A.B. v. R.C. (In re Interest of H.C.)

Decision Date22 December 2022
Docket Number20220001-CA
Citation523 P.3d 736
Parties In the INTEREST OF H.C., a person under eighteen years of age. A.B., Appellant, v. R.C., Appellee.
CourtUtah Court of Appeals

Emily Adams and Sara Pfrommer, Park City, Attorneys for Appellant

Scott N. Weight, Attorney for Appellee

Martha Pierce, Salt Lake City, Guardian ad Litem

Judge Gregory K. Orme authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan D. Tenney concurred.

Opinion

ORME, Judge:

¶1 A.B. (Mother) appeals the juvenile court's termination of reunification services and grant of permanent custody and guardianship of her minor son, H.C. (Child), to his father, R.C. (Father). We affirm.

BACKGROUND

¶2 Child was born in 2013. Mother and Father later filed for divorce and, in 2016, entered a stipulation regarding parent-time. The stipulation provided that Child would "primarily reside with Mother" in Utah and that he would have parent-time with Father in Florida for four weeks during the summer and would spend alternating Christmas holidays with Father.

¶3 In June 2020, Child visited Father in Florida for Father's four-week parent-time. There, Child told Father that "he was getting hit with a belt and a hanger" at home and that Mother's husband (Stepfather) punched him in the stomach. Father reported the allegation to Utah's Division of Child and Family Services (DCFS). DCFS's further investigation revealed that Stepfather would scream at Child, strike him with a belt, and punch and "whoop" him. The investigation also revealed that Mother spanked Child with her hand, a hanger, or a spatula, often leaving behind red marks where Child was struck.

¶4 Toward the end of June, the State filed a Verified Petition for Protective Supervision, in which it described what DCFS's investigation revealed.1 Following a hearing in early July, the juvenile court placed Child under temporary protective supervision services and ordered that Child remain in Florida with Father.

¶5 In August 2020, Father filed for temporary custody of Child. In a subsequent hearing, the court declined to rule on the motion until Mother and Stepfather's case was adjudicated. But after Father asserted that the purpose of the motion was to ensure that he could enroll Child in school that year without Mother's interference, the court granted temporary custody of Child to Father "until the allegations of abuse of [Child] are conclusively determined by the Court." It reiterated that Father's "motion for custody will not be considered at this time, but may be considered after adjudication."

¶6 The following month, DCFS submitted a child and family plan to the court, which required, among other things, that Mother and Stepfather attend parenting courses, complete psychological evaluations, and complete the recommendations resulting from the psychological evaluations. Mother and Father indicated that they agreed with the plan. The court set the primary permanency goal for Child as "reunification with his Mother" and set a concurrent goal of "permanent custody and guardianship with a relative," which the court stated Father "of course ... would qualify as."2 The court also adjudicated Child dependent as to Father.3

¶7 In December 2020, the State filed an Amended Verified Petition for Protective Supervision, in which it again alleged that Stepfather spanked and punched Child in the stomach, screamed at Child, and would "whoop" Child. The petition also again alleged that Mother would spank Child with her hand or a spatula, leaving behind red marks. The petition asserted that Mother and Stepfather denied spanking Child and that Mother believed that Father "has put ideas into [Child's] head."

¶8 Nonetheless, Mother and Stepfather waived trial and entered pleas under rule 34(e) of the Utah Rules of Juvenile Procedure, thereby acknowledging that the allegations in the amended petition could be accepted as true but without admitting they were. Following a hearing, the court deemed the amended petition's allegations to be true and adjudicated Child neglected as to Mother and Stepfather "based upon concerns of inappropriate discipline and parenting deficits." The court further stated that based on its finding of neglect, Child came "under the provisions of the Juvenile Court Act and [is] under jurisdiction of the court."

¶9 After the court issued its ruling, Mother requested that Child be returned to her. The court noted that Father had a right to respond and declined to rule on the request until the disposition hearing scheduled for later that month. Prior to the hearing, Father filed a request that he retain custody of Child and that Child remain in his care.

¶10 At the disposition hearing, the guardian ad litem (the GAL) stated that "the child and family plan seems appropriate" and that the case remains a protective supervision services case. The GAL also stated that the permanency plan of reunification seemed to be in Child's best interest but noted that the question of custody remained to be resolved.

¶11 Next, Mother renewed her request that Child be returned to her, noting that she and Stepfather were "doing well and are engaged with DCFS." Father opposed this request, arguing that it was in Child's best interest to remain with him in Florida. The court denied Mother's request, stating that it "needs to see how all parents do on the plan" and that it "is most comfortable with [Child] remaining in his Father's care right now," where he "is currently doing well." It reasoned that it was "too early in this case ... to make that significant of a switch." The court also reiterated that "[t]he child and family plan is appropriate" and directed "all the parents to work on services and improvements they can make."

¶12 In March 2021, the court held a review hearing at which the GAL indicated that Child "continually expressed ... that he likes it in Florida" and "is happy with" Father. Although Child was not afraid or unwilling to return to Mother, he told the GAL that he preferred to remain in Florida with Father. The GAL expressed that he was "confident that [Child] could be okay in either location." Next, Mother requested a trial home placement, which the court did not authorize because it wished first to review Mother's and Stepfather's parental fitness evaluations and to allow therapists to opine on the matter.

¶13 In June 2021, Mother filed a request that Child be returned to her care, asserting that she "has completed all of the services required by the Child and Family Plan." At a hearing held that same month, the State did not take a position on whether Child should return to Mother or remain with Father, stating that "[b]oth homes seem appropriate" and that Child's needs would be met in either home. The GAL provided the same opinion but reiterated that Child had repeatedly expressed a preference to stay with Father. The court ruled that Child was to remain in Florida with Father and scheduled a permanency hearing to determine "whether the primary permanency goal should remain in effect and be carried out or whether the concurrent [goal]" of permanent custody and guardianship with a relative "should now be adopted as the primary goal."

¶14 The court granted Mother's subsequent request that Child come to Utah for an in-person visit. Child visited Mother for a week that July. Curiously, Mother dispatched Stepfather to pick him up at the airport. The visit went well except for one incident in which Mother began calling Father when Child was misbehaving. In response, Child grabbed the phone, disconnected the call, and began to cry. Mother recorded Child's outburst with her cellphone.

¶15 In August 2021, the court held the permanency hearing in which the State, Mother, and Father all presented evidence. A DCFS caseworker testified that Mother and Stepfather had completed the goals outlined in the child and family plan. She also stated that Mother and Child had been having regular supervised telephonic or virtual visits and that Mother had been behaving appropriately, although Child at times seemed uninterested in talking. She also reported on Child's week-long visit to Utah, stating that it went well. The caseworker recommended, should reunification with Mother continue to remain the permanency goal, "that a trial home placement be authorized for [Child] to return to Utah" before the beginning of the school year.

¶16 Father called family members who testified that Child was faring well with him in Florida. Father's wife also testified that she and Father refrain from corporal punishment and instead discipline Child by taking away privileges. She said that Father will occasionally have Child do "about five or ten" pushups as a form of discipline.

¶17 Father described how Child's schooling had improved since he had come to live with him but stated that despite this progress, Child was still being held back in second grade. He recounted that Mother had called family services in Florida claiming that Father was neglecting Child, but the case was quickly closed as baseless. He also stated that Mother refused to pay her share of Child's medical expenses. Father expressed concerns about Child returning to Mother based on the court's prior adjudication of neglect and stated that Child had communicated a desire to remain with him.

¶18 Father also called Child's therapist, guidance counselor, and teacher to testify. The therapist testified that when Child first came to see her six months earlier, he was "[v]ery dysregulated," "had very poor interpersonal skills," and had "very poor boundaries" but that he had improved with therapy. She also stated that Child expressed a desire to remain with Father in Florida, primarily "because of whoopings" he had received in Utah. The therapist did acknowledge it was possible that Child's reluctance to return to Mother might be due to his adjustment disorder, which made Child dislike "being moved from place to place."

¶19 The guidance counselor testified that Child was...

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