State ex rel. J.J.W.
| Decision Date | 14 October 2022 |
| Docket Number | 20210706-CA |
| Parties | STATE OF UTAH, IN THE INTEREST OF J.J.W., A PERSON UNDER EIGHTEEN YEARS OF AGE. v. J.V.W., Appellant. M.E.S. AND D.C.S., Appellees, |
| Court | Utah Court of Appeals |
Eighth District Court, Vernal Department The Honorable Samuel P Chiara No. 163800064
Alexandra Mareschal, Attorney for Appellant
John D. Hancock, Attorney for Appellees
OPINION
¶1 J.J.W.'s (Child) maternal grandmother (Grandmother) and her husband filed a petition for adoption of Child, along with a petition seeking the termination of the parental rights of child's father, J.V.W (Father). After a bench trial, the district court found that multiple statutory grounds for termination were present, and that it was in Child's best interest for Father's rights to be terminated. Father now appeals the court's best-interest determination, asserting that the court's analysis was at a minimum, incomplete, because the court did not adequately consider other possible options short of termination. We agree with Father, and therefore vacate the court's termination order and remand for further proceedings consistent with this opinion.
¶2 Child-who was born in 2011-lived with his mother (Mother) his half-brother (Brother, who was Mother's child from a previous relationship), and Father in Vernal, Utah without relevant incident until 2016. By that point, Father and Mother- who both had a history of involvement with illegal drug use-had relapsed, and they made the voluntary decision to have both boys (collectively, the Children) go and live with Grandmother while they made an effort to get clean. They made this decision, in part, because they preferred to make their own choice regarding placement of the Children, and because they wished to avoid involving the state's Division of Child and Family Services, which they feared might separate the Children. They agreed to the entry of a court order placing the Children in the guardianship of Grandmother and a maternal uncle (Uncle). The guardianship order gave Father and Mother the right to three hours of parent-time each week. The general idea behind the guardianship- apparently shared by all involved at the time-was that the Children would be returned to Father and Mother if they were able to get clean. Indeed, Mother stated that, in her view, "the guardianship was more of a safety net" in case she and Father relapsed again.
¶3 Father and Mother made genuine efforts to improve their situation and, just a few months later, toward the end of 2016, Grandmother returned the Children to Father and Mother. For about the next year, the Children lived with Father and Mother without apparent incident.
¶4 Toward the end of 2017, however, Father and Mother relapsed again, and this led to problems in the home. For instance, living conditions in the home had become substandard-the district court later found, in an unchallenged finding, that "the home was in [an] uninhabitable condition"-and the Children were missing a lot of school. On January 1, 2018, the Children returned to Grandmother's care, with the previous guardianship arrangement still in place. Father believed that, if he and Mother "could get some clean time, [they] would get the [C]hildren back" as they had before.
¶5 In 2018, shortly after the Children went to live with Grandmother for the second time, Father was charged with drug crimes and spent several months incarcerated. After his release, Father entered a sixty-day inpatient drug rehabilitation program in the Salt Lake area. After that, Father spent four months in "day treatment," during which time he spent some six hours per day in a combination of drug treatment programs and therapy. He then spent another few months in a nearby "sober living" situation, which included "aftercare" sessions with his treatment provider. He "coined out of all three" programs, meaning that he successfully completed them at the "highest" level; indeed, the district court later found that Father had "graduated with high honors from his drug treatment programs." He was also released from court-supervised probation some two years early, because the judge overseeing his criminal case recognized that Father had "satisfactorily complied with the conditions of" his probation.
¶6 During this time, however, Father had no contact-even telephonic or written contact-with Child at all. And Father did not attempt to make any financial contribution toward Child's care and well-being. At one point during his therapeutic process, Father reached out to Grandmother via text message to "let [her] know where [he] was in [his] therapy," but received no reply.
¶7 In February 2020, after completing his drug treatment programs, Father moved back to Vernal because he "wanted to be closer to where the kids were." At this point, Father was apparently clean and drug-free, but was still working on obtaining a job and permanent housing. He reached out to Grandmother, in an attempt to start the process of reunifying with Child, but Grandmother resisted these efforts, telling him that "nothing was going to change" and that he was not allowed to see or even send gifts to the Children. Grandmother eventually stopped responding to Father's messages.
¶8 In August 2020, Grandmother and her husband (Grandparents) filed a petition to terminate all parents' rights to the Children, including-as relevant to this appeal-Father's rights with regard to Child.[1] Soon after receiving notice of the petition, Father moved to intervene in the case, and in addition filed a motion seeking to assert his three-hour-per-week parent-time that the 2016 guardianship agreement allowed. The court granted Father's motion to intervene but, upon Grandparents' request, deferred the hearing on Father's motion for parent-time and decided to combine it with the termination trial. As a result, Father was not afforded any parent-time during the pendency of the case, and by the time of trial he had not seen Child for over three years (since January 2018).
¶9 The district court held a one-day trial in August 2021 to consider Grandparents' petition. At trial, Grandparents testified and presented testimony from Uncle, Uncle's wife, and Father. In addition to presenting his own testimony, Father called Mother as a witness, as well as his own mother; he also attempted to call his current girlfriend, with whom he was living at the time of trial, but the court refused to allow her to testify because Father failed to list her in his pretrial disclosures.
¶10 Grandmother testified that she considers the Children to be her own, believes they have a strong sibling bond, and feels that adoption is in their best interest because they "need and deserve [the] stability of a good home." Grandmother described the developmental delays Child was experiencing when he first came to live with her, explaining how he had trouble regulating his emotions and using his motor skills. She testified about how she is still working with Child to improve his motor skills by making him practice his handwriting and by playing Legos with him. And she testified that Child had never indicated any desire to have contact with Father and that whenever the possibility is mentioned "[h]e withdraws into himself," "rubs his hands together in a nervous motion," and "just kind of shuts down."
¶11 Grandmother's husband testified that he and Grandmother were financially able to provide for the Children and that the boys shared a close sibling bond. On cross-examination, he stated that he was open to letting Child see Mother and Father even if the adoption were approved, but also offered his view that it was in Child's best interest for Child "to stay at my place" rather than "bounce back and forth between" Grandparents' custody and his parents' custody.
¶12 Uncle, the co-guardian, then testified about the instances in which he and his wife picked up the Children from their home after the two relapses. He recalled that, during the 2016 removal, there was a "stench" in the house that made him want to vomit, and he described the situation as "wrecked squalor." He also recalled that, during the 2018 removal, there were mountains of moldy laundry and giant water stains on the laundry room floor, broken glass and some sort of oily liquid on the kitchen floor, and a sink overflowing with dishes and rotten food. He testified that, despite snow on the ground, the Children came outside in sandals with no coats. Uncle explained that he currently lives next door to, and shares a yard with, Grandparents, and that his children are more like siblings than cousins to Child. He also testified that Child is actively involved in hockey and has thrived in Grandparents' care. Uncle's wife corroborated Uncle's testimony about the poor condition of the house during both pickups.
¶13 At the close of the evidentiary presentation, the district court made an oral ruling terminating Father's parental rights.[2]The court made extensive findings-generally not challenged here-that at least two statutory grounds for termination existed: abandonment and past neglect. In particular, the court found that Father had abandoned Child by failing to make sufficient efforts to communicate with him from January 2018 until at least August 2020. See Utah Code Ann. § 80-4-302(1)(b)-(c) (LexisNexis Supp 2022) (). The court explained that abandonment also includes the failure "to show the normal interests of a natural parent...
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