2006 UT 36
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
In the Matter of E.H., a minor child.
T.H., on her own behalf and as next
No. 20050059
of friend of minors T.H. and S.H.,
Respondent and
Cross-Petitioner,
v.
R.C. and S.C. and Families for
Children,
F I L E D
Petitioners and
Cross-Respondents.
June 6, 2006
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Second District, Ogden Dep't
The Honorable Ernie W. Jones
No. 014900813
Attorneys: Linda Faye Smith, Salt Lake City, for respondent
Gregory P. Hawkins, Rick L. Sorensen, Lonn
Litchfield, Murray, for petitioners
Melvin G. Larew, Draper, for Families for Children
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On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1
We granted certiorari to consider the custody of a
young boy, E.H. In particular, we will review whether the court
of appeals erred when it placed E.H. in the custody of his
biological mother under the terms of a stipulation that the
district court refused to enforce.
¶2
The parties are T.H., the birth mother, R.C. and S.C.,
the adoptive parents, and Families for Children, an adoption
agency. The proceeding in this court is the latest, but sadly

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not the last, act in a very human saga that has played out on the
stage of our courts. Despite our determination that we must
remand this case for further proceedings, we hold fast to the
hope that in the near future E.H. will know who his parents will
be and where he will call home. This opinion speaks to the rules
and procedures that will guide the courts and the parties toward
the goal of at last providing E.H. with some measure of certainty
and stability.
¶3
Our opinion has four focal points: (1) whether the
stipulation assigning a psychologist the task of making
recommendations concerning E.H.'s best interests was an
impermissible delegation of authority to a third party in order
to determine the best interests of E.H., (2) whether the law of
the case doctrine is relevant to review a district court's
refusal to enforce the stipulation, (3) whether the district
court erred in denying standing to the mother to challenge the
adoptive parents' petition to adopt E.H., and (4) whether the
district court made a clearly erroneous ruling when it determined
that the mother's relinquishment of her parental rights was
enforceable.
FACTUAL AND PROCEDURAL BACKGROUND
¶4
In 2000, T.H. was faced with an unplanned pregnancy.
She contacted the Adoption Law Center (ALC) in California to help
arrange the adoption of her unborn child. Concurrently, the
adoptive parents hired Families for Children to perform a home
study to determine whether they were eligible to adopt a child.
Suzanne Stott, the director of Families for Children, performed
the home study. She found that the adoptive parents met the
necessary criteria to adopt a child.
¶5
On November 14, 2000, the adoptive parents, who are
Caucasian, sent a letter to the ALC expressing their interest in
adopting an African-American child. The letter contained
information about their family, which the ALC later read to the
mother during a telephone conversation. Thereafter, the ALC set
up a telephone conversation between the mother and the adoptive
parents. Based on this information, the mother selected the
adoptive parents to be the adoptive family for her child.
¶6
Ten days later, on November 24, 2000, the birth mother,
T.H., flew to Utah; she gave birth to E.H. on November 27, 2000.
On November 29, 2000, she signed a document relinquishing all her
parental rights and granting custody of the child to Families for
Children.
No. 20050059
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¶7
T.H., together with her two other children, lived with
the adoptive parents for approximately two and a half months
after the birth of E.H. During her stay in Utah, the mother
became concerned for the welfare of E.H. Her observations while
residing in the adoptive parents' home were at odds with the
statements made about the adoptive parents and their children by
Families for Children. For example, she observed that the
adoptive parents' children were not the honor students that she
was led to believe they were. Moreover, they appeared to do
little school work. The mother also became concerned about the
social development of the adoptive parents' children, as they
seemed to have no healthy social relationships outside the
family. Based on her own observation, she concluded that the
home study performed by Ms. Stott was inaccurate, incomplete, and
incompetently prepared.
¶8
E.H.'s mother and other children moved out of the
adoptive parents' home on February 15, 2001. Two months later,
she filed a petition in which she sought the custody of E.H. In
her petition, the mother alleged that her relinquishment of
parental rights was acquired by duress. She alleged that the
adoptive family made additional fraudulent misrepresentations in
the relinquishment process. Within days of the filing of the
mother's petition, the adoptive parents filed a petition for
adoption and moved to dismiss the mother's petition. The two
cases were consolidated with the parties' consent.
¶9
While cross-motions for summary judgment were pending,
the parties entered into a stipulation. The central feature of
the stipulation was an agreed-upon procedure to determine what
custodial arrangement was most compatible with E.H.'s best
interests. The parties agreed to select an independent clinical
psychologist to "determine what custody arrangement or decree of
adoption should be ordered and whether any order for visitation
or other contact should also be entered in this case."
Furthermore, the parties stipulated to be bound by the
recommendations of the clinical psychologist and authorized the
court to enter the recommendations as the judgment of the court
without further proceedings. The district court judge to whom
the consolidated cases were assigned entered an order approving
the stipulation.
¶10
Under the terms of the stipulation, both the mother and
the adoptive parents forfeited claims, granted concessions, and
undertook obligations. For example, the stipulation states:
[T.H.] having waived any right to proceed on
her claim to set aside the relinquishment for
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No. 20050059

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fraud, constructive fraud, violation of
procedures, breach of contract, or for any
other good cause in light of the parties'
Stipulation, it is hereby ordered that she
shall not challenge the Judgment in this case
or in the adoption case on the basis of such
claims. [The adoptive parents] and Families
for Children having waived any right to
object to or challenge the propriety or
enforceability of a Judgment for
post-adoption contact in this case in light
of the parties' Stipulation, it is hereby
ordered that they shall not challenge such an
order or Judgment for post-adoption contact
should such an order or Judgment be
recommended.
¶11
Seven months after entering into the stipulation, the
parties agreed upon Dr. Chris Wehl, a clinical psychologist, to
be the evaluator. Dr. Wehl took about one year to complete the
evaluation. In his report, Dr. Wehl recommended that the
petition for adoption be dismissed and that custody be granted to
the mother. As contemplated by the stipulation, the mother then
filed a motion to confirm Dr. Wehl's recommendations and grant
custody immediately to her. The adoptive parents objected to the
mother's motion. At the time these events occurred, E.H. was 28
months old.
¶12
By the time Dr. Wehl's recommendation was submitted to
the court pursuant to the stipulation, the judge who entered the
order approving the stipulation retired from the bench, and
another judge had taken over the consolidated cases. It thus
fell to the second judge to rule on the mother's contested motion
to accept Dr. Wehl's recommendation and dismiss the adoptive
parents' petition for adoption. The second judge apparently
agreed with the adoptive parents that Utah Code section 78-30-
4.16 (2000) required him to first determine whether the mother
had relinquished her parental rights before he could commence any
proceeding regarding the best interests of E.H. The second judge
thereafter conducted a two-day hearing on the lawfulness of the
mother's relinquishment. He determined that the mother was bound
by the relinquishment. As we will see, this ruling proved to
have considerable collateral consequences.
¶13
With the mother's relinquishment upheld, the adoptive
parents moved ahead with their adoption petition. The mother
sought to participate in the proceedings. She claimed that under
the terms of the stipulation the adoptive parents had promised to
No. 20050059
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dismiss their adoption petition and had therefore repudiated the
stipulation by refusing to finalize the adoption of E.H. In any
event, she claimed that the stipulation expressly contemplated a
"best interests" hearing in which the mother could participate.
Faced with the unfavorable recommendation of Dr. Wehl, the
adoptive parents had, however, changed their position and now
insisted that because the mother's relinquishment had been found
to be valid, she had no standing to participate further in any
proceeding concerning the best interests of E.H. The second
judge agreed with the adoptive parents and ruled that the mother
had no standing to participate in the adoption proceedings.
¶14
The court then conducted an adoption hearing. On its
own motion, the court required Dr. Wehl to testify at the
hearing. The adoptive parents were the only parties to the
adoption proceedings. At the conclusion of the hearing, the
district court voided the stipulation and granted the adoptive
parents' petition, thus finalizing the adoption of E.H.
¶15
The mother appealed. The court of appeals reversed the
district court's decision. It concluded that the district court
did not have adequate justification to disregard the intent of
the parties as expressed in the stipulation. The court of
appeals therefore remanded the case to the district court with
instructions to restore the custody of E.H. to his mother.
ANALYSIS
¶16
We postpone our exploration of the legal issues
presented to us in this appeal to note our dismay that E.H. has
been too long denied the permanence and stability to which he is
entitled. E.H. became the object of litigation within months of
entering this world and continues to find his fate held in
suspension by our courts well into his sixth year. It is an
unfortunate reality that E.H. may be capable of reading the
rulings of the courts, including this one, that will chart his
custodial destiny as those rulings are issued.
¶17
By acknowledging E.H.'s misfortune, we do not intend to
assign blame for it. Indeed, while the stipulation agreed upon
by the parties now stands out prominently as the reason why the
judicial process charged with determining E.H.'s parental and
custodial status has careened off its intended course, the
stipulation was, at its inception, well-intentioned. It appears
to have emanated from a collective recognition that E.H.'s best
interests would be served by putting in place a fair, objective,
and streamlined procedure to determine the custodial placement
that would be most compatible with E.H.'s best interests.
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No. 20050059

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¶18
We are mindful that our ruling today fails E.H. in the
sense that it does not bring finality to his status. We must not
permit our concern for stability and finality, however, to
displace our responsibility to correctly interpret the law
governing the issues before us. With this in mind, we turn our
attention to those issues.
¶19
The court of appeals concluded that the trial judge
exceeded his discretion when he deviated from the stipulation,
vacated the first judge's order giving effect to the stipulation,
and found that the best interests of E.H. were served by granting
the petition of the adoptive parents. We agree with the court of
appeals that the stipulation should be examined using general
contract principles and that, so examined, it is unassailable.1
While we agree that the second judge erred when he declared the
entire stipulation void, we do not believe that he was obliged to
summarily enforce it, and to this extent, we depart from the
court of appeals' decision. To explain our partial endorsement
of the court of appeals' decision, we examine the stipulation and
the adoptive parents' objections to enforcement.
I. THE STIPULATION DID NOT INTRUDE ON THE CORE FUNCTIONS OF THE
COURT
¶20
As the court of appeals correctly noted, the law favors
the settlement of disputes. See In re E.H., 2004 UT App 419,
¶ 12, 103 P.3d 177 (citing Mascaro v. Davis, 741 P.2d 938, 942
(Utah 1987)). It is indeed chilling to imagine the conditions
that would exist within the judicial branch of government and
society as a whole were settlements to be treated with hostility.
The variety of agreements that disputing parties may reach is so
vast as to defy cataloging them. Some agreements, like an
agreement to arbitrate a dispute, substantially rein in a court's

1 The court of appeals voiced understandable skepticism over
the fact that the adoptive parents discovered allegedly fatal
defects in the stipulation only after Dr. Wehl recommended that
E.H. be placed with his mother rather than with them. We agree
that the circumstances under which the adoptive parents mounted
their assault on the stipulation carry all the telltale signs of
an effort by a disappointed party to repudiate a bargain fairly
struck. We have exercised care, however, to avoid permitting our
misgivings about the adoptive parents' motives to color our
analysis of the legal issues presented.
No. 20050059
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authority to intervene in the fact-finding enterprise.2 Other
agreements, such as an agreement to present a court with
stipulated facts, may not affect a court's authority to disregard
the stipulation and compel the parties to present evidence for
the court to weigh and evaluate.
¶21
We are at a loss, however, to imagine why a court would
insist on a process that preserves adversarial purity for its own
sake. On the other hand, there are certain agreements that so
compromise the core responsibilities of the court that they
cannot be honored. We identified such an agreement in Salt Lake
City v. Ohms, 881 P.2d 844, 848 (Utah 1994), when we rejected as
unconstitutional a statute that authorized a prosecutor and a
defendant to agree to permit a court commissioner to conduct a
criminal trial, impose sentence, and enter a final judgment. We
agree with the court of appeals' conclusion that the stipulation
between the mother and the adoptive parents did not
unconstitutionally strip the district court of core functions
because the district court did not surrender to Dr. Wehl its
authority to enter a custody order. Rather, the court merely
agreed to follow a process for the determination of the best
interests of E.H. and to uphold this process so long as it
adequately served that end.
¶22
Just as parties are generally free to agree upon facts
subject to judicial application of the law, parties are likewise
at liberty to exercise their freedom of contract in order to
enlist others to aid in culling the "true" facts from the murky
stew of conflicting versions of events held by the parties.
There is little to distinguish between a stipulation that sets
out facts agreed on through the parties' own labors and a
stipulation that delegates to a third party the authority to
determine the contours of the factual landscape. Both approaches
lead to the same result: an uncontested factual record. Both
types of stipulations may be perceived as paring back the role of
the court as fact-finder, but in most cases this result should be
welcomed as an exercise entirely consistent with efficient and
just judicial administration.
¶23
By adopting rule 53 of the Utah Rules of Civil
Procedure governing masters, this court has provided legitimacy
and a formal structure to the delegation of litigated issues.
Under this rule, parties may refer both factual and legal issues

2 See generally Utah Arbitration Act, Utah Code Ann. §§ 78-
31a-101 to -131 (2002) (requiring courts to enforce arbitration
agreements in most situations and restricting a court's power to
alter arbitration awards).
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No. 20050059

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to a master. In nonjury trials, like this one, "the court shall
accept the master's findings of fact unless clearly erroneous."
Utah R. Civ. P. 53(e)(2). Similarly, "when the parties stipulate
that a master's findings of fact shall be final, only questions
of law arising upon the [master's] report shall thereafter be
considered." Utah R. Civ. P. 53(e)(4).
¶24
Nowhere, however, does rule 53 permit a master's
authority to penetrate core judicial functions. We are mindful
that the adoptive parents suggest otherwise. Although they
provide no analysis in aid of their conclusion, the adoptive
parents contend that rule 53 "appear[s] to be unconstitutional."
Without comprehensive briefing on the question, we decline to
decide today the constitutionality of rule 53, but we do note
that the circumstances that give rise to the "finality" of a
master's factual findings have much in common with the form in
which stipulated facts typically appear, a form that
presumptively binds the parties and establishes "finality."
¶25
It is telling that rule 53 does not have a counterpart
in the rules of criminal procedure. Although the Ohms holding
did not turn on the fact that the commissioner was presiding over
a criminal matter, the nature of the litigation has direct
relevance to dimensions of the core judicial functions in a
particular setting. 881 P.2d at 848. As a general proposition,
those cases that are most amenable to a free-wheeling display of
the adversarial system are likewise cases that will accommodate
the most expansive acts of judicial delegation without
trespassing into core judicial functions. Most torts and
commercial litigation would fall within this category.
¶26
By contrast, where considerations of public policy or
fundamental constitutional rights permeate a case, more acute
judicial oversight is warranted and often required. In these
cases, a court must exercise greater care when delegating
judicial functions. Adoption cases illustrate this point.
¶27
The legislature has assigned to the court the
responsibility to enter a decree of adoption only "if satisfied
that the interests of the child will be promoted by the
adoption." Utah Code Ann. § 78-30-9 (2002). The legislature
reinforced its intention to require judges to provide oversight
of an adoptee's best interests by mandating an evidentiary
hearing to determine the appropriate custodial placement whenever
a petition for adoption is not granted. See Utah Code Ann. § 78-
30-4.16 (2000).
No. 20050059
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¶28
The expectation that a court retain the final authority
to decide custodial placements consistent with a child's best
interest does not, however, render unenforceable the stipulation
at issue here. Rather, the statutory mandate for judicial
oversight of adoptions bolsters the correctness of the court of
appeals' conclusion that under the terms of the stipulation the
district court held the ultimate authority to preside over the
proceedings, to satisfy itself that Dr. Wehl's recommendations
were properly arrived at, and to enter a final order. We
therefore affirm the court of appeals' holding that the terms of
the stipulation did not result in an impermissible intrusion into
the core responsibilities of the court.
II. THE COURT OF APPEALS MISAPPREHENDED THE APPLICATION OF THE
LAW OF THE CASE DOCTRINE TO THE DISTRICT COURT'S REJECTION OF THE
STIPULATION
¶29
The second judge justified his reversal of the original
judge's order that implemented the stipulation on both legal and
factual grounds. He read Utah's adoption statute to require that
he decide the lawfulness of the mother's relinquishment of her
parental rights before he could take up consideration of her
son's best interests. This legal interpretation and the related
legal ruling prohibiting the mother from participating in the
adoption proceedings vitiated the first judge's order that would
have permitted the mother to participate in all proceedings
related to determining the best interests of E.H.
¶30
The second judge formally voided the stipulation on
factual grounds. After the adoption hearing--a hearing from
which the mother was barred--the second judge found that
Dr. Wehl's report and recommendation was so flawed that it did
not reliably speak to the issue of E.H.'s best interests.
¶31
Because the effect of these legal and factual rulings
was to reverse a ruling of the first judge, the court of appeals
reviewed them within the context of the law of the case doctrine.
By analyzing the propriety of the second judge's rulings,
primarily as a question of whether he properly exercised his
discretion to overrule the order of the prior judge, the court of
appeals applied an abuse of discretion standard. We believe that
this was a mistake.
¶32
A challenge to a judge's reversal of a ruling made by a
predecessor judge is inevitably composed of two issues. The
first concerns whether the reversal so offends the prudential
practice of refusing to reopen matters that have already been
decided that it cannot be sustained. Messenger v. Anderson, 225
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No. 20050059

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U.S. 436, 444 (1912). This question is central to evaluating the
application of the law of the case doctrine and, as the court of
appeals correctly noted, is ordinarily reviewed under an abuse of
discretion standard. The second component of an inquiry into a
reversal of a prior order focuses on the nature of the matter
decided. For example, if both the original ruling and the one
that displaced it were based on applications of law each would be
reviewed under a correctness standard. When a legal question is
presented to an appellate court in law-of-the-case packaging, a
potential dilemma can arise over which standard of review to
apply.
¶33
We can identify no reason why an erroneous legal
determination should be afforded greater discretion on appeal
merely because it wears the garb of law of the case. For
purposes of review, then, considerations of law of the case must
yield to those of the substance of the underlying ruling when
ascertaining the proper standard of review. By stating this
rule, we do not intend to diminish the importance of the law of
the case doctrine, nor do we surrender the authority of appellate
courts to enforce the principle by vacating unexplained and
unjustified renunciations of prior court orders.
¶34
Under the approach we endorse today, the second judge's
legal ruling that a determination of the status of the mother's
relinquishment was required prior to and as a condition for the
mother's claim to standing in the adoption proceedings is subject
to review for correctness, irrespective of the fact that the
ruling implicated the law of the case doctrine. We reverse this
ruling as an incorrect application of law for reasons we will
shortly explain.
¶35
The standard of review applied by the court of appeals
in reversing the second judge's decision to void the stipulation
is unclear. On one hand, the court indicated that the proper
standard of review for challenges brought under the law of the
case doctrine is abuse of discretion, it later admonished judges
to honor the doctrine "unless a compelling reason exists," In re
E.H., 2004 UT App 419, ¶ 23, 103 P.3d 177, and concluded that the
second judge voided the stipulation without a compelling reason
to do so. The court of appeals did not explain how it reconciled
the relaxed scrutiny of the abuse of discretion standard with the
rigor of the "compelling reason" test.
¶36
We conclude, however, that we need not review the
decision to void the stipulation. Whatever misgivings or
uncertainty we may harbor about the standard of review applied by
the court of appeals when it reinstated the stipulation are not
No. 20050059
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relevant to our analysis. The second judge voided the
stipulation as part of a ruling in the adoption proceedings, an
event from which the mother was erroneously barred due to an
incorrect interpretation of law. The court's improper rejection
of the mother's right to be heard on the question of best
interests meant that only the voice of the adoptive parents was
heard on the central issues of whether Dr. Wehl's credentials
were sufficient to his assigned task, his methodology
appropriate, and his recommendations sound. The absence of the
mother from this process rendered it fatally flawed.
¶37
Given our conclusion that the district court retained
final authority over the determination of E.H.'s best interests
and was, therefore, entitled to exercise considerable latitude in
ascertaining the weight and effect of Dr. Wehl's recommendations
on the boy's best interests, we believe that the court of appeals
reached too far when it reinstated the stipulation and the order
of the first judge that gave it legal effect. Of course, this
outcome repaired the flaw in the process by avoiding the need for
an adoption hearing that the mother might attend. It may well be
that the court of appeals selected this approach because it
offered the promise of an accelerated route to the final
placement of E.H. If that was the court's objective, it was a
laudable one. It is not, however, a result that we can endorse.
¶38
We elect, instead, to fix the procedural defects by
remanding this matter to the court of appeals with instructions
to order that a new adoption hearing be conducted in which the
mother is granted status as an intervenor for the purpose of
presenting evidence concerning the best interests of her son. In
this position, the mother should be permitted to present evidence
in defense of Dr. Wehl and his evaluative report.
¶39
Our determination that the proper approach here is to
correct the process and not the result is animated in no small
measure by our recognition that no custodial decision can claim
to actually reflect the best interests of E.H. that does not take
into account the events of his life during the years in which the
contest for his future has traversed our appellate courts.
III. THE STIPULATION GRANTED THE MOTHER AN ENFORCEABLE RIGHT TO
PARTICIPATE IN THE COURT'S INQUIRY INTO WHETHER THE ADOPTION WAS
IN E.H.'S BEST INTERESTS
¶40
The adoptive parents contend that among the
stipulation's flaws was its failure to direct either the court or
Dr. Wehl to determine the validity of the mother's relinquishment
before considering the best interests of E.H. According to the
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No. 20050059

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adoptive parents, to do otherwise would unlawfully alter clear
statutory adoption procedures that require a court to first
determine that status of any party contesting the adoption before
pursuing one of two alternative courses of action: to enjoin the
adoption or to dismiss the adoption petition and conduct a
hearing to determine the custodial arrangement most consistent
with the child's best interests.
¶41
The adoptive parents successfully argued to the
district court that regardless of any agreement with E.H.'s
mother to the contrary, the court must first resolve the mother's
claim that her relinquishment was legally infirm and, if it
concluded that it was not, bar the mother from further
participation in the adoption proceedings for lack of standing.
¶42
The district court justified its decision to void that
portion of the stipulation that granted the mother standing to
participate in the best interests proceedings of E.H. by
concluding that its ruling was mandated by statute. We therefore
review the propriety of this ruling as a question of law, ceding
no deference to the district court.3 Our review leads us to
conclude that the second judge erred when he overrode the
parties' agreement to bypass the question of the legitimacy of
the mother's relinquishment and proceed directly to a hearing on

3 Owing to the structure of the adoption statute, the reach
of our discussion of standing will necessarily extend to the
related issue of intervention. This court last decided the fate
of a stipulated intervention in In re Marriage of Gonzalez, 2000
UT 28, ¶¶ 32-41, 1 P.3d 1074. A majority of the court affirmed
the trial court's decision to enforce the stipulated
intervention. There was no consensus on a rationale. Three
justices agreed that a court may disregard a stipulation to
intervene when the intervention would offend public policy. The
three split, however, over whether the stipulation before the
court ran afoul of public policy. The outcome was no more
settled on the question of the appropriate standard of review to
apply. Two justices advocated de novo review. Two championed a
deferential abuse of discretion standard. One took no position.
Our quest for the proper standard of review here is less
challenging. The district court interpreted Utah Code section
78-30-4.16 to mean, as a matter of law, that upon finding the
mother's relinquishment was effective that it must foreclose her
from further participation in the adoption proceedings. Under
these circumstances, we review the enforceability of the
stipulation's effect on the mother's standing and right to
intervene in the adoption for correctness.
No. 20050059
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best interests, one in which the mother would not be permitted to
participate.
¶43
We reach this conclusion based on the text of the
adoption statute and our jurisprudence relating to standing and
intervention. We first take up the statutory support for our
holding.
¶44
The version of section 78-30-4.16 of the Utah Code in
effect at the time of the district court's ruling addresses
contested adoptions. Utah Code section 78-30-4.16 stated:
(1) Whenever any party contests an adoption,
the court shall first determine whether the
provisions of this chapter have been complied
with. If a party who was entitled to notice
and consent under the provisions of this
chapter, was denied that right, and did not
otherwise waive or forfeit that right under
the terms of this chapter, the court may:
(a) enjoin the adoption, or dismiss the
adoption petition, and proceed in
accordance with Subsection (2); or
(b) determine whether proper grounds for
termination of that parent's rights
exist and, if so, order that the
parent's rights be terminated in
accordance with the provisions of this
chapter or Title 78, Chapter 3a, Part 4,
Termination of Parental Rights Act.
(2)
(a) In any case, and under any
circumstance, if a court determines that
a petition for adoption may not be
granted, the court may not automatically
grant custody of a child to a
challenging biological parent, but shall
conduct an evidentiary hearing in each
case, in order to determine who should
have custody of the child, in accordance
with the child's best interest.
(b) Evidence considered at that hearing
may include, but is not limited to,
evidence of psychological or emotional
bonds that the child had formed with
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third parties and any detriment that a
change in custody may cause to the
child. The fact that a person
relinquished a child to a licensed child
placing agency or executed a consent for
adoption may not be considered by the
court as evidence of neglect or
abandonment.
(c) Any custody order entered pursuant
to this section may also include
provisions for visitation by a
biological parent or interested third
party, and provide for the financial
support of the child.
(3) An adoption may not be contested after
the final decree of adoption is entered.
Utah Code Ann. § 78-30-4.16 (2000).
¶45
Apparently, this is the provision that the second judge
relied on when he rejected the stipulation's grant of standing to
the mother. It is also the centerpiece of the argument the
adoptive parents make to us seeking reversal of the court of
appeals. It becomes evident on close inspection of this section,
however, that it does not deprive the mother of standing to
present evidence on E.H.'s best interests within the context of
an adoption proceeding.
¶46
The first sentence of Utah Code section 78-30-4.16(1)
directs a court presiding over a contested adoption to make a
threshold inquiry into statutory compliance. This expansive
admonition is refined by the second sentence which, when read
literally, limits the court's inquiry into statutory compliance
to "a party who was entitled to notice and consent." Utah Code
Ann. § 78-30-4.16(1) (2000). If the court determines that a
member of the class of persons entitled to both notice and
consent was denied notice, did not give lawful consent, and did
not excuse the need for consent through valid relinquishment,
waiver, or forfeiture of parental rights, it may either proceed
with a determination of whether a contesting parent's parental
rights should be terminated or conduct a custody hearing for the
adoptee based on "best interests" considerations. See Utah Code
Ann. § 78-30-4.16(1), (2).
¶47
Under the formulation of section 78-30-4.16 of the Utah
Code, a "best interests" hearing to determine the best custody
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arrangement for the child would occur after "a court determines
that a petition for adoption may not be granted." Id. Thus, the
"contest" to the adoption contemplated by this section has
nothing to do with the issue of whether the proposed adoption is
in the best interests of the adoptee and everything to do with
whether all actual or potential parental rights that might cause
an impediment to the adoption have been extinguished. If they
have not, the "best interests" evidentiary hearing mandated by
section 78-30-4.16 is not an adoption contest at all because an
adoption is no longer pending. The mandated event is, instead, a
custody hearing.
¶48
Although the district court's determination that the
mother's relinquishment was lawful freed it of a duty to conduct
this custody hearing under section 78-30-4.16, that ruling did
not relieve the court of its statutory responsibility to conduct
a meaningful inquiry into whether the proposed adoption of E.H.
was consistent with his best interests. That duty is assigned to
the court under the provisions of section 78-30-9, which directs
the court to "examine each person appearing before it in
accordance with this chapter, separately, and, if satisfied that
the interests of the child will be promoted by the adoption, it
shall enter a final decree of adoption." Utah Code Ann. § 78-30-
9 (2002).
¶49
Section 78-30-9 does not describe who may appear before
the court for examination concerning the effect of the adoption
on the adoptee's best interests. In order to determine who may
appear before the court, we must look to the law of standing and,
its procedural cousin, intervention. The doctrine of standing
ensures that the court will have the benefit of truly adverse
parties in resolving a case. A plaintiff who has not been
granted standing to sue by statute must either show that he has
or would suffer a "distinct and palpable injury that gives rise
to a personal stake in the outcome" of the case or meet one of
the two exceptions to standing recognized in cases involving
"important public issues." Wash. County Water Conservancy Dist.
v. Morgan, 2003 UT 58, ¶ 17, 82 P.3d 1125. In courts of general
jurisdiction, standing is not a rigid or dogmatic rule, but one
that must be applied with some view to realities as well as
practicalities. See Washakie County School Dist. No. One v.
Herschler, 606 P.2d 310, 317 (Wyo. 1980).
¶50
In general, standing is available only to a person who
has sustained some injury to her legal, personal, or property
rights. Jenkins v. Swan, 675 P.2d 1145, 1148 (Utah 1983). The
district court believed that its determination that the mother's
relinquishment was lawful conclusively denied her standing in the
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subsequent adoption hearing. The district court reasoned that
because the relinquishment left the mother with no right or
interest that could be affected by the proceeding, she lacked
standing to participate in those proceedings. We need not rule
today whether all of the mother's interests in E.H. were
extinguished; however, because even if we were to accept this
line of reasoning as true, the presence or absence of parental
rights does not determine whether a person has standing to
intervene in an adoption proceeding.
¶51
Intervention is the act by which a third party obtains
standing to become a party in a suit. It has been described as a
method by which an outsider with an interest in an action may
enter and participate as a party. To justify intervention, the
party seeking intervention must demonstrate a direct interest in
the subject matter of the litigation such that the intervenor's
rights may be affected, for good or for ill. See Lima v.
Chambers, 657 P.2d 279, 282 (Utah 1982). The requisite interest
necessary to permit intervention may arise from the intervenor's
status or her circumstances. Rule 24(a)(2) of the Utah Rules of
Civil Procedure, which governs intervention as of right,
describes the connection that must exist between a person's
status or circumstances and the lawsuit in order to justify
intervention, stating:
When the applicant claims an interest
relating to the property or transaction which
is the subject of the action and he is so
situated that the disposition of the action
may as a practical matter impair or impede
his ability to protect that interest, unless
the applicant's interest is adequately
represented by the existing parties.
Utah R. Civ. P. 24(a)(2) (2006).
¶52
Here, the parties stipulated that the mother had the
necessary interest in her son to participate in the determination
of his best interests irrespective of her parental status.
Although we have not adopted the view that a court must always
honor a claim of standing conferred by stipulation neither, do we
categorically reject the notion that standing, unlike
jurisdiction, can arise from an agreement.4 As in many states,

4 While the court of appeals has not specifically rejected
this notion, we realize that it has expressed doubt about its
validity when it stated that "it is doubtful whether a party may
(continued...)
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we find that in Utah standing acquired by stipulation is
enforceable.5 Moreover, we have recognized "de facto"
intervention where parties have failed to object to a nonparty's
participation in an action. See Ostler v. Buhler, 1999 UT 99,
¶ 7, 989 P.2d 1073. Here, the adoptive parents' consent to the
mother's standing and intervention was not dependent on inference
but was expressly granted by the stipulation.
¶53
Standing and the right to intervene may also be
conferred by statute. Utah Code section 78-30-4.13(11) grants
the right to intervene on persons who are entitled to notice of
an adoption proceeding stating, "Except as to those persons whose
consent to an adoption is required under Section 78-30-4.14, the
sole purpose of notice under this section is to enable the person
served to intervene in the adoption and present evidence to the
court relevant to the best interest of the child." Utah Code
Ann. § 78-30-4.13(11) (2002) (emphasis added).
¶54
Clearly, the hearing at which the relevant best
interests evidence is to be presented cannot be the custody
hearing mandated in Utah Code section 78-30-4.16. That hearing
is not an adoption hearing because it can only occur if the court
determines that the petition for adoption cannot be granted. See
Utah Code Ann. § 78-30-4.16(2)(a). It must be that the forum for
the presentation of section 78-30-4.13(11) "best interest"
evidence is the section 78-30-9 "best interest of the child"
(a.k.a. "adoption") examination.
¶55
The members of the class of persons authorized by Utah
Code section 78-30-4.13(11) to intervene and present evidence
includes persons whose consent to the adoption or relinquishment
of parental rights is not required, including a legally appointed
custodian or guardian of an adoptee, Utah Code Ann. § 78-30-
4.13(2)(c), and an adoptee's spouse, Utah Code Ann. § 78-30-
4.13(2)(e). A mother, like E.H.'s mother, who has relinquished
her parental rights does not have a right to receive notice and
is excluded from the class of persons upon which the statute

4 (...continued)
stipulate as to standing; questions of law are generally not
subject to stipulation." Sierra Club v. Dep't of Envtl. Quality,
857 P.2d 982, 985 (Utah Ct. App. 1993).

5 See, e.g., Everroad v. State, 590 N.E.2d 567, 569 (Ind.
1992); Graham v. Worthington, 146 N.W.2d 626, 631 (Iowa 1966);
Melzer v. Fla. Dep't of Cmty. Affairs, 881 So. 2d 623, 625 (Fla.
Dist. Ct. App. 2004); Aebig v. Commercial Bank of Seattle, 674
P.2d 696, 697 (Wash. Ct. App. 1984).
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No. 20050059

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confers a right to intervene and present best interests evidence.
However, by merely extending to a particular class of persons an
express invitation to intervene in an adoption and present best
interests evidence, Utah Code section 78-30-4.13(11) does not
foreclose the possibility that other persons may, by reason of
status or circumstance, also be eligible to intervene and present
relevant best interests evidence. We do not read section 78-30-
4.13(11) as restricting those who may be eligible to intervene in
the adoption and present relevant best interests evidence to
persons entitled to notice. Rather, section 78-30-4.13(11)
authorizes intervention to persons who may "present evidence to
the court relevant to the best interest of the child." Utah Code
Ann. § 78-30-4.13(11).
¶56
By expressly granting a right of intervention to other
persons who have no parental interest in an adoptee, Utah Code
section 78-30-4.13(11) manifests the unmistakable intention to
ground standing to intervene on whether the prospective
intervenor can demonstrate an interest in or relevant evidence
about the adoptee's best interests irrespective of parental
status.
¶57
Even without the stipulation, the mother has made the
requisite showing for intervention under rule 24(a). She
actively participated in the selection of the adoptive parents.
She lived in the adoptive parents' home and observed the
environment and family dynamics. She even pursued, without
objection to her standing, an action seeking custody of her son.
Finally, she consented to a stipulation directed exclusively to
advancing the best interests of E.H. We therefore hold that the
stipulation is enforceable insofar as it confers standing and a
right to intervene on the mother to present relevant evidence of
E.H.'s best interests at an adoption hearing.
¶58
We reiterate that the hearing in which the mother is
entitled to participate is, in the first instance, the section
78-30-9 adoption hearing. Only in the event that the court
determines that the petition for adoption should not be granted
must it then hold the custody hearing described in Utah Code
section 78-30-4.16(2).
¶59
The adoptive parents cling to K.S. v. S.H. (In re
B.B.), 2002 UT App 82, 45 P.3d 527, aff'd sub nom. Hardinger v.
Scott (State ex rel. B.B.), 2004 UT 39, 94 P.3d 252, to buoy up
their contention that a court may not enforce a stipulation that
purports to confer standing. In particular, they insist that
B.B. stands for the proposition that a stipulation that is
incompatible with the adoption statute is unenforceable. Both
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the B.B. opinion issued by the court of appeals and our opinion
affirming the outcome turned on a determination that the juvenile
court lacked continuing jurisdiction over a decree of adoption
that it had entered. Therefore, it could not modify the decree
to reflect visitation rights of grandparents that had been
omitted but had been agreed to in a stipulation between the
grandparents and the adoptive parents. This case presents no
such jurisdictional question.
¶60
For her part, E.H.'s mother has staked her claim to
standing on the language of Utah Code section 78-30-4.24, which
at the time she filed her petition for custody stated, "Any
interested party may petition the court for a determination of
the rights and interests of any person who may claim an interest
in a child under this chapter, at any time prior to the filing of
a petition for adoption, including any time prior to the child's
birth." Utah Code Ann. § 78-30-4.24 (2002). When read as a
stand-alone expression of standing to sue, this statute is very
expansive, granting standing to "any interested party." The
adoptive parents contend, plausibly, that despite its broad
language, E.H.'s mother cannot be an interested person because
she has relinquished her parental rights and is therefore no more
"interested" in E.H. than a stranger. The mother counters by
pointing to Utah Code section 78-30-11 (2002). This provision
fixes the entry of the decree of adoption as the date upon which
birth parents cease "all parental duties toward and all
responsibilities for the adopted child." Id. This language
carries the inescapable inference that birth parents, like E.H.'s
mother, retain some residual "interest" in her child, even where
parental rights have been lawfully relinquished.
¶61
When we survey the adoption statute as a whole,
however, it becomes apparent that Utah Code section 78-30-4.24
was not intended to provide a statutory basis upon which to
contest adoptions. The best case for this assertion draws on the
language of the section itself. As formulated at the time the
mother filed her custody petition, section 78-30-4.24 authorized
an interested person to seek a determination of the status of
another putative claimant to an interest in a child "at any time
prior to the filing of a petition for adoption." Utah Code Ann.
§ 78-30-4.24 (2002).6 This timing restriction erects a

6 Today Utah Code section 78-30-4.24 extends this right from
"any time prior to the filing of a petition for adoption[,]" Utah
Code Ann. § 78-30-4.24 (2002) (emphasis added), to "any time
prior to the finalization of the adoption." Utah Code Ann. § 78-
30-4.24 (Supp. 2005) (emphasis added). We believe that the
(continued...)
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considerable conceptual barrier to the notion that section 78-30-
4.24 was intended to grant standing to those wishing to challenge
an adoption, because the opportunity to challenge the interests
of others expired with the filing of an adoption petition.
¶62
That Utah Code section 78-30-4.24 was not intended to
serve as an adoption contest mechanism is reinforced by the
policy expressed with the adoption statute to preserve the
anonymity of prospective adoptive parents. Section 78-30-
4.13(10) codifies this policy by stating that "[n]otwithstanding
any other provision of law, neither the notice of an adoption
proceeding nor any process in that proceeding is required to
contain the name of the person or persons seeking to adopt the
adoptee." Utah Code Ann. § 78-20-4.13(10) (2002).
¶63
If Utah Code section 78-30-4.24 was not intended to
serve an alternate statutory means to contest an adoption, what
is its purpose? The section must be intended to protect child
placement agencies and prospective adoptive parents from the risk
of an adoption contest by obtaining an adjudicated extinguishment
of the claims of persons who might stand in the way of the
adoption. This assessment best serves the policy interests
announced by the legislature in "providing stable and permanent
homes for adoptive children in a prompt manner [and] in
preventing disruption of adoptive placements." Utah Code Ann.
§ 78-30-4.12(2)(a). To this end, section 78-30-4.24 exists to
facilitate adoptions, not to contest them. We therefore conclude
that section 78-30-4.24 of the Utah Code did not provide E.H.'s
mother grounds to challenge E.H.'s adoption. We hold, however,
that her stipulation with the adoptive parents did.
IV. THE DISTRICT COURT'S RULING THAT THE MOTHER'S RELINQUISHMENT
WAS LAWFUL WAS NOT CLEARLY ERRONEOUS
¶64
The mother claims that the district court's ruling that
her relinquishment was lawful and binding was not supported by
sufficient evidence. We will affirm the district court's
determination of this issue unless it is clearly erroneous. We
have assigned to parties who mount challenges to outcomes based
on insufficient factual support the duty to marshal evidence.
"In order to challenge a court's factual findings, an appellant
must first marshal all the evidence in support of the finding and

6 (...continued)
legislature extended the period of this section in order to
provide better opportunities for potential adoptive parents to
extinguish the interests of anyone who might contest the
adoption.
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then demonstrate that the evidence is legally insufficient to
support the finding even when viewing it in a light most
favorable to the court below." Chen v. Stewart, 2005 UT 68,
¶ 53, 123 P.3d 416. This assignment is not intended to
gratuitously oppress an appellant; rather it exists to facilitate
a structured, realistic, and skeptical appraisal of facts without
unduly compromising the adversarial process. At its core, the
duty to marshal evidence contemplates that an appellant present
"every scrap of competent evidence introduced at trial which
supports the very findings the appellant resists" and then
"ferret out a fatal flaw in the evidence," becoming a "devil's
advocate." State v. Green, 2005 UT 9, ¶ 28, 108 P.3d 710 (citing
Justice Michael J. Wilkins et al., Utah Appellate Practice, 2000
Utah L. Rev. 111, 127.
¶65
Here, the mother has wholly failed to marshal the
evidence, electing instead to invite us to relitigate the
lawfulness of her relinquishment in its entirety. This we
decline to do.
CONCLUSION
¶66
To describe as "unfortunate" the perverse and
protracted course of events that has followed the parties'
otherwise praiseworthy decision to agree upon a procedure
designed to bring about a timely and less disputatious resolution
of their dispute over the custodial fate of E.H. greatly
understates our concern for the harmful effects that years of
litigation have visited on this young man. Our legislature has
voiced a clear and consistent belief that the "best interest of a
child" is defined to a substantial degree by the presence of a
prompt, permanent, and secure parental attachment. As we said in
Hardinger, "The legislature has expressly provided that `the
state has a compelling interest in providing stable and permanent
homes for adoptive children . . . [and] in preventing the
disruption of adoptive placements,' and `adoptive children have a
right to permanence and stability in adoptive placements.'" 2004
UT 39, ¶ 15, 94 P.3d 252 (quoting Utah Code Ann.
§ 78-30-4.12(2)(a)­(c)).
¶67
We regret that we cannot provide E.H. a permanent and
secure parental attachment with our holding today. We remand
this matter to the court of appeals with instructions to proceed
in accordance with this opinion. The centerpiece of our
instructions is the mandate that the district court permit the
mother to intervene in an adoption hearing to be conducted
pursuant to Utah Code section 78-30-9 with dispatch. We express
no view concerning what the outcome of that hearing should be.
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No. 20050059

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¶68
In the event that the district court determines that
the adoption is in the best interests of E.H., the matter will be
concluded, subject to appeal. We feel it prudent, however, to
describe the procedure to be followed in the event that the
district court determines that the adoption is not in E.H.'s best
interests.
¶69
When an adoption petition is dismissed following a
proceeding conducted under section 78-30-9, the court must
proceed under section 78-30-4.16(2)(a). During the relevant
period, this provision stated:
In any case, and under any circumstance, if a
court determines that a petition for adoption
may not be granted, the court may not
automatically grant custody of a child to a
challenging biological parent, but shall
conduct an evidentiary hearing in each case,
in order to determine who should have custody
of the child, in accordance with the child's
best interest.
Utah Code Ann. § 78-30-4.16(2)(a) (2000).
¶70
This section is sweeping in its scope and applies by
its own terms in every instance when an adoption petition is
dismissed. The unique facts in this case complicate its
application here because the mother would participate in the
hearing as the biological mother of E.H. but under the disability
brought about by her relinquishment of her parental rights.
¶71
Should the district court determine that placement with
the mother is in his best interests, that ruling, arising in the
context of a section 78-30-4.16 hearing, would not reestablish
the parent-child relationship between the mother and E.H. That
could only be accomplished through an adoption proceeding
commenced by the mother.
¶72
With the facts of this case in mind, and noting the
congruence of the statutory framework and the legislative intent
to provide permanent placements for adoptive children, we expect
the district court to conduct a "best interest of the child"
(a.k.a. "adoption") examination as rapidly as possible. At this
hearing, the court will determine whether it is in the best
interests of E.H. to award adoption and custody to the adoptive
parents. We express no view as to the proper outcome. As
discussed above, Utah Code section 78-30-4.13(11) authorizes
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intervention in this proceeding to persons who "may present
evidence to the court relevant to the best interests of the
child[;]" and the mother in this case meets that test.
Furthermore, her right to testify and present evidence at the
section 78-30-9 hearing is confirmed by Utah Rule of Civil
Procedure 24(a) and the stipulation.
¶73
Should the district court find it not to be in E.H.'s
best interests to grant the adoptive parents' petition, then E.H.
should temporarily remain a ward of the adoption agency. The
district court must then promptly hold a Utah Code section 78-30-
4.16 custody hearing.
¶74
If this stage is reached, it is at this hearing that
the district court will determine who among all of the interested
parties should be granted custody and whether any party is
entitled to visitation or other accommodations. We intend that,
in this case, should the mother be granted custody at the section
78-30-4.16 hearing that her prior relinquishment be nullified and
her full status as natural parent be restored.
¶75
We urge the court of appeals, the district court, and
the parties to achieve finality under the guidelines of this
opinion as expeditiously as possible.
¶76
We remand this matter to the court of appeals with
instructions to proceed in accordance with this opinion.
---
¶77
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring's
opinion.
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