171 P.3d 435 (Utah 2007), 20060875, State ex rel. B.R.

Docket Nº:20060875, 20060886.
Citation:171 P.3d 435, 2007 UT 82
Opinion Judge:DURHAM, Chief Justice:
Party Name:STATE of Utah, in the interest of B.R., J.R., N.R. and K.M., persons under eighteen years of age. State of Utah, Petitioner, (###Party1###) v. S.M., Respondent.
Attorney:Mark L. Shurtleff, Att'y Gen., John M. Peterson, Asst. Att'y Gen., Salt Lake City, Nathan W. Jeppsen, Tremonton, for petitioner., Angela Fonnesbeck, Logan, for respondent., Martha Pierce, Guardian ad Litem, Salt Lake City.
Case Date:October 26, 2007
Court:Supreme Court of Utah

Page 435

171 P.3d 435 (Utah 2007)

2007 UT 82

STATE of Utah, in the interest of B.R., J.R., N.R. and K.M., persons under eighteen years of age.

State of Utah, Petitioner, (###Party1###)


S.M., Respondent.

Nos. 20060875, 20060886.

Supreme Court of Utah

October 26, 2007

On Certiorari to the Utah Court of Appeals First Juvenile District, Logan The Honorable Jeffrey R. Burbank No. 154248

Page 436

Mark L. Shurtleff, Att'y Gen., John M. Peterson, Asst. Att'y Gen., Salt Lake City, Nathan W. Jeppsen, Tremonton, for petitioner.

Angela Fonnesbeck, Logan, for respondent .

Martha Pierce, Guardian ad Litem, Salt Lake City.

DURHAM, Chief Justice:

¶ 1 S.M., the mother of four children, B.R., J.R., N.R., and K.M., 1 had her parental rights terminated by the juvenile court due to findings of neglect and unfitness resulting from her struggle with methamphetamine abuse.2 The court of appeals reversed and we granted certiorari to review that decision. We hold that the juvenile court acted within its discretion in terminating the mother's parental rights and therefore reverse the court of appeals.

Page 437


¶ 2 In May 1996, S.M. began a pattern of methamphetamine drug abuse that eventually resulted in the State taking custody of her four children. From 1996 until S.M.'s parental rights termination trial in August 2005, S.M.'s longest period of sobriety was three years. The Division of Child and Family Services (the Division) began a lengthy involvement with S.M. and her children in March 2001, and the children's current out-of-home placement was precipitated by S.M. dropping her children off at a Child and Family Support Center in April 2004. After leaving the children, S.M. telephoned her former caseworker, stating that she could no longer care for the children and admitting that she had relapsed and was using methamphetamine. Once in the State's custody, the children's hair was tested, and the tests determined that all four children had been exposed to methamphetamine.

¶ 3 Following the relinquishment of her children, S.M. was given twelve months to comply with the Division's service plan for reunification. The plan required S.M. to complete substance abuse treatment, participate in mental health counseling, obtain stable employment and housing, and attend visitation with her children. A permanency hearing was held in April 2005, one year after the children's removal. The juvenile court concluded after that hearing that S.M. had failed to substantially comply with the service plan. The court described S.M.'s attempts at substance abuse treatment as "sporadic and not consistent." S.M. continued to use methamphetamine throughout the twelve-month reunification period. She began, but did not complete, three substance abuse treatment programs. She attended thirty-four visits with the children over the twelve-month period, missing other visits because she was under the influence of methamphetamine. At the permanency hearing, S.M. did not have stable housing for the children and she was not employed. She had attended only a few mental health counseling sessions. Looking not only to failed compliance with the service plan, but also to the emotional and physical well-being of the children and the detrimental effects of the persistent instability thrust upon these children by their mother's lifestyle, 3 the juvenile court terminated reunification services and set the new goal of adoption for the children. The court made its findings in these matters by clear and convincing evidence.

¶ 4 The State subsequently sought to terminate S.M.'s parental rights. A trial was held four months after the permanency hearing. In making its findings on the issue of whether S.M.'s rights would be terminated, the court adopted many of its findings from the permanency hearing. The court determined that those findings that were relevant to S.M.'s ability to provide a safe home for the children at the April permanency hearing were informative as to her fitness as a parent at the August trial. Also relevant was S.M.'s conduct during the months between the permanency hearing and the termination trial. The juvenile court considered the efforts S.M. had made during that time. Those efforts included S.M.'s current involvement with a Twelve Step Program and the court's recognition that she was "in the initial stages of her recovery." The court noted, however, that this was the fourth program she had participated in and that she had not completed a program since her children were placed in the State's custody. The court further recognized that, since the permanency hearing, S.M. had participated in mental health counseling and in outpatient treatment focused on maintaining sobriety and avoiding domestic violence. In addition to the individual treatment, S.M. had also participated in some group therapy sessions--five targeting domestic violence and one focused on substance abuse. Her therapist acknowledged at trial that he could not predict S.M.'s future sobriety and that such a prediction was difficult because she had previous periods of sobriety after which she returned to chronic drug use. Other significant changes in S.M.'s circumstances following the permanency hearing included her having secured

Page 438

housing, although she had been in her own apartment for less than a month at the time of trial, and having been employed for a two-month period, in contrast to one day of employment during the entire twelve-month period of reunification services.

¶ 5 Although the court acknowledged the steps S.M. had taken following the permanency hearing, the court weighed the mother's attempts during that short time frame against nine years of chronic drug use marked by periods of sobriety and relapse. It concluded that, overall, S.M. had made only "token" and "minimal" efforts to "adjust her circumstances, conduct, and conditions to make it in the children's best interest to return to her home," "to prevent neglect of the children, to eliminate the risk of serious physical, mental, or emotional abuse of the children, and to avoid being an unfit parent." The court then concluded that S.M. had substantially neglected the children, that she was unfit, that she had experienced a failure of parental adjustment, and that it was not possible to safely reunite the children with her. Further, the juvenile court determined that "[t]here is a substantial likelihood that mother will not be capable of exercising proper and effective parental care in the near future." In fact, the court concluded that, because of the history of the case and S.M.'s lengthy involvement...

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