A 13-year-old boy who has been in state custody for the past four years will not be adopted by his foster parents anytime soon, following a Utah Court of Appeals ruling that his out-of-state father cannot be stripped of his parental rights.

The Thursday opinion determined Utah lacks jurisdiction over the man currently serving a life sentence in an Oklahoma prison for child sex abuse and molestation charges. It reverses a juvenile court judge's decision to terminate the man's rights.

The split opinion, backed by Judges William A. Thorne Jr. and Judith M. Billings, determines the process by which the juvenile court asserted jurisdiction over the man, who has never before been to Utah, violated his 14th Amendment right to due process.

The opinion indicates a legislative change to a statute that allows for "long-arm jurisdiction" may alleviate future problems in similar cases. The law, while listing a variety of situations for litigation involving out-of-state parties, does not address the termination of parental rights.

"Were the legislature to amend the long-arm statute . . . Utah could assert personal jurisdiction," the opinion states.

In a strongly worded dissenting opinion, Judge Russell W. Bench called his colleagues' decision "seriously flawed."

"Rather than following the mainstream line of cases from other jurisdictions, my colleagues have elected to follow a flawed legal analysis that elevates the rights of a parent over the rights of an innocent child," Bench writes. "I believe that is a grave mistake."

The child's mother is also serving time in a Texas prison on similar charges, the opinion states.

In 1995, a Kentucky court granted temporary custody and guardianship of the boy to his sister. After moving to Utah, the sister in February 1998 contacted the state Division of Child and Family Services and said she could no longer take care of the boy. He has been in state custody since.

In October 1998, DCFS moved to terminate the parental rights of the boy's mother and the father.

Over the father's objections, 3rd District Juvenile Judge Olof A. Johansson ruled the man abandoned his child. He made a similar ruling for the boy's mother.

Both appealed the judge's decisions to the Utah Court of Appeals. The mother's appeal is pending before the Utah Supreme Court.

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DCFS Director Richard Anderson said the boy will likely remain with his foster parents for the immediate future.

"I hope that's the intent," he said. "We wouldn't want to break that relationship while the courts are battling over this."

The attorney general's office has the option of appealing Thursday's decision to the Utah Supreme Court.


E-mail: awelling@desnews.com

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