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O'Hearon v. Hansen

Court of Appeals of Utah

November 24, 2017

Rick O'Hearon, Appellant,
v.
Edward Hansen, Appellee.

         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.

          OPINION

          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 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.

         ¶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 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 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] 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).

         ¶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 ...

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