Can foster parents pursue adoption when DCFS refuses consent? B.W.H. and S.H. v. State Explained

The Utah Court of Appeals addressed the complex intersection of foster care and adoption proceedings in B.W.H. and S.H. v. State, examining when foster parents can pursue adoption despite agency opposition and how courts handle competing adoption petitions.

Background and Facts

Foster parents B.W.H. and S.H. cared for A.W. beginning in January 2009. However, DCFS removed the child in October 2009 following sexual abuse allegations. The foster father’s concerning responses to investigators and previous substantiated abuse findings created significant obstacles. Despite this removal, the foster parents filed an adoption petition the next day. Meanwhile, A.W.’s respite caregiver also filed a competing adoption petition in March 2010, which the court approved in April 2010 before addressing the foster parents’ petition.

Key Legal Issues

The case presented several critical issues: whether the juvenile court properly dismissed the foster parents’ adoption petition despite its earlier filing, whether DCFS consent was required under Utah Code section 78B-6-120(1)(g), and whether attorney fees were appropriately awarded for pursuing a meritless claim in bad faith. The court also had to determine how to handle competing adoption petitions under Rule 42 of the Utah Rules of Civil Procedure.

Court’s Analysis and Holding

The court of appeals affirmed the dismissal, applying precedent from In re adoption of A.B. for handling competing petitions. The court emphasized that when multiple adoption petitions are filed, courts may prioritize the petition most compliant with the Utah Adoption Act. Here, the foster parents could not satisfy statutory requirements including DCFS consent, background checks, and pre-placement evaluations. The court found their continued pursuit of adoption constituted bad faith given their knowledge of disqualifying circumstances, justifying the $12,000 attorney fee award to the guardian ad litem.

Practice Implications

This decision underscores the importance of ensuring full statutory compliance before filing adoption petitions. Practitioners should carefully evaluate whether clients can meet all requirements under the Utah Adoption Act, particularly regarding agency consent and background check provisions. The case also demonstrates that courts will consider both the timing of filing and comparative compliance when multiple petitions compete, and that pursuing clearly unviable adoptions may result in significant attorney fee liability.