D.A. and S.A. v. D.H.

2014 UT App 138
_________________________________________________________
THE UTAH COURT OF APPEALS
D.A. AND S.A.,
Petitioners and Appellants,
v.
D.H.,
Respondent and Appellee.
Opinion
No. 20120756-CA
Filed June 19, 2014
Second District Juvenile Court, Ogden Department
The Honorable Sherene T. Dillon
No. 1071274
Daniel R. Cragun, J. Jarom Bishop, Ryan J. Stanger,
and Colby B. Vogt, Attorneys for Appellants
Steven C. Russell, Attorney for Appellee
JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES
STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN concurred.
PEARCE, Judge:
¶1 The appellants sought custody of their infant grandchild
after their daughter, the infant’s mother, passed away. Under
Utah’s Custody and Visitation for Persons Other than Parents
Act, the grandparents needed to rebut the presumption that the
father of the infant had the fundamental right and duty to
exercise primary control over the care, supervision, upbringing,
and education of his child. The Act allows that presumption to
be rebutted by clear and convincing evidence of several factors.
One of the statutory criteria can be satisfied with evidence that
“the parent is absent.” The grandparents argued below that they

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could rebut the presumption because their deceased daughter
was “the parent *who+ is absent.” The father contended that the
Act required evidence that he, the parent whose decisions the
presumption protected, was absent. The juvenile court agreed
with the father and ruled against the grandparents. The
grandparents appeal that decision, and we affirm.
BACKGROUND
¶2 Child is the infant daughter of an unmarried couple:
Mother and Father. For at least a year after Child’s birth, Father
was unaware of his paternity because Mother initially
maintained that another man was Child’s biological father. After
learning of his paternity, Father began to establish a relationship
with Child. Mother predominantly resided with her parents
(Grandparents) until her death, two years and three months after
Child was born. After Mother died, Child remained in
Grandparents’ care for seventeen additional days. Father then
took Child to live with him.
¶3 Two weeks later, Grandparents filed suit against Father.
The district court granted custody of Child to Father and granted
visitation rights to Grandparents. Grandparents then filed a
petition for custody in the juvenile court, pursuant to the
Custody and Visitation for Persons Other than Parents Act. See
generally Utah Code Ann. §§ 30-5a-101 to -104 (LexisNexis 2013).
At the hearing on that petition, a court-appointed custody
evaluator testified that Grandparents had provided Child with
“a very stable, structured environment” and that they had
helped Child develop into a “smart, loving little compassionate
girl that has a pretty solid developmental state.” The evaluator
also testified that although Father’s work took him to Idaho and
California for significant periods of time, Father was not an
absent parent and had a good relationship with Child.

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20120756-CA 3 2014 UT App 138
¶4 The juvenile court determined that the Act required
Grandparents to show that Father was an absent, neglectful, or
abusive parent. It found that Grandparents had not carried that
burden and therefore could not rebut the statutory presumption
that Father’s decisions were in Child’s best interests.
Accordingly, the juvenile court dismissed Grandparents’
petition. Grandparents appeal that dismissal.
ISSUE AND STANDARD OF REVIEW
¶5 Grandparents contend that the juvenile court erred in its
interpretation of the Custody and Visitation for Persons Other
than Parents Act. Specifically, they assert that the Act’s language
is ambiguous and that their reading is supported by legislative
history and policy considerations.1 We review a juvenile court’s
interpretation of a statute for correctness, and we review any
underlying factual findings for clear error. In re M.E.P., 2005 UT
App 227, ¶ 8, 114 P.3d 596. “Only when we find ambiguity in the
statute’s plain language need we seek guidance from the
legislative history and relevant policy considerations.” World
Peace Movement of America v. Newspaper Agency Corp., 879 P.2d
253, 259 (Utah 1994).
1. Grandparents’ briefs also argued that the juvenile court’s
application of the Act was unconstitutional because it did not
take into account Child’s “constitutional right of association.”
The briefs acknowledged that this argument was unpreserved
but asserted that an exception, based on ineffective assistance of
counsel, applied to the preservation requirement. At oral
argument, counsel for Grandparents withdrew both their
constitutional challenge and their ineffective assistance of
counsel claim.

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ANALYSIS
¶6 Grandparents contend that the statutory language is
“ambiguous as written because there are two or more plausible
meanings of the statute.” “[W]hen interpreting statutes, our
primary goal is to evince the true intent and purpose of the
Legislature.” State v. Maestas, 2002 UT 123, ¶ 52, 63 P.3d 621
(citation and internal quotation marks omitted). “The plain
language of the statute provides us with the road map to the
statute’s meaning, helping to clarify the intent and purpose
behind its enactment.” Id. We read statutory language so as to
render all parts of the statute relevant and meaningful, and we
presume the legislature used each term within a statute
advisedly and according to its ordinary meaning. Id. Each part of
a statute “should be construed in connection with every other
part . . . so as to produce a harmonious whole.” Id. ¶ 54 (citation
and internal quotation marks omitted).
¶7 We therefore look first to the statute’s plain language. The
Act declares 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) (LexisNexis
2013). Accordingly, “*t+here is a rebuttable presumption that a
parent’s decisions are in the child’s best interests.” Id. The Act
then provides the mechanism for a “person other than a parent”
to rebut that presumption:
(2) A court may find the presumption . . . rebutted
and grant custodial or visitation rights to a person
other than a parent who, by clear and convincing
evidence, has established all of 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 parent-child
type relationship;

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(c) the person contributed emotionally or
financially to the child’s well being;
(d) assumption of the parental role is not the
result of a financially compensated
surrogate care arrangement;
(e) continuation of the relationship between
the person and the child would be in the
child’s best interests;
(f) loss or cessation of the relationship
between the person and the child would be
detrimental to the child; and
(g) the parent:
(i) is absent; or
(ii) is found by a court to have abused
or neglected the child.
Id. § 30-5a-103(2). Only the interpretation of
subsection (2)(g) is at issue here.
¶8 Grandparents assert that subsection (2)(g) can be read in
two ways—“the parent” could mean either “the parent whose
role and obligations” have been assumed by the person other
than a parent or “the parent whose parental presumption is
being rebutted.” Grandparents’ assertion finds some support in
the statutory language of section (2) when that section is read in
isolation.
¶9 The first six factors of section (2), each of which must be
demonstrated by clear and convincing evidence, require the
court to examine the nature and quality of the relationship
between the child and the non-parent. For example, the non-
parent must show that he or she has “assumed the role and
obligations of a parent,” that “the person and the child have
formed an emotional bond and created a parent-child type
relationship,” and that the loss of the relationship “would be
detrimental to the child.” One could rationally draw the
conclusion, as Grandparents did here, that the legislature

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intended that Utah law recognize the benefit to the child of
preserving the relationship between the child and the person
other than a parent where one of the child’s parents is absent,
neglectful, or abusive. This statutory scheme would recognize
that someone had “stepped into the shoes” of the absent or unfit
parent and grant visitation or custody rights where the
continuation of that relationship was in the child’s best interests.
¶10 However, any potential ambiguity in the statutory
language dissipates when we look to the totality of the statute to
guide our interpretation, as Maestas instructs. See State v. Maestas,
2002 UT 123, ¶ 54, 63 P.3d 621 (“A statute is passed as a whole
and not in parts or sections . . . . Consequently, each part or
section should be construed in connection with every other part
or section so as to produce a harmonious whole.” (citation and
internal quotation marks omitted)).
¶11 The Act explicitly recites the public policy animating the
presumption: “In accordance with Section 62A-4a-201, 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). The referenced code section provides
that “*u+nder both the United States Constitution and the
constitution of this state, a parent possesses a fundamental
liberty interest in the care, custody, and management of the
parent’s children.” Id. § 62A-4a-201(1)(a) (LexisNexis Supp.
2013).2
2. This interest is well entrenched in state and federal
jurisprudence. See Troxel v. Granville, 530 U.S. 57, 65–66 (2000)
(stating that “the interest of parents in the care, custody and
control of their children . . . is perhaps the oldest of the
fundamental liberty interests recognized by” the Supreme Court,
and “it cannot now be doubted that the Due Process Clause of
(continued...)

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¶12 This fundamental liberty interest is protected, in part, by
limiting government intrusion into parental decision-making.
Grandparents’ interpretation of the statute could permit a court
to award visitation rights, or even custody, without any
examination of the fitness of the parent whose child-rearing
decisions are challenged. The first six elements of the statute do
not explicitly require any findings of wrongdoing or neglect on
the part of the parent whose parental presumption is being
rebutted. This leaves subsection (2)(g) as the only element which
may protect a fit parent’s rights and breathe life into the
statement of public policy enshrined in subsection (1) of the Act.
¶13 Under Grandparents’ interpretation of subsection (2)(g),
none of the conditions necessary to rebut a parental presumption
would examine the parent whose presumption is being rebutted.
The Act would not require a finding of absence, abuse, or neglect
on the part of the parent who stands to lose custody. Thus, the
Act could result in a fit and present parent losing custody. That
interpretation could thereby wrest key parental decision-making
away from a parent who has not been adjudged to be absent,
abusive, or neglectful and would be wholly incompatible with
the statute’s stated policy, as well as the long-recognized
fundamental liberty interest. See supra ¶ 11 note 2; cf. Utah Code
Ann. § 78A-6-503(9) (LexisNexis Supp. 2013) (“The right of a fit,
the Fourteenth Amendment protects the fundamental right of
parents to make decisions concerning the care, custody, and
control of their children”); Jensen ex rel. Jensen v. Cunningham,
2011 UT 17, ¶ 72, 250 P.3d 465 (“In a long line of precedent, *the
Utah Supreme Court] has recognized parental rights as a
fundamental component of liberty protected by article I, section
7 [of the Utah Constitution+.”); In re M.C., 940 P.2d 1229, 1237
(Utah Ct. App. 1997) (“*A+ fit and competent parent has a
constitutional right to parent his or her own children.”
(emphasis omitted)).

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competent parent to raise the parent’s child without undue
government interference is a fundamental liberty interest that
has long been protected by the laws and Constitution of this
state and of the United States, and is a fundamental public policy
of this state.”).
¶14 On the other hand, when read as Father advocates,
subsection (2)(g) requires the court to determine that the parent
whose parental presumption is being rebutted has been
adjudicated as abusive or neglectful or is absent from the child’s
life. This reading protects “a fit and competent *parent’s+
constitutional right to parent his or her own children” and
harmonizes the public policy recited in subsection (1) with the
balance of the Act. See In re M.C., 940 P.2d 1229, 1237 (Utah Ct.
App. 1997). When read in light of that policy declaration and the
other subsections of the Act, the legislative intent inherent in the
statutory language—that subsection (2)(g) function as the
guardian of the parental rights articulated in subsection (1)—
becomes plain. We therefore hold that, when read as part of a
harmonious whole, “the parent” in subsection (2)(g)
unambiguously refers to the parent whose presumption is being
challenged. It follows that the juvenile court did not err in
applying subsection (2)(g) of the Act to Father, whose parental
decisions Grandparents sought to rebut and whose fundamental
liberty interests were at stake.
¶15 Grandparents urge us to review the legislative history to
find support for their reading of the statutory language.
Although we need not resort to the legislative history because
the statute is unambiguous, World Peace Movement of America v.
Newspaper Agency Corp., 879 P.2d 253, 259 (Utah 1994), a review
of the history the parties have provided on appeal does not
support Grandparents’ interpretation.
¶16 Grandparents argue that their reading is consistent with
statements Senator Lyle Hillyard, the Act’s primary sponsor,
made in support of the bill that created the Act. Grandparents

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quote extensively from a story Senator Hillyard related during a
floor debate on the bill. Senator Hillyard recounted his
experience with a family in which, after a divorce, the mother
left the state and maintained “very very minimal contact” with
her children. The father remarried, and his new wife—the
children’s stepmother—raised the children as her own. After the
father died, the biological mother returned to Utah and claimed
custody of the children in order to lay claim to the father’s
workers’ compensation and other benefits. Under the then-
current laws, the stepmother had no standing to seek custody of
the children, even though the children had “really had no
contact with” their biological mother. Utah Senate Floor Debates,
S.B. 186, 57th Leg., 2008 Gen. Sess. (Feb. 22, 2008) (statements of
Sen. Lyle W. Hillyard).
¶17 Grandparents assert that “it is hard to believe that at least
[Senator Hillyard] did not believe that the [stepmother] would
gain custody, or at a minimum visitation, through her newfound
standing” under the Act. Grandparents argue that if the Act had
existed at the time of those events, subsection (2)(g) would have
been satisfied because “the stepmother intentionally assumed
the role and obligations of the *absent+ biological father.”
¶18 We do not agree that Senator Hillyard’s statements
necessarily support Grandparents’ reading of the Act. Senator
Hillyard’s comments may also be read to suggest that section
(2)(g) would have been satisfied because the biological mother
was deliberately absent from the children’s lives. Indeed, the
bill’s sponsor in the Utah House of Representatives appears to
have shared this understanding of the Act. In describing the bill,
Representative Kay McIff stated that a court would have to
consider the factors described in subsections (a) through (g) “to
see if they’re strong enough to overcome the rebuttable
presumption in favor of the blood parent who really has had little
to no involvement in the child’s *life+.” Utah House Floor Debates,
S.B. 186, 57th Leg., 2008 Gen. Sess. (Feb. 28, 2008) (emphasis
added) (statements of Rep. Kay L. McIff). Even if we were to find

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the Act ambiguous, the legislative history in the record before us
does not suggest a different conclusion than the one we reach.3
CONCLUSION
¶19 The juvenile court correctly applied the Custody and
Visitation for Persons Other than Parents Act. The Act requires a
person other than a parent to show, inter alia, that the parent
whose decisions are challenged either is absent or has been
found by the court to have abused or neglected the child.
¶20 Affirmed.
3. Although legislative history can be helpful in resolving
questions about the legislature’s intent, we also understand the
potential pitfalls in attempting to divine the intent of a legislative
body from a hand-picked selection of arguably favorable
comments. One justice of the Utah Supreme Court has cautioned
that a legislature has no collective intent for us to discover,
because the passage of every statute is the result of a legislative
compromise amongst “those who preferred a stronger
bill, . . . others who wanted a weaker one (or none at all), and
perhaps . . . some who had a different goal altogether (through
logrolling) or even no sense of the matter at all (due to apathy).”
Gressman v. State, 2013 UT 63, ¶¶ 69–70, 323 P.3d 998 (Lee, J.,
dissenting).