State ex rel. K.Y.

CourtCourt of Appeals of Utah
Citation2022 UT App 142
Docket Number20210595-CA
PartiesSTATE OF UTAH, IN THE INTEREST OF K.Y., S.Y., AND M.Y., PERSONS UNDER EIGHTEEN YEARS OF AGE. v. STATE OF UTAH, Appellee. C.Y., Appellant,
Decision Date15 December 2022

2022 UT App 142

STATE OF UTAH, IN THE INTEREST OF K.Y., S.Y., AND M.Y., PERSONS UNDER EIGHTEEN YEARS OF AGE.

C.Y., Appellant,
v.
STATE OF UTAH, Appellee.

No. 20210595-CA

Court of Appeals of Utah

December 15, 2022


Third District Juvenile Court, West Jordan Department The Honorable Tupakk A.G. Renteria No. 1172573

Alexandra Mareschal, Attorney for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Senior Judge Kate Appleby authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan D. Tenney concurred. [1]

APPLEBY, SENIOR JUDGE:

¶1 C.Y. (Mother) is the biological mother of three children, K.Y., S.Y., and M.Y. (collectively, the Children). After Mother administered marijuana to her ten-year-old twin daughters, K.Y. and S.Y. (the twins) by blowing smoke into their mouths, the State

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removed the Children from Mother's custody. The State's primary goal was to reunify Mother and the Children as soon as it was safe to do so. But after twenty-one months of reunification services, the juvenile court found that it was still unsafe to return the Children to Mother's custody. The juvenile court stopped services and found termination of Mother's parental rights in the Children's best interest. On appeal, Mother challenges the court's best interest analysis. We agree with Mother that the court's analysis was inadequate and therefore vacate its termination order and remand for further proceedings.

BACKGROUND

¶2 Early in 2019, Mother administered marijuana to the twins during a time in which they suffered from panic attacks and anxiety, which were in large part trauma responses to sexual abuse perpetrated by their stepfather (Stepfather).[2] For more than one year, Mother struggled to help the twins, and after medications and therapy proved futile, she resorted to blowing marijuana smoke into their mouths; she was arrested soon thereafter.[3] In April, the incident was referred to the Division of Child and Family Services (DCFS). After a DCFS investigation, the juvenile court found the Children "abused . . . and/or . . . neglected" and ordered DCFS to take custody of the Children. DCFS placed them with a maternal aunt (Aunt) and uncle (Uncle).

¶3 When the Children arrived at the kinship placement, it became clear the trouble with Mother's care was multifaceted.

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M.Y., diagnosed with ADHD and neurodevelopmental problems, was developmentally delayed, dysregulated, impulsive, and aggressive. At the age of four, she could barely speak, did not listen, and was only partially toilet trained. She exhibited a range of troubling behaviors: hitting, biting, spitting, running away, and harming herself. As for the twins, they were two grade levels behind in school, heavily medicated, and experiencing severe emotional distress. Each twin suffered trauma from Stepfather's sexual abuse and from Mother forcing them to hit and physically discipline M.Y. Indeed, S.Y. later reported that "the biggest trauma she had been through was being encouraged to physically abuse her sister."

¶4 DCFS determined the primary permanency goal for the family's case was reunification-that is, to return the Children to Mother's custody. It set a concurrent permanency goal of adoption. And it developed a Child and Family Service Plan (the family plan), which required Mother to submit to random drug testing, remain substance abuse free, complete a psychological assessment with a parenting component and comply with treatment recommendations resulting therefrom, maintain stable housing, maintain financial means of support for her and the Children, comply with all court orders, and maintain consistent contact with the DCFS caseworker.

¶5 In June 2019, Mother completed her required psychological evaluation. There, Mother reported experiencing depression and anxiety stemming from her tumultuous childhood. The psychologist found Mother's symptoms consistent with post-traumatic stress disorder and borderline personality disorder and recommended Mother complete "[a] substance abuse assessment, individual and group treatment . . ., an updated medication assessment, parenting classes[,] and filial therapy." DCFS added these recommendations to the family plan.

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¶6 Mother had no difficulty complying with the family plan. She regularly submitted to random drug testing, and (aside from the first two) the tests were negative. By October, Mother's therapist stated Mother was actively participating in appointments and "willingly confront[ing] issues regarding her parenting." Her therapist recommended DCFS consider extending Mother's parent-time privileges. Later that month, during a six-month review hearing, the juvenile court authorized unsupervised parent-time for Mother with the twins.[4] By all accounts, Mother was on a "positive trajectory."

¶7 But by December, although Mother remained in compliance with the family plan and even received authorization for unsupervised parent-time with M.Y., there were some concerns about Mother's "willingness to take direction [in family therapy] and practice the skills that she [was being] taught." In a team meeting with DCFS, the family therapist explained that Mother struggled to accept support and direction and "refused to practice" the techniques recommended to her.

¶8 By January 2020, though, DCFS reported Mother had made some improvements and was more receptive to family therapy. Mother's therapist corroborated this progress. Nevertheless, DCFS retained reservations about returning the Children to her. It thought the twins "need[ed] more time to work on their trust in and relationship with" Mother. The twins remained hesitant to participate in parent-time with Mother and to attend family therapy sessions, and they were nervous about returning to live with her. At one point, K.Y. reported, "I don't really like our mom but I don't like to lose her either but I don't want to live with her." In April, DCFS asked the court to extend reunification services to see whether, with more time, the relationship between the twins

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and Mother could be fortified. The court agreed and found a ninety-day extension in the Children's best interest, stating reunification was "probable." In May, with reunification services extended, DCFS made a referral for Mother to begin peer-parenting. Mother joined a waiting list for that service.

¶9 The extension period passed, though not without incident. In July, Mother, the Children, and Mother's cousin (Cousin) met for parent-time at a public park (the park incident). DCFS had allowed Cousin to supervise the visit as a third-party supervisor. At some point, M.Y. "ran the opposite direction" from Mother. Mother, worried that M.Y. would find herself in a nearby road or river and unable to "run after" M.Y. "fast enough," instructed K.Y. to chase M.Y. and sit on her until Mother could catch up. Mother also allegedly "yell[ed] and scream[ed] at [M.Y.] while holding her down." As the park incident unfolded, S.Y. clung to Cousin, shaking. After this, the twins became emotionally withdrawn. DCFS later made supported findings that the twins suffered emotional abuse and shifted Mother's parent-time supervised by a third-party to parent-time supervised by DCFS, finding that this was in the Children's best interest.[5]

¶10 Nine days after the park incident, the extension period ended. At this point, the court ordered a second ninety-day extension and again stated its belief that reunification was "probable." During this second extension, Mother began the peer parenting program. But in October, this extension, too, ended, and DCFS requested the court terminate reunification services altogether. Mother opposed this request and asked to proceed to an evidentiary permanency hearing, which was set for late November.

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¶11 At the permanency hearing, the juvenile court heard testimony from the twins, Aunt, Mother, and several service providers. The court's goal was to address whether it should terminate or extend reunification services, a relatively simple question given that the case had already exceeded the eighteen-month mark, such that the court could not further extend those services without violating the limits set by statute. See Utah Code Ann. § 80-3-409(6)-(7) (LexisNexis Supp. 2022) (limiting reunification services to twelve months but allowing the court to extend services "for no more than 90 days," and then "for one additional 90-day period" if circumstances support doing so). But because, by statute, termination of reunification services is interwoven with a more foundational question about whether it is safe to return the child or children to the custody of the parent, most of the evidence focused on the Children's safety. See id. § 80-3-409(4) (providing that, where a case has reached its statutory limit, the juvenile court shall terminate reunification services "if a minor is not returned to the minor's parent" (emphasis added)).

¶12 During the hearing, each twin testified that she was afraid to return to Mother's custody; K.Y. expressed worries that Mother would "start hitting" them again or "do her drugs to [them] again," while S.Y. stated concerns that Mother would not allow them to visit Aunt, Uncle, or their friends. For the most part, the twins expressed a desire to continue living in the kinship placement (though S.Y. testified that at least "[a] little bit" of her wanted to live with Mother). As for parent-time, S.Y. testified that she recently enjoyed talking with Mother and found it hard to leave the visit. The twins acknowledged Mother's progress. K.Y. testified that, during recent parent-time, Mother more safely managed M.Y. and did not yell at, threaten, or hurt her, and S.Y. testified that Mother was "nicer" and a better listener. But each was skeptical about whether Mother had meaningfully changed. And each testified extensively about the...

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