In re the Parentage of Infant Child F. ( 2013 )

FILED
NOV. 19,2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Parentage of: ) No. 30768-9-111
)
INFANT CHILD F. AND UNBORN CHILD )
F., )
)
Child, )
) PUBLISHED OPINION
MICHAEL HUNTER, )
)
Petitioner and Alleged )
Father, )
)
v. )
)
MICHELLE FEREBAUER, )
ROBERT FEREBAUER, )
)
Respondents. )
BROWN, J. - Michael Hunter's appeal concerns the paternity of the child Michelle
Ferebauer gave birth to in Utah and immediately placed for adoption there in 2010.
After Mr. Hunter unsuccessfully petitioned to intervene in the Utah adoption proceedings
and did not appeal, the Washington superior court ruled his paternity petition was moot.
Mr. Hunter contends the court erred in dismissing his paternity petition, giving flJlI faith
and credit to the Utah ruling, failing to enter findings of fact and conclusions of law,
failing to enter a temporary order requiring genetic testing, denying his request to add
the adoptive parents as indispensable parties, and allowing Ms. Ferebauer to participate
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In re the Parentage of Infant Child F.
in the proceedings. We con"clude the superior court did not err in giving full faith and
credit to the Utah court when dismissing Mr. Hunter's paternity petition without written
findings. Therefore, we do not reach his other contentions, and affirm.
FACTS
Ms. Ferebauer met Mr. Hunter at work in February 2009. She was married to
Robert Ferebauer at the time, but developed an intimate relationship in Mayor June
2009 with Mr. Hunter. In July 2009, Ms. Ferebauer became pregnant with a March
2010 due date. She informed Mr. Hunter that he was the father. Ms. Ferebauer
petitioned to dissolve her marriage with Mr. Ferebauer and moved in with Mr. Hunter. 1
Mr. Hunter has two daughters from a prior marriage whom he and his prior spouse
share custody. The Ferebauer-Hunter relationship soon ended due to Ms. Ferebauer's
fears that Mr. Hunter would not be a good father. Mr. Hunter encouraged an abortion,
but Ms. Ferebauer preferred adoption. Mr. Hunter at first agreed to the adoption and
signed a consent to adopt and relinquishment of parental rights in January 2010. Mr.
Hunter and Ms. Ferebauer then disagreed over whether the adoption should be open
and he revoked his consent.
In February 2010, Ms. Ferebauer took a leave of absence from work and decided
to go to Utah. She e-mailed Mr. Hunter, notifying him that she was going to Utah to be
with friends and have the baby. Mr. Hunter responded that he did not know if he would
ever see her or the baby again, but he wished Ms. Ferebauer luck.
1 The petition for dissolution was later dismissed.
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On March 2, 2010, Ms. Ferebauer gave birth to a baby girl in Utah. 80th Mr.
Ferebauer and Ms. Ferebauer relinquished their parental rights and gave consent for
adoption. Under Utah law, Mr. Ferebauer was the presumed father. See Utah Code
Ann. § 788-15-204(1 )(a) ("A man is presumed to be the father of a child if ... he and
the mother of the child are married to each other and the child is born during the
marriage."). To overcome this presumption, the unmarried biological father must sign a
voluntary declaration of paternity. Utah Code Ann. § 788-15-302, -303. Utah
terminated all parental rights and approved adoption of Infant F to Washington adoptive
parents, with whom Infant F has resided since birth.
Mr. Hunter filed a petition to establish paternity in Utah on June 23,2010. On
July 15, 2010, he sought to intervene or set aside the Utah order terminating his
parental rights. On December 20, 2010, the Utah court entered a memorandum
decision denying Mr. Hunter's motion to intervene. The court found Mr. Hunter never
submitted a voluntary declaration of paternity that he executed with the birth mother as
required by Utah law. Thus, the court concluded Mr. Hunter did not overcome Mr.
Ferebauer's presumption of paternity and therefore, did not have standing to intervene.
On March 23,2011, the Utah court entered a final order denying Mr. Hunter's motion to
intervene. Mr. Hunter did not appeal the Utah final order.
On a somewhat parallel course, Mr. Hunter petitioned in Washington to establish
paternity. He served his Franklin County petition on the Ferebauers on May 14, 2010.
The Ferebauers responded to Mr. Hunter's Washington petition, requesting dismissal in
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light of the Utah proceedings. After a November 2010 court commissioner's ruling that
Washington had jurisdiction under Washington's Uniform Child Custody Jurisdiction Act,
chapter 26.27 RCW and/or the federal Parental Kidnapping Prevention Act of 1980
(PKPA), 28 U.S.C. § 1738A, the Ferebauers requested revision by a superior court
judge. The Ferebauers argued the court should grant full faith and credit because Utah
had jurisdiction and was continuing to exercise it. In December 2010, Mr. Hunter
sought to join the adoptive parents and the child to the Washington action, and he
asked for DNA testing. On January 11, 2011, a superior court judge stayed the
Washington action pending a final order in Utah. The Washington court lifted the stay
on July 21,2011.
Finally, on December 12, 2011, the trial court dismissed the action as moot given
Utah's ruling and Mr. Hunter's failure to appeal that ruling. The judge clarified, "I kept
the case open in the event that Utah reversed itself in their appellate process and
encouraged counsel to go back down [t]here to Utah and pursue the arguments that
they had. They didn't do that. They abandoned the process and did not exhaust their
remedies in Utah, and so this is where I find myself now. There's no possibility that
Utah is going to reverse themselves and so I think that makes this case moot at this
point." Report of Proceedings (Dec. 12,2011) at 44-45. Mr. Hunter appealed.
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ANALYSIS
The issue is whether the trial court erred in dismissing Mr. Hunter's paternity
petition as moot. Mr. Hunter contends the court erred in giving Utah's order full faith
and credit.
We generally review a decision to dismiss for abuse of discretion. Spokane
County v. E. Wash. Growth Mgmt. Hearings Bd., 173 Wash. App. 310, 323-24,293 P.3d
1248 (2013). Dismissal for mootness, however, is a question of law this court reviews
de novo. Hilltop Terrace Homeowner's Ass'n v. Island County, 126 Wash. 2d 22, 29, 891
P.2d 29 (1995). Additionally, issues involving whether another state's judgment should
be given full faith and credit by our courts are issues of law and reviewed de novo.
SCM Grp. USA, Inc. v. Protek Mach. Co., 136 Wash. App. 569, 574,150 P.3d 141 (2007).
I
As an initial matter, Mr. Hunter contends the court erred in not entering findings
of fact and conclusions of law when dismissing his petition. CR 52(a)(2)(8) states that
findings and conclusions are required "with all final decisions in adoption, custody, and
divorce proceedings." But, under CR 52(a)(5)(8), findings and conclusions are not
required for "decisions of motions under rules 12 or 56 or any other motion, except as
, provided in rules 41 (b)(3) and 55(b}(2} [neither apply here]. Mr. Hunter petitioned to
establish paternity. The matter was decided on motions with the court ultimately
dismissing based on mootness. Accordingly, findings and conclusions were not
required. Moreover, since our review is de novo, findings and conclusions are
unnecessary for our analysis.
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A case is moot if the court cannot provide the basic relief originally sought or can
no longer provide effective relief. Blackmon v. Blackmon, 155 Wn. App. 715,719,230
P.3d 233 (2010). If a sister state's judgment is given full faith and credit in that there is
no relief available in Washington, then the Washington proceedings would be rendered
moot. See J.E.W v. T.G.S., 935 SO.2d 954, 962 (Miss., 2006) (Mississippi court gave
full faith and credit to South Carolina custody decision, rendering proceedings in
Mississippi moot).
The full faith and credit clause of the United States Constitution, U.S. CONST. art.
IV, § 1, generally requires a state to give a foreign judgment at least the res judicata
effect which would be accorded in the state which rendered it. Durfee v. Duke, 375 U.S.
106, 109, 84 S. Ct. 242 (1963). Full faith and credit requires that once an action is
pursued to a final judgment,' that judgment is conclusive in every other court as it is in
the court which rendered the judgment. State v. Beny, 141 Wn.2d 121,127-28,5 P.3d
658 (2000). '''The Full Faith and Credit Clause provides a means for ending litigation by
putting to rest matters previously decided between adverse parties in any state or
territory of the United States.'" Id. at 127 {quoting In re Estate of Tolson, 89 Wn. App.
21,29,947 P.2d 1242 (1997».
A party can collaterally attack a foreign judgment if the court did not have
jurisdiction. Berry, 141 Wn.2d at 127-28. A party attacking a foreign judgment has the
burden of establishing lack of jurisdiction. Williams v. Steamship Mut. Underwriting
Ass'n, Ltd., 45 Wn.2d 209,213,273 P.2d 803 (1954) {Washington courts presume a
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court of general jurisdiction in a sister state has jurisdiction over the cause and the
parties "unless disproved by extrinsic evidence or by the record itself.").
Utah courts have jurisdiction over adoption where the child was born in the state
and/or resides in the state on the day the adoption petition is filed. Utah Code Ann. §
78B-6-105(1). Furthermore, Utah has "jurisdiction to hear and decide a petition to
terminate parental rights in a child if the party who filed the petition is seeking to
terminate parental rights in the child for the purpose of facilitating the adoption of the
child." Utah Code Ann. § 78B-6-112(1). Because Infant F was born in Utah and
resided in Utah on the day of the adoption petition and because termination of all
parental rights was requested in Utah to facilitate the adoption, Utah has jurisdiction to
decide the matter. Mr. Hunter has not met his burden to disprove jurisdiction.
As discussed above, in Utah an unwed biological father may file a declaration of
paternity under Utah Code Ann. § 78B-15-302 to establish paternity and thus be a
necessary party to contest adoption proceedings. This declaration must be signed by
the birth mother and may be completed and signed any time after the birth of the child,
but "may not be signed or filed after consent to or relinquishment for adoption has been
signed." Utah Code Ann. § 78B-15-302(1)(b), (8).
Here, Mr. Hunter filed a declaration of paternity but it did not include Ms.
Ferebauer's signature. Additionally, it was filed after the consent for adoption. Hence,
under Utah law, Mr. Hunter failed to establish paternity in Utah; as such, he did not have
standing to contest the adoption. Mr. Hunter did not appeal this ruling, making it a final
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order. A final judgment in one state, rendered by a court with jurisdiction over the
subject matter and parties governed by the judgment, controls in other states to the
same extent as in the state where it was rendered. Baker by Thomas v. General Motors
Corp., 522 U.S. 222, 223,118 S. Ct. 657,139 L. Ed. 2d 580 (1998).
The trial court properly conferred full faith and credit to Utah's ruling and, thus,
properly dismissed the Washington proceeding as moot. Accordingly, Mr. Hunter's
claims regarding due process in Washington, joinder of the adoptive parents to the
proceedings, a temporary order for genetic testing, and Ms. Ferebauer's participation in
the Washington proceedings are equally moot, as we cannot provide relief on these
matters. Blackmon, 155 Wn. App. at 719-20.
Affirmed.
Brown, J.
I CONCUR:
Korsmo, ·C.J.
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No.30768-9-III
FEARING, 1. (concurring) - An appeals court judge is taught to avoid placing in an
opinion facts unnecessary to the decision. I violate this instruction and write separately
to voice the inequity suffered by appellant Michael Hunter. I also write separately
because I consider the appeal merits additional analysis.
The parties agree that Michael Hunter is the father of infant F, despite the mother,
Michelle Ferebauer, being married to another. The infant was conceived in Washington
State. Over a period of months thereafter, Ferebauer and Hunter participated in an
unsettled relationship. On February 24, 2010, Ferebauer sent an e-mail message to
Hunter informing him that "I have decided to go to Utah to have the baby .... I'll
contact you when I get back." Report of Proceedings (Jan. 11,2011) at 36. She did not
alert Hunter of her intent to terminate his parental rights in Utah nor to place their child
for adoption in that state. Ferebauer knew that Hunter wished to participate in raising the
child. Utah is nationally known as the state where unmarried biological fathers' rights to
children are not protected. 1
1 See Samuel C. Johnston, Comment, Unwed Putative Fathers: Beware Utah
Adoption Law, 2013 UTAH L. REv. 104, 104-05 (2013) ("Wyatt's story and the
allegations in his federal claim raise a number of questions regarding adoptions and
adoption law in Utah, especially when the adoptions involve unwed fathers and occur
across state lines. Wyatt is just one of many out-of-state unwed fathers, in recent years,
to be entangled by Utah's adoption laws. Each story is slightly different, but in each, a
mother with little or no lifetime ties to Utah gave her baby up for adoption in Utah with
No. 30768-9
In re Parentage ojInfant Child F.
On March 2,2010, infant F was born in Salt Lake City, Utah. On March 3, 2010,
not yet knowing his child had been born, Michael Hunter filed this petition, in
Washington State, to establish his paternity to infant F. He unsuccessfully sought to gain
an acceptance of service of the petition from Ferebauer's Washington attorney. Hunter
did not locate Michelle Ferebauer for purposes of service until May 14,2010, when she
was served at a gym in the Tri-Cities.
the help of a Utah agency and attorney. In each case, the father tried to comply with Utah
law or the laws of his home state but fell short in some legally significant way. Only in
the most recent case did an unwed putative father prevail, making the current state of the
law even more uncertain for the rights of unwed out-of-state fathers."); Marjorie Cortez,
Legislative panel mulls national putative Jather registry, Deseret News, June 9, 2013,
available at http://www.deseretnews.comlarticle/8655 81919ILegislative-panel-mulls­
national-putative-father-registry.html?pg=all (last visited Sept. 16,2013) ("In recent
years, a number of court cases in Utah have involved pregnant, unmarried women from
other states giving birth in Utah and placing the children for adoption without the
knowledge or consent of the biological father."); Dennis Romboy, Do Utah's adoption­
friendly laws make it anti-birthJather?, Deseret News, Feb. 6, 2012, available at
http://www.deseretnews.comlarticleI7002228191D0-Utahs-adoption-friendly-Iaws-make­
it-anti-birth-father.html (last visited Oct. 17,2013) ("Salt Lake adoption attorney Wes
Hutchins said Utah's laws invite 'forum shopping' among single pregnant women
looking a favorable place for an adoption and allow women to hide from out-of-state
birth fathers."); Brooke Adams, Stopping an adoption: In Utah, unwedJathers rarely win,
The Salt Lake Tribune, December 24, 2011, available at
http://www.sltrib.comlsltriblhome2/5 2592820-183/utah-adoption-fathers­
registry.html.csp (last visited Oct. 22,2013) ("[S]ome of the more than 25 higher court
rulings [against biological fathers] in Utah since 1959 have turned on other missteps in
the process, including some one justice described as 'very minor issues of
noncompliance.' ").
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Meanwhile in Utah~ Michelle Ferebauer filed a petition in court~ on March 4~
2010~ to terminate her rights~ the rights of her husband~ and the rights ofMichae1 Hunter
to infant F. In the Utah court petition~ Ferebauer alleged she was a Utah resident. The
petition further alleged that~ under Utah law~ the consent of Hunter was not required and
that he had forfeited or waived all rights with regard to the child~ including the right to
notice. On the same day, and without notice to Michael Hunter, the Utah District Court
exercised jurisdiction over Infant F by entering a court order which stated in part, "It is
[h]ereby [o]rdered, [a]djudged, and [d]ecreed that the [r]ights of Michelle Gemstsen
Ferebauer, Robert Ferebauer,2 Michael Hunter and any other putative birth fathers are
I
I
forever waived, surrendered and terminated." Clerk's Papers (CP) at 688. Michelle
f
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Ferebauer and her husband consented to the termination of their rights.
Infant F was adopted by Washington parents. So that the adopting parents could
bring the child to Washington State~ Michelle Ferebauer's Utah counsel wrote a letter to
Interstate Compact on the Placement of Children (ICPC) administrators in both Utah and
Washington, stating that "[b]oth parents have consented to the adoption." CP at 550.
The ICPC form signed by Ferebauer claimed that the father ofthe infant was Ferebauer's
husband. In the form, Michelle Ferebauer gave her residence address as being the office
address of her Utah counsel.
2 The husband of Michelle Ferebauer.
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By May 2010, if not earlier, Michelle Ferebauer returned to the State of
Washington. Ferebauer had not resigned from her employment in Washington State.
Instead, she took maternity leave and later returned to her Washington job.
On June 23,2010, Michael Hunter filed, in Utah court, a petition to establish his
paternity.' On July 15,2010, Hunter also filed, in the earlier Utah action initiated by
Ferebauer, a motion to intervene and a motion to vacate the order terminating his parental
rights. On March 23,2011, the Utah District Court denied the motion to intervene. The
court ruled that Hunter lacked standing to challenge the prior termination order, since he
failed to timely file a declaration of paternity with the Utah courts. As part of his motion
to intervene, Hunter argued the same contentions forwarded before our superior court in
support of this paternity action. Among other contentions, Hunter argued his due process
rights were violated when his parental rights were terminated without notice, and
Michelle Ferebauer committed fraud. Michael Hunter did not file an appeal with the
Utah Court of Appeals.
A parent holds a fundamental liberty interest, protected by the Fourteenth
Amendment, in the care, custody and control of a child. Santosky v. Kramer, 455 U.S.
745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Pierce v. Soc'y ofSisters, 268 U.S.
510,534-35,45 S. Ct. 571,69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390,
399,43 S. Ct. 625, 67 L. Ed. 1042 (1923). State intervention to terminate the relationship
between a parent and his child must be accomplished by procedures meeting the
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requisites of the due process clause. Santosky, 455 U.S. at 753, 768; Lassiter v. Dep't of
Social Servs., 452 U.S. 18,37, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981). Unfortunately,
these principles fail Michael Hunter because he litigated his rights in Utah, and forwent
his right to appeal the unfavorable decision to the Utah Court of Appeals. I thus agree
with the majority that we must afford the Utah court's orders full faith and credit.
The full faith and credit clause directs that "[f]ull faith and credit shall be given in
each state to the public acts, records, and judicial proceedings of every other state." U.S.
CONST. art. IV, § 1; Baker by Thomas v. General Motors Corp., 522 U.S. 222, 233, 118
S. Ct. 657, 139 L. Ed. 2d 580 (1998). The full faith and credit clause of the Constitution
precludes any inquiry into the merits of the other state's cause of action, the logic or
consistency of the decision, or the validity of the legal principles on which the judgment
is based. Milliken v. Meyer, 311 U.S. 457, 462, 61 S. ct. 339,85 L. Ed. 278 (1940)
(citing Fauntleroy v. Lum, 210 U.S. 230, 28 S. Ct. 641, 52 L. Ed. 1039 (1908)).
Whatever mistakes of law may underlie the judgment, it is conclusive as to all matters
decided. Milliken, 311 U.S. at 462.
To our knowledge, Michael Hunter had no significant contacts with Utah. Thus,
Michael Hunter may have challenged, for lack ofjurisdiction, in Washington courts, the
Utah court's order terminating his parental rights. Estin v. Estin, 334 U.S. 541, 549-50,
68 S. Ct. 1213,92 L. Ed. 1561 (1948); Milliken, 311 U.S. at 462; Conlon ex rei. Conlon
v. Heckler, 719 F.2d 788 (5th Cir. 1983). The question ofa parent's paternity may not be
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resolved in a state in which the parent lacks contacts. Id. at 794, 797. But he lost that
opportunity when he filed a separate action in Utah to establish his paternity, and also
when he brought a motion to intervene and vacate the order terminating his parental
r~ghts in the suit filed by Ferebauer.
Because the requirement of personal jurisdiction represents an individual right, it
can, like other such rights, be waived. Ins. Corp. ofIreland, Ltd. v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 703, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982). A
defendant waives a jurisdictional defense by suing the plaintiff in the objectionable forum
in a second suit involving the same facts. Brokerwood Prods. Int'l, Inc. v. Cuisine
Crotone, Inc., 104 Fed. App'x. 376, 380 (5th Cir. 2004); Paine Webber Inc. v. Chase
Manhattan Private Bank (Switzerland), 260 F.3d 453,460 (5th Cir. 2001); Andrew
Greenberg, Inc. v Sirtech Can., Ltd., 79 A.D.3d 1419, 1423,913 N.Y.S.2d 808 (2010). A
defendant also waives a jurisdictional defect by choosing to actively litigate an issue on
the merits. Paine Webber, 260 F.3d at 460; Praetorian Specialty Ins. Co. v. Auguillard
Constr. Co., Inc., 829 F. Supp. 2d 456,464 (W.D. La. 2010); In the Matter ofSayeh R.,
91 N.Y.2d 306, 319,693 N.E.2d 724 (1997); Mikulski v. Mikulski, 2 Cal. App. 3d 1047,
1050,83 Cal. Rptr. 15 (1969).
Michael Hunter was likely not subject to personal jurisdiction in the Utah courts at
the time Michelle Ferebauer filed her petition to terminate parental rights. When the
plaintiff relies on general personal jurisdiction, the court must have jurisdiction over the
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defendant at the filing of the suit. Marathon Oil Co. v. A.G. Ruhrgas, 182 F.3d 291,295
(5th Cir. 1999). General personal jurisdiction is found when the nonresident defendant's
contacts with the forum state, even if unrelated to the cause of action, are continuous,
systematic, and substantial. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408,415, 104 S. Ct. 1868,80 L. Ed. 2d 404 (1984); Marathon Oil, 182 F.3d at 295.
General personal jurisdiction is distinguished from specific personal jurisdiction, when
the nonresident's contacts with the forum state arise from or are directly related to the
pending cause of action. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct.
2174, 85 L. Ed. 2d 528 (1985); General Contracting & Trading Co., LLC v. Interpole,
Inc., 940 F.2d 20,22 (1st Cir. 1991). The nonresident's availing himself of the forum
state's courts to assert the merits of a related claim is one example of specific personal
jurisdiction. Most courts, who have addressed the issue, have ruled that specific personal
jurisdiction may be based upon the actions of the nonresident defendant after the filing of
the plaintiffs suit. Brokerwood Prods., 104 Fed. App'x at 379-80; General Contracting,
940 F .2d 20; Praetorian, 829 F. Supp. 2d at 464; Endless Pools, Inc. v. Wave Tec Pools,
Inc., 362 F. Supp. 2d 578,583-84 (E.D. Pa. 2005); Educ. Testing Servo V. Katzman, 631
F. Supp. 550,554-57 (D. N.J. 1986).
Our case differs from other reported decisions in that the Utah court terminated
Michael Hunter's parental rights even before Hunter waived lack of personal jurisdiction
by filing his separate Utah action and by asserting his rights in the suit filed by Ferebauer.
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Nevertheless, the same reasoning applies as attaches to the reported decisions. The Utah
court addressed anew Michael Hunter's parental rights when he filed motions to
intervene and to vacate the order of termination. By filing and arguing the motions,
Hunter was afforded a hearing on his contentions after the Utah court gained personal
jurisdiction.
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