K.S. v. State, 20220029-CA

CourtCourt of Appeals of Utah
Writing for the CourtCHRISTIANSEN FORSTER, JUDGE
Citation2022 UT App 130
PartiesK.S., Appellant, v. State of Utah, Appellee.
Docket Number20220029-CA
Decision Date17 November 2022

2022 UT App 130

K.S., Appellant,
v.

State of Utah, Appellee.

No. 20220029-CA

Court of Appeals of Utah

November 17, 2022


Eighth District Juvenile Court, Vernal Department The Honorable Ryan B. Evershed No. 1175935

Sheleigh A. Harding, Attorney for Appellant

Sean D. Reyes, John M. Peterson, and Joseph A. Stewart, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Judge Michele M. Christiansen Forster authored this Opinion, in which Judge Gregory K. Orme and Senior Judge Kate Appleby concurred. [1]

CHRISTIANSEN FORSTER, JUDGE

¶1 Following a bench trial, the juvenile court entered an order terminating K.S.'s (Mother) parental rights to her children, J.P., S.T., and Z.T. (collectively, the Children). Mother contends the court erred in determining the State made reasonable efforts to

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provide reunification services to her and in concluding termination of her parental rights was in the best interest of the Children. Because Mother has not persuaded us that the juvenile court committed reversible error, we affirm its order terminating Mother's parental rights.

BACKGROUND[2]

¶2 Mother is the biological mother of all three children. In March 2014, the biological father of the two oldest children died. After his death, Mother began a relationship with R.P. (Father), who is the biological father to the youngest child.

¶3 Mother and Father have a history of illegal drug use, substance abuse, and domestic violence. In June 2019, they were involved in a domestic violence incident that took place in front of the Children. In response, the Division of Child and Family Services (DCFS) filed a petition seeking protective supervision services. In August 2019, the juvenile court adjudicated the Children as abused and neglected by Mother and Father; the Children were placed under the protective supervision of the State but were not removed from the home. The court ordered DCFS to provide protective supervision services to the family and to work with Mother and Father to create a Child and Family Plan (the service plan). Mother and Father also were ordered to "remain drug and alcohol free."

¶4 DCFS prepared the service plan "with the input of the parents." A disposition hearing was held in September 2019, during which the juvenile court reviewed the service plan and

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determined that the services offered by DCFS constituted "reasonable efforts" on the part of DCFS.

¶5 The Children remained under in-home protective custody from August 2019 until February 2020. During that time, the court held three review hearings. At each of these hearings, the court found that "DCFS had made reasonable efforts to provide services and finalize" the service plan. However, Mother and Father were continually non-compliant with the service plan. The couple had engaged in another physical fight in the presence of the Children, and each had relapsed into using methamphetamine and refused drug testing.

¶6 In February 2020, Mother was arrested for driving under the influence with the Children in the vehicle. Following Mother's arrest, the guardian ad litem filed a Motion for Expedited Placement and Temporary Custody. At a shelter hearing on the motion, the juvenile court removed the Children from Mother and Father's custody and placed them in the temporary custody of DCFS.

¶7 In March 2020, DCFS filed a new Child and Family Plan (the Plan). The juvenile court held a second disposition hearing, during which it found that Mother, Father, and DCFS had worked together to create the Plan that would address the issues in the case. Among other things, the Plan required that Mother and Father (1) remain drug and alcohol free, (2) participate in random drug testing, (3) attend NA/AA or any other approved group meetings on a weekly basis, (4) complete a substance abuse and mental health assessment and follow the resulting recommendations, (5) have no new convictions or arrests and work to resolve any current charges, (6) establish gainful employment and maintain stable housing for the Children, (7) notify DCFS of any changes in living arrangements, (8) maintain regular contact with their DCFS caseworker, (9) attend all family team meetings and court hearings,

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(10) complete parenting classes recommended by DCFS, (11) attend a trauma-informed parenting class, and (12) work with Family First or Peer Parenting to establish additional parenting skills. The court adopted the Plan, concluding that the reunification services outlined in the Plan constituted "reasonable efforts" by DCFS.

¶8 DCFS continued to provide reunification services to Mother and Father until February 2021. During the period when services were provided, the juvenile court held regular review hearings. At the conclusion of each hearing, the court specifically found that "DCFS had made reasonable efforts to provide services."

¶9 In February 2021, the court convened a permanency hearing. During the hearing, the court found that "[r]easonable efforts were made by DCFS . . . to provide services and finalize the [Plan] and its permanency goal of reunification," but "[t]he parents have failed to participate in, to comply with . . ., or to meet the goals of" the Plan. As a result, the court terminated all reunification services and changed the Children's primary permanency goal to adoption.

¶10 Thereafter, the State filed a Petition for Termination of Parental Rights. A two-day trial on the petition was held in October and November 2021, at the close of which the court found that the State had proved multiple statutory grounds for termination. The court then evaluated whether termination of Mother's parental rights was in the Children's best interest. On this point, the court made sixteen findings. Among other things, the court considered that the Children had been residing with the foster parents since November 2020. The court found that during that time, the Children and the foster parents "developed bonds of love and affection"; the Children "integrated into the home with the foster parents"; the foster parents "cared for the [C]hildren's emotional, physical and mental needs"; and the

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Children "look to the foster parents for parental guidance, love, and affection." Overall, while in the foster parents' home, the Children developed "much greater emotional ties with the foster parents than with Mother," had made "remarkable strides . . . both emotionally and physically," and "went from struggling academically and emotionally to thriving in both areas."

¶11 In comparison, the court found that Mother was "unwilling or unable" to take steps to "improve the [C]hildren's lives and ability to function in society" or to "care[] for the [C]hildren's emotional, physical and mental needs." Visitation with Mother had negatively affected the Children. Following parent time, they "would act out in sexual ways and act in a violent manner." However, after the court discontinued parent time, "all the significant behavioral issues stopped." Finally, the court recognized that although Mother had made "some recent efforts to adjust her circumstances, conduct, and conditions," these recent efforts, which "were made over two years after the initial in-home case was opened," were not "sufficient to make it in the Children's best interest to . . . return them to her care."

¶12 Based on these findings, the juvenile court concluded it was in the best interest of the Children to terminate Mother's parental rights so the Children could be adopted by the foster parents.

¶13 The juvenile court also determined it was "strictly necessary" to terminate Mother's parental rights to facilitate that adoption. During the court's oral ruling at the termination hearing, it explained that it considered alternative placement options before concluding it was strictly necessary to terminate Mother's parental rights. Specifically, the court considered placement with Mother, Father, and Mother's family. However, because the Children could not be safely returned at that time to any of those individuals, "the only options" left would be to "terminate parental rights" or to "place [the Children] in the

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permanent custody and guardianship of the foster parents." The court memorialized this explanation in its written ruling, stating that prior to its strictly necessary determination, it "considered other options for the [C]hildren including placement with a family member, guardianship with foster parents, and returning the [C]hildren to Mother and/or [Father]." However, "adoption with the foster parents" would best "satisf[y] the [C]hildren's need for safety, stability, and permanency."

ISSUES AND STANDARDS OF REVIEW

¶14 Mother now appeals the juvenile court's order terminating her parental rights and raises two issues for our review. First, Mother argues the juvenile court erred in concluding DCFS made reasonable efforts to reunite her with the Children. "A court's determination that DCFS made reasonable efforts to provide reunification services involves an application of statutory law to the facts that presents a mixed question of fact and law, requiring review of the juvenile court's factual findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts." In re N.K., 2020 UT App 26, ¶ 15, 461 P.3d 1116 (quotation simplified). However, Mother acknowledges that she did not raise this argument below, and she therefore asks us to review the court's reasonable-efforts finding for plain error. In other words, she asks us to conclude that the reunification services provided by the State were so obviously insufficient that the court should have been aware of the deficiencies and plainly erred in concluding that DCFS had made reasonable efforts. To succeed on a claim of plain error, Mother must show that "(1) an error exists; (2) the error should have been obvious to the...

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