Can indirect contact through grandparents prevent a finding of parental abandonment? In re E.M.J. Explained

In In re E.M.J., 2016 UT App 145, the Utah Court of Appeals clarified important standards for proving parental abandonment in termination proceedings, particularly addressing whether indirect contact through third parties can satisfy communication requirements under Utah Code § 78A-6-508(1)(b).

Background and Facts

E.M.J. was removed from Father’s custody in October 2013 following a psychiatric incident. After initially making progress toward reunification, Father began missing drug tests and visits. Following a permanency hearing in October 2014, Father was told by the therapist and foster mother that his visitation had been discontinued, though no court order existed. Based on this misinformation, Father moved to California and ceased direct contact with E.M.J. for several months, though his parents maintained phone contact with the child and sent letters and gifts. The State filed a termination petition alleging abandonment.

Key Legal Issues

The court addressed two critical questions: (1) whether the juvenile court applied the correct standard of proof and procedural framework for abandonment claims, and (2) whether indirect contact through third parties constitutes sufficient communication to rebut the statutory presumption of abandonment under Utah Code § 78A-6-508(1)(b).

Court’s Analysis and Holding

The court reaffirmed the two-part test for abandonment from In re T.E.: (1) conduct implying conscious disregard for parental obligations, and (2) conduct leading to destruction of the parent-child relationship. A parent’s failure to communicate for six months creates prima facie evidence of abandonment, shifting the burden to the parent to rebut the presumption. Importantly, the court distinguished vicarious communication from direct contact, holding that Father’s parents’ phone calls and gifts did not constitute communication “by mail, telephone, or otherwise” as required by statute. The court emphasized that “monitoring a child’s life via a third party is not the same as communicating with the child.”

Practice Implications

This decision establishes that only direct communication between parent and child satisfies statutory requirements. Parents cannot rely on family members to maintain contact on their behalf. Additionally, the court’s analysis demonstrates that even legitimate misunderstandings about visitation rights will not excuse a parent’s failure to take affirmative steps to maintain the parent-child relationship, including attempts to clarify restrictions and provide support.