Utah Court of Appeals
Can third-party communication efforts rebut abandonment in parental rights cases? B.E. nka B.B. v. R.E. Explained
Summary
Father appealed the termination of his parental rights, claiming the juvenile court erred in finding he had not rebutted prima facie evidence of abandonment and that termination was in the child’s best interests. The court found two periods where father failed to communicate with the child for more than six months, including April 2007 to December 2007, and that father’s efforts to communicate through his mother were insufficient token efforts.
Practice Areas & Topics
Analysis
In B.E. nka B.B. v. R.E., the Utah Court of Appeals addressed whether a parent’s use of third parties to communicate with a child can rebut the prima facie presumption of abandonment under Utah Code section 78A-6-508(1)(b).
Background and Facts
After the parents divorced, Father’s visitation with Child became sporadic. The juvenile court found two periods where Father failed to communicate with Child for more than six months: February 2004 to January 2006 and April 2007 to December 2007. During the second period, Father attempted to arrange visitation by having his mother call the custodial Mother, but Mother intentionally ignored these attempts. The juvenile court found that Father had not rebutted the prima facie evidence of abandonment and that termination served Child’s best interests.
Key Legal Issues
The primary issue was whether Father’s communication attempts through his mother constituted sufficient contact to rebut abandonment under Utah Code section 78A-6-508(1)(b), which creates a presumption of abandonment when a parent fails to communicate with the child “by mail, telephone, or otherwise for six months.”
Court’s Analysis and Holding
The majority held that Father’s efforts were insufficient token efforts that failed to rebut abandonment. The court reasoned that while third-party communication might fall within the statute’s “or otherwise” language, Father’s minimal efforts through his mother constituted only token attempts. The court also noted that Father could have been found to have abandoned the child under Utah Code section 78A-6-507(1)(f)(i) for making only token efforts to communicate. The dissent argued that any communication, even through third parties, should restart the six-month clock under the statute’s plain language.
Practice Implications
This decision highlights the importance of direct, consistent communication efforts in parental rights termination cases. Practitioners representing noncustodial parents should ensure clients maintain regular, documented contact and avoid relying primarily on third-party intermediaries, even when the custodial parent is uncooperative. Courts will scrutinize whether communication attempts demonstrate genuine parental interest or merely token compliance.
Case Details
Case Name
B.E. nka B.B. v. R.E.
Citation
2009 UT App 168
Court
Utah Court of Appeals
Case Number
No. 20080725-CA
Date Decided
June 25, 2009
Outcome
Affirmed
Holding
The juvenile court did not abuse its discretion in terminating parental rights where the father failed to rebut prima facie evidence of abandonment based on six months of non-communication, and termination served the child’s best interests given the father’s continued animosity toward the mother and inconsistent parenting.
Standard of Review
Abuse of discretion for decisions to terminate parental rights; findings and conclusions will not be disturbed unless evidence clearly preponderates against the findings or the court has abused its discretion
Practice Tip
When representing noncustodial parents facing abandonment allegations, ensure direct communication attempts are documented rather than relying solely on third-party intermediaries, as courts may view such efforts as insufficient token efforts.
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