State v. State

302 P.3d 485

734 Utah Adv. Rep. 26

STATE of Utah, in the interest of M.J. and T.J., persons under eighteen years of age.J.J., Appellant,

v.

State of Utah, Appellee.

No. 20120560–CA.

Court of Appeals of Utah.

May 16, 2013.

Neil D. Skousen, for Appellant.

John E. Swallow and John M. Peterson, Salt Lake City, for Appellee.

Martha Pierce, Guardian ad Litem.

Before Judges McHUGH, DAVIS and CHRISTIANSEN.

Opinion

McHUGH, Judge:

¶ 1 J.J. (Mother) appeals the juvenile court's order terminating her parental rights in M.J. and T.J. (collectively, the Children), claiming that there was insufficient evidence to demonstrate that termination was in the Children's best interests. We affirm.

BACKGROUND

¶ 2 Mother's history with the juvenile court and the Division of Child and Family Services (DCFS) dates back to 2003. By 2005, DCFS had removed Mother's and A.J.'s (Father) three older children due to repeated incidents of domestic violence in their presence. Eventually, both Mother and Father voluntarily relinquished their parental rights to those three children, who were later adopted by Adoptive Mother and Adoptive Father (collectively, the Adoptive Parents).

¶ 3 Mother and Father subsequently had two additional children who are the subject of these proceedings: M.J., born in 2009, and T.J., born in 2010. In August 2010, the State successfully filed a motion and petition seeking expedited custody for the removal of the Children, based primarily on domestic violence in the home. After the Children were removed, DCFS contacted the Adoptive Parents to inquire whether they wished to be foster parents to the Children. The Adoptive Parents declined because Adoptive Father had recently lost his job and they were not in a financial position to take the Children.

¶ 4 On September 13, 2010, the juvenile court allowed the Children to return to Mother because Father was incarcerated and a protective order was in place. However, Father was released from jail the following day. Father repeatedly violated the protective order, and he and Mother resumed their pattern of engaging in multiple incidents of domestic violence in the presence of the Children. As a result, the juvenile court issued a warrant to take the Children into DCFS custody on November 2, 2010.

¶ 5 After a permanency hearing on December 2, 2010, the juvenile court adopted a reunification plan that required Mother to participate in a mental health evaluation and domestic violence counseling, and to secure employment and housing. The original foster placement proved unsuccessful and, in July 2011, DCFS sought a new foster arrangement for the Children. The DCFS caseworker (the Caseworker) again considered placing the Children with the Adoptive Parents. However, they were not licensed as foster parents at that time. Therefore, the Children were placed with their current Foster Mother and Foster Father (collectively, the Foster Parents). During the following year, the juvenile court had numerous hearings to monitor Mother's progress toward reunification. At no point during these hearings did Mother object to the Children's placement with the Foster Parents, or suggest that they should be placed with the Adoptive Parents.

¶ 6 At a permanency hearing on December 15, 2011, the Caseworker informed the juvenile court that Mother had been lying about participating in domestic violence treatment. Based upon Mother's failure to begin domestic violence treatment and her continued lack of stable housing, the juvenile court found that Mother was no longer in substantial compliance with her treatment plan and terminated reunification services. The juvenile court then granted Mother's counsel's request for an assessment of Mother's relationship with the Children (Assessment) and instructed the parties to agree upon a therapist.

¶ 7 The State filed a petition for termination of Mother's parental rights on January 9, 2012. At the pretrial hearing, the parties agreed that Dr. Darin Featherstone would complete the ordered Assessment. The matter was then continued, pending its completion.

¶ 8 Dr. Featherstone completed the Assessment in March 2012. Dr. Featherstone interviewed Mother, the Foster Parents, the Caseworker, and the Children's Guardian ad Litem. He also compared the interactions between the Children and the Foster Parents to the interactions between the Children and Mother. In addition, Dr. Featherstone reviewed the DCFS files and other relevant documents. Based on that information, Dr. Featherstone concluded that (1) Mother failed in her efforts to assume a “primary ‘parenting role’ ” and the Foster Parents had assumed that role; (2) Mother neglected the Children and failed to protect them from harm, whereas the Foster Parents had never neglected the Children's needs; (3) the Children rely upon their Foster Parents for their physical, emotional, and psychological well-being and have formed “critical attachments” to them; (4) separating the Children from their Foster Parents would be psychologically and emotionally damaging, whereas separation from Mother would cause little, if any, psychological damage to the Children; (5) Mother failed to provide for the Children's basic needs, while the Foster Parents have done so; and (6) Mother failed to substantially or consistently contribute to the Children's “emotional needs, personal well-being and financial requirements.”

¶ 9 At the termination trial on April 13, 2012, Father voluntarily relinquished his parental rights in the Children. Thereafter, the Caseworker testified extensively regarding Mother's efforts to comply with her service plan. He explained that she was homeless, that she continued to struggle with attending individual therapy, that she had lied about attending domestic violence classes, and that she had failed to complete her domestic violence assessment until January 2012. The Caseworker further stated that the Children were “doing really well with [Foster Parents]” and the Foster Parents had “consistently provided for [the Children's] ... [therapeutic] needs.” Concerning the potential placement of the Children with the Adoptive Parents, the Caseworker indicated that they were not in a position to take the Children when they were originally removed and that they were not a licensed placement when the Children were moved to a new foster arrangement in July 2011.

¶ 10 Dr. Featherstone also testified at the termination trial. He indicated that the FosterParents were the Children's primary attachment figures, that a permanent custody and guardianship arrangement or long-term foster care arrangement would not be appropriate, and that the additional disruption of placing the Children with the Adoptive Parents would be a “risk” to their well-being. Additionally, Dr. Featherstone indicated that the Children had no existing bond with their older siblings, who had been adopted before the Children were born. According to Dr. Featherstone, visitation with their older siblings could be problematic for the Children.

¶ 11 Foster Mother also testified, indicating that she and Foster Father wished to adopt the Children. Foster Mother opined that although the Children enjoyed Mother's visits, the Children tended to regress in their development after visits with Mother. She believed the Children would be fine if they lost contact with Mother but also indicated that she would be willing to allow the Children to have contact with their older siblings.

¶ 12 Next, Adoptive Mother testified, indicating that she would like the Children to be placed in her care because it is “really important that [the Children and the older children] know each other and that they ... have that opportunity to ... grow up together in the same home.” However, Adoptive Mother admitted that neither she nor any of Mother's older children had any relationship with the Children. Adoptive Mother also indicated that she first contacted DCFS regarding placing the Children in her care in March 2012, and that she had not contacted DCFS previously because she believed the Children would be reunited with Mother.

¶ 13 During Adoptive Mother's testimony, Mother's counsel argued for the first time that federal law mandated that DCFS make reasonable efforts to place the Children with their biological siblings and, if not, to document why such a placement did not take place. The juvenile court explained that the question of the Children's ultimate placement was one that could be addressed post-termination, but Mother's counsel disagreed. After Mother's counsel asked for and was granted leave to brief this issue, the juvenile court continued the termination trial.

¶ 14 On April 24, 2012, Mother filed a motion to place the Children with the Adoptive Parents, arguing that DCFS had a duty to place the Children with their older siblings under DCFS guidelines, Utah Code section 78A–6–312, and 42 U.S.C. § 671. The State and the Guardian ad Litem opposed the motion, arguing that placement is not relevant to a termination proceeding and that it would not be in the best interests of the Children to be separated from the Foster Parents.

¶ 15 When the termination trial resumed on May 3, 2012, the juvenile court dismissed Mother's motion for placement with the Adoptive Parents. In its ruling, the juvenile court emphasized that it considered the question of whether the Children should remain in their current placement or be transferred to the Adoptive Parents irrelevant to whether Mother's parental rights should be terminated. The juvenile court also expressed concern that the motion to transfer custody was not made by anyone representing the Adoptive Parents. The juvenile court again explained that it could consider any competing adoption petitions at a post-termination review or at a pre-adoption hearing. The juvenile court stated,

It would be my intent in this case that if, in fact—and that's not a sure thing—that Mother's parental rights were terminated, that I take a careful...