PN

2006 UT 64
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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In the matter of the adoption 	No. 20050986
of P.N., a minor.
_____________________________
A.N.,
Appellant,
v.
M.I.W. and T.Y.W.,
Appellees.
_____________________________
R.S., 	No. 20051015
Appellant,
v.
F I L E D
M.I.W. and T.Y.W.,
Appellees. 	October 27, 2006
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Third District, Salt Lake
The Honorable Bruce Lubeck
No. 042900460
Attorneys: 	David Dolowitz, Joshua K. Peterman, Salt Lake City,
for appellant A.N.
Russell Y. Minas, Salt Lake City, for appellant R.S.
Les F. England, Park City, for appellees
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Certification from the Utah Court of Appeals
DURHAM, Chief Justice:
INTRODUCTION
¶1 	This case began as a petition for adoption of the minor
child P.N. which was challenged by both the biological father and
the biological mother. 	The district court dismissed the adoption

1 The basic facts of this case, which are undisputed on
appeal by the parties, are derived from the two rulings issued by
the district court.
2 Despite the foresight of the parties in retaining the
services of a licensed agency, Ms. Stott failed to follow the
guidelines for relinquishments outlined in Utah Code Ann. section
78-30-4.18 (Supp. 2006), which require that the biological
mother’s signature be notarized and two independent witnesses be
present at the signing. 	We note that Ms. Stott was also
(continued...)
Nos. 20050986, 20051015 	2
petition, but granted custody to the couple seeking adoption and
denied any visitation to the biological parents. 	The parents
appeal this ruling. 	We reverse and remand to the district court.
BACKGROUND1
¶2 	In September 2003, Arturo Nuosci of Las Vegas, Nevada,
and Rachel Sullivan of Salt Lake City, Utah, entered into a
contract wherein Ms. Sullivan agreed to be impregnated by Mr.
Nuosci’s sperm, carry the child to term, and thereafter
relinquish all of her parental rights to the child. 	Ms. Sullivan
gave birth to Mr. Nuosci’s child in exchange for approximately
$23,000. 	As a result of this arrangement, on July 13, 2004, P.N.
was born at a Salt Lake City hospital. 	The following day, Ms.
Sullivan gave the child to Mr. Nuosci and signed a relinquishment
of her parental rights. 	Mr. Nuosci then traveled to Las Vegas
and cared for the child until September 17, 2004, when he was
arrested on federal charges for making a false statement on a
passport application. 	P.N. was placed in the custody of Nevada
child protective services. 	Despite Mr. Nuosci’s arrangements for
his sister, Dolores Rizzi, to care for the child while he was in
federal custody, child protective services contacted Ms. Sullivan
to pick up the child. 	On September 20, 2004, Ms. Sullivan picked
up P.N. and returned with him to Salt Lake City.
¶3 	Upon returning to Utah, Ms. Sullivan communicated with
an acquaintance, who put her in contact with the Worthingtons, a
couple interested in adopting a child. 	The Worthingtons took
custody of P.N. on October 16, 2004, and P.N. has been with them
since that time. 	Ms. Sullivan and the Worthingtons orally agreed
to an “open adoption” where Ms. Sullivan would continue to have
contact with P.N. 	On November 9, 2004, the Worthingtons filed a
Petition for Adoption. 	On November 24, 2004, Ms. Sullivan signed
a second relinquishment of her parental rights in the presence of
Suzanne Stott, a representative of a licensed child placement
agency, Families for Children. 2 	Ms. Sullivan later experienced

2 (...continued)
responsible for the problematic home study in In re E.H., 2006 UT
36, ¶¶ 4, 7, 137 P.3d 809.
3 The district court’s opinion reports that the Utah Supreme
Court was somehow involved in finding an attorney to assist Mr.
Nuosci. 	The record is devoid of any information regarding the
basis of this assertion, and we note that this court played no
role in the process of securing counsel for Mr. Nuosci.
3 	Nos. 20050986, 20051015
doubts about relinquishing her parental rights to P.N. and
changed her mind about the adoption. 	The Worthingtons responded
by refusing to give Ms. Sullivan access to P.N. and deciding not
to allow an open adoption despite the earlier oral agreement.
Ms. Sullivan filed a written challenge to the Worthingtons’
petition for adoption in early January 2005.
¶4 	The biological father, Mr. Nuosci, remained in federal
custody throughout the negotiations between Ms. Sullivan and the
Worthingtons and is currently incarcerated. 	When he was advised
of the existence of the adoption petition in mid-November 2004,
he immediately objected and eventually acquired pro bono
representation to contest his son’s adoption. 3 	Thus, by early
2005, both of P.N.’s biological parents had intervened to contest
the Worthingtons’ petition for adoption.
¶5 	The district court held evidentiary hearings to
determine if the biological parents were proper intervenors in
the adoption proceedings. 	It concluded that Ms. Sullivan had
standing because both of the relinquishments of her parental
rights were invalid. 	First, the agreement entered into by Mr.
Nuosci and Ms. Sullivan was invalid under the laws of both Utah
and Nevada, and thus unenforceable. 	Because the first
relinquishment of parental rights by Ms. Sullivan was merely an
extension of this contract, it was also void. 	Second, the
relinquishment signed by Ms. Sullivan in the presence of Suzanne
Stott, the representative of Families for Children, was also
invalid. 	It did not meet the requirements of Utah Code section
78-30-4.18 (Supp. 2006) as it was not performed before a judge,
nor was the biological mother’s signature notarized or witnessed
by two independent individuals. 	Because both relinquishments
were invalid, the court held that Ms. Sullivan retained her
parental rights and was a proper party to intervene. 	This
holding has not been challenged on appeal.
¶6 	The district court also determined that Mr. Nuosci had
standing to challenge the adoption of his son. 	He is the
biological father of P.N., as evidenced by the child’s birth

4 The Worthingtons completely denied Ms. Sullivan access to
P.N.; however, they permitted Dolores Rizzi, Mr. Nuosci’s sister,
to visit with the child in March and April of 2005.
Nos. 20050986, 20051015 	4
certificate and the fact that he had sole physical custody, with
the mother’s consent, beginning the day after P.N.’s birth until
Mr. Nuosci’s arrest approximately two months later. 	This holding
likewise has not been appealed.
¶7 	Despite allowing each biological parent to intervene,
the district court refused to grant visitation to Ms. Sullivan or
to Mr. Nuosci’s sister, giving full discretion to the
Worthingtons, as P.N.’s custodians, to allow or deny access to
the child. 4
¶8 	Having found that the parents were proper parties to
contest the adoption, the court scheduled a “best interests
trial” pursuant to Utah Code section 78-30-4.16 to determine the
custody of the child and “resolve all remaining issues between
all the participants.” 	As a result of this trial, the district
court dismissed the petition for adoption. 	The court held that
P.N. could not be adopted when his father had never consented to
the adoption and his mother’s relinquishments were invalid.
Additionally, the district court concluded that there were no
grounds for termination of either of the biological parents’
parental rights--no unfitness, abandonment, abuse, or neglect
existed. 	Because both biological parents retained their parental
rights, adoption was improper.
¶9 	Following the statutory framework of Utah Code section
78-30-4.16(2)(b), the district court then determined custody of
P.N. through a “best interests” analysis. 	Notwithstanding its
conclusion that both parents were fit, the district court held
that the parental presumption generally afforded to a child’s
natural parents had been rebutted as to both Mr. Nuosci and Ms.
Sullivan. 	This placed Mr. Nuosci, Ms. Sullivan, and the
Worthingtons on equal footing. 	Then, applying the best interests
analysis to all parties, the district court concluded that the
Worthingtons were the proper custodians for P.N. 	It also denied
requests for visitation, giving complete discretion to the
Worthingtons to allow or deny visitation by P.N.’s parents.
¶10 	Ms. Sullivan and Mr. Nuosci filed separate appeals from
the district court’s ruling to the Utah Court of Appeals. 	No
cross-appeals were filed by the Worthingtons on the dismissal of
the adoption petition or on the court’s findings regarding
termination of parental rights. 	The court of appeals certified
both cases to this court, and we now consolidate them for

5 We note that one issue presented in this case is the
propriety of visitation and custody by the designated guardian of
a biological parent. 	Mr. Nuosci, while he is incarcerated, seeks
visitation and custody of P.N. for his sister on his behalf. 	The
question of her legal rights, separate and apart from Mr.
Nuosci’s, and Mr. Nuosci’s right to designate custody of P.N.
when the biological mother with parental rights intact is
available, has not yet been raised and briefed. 	We leave this
issue for the trial court to examine in the process of its
determination of permanent custody for P.N.
5 	Nos. 20050986, 20051015
disposition. 	We have jurisdiction pursuant to Utah Code section
78-2-2(3)(b) (2002).
ANALYSIS
¶11 	P.N.’s parents raise numerous challenges to the
conclusions of the district court. 	In addition, Mr. Nuosci
challenges the constitutionality of Utah Code section 78-30-4.16
(Supp. 2006). 	Because we reject the interpretation of the
statute relied on by the district court, we need not address the
individual challenges of the appellants. 	Instead, in outlining
the correct construction of the statute, we resolve the claims of
the parties.
¶12 	“[M]atters of statutory construction are questions of
law that are reviewed for correctness.” 	Esquivel v. Labor
Comm’n, 2000 UT 66, ¶ 13, 7 P.3d 777 (internal quotation marks
omitted). 	In this case, to the extent the district court’s
ruling purports to grant permanent custody of P.N. to the
Worthingtons and permits them to withhold access to the child
from his fit biological parents, 5 it is in error. 	We hold that
the district court misconstrued the nature of the grant of
custody contemplated under section 78-30-4.16(2)(b) in the event
of a failed adoption.
¶13 	Utah Code section 78-30-4.16 concerns contested
adoptions. 	When parents have not consented to an adoption and a
court determines there “are not proper grounds to terminate
[their] parental rights, the court shall: 	(i) dismiss the
adoption petition; (ii) conduct an evidentiary hearing to
determine who should have custody of the child; and (iii) award
custody of the child in accordance with the child’s best
interest.” 	Utah Code Ann. § 78-30-4.16(2)(b). 	Thus, when there
are inadequate grounds for an adoption to take place because
biological parents retain their parental rights to the child or
for other reasons, the statute provides a process to deal with

Nos. 20050986, 20051015 	6
the issue of immediate custody due to the failed adoption; it
does not deal with permanent custodial awards.
¶14 	The context of section 78-30-4.16(2)(b)’s operation
demonstrates that it is intended to apply in the case of a failed
adoption, and is not meant to take the place of the general body
of law regarding custody issues between fit parents. 	The statute
is not designed to establish the permanent placement of a child,
nor is it meant to resolve a custody battle which may ensue, as
it likely will in this case, between two fit biological parents.
The award of immediate custody by the court following a failed
adoption is merely a temporary placement pending final
disposition of custody. 	Use of this statute to award permanent
custody through a best interest analysis, when such use would
deprive fit parents of custody and visitation, would in all
likelihood create constitutional problems, and we will not assume
that the legislature intended such a result.
¶15 	In the present case, the district court erred in using
the statute to effect a de facto permanent deprivation of custody
by fit biological parents. 	While the Worthingtons may have been
proper temporary custodians until Mr. Nuosci and Ms. Sullivan
could agree on a custody arrangement or until a court could
resolve a custody dispute between them, the permanent award of
custody of P.N. to legal strangers was impermissible. 	Section
78-30-4.16(2)(b) cannot be used to permanently cut off custody
and visitation to parents who have not been found unfit and who
have not consented to such placement. 	It cannot be used to give
permanent custody of a child to legal strangers, which is what
the Worthingtons became once the court dismissed their petition
for adoption.
¶16 	Furthermore, the district court erred in barring
visitation by fit biological parents while the process for a
final disposition of custody proceeds. 	When a court determines
that a petition for adoption must be dismissed, it cannot
prohibit association between the child and fit biological
parents, nor can it give full discretion to the child’s
custodians to deny visitation absent some specific finding of
harm to the child.
¶17 	A failed adoption necessarily creates the immediate
dilemma as to where the child shall go once court is adjourned.
Where a biological parent is ill, in the military, or as in this
case, incarcerated, a temporary placement may be required to deal
with the immediate situation. 	This is also true where a custody
battle between two biological parents looms once the adoption
fails. 	Moreover, temporary custody may be necessary when a
transitional period is needed so that the child can become

7 	Nos. 20050986, 20051015
reacquainted with his parent when little contact has occurred
during the adoption proceedings. 	Within a short time period
after a failed adoption and in line with the state’s interest in
providing permanent and stable homes for children, a new hearing
must be held to award permanent custody; section 78-30-4.16(2)(b)
merely deals with the immediate need for the care of the child.
FUTURE PROCEEDINGS
¶18 	Because of the complexity of this case and our
conclusion that the district court erred in its decisions
regarding custody and visitation of P.N., we outline the steps
that the parties and the district court should now take. 	This
case was originally brought as a petition for adoption; that
petition has been dismissed, and the dismissal was not challenged
on appeal. 	The district court’s order of custody to the
Worthingtons, as explained above, can only be a temporary order.
Unless both parents agree, the Worthingtons may not retain
custody of P.N. in the long term. 	Thus, Mr. Nuosci and,
alternatively or additionally, Ms. Sullivan need to file
petitions for permanent custody of P.N. 	The Worthingtons
presumably should be named in such proceedings so that they will
produce the child. 	The district court will then need to conduct
a best interests hearing under traditional custody analysis in
order to determine the appropriate custody arrangement for P.N.
as between his two biological parents. 	The court may order
custody evaluations and pursue this process as it would in any
other custody case. 	Although it will be difficult given the
history of this case, it is hoped that the biological parents
will put aside their individual interests and focus instead on
the needs of their small child, who has presumably enjoyed
considerable affection, care, and stability with the
Worthingtons. 	The child’s bonds with those caretakers must not
be ignored or minimized, and we urge the parties to seek
professional assistance in their decision-making processes and in
planning for any transitions that become necessary in the child’s
life.
¶19 	After filing their petitions for custody, we encourage
Mr. Nuosci and Ms. Sullivan to pursue a custody agreement in a
cooperative manner and to include the Worthingtons in this
process. 	Consultation with a professional advisor who could
offer independent and objective advice regarding the child’s best
interests would be highly desirable. 	Above all, flexibility and
cooperation among the adults who profess an interest in P.N.’s
welfare will be essential if the negative effects of his short
but complicated history are to be minimized. 	The use of

Nos. 20050986, 20051015 	8
mediation as an alternative to court proceedings is strongly
advised.
CONCLUSION
¶20 	The portions of the district court’s order awarding
permanent custody of P.N. to the Worthingtons and permitting them
to deny contact or visitation by Ms. Sullivan and Mr. Nuosci are
reversed. 	The Worthingtons will retain temporary custody
pursuant to the district court’s order until further proceedings
regarding permanent custody can be initiated.
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¶21 	Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.