STATE EX REL. JB

• Decision Date: 08 August 2002
• Docket Number: No. 20010260-CA.,20010260-CA.
• Parties: STATE of Utah, in the interest of J.B., a person under eighteen years of age. E.B., Appellant, v. State of Utah, Appellee.
• Court: Utah Court of Appeals

53 P.3d 958

2002 UT App 267

STATE of Utah, in the interest of J.B., a person under eighteen years of age.

E.B., Appellant, v. State of Utah, Appellee.

No. 20010260-CA.

Court of Appeals of Utah.

August 8, 2002.

Jeffrey J. Noland, Noland Law Office, Salt Lake City, for Appellant.

Mark L. Shurtleff, Attorney General, and Carol L. Verdoia, Assistant Attorney General, Salt Lake City, for Appellee.

Martha Pierce, Salt Lake City, Guardian Ad Litem.

Before BILLINGS, Associate P.J., and DAVIS, and GREENWOOD, JJ.

OPINION

DAVIS, Judge:

¶ 1 Appellant E.B. (Mother) appeals the juvenile court's termination of her parental rights to J.B., claiming the court erred in relying upon facts from a previous termination proceeding involving J.B.'s older siblings. Mother also claims that the juvenile court erred by not considering Utah Code Ann. § 78-3a-409 (Supp.2001)¹ in making its determination. We affirm.

BACKGROUND

¶ 2 Mother is the natural mother of six children: G.B., C.B., L.B., E.S.B., B.B., and J.B. The two older children, G.B. and C.B., are currently living in long-term foster care placements. Mother's parental rights to three of the children, L.B., E.S.B., and B.B., were terminated and today we have affirmed the juvenile court's ruling in that case in a separate opinion. See In re G.B., 2002 UT App 270, 53 P.3d 963

. The father, R.B., voluntarily relinquished his parental rights to the same three children and is not a party to the appeal from that proceeding. The father has filed a separate appeal from the termination proceeding involving J.B., which we have also affirmed today in a separate opinion. See In re J.B., 2002 UT App 268, 53 P.3d 968.

¶ 3 This family has an extensive history with the Division of Child and Family Services (DCFS). Between December 1986 and November 1998, DCFS received approximately eighteen referrals for child abuse and neglect by the parents, at least ten of which were substantiated on grounds of sexual abuse, physical abuse, physical neglect, failure to protect, emotional maltreatment, and medical neglect. In 1996, the children were first placed in foster care after being adjudicated as neglected children. The children were returned home in November 1997.

¶ 4 On or about October 9, 1998, E.S.B. disclosed to her therapist that she recently had been sexually abused by a male friend of her parents who had been living with and caring for the children in their parent's home. Mother believed the friend would never do such a thing and told DCFS that she thought E.S.B. had made up the story. Because Mother refused to ensure that this friend would be kept away from E.S.B., the child was placed into shelter care. On October 13, 1998, the other four children were removed from the family home. At a shelter hearing, Mother again asserted her belief that E.S.B. had made up the story. The juvenile court ordered DCFS to return the children to their home that day. Prior to their return, however, the children were interviewed at the Children's Justice Center. During the interview, E.S.B. asserted that her siblings, C.B., L.B., and B.B., had also been sexually inappropriate with her. C.B. and L.B. admitted touching each other's and E.S.B.'s genitalia on a frequent or regular basis. Based on this new information, the children were not returned home, and instead were placed in shelter care.

¶ 5 At a hearing on October 16, 1998, the juvenile court granted temporary custody of the children to DCFS. Custody and guardianship was granted to DCFS on December 9, 1998, when the children were adjudicated abused and neglected by both parents. The two oldest children, G.B. and C.B., remain in foster care with long-term foster care as the permanency goal. L.B., E.S.B., and B.B. are in foster homes awaiting adoption.

¶ 6 Over the many years DCFS was involved with this family, the parents were provided with numerous services. These services included homemaking; nutrition; hygiene; parent advocacy; peer parenting; parenting classes; caseworker involvement; individual, couple, and family therapy; sex abuse treatment; handicapped and medical assistance; an attachment evaluation; psychological evaluations; visitation; Court-Appointed Special Advocate (CASA) support; transportation; and special education. In addition, ongoing family preservation services were provided since 1993.

¶ 7 The State filed a verified petition for termination of parental rights on August 13, 1999. Trial on the State's petition concluded on September 11, 2000.² Based on the evidence presented and the testimony given, the juvenile court found that Mother had neglected her children by failing to protect them from sexual activity among themselves. The court further found that because she was in the home when the majority of the acts involving her husband and children occurred, she had failed to protect them from sexual abuse by her husband.

¶ 8 The court also recognized that DCFS had provided numerous services to this family. However, because Mother was unable or unwilling to acknowledge the family's problems, they were of little benefit. Accordingly, on October 23, 2000, pursuant to Utah Code Ann. § 78-3a-407 (Supp.2001), the juvenile court terminated parental rights to L.B., E.S.B., and B.B. based on grounds of unfitness, neglect, failure to remedy circumstances causing out-of-home placement, and best interest of the children.

¶ 9 The trial on the first petition to terminate Mother's parental rights concluded on September 11, 2000, and the final order was entered on October 23, 2000. On August 20, 2000, J.B. was born in the state of Idaho. Mother created a fictitious birth certificate which gave the child a different name and listed the names of Mother's friends as the natural parents of J.B. Mother concealed her pregnancy and the birth of J.B. during the course of termination proceedings regarding the older siblings.

¶ 10 DCFS learned of the birth of J.B. and began an investigation. When questioned, Mother told DCFS that she was babysitting J.B. for a friend who worked at night. Mother presented the false birth certificate to validate her story. DCFS visited the friend, who subsequently confessed to the deception. J.B. was removed from the parental home on or about October 17, 2000, as a child at risk under Utah Code Ann. § 78-3a-103(1)(r)(i)(E) (Supp.2001). Temporary custody and guardianship of J.B. was granted to DCFS at a shelter hearing held on October 30, 2000.

¶ 11 On November 13, 2000, the State filed its termination petition concerning J.B. and a trial was held on January 25, 2001. The State moved the court to take judicial notice of all prior proceedings, including the first termination findings and order pertaining to the older siblings. Mother and the father objected. The court heard argument and granted the motion, taking judicial notice of all prior proceedings involving the family.

¶ 12 Mother, the father, their friend B.R., and three DCFS caseworkers testified at the trial regarding J.B. Based on that testimony and the historical facts surrounding the parents' abuse and neglect of their older children, the juvenile court terminated Mother's and the father's parental rights to J.B. pursuant to Utah Code Ann. § 78-3a-407 by finding parental unfitness, failure to remedy circumstances causing out-of-home placement, token efforts, and best interest of the child.

¶ 13 Specifically, the court found that the parents did nothing to resolve their issues, modify their behavior, or correct the circumstances that caused them to lose custody of their five older children. The court further found that because J.B.'s siblings had been abused and neglected by his parents, he was at risk of abuse and neglect. Finally, the court found that J.B. was in an adoptive home where he was thriving and had bonded to his foster parents who desired to adopt him.

ISSUES AND STANDARDS OF REVIEW

¶ 14 Mother appeals the juvenile court's termination of her parental rights to J.B., claiming the court erred in relying upon facts from a previous termination proceeding involving J.B.'s older siblings.³ We review the juvenile court's judicial notice of prior adjudicated facts under Rule 201 of the Utah Rules of Evidence for abuse of discretion. See Riche v. Riche, 784 P.2d 465, 468 (Utah Ct.App.1989)

.

¶ 15 Mother also claims that the juvenile court erred in failing to apply Utah Code Ann. § 78-3a-409. This issue presents a mixed question of law and fact requiring a review of the juvenile court's application of statutory law to the facts. See In re C.B., 1999 UT App 293, ¶ 5, 989 P.2d 76

. Findings of fact are reviewed for clear error, with deference given to the juvenile court. See id. Conclusions of law are reviewed by this court for correctness, giving no deference to the trial court. See id. However, we do afford the juvenile court some discretion in applying the law to the facts. See id.

ANALYSIS

¶ 16 Mother first argues that the evidence relied upon by the juvenile court was insufficient because: (1) the court's findings of fact and conclusions of law regarding her unfitness are based upon prior evidence and findings presented at the termination trial involving her older children, (2) during the second termination trial the State failed to meet its burden of presenting evidence regarding her then present circumstances, and (3) the court should not have relied on the prior unfitness findings relating to her older children because J.B. was not in her custody at that time.

¶ 17 First, we address whether it was proper for the juvenile court to rely on previously adjudicated facts involving J.B.'s older siblings arising from proceedings in which Mother participated, and whether these findings, together with the evidence and findings from the J.B. termination proceeding, were sufficient to terminate Mother's parental rights. Under rule 201, judicially noticed facts are conclusively established in civil actions for purposes of the fact finding process,...