In re Adoption of B.F.S.

2020 UT App 149
THE UTAH COURT OF APPEALS
I N THE MATTER OF THE ADOPTION OF B.F.S.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
HEART TO HEART A DOPTIONS I NC .,
Appellant.
Opinion
No. 20190933-CA
Filed November 5, 2020
Third District Court, Tooele Department
The Honorable Matthew Bates
No. 192300046
Lonn Litchfield, Attorney for Appellant
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and K ATE A PPLEBY concurred.
MORTENSEN, Judge:
¶1 	Heart to Heart Adoptions Inc. (the Agency) appeals the
district 	court’s 	denial 	and 	dismissal 	of 	its 	petition 	for 	a
determination of rights and interests in B.F.S. (Child) and an
order for temporary custody on the bases of improper venue and
Child’s best interests. We reverse.
BACKGROUND
¶2 	Child 	was 	born 	in 	Michigan 	in 	March 	2019. 	Shortly
thereafter, Child’s unwed mother executed a consent to Child’s
adoption and relinquished Child to the Agency, a licensed child-
placing agency in Utah. The Agency sought to place Child with
potential adoptive parents in Minnesota. The Agency filed a
petition in Utah’s Third District Court for a determination of

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rights, see Utah Code Ann. § 78B-6-109 (LexisNexis 2018), and for
an order of temporary custody, see id. § 78B-6-134 (2018), to
facilitate Child’s adoption.
¶3 	Though the petition was unopposed, the court denied and
dismissed it. Citing Utah Code section 78B-6-105(1), the court
found that Utah was not a proper venue because Child was not
born in Utah and the prospective adoptive parents did not reside
in Utah. Citing Utah Code section 78B-6-102(1), the court also
found that Child’s best interests were not served by resolution of
the 	petition 	by 	a 	Utah 	court 	“that 	has 	no 	interest 	in 	the
placement of [Child].”
¶4 	The Agency appealed.1 During oral argument, the Agency
indicated the determination sought in the underlying action
subsequently may have been adjudicated in another court. This
court requested additional briefing on the issue of mootness.
Following briefing, we conclude the public interest exception
applies and proceed to resolve the issues appealed.2
1. This action was unopposed at the district court and remains
unopposed 	on 	appeal. 	In 	connection 	with 	proceedings 	that
“involve[] the termination and creation of parental rights,” this
action falls within “the constitutional grant of judicial power to
the courts,” and it is appropriate for our court to review the
action 	“despite 	the 	lack 	of 	adversariness.” 	In 	re 	Gestational
Agreement, 2019 UT 40, ¶ 18, 449 P.3d 69.
2. 	The 	Agency’s 	supplemental 	brief 	indicates 	that 	Child’s
adoption 	was 	finalized 	in 	Minnesota 	in 	November 	2019,
arguably rendering this action moot. Nevertheless, because we
conclude that the public interest exception applies in these
circumstances, we reach the issues appealed. We recognize “an
exception to the mootness doctrine when the case: (1) affects the
(continued…)

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ISSUES AND STANDARDS OF REVIEW
¶5 	The Agency asserts that the district court erred in denying
and dismissing the petition by arguing the court misinterpreted
Utah 	Code 	section 	78B-6-105(1). 	“We 	review 	questions 	of
statutory interpretation for correctness, affording no deference to
the district court’s legal conclusions.” In re adoption of B.N.A.,
2018 UT App 224, ¶ 8, 438 P.3d 10 (cleaned up).
¶6 	The Agency also contends that the court erred in denying
and dismissing the petition based on the court’s determination
of Child’s best interests under Utah Code section 78B-6-102(1).
When reviewing a decision regarding a prospective adoptee’s
best interests, we afford the district court’s decision “a high
degree of deference.” In re J.M., 2020 UT App 52, ¶ 24, 463 P.3d
(…continued)
public interest, (2) is likely to recur, and (3) because of the brief
time that any one litigant is affected, is likely to evade review.”
Timothy v. Pia, Anderson, Dorius, Reynard & Moss LLC, 2019 UT
69, ¶ 32, 456 P.3d 731 (cleaned up). The present appeal is one of
three submitted to us on almost identical facts. In each case, the
district court ruled that Utah courts could not entertain the
petition 	for 	a 	determination 	of 	rights 	based 	on 	grounds
addressed here. In each case, when the court denied relief, the
Agency was forced to await the determination of rights in the
courts of another state where the eventually identified adoptive
parents resided. Accordingly, these issues are not only likely to
recur, 	but 	have 	recurred. 	Additionally, 	awaiting 	appellate
review delays the finalization of the adoption. Furthermore,
these 	issues 	are 	important 	to 	Utah 	adoption 	agencies 	and
potential adoptees, and will continue to evade review. Because
facilitating the adoption of children in the custody and control of
Utah adoption agencies is in the public interest, we exercise our
discretion to reach the merits in this case.

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66 (cleaned up). We will reverse only for clear error, “which we
find when the result is against the clear weight of the evidence or
leaves us with a firm and definite conviction that a mistake has
been made.” Id. (cleaned up).
ANALYSIS
I.
¶7 	The 	Agency 	argues 	that 	the 	district 	court 	erred 	in
dismissing the petition based on the court’s conclusion under
Utah Code section 78B-6-105 that venue was improper in Utah.
We agree.
¶8 	To begin, the statute provides,
Adoption 	proceedings 	shall 	be 	commenced 	by
filing a petition with the clerk of the district court
either:
(a) in the district where the prospective adoptive
parent resides;
(b) if the prospective adoptive parent is not a
resident of this state, in the district where:
(i) the adoptee was born;
(ii) the adoptee resides on the day on which
the petition is filed; or
(iii) a parent of the proposed adoptee resides
on the day on which the petition is filed; or
(c) 	with 	the 	juvenile 	court 	as 	provided 	in
Subsection 78A-6-103(1).
Utah Code Ann. § 78B-6-105(1) (LexisNexis 2018). In the case of
In re adoption of B.N.A., 2018 UT App 224, 438 P.3d 10, we
recognized that section 78B-6-105(1) is the venue statute for
adoption 	proceedings. 	Id. 	¶ 	24. 	Adoption 	proceedings 	seek
judicial acts creating a parent-child relationship and terminating

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the 	parental 	rights 	of 	others 	with 	respect 	to 	the 	proposed
adoptee. See Utah Code Ann. § 78B-6-103(2) (2018); In re adoption
of B.H., 2020 UT 64, ¶ 37. A determination of rights and interests
in a child is not an adoption proceeding but is precursory to the
adoption 	petition.3 See 	Utah 	Code 	Ann. 	§ 	78B-6-109 	(2018)
(determination of rights prior to adoption petition). Therefore,
the venue provision in section 78B-6-105 does not apply to a
petition for a determination of rights under section 78B-6-109
brought pursuant to section 78B-6-134 for an order of temporary
custody.
¶9 	Neither section 78B-6-109 nor section 78B-6-134 contains a
venue provision. Accordingly, a petition for a determination of
rights and an order of temporary custody is controlled by the
general catch-all venue provision. See Carter v. University of Utah
Med. Center, 2006 UT 78, ¶ 12, 150 P.3d 467 (holding that the
general catch-all venue provision applies when neither an act’s
venue provision nor any other venue provision controls). That
provision states, “In all other cases an action shall be tried . . . in
any county designated by the plaintiff in the complaint,” “[i]f
3. 	We 	note 	that 	adoption 	agencies 	do 	not 	always 	have
prospective 	adoptive 	parents 	identified 	for 	a 	child 	when 	a
petition is filed. Nonetheless, an agency has an interest in the
determination 	of 	rights 	in 	a 	child 	to 	establish 	control 	and
custody of the prospective adoptee and to facilitate a future
adoption. It thus makes little sense to deny an adoption agency
the benefit of the law based on a venue provision premised on
the location of prospective adoptive parents—who may not have
been identified yet. And the language of the statute does not
dictate such an outcome. Although the legislature may amend
the venue provision to expressly provide for venue in a district
in which an adoption agency operates to prevent confusion, the
absence of that language does not call for the result reached by
the district court in this case.

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none of the defendants resides in this state.” Utah Code Ann.
§ 78B-3-307(1), (3) (LexisNexis 2018). The action in this case is not
contested and has no defendants or respondents. As such, the
Agency was entitled to adjudication of the petition in the district
where it was filed. 	Accordingly, the district court erred in
dismissing the petition for lack of venue.
II.
¶10 	The Agency also contends the district court erred in
denying 	and 	dismissing 	the 	petition 	based 	on 	the 	court’s
determination of Child’s best interests under Utah Code section
78B-6-102(1). We agree.
¶11 	Section 78B-6-102 sets out our legislature’s intent for the
Utah Adoption Act, including the “desire . . . that in every
adoption the best interest of the child should govern and be of
foremost concern in the court’s determination.” Utah Code Ann.
§ 78B-6-102(1) 	(LexisNexis 	2018). 	Assuming 	that 	this 	intent
extends to the action at issue, we conclude it was in Child’s best
interests for the district court to adjudicate the Agency’s petition.
¶12 	The Agency is Utah based. As such, it is regulated by
Utah law, and Utah has an interest in ensuring the Agency
conducts its business accordingly. Likewise, Utah has an interest
in ensuring the Agency receives the benefits and protections of
Utah law. Utah also has an interest in protecting adoptees who
are in the custody and control of Utah-based agencies, regardless
of whether those adoptees are born in or placed with adoptive
parents in Utah.
¶13 	Additionally, 	“the 	state 	has 	a 	compelling 	interest 	in
providing stable and permanent homes for adoptive children in
a prompt manner, [and] in preventing the disruption of adoptive
placements.” Id. § 78B-6-102(5)(a); In re adoption of K.T.B., 2020
UT 51, ¶ 42, 472 P.3d 843 (quoting same); see also In re adoption of
J.S., 2014 UT 51, ¶ 41, 358 P.3d 1009 (state’s strong interest in

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immediate and secure adoptions for eligible newborns); In re
adoption 	of 	B.B.D., 	1999 	UT 	70, 	¶ 	14, 984 P.2d 	967 	(state’s
compelling interest in adoption process). And both the state and
a 	child 	have 	a 	complementary 	interest 	in 	achieving 	“a
determination that a child can be adopted” and doing so in a
manner that is “final as well as immediate.” Wells v. Children's
Aid Society of Utah, 681 P.2d 199, 203 (Utah 1984), abrogated on
other grounds by In re adoption of J.S., 2014 UT 51, 358 P.3d 1009;
see also In re adoption of B.Y., 2015 UT 67, ¶¶ 32, 46 n.10, 356 P.3d
1215 (state’s interests in facilitating adoption expeditiously and
speedily identifying persons to assume parental role). These
interests are present whether the prospective adoptee originates
from Utah, is intended to be placed in Utah, resides in Utah, or is
in the custody and control of a Utah-based agency. Here, the
Agency is Utah based and had custody and control of Child.
Therefore, both the Agency and Child were entitled to the
protections and benefits of Utah law.
¶14 	The denial of the petition impeded the determination that
Child could be adopted. The court’s order denied Child the
stability the legislature sought to effectuate in passing the Utah
Adoption Act. The court’s finding that the petition should be
adjudicated in a “state in which the prospective parents live or
the state in which the child was born or resides, not a state, like
Utah, that has no interest in the placement of the child,” was
therefore clearly erroneous.
CONCLUSION
¶15 	We conclude that the district court erred in dismissing the
Agency’s petition for a determination of rights and interests in
Child and for an order of temporary custody on the grounds of
venue. We also determine that the court clearly erred in so doing
based on its determination of Child’s best interests. Reversed.