THORNE, Judge:
¶ 1 Appellant E.A. appeals from an order terminating his parental rights to W.A. We reverse.
BACKGROUND
¶ 2 W.A. was born in February of 1989 to E.A., his biological father, and D.A., his biological mother. Presently, E.A. is incarcerated in Oklahoma after being convicted of sexual abuse of a child and lewd molestation of a child, and D.A. is reportedly incarcerated in Texas for similar convictions. In 1995, a Kentucky court placed W.A. in the temporary custody and guardianship of his sister, D.D. D.D. subsequently moved with W.A. to Utah, and in February of 1998, she contacted the Utah Division of Child and Family Services (DCFS) indicating that she could no longer care for W.A. As a result, DCFS filed a dependency petition regarding W.A.
¶ 3 Following a dependency hearing, the juvenile court determined W.A. to be a "dependent" child "who is homeless or without proper care through no fault of his parent, guardian, or custodian." Utah Code Ann. § 78-3a-103(1)(h) (Supp. 1998). The court therefore granted the petition and awarded DCFS custody and guardianship of W.A.
¶ 4 In October of 1998, DCFS and the guardian ad litem filed a petition to terminate E.A.'s parental rights to W.A. E.A. responded with a motion to dismiss the petition, arguing that the juvenile court lacked personal jurisdiction over him. After reviewing E.A.'s argument, the juvenile court concluded that the abandonment of W.A. was an ongoing act, and that this on going act invoked Utah's long-arm statute providing Utah with sufficient minimum contacts to establish personal jurisdiction over E.A. Alternatively, the court held that the parent-child relationship was a "status" relationship, and therefore, the "status exception to the personal jurisdiction requirement" provided the court with sufficient jurisdiction to adjudicate the parent-child relationship even if the court lacked personal jurisdiction over E.A.
DCFS and the guardian's office also petitioned to terminate D.A.'s parental rights, however, that petition is not the subject of this appeal.
¶ 5 Ultimately, the juvenile court determined, inter alia, that E.A. had abandoned W.A., pursuant to Utah Code Ann. §§ 78-3a-407(1), -408(1)(c) (Supp. 1998), and that E.A. was an unfit parent, pursuant to Utah Code Ann. §§ 78-3a-407(3), -408(2)(e), -408(4)(a). The juvenile court also concluded that it was in W.A.'s best interests to terminate E.A.'s parental rights. As a result, the juvenile court terminated E.A.'s parental rights to W.A. E.A. now appeals.
ISSUES AND STANDARDS OF REVIEW
¶ 6 E.A. argues the juvenile court lacked personal jurisdiction over him because (1) Utah's long-arm statute does not provide for service of process in this matter; and (2) he has no contacts with the State of Utah. "[T]he propriety of the jurisdictional determination . . . [is] a question of law upon which we do not defer to the district court."Department of Soc. Servs. v. Vijil, 784 P.2d 1130, 1132 (Utah 1989).
E.A. also asserts the following errors: (1) the juvenile court erred by denying his Motion to Dismiss for insufficient process; (2) the juvenile court denied him due process by admitting copies of the dependency hearing minutes and the order into evidence, because he was neither represented by counsel nor present at the dependency hearing; and (3) the juvenile court erred in admitting his nolo contendere plea to sexual abuse of a child and lewd molestation of a child, as well as the Oklahoma judgment sending him to prison to serve a life sentence. As we have concluded that the jurisdictional issue is dispositive of E.A.'s appeal, we note his remaining claims, but do not address them.
ANALYSIS I. Personal Jurisdiction
¶ 7 E.A. argues the juvenile court lacked personal jurisdiction over him when it terminated his parental rights. Specifically, E.A. argues that Utah's long-arm statute, Utah Code Ann. § 78-27-24 (Supp. 1998), does not provide for out-of-state service of process in this matter. E.A. also argues that he lacks the requisite "minimum contacts" with Utah necessary to establish personal jurisdiction over him.
The dissent responds to another of E.A.'s arguments concerning the inapplicability of Utah's Uniform Child Custody Jurisdiction and Enforcement Act, see Utah Code Ann. § 78-45c-101 to -318 (Supp. 2001), to the present circumstance by citing to the Termination of Parental Rights Act (TPRA), see Utah Code Ann. § 78-3a-400-414 (Supp. 2001). Specifically, the dissent focuses on certain "safeguards" extended within the TPRA in an attempt to demonstrate not only that the State has jurisdiction over all termination of parental rights cases where the child resides within the state, but also in an attempt to demonstrate that E.A.'s due process rights were properly considered prior to and during the termination proceedings. What the dissent fails to recognize is that a violation of long held constitutional protections is not permissible simply because other procedural safeguards are satisfied.
¶ 8 Determining whether personal jurisdiction exists over a nonresident defendant requires a court to undertake the following two-prong analysis:
First, [this court] must determine whether Utah's long-arm statute encompasses the acts alleged in the complaint. Second, if we conclude that the alleged acts come within the long-arm statute's reach, we must consider whether the exercise of personal jurisdiction over defendant comports with the due process requirements of the Fourteenth Amendment of the United States Constitution.
Starways, Inc. v. Curry,
1999 UT 50, ¶ 6,
980 P.2d 204. Because we reach a different conclusion than the juvenile court, we address this analysis in reverse order.
A. Minimum Contacts
¶ 9 In denying E.A.'s Motion to Dismiss, the juvenile court determined that under the "`contacts' theory[,] . . . jurisdiction lies with this Court." We agree with the juvenile court that E.A. has the requisite "minimum contacts," International Shoe v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158 (1945), with Utah to satisfy the due process prong of the analysis, albeit for the specific reasons we articulate below.
¶ 10 The United States Supreme Court has held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution permits a forum state to assert personal jurisdiction over a nonresident defendant only when the defendant has "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'"International Shoe, 326 U.S. at 316, 66 S.Ct. at 158 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343 (1940)).
¶ 11 In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228 (1958), the United States Supreme Court explained that determining whether a nonresident defendant has the requisite minimum contacts with the forum state
will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.
Id. at 253,
78 S.Ct. at 1240 (citing
International Shoe,
326 U.S. at 319, 66 S.Ct. at 159-60). Later, in
Kulko v. Superior Court of California,
436 U.S. 84, 98 S.Ct. 1690, the Supreme Court reemphasized that "an essential criterion in all cases is whether the `quality and nature' of the defendant's activity is such that it is `reasonable' and `fair' to require him to conduct his defense in that State."
Id. at 92,
98 S.Ct. at 1697 (quoting
International Shoe,
326 U.S. at 319, 66 S.Ct. at 159-60).
¶ 12 Unlike the facts in Kulko, the "quality and nature" of E.A.'s acts, namely, knowingly permitting the State of Utah to provide financial, emotional, and physical care to W.A. "`purposefully availed [E.A.]' of the `benefits and protections'" of Utah's laws. Id. at 94, 98 S.Ct. at 1698 (citing Shaffer v. Heitner, 433 U.S. 186, 216, 97 S.Ct. 2569, 2586 (1977)). Although E.A. did not bring W.A. into Utah, once W.A. was in DCFS custody, the State, through its child welfare programs established by the Legislature, necessarily provided for W.A.'s well-being. E.A., as a parent, had the responsibility of providing for W.A. and instead chose, for whatever combination of reasons, to allow Utah to step into the role of provider.
The Supreme Court determined that appellant's contacts with California, namely "actively and fully consent[ing] to [his daughter] living in California for the school year," were insufficient to show that he had "purposefully avail[ed]" himself of the "benefits and protections of California's laws." Kulko v. Superior Court of Cal., 436 U.S. 84, 94, 98 S.Ct. 1690, 1698 (1978) (quotations and citation omitted).
¶ 13 Furthermore, E.A. was aware that DCFS had custody and control of W.A. As such, E.A.'s "`conduct and connection with [Utah] are such that he should reasonably anticipate being haled into court here'" to adjudicate his parental rights. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183 (1985) (quoting World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567 (1980)). We therefore conclude that E.A. has established sufficient minimum contacts with Utah to satisfy due process requirements.
Had E.A. successfully made alternate arrangements for the care of W.A. upon discovering the situation, we may have had a different case.
B. Utah's Long-Arm Statute
¶ 14 The remaining hurdle that must be overcome before Utah can assert personal jurisdiction over E.A. is service of process upon E.A., who has at all times been outside of the State during the pendency of this action, and this hurdle therefore necessarily involves the reach of our long-arm statute. In Utah, a litigant initiates an action through the filing of a complaint or a petition, and service of process upon the named defendants. See Utah R. Civ. P. 3-4. When the named defendants are only found out-of-state, our long-arm statute provides for jurisdiction in a variety of situations. See Utah Code Ann. § 78-27-24 (Supp. 2001).
Any person, notwithstanding section 16-10a-1501, whether or not a citizen or resident of this state, who in person or through an agent does any of the following enumerated acts, submits himself, and if an individual, his personal representative, to the jurisdiction of the courts of this state as to any claim arising out of or related to:
(1) the transaction of any business within this state;
(2) contracting to supply services or goods in this state;
(3) the causing of any injury within this state whether tortious or by breach of warranty;
(4) the ownership, use, or possession of any real estate situated in this state;
(5) contracting to insure any person, property, or risk located within this state at the time of contracting;
(6) with respect to actions of divorce, separate maintenance, or child support, having resided, in the marital relationship, within this state notwithstanding subsequent departure from the state; or the commission in this state of the act giving rise to the claim, so long as that act is not a mere omission, failure to act, or occurrence over which the defendant had no control; or
(7) the commission of sexual intercourse within this state which gives rise to a paternity suit under Title 78, Chapter 45a, to determine paternity for the purpose of establishing responsibility for child support.
Utah Code Ann. 78-27-24 (Supp. 2001).
¶ 15 Here, the juvenile court attempted to invoke Utah's long-arm statute by determining that E.A.'s abandonment constituted a continuing and tortious act. See id. § 78-27-24(3). The juvenile court, however, conceded that Utah's long-arm statute "appears ill-fit to deal with termination of parental rights cases." We agree.
¶ 16 We conclude that Utah's long-arm statute does not provide for service of process in this matter. The record does not reflect that E.A. has ever (1) been within the State; (2) conducted business in the State; (3) committed a tortious injury within the State; or (4) owned or used real property situated within the State. While other conduct could be added to the list of actions that would support long-arm jurisdiction, the Legislature has thus far not chosen to do so. Therefore, we must conclude that the long-arm statute is unavailable in this case, and thus, Utah does not have personal jurisdiction over E.A.
See Utah Code Ann. § 78-27-24(6), (7).
See id. § 78-27-24(1)-(3), (5).
See id. § 78-27-24(3).
See id. § 78-27-24(4).
II. The Status Exception
¶ 17 The juvenile court found, in the alternative, that personal jurisdiction was unnecessary, citing the "status" exception, which is mentioned in Shaffer v. Heitner, 433 U.S. 186, 208 n. 30, 97 S.Ct. 2569, 2582 n. 30 (1977). E.A. argues the juvenile court's application of the "status" exception to the personal jurisdiction requirement violated his due process rights. We agree.
¶ 18 In Shaffer, the Supreme Court briefly addressed the existence of a possible exception to the requirement of personal jurisdiction when adjudicating claims involving certain relationships between parties. Id. at 208, 97 S.Ct. at 2582. In this discussion, the Court noted, "We do not suggest that jurisdictional doctrines other than those discussed in text, such as the particularized rules governing adjudications of "status," are inconsistent with the standard of fairness." Id. at 208 n. 30, 97 S.Ct. at 2582 n. 30.
The dissent argues that by citing the Traynor article in its "status" footnote, see Shaffer v. Heitner, 433 U.S. 186, 208 n. 30, 97 S.Ct. 2569, 2582 n. 30 (1977), the Shaffer court must have "contemplated that child custody adjudications, and more specifically termination proceedings, are included within the "status" exception." We, however, do not agree with this analysis and, moreover, see no support for this position in either Shaffer or any Supreme Court case that followed. It is also important to note that while the dissent relies on language from pages 661 and 662 of the Traynor article, the Shaffer Court seems to have purposefully avoided citing to this section. It seems unlikely that in citing only to a small portion of the Traynor article in the footnote that the Court intended to adopt all of language and analysis found in the Traynor article.
¶ 19 However, the Supreme Court has yet to hold that a "status" exception applies to proceedings involving the terminations of parental rights. Further, although it is clear that a "status" exception has been applied to divorce proceedings, the Court has expressly concluded that a "status" exception does not apply to the financial aspects of a marital dissolution, i.e., alimony, child support, and property division. See Kulko v. Superior Court of Cal., 436 U.S. 84, 100-01, 98 S.Ct. 1690, 1701 (1978). Perhaps even more importantly, the Supreme Court has expressly stated that it is "plain beyond the need for multiple citation that a natural parent's desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397 (1982) (quotations and citations omitted). Indeed, the Court terms such rights a "fundamental liberty interest." Id. at 759, 102 S.Ct. at 1397.
The application of the "status" exception to divorce proceedings permits a forum state to dissolve a marriage without ever possessing personal jurisdiction over a party defendant.
The dissent attempts to minimize the impact of Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388 (1988), by focusing on the principal holding of the case concerning standards of proof in termination hearings. However, in doing so, the dissent fails to acknowledge the clear language of Santosky, "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents. . . ."Id. at 753, 102 S.Ct. at 1394-95 (emphasis added). Such language highlights the reason for Santosky holding that rather than a preponderance of the evidence, clear and convincing evidence was the appropriate standard of proof required to terminate parental rights.
¶ 20 Nevertheless, we concede that some jurisdictions have determined the parent-child relationship to be a "status" relationship. Those courts have therefore specifically applied a "status" exception to overcome deficiencies in the personal jurisdiction requirement in proceedings involving the termination of parental rights. See, e.g., In re Appeal in Maricopa County, 543 P.2d 454 (Ariz.Ct.App. 1975); In re M.L.K., 768 P.2d 316 (Kan.Ct.App. 1989); In re M.S.B., 611 S.W.2d 704 (Tex.Civ.App. 1981).
¶ 21 For example, in In re M.S.B., the Texas Court of Civil Appeals defined "status" as "a `relationship between two persons, which is not temporary in its nature, is not terminable at the will of either and with which the State is concerned. Marriage is a status . . . and so too is the relationship of parent and child, whether natural or adoptive.'" 611 S.W.2d at 706 (quoting Reese, Marriage in American Conflict of Laws, 26 Int'l Comp. L.Q. 952, 953 (1977)) (alteration in original). The Texas court thus concluded that "[i]t cannot be doubted that the parent-child relationship creates a status, and that a suit seeking to terminate such relationship is a status adjudication as much as a suit to determine custodial rights." Id.
¶ 22 Similarly, in In re Appeal in Maricopa County, the Arizona Court of Appeals explained that the State, "in its capacity as parens patriae[,] has a very substantial interest in the [termination] proceeding." 543 P.2d at 459. Accordingly, the court continued, "when the issue is primarily between the state in its parens patriae capacity and an absent non-consenting spouse, the state is justified in providing for effective termination proceedings, even in the absence of in personam jurisdiction over a non-consenting parent." Id.
¶ 23 However, in light of the Supreme Court's clear declaration that parental rights are a fundamental liberty interest, and that "`state intervention to terminate the relationship between [a parent] and [the] child must be accomplished by procedures meeting the requisites of the Due Process Clause," Santosky, 455 U.S. at 753, 102 S.Ct. at 1394 (quoting Lassiter v. Department of Soc. Servs., 452 U.S. 18, 37, 101 S.Ct. 2153, 2165 (1981) (Blackmun, J., dissenting)) (alterations in original); see also Lassiter, 452 U.S. at 24-32, 101 S.Ct. at 2158-2162, we find it difficult to reconcile the personal jurisdiction requirement necessary to adjudicate contract rights, money damage awards, and support obligations for children with the decisions of these jurisdictions not to require the same stringent due process and personal jurisdiction requirements for proceedings that would terminate a parent and child relationship.
While we agree with the dissent that several jurisdictions have applied a "status" exception in cases similar to this case, as we have stated we do not find these cases persuasive. See In re Appeal in Maricopa County. 543 P.2d 454, 459 (Ariz.Ct.App. 1975); In re M.L.K., 768 P.2d 316, 319 (Kan.Ct.App. 1989); In re adoption of Copeland, 43 S.W.2d 483, 487 (Tenn.Ct.App. 2000). Moreover, our reading of Supreme Court precedent suggests that the nature of termination proceedings demands a strict adherence to procedural safeguards, and that the legal prestidigitation found in the application of "status" exceptions to these cases are unlikely to satisfy those requirements. See Santosky v. Kramer, 455 U.S. 743, 753, 102 S.Ct. 1388, 1395 (1982) (stating "If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs."); Kulko v. Superior Court of Cal., 436 U.S. 84, 92, 98 S.Ct. 1690, 1697 (1978) (stating that "While the interests of the forum State and of the plaintiff in proceeding with the cause in the plaintiff's forum of choice are, of course, to be considered, an essential criterion in all cases is whether the `quality and nature' of the defendant's activity is such that it is `reasonable' and `fair' to require him to conduct his defense in that State." (Citations omitted) (emphasis added)).
¶ 24 Indeed, although the facts of this matter clearly show E.A. to be an unfit parent, and that it is in W.A.'s best interest for the juvenile court to terminate E.A.'s parental rights, we cannot escape the conclusion that applying a "status" exception to termination proceedings may lead to unfortunate consequences in future cases. As the United States Supreme Court has carefully noted:
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the
irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.
Santosky,
455 U.S. at 753-54, 102 S.Ct. at 1394-95 (emphasis added). "We therefore reject respondent['s] . . . claim that a parental rights termination proceeding does not interfere with a fundamental liberty interest."
Id. at 754 n. 7,
102 S.Ct. at 1395 n. 7.
¶ 25 Recognizing the fundamental liberty interest at stake in a proceedings involving the termination of parental rights, other jurisdictions have held that a state must meet its Fourteenth Amendment obligation to obtain personal jurisdiction over a parent prior to attempting to terminate his or her parental rights. SeeIn re One Minor Child, 411 A.2d 951, 952-53 (Del. 1980) (holding no jurisdiction over appellant because of insufficient notice); In re R.G., 611 So.2d 71 (Fla.Ct.App. 1992) (per curiam); In re Doe, 926 P.2d 1290 (Haw. 1996);Phillips v. Thornerfelt, Nos. 85-CA-1075-S, 85-CA-1372-S, 1986 Ky. App. LEXIS 1116 (Ky.Ct.App. April 25, 1986); see also In re Vernon R., 991 P.2d 986 (N.M.Ct.App. 1999) (holding that a "status" exception was inapplicable to the specific facts of the case, but leaving open the question when a child's best interest is clearly at issue).
¶ 26 We find the facts of In re Doe to be particularly enlightening. In Doe, the subject child (Doe) was born in Australia and later taken to Hawaii by the father, where he sought reinstatement of his suspended Veterans Administration benefits. See Doe, 926 P.2d at 1292. The mother allowed the father to take Doe to Hawaii because she "mistakenly thought that Doe would need a visa to accompany her to the Philippines." See id.
¶ 27 At some point, the father became unable to care for Doe and requested assistance from the Philippine Consulate, which, in turn, referred the child to Hawaii's Department of Human Services (DHS). See id. DHS placed Doe in an emergency shelter home and ultimately filed a petition to have the family court determine Doe's best interests. See id. A summons was issued to the mother, however, she did not receive it until the day of the hearing, and the family court proceeded without personal jurisdiction over her, explaining that "technically this won't bind her because we haven't noticed her." Id.
¶ 28 The family court then conducted five hearings, wherein the mother was unrepresented by counsel and often without notice of the proceedings. See id. Throughout this ordeal, the mother regularly corresponded with DHS and the court, pleading for the return of her son.See id. at 1293. She also explained that "United States immigration officials refused to recognize [her marriage to the [f]ather] because [he] had not yet divorced a previous wife; as a result, [the] [m]other was unable to obtain a visa until July 1990." Id. The court possessed all of this information by March of 1988. See id.
¶ 29 The Philippine Department of Social Welfare (PDSW) conducted social studies and filed a report with the court recommending that Doe be returned to the mother in the Philippines. See id. at 1294. The PDSW report noted that the mother would be afforded additional protection and economic stability by her extended family, and through PDSW assistance if necessary. See id. However, the Hawaii family court terminated both the mother's and the father's parental rights. See id.
¶ 30 The mother appealed the family court's decision and the Hawaii Supreme Court reversed concluding that "[the] [m]other's due process rights were violated." Id.; (seeIn re John Doe (born 8/6/87), No. 15429 (mem. op. at 12 n. 8) (Haw. Feb. 19, 1993)). On remand, after a separate hearing on the issue of personal jurisdiction, the family court ruled that "it had personal jurisdiction" over the mother, and again terminated her parental rights. Id.
¶ 31 The mother again appealed, and the Hawaii Supreme Court again reversed concluding that the mother had "no contact" with Hawaii, and therefore, Hawaii did not have personal jurisdiction over her. Id. The court also noted the inherent unfairness of the proceeding against her, explaining that "[the] [m]other was required to travel to Hawaii as a prerequisite to reunification with her child; notwithstanding her known visa difficulties, DHS held [the] [m]other's absence against her." Id. at 1295.
¶ 32 The court concluded by addressing the applicability of the "status" exception to a proceeding dealing with the termination of parental rights, stating:
We are aware of the cases supporting the proposition that personal jurisdiction over a nonresident parent is not required for certain "status" determinations — such as child custody under the Uniform Child Custody Jurisdiction Act (UCCJA) — so long as the nonresident receives sufficient notice and an opportunity to participate in the proceedings. . . . A principal purpose of the UCCJA, however, is "to have custody litigation take place in the state where the child and his family have the closest connection."
Balestrieri v. Maliska,
622 So.2d 561, 563 (Fla.Ct.App. 1993). . . . The Texas Supreme Court has articulated the general rule that "a family relationship is among those matters in which the forum state has such a strong interest that its courts may reasonably make an adjudication affecting that relationship even though one of the parties to the relationship may have had no personal contacts with the forum state."
In re S.A.V.,
837 S.W.2d 80, 84 (Tex. 1994). . . .
But such cases do not involve the exercise of personal jurisdiction in a situation in which neither parent ever was or intended to be a resident of the state. . . . Here, the particular family relationship over which the State of Hawai'i asserts a compelling interest never existed within its jurisdiction because neither of the parents resided in or was domiciled in Hawaii. The policy underlying the foregoing cases simply does not apply to the present case.
Id. at 1299 (citations omitted).
¶ 33 Similarly, in Phillips, the Kentucky Court of Appeals refused to terminate a father's parental rights because the state lacked personal jurisdiction over him. 1986 Ky. App. LEXIS 1116, at *18. The Kentucky court concluded that "neither [Kentucky's] longarm statute nor those provisions relating to in personam jurisdiction in the UCCJA can confer jurisdiction over [the father] so as to interfere with his parental rights, unless [the father] had done something to avail himself of the benefits or protections of this forum." Id.
¶ 34 Finally, in In re Vernon R., the New Mexico Court of Appeals upheld a lower court decision refusing to terminate the father's parental rights for lack of personal jurisdiction. See id. 991 P.2d 986, 989 (N.M.Ct.App. 1999). The court explained that it agreed with "those courts that have held a straight termination proceeding, not involving custody, adoption, or other similar issues, to fall outside the [U]CCJA." Id. at 988. Further, the court explained that it disagreed with the mother's argument that terminating the father's rights "presents a status adjudication [for] which no personal jurisdiction over the parties is required." Id.
[The] [m]other's argument to this effect relies on custody cases, and she urges this Court to extend the same rationale to termination proceedings. We are not inclined to do so, because this would unreasonably extend the rationale of the [U]CCJA to a type of case that it was not intended to cover. The [U]CCJA is concerned with the adjudication of custody issues in an efficient manner that promotes cooperation among states and the best interest of the child, . . . goals which are not significantly advanced by termination of [the] [f]ather's parental rights under these circumstances.
Id.
¶ 35 The court also noted "the fundamental importance of parental rights," and therefore, "in personam jurisdiction is ordinarily required for termination." Id. at 988-89. Notwithstanding its specific ruling, the court did caution that where "the residence and caretaking of a child is at issue" it may revisit the exception from the personal jurisdiction requirement. Id. at 989.
¶ 36 These jurisdictions have recognized the fundamental liberty interest associated with parental rights, and the absolute necessity of comporting with due process requirements, including the establishment of personal jurisdiction, before depriving a parent of that fundamental interest.
¶ 37 Finally, we note that in Utah, terminating parental rights requires the juvenile court to make two, relatively separate findings before termination can occur. SeeIn re C.K., 2000 UT App 11, ¶ 18, 996 P.2d 1059.
First, the court
must find that a specific ground for termination exists, finding the parent unfit or incompetent based on a ground enumerated in section 78-3a-407 of the Utah Code. Second, the court
must find that termination of parental rights serves the best interests of the child. Each finding must be based on clear and convincing evidence.
Id. (emphasis added) (citations omitted). Accordingly, the juvenile court must find some enumerated parental misconduct before determining whether terminating the parent's rights is in the best interest of the child. We believe that such a finding, without first having personal jurisdiction over that parent, would violate due process, particularly when, as in this matter, the actual
misconduct of E.A. occurred outside of Utah.
The dissent cites In re M.C., 940 P.2d 1229, 1237 (Utah Ct.App. 1997), in an attempt to distinguish between matters involving support and property, and matters involving parent-child relationships. While we agree that In re M.C. states clearly that "the State's policy when abused and neglected children are involved in termination cases [is to hold] [t]he child's welfare and best interest [to be] of paramount importance," 940 P.2d at 1237, we do not see how this policy can overcome the Constitutional requirement that a forum state must first have personal jurisdiction before it can render judgment on a party. See generally Kulko v. Superior Court of Cal., 436 U.S. 84, 91-92, 98 S.Ct. 1690, 1696-97 (1978). We also find unpersuasive the dissent's statement that "the parent alone has constitutionally protected rights and interests [in matters of property and support] because the financial obligation is one borne by the parent." In fact, after carefully reviewing Kulko, we conclude that the Supreme Court adopted a position substantially different from that proposed by the dissent, holding not that the parent's financial interests are deserving of protection, but rather that the parent himself is deserving of Due Process protections. See id. at 98-100, 98 S.Ct. at 1700-01. Moreover, in discussing the financial interests that were central to the underlying action, the Supreme Court clearly suggested that in the area of child support, the interests of the children are at least as important as the financial interests of the parent. See id.
¶ 38 In sum, we find the cases recognizing the fundamental importance of parental rights persuasive and note that the United States Supreme Court has yet to apply or extend a "status" exception to termination proceedings. Accordingly, we conclude that the juvenile court erred in relying upon the "status" exception to personal jurisdiction in denying E.A.'s Motion to Dismiss.
¶ 39 We further cannot escape the conclusion that the judiciary is not the proper branch of government to make state policy concerning the extension of our long-arm jurisdiction over absent parties. Were the legislature to amend the long-arm statute to allow for service of process in these types of cases, Utah could assert personal jurisdiction over E.A., and thus the juvenile court's decision to terminate E.A.'s parental rights would be supportable. However, as it stands, service of process in this matter is deficient for failure to comport with Utah's long-arm statute. Accordingly, because we conclude that a "status" exception to the due process requirement of personal jurisdiction does not extend to proceedings to terminate parental rights, the juvenile court did not have personal jurisdiction over E.A. when it terminated his parental rights.
Finally, the dissent notes that it is unlikely the courts of either Kentucky or Oklahoma would accept jurisdiction of this case and that absent such a "competing" state, Utah is in the best position to adjudicate this matter. The analysis set forth in Kulko easily disposes of this argument: "the fact that [Utah] may be the `"center of gravity"' for choice-of-law purposes does not mean that [Utah] has personal jurisdiction over the defendant." 436 U.S. at 98, 98 S.Ct. at 1700 (quoting Hanson v. Denckla, 357 U.S. 235, 254, 78 S.Ct. 1228, 1240 (1958)). We also note that the record evidences no determination by any other state reflecting an unwillingness to assert their claim of personal jurisdiction over E.A. on behalf of W.A. Absent such a declaration, we are unwilling to declare that a "vacuum" in the law exists and manufacture an exception.
¶ 40 The decision of the juvenile court is, therefore, reversed.
¶ 41 I CONCUR: Judith M. Billings, Associate Presiding Judge.