State ex rel. M.J. v. State , 20090675–CA.

Decision Date28 December 2011
Docket NumberNo. 20090675–CA.,20090675–CA.
Citation2011 UT App 398,696 Utah Adv. Rep. 10,266 P.3d 850
PartiesSTATE of Utah, in the interest of M.J. and S.J., persons under eighteen years of age.J.J. and A.J., Appellants, v. State of Utah, Appellee.
CourtUtah Court of Appeals


Michael D. Olsen and McKette H. Allred, Castle Dale, for Appellants.

Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee.

Martha Pierce, Salt Lake City, Guardian ad Litem.Before Judges DAVIS, ORME, and ROTH.


ORME, Judge:

¶ 1 A.J. and J.J. (Mother and Father, respectively) appeal the juvenile court's order terminating their parental rights in M.J. and S.J. (the Children). On appeal, Mother and Father argue that the juvenile court erred in determining that it did not have “reason to know” that the Children were Indian children under the Indian Child Welfare Act (ICWA), 15 U.S.C. §§ 1901–63 (2006), and that ICWA, therefore, did not apply in this case; that the evidence was insufficient to justify termination of their parental rights; and that the juvenile court committed plain error by failing to follow the proper procedure when ordering the Children to be removed. We affirm.


¶ 2 Mother and Father are the biological parents of the Children. The Children were both born prematurely. M.J., as a result, has had significant medical problems throughout her life.1 In April 2008, the Division of Child and Family Services (DCFS) received a referral of physical neglect and child endangerment against Mother. Following an investigation, DCFS discovered that eleven-month-old M.J. weighed only ten pounds and had not gained weight in months, suffered from a twisted-neck condition known as torticollis, and had deteriorating health “due to a lack of follow through” by Mother. DCFS also learned in early May 2008 that both Children had failed hearing exams during a visit to the doctor's office. During the visit, the doctor also expressed concern about the Children's hygiene, as they appeared dirty and had severe diaper rash. The doctor also reported that he had prescribed antibiotics to the Children for ear infections but that Mother had failed to fill—let alone administer—the prescription as directed. Based on these findings, DCFS filed a Verified Petition for Protective Supervision Services in May 2008 alleging that the Children were abused and/or neglected.

¶ 3 At a May 22, 2008 pretrial hearing, Mother and Father claimed that they had joined an Indian tribe. Instead of identifying the particular tribe they had joined, Mother and Father indicated that they were members of the Oklevueha Native American Church. The court ordered Mother and Father to provide valid documentation or other proof of any tribal affiliation within five days. In response, Mother and Father provided only their Oklevueha Native American Church membership cards.

¶ 4 In July 2008, after mediation with DCFS, Mother and Father stipulated to findings of fact, conclusions of law, and an order from the juvenile court. While the findings recognized Mother and Father's significant domestic violence and substance abuse issues, the juvenile court's primary focus was Mother and Father's consistent neglect of the Children's medical needs, with their failure to meet M.J.'s needs comprising the bulk of the findings. Pursuant to Mother and Father's stipulation, the juvenile court adjudicated the Children as abused and/or neglected. The juvenile court then placed the Children under DCFS's protective supervision. The court also imposed a Child and Family Plan requiring Mother and Father to complete a domestic violence treatment program, undergo drug testing, take M.J. to her doctor appointments, comply with doctors' orders concerning M.J.'s medical care, and maintain stable employment.

¶ 5 In November 2008, the juvenile court held a review hearing. At the hearing, Mother and Father entered into stipulated findings regarding their failure to comply with the Child and Family Plan and the court's other orders. The juvenile court scheduled another review hearing for December 2008 and expressly warned Mother and Father that the consequence of noncompliance with the Child and Family Plan and the court's orders would be an order for removal of the Children.

¶ 6 One month later at the December 2008 review hearing, after hearing testimony from both Mother and Father, the juvenile court determined that Mother and Father had demonstrated “substantial non-compliance from the very beginning” with the Child and Family Plan and the court's orders. The court then decided to remove the Children from Mother and Father's custody, emphasizing that the decision was based on Father's prescription drug abuse and Mother and Father's demonstrated inability to meet M.J.'s medical needs. Accordingly, the court found it in the Children's best interests to end protective supervision services and place them in the full custody of DCFS. The court further ordered that there would be no reunification services and that DCFS should file a petition to terminate Mother's and Father's parental rights within forty-five days. In the interim, Mother and Father were permitted weekly visits with the Children.

¶ 7 In March 2009, Mother and Father asserted that they were members of the Oglala Sioux Tribe because they were members of the Oklevueha Native American Church. Mother and Father were specifically asked to provide verification of their claimed membership in the Oglala Sioux Tribe because, DCFS informed Mother and Father, the Oglala Sioux Tribe membership rules require an individual to have blood heritage to be a member of the Tribe. Despite being informed of this requirement, Mother and Father provided no verification of their alleged tribal membership and made no claim they had any blood heritage in the Oglala Sioux Tribe.

¶ 8 In June 2009, the juvenile court held a termination trial. At trial, Mother and Father continued to assert that they were members of the Oglala Sioux Tribe based on their membership in the Oklevueha Native American Church. In their initial round of testimony, neither Mother nor Father claimed that they had any Indian ancestry. Father even specifically testified that he did not have Indian ancestry. Mother and Father did produce, however, a letter purportedly from the Oglala Sioux Tribe, written on Oklevueha Native American Church letterhead, which appeared to contain tribal enrollment numbers for Mother and Father. During a recess, Mother's and Father's attorneys, in the presence of DCFS workers, called the Oglala Sioux Tribe to verify the enrollment numbers found in the letter. A representative of the Oglala Sioux Tribe informed Mother's and Father's attorneys that the letter was not from the Tribe and that the supposed enrollment numbers were in no way affiliated with the Tribe.

¶ 9 During a second round of testimony, Mother asserted for the first time that she and the Children had Indian blood and were “federally recognized” in the Oglala Sioux Tribe. She further declared that she and the Children did not have to be formally recognized as members of the Tribe because, she claimed, they could “be part of it if [they] want[ed] to because [they] have Native American blood.” Nevertheless, based on Mother and Father's failure to provide documentation of tribal enrollment, the juvenile court found that the Children and their parents are not “eligible for membership in a federally recognized Native American Tribe” and that ICWA therefore did not apply to the proceedings.

¶ 10 In its subsequent order, the court also made extensive findings of fact regarding Mother's and Father's fitness as parents. The juvenile court noted Mother and Father's history of failure to provide for the medical needs of the Children, particularly focusing on M.J.'s significant medical problems that Mother and Father had not properly addressed. The juvenile court also found that Mother and Father had not exhibited improvement in their ability to care for the Children. Specifically, it found that at trial, Father “was unable to demonstrate a reasonable understanding of [M.J.'s] medical needs” and had an immature attitude about parenting in general. Further, the court found that while Mother's testimony demonstrated a “fair understanding” of M.J.'s medical needs, her past actions indicated otherwise. Indeed, the court found that Mother had repeatedly ignored advice from medical professionals regarding care of the Children, as she “just did what [she] felt was best” for the Children.

¶ 11 The juvenile court also noted that Mother and Father had a history of domestic violence and substance abuse and had failed to complete treatment programs for these problems prior to the termination hearing. Additionally, the juvenile court found that Mother and Father had extensive criminal histories, including pending DUI charges for Mother and outstanding warrants for Father at the time of the trial. Finally, the court noted that Mother and Father had failed to provide the stable home environment that the Children needed, especially the high-risk M.J. Based on these findings, the juvenile court concluded that multiple grounds existed for terminating Mother's and Father's parental rights including abuse and/or neglect, unfitness or incompetence, failure of parental adjustment, and “token efforts.”

¶ 12 Additionally, the court found that since the Children had been placed in foster care, they had thrived. Notably, M.J. had gained weight, learned to walk, and received regular medical attention. Further, the court found that since being removed from Mother and Father, the Children had benefitted from being in a stable home where they received love, nurturing, and proper medical care. Thus, the court determined that it was in the best interest of the Children to terminate Mother's and Father's parental rights. Accordingly, because grounds for termination existed and termination was in the Children's best...

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