¶ 11 I write separately from my colleagues for two reasons. First, I respectfully dissent from the conclusion reached in the majority opinion. Second, while not directly relevant to the holding in this case, I am concerned by the Guardian ad Litem Office's dramatic and unexplained reversal of litigation position between trial and appeal.
¶ 12 This case presents the situation of a custodial parent — i.e., the parent who ultimately controls access to the child — seeking to terminate the noncustodial parent's rights based on an assertion of abandonment, notwithstanding the objection of the non-custodial parent that any appearance of abandonment was manufactured by the custodial parent's interference with court ordered visitation/parent-time. Although such an action is permissible under the law, the potential for abuse and manipulation of visitation so as to establish abandonment in such situations should be self-evident. Against the backdrop of this potential for abuse, and upon reviewing the evidence and findings in this case, I do not believe that Mother has adequately established Father's abandonment of Child. Accordingly, I would reverse the juvenile court's termination order.
¶ 13 In the context of terminating parental rights, abandonment is defined as "`conduct on the part of the parent which implies a conscious disregard of the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship.'" J.C.O. v. Anderson,734 P.2d 468, 462 (Utah 1987) (quoting In re J. Children,664 P.2d 1158, 1159 (Utah 1983)). Utah Code section 78A-6-508(1) identifies various circumstances that constitute prima facie evidence of abandonment. See Utah Code Ann. § 78A-6-508(1) (2008). In the case resolved today, the juvenile court relied solely on section 78A-6-508(1)(b), which identifies as prima facie evidence of abandonment a parent's "fail[ure] to communicate with the child by mail, telephone,or otherwise for six months." Id. § 78A-6-508(1)(b) (emphasis added).
¶ 14 The juvenile court based its conclusion of abandonment on the eight-month period from April to December 2007, during which time Father had no direct contact with Child. However, the juvenile court did make a factual finding that Father did attempt to communicate with Child over this time period by asking his own mother, Grandmother, to telephone Mother and arrange visitation. The juvenile court found that Grandmother "did indeed make attempts to contact Mother" and that "Mother intentionally ignored the attempts."
¶ 15 The juvenile court, however, deemed these attempts insufficient to "rebut the *Page 881 abandonment presumption" because "the efforts were made by [Grandmother] instead of [Father]" and because "Father's only action was to ask [Grandmother] to make a few (unanswered) phone calls within an eight month period, which is only token efforts anyway." This reasoning, however, ignores the plain language of section 78A-6-508(1)(b), which requires acomplete failure to communicate — by phone, mail, or otherwise — for six months. See Utah Code Ann. § 78A-6-508(1)(b). Use of a third-party intermediary falls squarely within the "otherwise" communicate language of section 78A-6-508(1)(b) and is not an unusual response where, as here, there is a prolonged and emotionally charged conflict between the parties, including efforts of the custodial parent to actively inhibit or prevent visits to which Father (and his family) were legally entitled.1
¶ 16 The juvenile court found that Father had utilized only "token efforts" to secure visitation in the face of Mothers hostility. This is problematic, however, because there is no token efforts exception to the six-month rule enunciated in section 78A-6-508(1)(b).2 Rather, by the statute's plain language, each act of communication starts the clock anew for purposes of determining whether there has been a complete absence of contact. See id., (evidencing abandonment when a parent has "failed to communicate" for six months). Thus, it was error to conclude that an abandonment presumption had arisen pursuant to section 78A-6-508(1)(b), and it was error for the juvenile court to utilize section 78A-6-508(1)(b) as the sole basis for termination of Father's rights.
¶ 17 The majority opinion characterizes this application of the statute's plain language as "stilted" and asserts that, under such an interpretation, "minimal and superficial" communications with a child could "prevent a finding of abandonment." See supra ¶ 6. I disagree with both of these characterizations. Section 78A-6-508(1)(b)'s language is quite clear, requiring six months of failure to communicate in order to establish abandonment pursuant to that section. See Utah Code Ann. § 78A-6-508(1)(b). At most, my interpretation of the statute could be considered a strict one, but such an interpretation is certainly warranted by the gravity of that which is sought — the termination of constitutionally-protected parental rights. See In reJ.P., 648 P.2d 1364, 1372 (Utah 1982) ("A parent has a `fundamental right, protected by the [United States] Constitution, to sustain [a] relationship with his [or her] child.'" (quoting In re Walter B., 577 P.2d 119, 124 (Utah 1978) (plurality opinion))).
¶ 18 Moreover, limiting section 78A-6-508(1)(b) to its plain language places no barriers to a finding of abandonment in appropriate circumstances. A parent who makes only sporadic contact could still be found to have abandoned a child under the general "conscious disregard" test, see J.C.O. v.Anderson, 734 P.2d 458, 462 (Utah 1987), or under other various statutory definitions of abandonment, see Utah Code Ann. § 78A-6-508(1)(a), (c)-(d). However, the legislature made a specific judgment as to when non-communication,standing alone, will establish abandonment, and we are bound to respect that judgment. Here, Father's acts of communication, however minimal or superficial, preclude a finding of abandonment for lack of communication pursuant to section 78A-6-508(1)(b), and the juvenile court relied on no other ground in terminating Father's parental rights.
¶ 19 Taken as a whole, the juvenile court's findings are also incompatible with a conclusion that the extremely limited contacts, and *Page 882 resulting lack of a strong relationship, between Father and Child are the result of Father's "conscious disregard," seeJ.C.O., 734 P.2d at 462, as opposed to Mother's active and passive efforts to sabotage and interfere with the relationship. The juvenile court found that Mother repeatedly and intentionally ignored Grandmother's attempts to arrange visitation. Additionally, the juvenile court findings reflect that Father began personally making appropriate demands for visitation in December 2007, which were wrongfully refused by Mother; that Mother had been found in contempt for this refusal; and that Mother "actively sought to prevent Father from seeing [Child]."
¶ 20 The juvenile court devoted an entire paragraph to describing Mother's actions in October 2007, when Grandmother visited with Child at his school:
[Mother's] response to [Grandmother's] visits with [Child] at Bloomington Elementary in October 2007 was inappropriate and childish and exposed an intent to prevent contact between [Father] and [Child]. The Court finds that [Mother] stated to a school employee that "I can't let [Father] into the child's life", or words to that effect. Mother confronted the school employees and [Grandmother]. She did so in the presence of the child. This action demonstrates Mother's total disregard for the best interest of the child. By all indications the child had a wonderful time visiting with his grandma. Grandma obviously loves him and reinforces him. Yet Mother, appalled at the thought that Father may resume his interest in the child, pitched a fit for the world to see. This conduct is the most demonstrative evidence of [Mother's] interference and confirms Father's claims that Mother was avoiding contact by his family.
Notably, this incident occurred during the very period of time that the juvenile court relied upon to find abandonment under section 78A-6-508(1)(b). Seem Utah Code Ann. § 78A-6-508(1)(b).
¶ 21 Although Father's own behavior, in this case is hardly commendable, that is not the standard created by statute and case law against which a parent is judged for purposes of terminating parental rights. Here, the petition was brought by the custodial parent on grounds of abandonment, yet the juvenile court's own findings demonstrate that Mother repeatedly and intentionally sabotaged Father's personal and third-party attempts to communicate and visit with Child. I do not believe that a conclusion that Father's conduct evidences a "conscious disregard" and abandonment of the relationship with Child is justified under these circumstances.
¶ 22 In sum, I do not believe that the facts, as found by the juvenile court, are compatible with a legal conclusion that Father abandoned Child, and certainly not under the six-month failure-to-communicate provisions of Utah Code section 78A-6-508(1)(b), see Utah Code Ann. § 78A-6-508(1)(b). Since the juvenile court did not find any other ground for termination of Father's parental rights under section 78A-6-507, 3 I would reverse the juvenile *Page 883 court's order terminating Father's rights. Accordingly, I respectfully dissent from the majority opinion.
¶ 23 I also write to address a separate concern not directly related to the outcome of this case. I am troubled by the unexplained reversal in the position advocated by the Guardian ad Litem's Office (the GAL) between trial and appeal in this case. At trial, the GAL took the position that termination of Father's parental rights was not warranted. In closing arguments, the GAL summarized:
[Child] does have a dad. He has a biological dad. And I think he has a right to know his dad and to have a relationship with him. I think he is going to want that. If he doesn't now, maybe it's a little bit because mom has discouraged it. I believe mom has. Maybe not extremely, but I think she's at least not encouraged. I think he needs to have that relationship. And even if he's okay with dad being gone right now he won't always be okay with dad being gone. And it's not our job to take away the rights of a parent because somebody else thinks that another parent would be better for that child. That is not what we do in this court. And in a few years, [Child] is going to be all grown up. And he's going to see this situation a lot more clearly, more than any one of us can imagine. He's going to see it. And he's going to know what happened. He's going to find out. And he's going to hold somebody responsible unless we do the best thing. What is the best thing for [Child]? Along with him, I can't tell you. What's the best thing and what you can do, Your Honor. But I think what we need here is some kind of-no termination of parental rights. All parents required to get parental training and teach them to coparent, and maybe mom and dad having to mediate on some kind of agreement for consistent and cooperative visitation so this little boy can have the benefit of this great dad here [, step-dad,] and this wonderful mother and this dad who is going to learn how to be a great dad too. Three parents is always better than two if you can get them. I could have used more parents when I was a kid too. That's my feeling, Your Honor. And that's what I say.
¶ 24 The position advocated by the GAL at trial contrasts starkly with the GAL's position on appeal. On appeal, through different counsel, the GAL argues that the juvenile court's termination should be affirmed. Rather than advocating for the Child's best interests as they were identified at trial, the GAL's appellate brief focuses on and defers to the broad discretion afforded to juvenile courts. The GAL's appellate brief recasts the case as one "about the welfare of a nine[-]year-old child, whose father used his animosity toward mother to excuse his failure to maintain a parent-child relationship," and appears to simply adopt the juvenile court's conclusion that Child's "[b]est interests would not be served by maintaining residual rights."
¶ 25 The GAL provides no explanation for its change of position on appeal and no indication as to whether it believes that Child's best interests have changed since trial; what precipitated such a change; or, if Child's best interests have not changed, why the GAL is not seeking to vindicate those same best interests by seeking reversal of the termination order. In fact, the GAL's appellate brief does not speak to Child's best interests at all except to note and defend the juvenile court's determination that termination of Father's rights was in those best interests.
¶ 26 If it remains in Child's best interests (in the opinion of the GAL) that Father's parental rights not be terminated, then it would seem the duty of the GAL to advocate for that position on appeal. See Utah Code Ann. § 78A-6-902(3)(a) (2008) (stating that the GAL shall "represent the best interest of the minor in all proceedings"). If circumstances have changed such that the GAL now believes that termination is in Child's best interests, then it would seem incumbent upon the GAL to explain that change in circumstances in order to justify the change in the *Page 884 result advocated for.4 Here, however, the GAL's appellate brief is completely at odds with its trial position with no explanation as to why. I believe that, in the future, the provision of such an explanation would not only make for a more persuasive legal position but would also help to further clarify the GAL's vital function of identifying and advocating for the best interests of each child assigned.
Further, Father's efforts in this case can only be judged in the context of Mother's active attempts to discourage and prevent a relationship between Father and Child. The majority opinion relies on In re Adoption of B.O., 927 P.2d 202 (Utah Ct.App. 1996), for the proposition that infrequent visitation augmented by one phone call or card every four to six months constitutes "token efforts" justifying termination of parental rights. See supra ¶ 7. But there is a critical distinction between the two cases: In B.O., the child's custodians "encouraged B.O. to maintain a relationship with" the father, see 927 P.2d at 203. This is in sharp contrast to Mother's active efforts to discourage Father and Child's relationship in this case, and Father's efforts must be judged accordingly.
For this reason, I believe that any finding of token efforts or abnormal interest in this case should examine whether Father's efforts were token and abnormal as to permit termination inlight of Mother's actions. In the absence of such findings, alternate grounds for terminating Father's rights are not "apparent on the record," Advanced Restoration LLC v. Priskos, 2005 UT App 505, ¶ 29, 126 P.3d 786, and I do not believe it would be appropriate for this court to affirm the juvenile court on such grounds.