State ex rel. K.F.

• Decision Date: 23 January 2009
• Docket Number: No. 20070893.,20070893.
• Citation: 2009 UT 4,201 P.3d 985
• Parties: STATE of Utah, in the interest of K.F., a person under eighteen years of age. A.O., Appellant, v. State of Utah, Appellee.
• Court: Utah Supreme Court

201 P.3d 985

2009 UT 4

STATE of Utah, in the interest of K.F., a person under eighteen years of age A.O., Appellant,

v.

State of Utah, Appellee.

No. 20070893.

Supreme Court of Utah.

January 23, 2009.

K. Andrew Fitzgerald, Moab, for appellant.

Mark L. Shurtleff, Atty. Gen., John M. Peterson, Carol L.C. Verdoia, Asst. Atty's Gen., Salt Lake City, for appellee.

Martha M. Pierce, Salt Lake City, for the Office of the Guardian Ad Litem.

On Certification from the Utah Court of Appeals

DURRANT, Associate Chief Justice:

INTRODUCTION

¶ 1 This case concerns a juvenile court order that changed a minor's ("K.F.") permanency goal from reunification with her mother ("mother") to individualized permanency with a concurrent goal of custody and guardianship. The mother appealed the juvenile court's order to the court of appeals, which then, on its own motion, certified the case for transfer to this court.

¶ 2 The mother raises six issues on appeal:

(1) whether the juvenile court had subject matter jurisdiction;

(2) whether the court order that changed K.F.'s permanency goal from reunification to individualized permanency constitutes a final order from which she may appeal as a matter of right;

(3) whether the evidence was sufficient for the juvenile court to determine that the mother failed to comply with the service plan and that the Division of Child and Family Services ("DCFS") made reasonable efforts to reunify K.F. with her mother;

(4) whether the mother was required to preserve a challenge to the adequacy of the juvenile court's findings to enable this court to address the issue on appeal;

(5) whether the juvenile court's findings were sufficiently detailed to facilitate meaningful appellate review; and

(6) whether the juvenile court should have applied the parental presumption.

¶ 3 The court of appeals certified the case based upon two of these issues that it believed warranted consideration by this court: whether the juvenile court order is final and appealable and whether we ought to revisit our holding in 438 Main Street v. Easy Heat, Inc.,¹ which requires parties to preserve in the trial court the adequacy of the court's findings of fact.

¶ 4 For the reasons detailed below, we affirm the juvenile court's order and hold that (1) the juvenile court had subject matter jurisdiction; (2) a permanency goal of individualized permanency is a final and appealable order; (3) the evidence was sufficient for the juvenile court to find that the mother failed to comply with her service plan and that DCFS made reasonable reunification efforts; (4) 438 Main Street is reaffirmed, and the mother's challenge to the adequacy of the detail in the juvenile court's findings is dismissed because she did not preserve the challenge; and (5) because the mother lost the parental presumption when she voluntarily placed K.F. in state custody, the juvenile court acted properly when it did not apply the parental presumption.

BACKGROUND

¶ 5 K.F. has been placed in state custody on two different occasions, first in 2003 and again in 2006. In 2003, the juvenile court determined K.F. was an "abused, neglected, and/or dependent" child based on stipulated findings that K.F.'s mother and father abused drugs in the home and the father committed acts of domestic violence. After a short period with her grandmother, K.F. was placed in foster care with the Smith family. Her permanency goal was set as reunification with her mother. Nearly a year later, the juvenile court ordered that K.F. be returned home, contingent upon her mother's compliance with several conditions, including that she receive protective supervision services ("protective services") from DCFS. DCFS continued protective services until July 22, 2005, whereupon the juvenile court entered an order staying protective services for the family.

¶ 6 In the summer of 2006, DCFS received a tip alleging that the mother was drinking in the home and neglecting her children. Based on these allegations, the State filed a motion to lift the stay of protective services. On October 18, 2006, the juvenile court held a hearing on the State's motion. At the hearing, the juvenile court noted that protective services had been stayed on the condition that K.F. complete counseling, which she failed to do. In furtherance of its motion, the State pointed to the following: (1) the mother had recently begun individual counseling and received medication for depression based on an incident in which she cut herself to see if a man cared for her; (2) K.F., then age 12, had stayed out all night with a 19-year-old male, and while her mother knew K.F. was out all night with a male, her mother did not know his age; and (3) a registered sex offender was living in the family's home.² As a result, the juvenile court lifted the stay.

¶ 7 On October 23, 2006, the State filed a new, verified petition for custody alleging that K.F. was an "abused, dependent, and/or neglected child."³ At a shelter hearing two days later, K.F. admitted allegations in the petition regarding her behavior. Because of K.F.'s ungovernable behavior, her mother voluntarily placed K.F. in state custody, on the condition that DCFS would again place K.F. with her former foster parents, the Smiths. Subsequently, the juvenile court ordered K.F.'s removal from her mother's home and placed K.F. in the interim custody of DCFS.⁴

¶ 8 On November 15, 2006, based on stipulated findings of fact, the juvenile court found that K.F. was beyond her mother's control and that removal from her mother's home was in K.F.'s best interest. Consequently, the court ordered K.F.'s removal, and she was placed again with the Smiths in foster care.

¶ 9 DCFS filed a service plan identifying K.F.'s permanency goal as reunification with her mother. The service plan required the mother to undergo drug testing and included a recommended counseling plan for K.F. The mother was also expected to be in contact with K.F. at least twice a week and participate in family therapy sessions with K.F. as recommended by the therapist.

¶ 10 Throughout the year, K.F. and her mother attended hearings at which the juvenile court found them in contempt of their service plans.⁵ Nevertheless, K.F.'s permanency goal remained reunification with her mother.

¶ 11 On October 17, 2007, the juvenile court held a dispositional review/12-month hearing. The hearing was a full evidentiary hearing at which K.F.'s therapist, the mother, and DCFS case workers testified.

¶ 12 K.F.'s therapist, Tammy Roberts, testified that K.F. made only minimal progress with her mother because her mother made herself unavailable by moving out of the state and attending only three in-person therapy sessions, two of which were during the same weekend. Additionally, during their therapy sessions, K.F. and her mother discussed past incidents that had upset K.F., including K.F.'s claim that she had been sexually abused. In response to K.F.'s allegations, the mother indicated that the mother "must have been high" or was unaware of these incidents, but the mother responded to K.F. generally with shock and doubt. Nevertheless, Roberts believed that "things were starting to come out and ... that there was some work that they were starting to do, had the capacity to do, and that there would be a need for continued family therapy." At the time of the hearing, Roberts also believed that there was a "substantial risk of detriment to [K.F.'s] emotional well[-]being if she returned to her home" without at least six more months of bimonthly counseling between K.F. and her mother. Roberts also indicated that she had tried her best to accommodate the mother's schedule so that therapy sessions could occur.

¶ 13 The mother testified that she knew that the therapist wanted her to participate in weekly family therapy sessions, but, since moving from Wyoming to Grand Junction, Colorado in January 2007, she was unable to travel to Salt Lake to participate in therapy sessions because of the financial burden associated with travel. Additionally, the mother's job, her other children's school schedules, and her own pregnancy, made it difficult for her to attend therapy sessions. Finally, despite her struggles, the mother claimed that she recognized her flaws and was in a better place in her life.

¶ 14 Jennifer Ruggeri, a DCFS caseworker, testified that in the beginning she was not aware of any financial difficulty the mother had, as the mother had been traveling from Wyoming to visit K.F. in Layton quite frequently. But after the mother moved to Grand Junction in January, she rarely visited K.F. and told Ruggeri that she could not afford to visit her daughter. Ruggeri testified that DCFS responded by offering assistance to enable the mother to visit K.F. and attend therapy sessions. Ruggeri further testified that "no matter how hard we tried to problem solve, there always was an obstacle that we just couldn't get past."

¶ 15 DCFS case worker Leone Besinger testified that the mother had indicated to her that she needed K.F. to be returned to the mother by October 1 because she could no longer afford to pay for K.F.'s foster care.

¶ 16 At the close of the hearing, the juvenile court found by a preponderance of the evidence that returning K.F. to her mother's home would "create a substantial risk of detriment to [K.F.'s] well[-]being and that [she] cannot be returned home." The court also found that there was prima facie evidence that the mother failed to comply with the court-ordered service plan, which failure created a substantial risk of detriment to K.F.'s well-being. Consequently, the juvenile court ordered that reunification efforts be terminated, and the court changed K.F.'s permanency goal from reunification with her mother to individualized permanency with a secondary goal of custody and guardianship. The juvenile court also ordered that DCFS continue engaging the mother in family therapy and reimburse her for travel expenses. The...