State ex rel. A.H. v. State
| Decision Date | 28 May 2021 |
| Docket Number | No. 20190846-CA,20190846-CA |
| Citation | 493 P.3d 81 |
| Court | Utah Court of Appeals |
| Parties | STATE of Utah, IN the INTEREST OF A.H. and N.H., Persons Under Eighteen Years of Age. K.H., Appellant, v. State of Utah, Appellee. |
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee
Martha Pierce and Dixie Jackson, Guardians ad Litem
Opinion
¶1 K.H. (Father) appeals the juvenile court's termination of his parental rights as to A.H. and N.H., raising three arguments. First, Father contends that he was denied his right to effective assistance of counsel. Second, he contends that the juvenile court erred in finding that the Division of Child and Family Services (DCFS) provided reasonable efforts toward reunification. Third, he contends that the juvenile court's reasoning and reliance on the ground of unfitness in terminating his rights was flawed. We affirm.
¶2 Father and R.R. (Mother) have three young children together: four-year-old A.H., two-year-old N.H., and an infant, Am.H., who was born during the course of these proceedings. This appeal concerns only Father's parental rights as to the older children, A.H. and N.H. (collectively, the Children). Mother's parental rights are not at issue in this appeal, and we mention her only when relevant and necessary for context.
¶3 Father and Mother's relationship was "off and on, volatile and abusive." After reports of drug use in the home and an incident of domestic violence in August 2017, the Children were taken into protective custody and placed with foster parents. Soon afterward, the juvenile court ordered Mother and Father not to have contact with each other. In October 2017, the court held Father's adjudication hearing and disposition hearing on the same day. The court concluded that Father neglected the Children, that they should remain in the custody of DCFS, and that the primary goal for the Children was reunification with their parents with a secondary goal of adoption.
¶4 After this hearing, the court also entered findings of fact, including findings about the August 2017 domestic violence incident. Specifically, the court found that Father arrived at the home to find Mother doing drugs. Mother then pulled a knife on Father, and Father twisted her arm to get the knife away before leaving. The Children were present during the incident and were frightened.2
¶5 At the disposition hearing, the juvenile court also addressed the reunification service plan with regard to Father. At that time, a separate plan had not yet been created for Father, but it was explained to him that the requirements of Mother's plan also applied to him. Father confirmed that he had "gone over all the requirements of the service plan," and the court found that Father understood them.
¶6 Beginning in October 2017, a separate service plan created just for Father required, among other things, Father to submit to random drug testing, complete a substance abuse evaluation and a domestic violence assessment, complete a parenting class, participate in weekly supervised visitation with the Children, provide financially for the Children, and maintain a stable and healthy living environment for them. By the December 2017 review hearing, Father had completed the domestic violence assessment but had not called in to drug test. At the next review hearing in February 2018—six months after the Children were removed—Father had attended domestic violence treatment, but he had failed to take all the requested drug tests, had tested positive for THC3 on some drug tests, and had not attended drug treatment. Although at both hearings DCFS and the guardian ad litem (the GAL) asked to schedule a permanency hearing based on Father's and Mother's failure to fully engage in services, the juvenile court denied those requests.
¶7 By the final review hearing in May 2018—nine months after removal—Father was taking domestic violence classes and had been more consistent in calling in to determine whether he should submit to a drug test. But he was still missing some calls and tests and was still testing positive for THC. Additionally, Father had been verbally aggressive with a DCFS caseworker after a visit had to be canceled because he arrived too late. As a result, the court ordered Father to participate in anger management classes.
¶8 The court held a permanency hearing in August 2018—twelve months after removal. At this point, Mother was making progress and had the Children in a trial home placement. For his part, Father was also doing well, and he had begun attending drug and alcohol treatment, domestic violence treatment, and anger management classes. By the parties’ agreement, the court found that there had been substantial compliance with the treatment plan, reunification was likely within ninety days, and continued services were in the Children's best interests. Thus, the court extended reunification services for another three months.
¶9 In November 2018—fifteen months after removal—the juvenile court held a second permanency hearing, during which it considered the GAL's motion to terminate the trial home placement and reunification services. Things had "not gone well" for Mother; she had a positive drug test, missed taking the Children to doctor appointments, and had been kicked out of her in-patient treatment center. Father had "done better"; he had completed his substance abuse treatment and was close to finishing his domestic violence classes. But he had missed call-ins for his drug tests until mid-September 2018 and had not completed a psychological exam. Although DCFS discussed placing the Children with Father, he was "decidedly non-committal" and refused to allow DCFS to inspect his home. When asked who would watch the Children while he worked, he answered, "I've never thought about it, I don't know." And although he was asked in October 2018 to create a plan for how he would handle daycare, work, and medical appointments, he still had not submitted a plan before the second permanency hearing. The Children were returned to foster care, while DCFS, Mother, and Father asked for reunification services to be extended again. But the juvenile court found that even though there had been "substantial progress by both parents, there was not clear and convincing evidence that reunification was probable within 90 days." Accordingly, the court terminated reunification services and changed the Children's permanency goal to adoption.
¶10 Shortly afterward, Mother and Father's newborn, Am.H., was placed in DCFS custody in a separate child welfare case. Even though reunification services were terminated with respect to A.H. and N.H., nearly the same services were ordered and in place for Am.H.’s case.
¶11 DCFS petitioned to terminate Mother's and Father's parental rights as to A.H. and N.H. Father then changed attorneys, and Father's new counsel represented him during the ten-day trial before the juvenile court.
¶12 To his credit, Father continued to improve and "largely rehabilitated himself" in the time between the second permanency hearing and trial. Nevertheless, the juvenile court found that Father's "lackadaisical approach to services and the length of time that it took him to achieve substantial rehabilitation [had a] destructive effect [on] his parent/child relationship," and the court ultimately terminated Father's parental rights as to the Children.
¶13 After trial, the juvenile court issued a seventy-nine-page written decision and made extensive findings regarding Father's efforts and reunification services. Regarding drug testing, the court found that Father tested positive ten times for THC, repeatedly failed to call in to determine if he should test, and provided excuses about his failures to call in that were not credible. Even when the caseworker and the court "constantly reminded" him to submit to drug tests, Father "purposely refused." Instead, Father decided "to test only when he wanted," which effectively "deprived the Court of the ability to determine if he was using drugs other than marijuana" because, in the court's experience, sophisticated drug users know how to time drug tests so that the tests "only reveal[ ] marijuana use but not other substances." The court found that Father's first clean drug test was nine months after the Children's removal and that Father did not consistently call in to be tested until mid-September 2018. Thus, by the second permanency hearing, Father had complied with this aspect of the service plan for only two months. The court noted, however, that he had been clean since services were terminated. As for the required substance abuse evaluation, the court found that Father completed that portion of the service plan.
¶14 Father had mixed results on other requirements in the service plan. He had not finished the domestic violence assessment before the second permanency hearing but did finish before trial. Regarding the anger management classes, Father completed that requirement of the service plan, yet he "continue[d] to have outbursts after he completed treatment." Concerning the psychological evaluation, Father had not completed it before the second permanency hearing.4 Father managed to do so before trial, but it was unknown whether Father had participated in the recommended therapy.
¶15 As for the required parenting class, Father completed it, but "it did not have the desired effect." He was "not able to sufficiently improve his parenting abilities in relation to" A.H. and N.H., and he was not in compliance with this requirement by the second permanency hearing in November 2018.
¶16 One month earlier, in October 2018, Father began...
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K.S. v. State (State ex rel. S.T.)
...commitment on the part of the parents, as well as the availability of services from the State." In re A.H. , 2021 UT App 57, ¶ 47, 493 P.3d 81 (quotation simplified). Here, DCFS offered Mother domestic violence services, and the delay in Mother's diagnosis of bipolar II disorder was not the......