District Juvenile Court, Salt Lake Department The Honorable
Julie V. Lund No. 1133541
Sheleigh A. Harding, Attorney for Appellant.
D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys
for Appellee State of Utah.
George, Attorney for Appellee B.J.
Pierce, Guardian ad Litem.
Judges Stephen L. Roth, Michele M. Christiansen, and David N.
PER CURIAM DECISION
B.A.V. (Mother) appeals from an order awarding permanent
custody and guardianship of B.J.V. to his biological and
legal father B.J. (Father) and terminating juvenile court
jurisdiction. We affirm.
"[T]o overturn the juvenile court's decision[, ]
[t]he 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." In re
B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (third
alteration in original) (citation and internal quotation
marks omitted). We "review the juvenile court's
factual findings based upon the clearly erroneous
standard." In re E.R., 2001 UT App 66, ¶
11, 21 P.3d 680. A finding of fact is clearly erroneous when
the court "failed to consider all of the facts or
considered all of the facts and its decision was nonetheless
against the clear weight of the evidence." In re
B.R., 2007 UT 82, ¶ 12. Therefore, "[w]hen a
foundation for the court's decision exists in the
evidence, an appellate court may not engage in a reweighing
of the evidence." Id.
At the adjudication hearing held in September 2016, Mother
entered admissions to the State's amended petition
pursuant to rule 34(e) of the Utah Rules of Juvenile
Procedure. The juvenile court adjudicated B.J.V. to be a
neglected child as to Mother because he lacked proper
parental care by reason of the faults or habits of Mother.
The court adjudicated B.J.V. to be a dependent child as to
Father because he was "without proper care through no
fault of" Father. The juvenile court set a primary
permanency goal for B.J.V. of reunification with Mother and a
concurrent permanency goal of guardianship with Father. The
court placed B.J.V. in the temporary custody of Father with
protective supervision services and took Father's motion
for permanent custody under advisement. The written
adjudication order "set the matter for review on
December 8, 2016 to measure mother's progress and again
address the motion for an order to place [B.J.V.] in the
Permanent Custody and Guardianship of [Father]."
At the adjudication hearing, Mother stipulated to a service
plan requiring her to comply with random drug testing, to
complete substance abuse, mental health, and domestic
violence evaluations, and to complete any recommended
treatment. Mother also stipulated that she could be ordered
to observe drug court. At the December 8, 2016 review
hearing, it was undisputed that Mother left her residential
substance abuse treatment program and did not participate in
drug court, that she had not visited B.J.V. since August
2016, and that she still had outstanding warrants. Mother
argued that she was working to return to residential
treatment and requested another hearing in one month to
review her progress. The State and the Guardian ad Litem
(GAL) joined in Father's renewed motion for permanent
custody and guardianship. During the hearing, Father's
counsel made statements regarding B.J.V.'s condition when
he came into Father's temporary custody. Mother's
counsel argued that an evidentiary hearing should be set as a
result of this new information. The juvenile court denied the
request for an evidentiary hearing.
The juvenile court granted Father's motion for permanent
custody and guardianship and terminated protective
supervision services and juvenile court jurisdiction over
B.J.V. After reciting that Father's renewed motion for
permanent custody had been taken under advisement at the
September 29, 2016 adjudication hearing, the juvenile court
made findings based upon "[u]ndisputed facts detailed in
the court report/progress summary, provided to all counsel
prior to the hearing." The court found those undisputed
facts were that Mother left residential substance abuse
treatment on November 1, 2016, and that she denied she had a
substance abuse problem, wanted to opt out of Family
Dependency Drug court, took a month to meet with the
evaluator after being ordered to do so, missed a drug test,
and "had not visited with the child for months having
just recently made two scheduled visits prior to court."
The report provided to the juvenile court stated
that since being placed with his father, [B.J.V.] was
enrolled in an after-school program, [and] the father ha[d]
hired a tutor to help his son as he is so far behind in
school. He is catching up on grade level work, he is playing
sports in extra-curricular activities, the home is clean,
meets safety standards and the case worker had no concerns
about the parent child relationship or the care [B.J.V.] was
receiving from his father.
court found that Father and B.J.V. were bonded, the child was
cared for appropriately, and Father was obtaining ...