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State ex rel. C.J. v. State

Court of Appeals of Utah

July 28, 2017

State of Utah, in the interest of C.J., a person under eighteen years of age.
v.
State of Utah, Appellee. R.C., Appellant,

         Fifth District Juvenile Court, Cedar City Department The Honorable Thomas M. Higbee No. 1099672

          Matthew D. Carling, Attorney for Appellant

          Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee

          Martha Pierce, Guardian ad Litem.

          Judge Kate A. Toomey authored this Opinion, in which Judges J. Frederic Voros Jr. and Jill M. Pohlman concurred.

          TOOMEY, JUDGE:

         ¶1 C.J. (Child) lived with S.J. (Mother) and was occasionally left in the care of R.C. (Father). When Child was eight months old, the juvenile court ordered her removal from Mother due to parental neglect. Father sought reunification with Child, but ultimately the juvenile court terminated his parental rights. He appeals that decision, challenging the sufficiency of the evidence to support termination and arguing that one of our rules of appellate procedure is unconstitutional. Because the evidence supporting termination is substantial, and because the Utah Supreme Court has decided Father's constitutional argument in another case, we affirm.

         BACKGROUND

         ¶2 Child was born premature and underweight and was in Mother's and maternal Grandmother's care for approximately the first five months of her life. Mother then left Grandmother's residence, and Child was thereafter cared for by Grandmother, who occasionally left her in the care of Father. Several months later, the Division of Child and Family Services (DCFS) successfully petitioned for her removal from Mother's custody for neglect. The juvenile court considered placing Child with Father, but it determined his situation was unsafe for Child because Father lived with his father (Grandfather), who abused substances "including oxycodone, oxymorphone, and methamphetamine" while he was also using methadone. By May 2014, Child was in DCFS custody.

         ¶3 When DCFS first became involved with Child, she was seven months old and weighed just ten pounds. She suffered constipation as well as "severe reflux" that triggered vomiting after she ate. She also was born with an ankle condition that required her to use braces. Before being placed with her foster parents, Child was diagnosed with "failure to thrive syndrome, " which can be caused by parental neglect.

         ¶4 Eventually the juvenile court adjudicated Child neglected by Mother and ordered reunification services for both parents. In Father's case, the services included a child and family plan requiring him to: (1) undergo a psychological evaluation; (2) complete parenting classes; (3) find stable housing; (4) obtain stable employment; (5) remain drug and alcohol free; (6) develop a plan to live independently from Grandfather; (7) form healthy relationship boundaries with family; and (8) attend individual therapy.

         ¶5 In May 2015, the juvenile court conducted a permanency hearing and found that Child could not safely return to either parent, reunification was unlikely to occur within ninety days, neither parent had substantially complied with the respective child and family plan, and it was not in Child's best interests to return to either parent. In Father's case, the court focused on his failure to find housing separate from Grandfather, even though Father knew it was required by his plan, particularly because Grandfather's substance abuse issues remained unaddressed. The court was also concerned about Father's limited parenting skills, even after months of services to help him improve them. It changed Child's permanency goal from reunification to termination of each parent's rights.

         ¶6 Mother voluntarily relinquished her rights, but Father proceeded to trial. After trial and supplemental briefing, the juvenile court issued Findings of Fact and Conclusions of Law in support of its decision to terminate Father's parental rights. It determined that Child was "abused, neglected and dependent" based on Mother's conduct during Child's early infancy, and as to Father, that he was "dependent upon [Grandfather] to provide housing and other needs"; he "appear[ed] to have mental health issues"; at one time he lived with a girlfriend who was "low-functioning" and who "inappropriately cared for [Child] on more than one occasion"; he "live[d] in a home where there is significant substance abuse" although his own drug tests were "clean"; and while most of the fault lies with Mother, "the actions and inactions of the Father constitute[d] neglect of [Child]."[1]

         ¶7 The court catalogued the mixed success of reunification efforts. It noted that the plan to address Father's "parental deficiencies[2] consisted of parent training, remaining drug and alcohol free, psychological and parental fitness evaluations, individual therapy if recommended, and stable housing and employment independent of [Grandfather]." It individually addressed these subjects, finding that (1) Father "was still unsteady in his parenting skills, but did improve"; (2) the psychological evaluation "was ultimately determined to be invalid"; (3) Father was "way late getting into individual therapy, " and once he began participating, "he did not do so to the point sufficient to identify and remedy [his] psychological, relationship and parenting flaws"; (4) Father "complied with the requirements of the service plan as it relates to his drug use"; (5) Father "improved his employment, " which although it was inadequate to support himself and Child, was "certainly an improvement and is one sure sign ...


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