State v. State

402 P.3d 206

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

C.S., Appellant,

v.State of Utah, Appellee.

No. 20160326-CA.

Court of Appeals of Utah.

Filed August 17, 2017

Liza M. Jones and Harini Venkatesan, Cottonwood Heights, Attorneys 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 C.S. (Mother) appeals the termination of her parental rights, challenging the constitutionality of a statute invoked in this case and arguing that the evidence was insufficient to support termination. She also raises a due process challenge. We affirm.

BACKGROUND

¶ 2 Mother has two daughters, one born in March 2008, and the other in June 2009.¹ 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 heart of the petition as it related to Mother was that she was using methamphetamine, sometimes in the children's presence. Following a shelter hearing during which both parents were present and represented by counsel, the juvenile court gave DCFS temporary legal custody and physical custody of the children.

¶ 3 The matter progressed to an adjudication hearing in January 2015, and the juvenile court found by clear and convincing evidence that the petition was true. Mother "has a current substance abuse addiction that negatively affects her parenting abilities." Based on this, the court concluded the children were "neglected by mother" and "dependent child[ren] as to father." It ordered the children into DCFS custody for community placement and ordered DCFS to create a plan to address their needs. It authorized Mother to have supervised visits and ordered her to submit to a substance abuse assessment and random drug screens and to contact DCFS "at least once a week." Both parents attended this hearing, with counsel.

¶ 4 The court conducted a disposition hearing as to Mother in February 2015. It found that DCFS's service plan "constitutes reasonable efforts on the part of [DCFS] to reunify the mother with her children." The children continued in DCFS custody, with a permanency goal of "reunification with a concurrent goal of adoption." Later that month, the court conducted another disposition hearing in which it found that "reunification services for the father [were] not detrimental to the children" and ordered "DCFS to provide reasonable reunification services for the father and children." During that hearing, the court also "authorize[d] a trial home placement with the mother once approved by the child and family team."²

¶ 5 A review hearing in August 2015, which Mother did not attend, resulted in the court rescinding the order for trial home placement. After that, DCFS filed a verified petition for seeking termination of parental rights as to both parents, alleging among other things, that Mother had stopped attending therapy through her initial program, and although she was referred to a second program, had failed to attend the required sessions there. Additionally, she missed a dozen urine tests, refused one test, and at another time tested positive for cocaine and methamphetamine.

¶ 6 The termination of parental rights petition proceeded to trial beginning in December 2015 and intermittently continued into April 2016. In total, there were eleven days of trial over approximately four months. Between the first and second days of trial, Mother was arrested. In mid-January, DCFS moved to amend its petition on the ground that "[c]ircumstances regarding the parents have changed in the nearly four months since the State filed its petition." The new allegations included Mother's early January arrest for driving under the influence and other crimes. Mother opposed the motion to amend the petition, but the court permitted it, although "[t]o ensure due process," the court granted "defense counsel additional time to address the new allegations."

¶ 7 The court ultimately terminated Mother's parental rights. It found that (1) she "failed to successfully comply with the Court's orders and her Service Plan"; (2) "[t]he children cannot be safely returned to [Mother]"; (3) "[she] is an unfit parent" due to her addiction to and use of controlled substances, which was the reason she initially lost custody of the children, and "[i]ndeed, [Mother] is in need of treatment at a higher level of care at the end of the termination trial than what she needed at the beginning"; (4) she "is also an unfit parent because of her continued criminal activity," including five arrests and incarcerations while the case was pending, three of which were "during the course of the termination trial"; (5) Mother "has not remedied the reasons for the removal of her children and there is a substantial likelihood that [she] will not be capable of exercising proper and effective parental care in the near future"; (6) Mother "has had a failure of parental adjustment" and "has been unwilling or unable within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of her children outside of her home" despite DCFS's "reasonable and appropriate efforts to provide services to [Mother]"; and (7) Mother "has made only token efforts to support her children."

¶ 8 Based on its findings, the juvenile court concluded that Mother neglected the children and was an unfit parent, justifying termination of her parental rights, and that she

ha[d] substantially neglected, willfully refused or has been unable or unwilling to remedy the circumstances that caused the children to be in an out-of-home placement and there is a substantial likelihood that [Mother] will not be capable of exercising proper and effective parental care in the future, justifying termination of her parental rights.

All of this, combined with her "failure of parental adjustment" and "only token efforts to support" the children, justified termination. The juvenile court also concluded that termination would be in the children's best interests. Accordingly, it terminated Mother's parental rights. Mother appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 9 Mother raises three issues on appeal. First she contends the court erred by admitting hearsay statements under an unconstitutional statute. We review constitutional issues for correctness. See In re L.M. , 2013 UT App 191, ¶ 5, 308 P.3d 553. Second, Mother contends the court violated her right to due process. Whether "a parent has been afforded adequate due process is a question of law, reviewed for correctness." In re Z.Z. , 2013 UT App 215, ¶ 9, 310 P.3d 772 (citation and internal quotation marks omitted). Third, Mother contends there was insufficient evidence for the court to make a number of its findings. "Whether a parent's rights should be terminated presents a mixed question of law and fact." In re B.R. , 2007 UT 82, ¶ 12, 171 P.3d 435. "Because of the factually intense nature of such an inquiry, the juvenile court's decision should be afforded a high degree of deference." Id. "Thus, in order to overturn the juvenile court's decision the result must be against the clear weight of the evidence or leave the appellate court with a firm and definite conviction that a mistake has been made." Id. (brackets, citation, and internal quotation marks omitted).

ANALYSIS

I. Any Error in Admitting the Hearsay Statements Was Harmless.

¶ 10 Mother's first contention involves several hearsay statements that the children's foster mother (Foster Mother) made during her testimony at trial. Foster Mother testified regarding the children, their adjustment and behaviors, and her experience with them. She also testified to several statements the children made to her, including that they feel safe in her care, that they want to live with the foster family but feel guilty about not living with Mother, and that they worry about Mother when she misses her visits with them. Mother argues the juvenile court erred in allowing testimony of the children's statements because the statements were inadmissible hearsay.

¶ 11 Under Utah Code section 78A-6-115, hearsay statements from children under eight years old are admissible if they are made "to a person in a trust relationship" for "the purpose of establishing the fact of abuse, neglect, or dependency." Utah Code Ann. § 78A-6-115(6) (LexisNexis 2012). The juvenile court determined the children had a trust relationship with Foster Mother and allowed the statements. On appeal, Mother raises a number of issues challenging the constitutionality of this statutory provision.

¶ 12 We do not address this constitutional issue because, even if the court erred by admitting the hearsay statements, we determine that any error in admitting such evidence was harmless. Cf. In re I.M.L. , 2002 UT 110, ¶ 9 n.3, 61 P.3d 1038 ("Generally, we avoid reaching constitutional issues if a case can be decided on other grounds."); In re W.A. , 2002 UT 127, ¶ 46, 63 P.3d 607 (declining to address the constitutionality of a statute where the court could affirm the termination of parental rights on other grounds). Harmless error "is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings." H.U.F. v. W.P.W. , 2009 UT 10, ¶ 44, 203 P.3d 943 (citation and internal quotation marks omitted).

¶ 13 We see no reasonable likelihood that these three hearsay statements affected the outcome of the proceedings. In terminating Mother's parental rights, the juvenile court elaborated on five different termination grounds, see infra ¶ 40, concluded that termination was in the children's best interests, see infra ¶¶ 44–46, and additionally concluded DCFS had provided Mother with reasonable reunification efforts, see infra ¶¶ 47–51...