STATE EX REL. AC

• Decision Date: 29 July 2004
• Docket Number: No. 20030322-CA.,20030322-CA.
• Citation: 2004 UT App 255,97 P.3d 706
• Parties: STATE of Utah, in the interest of A.C., R.C., R.C., J.C., and O.C., persons under eighteen years of age. J.C., Respondent and Appellant, v. State of Utah, Petitioner and Appellee.
• Court: Utah Court of Appeals

97 P.3d 706

2004 UT App 255

STATE of Utah, in the interest of A.C., R.C., R.C., J.C., and O.C., persons under eighteen years of age.

J.C., Respondent and Appellant, v. State of Utah, Petitioner and Appellee.

No. 20030322-CA.

Court of Appeals of Utah.

July 29, 2004.

John E. Laherty, Lokken & Associates PC, Salt Lake City, for Appellant.

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

Martha Pierce and Tracy S. Mills, Salt Lake City, Guardians Ad Litem.

Before Judges BILLINGS, BENCH, and THORNE.

OPINION

THORNE, Judge:

¶ 1 Father appeals the termination of his parental rights, arguing that the evidence was insufficient to support the juvenile court's conclusion that the Division of Child and Family Services (DCFS) made reasonable efforts to reunify him with his minor children.

BACKGROUND

¶ 2 J.C. is the natural father of the minor children A.C., R.C., J.C., R.C., and O.C. (the Children). On May 14, 2001, DCFS contacted the Children's parents after receiving reports of domestic violence, nonsupervision, and neglect. After investigating, a DCFS caseworker informed the parents that they each needed to submit to urine screens, to send the Children to school on a regular basis, and to get the Children necessary medical and dental care.¹ When the parents did not comply with these demands, DCFS removed the Children from the home.

¶ 3 On June 4, 2001, DCFS filed a verified petition in juvenile court alleging that the Children were neglected and abused, as those terms are defined in the Utah Code. After review, the juvenile court ordered DCFS to "provide appropriate services as soon as possible in an effort to reunify the family." On July 12, 2001, Father admitted to the allegations in the Amended Verified Petition and the juvenile court found that the Children were neglected and removed the Children from the parents' custody. The court then stayed the order "on a day to day basis contingent on the parents['] compliance with the service plan."

¶ 4 The court returned the Children to the home in July 2001 and ordered the parents to "submit to random urine screens," "maintain their housing, [obtain] stable employment for the father, cooperate with the caseworker[,] and attend all court hearings in juvenile and criminal court." The parents were also ordered to apply for health insurance, to "meet the medical needs of their children," and to ensure that the Children "attend[ed] school every day unless medically excused."

¶ 5 In October 2001, the court concluded that the parents had not successfully complied with the treatment plan because, among other things, Father had not submitted to the random drug tests. DCFS removed the Children from the home and placed them in foster care. On November 15, 2001, the court ordered both parents to participate in the Dependency Drug Court Program provided by the Third District Juvenile Court. This order was renewed on November 30th and December 5th. On December 17, 2001, after failing to appear in court, and failing to acknowledge his drug problem, Father was discharged from the drug court program.²

¶ 6 On October 15, 2002, DCFS filed a petition to terminate the parents' parental rights. In the petition, DCFS alleged that it had "initiated four service plans to the parents with the goal of having their children returned to their custody." DCFS further alleged that Father had "not maintained suitable housing," that he failed to acknowledge the occurrence of domestic violence between he and his wife, that he had not completed a substance abuse program, and that he was unable to financially support the Children.³ ¶ 7 After a two-day trial, the juvenile court found that (1) the Children had been neglected; (2) Father was an unfit parent; (3) the Children had been in out-of-home placement and "there is a substantial likelihood that [Father] is not... capable of exercising proper and effective parental care"; (4) Father had failed to "make a parental adjustment"; and (5) Father had only made "token efforts to ... avoid being an unfit parent." The juvenile court also found that:

The Division of Child and Family Services has provided reasonable and adequate services for [Father] ... during the course of there [sic] involvement with the family. Their services include but are not limited to the following:

(a) Family preservation services in the home;

(b) The State arranged for and paid for substance abuse evaluations for both parents;

(c) Both parents were given the opportunity to participate in the dependency Drug Court;

(d) The State arranged for family therapy for both parents at Odyssey House and for [Mother] with a private therapist;

(e) The State arranged for and facilitated visitation for the parents and children;

(f) The State attempted to assist [Father] with obtaining housing;

(g) The State made referrals for domestic violence, anger management and drug treatment for [Father];

....

(j) The State has provided extensive counseling for all five children.

Relying upon Utah Code Annotated section 78-3a-407(4) (1996),⁴ the court terminated Father's parental rights, finding that DCFS

has made diligent efforts to provide appropriate services to [parents] and they have substantially neglected, willfully refused, or [have] been unable or unwilling to remedy the circumstances that caused the children to be in an out-of-home placement, and there is a substantial likelihood that [parents] will not be capable of exercising proper and effective parental care in the near future, thereby, justifying a termination of their parental rights.

Father appeals.

ANALYSIS

¶ 8 As a threshold matter, the State argues that Father failed to preserve his appellate claim relating to the adequacy and reasonableness of DCFS's reunification services. See, e.g., State v. Richins, 2004 UT App 36, ¶ 8, 86 P.3d 759

("As a general rule, appellate courts will not consider an issue, including a constitutional argument, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances." (quotations and citation omitted)). We disagree. Throughout trial Father questioned witnesses regarding the type of services DCFS offered and provided. Father also stated, in his closing argument, that

[t]he services that DCFS required [Father] to do were unreasonable within the time period. They were unreasonable within his financial status and unreasonable in expecting him to seek out the services without the help of a specific case worker.

We conclude that Father sufficiently preserved his argument. See In re C.C., 2002 UT App 149, ¶ 5, 48 P.3d 244

.

¶ 9 Father argues that the juvenile court's determination that DCFS made "reasonable efforts" to reunify him with the Children is not supported. Utah Code Annotated section 78-3a-407(3)(a) (2002) provides that "[i]n any case in which the court has directed the division to provide reunification services to a parent, the court must find that the division made reasonable efforts to provide those services before the court may terminate the parent's rights" pursuant to Utah Code Annotated sections 78-3a-407 (1)(b), (1)(c), (1)(d), (1)(e), (1)(f), or (1)(h). In In re M.C., 2003 UT App 429, 82 P.3d 1159, we reviewed a trial court's finding that DCFS had made reasonable reunification efforts. There, we concluded that the issue involved "application of statutory law to the facts and ... present[ed a] mixed question of fact and law." Id. at ¶ 16 (citations, quotations, and alterations omitted). Accordingly, we "review[ed] 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." Id. (citations and quotations omitted).⁵

¶ 10 In M.C., however, we did not fully explore the amount of discretion granted to the trial court's application of the law to the facts. See id. at ¶ 16. Before we reach the merits of Father's appeal, we first address this question. In State v. Pena, 869 P.2d 932 (Utah 1994), the Utah Supreme Court recognized that appeals of "the application of law to fact," id. at 936, necessarily require a determination of "when the articulated legal rule to be applied to a set of facts ... embodies a de facto grant of discretion." Id. at 937. Consequently, the court provided the following as guidance for determining when such a grant of discretion exists:

[R]easons ... useful in discerning when some degree of discretion ought to be left to a trial court [are]: (i) when the facts to which the legal rule is to be applied are so complex and varying that no rule adequately addressing the relevance of all these facts can be spelled out; (ii) when the situation to which the legal principle is to be applied is sufficiently new to the courts that appellate judges are unable to anticipate and articulate definitively what factors should be outcome determinative; and (iii) when the trial judge has observed "facts," such as a witness's appearance and demeanor, relevant to the application of the law that cannot be adequately reflected in the record available to appellate courts.

Id., at 938-39 (citation omitted).

¶ 11 The factual situations that give rise to the termination of parental rights vary greatly; thus, the number, quality, and array of services that should be provided for reunification also vary greatly. In fact, Utah Code Annotated section 62A-4a-202(4)(c) (Supp.2003) explicitly provides that DCFS "shall allow family preservation caseworkers to be creative and flexible in responding to the needs of each individual family," (emphasis added), thereby acknowledging that DCFS must treat each family according to their needs. Consequently, termination cases present situations where "the facts to which the legal rule is to be applied are so complex and varying that no rule adequately addressing the relevance of all these facts can be spelled out." Pe...