H.K. v. State (State ex rel. A.K.)

• Citation: 285 P.3d 772,2012 UT App 232,715 Utah Adv. Rep. 23
• Decision Date: 16 August 2012
• Docket Number: No. 20100922–CA.,20100922–CA.
• Parties: STATE of Utah, in the interest of A.K. and M.K., persons under eighteen years of age. H.K., Appellant, v. State of Utah, Appellee.
• Court: Court of Appeals of Utah

285 P.3d 772

715 Utah Adv. Rep. 23

2012 UT App 232

STATE of Utah, in the interest of A.K. and M.K., persons under eighteen years of age.H.K., Appellant,

v.

State of Utah, Appellee.

No. 20100922–CA.

Court of Appeals of Utah.

Aug. 16, 2012.

Joyce G. Smith, Moab, for Appellant.

Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee.

Martha Pierce, Salt Lake City, Guardian ad Litem.

Before Judges VOROS, ORME, and DAVIS.

OPINION

VOROS, Associate Presiding Judge:

¶ 1 H.K. (Mother) challenges the juvenile court's termination of her parental rights. We affirm.

BACKGROUND ¹

¶ 2 The juvenile court terminated Mother's parental rights in five-year-old A.K. (Daughter) and one-year-old M.K. (Son) on February 25, 2011. ² Prior to the termination, the Division of Child and Family Services (DCFS) had removed Daughter from Mother's custody three times and had removed Son once.

¶ 3 Daughter's first removal occurred in October 2007, while Mother was incarcerated. Mother had asked Daughter's grandmother to care for the child. However, the grandmother let Mother's domestic partner care for Daughter part of the time because she feared telling Mother's partner “no.” In October, Daughter was injured while she was in the care of Mother's partner. The grandmother lied to the healthcare providers about the circumstances of the injury because she felt intimidated by Mother's partner. Based in part on these facts, the juvenile court ordered Daughter into the custody of DCFS. In March 2008, Daughter was returned to Mother's custody with protective supervision services.

¶ 4 Daughter's next removal occurred in February 2009. In violation of her family plan and despite Mother's awareness of her partner's history of violence, Mother allowed her partner to stay in her residence. Even after the court ordered Mother not to have any contact with her partner and not to allow her partner any contact with Daughter, Mother continued to associate with and expose Daughter to her partner. Mother also missed several drug tests and failed to inform DCFS of her loss of employment. Based in part on these facts, the juvenile court again ordered Daughter into the custody of DCFS.

¶ 5 Mother continued to miss drug tests while she was pregnant with Son, and the juvenile court ordered her to attend drug court. Son's father, E.O. (Father), was living with Mother at the time Son was born, and he agreed to participate in the family plan and submit to drug tests. He initially tested positive for marijuana, but the levels decreased with each test until he achieved a negative test. However, Father soon began skipping his scheduled drug tests, and shortly before Mother attended a permanency hearing to consider a trial home placement for Daughter, he left town. Following a successful trial home placement, the court returned Daughter to Mother's custody with protective supervision services in May 2010.

¶ 6 Daughter's third removal—and Son's first removal—occurred in September 2010. Mother had continued to miss drug tests and drug court appearances. When a DCFS caseworker visited Mother to follow up with her about a missed drug test, the caseworker found Father there. Father agreed to drug testing but did not submit to tests before leaving town again. Mother later falsely told the court that she was no longer involved with Father. In fact, Mother and Father were planning to permanently take the children out of the state in violation of an earlier court order regarding Daughter. They acquired airline tickets, but the State learned of their plans and Mother was arrested the day before they intended to leave.

¶ 7 Following Mother's arrest, DCFS filed a joint petition for custody and termination of Mother's parental rights. The juvenile court ordered removal of both children, granted custody to DCFS, and set a discovery schedule for the termination hearing.

¶ 8 In preparation for the termination hearing, DCFS sent 206 requests for admissions to Mother. Mother sent a blanket denial on the last permissible day, stating that she did not have time to provide more complete answers but that she would supplement her response within three days. She did so, admitting 135 requests and responding to the remaining seventy-one with “deny,” “irrelevant,” or “unknown.” However, the juvenile court deemed all 206 requests admitted and granted partial summary judgment, ruling that the deemed admissions established grounds for terminating Mother's parental rights. See Utah R. Juv. P. 20A(g) (providing that requests for admissions not responded to within fourteen days “shall be deemed admitted”); see alsoUtah R. Civ. P. 36.

¶ 9 The juvenile court held a hearing to determine the best interests of the children. The court found that Daughter knew and loved Mother and had close connections with extended family. But the court also found that Daughter had been adversely affected by the repeated removals and out-of-home placements and had demonstrated aggression since her last removal. While Son “ha[d] not suffered the harm of repeated removals,” the court found that he was at risk to suffer the same harm and that nothing indicated that Mother would change her pattern of behavior. Both children were in a stable foster home where the foster parents had the capacity to provide stability and care for the children. The court also found that, while Mother was a caring and loving parent “[o]n the surface,” Daughter had been harmed by Mother's conduct that led to the repeated removals. The court was persuaded that Mother was “not capable of protecting her children from future removals.” She put her children at risk by continuing to expose them to drug use, and the “pattern of deception” she engaged in toward DCFS and the court demonstrated that she was aware that her behavior was not good for her children.

¶ 10 In light of these findings, the court concluded that terminating Mother's parental rights was in the children's best interests. The court also reaffirmed its finding of grounds for termination based on the evidence presented at the hearing. Therefore, on February 25, 2011, the court terminated Mother's parental rights in Daughter and Son.

ISSUES AND STANDARDS OF REVIEW

¶ 11 First, Mother contends on appeal that certain statutory procedures were not followed after the final removal of her children and that, consequently, the juvenile court lacked subject matter jurisdiction to hear the State's petition to terminate her parental rights. “Both jurisdictional questions and questions of statutory interpretation are questions of law that we review for correctness.” In re S.Y.T., 2011 UT App 407, ¶ 9, 267 P.3d 930.

¶ 12 Second, Mother asserts several due process claims. She argues that the alleged procedural defects violated her due process rights. She also argues that her due process rights were violated when the juvenile court based its decision to terminate her parental rights not on a hearing on the merits, but on facts that had been deemed admitted by her failure to respond to requests for admissions. Finally, she argues that on appeal, the wide latitude of discretion we give the juvenile court in reviewing its termination decisions effectively deprives her of her due process right to a meaningful appeal under the Utah Constitution. “Constitutional issues, including questions regarding due process, are questions of law that we review for correctness.” Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177.

¶ 13 Third, Mother contends that the juvenile court erred by not withdrawing the 206 deemed admissions. We review a court's decision not to amend or withdraw admissions for abuse of discretion. See Langeland v. Monarch Motors, Inc., 952 P.2d 1058, 1061 (Utah 1998).

¶ 14 Finally, Mother challenges the sufficiency of the evidence supporting the juvenile court's conclusions that grounds for termination existed and that termination would be in Son's best interest. Although the juvenile court originally ruled in granting partial summary judgment that grounds for termination had been established, it revisited and reaffirmed this conclusion after the termination hearing. See supra ¶ 10. Therefore, we will review the juvenile court's determination for clear error, reversing only if the result is “against the clear weight of the evidence or leave[s] the appellate court with a firm and definite conviction that a mistake has been made.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435;see alsoUtah R. Civ. P. 52(a). “Simply because an appellate court may have come to a different result had it been the initial trier of fact does not permit it to reverse the juvenile court absent a firm and definite conviction that the court's decision was against the clear weight of the evidence.” In re B.R., 2007 UT 82, ¶ 14, 171 P.3d 435. Therefore, “[w]hen a foundation for the court's decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence.” Id. ¶ 12. A best interest determination is also reviewed for clear error. See id.;In re D.R.A., 2011 UT App 397, ¶¶ 7–8, 266 P.3d 844.

ANALYSIS

I. Subject Matter Jurisdiction

¶ 15 As a threshold matter we address Mother's jurisdictional argument. Mother contends that the proceedings below were plagued by several fatal defects. In her brief, Mother argues that after the final removal of her children, the juvenile court failed to hold a shelter hearing, an adjudication, and a dispositional hearing. Mother argues that the alleged procedural irregularities deprived the juvenile court of subject matter jurisdiction to consider the petition for termination of her parental rights.

¶ 16 “ ‘[J]uvenile courts are creatures of statute....’ Accordingly, the juvenile court's jurisdiction is limited to that which the Legislature grants it....” In re Adoption of B.B.G., 2007 UT App 149, ¶ 5, 160 P.3d 9 (alteration in original) (quoting In re B.B., 2004 UT 39, ¶ 19, 94 P.3d 252). The juvenile court's jurisdiction is governed by sections 78A–6–103 and...