STATE EX REL. ER

• Decision Date: 08 March 2001
• Docket Number: No. 990334-CA.,990334-CA.
• Parties: STATE of Utah, in the interest of E.R., J.R., J.R., and C.R., persons under eighteen years of age. F.R. and T.R., Appellants, v. State of Utah, Appellee.
• Court: Utah Court of Appeals

21 P.3d 680

2001 UT App 66

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

F.R. and T.R., Appellants, v. State of Utah, Appellee.

No. 990334-CA.

Court of Appeals of Utah.

March 8, 2001.

Matthew Hilton, Springville, for Appellants.

Mark L. Shurtleff, Atty. Gen., and Jeffrey S. Buckner, Asst. Atty. Gen., Salt Lake City, for Appellee.

Martha Pierce, Salt Lake City, Guardian Ad Litem.

Before Judges BILLINGS, DAVIS, and ORME.

OPINION

DAVIS, Judge:

¶ 1 F.R. and T.R. (Parents) appeal the results of a permanency hearing and ask that we review three issues: First, did the juvenile court improperly conclude at the permanency hearing that the two oldest children should be placed in permanent foster care and the two youngest children be placed for adoption? Second, did the juvenile court illegally consider the Guardian ad Litem's (GAL) petition to terminate parental rights? Third, did the juvenile court err in granting the State permission to administer psychiatric medications to the children?

BACKGROUND

¶ 2 The Division of Child and Family Services (DCFS) has monitored Parents' four children, E.R, J.R., J.R., and C.R., since at least 1996. In December 1996, the juvenile court issued a pick-up order authorizing DCFS to remove the children from Parents' custody. Although removed, the children were placed back with Parents and a service plan was ordered; however, custody and guardianship remained with DCFS. On May 23, 1997, Parents filed an "objection to service plan," contesting the plan's requirement of parenting classes and psychological evaluation of Parents. In July 1997, Parents obtained permission to take the children out of state for thirty days. Four months later, the court issued another pick-up order because Parents did not return with the children. The children were found with Parents in Arizona in February 1998, removed from Parents' custody, and returned to Utah.

¶ 3 On April 28, 1998, the court ordered a modified service plan pursuant to a hearing on Parents' objection to the service plan. Parents acquiesced to the modified plan. On June 16, 1998, an expedited hearing was held due to a suicidal gesture made by the oldest child. The court determined that DCFS, as guardian of the children, could administer psychiatric medication to the children without Parents' consent. Parents' attorney conceded that the court had the authority to grant such an order.

¶ 4 A permanency motion and termination petition were heard together in March 1999. The court denied the GAL's termination petition, finding that the GAL had established grounds for termination of parental rights, but that termination was not in the best interest of the children. In regards to the permanency hearing, based on Parents' lack of compliance with the modified service plan, the court ordered that the permanency goal of the two oldest children be long term foster care, and the permanency goal for the two youngest children be adoption.¹

ISSUES AND STANDARDS OF REVIEW

¶ 5 We review three issues. First, did the juvenile court err at the permanency hearing by ordering that the two oldest children be placed in permanent foster care and the two youngest children be placed for adoption? A review of a permanency plan involves interpretation of statutory provisions which this court generally reviews without deference to the lower court's decision. See In re K.M., 965 P.2d 576, 579 (Utah Ct.App.1998). Further, when appellant challenges the court's findings of fact, appellant "`"must marshall [sic] the evidence in support of the findings and then demonstrate that despite this evidence, the [juvenile] court's findings are so lacking in support as to be against the clear weight of the evidence."'" In re D.G., 938 P.2d 298, 301 (Utah Ct.App.1997)(alterations in original) (citations omitted).

¶ 6 Second, did the juvenile court illegally consider the GAL's petition to terminate parental rights? This presents a question of statutory interpretation which we review for correctness, giving no deference to the trial court's interpretation. See In re R.N.J., 908 P.2d 345, 349 (Utah Ct.App.1995)(overruled on other grounds).

¶ 7 Third, did the juvenile court err in granting the State permission to administer psychiatric medications to the children? Juvenile courts are granted broad discretion in making such determinations. See In re M.L., 965 P.2d 551, 559 (Utah Ct.App.1998). However, in order for this court to review this issue, Parents must first show that this court has jurisdiction to hear the appeal. See Utah R.App. P. 3(a). For this court to have jurisdiction to hear the claim, the claim must arise from the order being appealed. Id.

ANALYSIS

A. Permanency Hearing

¶ 8 Parents contest the results of the permanency hearing arguing the following: (1) Parents were denied access to certain evidence and discovery material; (2) the plan imposed upon Parents was illegal; (3) the juvenile court erred in ruling that Parents failed to fulfill portions of the plan; and (4) the court erred by ordering adoption as the permanency goal for the two youngest children when parental rights had not yet been terminated.

1) Access to Evidence and Discovery Material

¶ 9 Rule 24 of the Utah Rules of Appellate Procedure requires appellant's brief to contain "citation to the record showing that the issue was preserved in the trial court." Utah R.App. P. 24(a)(5)(A). No such citation was provided in this case. This failure is particularly significant because Parents are appealing two rulings that were not part of the permanency order. Our review of the record reveals that Parents never objected to discovery defects or denial of access to evidence before trial. "Under ordinary circumstances, 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." State v. Helmick, 2000 UT 70, ¶ 8, 9 P.3d 164; see also State v. Gibbons, 740 P.2d 1309, 1311 (Utah 1987). Here, Parents complained to the trial court about discovery issues during the trial; however, these complaints were voiced well after the pre-trial meeting set up specifically to deal with such matters. Further, Parents did not request a sanction or object to the material during the trial itself. Thus, Parents did not preserve any discovery or evidence denial issues for our review.²

2) Legality of Service Plan

¶ 10 Likewise, Parents waived their right to appeal the legality of the modified service plan.³ Here, the service plan had been in place for about one year before the permanency hearing. Parents never objected to the plan⁴ or petitioned the trial court for its modification⁵ and never attempted to appeal the final order arising from the dispositional hearing.⁶ See Utah Code Ann. § 78-3a-311 (1996) (stating service plan may be ordered at dispositional hearing); Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996) (holding issues not raised at trial level cannot be argued for the first time on appeal); Hart v. Salt Lake County Comm n, 945 P.2d 125, 130 (Utah Ct.App.1997) (holding appellate court lacks jurisdiction if party does not preserve claim by first raising it before trial court).⁷

3) Parents' Compliance with the Service Plan

¶ 11 Parents also argue that the juvenile court erred in the permanency hearing by finding that they failed to meet the requirements of the service plan. The court's determination was based on the evidence presented to the court at the hearing. Parents are required to marshal the evidence properly so that we can assess their claim. See In re R.A.F., 863 P.2d 1331, 1333 (Utah Ct.App.1993). Here, they fail to do so. However, if we were to review Parents' claim, we would review the juvenile court's factual findings based upon the clearly erroneous standard. See In re D.G., 938 P.2d 298, 301 (Utah Ct.App.1997). In addition, we have held that the juvenile court in particular is given a "wide latitude of discretion as to the judgments arrived at" based upon not only the court's opportunity to judge credibility firsthand, but also based on the juvenile court judges'"special training, experience and interest in this field, and . devot[ed]. . . attention to such matters .... In re F.D., 14 Utah 2d 47, 376 P.2d 948, 951 (Utah 1962). With this in mind, we are not convinced that the trial court went against the clear weight of the evidence in finding that the requirements of the service plan were not met. The trial court evaluated the evidence before it, and that evidence supported a finding that Parents did little or nothing to fulfill their obligations under the service plan. Thus, Parents' arguments fail because they did not marshal the evidence, and even if they had, the trial court did not go against the clear weight of the evidence in making this finding.

4) Permanency Goal of Children⁸

¶ 12 Finally, it is not improper for the court to deny termination, but set adoption as a permanency goal. See In re J.J.T., 877 P.2d 161, 165 & nn. 4-5 (Utah Ct.App.1994) (distinguishing between depriving parent of custody of child and terminating parent's rights); In re D.M., 790 P.2d 562, 567-68 & nn. 2-3 (Utah Ct.App.1990) (distinguishing between legal custody orders and termination of parental rights and requirements for each). Parents argue that In re R.A.J., 1999 UT App 329, 991 P.2d 1118, stands for the proposition that adoption cannot be the permanency goal if parental rights have not been terminated. However, Parents misread R.A.J. in which foster parents unsuccessfully sought to terminate the rights of the natural parents. R.A.J. holds that the court must "bifurcate[ ] the issues of parental unfitness and best interest of the child" in termination hearings. Id. at 118. In R.A.J., the juvenile court found grounds to terminate parental rights, but also found that termination was not in the best interest of the children. See id. at ¶ 4. This court...