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State ex rel. N.M.

Court of Appeals of Utah

July 19, 2018

State of Utah, in the interest of N.M., a person under eighteen years of age.
v.
State of Utah, Appellee. E.M., Appellant,

          Fourth District Juvenile Court, Provo Department The Honorable Brent H. Bartholomew No. 1113723

          Neil D. Skousen, Attorney for Appellant

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

          Martha Pierce, Guardian ad Litem

          Judge Jill M. Pohlman authored this Opinion, in which Judges Kate A. Toomey and Ryan M. Harris concurred.

          OPINION

          POHLMAN, Judge.

         ¶1 In this appeal, we are asked to address whether the juvenile court properly terminated E.M.'s (Father) parental rights to N.M. (Child). For the reasons explained below, we affirm.

         BACKGROUND

         Child's Removal and the Initial Permanency Proceedings

         ¶2 In an April 2015 shelter proceeding, the juvenile court determined that Child's removal from Father and Child's mother (Mother) was necessary and in Child's best interest due to both parents' incarceration. The court thereafter adjudicated Child neglected as to both Father and Mother, and it placed Child in the custody of the Division of Child and Family Services (DCFS). DCFS created a family plan for both Father and Mother and recommended reunification as the primary permanency goal, with Child's adoption as the concurrent goal. The court accepted the proposed plan as well as the stated goals and ordered DCFS to make "reasonable effort to finalize the permanency goal." In November 2015, given Father's and Mother's respective lack of progress, the court granted temporary custody and guardianship of Child to his maternal grandparents (Maternal Grandparents), subject to DCFS supervision. Child remained with Maternal Grandparents from then on.

         ¶3 The court thereafter terminated reunification services for both parents and, accordingly, in a September 2016 permanency hearing, changed the permanency goal to adoption, with the concurrent goal of permanent custody and guardianship with Maternal Grandparents. The court also determined that Child's best interest required a petition for termination of parental rights to be filed, and it ordered that such a petition be filed, and a pretrial hearing held, within forty-five days.[1]

         ¶4 Following the permanency order, the State filed a petition for termination of parental rights (the TPR) as to both parents. In it, the State recited the case history, which included the fact that both parents had "serious" substance abuse problems and that neither parent had remedied the circumstances that led to Child's out-of-home placement. The State asserted that it would be in Child's best interest for Father's and Mother's parental rights to be terminated, that Child was in need of permanency, and that Child needed to be available for adoption to achieve that permanence. The court ordered the parents to participate in mediation and set the TPR for a pretrial hearing on November 16, 2016.

         The November 2016 Pretrial Hearing

         ¶5 At the pretrial hearing, rather than proceeding with the TPR, the State moved to change the temporary custody in Maternal Grandparents to permanent custody and guardianship and to dismiss the TPR. The State declared that "there are some burdens of proof . . . that would be very difficult to be able to carry forward" and that its request "would be in the child's best interest."

         ¶6 In response, the court noted that adoption was the permanency goal in the case, and it heard from those present regarding the State's request to grant permanent custody and guardianship to Maternal Grandparents. The State, the Guardian ad Litem, and the parents agreed that permanent custody and guardianship would be in Child's best interest. Maternal Grandparents stated that their desire was to adopt Child.

         ¶7 After hearing from those present, the court expressed concern that granting the State's request to "set the goal at permanent custody and guardianship" would only delay the proceedings and increase the ...


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