Child Welfare: Court Cannot Reduce a Parent's Parent-Time at Review Hearing if Parent Objects Prior to the End of the Hearing

E.D. v. State of Utah, 2013 UT App 162  Utah Court of Appeals Court June 27, 2013

Father appeared at review hear at which the court awarded custody of the parties' minor child to Mother.  Father objected at the very end of the hearing and requested an evidentiary hearing.  The Court denied the motion. Father appealed.

The Court of Appeals found that Father's objection was timely under U.C.A section 78A-6-1103 and that based on his objection he was entitled an evidentiary hearing.  However, on appeal, Father failed to demonstrate that if an evidentiary hearing had been held, that he would have obtained a different result.  Because he failed to demonstrate prejudice, the Court of Appeals found this to be harmless error and chose not to reverse the trial court.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/JV_cb036011013.pdf 

No Right to Competency Hearings + No Need to be Competent to Stand Trail in Child Welfare Matters

M.B. v. State of Utah, 2013 UT App 7, Utah Court of Appeals, January 10, 2013

M.B. moved for a stay of the trial until her competency could be determined.  The trial court denied the motion and terminated Mother’s parental rights.  Mother now appeals.

The Court of Appeals affirmed and found that Mother did not have a right to a competency hearing. Further, putting her competency at issue actually could hurt her case because incompetence is a ground for termination of parental rights. See U.C.A. §§ 78A-6-507(c) and 78A-6-503(12).  Further, based on the findings made by the trial court Mother was not incompetent.  There may not had been a hearing on that issue, but the trial court made several findings as to competency based on the psychological evaluation submitted into evidence and Mother’s own testimony.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/JV_cb036011013.pdf

UCCJEA: Presence of the Child is the Only Requirement for Temporary Emergency Jurisdiction and Temporary Emergency Jurisdiction Can Ripen into Full Jurisdiction.

In re: Z.Z. et al; K.Z. and V.Z. v. State of Utah, 2012 UT App 317, Utah Court of Appeals, November 8, 2012

DCFS filed a Petition for Custody, Mother and Father fled with the children.  The Juvenile Court closed the case neither the children nor their parents resided in Utah.

Later the children were left in Utah with family.  However, neither Mother nor Father picked up the children on the designated date and another Petition was filed.  On the morning of the trial, Father’s motion to continue was denied and Mother and Father had their parental rights terminated.

Parents’ motions for new trials were denied.  Parents appealed.

Parents argued that the Utah Court did not have jurisdiction because Utah was not the home state of the children and had lost.  The Court of Appeals disagreed; they found that the parents’ abandonment of the children gave the Utah Court temporary emergency. 

The Court further found Colorado did not have jurisdiction over the minor children because, they had insufficient evidence to conclude that the children had resided in Colorado for the requisite 6 months.

Lastly, there is no absolute right to be present at the termination trial.  No due process was violated when the Motion to Continue was denied.

Affirmed.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/JV_zz110812.pdf

Child Welfare: Strict Due Process Not Required and Court’s Failure to Allow Withdrawal of Admissions is Harmless Error

In Re: A.K. (H.K. v. State of Utah), 2012 UT App. 232, Utah Court of Appeals, August 16, 2012

Mother and children were under Juvenile Court jurisdiction.  Mother failed to comply with the reunification plan and attempted to flee with the children.  The children were removed from Mother.

The State petitioned to terminate mother’s rights.  The State sought discovery from mother in the form of 206 Requests for Admissions.  Mother gave a blanket denial on the last possible day and later admitted to 126 of the requests.  The trial court found mother’s blanket denial ineffective and deemed all 206 admitted, granted the state summary judgment as to unfitness and held a trial as to best interests.  The trial concluded in the termination of mother’s parental rights.  Mother appealed the trial court’s action of deeming the requests admitted, and the trial court’s failure to hold a shelter hearing after the final removal.

The Court of Appeals found the right to due process (i.e. the request for a shelter hearing) was not violated by the lack of a shelter hearing because mother admitted to sufficient grounds for the removal.  Even if the shelter hearing was required and was held the result would have been held, the result would be the same.

The Court of Appeals also found that the trial court’s alleged misconduct as to the Request for Admissions could be no more than harmless error. This is because Mother admitted to 126 of the requests and the remaining requests were proven by testimony.

Lastly as to mother’s criticism of the Court of Appeals manner of handling juvenile court matters (i.e. awarding special deference to conclusions of the juvenile court), the Court of Appeals again rejects any need for de novo review of child welfare cases.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/JV_ak081612.pdf

Relinquishments Are Forever, Even When Not in the Best Interests of the Children.

In Re R.B.F.S. (B.J.M. and A.F.M. v. B.S.), 2012 UT 132, May 3, 2012

This case came to the Court of Appeals on Remand after In re R.B.F.S., 2011 UT 46, Utah Supreme Court August 2, 2011.  In August 2005, Father relinquished his parental rights and consented to the adoption by Mother’s (then unknown) future spouse.  The judge in the divorce matter rejected the stipulation because there was no Stepfather at that time, and because a relinquishment in District Court is only enforceable in conjunction with an adoption.

In April 2007, Mother and her new husband filed a Petition for adoption and incorporated Father’s relinquishment and Consent.  They did not notify Father.  The District Court terminated Father’s parental rights.  Father by way of letter objected to the district court decision.  Judge Hilder treated the letter as a motion to reconsider and denied the motion.  Father appealed on several grounds including jurisdiction.  The Court of Appeals set aside the termination and adoption because it found that the trial court did not have jurisdiction.  Mother petitioned for cert.  The Supreme Court the district court did have jurisdiction and remanded the matter to the Court of Appeals to consider Father’s other grounds.

Father asserts that the denial of the acceptance of the relinquishment became the Law of the Case and should not have been overturned by the second Judge.  Father also asserted that he should have been permitted to testify in regards to the Children’s’ best interests.

The Court of Appeals found that the law of the case doctrine does not prohibit a court from reconsidering issues that have been decided, but allows the court to decline to revisit decided issues.  Because the record does not show the existence of a completed adoption, the Court of Appeals declines to rule on the Court’s failure to consider Father’s testimony because Father’s claim is not yet ripe.

Finally, the Court found that the statute does not require a best interest analysis on its face and that Father failed to assert any Constitutional grounds to conduct such an analysis.  The Court takes considerable time in explaining its concern about the current Utah adoption act and calls on legislators to revise the act.

Affirmed

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/rbfs050312.pdf

Appellate Procedure: Parties Cannot Stipulate Around Mootness

In Re L.O. (Navajo Nation v. State), 2012 UT 23, April 13, 2012

L.O. was a minor child and member of the Navajo Nation.  DCFS removed L.O. from the child’s parents and placed with a foster family.  L.O.’s parents relinquished their parental rights, and a Petition for Adoption was filed.  The Navajo Nation objected to the adoption and moved to transfer jurisdiction to the Nation.  The Juvenile Court denied the motion because the Nation had waited too long, and allowed the foster parents to adopt.  The Nation Appealed.

Before the Appeal could be heard, the Nation consented to the adoption.  However, DCFS and the Nation agreed that the issues would not be mooted and that the appeal could go forward because of the important public policy grounds.

The Court of Appeals dismissed the case because the issues were moot.  The Nation petitioned cert which resulted in this opinion.  The Supreme Court affirmed the Court of Appeals and found that the parties cannot stipulate around mootness.  In short, if the issue is dead, the parties cannot resurrect the issue by agreeing that it is alive.  This case also failed to qualify for moot-review because that is likely to evade review because of the short duration of the claim at issue.

Full opinion available at:  http://www.utcourts.gov/opinions/supopin/AdoptLO1223041312.pdf

Contested Adoptions: Still a Race to the Courthouse and GAL Fees Can Be Awarded on Bad Faith Grounds

In Re A.W. (BWH and SH v. State), 2012 UT App. 109, March 13, 2012

BWH and SH were Foster-parents to A.W.  A.W. was removed because of allegations of sexual abuse.  A.W. was placed in respite care and adopted.  Prior to the completion of the Adoption, BWH and SH Petitioned to adopt A.W.  Their Petition failed to meet minimal procedural guidelines.  Further, DCFS supported allegations of sexual abuse against Foster-father, Foster-parents allowed their license to lapse, and Foster-father was convicted of disorderly conduct.  The trial court refused to join the cases and ultimately dismissed Foster-parent’s petition.  The Court also awarded fees to the Guardian ad Litem because the Petition was brought in bad faith and the GAL substantially prevailed. Foster-parent’s appealed.

The Court of Appeals affirmed the trial court’s dismissal of Foster-parent’s petition for adoption.  Because of the procedural failings, and the impossibility of placement with Foster-parent’s based on Father’s actions the Court found that the dismissal of Foster-parents was appropriate.  The Court of Appeals also found that because of the impossibility of prevailing on the merits the award of attorney fees to the Guardian ad Litem was appropriate.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/JV_aw041212.pdf

In a Protective Supervision Case, Court Not Required to Provide Strict Procedural Due Process
K.D. v. State, In Re C.F., 2012 UT App 10, January 12, 2012

Children were removed by DCFS.  Legal and physical custody were later returned to Father.  The Juvenile Court retained Protective Supervision (PSS) case with the family.  While the PSS case continued, the children were exposed to a domestic violence incident involving Father and Mother.  Based on that incident, the court removed the children and set a hearing on Father’s motion for reunification services.  The juvenile court indicated no other purpose beyond addressing Father’s motion.  At that hearing, the Juvenile Court denied reunification services and at trial, terminated Father’s parental rights.  Father appealed.

The Court of Appeals found that because the court’s jurisdiction had not ended and had not modified the finding of neglect, Father was not entitled to a specific hearing on the permanency goal.  Father had a permanency hearing prior to custody being returned.  The hearing on Father’s motion fulfilled all statutory due process requirements because Father was able to present evidence and challenge the State’s allegations.  Further, because the Court maintained jurisdiction, Father was on notice that the goal for the children and custody of the children could be modified by court without further notice.  Affirmed.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/AMDJV_kf011212.pdf

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

Termination of Parental Rights Must Be in Child’s Best Interests

A.A. v. State of Utah, 2011 UT App. 397, Utah Court of Appeals November 25, 2011

District Court terminated Mother’s (A.A.’s) parental rights based on Mother’s unfitness because of mental illness.  Mother appealed and argued that the termination was not in the child’s best interest.

Mother argued that Daughter does not want to be adopted.  Daughter was having visits with mother and the state argued that such visits were an impediment to Daughter being adopted.  Several adoptive homes were tested, but at the time of trial and continuing during appeal is the fact that the child has no current prospective adoptive home.  While the lack of an adoptive placement does not preclude termination, it is a relevant factor.  Mother and daughter had established a loving relationship.  While Mother could not care for her daughter, the visits with Mother had been an integral part of the setting in which Daughter had flourished.  While Mother admits she is unfit, and generally terminating an unfit parent is in the child’s best interests, this is an exception.  Reversed and Remanded.


Full Decision Available at :http://www.utcourts.gov/opinions/appopin/JV_dra112511.pdf

Rebuttal Evidence Need Not Meet the Same Standard as a Prima Facie Case

R.E. v. B.B., 2011 UT 51, Utah Supreme Court August 23, 2011

Father and Mother divorced in 2003.  Father sporadically exercised his parent-time with the parties’ minor child.  On one visit, when mother picked up the child, the child smelled of marijuana. On that basis, Mother obtained a protective order, which prohibited Father’s contact with the child from February 2004 to December 2005.  In December 2005, Mother filed a Petition to Terminate Father’s Rights.  It was denied. Because the parents could not get along, Father’s mother would arrange the visits.  After a visit on April 1, 2007, Mother ceased to take Grandmother’s calls.  In 2007, Mother reinitiated her attempts to terminate Father’s parental rights on the grounds of abandonment. 

The trial court found that Father had abandoned the child shown by his lack of contact with the child for more than 6 months.  The Court of Appeals affirmed.  Father Appealed.

The Supreme Court found that while Mother had met the prima facie case for abandonment by showing a 6 month period with no contact, Father’s evidence need not rise to the level of clear and convincing in order to properly rebut the presumption of abandonment.  Instead Father must only persuade the fact finder that the petitioner has not established abandonment by clear and convincing evidence.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/TE082311.pdf

Right to Counsel in Child Welfare Case is Not a Constitutional Right

State in Re: J.R.G.F., R.F and R. G. v. B.A.F. and T.F. 2011 UT App 97 (Utah Court of Appeals, March 24, 2011).

The trial court terminated Mother’s and Father’s parental rights.  Mother and Father appealed and claimed that they were not informed of their statutory right to counsel prior to trial.  The court also denied their request for counsel mid-way through trial. 

The Court of Appeals found that even if what Mother and Father claimed was true, they must show that the denial of counsel prejudiced their case.  The statutory right to counsel under the child welfare act is different than a constitutional right to counsel.  With a statutory right to counsel, there is no presumption of prejudice when counsel has been denied.  To demonstrate prejudice the party must show a reasonable likelihood of a different outcome if the error had not been made.  Mother and Father failed to meet the burden because of the substantial evidence against them, including: both parents had lengthy criminal histories; both had failed to pay child support; both failed to consistently visit the child.  Conversely the adoptive placement provided a stable loving home, and the individuals were the only consistent parental figures in the child’s life.

Full Decision available at http://utcourts.gov/opinions/juv/JV_jrgf032411.pdf

In Child Welfare Trials, Parties are Permitted to Present Additional Evidence After the Initial Close of Their Case.

State of Utah In Re: M.G., M.G. v. State of Utah, 2011 UT App 5 (Utah Court of Appeals January 6, 2011).

At trial for termination of parental rights, the State presented its case and Father presented his defense.  At the close of Father’s case, he challenged the sufficiency of the evidence to terminate his parental rights.  The Juvenile Court stated that it had to alternatives (1) to dismiss the petition and require the state to refile, or (2) allow both parties the opportunity to put on additional evidence.  The Juvenile court chose the second option and reopened the case to accept further evidence.  At the conclusion of trial, the Juvenile Court terminated Father’s parental rights.  Father appealed.

On appeal, the Court of Appeals determined that it is within the Juvenile Court’s sound discretion to allow additional evidence to enable the Juvenile Court to make an informed decision.  This is based on the highly equitable nature of the Juvenile Court and the requirement to consider the best interest of the child in child welfare cases.

Note: It is the author’s belief that this decision could be used in all family law cases regarding the best interests of the child (i.e. if you lose on day one ask for an additional day to present further evidence)

Full Decision available at http://www.utcourts.gov/opinions/appopin/JV_mg010611.pdf