State ex rel. B.R.
| Decision Date | 31 August 2006 |
| Docket Number | No. 20050912-CA.,20050912-CA. |
| Citation | 144 P.3d 231,2006 UT App 354 |
| Parties | STATE of Utah, in the interest of B.R., J.R., N.R., and K.M., persons under eighteen years of age. S.M., Appellant, v. State of Utah, Appellee. |
| Court | Utah Court of Appeals |
Angela F. Fonnesbeck, Hillyard Anderson & Olsen, Logan, for Appellant.
Mark L. Shurtleff, Attorney General's Office, and John M. Peterson, Asst. Atty. Gen., Salt Lake City, for Appellee.
Martha Pierce, Salt Lake City, Nathan W. Jeppsen, Tremonton, Guardian Ad Litems.
Before Judges BILLINGS, BENCH, and THORNE.
¶ 1 S.M. (Mother) appeals from the juvenile court's October 12, 2005 Amended Findings of Fact, Conclusions of Law, and Order Terminating Parental Rights (the Termination Order), which terminated Mother's parental rights in her children B.R., J.R., N.R., and K.M. (the Children). We reverse the Termination Order as it applies to Mother and remand this matter for further proceedings.
¶ 2 "`Because the termination of parental rights is fact sensitive, we review the facts of the controversy in detail.'" In re A.H., 2004 UT App 39, ¶ 1 n. 1, 86 P.3d 745 (quoting In re M.L., 965 P.2d 551, 553 n. 1 (Utah Ct.App. 1998)).
¶ 3 Mother is the natural mother of B.R., born January 7, 1994; J.R., born April 6, 1998; N.R., born March 18, 2001; and K.M., born October 22, 2002. The State has been involved with Mother and the Children since approximately the summer of 2000, when Mother and the Children were residing in Weber County. In 2002, the family moved to Logan, and the case was transferred to Cache County.
¶ 4 By April 2004, Mother relapsed into methamphetamine use. Recognizing that she was not currently able to meet the Children's needs, Mother took them to the Child and Family Support Center in Logan. Mother informed personnel there that she was unable to care for the Children and felt like she was going to have a nervous breakdown. As a result, the State removed the Children from the custody of Mother and J.M. (Father), the father of N.R. and K.M.1
¶ 5 On May 11, 2004, the parties participated in court-ordered mediation and agreed to a service plan for Mother with a goal of reunification. Based on the parties' stipulations, the juvenile court entered findings that the Children were lacking proper parental care due to Mother's substance abuse and found the Children to be neglected. Mother entered into a service plan covering the period of April 16 through October 16, 2004. The service plan required that Mother: (1) obtain a substance abuse evaluation and follow recommended treatment, provided financing could be arranged; (2) submit to random urinalysis testing; (3) remain drug and alcohol free; (4) complete domestic violence and anger management courses and follow recommendations; (5) complete a mental health assessment and follow recommendations; (6) maintain housing and stable employment; and (7) maintain a home for the Children at or above the minimum standards established by the Department of Child and Family Services (DCFS). Subsequently, the parties entered into a second six-month service plan containing virtually identical provisions and continuing until April 16, 2005.
¶ 6 On December 9, 2004, an eight-month permanency hearing was held for K.M. See Utah Code Ann. § 78-3a-311(2)(g)(i) (Supp. 2006) (). At this hearing, the parties stipulated and the juvenile court found that Mother had made substantial efforts to comply with her service plan with regard to K.M. The juvenile court continued reunification services for Mother and K.M.
¶ 7 On April 22, 2005, a second permanency hearing was held, this time relating to all four children. The juvenile court found that Mother had not substantially complied with the requirements of her service plan. The court's order from the permanency hearing, entered on June 9, 2005, made clear that the court had made its factual findings regarding Mother's substance abuse and other failings under the "clear and convincing evidence" standard, rather than the lower "preponderance of the evidence" standard.2
¶ 8 The juvenile court's June 9 factual findings catalogued Mother's failures to comply with her service plan in great detail. Regarding the central issue of Mother's drug rehabilitation, the court found that Mother had attended but not completed outpatient counseling with the Bear River Health Department from May through July 2, 2004; attended inpatient treatment at the House of Hope from November 18, 2004 through January 25, 2005; and attended some impatient treatment at the Women's Recovery Center. The court also found that Mother did not attend treatment at the Odyssey House as recommended because of a payment issue and did not attend treatment at the Women's Detox Center.
¶ 9 Regarding visitation, the juvenile court found that Mother attended thirty-four visits with the Children during the twelve-month reunification period and did not attend more visits because she was using methamphetamine and did not want the Children to see her under the influence. The juvenile court also found that there was no stable housing for the Children because Mother had resided in various substance abuse programs and with the Children's maternal and paternal grandparents; that Mother had not been employed during the reunification period; and that Mother had been unable to meaningfully participate in therapy with the Children due to her ongoing substance abuse.
¶ 10 The juvenile court's findings also addressed the Children's emotional and physical condition. Relying on the testimony of Dr. Tim Mitchell, a counselor who had conducted mental health assessments of the Children, the court found that Based on these concerns and Mother's failure to address her problems, the juvenile court then found that the Children could not be safely returned to their parents' custody.3
¶ 11 Mother requested that the juvenile court extend the reunification period for ninety days. See Utah Code Ann. § 78-3a-312(4)(d) (Supp.2006).4 The juvenile court denied Mother's request, concluding that Mother had not substantially complied with her service plan, that it was not probable that Mother would be ready and capable to care for the Children and meet their needs within ninety days, and that an extension was not in the Children's best interests. The court made these findings despite Dr. Mitchell's testimony that he did not think it would hurt to extend the matter for an additional ninety days.
¶ 12 The juvenile court terminated reunification services and ordered the permanency goal for the Children changed to termination of parental rights and adoption. The juvenile court ordered the State to file a petition for termination of parental rights, and the State did so on May 12, 2005. Mother denied the contents of the petition, and the juvenile court scheduled a termination trial for August 23 and 24, 2005.
¶ 13 Trial took place as scheduled. Mother testified twice, once as the State's witness and later as part of her own defense. Mother's cumulative testimony related her long history of methamphetamine use, including periods of sobriety and relapse. Mother testified that she had first used methamphetamine over eight years ago and that since then she had maintained her sobriety for one period of three years and another period of one year. She also described her previous attempts toward rehabilitation, her employment and housing history, and the amount of visitation she had exercised during the reunification period.
¶ 14 Mother also testified in great detail about her present parenting ability and the corrective actions she had taken following the permanency hearing. Mother testified that, after the permanency hearing and the termination of services by the court, she had maintained sobriety for over five months; completed a truck driving program and obtained a commercial driver license; engaged in individual and group counseling with Weber Human Services; regularly submitted to and passed random urinalysis tests; began working on a twelve-step recovery program through Narcotics Anonymous (NA); attended NA meetings at least once a week; obtained full-time employment with benefits; paid child support to the State; obtained housing; attended weekly church services; filed for divorce from Father; and continued meaningful visitation with the Children. Mother's testimony was largely documented and uncontradicted by the State.
¶ 15 Mother's social worker, Richard Tucker, and her NA sponsor, Darla Brennan, provided testimony supporting Mother's rehabilitative efforts since the permanency hearing.5 Tucker is a licensed social worker from Weber Human Services in Ogden who had been working with Mother since May 23, 2005. He testified that Mother had attended eight individual counseling sessions with him, five domestic violence group meetings, one educational drug and alcohol group meeting, and provided twenty-five clean random urinalysis tests. He also testified that Mother was doing well but that it was hard to predict whether that would continue. Brennan had been Mother's NA sponsor since April 2005. She testified that Mother works hard, attends meetings, and is working on the fourth step of the twelve-step recovery program utilized by NA.
¶ 16 The State presented evidence pertaining to the needs of the Children and each child's foster care placement and adoption prospects.6 This evidence was presented largely through the testimony of Debra Braegger, the family's caseworker since April 20...
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