc., 1999 UT 100, ¶ 34, 989 P.2d 1077).
¶29 In the trial court, Father argued that Mother promised to place the documents in
a safety deposit box and to use them only if Father attempted to obtain custody of the
9
An amendment to the Adoption Act, Utah Code section 78B‐6‐112, was passed
during the 2012 legislative session. However, this amendment does not impact the
immediate effectiveness of an existing and involved parent’s voluntary relinquishment
of parental rights. See S.B. 55 Sub., 59th Leg. (Utah 2012) (enacted March 22; effective
May 8, 2012).
10
Although Father also raises waiver and laches, he fails to make any legal
arguments or provide any meaningful legal analysis pertaining to these doctrines.
Consequently, we decline to consider them. See Valcarce v. Fitzgerald, 961 P.2d 305, 313
(Utah 1998) (“It is well established that an appellate court will decline to consider an
argument that a party has failed to adequately brief.”); see also Utah R. App. P. 24(a)(9).
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Children. The trial court rejected that argument as irrelevant, indicating that Father had
not alleged any inconsistent statements made or positions taken by Mother that induced
Father to execute the Relinquishment in the first instance. Rather, the trial court
concluded that Father’s allegations indicated that Mother had consistently sought “to
bar any future claim for custody by [Father,] thereby allowing her freedom to re‐marry
and permit a future spouse to adopt the children.” Father also asserts that Mother’s
attempt to enforce the Stipulation in October 2005 proves that she misrepresented her
intentions when she induced Father to execute the Relinquishment and the Stipulation.
Relying on the record of those proceedings, however, the trial court determined that the
Stipulation was “presented [to Judge Peuler] for the sole purpose of recording the
[Relinquishment], but not for terminating rights at that time.”
¶30 On appeal, Father does not challenge the trial court’s analysis or point us to any
other allegedly inconsistent statements by Mother, and we have been unable to identify
any. Likewise, Mother did not seek judicial assistance in enforcing the Relinquishment
until the condition Father admits he agreed to when the documents were signed
occurred: Mother’s subsequent husband filed a petition to adopt the Children.
Consequently, we agree with the trial court that Father has not identified any
inconsistent statements made or positions taken by Mother that could have induced
him to sign the Relinquishment. Accordingly, Father’s equitable estoppel argument
fails.
¶31 For the same reason, Father cannot prevail on his argument that the doctrine of
quasi‐estoppel prevents enforcement of the Relinquishment.
The doctrine of quasi‐estoppel precludes a party from
asserting, to another’s disadvantage, a right inconsistent
with a position [it has] previously taken. The doctrine
applies when it would be unconscionable to allow a person
to maintain a position inconsistent with one to which he
acquiesced, or from which he accepted a benefit.
Bott v. J.F. Shea Co., 299 F.3d 508, 512 (5th Cir. 2002) (alteration in original) (internal
quotation marks omitted). Father has not alleged any position Mother took to induce
him to execute the Relinquishment that she has changed to his disadvantage. Father
acknowledges that he signed the Relinquishment, knowing that his parental rights
would be terminated in favor of Mother’s future husband, and that he agreed to
20080231‐CA 15
continue paying support and exercising parent‐time until then. Therefore, Father has
not been disadvantaged by any change in Mother’s position.
CONCLUSION
¶32 We affirm the trial court’s enforcement of Father’s voluntary relinquishment of
his parental rights. First, Judge Hilder’s order did not violate the law of the case
doctrine because a trial judge has the discretion to revisit a previously decided issue in
the same case. Second, Father’s claim that he is entitled to testify as to the Children’s
best interests at the adoption proceeding is not ripe. Third, the trial court did not err in
failing to consider legislative history in interpreting the relevant sections of the
Adoption Act because their meaning is plain. Finally, we reject Father’s equitable
estoppel and quasi‐estoppel claims because Father has failed to identify a
misrepresentation by Mother that induced him to execute the Relinquishment or an
injury to Father caused by a change in her position.
¶33 Affirmed.
____________________________________
Carolyn B. McHugh,
Presiding Judge
‐‐‐‐‐
¶34 WE CONCUR:
____________________________________
James Z. Davis, Judge
____________________________________
William A. Thorne Jr., Judge
20080231‐CA 16