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In re Parentage of Infant Child F.

Court of Appeals of Washington, Division 3

November 19, 2013

In the Matter of the Parentage of Infant Child F.
v.
Michelle Ferebauer et al., Respondents Michael Hunter, Petitioner,

Appeal from Franklin Superior Court. Docket No: 10-5-50035-2. Date filed: 03/13/2012. Judge signing: Honorable Craig J Matheson.

Laura A. Carlsen (of McKinley Irvin ), for appellant.

Patrick T. Roach (of Roach Law LLP); and Kenneth W. Masters (of Masters Law Group PLLC ), for respondents.

AUTHOR: Stephen M. Brown, J. Kevin M. Korsmo, C.J. concurs. George B. Fearing, J. (concurring).

OPINION

Page 452

Brown, J.

[178 Wn.App. 4] ¶ 1 Michael Hunter's appeal concerns the paternity of the child Michelle Ferebauer gave birth to in Utah and immediately placed for adoption there in 2010. After Mr. Hunter unsuccessfully petitioned to intervene in the Utah adoption proceedings and did not appeal, the Washington superior court ruled his paternity petition was moot. Mr. Hunter contends the court erred in dismissing his paternity petition, giving full faith and credit to the Utah ruling, failing to enter findings of fact and conclusions of law, failing to enter a temporary order requiring genetic testing, denying his request to add the adoptive parents as indispensable parties, and allowing Ms. Ferebauer to participate in the proceedings. We conclude the superior court did not err in giving full faith and credit to the Utah court when dismissing Mr. Hunter's paternity petition without written findings. Therefore, we do not reach his other contentions and affirm.

FACTS

¶ 2 Ms. Ferebauer met Mr. Hunter at work in February 2009. She was married to Robert Ferebauer at the time but developed an intimate relationship in May or June 2009 with Mr. Hunter. In July 2009, Ms. Ferebauer became pregnant with a March 2010 due date. She informed Mr. Hunter that he was the father. Ms. Ferebauer petitioned to dissolve her marriage with Mr. Ferebauer and moved in with Mr. Hunter.[1] Mr. Hunter has two daughters from a prior marriage of whom he and his prior spouse share custody. The Ferebauer-Hunter relationship soon ended due to Ms. Ferebauer's fears that Mr. Hunter would not be a good father. Mr. Hunter encouraged an abortion, but Ms. Ferebauer preferred adoption. Mr. Hunter at first agreed to the adoption and signed a consent to adopt and relinquishment of parental rights in January 2010. Mr. Hunter and Ms. Ferebauer then disagreed over whether the adoption should be open and he revoked his consent.

[178 Wn.App. 5] ¶ 3 In February 2010, Ms. Ferebauer took a leave of absence from work and decided to go to Utah. She e-mailed Mr. Hunter, notifying him that she was going to Utah to be with friends and have the baby. Mr. Hunter responded that he did not know if he would ever see her or the baby again, but he wished Ms. Ferebauer luck.

¶ 4 On March 2, 2010, Ms. Ferebauer gave birth to a baby girl in Utah. Both Mr. Ferebauer and Ms. Ferebauer relinquished their parental rights and gave consent for adoption. Under Utah law, Mr. Ferebauer was the presumed father. See Utah Code Ann. § 78B-15-204(1)(a) ( " A man is presumed to be the father of a child if ... he and the mother of the child are married to each other and the child is born during the marriage." ).

Page 453

To overcome this presumption, the unmarried biological father must sign a voluntary declaration of paternity. Utah Code Ann. § 78B-15-302, -303. Utah terminated all parental rights and approved adoption of " Infant F" to Washington adoptive parents, with whom Infant F has resided since birth.

¶ 5 Mr. Hunter filed a petition to establish paternity in Utah on June 23, 2010. On July 15, 2010, he sought to intervene or set aside the Utah order terminating his parental rights. On December 20, 2010, the Utah court entered a memorandum decision denying Mr. Hunter's motion to intervene. The court found Mr. Hunter never submitted a voluntary declaration of paternity that he executed with the birth mother as required by Utah law. Thus, the court concluded Mr. Hunter did not overcome Mr. Ferebauer's presumption of paternity and, therefore, did not have standing to intervene. On March 23, 2011, the Utah court entered a final order denying Mr. Hunter's motion to intervene. Mr. Hunter did not appeal the Utah final order.

¶ 6 On a somewhat parallel course, Mr. Hunter petitioned in Washington to establish paternity. He served his Franklin County petition on the Ferebauers on May 14, 2010. The Ferebauers responded to Mr. Hunter's Washington petition, [178 Wn.App. 6] requesting dismissal in light of the Utah proceedings. After a November 2010 court commissioner's ruling that Washington had jurisdiction under Washington's Uniform Child Custody Jurisdiction and Enforcement Act, chapter 26.27 RCW, and/or the federal Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A, the Ferebauers requested revision by a superior court judge. The Ferebauers argued the court should grant full faith and credit because Utah had jurisdiction and was continuing to exercise it. In December 2010, Mr. Hunter sought to join the adoptive parents and the child to the Washington action, and he asked for DNA (deoxyribonucleic acid) testing. On January 11, 2011, a superior court judge stayed the Washington action pending a final order in Utah. The Washington court lifted the stay on July 21, 2011.

¶ 7 Finally, on December 12, 2011, the trial court dismissed the action as moot given Utah's ruling and Mr. Hunter's failure to appeal that ruling. The judge clarified, " I kept the case open in the event that Utah reversed itself in their appellate process and encouraged counsel to go back down [t]here to Utah and pursue the arguments that they had. They didn't do that. They abandoned the process and did not exhaust their remedies in Utah, and so this is where I find myself now. There's no possibility that Utah is going to reverse themselves and ...


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