2020 UT App 149

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ADOPTION OF B.F.S.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

HEART TO HEART ADOPTIONS INC.,

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 DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES GREGORY K. ORME and KATE APPLEBY 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 childplacing 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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20190933-CA 3 2020 UT App 149

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.