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M.C.W. v. State

Court of Appeals of Utah

June 6, 2019

M.C.W., Appellant,
State of Utah, Appellee.

          Fifth District Juvenile Court, St. George Department The Honorable Michael F. Leavitt No. 542094

          J. Robert Latham, Attorney for Appellant

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

          Martha Pierce, Guardian ad Litem

          Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Kate Appleby and Diana Hagen concurred.



         ¶1 In August 2017, the juvenile court granted permanent guardianship of C.S., C.S., and C.S. (collectively, Children) to their paternal grandmother (Grandmother). M.C.W., Children's mother (Mother), filed a post-judgment motion challenging the court's permanency order. Mother argued (1) that the court should order additional investigation into the safety, fitness, and appropriateness of Grandmother's permanent home in another state and the relatives residing there; (2) that the evidence presented at the permanency hearing was insufficient to support Children's permanent placement with Grandmother; and (3) that the court should grant a new trial or alter or amend its findings of fact and conclusions of law to reflect evidence presented at trial that was not included in the court's permanency order. The juvenile court denied the motion, and Mother appeals. We affirm.


         ¶2 Mother has appeared before the juvenile court twice for dependency proceedings initiated by the Utah Division of Child and Family Services (DCFS). In 2008, a juvenile court determined that Children were abused and neglected and removed them from Mother's custody. The basis for the removal was Mother's substance abuse, a drug overdose, and incidents of domestic violence. After Mother's successful completion of reunification services, the juvenile court returned Children to her custody in 2009 and terminated further protective supervision services.

         ¶3 The second dependency proceeding followed Mother's arrest on July 19, 2016. Mother and Children were residing at a shelter for victims of domestic violence when police responded to a complaint that Children were assaulting staff members and damaging the facility. When they arrived at the shelter, police learned that Mother had an outstanding warrant. She was arrested, and Children were placed in the protective custody of DCFS. The juvenile court then determined that Mother abused and neglected Children.

         ¶4 At the first shelter hearing in July 2016, the juvenile court found that removal of Children from Mother's custody was necessary and in their best interests. The court determined that Children could be safely returned to Mother's custody only if DCFS provided protective supervision. The court appointed a guardian ad litem for Children and ordered DCFS to prepare a service plan for Mother. The service plan required Mother to provide meals, maintain safe and legal housing for Children, and undertake parent training. The court also ordered Mother to refrain from using drugs and alcohol, to submit to drug tests, and not to associate with anyone under the influence of alcohol.

         ¶5 At a second shelter hearing in August 2016, Mother conceded that she could not keep Children safe from each other and could not prevent their destructive behavior. Mother therefore voluntarily agreed to return Children to DCFS custody. Children were placed in the temporary custody of DCFS, and the juvenile court ordered DCFS to consider Grandmother, who lived in Arkansas but who was willing to relocate to Utah to care for Children, as a potential placement option for Children. The court was aware that Grandmother had assumed periodic custody of Children over the years when Mother and Children's father had been unable to provide for them.[1]

         ¶6 Thereafter, Mother requested that the juvenile court return Children to her custody. During a pretrial hearing in September 2016, the juvenile court postponed ruling on Mother's request and allowed the State and the guardian ad litem to continue to look into other possible placements for Children. The court allowed DCFS to make a provisional placement with Grandmother, who at this point had moved from Arkansas to Utah, once she successfully completed a background check. The court also ordered DCFS to provide reunification services to Mother for twelve months.

         ¶7 At the subsequent adjudication/disposition hearing, the court ordered Mother to undergo a psychological evaluation, parenting training, and family therapy; to obtain stable housing and a legal means of income; and to participate in an assessment to determine the family's needs. Mother made little progress in following this plan however. Her participation in individual therapy was a precondition for starting family therapy, but she did not think she needed therapy and did not attend any sessions for approximately five months after being notified of this requirement. The month she began attending therapy, Mother lost her job and housing, and she stopped attending family therapy. She had continued difficulties in visits with Children, and she often argued with Grandmother, the DCFS caseworker, and Children during those visits. Mother also had trouble following through with appropriate parenting skills during her parent-time and often blamed Children for the problems. During the reunification period, Mother did not maintain consistent employment or obtain stable housing. In contrast, after Children were placed with Grandmother, she consistently cared and provided for them. Grandmother relocated from Arkansas to Utah to care for Children, obtained an apartment and employment, and engaged in behavior-related training and therapy to learn how to better control Children's problematic behaviors. Grandmother provided consistent discipline and ensured that Children attended school, therapy, and parent-time with Mother.

         ¶8 Mother's permanency hearing began in July 2017 and lasted five days. Throughout the proceedings, the juvenile court recognized that it was in Children's best interests to be placed in a guardianship with a relative if they could not be returned safely to Mother's custody at the end of the reunification period. To that end, Grandmother had informed the court that she was "willing to have [Children] placed with her if [it was] deemed appropriate." Because Grandmother was a permanent resident of Arkansas, she testified at the permanency hearing to the conditions she would provide for Children in Arkansas. Grandmother owned her own business and lived with her husband (Step-grandfather), Children's aunt (Aunt), and Aunt's two young children. Grandmother had been married to Step-grandfather for fifteen years, and he had attended classes for foster parents. They had purchased a five-bedroom house in May 2016, which was being remodeled. Grandmother informed the court about the school Children would attend, her plans to take them to school, and her intention to continue to facilitate their participation in therapy. Grandmother testified that Step-grandfather was once a drug user but that he had been drug-free for over forty years. Neither Grandmother nor Step-grandfather currently used any alcohol or controlled substances. Grandmother acknowledged that Step-grandfather once had Hepatitis C and cirrhosis, and had received a liver transplant; she also acknowledged that Step-grandfather was convicted of robbery forty-five years ago. Grandmother indicated that the records from these incidents have been sealed and that Step-grandfather eventually received a pardon from Arkansas's governor.

         ¶9 Based on the evidence presented at the permanency hearing and Mother's failure to comply with the service plan, the juvenile court found by a preponderance of the evidence that returning Children to Mother "would create a substantial risk of detriment to their emotional well-being." The court found that guardianship with a relative was the most appropriate plan for Children and thus awarded Grandmother permanent custody and guardianship, and it terminated reunification services for Mother. The findings of fact in the court's permanency order do not include information about Step-grandfather, Aunt, or Grandmother's household in Arkansas.

         ¶10 After the permanency order was entered, Mother filed a post-judgment motion for a new trial or to amend the court's findings of fact and conclusions of law. ...

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