G.G. v. State (In re State ex rel. R.G.)

540 P.3d 1148

STATE of Utah, IN the INTEREST OF R.G., a person under eighteen years of age.

G.G., Appellant,

v.State of Utah, Appellee.

No. 20220635-CA

Court of Appeals of Utah.

Filed November 24, 2023

Keith Andrew Fitzgerald, Attorney for Appellant

Sean D. Reyes and John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges John D. Luthy and Amy J. Oliver concurred.

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 G.G. (Father) appeals the juvenile court's order terminating his parental rights to R.G. (Child). Father argues the juvenile court erred in finding that termination of his parental rights was strictly necessary, because placement of Child with Father's sister in another state was an option. Because Father has not persuaded us that the court committed reversible error, we affirm its order terminating Father's parental rights.

BACKGROUND¹

¶2 Child was born in January 2020. The following day, the Division of Child and Family Services (DCFS) received a referral indicating that Child's mother (Mother)² had tested positive for illegal substances both at the time of Child's birth and during her pregnancy. Thereafter, a DCFS caseworker put a safety plan in place and Child was allowed to leave the hospital and return home with Father and Mother.

¶3 Almost exactly one month later, the juvenile court held a pretrial shelter hearing, which Father did not attend. Following the hearing, the court entered an order removing Child from Father's and Mother's custody and placing Child in the temporary custody of DCFS. That same day, a DCFS caseworker (Caseworker) held a kinship meeting to discuss placement options for Child. Despite being informed of the meeting, neither Father nor Mother chose to attend. Nevertheless, Caseworker identified an in-state kinship placement with a foster family (Foster Family) that had previously adopted two of Child's biological half-siblings.

¶4 A verified petition for custody and legal guardianship was filed one day after the shelter hearing. A few days later, Mother told Caseworker that she wanted Child to be placed with Father's sister (Aunt), who lived in Georgia. Father made the same request.

¶5 In March 2020, Father attended a pretrial hearing on the verified petition. Based on Father's admissions to the allegations in the petition, the juvenile court adjudicated Child neglected as to Father.³ Child was placed in DCFS's custody, and the court set Child's permanency goal as reunification with a concurrent goal of adoption. The court ordered that reunification services be provided to Father and that Father comply with a child and family plan.

¶6 In May 2020, Caseworker contacted Aunt to begin the placement process provided by the Interstate Compact on the Placement of Children (the ICPC).⁴ Caseworker explained that the next step was to fill out paperwork to send to the Utah state office. She noted that the time required to complete the paperwork would depend on how soon she could obtain the necessary documents, including Child's social security card and birth certificate. Because Caseworker did not have those documents for Child on file, she requested them from the parents and from the social security office.

¶7 For the remainder of 2020, the juvenile court held periodic review hearings as required by statute. At the first hearing in June, the court ordered DCFS "to move forward with the ICPC." At a hearing in August, the State informed the court that "the ICPC has been put on hold due to [DCFS] not having a social security number, or birth certificate for [Child]."

¶8 After multiple failed attempts to obtain Child's social security card and birth certificate from the parents, Caseworker was finally able to obtain the documents from the social security office, which had taken several extra months due to closures related to the COVID-19 pandemic. On November 6, 2020, DCFS informed the juvenile court that it had completed its portion of the ICPC paperwork and asked the court to send the paperwork to Georgia so that the Georgia state office could complete its part. The juvenile court signed the order on November 10.

¶9 Reunification services to Father were terminated in February 2021 due to Father's noncompliance with the child and family plan. In June, the State filed a petition to terminate Father's parental rights.

¶10 In September 2021, the juvenile court held a pretrial hearing on the termination petition, during which the status of the ICPC was discussed. Father's counsel indicated that Aunt had "completed and submitted" to Georgia all the required paperwork. However, DCFS reported that Caseworker had contacted the Georgia state office regarding the ICPC but there had been no information provided as to its status. Father then addressed the court. He explained that Aunt notified him that morning that she had completed the ICPC paperwork. Father also informed the court that he was willing to relinquish his rights to Child if Aunt could adopt her, and he reminded the court that his desire "from the get-go" had been to place Child with Aunt. Based in part on the unresolved questions related to the status of the ICPC, the court scheduled a second pretrial hearing to take place in October.

¶11 At the October pretrial hearing, the State reported the status of the ICPC:

[DCFS] was able to get an update from the state of Georgia and that update was filed with the Court. It does show that there were some additional documents that need to be turned in. There was a deadline of July 30th for those to be submitted and as of the date of the report which is dated September 13th, they have not been turned in. I don't think we have anything more current than that as far as what's happening with the ICPC but it appears that is stalled until the family turns in the necessary documents.

In response to this update, Aunt told the court that she had submitted the completed ICPC paperwork, completed a required class, and was currently participating in a home study. After discussing the status of the ICPC, the parties discussed its relevance. The guardian ad litem (the GAL) and the State indicated that the ICPC was a "backup plan" because Child was in a kinship placement with Foster Family and had been there for a "long" time. Mother and Father disagreed with this assessment. Counsel for both parents stated that the original reason for requesting the ICPC was to allow Aunt to be the primary placement. Following this discussion, the court concluded that regardless of Child's placement goal, the parties were in "a holding pattern" and Child could not yet be placed with Aunt because "the home study hasn't been approved" and the ICPC was therefore not complete.

¶12 Trial on the State's petition to terminate parental rights began in November 2021. Despite having proper notice, Father failed to appear at the termination trial. Father's counsel moved to be released due to this failure, and the juvenile court granted counsel's motion. The trial then proceeded by proffer. At the close of trial, the court entered an order terminating Father's parental rights, which Father subsequently appealed. Thereafter, the State, the GAL, Father, and Mother filed a stipulated motion for summary reversal. This court granted the motion and accordingly vacated the termination order and remanded the matter for a new trial.

¶13 The second termination trial occurred over the course of three days in April 2022. The juvenile court heard testimony from Caseworker, Father, and Child's foster parents (Foster Parents). Caseworker testified that at the beginning of the case, Father expressed interest in having Child placed with Aunt in Georgia. Caseworker explained that because Aunt lives out-of-state, DCFS cannot place Child with Aunt unless Aunt has an approved ICPC. Caseworker testified that she started the ICPC process in April 2020 and that she completed the ICPC paperwork and sent it to Georgia in November 2020. Caseworker stated that she would have been able to submit the paperwork sooner had Father provided Child's social security card and birth certificate to her directly, but because he did not, Caseworker had to obtain the documents from the social security office, which had been closed due to the COVID-19 pandemic.

¶14 Caseworker testified that since submitting the ICPC paperwork, she had received "minimal updates" from Georgia—despite the fact that she had followed up "[a]bout every month" —and that she did not have any control over the Georgia state office. She explained that she did not contact Aunt directly during the ICPC process because the "proper channel" for all communication related to an ICPC is between the state offices; however, Caseworker testified that had Aunt contacted DCFS and requested visitation, DCFS "would have given it to her." Caseworker noted that the most recent ICPC update from Georgia was given on February 3, 2022, which stated, "Home study is being written with an expected completion date of 2/14/2022. Will be sent for approval at that time." At the time of trial, however, Caseworker had not been informed whether the home study had been approved or not, nor had she received any kind of final report on the ICPC.

¶15 Lastly, Caseworker testified that under DCFS guidelines, Child was considered to be in a kinship placement because she was placed with Foster Family—the family that had adopted two of Child's biological half-siblings. Caseworker also noted that DCFS has no "level of preference" for different kinship placements. Therefore, even if the approved ICPC had been received, DCFS had already satisfied its "internal standards" by placing Child with kin.

¶16 Regarding placement options, Father testified that although Child "is in good hands" with Foster Family, he wanted her to be placed with Aunt, a desire that he had expressed since the beginning of the case. Father acknowledged that Aunt has never met Child and that removing Child from...