In re AH

• Citation: 86 P.3d 745,2004 UT App 39
• Decision Date: 20 February 2004
• Docket Number: Case No. 20030160-CA.
• Parties: State of Utah, in the interest of A.H., S.H., and A.H., persons under eighteen years of age. T.H., Appellant, v. State of Utah, Appellee.
• Court: Court of Appeals of Utah

2004 UT App 39

86 P.3d 745

State of Utah, in the interest of A.H., S.H., and A.H., persons under eighteen years of age.

T.H., Appellant, v. State of Utah, Appellee.

Case No. 20030160-CA.

Utah Court of Appeals.

Filed February 20, 2004.

Philip J. Danielson and Jose Silva, Provo, for Appellant.

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

Martha Pierce, Salt Lake City, Guardian Ad Litem.

Before Judges Billings, Bench, and Greenwood.

OPINION

GREENWOOD, Judge:

¶1 T.H., an out-of-state, non-custodial father of three children, appeals the juvenile court's order terminating his parental rights. T.H. argues that this court should reverse the juvenile court's termination order because (1) the Division of Child and Family Services (DCFS) failed to serve him with notice of earlier proceedings involving the children's removal from their mother's home and subsequent custody arrangements; and (2) the juvenile court's conclusion that he abandoned his children was not sufficiently supported by the court's findings of fact. We reverse.

BACKGROUND¹

¶2 T.H. is the natural father of three girls: A.H., born January 30, 1998, and S.H. and A.H., twins born February 22, 1999. In April 2000, T.H. and S.W., the children's mother, separated. T.H. moved out of the home and a few months later moved to the Las Vegas, Nevada area. T.H. next saw his children in December 2000, when he and his father visited Utah for Christmas. In February 2001, the Utah Office of Recovery Services (ORS) opened a child support case involving T.H. A notice of the ORS hearing was served on T.H.'s brother at T.H.'s mother's address in Nevada. Without any response from T.H., an order to pay child support was issued in April 2001. This order was mailed to T.H.'s mother's address.

¶3 On April 8, 2001, DCFS removed the three children from their home after their mother, S.W., attempted suicide. A shelter hearing was held on April 16, 2001. The court concluded that the children were neglected by their mother and ordered them into the custody of DCFS, which placed them with their maternal grandmother. It is uncontested that at this time, T.H. was neither informed of the children's removal, nor was he served with notice of the shelter hearing. In late April or early May 2001, the children traveled to Nevada and stayed for about two weeks with their maternal great-aunt, who knew they were in the custody of DCFS. During this time, T.H. visited the children regularly and allegedly discussed their welfare with the great-aunt.

¶4 According to trial testimony, during May and June of 2001, a DCFS worker tried approximately five times to contact T.H. by telephone in Nevada to discuss his children. The worker was unsuccessful in reaching anyone at this number and was unable to leave messages. By this time, according to testimony by a DCFS caseworker, T.H. had learned from the children's mother as well as their maternal grandmother that the children had been taken from S.W.'s home and were in the custody of DCFS. On July 18, 2001, A.H., the oldest girl, was placed in the home of her half-brother's mother and father, A.C. and R.C. A.C. testified that in August, she contacted T.H. and told him A.H. was living with her. She testified that she told T.H. how he could contact her as well as the DCFS caseworker. She also testified that she called T.H. numerous times to tell him about a review hearing scheduled for August 28, 2001, and offered to drive to Nevada and bring him back to Utah for the hearing. T.H. declined the offer and did not attend the hearing. T.H. was not served by DCFS with notice of the August review hearing. After the hearing, T.H. reportedly learned that the juvenile court had transferred custody of the twins to foster parents and that A.H. remained with A.C.

¶5 A new DCFS caseworker testified that in October 2001, she attempted four times in one week to contact T.H. by telephone. Each time the caseworker spoke with a woman who said that T.H. lived there but was not home. Each time, the caseworker left her phone number and messages that the children were in DCFS custody and that she needed to speak with T.H. It was never confirmed whether T.H. actually received the messages or knew of the phone calls.

¶6 The children's maternal great-aunt testified that in December 2001, she told T.H. of a permanency hearing scheduled for January 30, 2002. DCFS again failed to serve T.H. with notice of the permanency hearing. Rather than attending the hearing, T.H. sent his father on his behalf. At this hearing, the court ordered that the children remain in the custody of DCFS and terminated reunification services for the mother. No action was taken regarding T.H.

¶7 In March 2002, DCFS filed a petition for the termination of both S.W. and T.H.'s parental rights. Once again, the petition was not served on T.H., and he was not given notice of the pre-trial hearing scheduled for March 16, 2002. After learning of the petition and hearing from relatives, T.H. voluntarily came to Utah and appeared at the pretrial hearing. At the hearing, T.H. was personally served by DCFS with a copy of the petition and was given notice of the trial date. A trial was held in May 2002, resulting in an order terminating the parental rights of both T.H. and S.W. The termination order as it relates to T.H. was later set aside and a new trial granted. A second trial was held on November 7 and 27, 2002. T.H. attended the trial and was represented by counsel. On January 17, 2003, the juvenile court issued findings of fact and conclusions of law terminating the parental rights of T.H. on two grounds: abandonment and making only token efforts to support, communicate, prevent neglect and/or to avoid being unfit. T.H. appeals that termination order.

ISSUE AND STANDARD OF REVIEW

¶8 T.H. argues that the juvenile court improperly terminated his parental rights because he did not receive notice, as required by law, of earlier proceedings involving his children's removal from their mother and subsequent custody by the State. "Whether a parent has been afforded adequate due process is a question of law, reviewed for correctness." In re J.B., 2002 UT App 268,¶7, 53 P.3d 968.²

ANALYSIS

I. Father's Notice of Prior Proceedings

¶9 T.H. argues that the juvenile court's termination of his parental rights should be set aside because DCFS failed to serve him with notice of various proceedings related to the removal of his children from the mother's home.

A. Parental Due Process

¶10 It is widely recognized that "[a] parent has a fundamental right, protected by the Constitution, to sustain his relationship with his child." In re J.P., 648 P.2d 1364, 1372 (Utah 1982) (quotations and citation omitted); see also Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554 (1978) (recognizing the relationship between parent and child as constitutionally protected). This "freedom of personal choice in matters of . . . family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Quilloin, 434 U.S. at 255, 98 S. Ct. at 555 (alteration in original) (quotations and citation omitted); see also In re S.A., 2001 UT App 307,¶12, 37 P.3d 1166 (recognizing parents' interest in the care, custody, and control of their children as a fundamental liberty interest protected by the Fourteenth Amendment). Therefore, we must ensure that "'the custody, care and nurture of the child reside first in the parents.'" In re J.P., 648 P.2d at 1372 (quoting Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442 (1944)).

¶11 The United States Constitution guarantees that this parental liberty interest cannot be disturbed without due process of law. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626-27 (1923). Thus, "[p]arties to a judicial proceeding are entitled to notice `that a particular issue is being considered by a court' and must be given `an opportunity to present evidence and argument on that issue before decision.'" In re K.M., 965 P.2d 576, 579 (Utah Ct. App. 1998) (citation omitted). Sufficient notice will "advise the parties of the specific issues which they must prepare to meet." Id. Parties are deprived of due process when they are not properly informed of the nature of a proceeding, or notice is not given sufficiently in advance to allow preparation. See id.

¶12 Judicial and administrative proceedings following the State's removal of children from their home are no exception to this fundamental principle. Utah law governing the removal of children, their placement, and the adjudication of parental rights includes clear requirements that the State serve the necessary parties, including noncustodial parents, with notice of the proceedings, and provide them with an opportunity to appear and assert their interests. Utah Code Annotated section 62A-4a-202.2(1) (Supp. 2002) specifically requires DCFS, after taking a child into protective custody, to "immediately use reasonable efforts to locate and inform, through the most efficient means available, the parents, including a noncustodial parent," (i) that the child has been removed, (ii) of the reasons for the removal, (iii) by providing a written statement explaining their procedural rights throughout the process, and (iv) by including a telephone number where they may access further information. The State is also required to give similar notice to both parents prior to shelter hearings, see id. § 78-3a-306(2) (2002), adjudication hearings, see id. § 78-3a-309 (2002), and any other proceeding related to the children's welfare. See id. § 78-3a-314 (2002).

B. Service of Noncustodial Parent Under Rule 4 of the Utah Rules of Civil Procedure

¶13 In addition to the clear statutory requirements, T.H. argues that DCFS was bound by, but failed to follow, the notice requirements outlined in rule 4 of the Utah Rules of Civil Procedure. We agree.

¶14 Utah Code Annotated section 78-3a-304.5 (2002) states that...