State v. State

308 P.3d 553

740 Utah Adv. Rep. 29

STATE of Utah, in the interest of L.M., L.M., L.M., and A.A., Persons Under Eighteen Years of Age.J.P., Appellant,

v.State of Utah, Appellee.

No. 20120520–CA.

Court of Appeals of Utah.

Aug. 1, 2013.

Nicole A. Salazar–Hall, Attorney for Appellant.

John E. Swallow and John M. Peterson, Attorneys for Appellee.

Martha Pierce, Guardian ad Litem.

Judge JAMES Z. DAVIS authored this Opinion, in which Judges GREGORY K. ORME and CAROLYN B. McHUGH concurred.

Opinion

DAVIS, Judge:

¶ 1 J.P. (Mother) appeals the juvenile court's termination of her parental rights in four of her children. We affirm.

BACKGROUND

¶ 2 The children were removed from Mother's home after two particularly severe incidents of domestic violence with her paramour, M.A., in October 2011. ¹ Because Mother had previously received reunification services when the Department of Child and Family Services (DCFS) became involved with the family in 2009, the State elected to proceed directly to the termination of Mother's parental rights without offering further reunification services.

¶ 3 Prior to the termination trial, the State notified the juvenile court that it intended to introduce hearsay statements made by the two oldest children (Half Sister and Older Sister) to their therapist and their foster mother, ² pursuant to Utah Code section 78A–6–115(6) (the hearsay exception), which permits such testimony where the child in question is under eight years old and the witness is in a trust relationship with the child, seeUtah Code Ann. § 78A–6–115(6) (LexisNexis 2012).³ Mother objected to the introduction of this testimony, arguing that the hearsay exception was inapplicable in the context of a termination proceeding and that the State had failed to demonstrate that a trust relationship existed between the children and the witnesses. The juvenile court determined that the provision did apply to termination proceedings and that the State had sufficiently demonstrated the existence of trust relationships between the therapist and Older Sister, the foster mother and Older Sister, and the foster mother and Half Sister. The witnesses testified that Older Sister and Half Sister had confided to them incidents of abuse by M.A. against both Mother and the children. The foster mother also testified that they told her that Mother had left the children alone and given them “knock-out pills” so they would sleep while she was at work and that Mother “ ‘spanked them a lot.’ ” Other witnesses, including Mother, also testified regarding M.A.'s violence against her.

¶ 4 The juvenile court found that Mother had neglected the children, that she was an unfit and incompetent parent, and that she was unable or unwilling to remedy the circumstances that caused the children to be in out-of-home placements. The court further found that it was in the children's best interests for Mother's rights to be terminated so the children could be freed for adoption “into a home where they will be secure, stable, loved, and protected from neglect and abuse.” Accordingly, the juvenile court terminated Mother's parental rights.

ISSUES AND STANDARDS OF REVIEW

¶ 5 Mother first asserts that the juvenile court erred in determining that the hearsay exception applied in the context of a termination proceeding, both because the legislature did not intend for it to apply and because constitutional due process protections preclude it from applying in this context. We review questions of statutory interpretation for correctness. In re D.A., 2009 UT 83, ¶ 15, 222 P.3d 1172. We likewise review “[c]onstitutional issues, including questions regarding due process,” for correctness. Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177.

¶ 6 Mother further asserts that even if the hearsay exception were applicable to termination proceedings, the juvenile court erred by determining that the therapist and the foster mother had trust relationships with Older Sister and Half Sister. This determination, which requires the juvenile court to apply statutory law to the facts of the case, is a mixed question of law and fact. In re L.N., 2004 UT App 120, ¶ 11, 91 P.3d 836. Accordingly, “[w]e review the juvenile court's [factual] findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” Id. (citation and internal quotation marks omitted).

¶ 7 Finally, Mother argues that there was insufficient evidence to support the juvenile court's termination of her parental rights. “Findings of fact in a parental rights termination proceeding are overturned only if they are clearly erroneous. Moreover, we defer to the juvenile court because of its advantageous position with respect to the parties and the witnesses in assessing credibility and personalities.” In re G.B., 2002 UT App 270, ¶ 9, 53 P.3d 963 (citations and internal quotation marks omitted).

ANALYSIS

I. The Plain Language of the Statute Indicates that the Hearsay Exception Was Intended To Apply in Both Adjudication and Termination Hearings.

¶ 8 The hearsay exception provides, “For the purpose of establishing the fact of abuse, neglect, or dependency, the court may, in its discretion, consider evidence of statements made by a child under eight years of age to a person in a trust relationship.” Utah Code Ann. § 78A–6–115(6) (LexisNexis 2012). Mother distinguishes between adjudication hearings conducted pursuant to a petition filed under Utah Code section 78A–6–304, id. § 78A–6–304, and termination hearings conducted pursuant to petitions filed under Utah Code section 78A–6–504, id. § 78A–6–504. She asserts that the relaxed admissibility standard permitted under the hearsay exception applies only in the context of adjudication hearings and not in the context of termination hearings.

¶ 9 First, she asserts that the statute itself should be interpreted as applying only to adjudication hearings. We disagree with Mother's analysis. The hearsay exception falls under “Part 1 General Provisions” of the Juvenile Court Act. See Utah Code Ann. tit. 78A, ch. 6, tbl. of contents, at 104–05 (LexisNexis 2012). Had the legislature intended it to apply only to adjudication hearings, it would presumably have included the rule in “Part 3 Abuse, Neglect, and Dependency Proceedings,” which contains additional procedural rules for such non-termination hearings. See id. at 105–06. Furthermore, the existence of several explicit references to termination proceedings in section 78A–6–115, the section containing the hearsay exception, suggests that the section as a whole was intended to address both adjudication and termination proceedings. SeeUtah Code Ann. § 78A–6–115(2)(b)(ii), (4)(a), (5)(b)(ii).

¶ 10 The language contained in some of those provisions further supports this conclusion. See generally Miller v. Weaver, 2003 UT 12, ¶ 17, 66 P.3d 592 (“We read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters.”). First, section 78A–6–115(4)(a) permits the admission of “written ... material relating to the minor's mental, physical, and social history and condition” “[f]or the purposes of ... establishing the fact of abuse, neglect, or dependency in adjudication hearings and in hearings upon petitions for termination of parental rights.” Utah Code Ann. § 78A–6–115(4)(a) (emphasis added). Mother reads this provision as indicating that termination hearings are distinct from adjudication hearings in which “the fact of abuse, neglect, or dependency” is established; in other words, she suggests that one establishes the fact of abuse, neglect, or dependency only in adjudication hearings. However, Mother's reading is inconsistent with the grammatical structure of the provision. The phrase “in adjudication hearings and in hearings upon petitions for termination of parental rights” is a conjunctive prepositional phrase, the entirety of which modifies the verb “establishing.” Thus, this provision clearly contemplates that “the fact of abuse, neglect, or dependency” may well be relevant in termination hearings as well as adjudication hearings. Because the hearsay exception applies where “the fact of abuse, neglect, or dependency” is at issue, it stands to reason that it would apply in the context of termination proceedings.

¶ 11 Furthermore, section 78A–6–115(5), which identifies the deadlines for disclosing information that will be used in a hearing under the Juvenile Court Act, specifically lists different deadlines for termination hearings and dispositional hearings. Id. § 78A–6–115(5). This suggests that the legislature had the wherewithal to distinguish between the two types of proceedings in that context and, thus, would have presumably done so in the subsection containing the hearsay exception as well had it intended for that provision not to apply to termination proceedings. For all these reasons, it is apparent from the plain language of the statute that the legislature intended for the hearsay exception to apply to termination proceedings.

II. Mother Has Not Preserved Her Argument that the Hearsay Exception Is Unconstitutional as Applied in the Context of Termination Proceedings.

¶ 12 Mother also asserts that permitting someone in a trust relationship with the child to testify about statements made by the child in a termination hearing where the child was not available to testify and no finding of unavailability was made violates her due process right to confront witnesses. “[T]he right to raise one's children is a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution.” Campbell v. Campbell, 896 P.2d 635, 641 (Utah Ct.App.1995); see alsoUtah Code Ann. § 78A–6–503(1) (LexisNexis 2012). Accordingly, that right may not be terminated without due process of law. See In re S.A., 2001 UT App 307, ¶ 12, 37 P.3d 1166 (citing U.S. Const. amend. XIV (“No...