              This opinion is subject to revision before final
                   publication in the Pacific Reporter

                                2017 UT 37

                                 IN THE
    SUPREME COURT OF THE STATE OF UTAH

               In the interest of S.W. and D.W.,
              persons under the age of eighteen.

                                B.W.D.,
                               Appellant,
                                    v.
                                 B.W.,
                                Appellee.

                            No. 20160295
                         Filed July 17, 2017

          On Certification from the Court of Appeals

                  Fourth Juvenile, Provo
            The Honorable Brent H. Bartholomew
                 Nos. 1102018 and 1102019

                              Attorneys:
  Matthew Hilton, Layton, Robert A. Alsop, North Salt Lake,
                       for appellant
             J. Jarom Bishop, Ogden, for appellee
             Martha Pierce, Salt Lake City, for the
              Office of the Guardian ad Litem

     JUSTICE HIMONAS authored the opinion of the Court,
      in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM,
                  and JUDGE ORME joined.
ASSOCIATE CHIEF JUSTICE LEE filed an opinion concurring in part
              and concurring in the judgment.
       Having recused himself, JUSTICE PEARCE does not
                     participate herein;
       COURT OF APPEALS JUDGE GREGORY K. ORME sat.
                            In re S.W.
                      Opinion of the Court


   JUSTICE HIMONAS, opinion of the Court:
                       INTRODUCTION
    ¶ 1 B.W.D. appeals from a juvenile court order dismissing
her petition for custody of her younger sisters, S.W. and D.W.,
and a separate order dismissing an Order to Show Cause. We
reverse the juvenile court’s dismissal of both orders and remand,
holding that the court misapplied the Utah Uniform Child
Custody Jurisdiction and Enforcement Act and deprived B.W.D.
of due process.
                        BACKGROUND
   ¶ 2 Custody issues in this case began in 2004 when S.M.W.
(Mother) and B.W. (Father), the parents of B.W.D. and her
younger sisters, filed for divorce. The Fourth District Court of
Utah originally awarded Mother custody in 2007, but transferred
custody to Father in 2010. With the district court’s approval,
Father moved to Kansas in 2013, taking the younger sisters with
him. B.W.D., who had turned eighteen before the move, remained
in Utah.
     ¶ 3 The younger sisters visited Mother in Utah in May 2014.
In June 2014, B.W.D. filed a child welfare petition alleging that
Father had abused and neglected her younger sisters and asking
the juvenile court to transfer custody of the two back to Mother.
On July 2, 2014, the court imposed a temporary restraining order
against Father and appointed a Guardian ad Litem to the case, but
it later dismissed the order. The younger sisters were supposed to
return to Father in Kansas in July 2014, but they ran away and
eventually moved in with Mother. On February 18, 2016, after
Mother’s arrest for custodial interference, a district court in
Kansas issued requisition orders for the younger sisters under the
Interstate Compact for Juveniles. One month later, the Utah
juvenile court issued an order granting the requisition orders, and
it denied a petition for an emergency stay from Mother and
B.W.D. Utah then returned the younger sisters to Kansas.
    ¶ 4 On March 24, 2016, B.W.D. filed an amended petition
alleging abuse and neglect. This time, instead of asking the court
to transfer custody of the children to Mother, B.W.D. petitioned
the court to transfer custody solely to her. Without giving B.W.D.
the opportunity to be heard, the juvenile court sua sponte


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                        Opinion of the Court


dismissed that petition on March 31, 2016. In doing so, the court
stated that Utah was an inconvenient forum and that it could
therefore decline to exercise its jurisdiction because “[a] Kansas
court is the more appropriate forum to address the allegations
asserted and issues raised in petitioners’ child welfare/custody
action.” See UTAH CODE § 78B-13-207(1) (a child welfare petition
may be dismissed if “a court of another state is a more
appropriate forum”). But the juvenile court based much of its
decision on Utah Code section 78B-13-208, which provides that a
court must decline jurisdiction if it would have jurisdiction only
“because a person invoking the jurisdiction has engaged in
unjustifiable conduct.” Id. § 78B-13-208(1).1 Without analyzing
whether section 208 was a proper basis for terminating
jurisdiction in a case where the court already had jurisdiction
before any “unjustifiable conduct” allegedly occurred, the juvenile
court dismissed B.W.D.’s petition under this section. But the court
did not conclude that B.W.D. herself had engaged in unjustifiable
conduct. Instead, based on Mother’s arrest for custodial
interference, the juvenile court stated that “[i]t is clear that Mother
has engaged in unjustifiable conduct and should not be allowed to
invoke the Court’s jurisdiction.” Without giving B.W.D. an
opportunity to be heard, and with no direct evidence in support
of its determination, the court then went on to impute Mother’s
misconduct to B.W.D., stating that “[a]bsent . . . any statements
whether or not [B.W.D.] knew of the girls’ whereabouts while
they were in hiding with Mother or that [B.W.D.] was not an
accomplice in hiding her sisters,” B.W.D. could not “benefit from
invoking jurisdiction of this Court simply by dropping Mother as



   1  Even if the court may conclude that it has jurisdiction
because of a party’s unjustifiable conduct, it may still decline to
exercise that jurisdiction only if (1) there is a lack of consensus
among parents and guardians that the court should assert
jurisdiction, (2) no other court with jurisdiction over the child
custody matters at issue has concluded that Utah is a more
appropriate forum, and (3) another state would have jurisdiction
in the event that the Utah court declined it. UTAH CODE
§ 78B-13-208(1).



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                       Opinion of the Court


a co-petitioner.”2 The juvenile court therefore declined to exercise
jurisdiction over the custody and welfare matter and dismissed
the petition, stating that the matter could be brought in a Kansas
court instead. See id. § 78B-13-208(1)(c) (a court may dismiss a
petition under section 208 only if some other state is capable of
asserting jurisdiction over the custody proceeding).
    ¶ 5 On April 1, 2016, the Guardian ad Litem filed a motion
for an order to show cause (OSC) regarding Father’s conduct after
Kansas’s requisition orders. The juvenile court dismissed the OSC
on April 14, 2016, stating that it lacked jurisdiction regarding the
welfare of the younger sisters as a result of its disposition of
B.W.D.’s petition.
    ¶ 6 On April 15, 2016, B.W.D. filed a notice of appeal from
both the order dismissing the custody and welfare petition and
the order dismissing the OSC. The court of appeals then certified
the case to the Utah Supreme Court under Utah Code section
78A-3-102(3)(b). The Guardian ad Litem filed a brief, but Father,
for reasons unknown to us, declined to file an appellate brief.3


   2 The first petition for custody and welfare did not list Mother
as a co-petitioner but requested that the court grant her custody of
the younger sisters.
   3 Although “we do not necessarily refuse to consider an appeal
simply because a respondent is unable or unwilling to defend his
judgment,” Harrison v. Harrison, 462 P.2d 170, 171 (Utah 1969), a
party who fails to file an appellate brief leaves the framing of the
issues to his adversary and therefore proceeds at his own peril.
We have repeatedly said that “[a]n appellate court is not a
depository in which [a party] may dump the burden of argument
and research.” Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (second
alteration in original) (internal quotation marks omitted). Thus, in
cases where a party does not refute the other side’s arguments, we
will not “become [its] advocate by formulating arguments on its
behalf.” B.A.M. Dev., L.L.C. v. Salt Lake Cty., 2012 UT 26, ¶ 35 n.8,
282 P.3d 41. Because that is the case here, we will not make
arguments on Father’s behalf but reserve the right to reevaluate
our conclusions in a future case in which we have the full benefit
of the adversarial process.



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                       Opinion of the Court


                    STANDARD OF REVIEW
    ¶ 7 We review a court’s determination of jurisdiction for
correctness, granting no deference to the lower court. In re A.C.M.,
2009 UT 30, ¶ 6, 221 P.3d 185. We will uphold a juvenile court’s
factual findings underpinning a jurisdictional determination
unless they are clearly erroneous. In re W.A., 2002 UT 127, ¶ 8, 63
P.3d 607.
                            ANALYSIS
    ¶ 8 B.W.D. argues that the juvenile court deprived her of
due process because it did not provide her an opportunity to be
heard before it made its custody determination. We are in
complete agreement and reverse: the juvenile court erred in its
analysis of whether Utah should retain exclusive, continuing
jurisdiction over the custody matter for the younger sisters and,
therefore, erred in dismissing B.W.D.’s petition. And because the
court relied on its disposition of the petition to dismiss the OSC,
our holding necessarily results in our reversal of that order too.
    ¶ 9 Utah has adopted a version of the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA), which aims
to “[a]void jurisdictional competition and conflict with courts of
other States in matters of child custody.” Nevares v. Adoptive
Couple, 2016 UT 39, ¶ 11, 384 P.3d 213 (alteration in original)
(citation omitted). To accomplish this goal, the UCCJEA sets out a
detailed analytical framework for courts to follow in determining
whether they may assert or decline jurisdiction over a child
custody matter.
    ¶ 10 Because a Utah court validly made the original custody
decision for the younger sisters after their parents’ divorce, Utah
enjoys jurisdiction over all child custody determinations involving
the siblings. See UTAH CODE § 78B-13-202(1) (providing that when
a court of this state makes an initial custody determination, it
enjoys “exclusive, continuing jurisdiction over the determination”
until certain conditions are met). This jurisdiction is exclusive and
continuing until the court “determines that neither the child, the
child and one parent, nor the child and a person acting as a parent
have a significant connection with this state and that substantial
evidence is no longer available in this state concerning the child’s
care, protection, training, and personal relationships,” id.
§ 78B-13-202(1)(a), or that “neither the child, nor a parent, nor any

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                        Opinion of the Court


person acting as a parent presently resides in this state,” id.
§ 78B-13-202(1)(b). However, a court may “decline to exercise its
jurisdiction at any time if it determines that it is an inconvenient
forum under the circumstances and that a court of another state is
a more appropriate forum.” Id. § 78B-13-207(1). But it may dismiss
a petition on this basis only after giving all parties the opportunity
to brief the issue. Id. § 78B-13-207(2). Even then, dismissal is
appropriate only once “a child custody proceeding [has been]
commenced in another designated state.” Id. § 78B-13-207(3).
    ¶ 11 Apart from a finding of an inconvenient forum, a court
may also abdicate jurisdiction if the court “has jurisdiction under
this chapter because a person invoking the jurisdiction has
engaged in unjustifiable conduct.” Id. § 78B-13-208(1). In that case,
the court shall decline to exercise its jurisdiction unless all parents
and guardians consent to the court’s jurisdiction, another court
with jurisdiction determines that the Utah court is the more
appropriate forum, or no other state would have jurisdiction. Id.
    ¶ 12 Here, the juvenile court determined that “there appears
to be substantial evidence in Utah regarding [the younger sisters’]
protection, training, and personal relationships” and therefore
exclusive, continuing jurisdiction in Utah may be proper. But,
citing Utah Code section 78B-13-202(2), the court held that it “may
decline to exercise its jurisdiction if the court determines it is an
inconvenient forum.” This was error. An inconvenient-forum
analysis is governed by Utah Code section 78B-13-207 and
requires the court to “allow the parties to submit information”
and consider all relevant factors regarding whether it is
appropriate for a court of another state to exercise jurisdiction. Id.
§ 78B-13-207(2). The court did none of this. Accordingly, to the
extent that the court declined jurisdiction under section 207, its
decision was in error.
    ¶ 13 The juvenile court also erred in making a determination
of unjustifiable conduct under Utah Code section 78B-13-208(1).
The juvenile court stated that “[i]t is clear that Mother has
engaged in unjustifiable conduct and should not be allowed to
invoke the Court’s jurisdiction.” And it noted that although the
petition no longer asked for the court to transfer custody to
Mother, B.W.D. retained Mother’s former legal counsel. Thus,
“[a]bsent . . . any statements whether or not [B.W.D.] knew of the
girls’ whereabouts while they were in hiding with Mother or that

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[B.W.D.] was not an accomplice in hiding her sisters,” the juvenile
court held that B.W.D. could not “benefit from invoking
jurisdiction of this Court simply by dropping Mother as a
co-petitioner.” The juvenile court thus sua sponte attributed
Mother’s misconduct to B.W.D. without giving B.W.D. an
opportunity to be heard on the matter. And to the extent the
court’s attribution of Mother’s misconduct was a factual
determination, we hold that it was not based on any facts in the
record and was therefore clearly erroneous. And the legal
conclusions stemming from the erroneous factual determination
served to deprive B.W.D. of due process.
    ¶ 14 We first note that the court erred in applying section
208’s “unjustifiable conduct” test. Section 208 applies only when
the court has jurisdiction “because a person invoking the
jurisdiction has engaged in unjustifiable conduct.” Id.
§ 78B-13-208(1) (emphasis added). But here, as the juvenile court
noted, Utah had jurisdiction as a result of its initial custody
determination, not because of Mother’s conduct in hiding the
younger sisters while they were on the run. See id. § 78B-13-202(1).
    ¶ 15 In any case, due process requires that the court should
have given B.W.D. an opportunity to be heard before attributing
Mother’s conduct to B.W.D. in dismissing the petition. See Salt
Lake Legal Def. Ass’n v. Atherton, 2011 UT 58, ¶ 2, 267 P.3d 227 (“At
a minimum, the right to due process requires that those with an
interest in a proceeding be given notice and an opportunity to be
heard in a meaningful manner before their interests are
adjudicated by a court.”). The juvenile court assumed B.W.D.’s
guilt by putting the burden on B.W.D. to prove that she “was not
an accomplice in hiding her sisters,” but it did not give her the
opportunity to rebut the court’s assumption. This was a classic
denial of due process. Because its order was without basis in law,
we reverse the juvenile court’s dismissal of B.W.D.’s petition.
    ¶ 16 Because the juvenile court’s dismissal of the Guardian ad
Litem’s OSC was also based on its erroneous legal determination
that it lacked jurisdiction, we reverse that order as well and
remand for a proper determination of jurisdiction for both orders.
On remand, the court may proceed to the merits of B.W.D.’s
petition or it may consider whether it should decline jurisdiction
under any applicable law, including Utah Code section
78B-13-207. In the event that the juvenile court does undertake an

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                       Opinion of the Court


inconvenient-forum analysis on remand, we emphasize that
section 207 requires the court to give B.W.D. an opportunity to
submit information and requires the court to consider all relevant
factors, including
      (a) whether domestic violence has occurred and is
      likely to continue in the future and which state
      could best protect the parties and the child; (b) the
      length of time the child has resided outside this
      state; (c) the distance between the court in this state
      and the court in the state that would assume
      jurisdiction; (d) the relative financial circumstances
      of the parties; (e) any agreement of the parties as to
      which state should assume jurisdiction; (f) the
      nature and location of the evidence required to
      resolve the pending litigation, including the
      testimony of the child; (g) the ability of the court of
      each state to decide the issue expeditiously and the
      procedures necessary to present the evidence; and
      (h) the familiarity of the court of each state with the
      facts and issues of the pending litigation.
UTAH CODE § 78B-13-207(2).
    ¶ 17 A proper analysis under this section would satisfy due
process by allowing B.W.D. to be heard on the issues in her
petition, and if the juvenile court determines that it should retain
jurisdiction over the custody case, it should proceed to decide the
OSC on the merits.
                         CONCLUSION
    ¶ 18 The juvenile court erred in applying an “unjustifiable
conduct” test, and its inconvenient-forum determination was
deficient, leading it to erroneously deny B.W.D.’s petition and the
motion for an order to show cause. We thus reverse and remand
to the juvenile court for further proceedings in accordance with
this opinion.




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                LEE, A.C.J., concurring in judgment


   ASSOCIATE CHIEF JUSTICE LEE, concurring in part and
concurring in the judgment:
    ¶ 19 This is an unusual case. It comes to us without any
adversary briefing. The only briefs we have on appeal are the
appellant’s and the Guardian ad Litem’s (submitted in support of
the appellant’s position). We have no opposing brief because the
father chose to rest on the juvenile court’s decision and did not
submit a brief on appeal.
   ¶ 20 With this in mind, I would decide this case on the
narrowest possible ground, without addressing other issues not
essential to our decision. The narrow ground is that the juvenile
court dismissed the petition filed in this case sua sponte—without
the benefit of any adversary briefing by the parties. That was
error, as B.W.D. had both a statutory and a due process right to be
heard before her petition was dismissed.
    ¶ 21 The majority so concludes in its opinion. See supra
¶¶ 12-13. Yet it also proceeds to opine on other questions
presented below and briefed (one-sidedly) on appeal. And on
those issues the court purports to “reserve the right to reevaluate
our conclusions in a future case in which we have the full benefit
of the adversarial process.” Supra ¶ 6 n.3.
    ¶ 22 I agree with the impulse behind that reservation. But I
think there is a better way to reserve our right to reconsider
aspects of our opinion in a future case. In my view that is simply
not to reach these other issues. I would take that course here. For
that reason I concur only in the portions of the majority opinion
that find error in the juvenile court’s dismissal of B.W.D.’s petition
without giving her the opportunity to be heard.




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