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State ex rel A.J.

Court of Appeals of Utah

December 29, 2017

State of Utah, in the interest of A.J. and A.J., persons under eighteen years of age.
v.
State of Utah, Appellee. B.J., Appellant,

         Fourth District Juvenile Court, American Fork Department The Honorable Suchada P. Bazzelle No. 1101463

          Janell R. Bryan, Attorney for Appellant

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

          Martha Pierce, Guardian ad Litem

          Judges Gregory K. Orme and David N. Mortensen concurred.

          OPINION

          CHRISTIANSEN, Judge

         ¶1 B.J. (Father) appeals the juvenile court's order terminating his parental rights to A.J. (Older Child) and A.J. (Younger Child). We affirm.

         BACKGROUND

         ¶2 Father and J.E. (Mother) are the natural parents of Older Child and Younger Child. In June 2014, the Division of Child and Family Services (DCFS) filed a petition for custody after Older Child told a teacher at her school that during a May 2014 argument, Father and Mother had physically pulled her arms and legs in different directions, causing Older Child to "slam[]" her face on the ground. After a shelter hearing, the children were removed from the parents' custody and placed into DCFS's custody.

         ¶3 In July 2014, the juvenile court ordered DCFS to conduct a risk assessment on Father. The risk assessment revealed "serious concerns" that Father had a substance abuse problem. Based on the risk assessment, DCFS recommended that Father submit to random drug tests, reduce his medication dosages, participate in substance abuse treatment, participate in psychological testing and follow any recommendations therefrom, attend a parenting program, and undergo a domestic violence assessment. Although the juvenile court did not order services for Father at that time, DCFS arranged for random drug testing and assessments so that Father could start addressing the identified concerns before adjudication. Father did not participate in any services until they were later ordered.

         ¶4 In February 2015, the juvenile court held a pretrial hearing on the State's amended verified petition to adjudicate the children as neglected. Father entered a plea under rule 34(e) of the Utah Rules of Juvenile Procedure, by which he stipulated to several allegations in the State's amended verified petition and "neither admitted nor denied" other allegations. The juvenile court therefore deemed the allegations in the petition to be true.[1] Among other things, the court found the following allegations to be true: (1) Older Child had been injured as a result of the May 2014 incident between Father and Mother; (2) Father "[has] a substance abuse problem and such problem interfere[s] with [his] ability to parent [the] children"; (3) Father and Mother "have a history of domestic violence"; and (4) "the children have been present during fights between the parents and are impacted by the exposure to domestic violence." The juvenile court adjudicated the children as neglected by Father.

         ¶5 The juvenile court also approved a service plan, which required Father to (1) participate in a mental health evaluation, "specifically [a] psychological evaluation"; (2) submit to a substance abuse assessment; (3) participate in random urinalysis tests; (4) "[s]ign any required releases of information for all medical, psychological, domestic violence, and/or substance abuse treatment providers [and] provide copies to DCFS"; (5) participate in a domestic violence assessment; (6) visit with the children on a regular basis; (7) "[m]aintain stable and appropriate housing"; (8) maintain employment; and (9) participate in a parenting program. The court also directed DCFS to conduct pill counts of Father's medications, and Father acknowledges this included the requirement to take his pills as prescribed.

         ¶6 In March 2015, the juvenile court found that Father had made "[l]ittle progress" with his service plan and scheduled a permanency hearing for June 15. At the permanency hearing, the juvenile court determined that both parents had "failed to participate in, comply with, in whole or part, or to meet the goals of [the] court approved treatment plan" and changed the permanency plan for the children to adoption. Regarding Father specifically, the court observed that Father had attended a substance abuse assessment and was attending the recommended therapy. Father had attended thirty drug tests, but he had also missed forty drug tests. In addition, "DCFS had been conducting pill counts and many of [Father's] prescriptions were off count, indicating he was not using his medications as prescribed." The court observed that Father had completed a psychological evaluation but had not followed the recommendations from that evaluation. Father also had not completed a domestic violence assessment or parenting program. Father's attendance at visits with the children had improved, but he had still missed three out of twelve scheduled visits.

         ¶7 The State filed a petition to terminate the parents' parental rights on July 1, 2015. In the petition, the State asserted that it had been provided with a copy of an independent medical evaluation (the Medical Evaluation) conducted on Father in November 2013. The Medical Evaluation was prepared by Dr. Mattingly in response to Father's complaints of ongoing injuries from a September 2011 work accident. Although Father's doctor had cleared him to go back to work later that year, Father did not return to work, asserting that he had migraines from the work accident. According to the State, Dr. Mattingly had concluded in her evaluation that Father's work injuries had been minor and had stabilized, that Father's complaints of headaches had not been substantiated by any objective findings, and that Father had "opioid dependence and abuse/opioid dependence." The Medical Evaluation also included Father's medical records from September 2011, the time of Father's work accident, to November 2013.

         ¶8 Father filed a motion in limine seeking to suppress both Dr. Mattingly's testimony and the Medical Evaluation. Father observed that the Medical Evaluation included "many pages of [his] Medical Records" and asserted that the Medical Evaluation was "protected by the confidentiality owed him by his physicians and treatment providers." In its response, the State argued that Father's physical and emotional health were at issue and that there was "no violation of confidentiality rules." The State further asserted that Mother had given the Medical Evaluation to DCFS.[2] According to the State, Father "had left [the Medical Evaluation] in the couples' home and allowed [Mother] to have the document"; therefore, Father had waived any privilege to the information in the Medical Evaluation.

         ¶9 The juvenile court did not rule on the admissibility of the Medical Evaluation until the first day of the termination trial in November 2015.[3] The court initially declined to admit the Medical Evaluation but allowed Dr. Mattingly to testify. The court noted that it would strike Dr. Mattingly's testimony if Father did not assert a medical defense justifying "his substance use." Father later presented testimony from one of his doctors, Dr. Dana, that he had prescribed buprenorphine, commonly known as Suboxone or Subutex, based on Father's frequent headaches and migraines.[4] Accordingly, the juvenile court observed that "a medical defense [was] being launched." The court then determined that Dr. Mattingly's testimony had authenticated the Medical Evaluation, and the court admitted the Medical Evaluation in its entirety into evidence.

         ¶10 In its written order terminating Father's parental rights, the juvenile court acknowledged that the Medical Evaluation "was performed at the request of an insurance company opposing [Father's] worker's compensation benefits." Thus, the court determined, "the analysis and conclusions of [the Medical Evaluation] were likely to be biased, " and the court "gave them no weight in reaching its decision." However, the court observed that the Medical Evaluation also contained "a compilation of [Father's] medical history that was a recitation of treatment notes from other treatment providers." The court found that "this section of the evaluation was sufficiently objective to be reliable and useful in understanding the context and history of the medical treatment [Father] received for his work injury." The court stated that it "did rely on Dr. Mattingly's compilation of [Father's] medical records" to assess Father's medical defense "that he was using prescription medications for medical reasons." In its written findings, the juvenile court referred to the medical history from the Medical Evaluation numerous times and concluded that Father "is a drug addict."

         ¶11 The juvenile court terminated Father's parental rights based on five different grounds. The court found that (1) Father had neglected the children "by exposing them to incidents of domestic violence, by not attending to the children's needs, by not providing them a safe and stable home environment, and by exposing them to drug use"; (2) Father was an unfit or incompetent parent based on his "serious substance abuse problem"; (3) the children had been in an out-of-home placement, and Father "has substantially neglected, or has been unable or unwilling to remedy the circumstances that cause[d] the children to be in an out-of-home placement, and there is a substantial likelihood that [Father] will not be capable of exercising proper and effective parental care in the near future"; (4) Father had failed to make a parental adjustment "in that [he] was not able to achieve the goals of the DCFS service plan and demonstrate he could be a responsible parent"; and (5) Father had made "insufficient efforts . . . to support the children, to prevent further neglect of them, to eliminate the risk of serious harm to the children, and to avoid being an unfit parent." The juvenile court also found that it was "strictly necessary" and in the best interests of the children to terminate Father's parental rights.

         ¶12 Father now appeals the juvenile court's order terminating his parental rights.

         ISSUES AND STANDARDS OF REVIEW

         ¶13 Father raises four issues on appeal. First, he contends that "[t]he Medical Evaluation was unfairly prejudicial and required complete exclusion." Second, in a related argument, Father contends that "[t]he Medical Evaluation was a private document and reliance on any portion thereof cannot justify termination of parental rights." "A trial court has broad discretion to admit or exclude evidence and its determination typically will only be disturbed if it constitutes an abuse of discretion." In re L.N., 2004 UT App 120, ¶ 9, 91 P.3d 836 (citation and internal quotation marks omitted). "The existence of a privilege [or an exception thereto] is a question of law, which we review for correctness." State v. Worthen, 2008 UT App 23, ¶ 9, 177 P.3d 664 (alteration in original) (citation and internal quotation marks omitted), aff'd, 2009 UT 79, 222 P.3d 1144.

         ¶14 Third, Father contends that without the Medical Evaluation, "[t]he remaining evidence was insufficient to support termination" of his parental rights. We recognize that juvenile court judges have special training, experience, and interest in their field, as well as the opportunity to judge credibility firsthand; consequently, we review a juvenile court's decision to terminate parental rights deferentially and will not disturb the juvenile court's findings and conclusions unless the preponderance of the evidence clearly militates against the findings made or the court has otherwise abused its discretion. In re A.B., 2007 UT App 286, ¶ 10, 168 P.3d 820; In re R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d 1118. "When a foundation for the court's decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence." In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.

         ¶15 Fourth, Father contends that DCFS failed to make reasonable efforts to provide reunification services. "[D]etermining whether or not DCFS has provided reasonable services to parents requires trial judges to observe facts[] . . . relevant to the application of the law that cannot be adequately reflected in the record available to appellate courts." In re A.C., 2004 UT App 255, ¶ 12, 97 P.3d 706 (second alteration and omission in original) (citation and internal quotation marks omitted). ...


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