State v. State

402 P.3d 199

STATE of Utah, IN The INTEREST OF A.R. and M.R., Persons Under Eighteen Years of Age.

J.S.R., Appellant,

v.State of Utah, Appellee.

No. 20160330-CA.

Court of Appeals of Utah.

Filed August 17, 2017

Colleen K. Coebergh, Attorney for Appellant.

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

Martha Pierce, Salt Lake City, Guardian ad Litem.

Judge Kate A. Toomey authored this Opinion, in which Judges Michele M. Christiansen and Jill M. Pohlman concurred.

Opinion

Toomey, Judge:

¶ 1 J.S.R. (Father) appeals the juvenile court's order terminating his parental rights. We reverse.

BACKGROUND

¶ 2 A.R. and M.R., born in March 2008 and June 2009, respectively, are the children of C.S. (Mother) and Father.¹ In December 2014, the Division of Child and Family Services (DCFS) filed a verified petition alleging that the children were "abused, neglected and/or dependent." The petition alleged there was a domestic disturbance between Father and Mother and that Father was arrested for violating a protective order between him and Mother. It also alleged Mother was using methamphetamine, sometimes in the children's presence. At a shelter hearing during which both parents were present and represented by counsel, the juvenile court gave DCFS temporary legal and physical custody of the children.

¶ 3 An adjudication hearing took place in January 2015. Father was incarcerated at that time but was transported to the hearing. The juvenile court determined that Father had been arrested for violating a protective order between himself and Mother. It also determined that the children were dependent² as to Father and neglected³ as to Mother and gave custody of the children to DCFS. It also ordered DCFS to create a plan to address the children's needs.

¶ 4 In February 2015, the court conducted a dispositional hearing. The State explained that the Utah Code "requires DCFS to [provide] reasonable services to a father who's incarcerated, unless [the court] determines that those services would be detrimental to the minor." The court concluded that reunification services would not be detrimental to the children but acknowledged the difficulty of providing them to an incarcerated parent, especially since Father still had ten months until his release. The court stated:

But at this point I'm not ordering the Division to go out and set up services at the prison, because I'm not going to find that that's reasonable. So the Division will provide reasonable services, meaning that to the extent that [Father] can take those services ... at the prison, [Father] should avail [himself] of those opportunities.

When [Father] get[s] out [he] need[s] to immediately contact the Division, and then the Division will have to expedite placement in some sort of domestic violence/anger management.

The court stated that any contact the children had with Father should be approved by their therapist and concluded, "So that will be the treatment plan for [Father]. That's what you'll have to put in writing and make sure he has a copy of it."

¶ 5 The court's conclusion regarding reunification services is further memorialized in a disposition order (the Disposition Order). The court found that services would not be detrimental to the children, that there were no reasonable services DCFS could provide to Father while he was in prison, that it was "reasonable to expedite services for [Father] if he contacts [DCFS]" upon his release from prison, that Father should avail himself of services offered at the prison, and that the child and family plan for Father should be amended to include classes available to him in prison. Additionally, the minutes of the disposition hearing stated, "The Court orders DCFS to provide reasonable reunification services for the father and children."

¶ 6 The State filed a verified petition for termination of parental rights as to both parents in September 2015. With respect to Father, the petition stated he was currently incarcerated and listed his criminal convictions. It acknowledged that the court had "ordered DCFS to provide reasonable reunification services" for him, but urged the court to conclude that DCFS had provided reasonable reunification services for Father and to terminate his parental rights on several grounds. The matter proceeded to trial beginning in December 2015 and intermittently continued over eleven days through April 2016.

¶ 7 Father was released from prison on January 5, 2016, between the first and second days of trial. He contacted a DCFS caseworker the next day.

¶ 8 During trial, the caseworker testified she was aware that reunification services had been ordered for Father. She explained she had provided supervised visitation with the children but stated she had not contacted Father's parole officer, had not investigated his living situation, had not inquired about which classes Father had taken, and did not know whether he had participated in domestic violence assessments. She testified she had not provided a service plan to Father, and indeed, that a plan had not yet been drafted. The State then asked the court to determine that both parents had received reasonable reunification services. Both the guardian ad litem and the court expressed "grave concerns about whether the State ... met the first requirement of reasonable efforts concerning [Father]." The court decided to postpone that determination and stated, "[U]ntil [the court] determine[s] otherwise, [the court will] have the Division continue to provide services" to both parents.

¶ 9 Later in February 2016, on the fifth day of trial, the State again raised the issue of reunification services, asking the court to rule on whether "services were either extended or whether the Court finds them appropriate." The court replied that it had "already ruled on the issue and [it had] already ruled that reunification services continued." But after reconsidering the Disposition Order, the court noted "in the disposition order, there's something different ... [it] really did not order reunification services for [Father] but indicated that, once he was released from prison ... they could be expedited." The court ordered briefing on whether, "given the findings of fact and time frames that we're dealing with," DCFS should "even be working on a service plan for [Father]" and whether "reunification services should even be offered to [Father]."

¶ 10 After considering the briefing from Father's counsel, the State, and the guardian ad litem, the juvenile court issued a written order (the March Order) stating that the court "did not order reunification services for [Father]." The trial concluded in April 2016. The court determined Father was an unfit parent, that he had neglected his children "by exposing them to domestic violence," and had made only token efforts to support them. The court terminated Father's parental rights, concluding termination was in the children's best interests. Father appeals.

ISSUES AND STANDARD OF REVIEW

¶ 11 Father raises several issues on appeal. First, during the course of trial, the children's foster mother testified to several hearsay statements the children made to her, and Father challenges the constitutionality of the statute under which those hearsay statements were admitted.⁴ Second, Father contends the juvenile court abused its discretion in allowing the State to amend its verified petition during trial. Third, Father contends the court erred by "retroactively deciding it had not ordered reunification services" in its March Order. Finally, Father raises a due process challenge. Because we ultimately determine the juvenile court erred in its decision regarding reunification services and reverse its decision on this basis, we need not analyze Father's other claims.

¶ 12 In concluding that reunification services had not been ordered for Father, the juvenile court was interpreting its own prior order. "A court's interpretation of its own order is reviewed for clear abuse of discretion and we afford the district court great deference."

Uintah Basin Med. Center v. Hardy , 2008 UT 15, ¶ 9, 179 P.3d 786. Additionally, because the juvenile court has an "advantageous position with regard to the parties and witnesses," we afford it " ‘a high degree of deference,’ overturning its decision only if it is ‘against the clear weight of the evidence or leave[s] the appellate court with a firm and definite conviction that a mistake has been made.’ " In re A.K. , 2015 UT App 39, ¶ 15, 344 P.3d 1153 (stating that a juvenile court's decision whether to offer reunification services is within its sound discretion) (alteration in original) (quoting In re B.R. , 2007 UT 82, ¶ 12, 171 P.3d 435 ).

ANALYSIS

¶ 13 Father contends the juvenile court erred in interpreting its prior order. He asserts the court's Disposition Order stated that reunification services were ordered for Father, and he argues every participant understood "that the Court had ordered reunification services." He further argues the March Order, which stated that reunification services had never been ordered, prejudiced his case. We begin by examining the March Order in greater depth.

I. Additional Background

¶ 14 The court's March Order stated that during trial, "[t]here ha[d] been discussions and confusion about whether reunification services were ordered for [Father]." This order then summarized the court's reasoning behind the prior Disposition Order. At the time of the disposition hearing, In re A.T. , 2013 UT App 184, 307 P.3d 672, rev'd , 2015 UT 41, 353 P.3d 131, was controlling authority. That case stated a juvenile court was required to order reunification services for an incarcerated parent unless the court determined that services would be detrimental to the children. Id. ¶ 13 ; see Utah Code Ann. § 78A-6-312(25)(a) (LexisNexis 2012). In the March Order, the court explained that at the disposition hearing, its analysis had focused on (1) whether services would be detrimental to the...