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In re S.W.

Supreme Court of Utah

July 17, 2017

In the interest of S.W. and D.W., persons under the age of eighteen.
v.
B.W., Appellee. B.W.D., Appellant,

         On Certification from the Court of Appeals Fourth Juvenile, Provo The Honorable Brent H. Bartholomew Nos. 1102018 and 1102019

          Matthew Hilton, Layton, Robert A. Alsop, North Salt Lake, for appellant

          J. Jarom Bishop, Ogden, for appellee

          Martha Pierce, Salt Lake City, for the Office of the Guardian ad Litem

         Having recused himself, Justice Pearce does not participate herein; Court of Appeals Judge Gregory K. Orme sat.

          Justice Himonas authored the opinion of the Court, in which Chief Justice Durrant, Justice Durham, and Judge Orme joined.

          OPINION

          Himonas, Justice

         INTRODUCTION

         ¶ 1 B.W.D. appeals from a juvenile court order dismissing her petition for custody of her younger sisters, S.W. and D.W., and a separate order dismissing an Order to Show Cause. We reverse the juvenile court's dismissal of both orders and remand, holding that the court misapplied the Utah Uniform Child Custody Jurisdiction and Enforcement Act and deprived B.W.D. of due process.

         BACKGROUND

         ¶ 2 Custody issues in this case began in 2004 when S.M.W. (Mother) and B.W. (Father), the parents of B.W.D. and her younger sisters, filed for divorce. The Fourth District Court of Utah originally awarded Mother custody in 2007, but transferred custody to Father in 2010. With the district court's approval, Father moved to Kansas in 2013, taking the younger sisters with him. B.W.D., who had turned eighteen before the move, remained in Utah.

         ¶ 3 The younger sisters visited Mother in Utah in May 2014. In June 2014, B.W.D. filed a child welfare petition alleging that Father had abused and neglected her younger sisters and asking the juvenile court to transfer custody of the two back to Mother. On July 2, 2014, the court imposed a temporary restraining order against Father and appointed a Guardian ad Litem to the case, but it later dismissed the order. The younger sisters were supposed to return to Father in Kansas in July 2014, but they ran away and eventually moved in with Mother. On February 18, 2016, after Mother's arrest for custodial interference, a district court in Kansas issued requisition orders for the younger sisters under the Interstate Compact for Juveniles. One month later, the Utah juvenile court issued an order granting the requisition orders, and it denied a petition for an emergency stay from Mother and B.W.D. Utah then returned the younger sisters to Kansas.

         ¶ 4 On March 24, 2016, B.W.D. filed an amended petition alleging abuse and neglect. This time, instead of asking the court to transfer custody of the children to Mother, B.W.D. petitioned the court to transfer custody solely to her. Without giving B.W.D. the opportunity to be heard, the juvenile court sua sponte dismissed that petition on March 31, 2016. In doing so, the court stated that Utah was an inconvenient forum and that it could therefore decline to exercise its jurisdiction because "[a] Kansas court is the more appropriate forum to address the allegations asserted and issues raised in petitioners' child welfare/custody action." See Utah Code § 78B-13-207(1) (a child welfare petition may be dismissed if "a court of another state is a more appropriate forum"). But the juvenile court based much of its decision on Utah Code section 78B-13-208, which provides that a court must decline jurisdiction if it would have jurisdiction only "because a person invoking the jurisdiction has engaged in unjustifiable conduct." Id. § 78B-13-208(1).[1] Without analyzing whether section 208 was a proper basis for terminating jurisdiction in a case where the court already had jurisdiction before any "unjustifiable conduct" allegedly occurred, the juvenile court dismissed B.W.D.'s petition under this section. But the court did not conclude that B.W.D. herself had engaged in unjustifiable conduct. Instead, based on Mother's arrest for custodial interference, the juvenile court stated that "[i]t is clear that Mother has engaged in unjustifiable conduct and should not be allowed to invoke the Court's jurisdiction." Without giving B.W.D. an opportunity to be heard, and with no direct evidence in support of its determination, the court then went on to impute Mother's misconduct to B.W.D., stating that "[a]bsent . . . any statements whether or not [B.W.D.] knew of the girls' whereabouts while they were in hiding with Mother or that [B.W.D.] was not an accomplice in hiding her sisters, " B.W.D. could not "benefit from invoking jurisdiction of this Court simply by dropping Mother as a co-petitioner."[2] The juvenile court therefore declined to exercise jurisdiction over the custody and welfare matter and dismissed the petition, stating that the matter could be brought in a Kansas court instead. See id. § 78B-13-208(1)(c) (a court may dismiss a petition under section 208 only if some other state is capable of asserting jurisdiction over the custody proceeding).

         ¶ 5 On April 1, 2016, the Guardian ad Litem filed a motion for an order to show cause (OSC) regarding Father's conduct after Kansas's requisition orders. The juvenile court dismissed the OSC on April 14, 2016, stating that it lacked jurisdiction regarding the ...


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