Guardianship Placement May Lead to Change in Home-State of Child.

D.T. and S.T. v. C.M., 2011 UT App 407, Utah Court of Appeals December 1, 2011

Parents of 2 children had given voluntary custody and guardianship of the minor child to their older daughter, Sister.  Sister refused to return the child, and Parents moved the Court to terminate the voluntary guardianship.  The Court granted the motion.  Sister then obtained a protective order on behalf of the minor child and petitioned the Court to terminate parents’ parental rights based on Father’s sexual abuse of Sister and the minor child, and Mother’s facilitation of the abuse.  Parents moved to dismiss the petition to terminate their rights because Tennessee was the child’s home state.  The juvenile court found that, in spite of parents’ argument, Utah was the home state, but was an inconvenient forum.  Tennessee declined jurisdiction.  District Court denied the Motion to Dismiss and terminated Parents’ parental rights.  Parents appealed.

The Court of Appeals found that Utah Sister’s did not engage unjustifiable in conduct by retaining custody of the minor child.  Instead, Utah had jurisdiction because the child resided in Utah from April 2007 until November 2007 at the allowance of Parents.  The Court of Appeals also found that there is no violation of due process in excluding the parties from the jurisdictional conversation in the Court-to Court conversation.   Affirmed.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/JV_syt120111.pdf

DCFS Guidelines Are Neither Administrative Rules Nor Statute

K.Y. v. DCFS, (Utah Court of Appeals November 26, 2010).

Juvenile Court found K.Y., a teacher, neglected the student according to DCFS Guidelines’ definition of emotional maltreatment.  The teacher taped the student’s wrists to her desk with a six inch piece of scotch tape for two minutes as a method of discipline.

 

The Guidelines were neither promulgated as rules nor codified in statute and as such were neither rules nor statute and do not have the force of law.  The Juvenile Court based its entire ruling on only the DCFS guidelines, and never considered the statutory definitions of abuse or neglect.

 

The Court of Appeals found that K.Y.’s actions did not meet the statutory definition of neglect.  Additionally, there was insufficient evidence for any finding of abuse, and the JV court did not evaluate whether the teacher’s actions were a form of reasonable discipline.

In short, the JV Court did not use the correct analysis.  Under the correct analysis, K.Y.’s actions were neither neglect nor abuse.  The ruling of the JV court is Reversed.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/JV_ky112610.pdf