State ex rel. J.A.L. v. State

Decision Date24 February 2022
Docket Number20200271
Citation2022 UT 12
PartiesState of Utah, in the Interest of J.A.L. and J.O.L., Persons Under Eighteen Years of Age J.L. and J.A., Appellants, v. State of Utah, Appellee.
CourtUtah Supreme Court

Heard September 16, 2021

On Certification from the Court of Appeals Fifth District Juvenile, Iron County The Honorable Troy A. Little No 1161641, 1161642

Attorneys:[1]

Alexandra Mareschal, J. Frederic Voros, Jr., Julie J. Nelson Salt Lake City, Christa G. Nelson, Cedar City, for appellant J.L.

Colleen K. Coebergh, Salt Lake City, Candice N. Reid, Cedar City, for appellant J.A.

Sean D. Reyes, Att'y Gen., Carol L. C. Verdoia, John M. Peterson, Asst. Att'ys Gen., Salt Lake City, for appellee

Martha Pierce, Salt Lake City, Guardian ad Litem for J.A.L. and J.O.L. Associate Chief Justice Lee authored the opinion of the Court in which Chief Justice Durrant, Justice Himonas, Justice Pearce, and Justice Petersen joined.

OPINION

Lee, Associate Chief Justice.

¶1 This is an appeal from a juvenile court order terminating the parental rights of the mother and father of two children. The Division of Child and Family Services has been engaged with this family since at least July 2018. A range of support services has been provided over time. The children were removed from the mother's custody in December 2018 and placed in foster care. And at various times both the father and mother have been subject to a court order prohibiting contact between them and to orders requiring treatment for domestic violence, substance abuse, and mental health issues.

¶2 The Division initially pursued a permanency goal of reunification with the parents. When reunification failed, the Division petitioned to change the goal to adoption. After a hearing and an order granting the new permanency goal, the children were moved to a kinship placement with the father's brother in Arkansas. The uncle had agreed to adopt the children. And after a subsequent hearing on the termination of parental rights, the juvenile court entered an order terminating the parental rights of both the mother and father.

¶3 In the termination proceeding, the juvenile court found that both parents were "unfit" and had "neglected" the children. The court based its determination on factors listed in Utah Code section 78A-6-508(2)-concluding that the children were "abused and neglected" by "[t]he domestic violence perpetrated by the Father and the Mother's failure to protect the children," and that the parents' substance abuse "render[ed] [them] unable to care for the children."

¶4 After finding statutory grounds to terminate, the court determined that termination was "strictly necessary" in the "best interest" of the children. It concluded that the children could not be returned home "today"-or "at this point"-because the mother and father had failed to sufficiently rehabilitate themselves. And it held that the children's "tremendous need for permanency and stability" could not be met while preserving the parents' rights within a permanent custody and guardianship arrangement.

¶5 Six weeks after the termination order was entered, the adoptive placement with the uncle failed. The children returned to state custody in Utah.

¶6 After the kinship placement failed, the father and mother filed motions for post-judgment relief. The mother sought 60(b)(6) relief in light of the "extraordinary circumstances" of the failure of the kinship placement. The father filed a 60(b)(6) motion on the same grounds. He also sought relief under 60(b)(5), asserting that the failed kinship placement meant that the judgment was "no longer equitable." The juvenile court denied the motions.

¶7 The mother and father appealed. The court of appeals certified the matter to this court based on a perceived need for our review of "a challenge to the current appellate standard of review in child welfare proceedings" and to consider "an issue regarding the effect of statutory changes on supreme court case law."

¶8 The mother and father raise different claims of error on appeal. The mother challenges only the juvenile court's findings, made at an evidentiary permanency hearing and allegedly at a subsequent review hearing, that she appeared "under the influence" at various hearings. She asserts that a judge is not qualified to make such findings without expert testimony. And she contends that the court denied her due process of law by making the findings without giving her notice and an opportunity to be heard.

¶9 The father challenges the juvenile court's best interest determination[2] and the court's denial of his motions for post-judgment relief. As an initial matter, the father asks us to conduct de novo review of termination proceedings-and overturn the deferential standard of review established in State ex rel. B.R., 2007 UT 82, 171 P.3d 435. He also asks us to require specific factual findings and legal conclusions in parental rights termination orders. Regardless of our decision on the appropriate standard of review, the father contends that the juvenile court erred in concluding that termination of the father's rights was "strictly necessary" to promote the "best interest" of the children.

¶10 We affirm in part and reverse and vacate in part. First, we note that the mother's claims are unpreserved and hold that she has failed to carry the burden of establishing plain error. Second, we reject the father's request that we abandon a deferential standard of review of a best interest determination but find threshold legal errors in the juvenile court's best interest analysis-in the assessment of whether the father had made sufficient progress in his rehabilitation under Utah Code section 78A-6-509(1)(b), and in the assessment of whether termination of parental rights is "strictly necessary" under Utah Code section 78A-6-507. Third, we vacate and remand for a new best interest determination under the law as clarified in this opinion. In so doing, we note that the mother failed to highlight the legal errors identified by the father in her briefs on appeal but conclude that the mother's rights should be on the table on remand in the unique circumstances of this case.

I

¶11 The mother challenges the juvenile court's findings that she appeared "under the influence" at court hearings. She asserts that the judge is not qualified to make such findings without expert testimony. And she claims that the court infringed her right to due process by making these findings without notice that the observations were being made and without affording her an opportunity to respond.

¶12 None of these points was preserved in the juvenile court, however. To succeed on appeal, the mother would therefore need to make a showing of plain error-that "(1) an error exists; (2) the error should have been obvious to the trial court; and (3) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome." State v. Low, 2008 UT 58, ¶ 20, 192 P.3d 867 (citations and internal quotation marks omitted).[3] And the mother has failed to carry that burden.

¶13 We have previously upheld a juvenile court's legal conclusions based on observations of "outbursts" made in open court. In re T.E., 2011 UT 51, ¶¶ 44-45, 266 P.3d 739. And the juvenile court in this case did not even go so far as to make a legal conclusion. It relied on its observation of the mother in court to require her to be subjected to testing for substance use-a follow-up under a standing order requiring ongoing substance abuse testing.[4]So we do not see how it could have been error-and certainly not an obvious error-for the court to use its observations as a basis for such testing where the mother's sobriety was already at issue.

¶14 Nor do we see a basis for concluding that any alleged error was prejudicial. In the termination order, the court refers to its "personal observations" of the mother only once-as a single consideration in a set of reasons supporting one of the five grounds for termination found by the court. And earlier in the proceedings, the court continued reunification services for the mother despite making a concurrent finding that "[t]hree quarters of the times the Mother is in court it appears she [is] under the influence of drugs"- and despite terminating reunification services as to the father in the same evidentiary permanency hearing. The mother has not established that there is any likelihood that her parental rights would not have been terminated if the juvenile court had not ordered testing on the basis of its observations, or if it had afforded the mother the right to respond that she asserts as a matter of due process.

II

¶15 The father challenges the termination of his parental rights on two grounds. He contends that the juvenile court erred in (a) concluding that termination of his rights was "strictly necessary" in the "best interest" of the children; and (b) denying his motions for post-judgment relief. We reverse on the first ground and decline to reach the second because it is mooted by our threshold decision.

A

¶16 The father prefaces his challenge to the juvenile court's best interest analysis with a request that we overrule our longstanding case law on the standard of review of parental rights termination orders-requesting that we replace the established deferential standard of review with a de novo review for correctness. But we rejected parallel requests in two recent decisions. See In re G.D. 2021 UT 19, ¶¶ 1, 3, 491 P.3d 867; State ex rel. E.R., 2021 UT 36, ¶ 13, 496 P.3d 58. And the father has not identified a persuasive ground for reconsidering these decisions.

¶17 In E.R. we clarified that the best interest inquiry is a fact-like "mixed determination of law and...

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