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

A Party Cannot be Held in Contempt Unless the Order is Unambiguous

State of Utah v. L.A., 2010 UT App 356 (Utah Court of Appeals December 16, 2010).

Mother was held in contempt for failing to comply with an instruction from her minor child’s probation officer.   The parties agreed to assist their child in complying with all probations conditions including transporting the child to meetings with probation department, the juvenile court entered an order on their agreement.  The minor child tested positive for marijuana and the child’s probation officer instructed Mother to bring the child to the detention center.  Mother refused to take the child to detention and was found in contempt.  Mother Appealed.

The Court of Appeals found that the order instructing the parties to provide transportation to meetings was not sufficiently specific to include transporting the child to detention.  Because the order was ambiguous as to whether it required Mother to take the child to detention, or follow such an instruction from the probation officer, the Court of Appeals reversed the finding of contempt.

Dissent: Judge Orme would have found that the order was sufficiently clear to require Mother to comply with the probation officer’s instruction, and thus would have affirmed the Juvenile Court’s order.

Full Decision available at http://www.utcourts.gov/opinions/appopin/JV_la121610.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