State ex rel. B.R.
| Decision Date | 26 October 2007 |
| Docket Number | No. 20060875.,No. 20060886.,20060875.,20060886. |
| Citation | 2007 UT 82,171 P.3d 435 |
| Parties | 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, v. S.M., Respondent. |
| Court | Utah Supreme Court |
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.
¶ 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.
¶ 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 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 with illegal substances, "if the Court were to return the children to [S.M.], it is likely that within six months to a year, we would be right back where we are now, with the children in custody after having been exposed to their [mother's] use of methamphetamine." The court terminated S.M.'s parental rights. In rendering its decision, the court considered not only S.M.'s past and present conduct, but also the special physical, mental, and emotional needs of the children4 and determined that the decision to terminate parental rights was in their best interests.
¶ 6 S.M. appealed, and the court of appeals reversed the juvenile court. The State and the Guardian ad Litem petitioned this court for certiorari review, which was granted. We now reverse the court of appeals, vacate its opinion, and remand the case directly to the juvenile court. Our jurisdiction is appropriate pursuant to Utah Code section 78-2-2(3)(a), (5) (2002).
¶ 7 Although the State and the Guardian ad Litem asked us to review many aspects of the court of appeals' opinion,5 we treat only two: (1) whether it was permissible for the juvenile court to use a heightened evidentiary standard at the permanency hearing, and (2) whether the court of appeals erred in its review of the juvenile court's decision by reweighing the evidence. In order to remedy the parties' other concerns, we vacate the opinion of the court of appeals.
¶ 8 The juvenile court made findings using the heightened clear and convincing evidentiary standard at S.M.'s permanency hearing. S.M. never objected to the use of the heightened standard — not in response to the court's permanency order, not at the termination trial, and not on appeal to the court of appeals. The court of appeals, however, concluded that by using the heightened standard, "the juvenile court took it upon itself to treat Mother's permanency hearing as a sort of pre-termination hearing." S.M. v. State (State ex rel. B.R.), 2006 UT App 354, ¶ 76, 144 P.3d 231. The court of appeals concluded that by finding facts by clear and convincing evidence, the juvenile court was erroneously addressing termination and use of the heightened standard "resulted in Mother going into her termination trial in the face of a multitude of previously established facts." Id. We review the court of appeals' decision for correctness and disagree with its conclusion. Use of the clear and convincing standard at a permanency hearing is not improper, and all parties to these proceedings should be aware that the trial court has the option of making findings by the heightened standard.6
¶ 9 At a permanency hearing where reunification services have previously been ordered by the court, the juvenile court is charged with determining "whether the minor may safely be returned to the custody of the minor's parent." Utah Code Ann. § 78-3a-312(2)(a) (Supp.2007). The juvenile court may determine that the child may not be returned to her parent only "[i]f the court finds, by a preponderance of the evidence, that return of the minor would create a substantial risk of detriment to the minor's physical or emotional well-being." Id. § 78-3a-312(2)(b).
¶ 10 Contrary to S.M.'s assertions and the court of appeals' opinion, the juvenile court did not make conclusions about the termination of S.M.'s parental rights at the permanency hearing. It simply made factual findings that were necessary to its...
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