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State ex rel. K.J. v. State

Court of Appeals of Utah

November 16, 2018

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

          Third District Juvenile Court, Salt Lake Department The Honorable Susan H. Eisenman No. 1131478

          Sheleigh A. Harding, Attorney for Appellant J.J.

          Jordan Putnam, Attorney for Appellant C.J.

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

          Martha Pierce and Natalia Peterson, Guardian ad Litem.

          Judge Michele M. Christiansen Forster authored this Opinion, in which JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

          OPINION

          CHRISTIANSEN FORSTER, JUDGE.

         ¶1 This case requires us to determine whether the State may file a petition seeking termination of parental rights when the child is already subject to ongoing abuse, neglect, and dependency proceedings.[1] We conclude that the plain language of the Juvenile Court Act (the JCA) permits the State to file a termination petition at any time. Accordingly, we affirm the juvenile court's order terminating C.J.'s (Mother) and J.J.'s (Father) parental rights in K.J. (Child).[2]

         BACKGROUND

         ¶2 Mother and Father are the biological parents of Child. At birth, Child tested positive for benzodiazepines, oxycodone, and morphine and remained in the hospital's neonatal intensive care unit for eleven days for treatment related to opiate withdrawals.

         ¶3 Approximately three weeks after Child was born, he was taken into custody by law enforcement, and the Division of Child and Family Services (DCFS) filed a verified petition alleging that Child was "an abused, neglected, or dependent child." The juvenile court held a shelter hearing and placed Child in DCFS's temporary custody. At the adjudication hearing, the parents stipulated to certain factual findings, and the juvenile court adjudicated Child as neglected by Mother and dependent as to Father. The court entered a dispositional order in September 2016, ordering DCFS to provide reunification services to Father but not to Mother who was incarcerated at the time. After Mother's release, the court ordered her to participate in a substance abuse evaluation and to follow any recommendations from that evaluation. In February 2017, the court determined that reunification services had been successful, transferred permanent custody of Child back to the parents, and terminated its jurisdiction and DCFS's involvement.

         ¶4 Five months later, in July 2017, DCFS filed another verified petition alleging that Child was "abused and neglected." At that time, Mother was again incarcerated. The juvenile court held a shelter hearing and placed Child in DCFS's temporary custody "for appropriate placement." The court also appointed counsel for both parents.

         ¶5 In August 2017, DCFS filed a verified petition seeking termination of both Father's and Mother's parental rights. The court scheduled a pretrial hearing and a trial on the termination petition. During the pretrial hearing, the parents moved "for a hearing for reunification services." DCFS opposed the parents' motion, asserting that there is no provision for reunification services when DCFS files a termination petition instead of an abuse and neglect petition. The juvenile court stated that it would consider any motions for reunification services "filed in a timely manner."

         ¶6 Before trial, Father filed a "Motion to Stay Termination of Rights Petition and Convert Trial Setting to Pretrial Hearing on Underlying Petition." In his motion, Father requested a stay of the termination petition and argued that DCFS was required to proceed on its abuse and neglect petition, "and only once [the juvenile court] has determined that reunification services are inappropriate should [DCFS] file a termination of rights petition." He further argued that "[t]he dispositional statute clearly contemplates that there will be a hearing to determine whether reunification services are appropriate" and that, "[b]y moving straight to a petition to terminate parental rights, the State jumps over all of the safeguards and due process given to the family in the dispositional statute." See generally Utah Code Ann. § 78A-6-312 (LexisNexis Supp. 2018) (discussing dispositional hearings and reunification services).

         ¶7 DCFS objected to Father's motion, arguing that Father "does not have a constitutional right to reunification" and that his "due process rights will be preserved and protected during the trial" on the termination petition. DCFS further asserted that "[t]here is no provision for reunification [services] to be granted under the Termination of Parental Rights Act."

         ¶8 At the beginning of the termination trial, the court addressed and denied Father's motion to stay. In its written ruling, the court stated that it was not persuaded that Father's "due process rights are violated by the State pursuing alternative petitions and acting on the more final petition first." First, the court determined that "there is no recognized substantive due process right that would require the state to either dismiss ... or proceed on a verified [abuse or neglect adjudication] petition prior to proceeding with a Petition for Termination of Parental Rights." The court recognized that parents have a "'fundamental liberty interest in the care, custody, and management of their children'" and that, notwithstanding that interest, "'a parent shown by clear and convincing evidence to be unfit can be permanently deprived of all parental rights.'" (Quoting In re J.S., 2017 UT App 167, ¶ 7, 405 P.3d 828 (per curiam).) The court observed that requiring the State to forgo "alternative jurisdictional theories would dilute the State's 'moral and statutory obligation to step in and protect children when those children are suffering from neglect and abuse.'" (Quoting id.) Thus, the court concluded, "[t]he separate filing does not implicate [Father's] substantive due process rights."

         ¶9 Second, the court concluded that Father was not denied procedural due process. Specifically, the court observed that the parties had "concede[d] that there is no constitutional or statutory right to reunification services, nor do the presumptions for or against reunification services apply to a verified petition for termination of parental rights." The court determined that there is "no right to have a petition for adjudication [of abuse or neglect] filed before a petition to terminate parental rights" and that "the State or any party has the discretion to file a termination petition whenever the parties believe there are grounds to terminate parental rights." The court observed that Father (1) had participated in all of the proceedings since Child's birth, (2) had received notice of the termination petition, (3) had been appointed counsel "at all stages of the proceeding," and (4) "had a full and fair opportunity to defend against" the termination petition. The court determined that there was "nothing 'fundamentally unfair' about proceeding with a properly filed termination proceeding while a verified petition alleging abuse and neglect remains filed and outstanding."

         ¶10 Ultimately, the court terminated both parents' parental rights. Regarding Mother, the court found that (1) Mother had neglected Child and was an unfit parent because she "habitually and excessively use[d] controlled substances or dangerous drugs that render[ed] her unable to care for [Child]"; (2) Child was being cared for in an out-of-home placement and Mother had "substantially neglected, willfully refused or [was] unable or unwilling to remedy the circumstances that cause[d] [Child] to be in an out-of-home placement[, ] and there [was] a substantial likelihood that [she would] not be capable of exercising proper and effective parental care in the near future"; and (3) Mother had experienced a failure of parental adjustment. See Utah Code Ann. § 78A-6-507(1)(b), (d), (e) (LexisNexis Supp. 2018); id. § 78A-6-508(2)(c), (d). The court further determined that it was in Child's best interest to terminate Mother's parental rights.

         ¶11 Regarding Father, the court found that (1) Father had neglected Child and was an unfit parent because he "habitually and excessively use[d] controlled substances or dangerous drugs that render[ed] him unable to care for [Child]"; (2) Child was being cared for in an out-of-home placement and Father had "substantially neglected, willfully refused or [was] unable or unwilling to remedy the circumstances that cause[d] [Child] to be in an out-of-home placement[, ] and there [was] a substantial likelihood that [he would] not be capable of exercising proper and effective parental care in the near future"; and (3) Father had experienced a failure of parental adjustment. See id. § 78A-6-507(1)(b), (d), (e); id. § 78A-6-508(2)(c), (d). The court also took judicial notice "of its disposition and review orders related to [Father]" and found that "the services provided to [Father] in 2016 when [Child] was removed the first time were reasonable." The court further determined that it was in Child's best interest to terminate Father's parental rights.

         ¶12 The parents moved to amend the order terminating their parental rights under rule 59 of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 59(a)(7) ("[A] new trial may be granted to any party on any issue for any of the following reasons: . . . that the verdict or decision is contrary to law or based on an error in law."). They asserted that the juvenile court's ruling that the State could proceed on its termination petition instead of the underlying abuse and neglect petition was contrary to this court's decision in In re S.F., 2012 UT App 10, ¶ 43, 268 P.3d 831. According to the parents, In re S.F. stands for the proposition that, where juvenile court jurisdiction is terminated in an earlier case, the child welfare proceedings must begin anew, which requires a shelter hearing, adjudication, disposition, and a permanency hearing before the State can seek termination of parental rights. Thus, the parents asserted, the State should have been required to "proceed on its underlying verified petition of abuse and neglect prior to proceeding on its termination of rights petition."

         ¶13 The juvenile court denied the parents' motion. The court was not persuaded by the parents' arguments and disagreed with their reading of In re S.F., concluding that the case held that "when a child is removed after the Court's jurisdiction is terminated, the filing of a new petition is needed to reanimate the Court's jurisdiction." But the court did not read the decision "to limit how the Court's jurisdiction is reanimated to only custody petitions." The court ...


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