State ex rel. P.F.B.

• Citation: 2008 UT App 271,191 P.3d 49
• Decision Date: 17 July 2008
• Docket Number: No. 20070121-CA.,20070121-CA.
• Parties: STATE of Utah, in the interest of P.F.B. and T.F.B., persons under eighteen years of age. R.B., Appellant, v. State of Utah, Appellee.
• Court: Court of Appeals of Utah

191 P.3d 49

2008 UT App 271

STATE of Utah, in the interest of P.F.B. and T.F.B., persons under eighteen years of age.

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

No. 20070121-CA.

Court of Appeals of Utah.

July 17, 2008.

Scott L. Wiggins, Salt Lake City, for Appellant.

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

Martha Pierce, Salt Lake City, Guardian Ad Litem.

Before THORNE, Associate P.J., BILLINGS and McHUGH, JJ.

OPINION

THORNE, Associate Presiding Judge:

¶ 1 R.B. appeals from the juvenile court's Findings of Fact, Conclusions of Law, and Order Terminating Parental Rights, which terminated her parental rights in P.F.B. and T.F.B. We affirm.

BACKGROUND

¶ 2 R.B. (Mother) is the biological mother of P.F.B., born in 1991, and T.F.B., born in 1996 (the Children).¹ The Children were first removed from Mother's care by the state of Minnesota in 1998, when she was arrested on drug charges in Duluth. Mother regained custody of the Children approximately six weeks later, and the case was closed in 1999 when Mother and the Children moved to Nevada. In 2001, Mother and the Children relocated to Utah.

¶ 3 On August 4, 2004, Mother was arrested in Mesquite, Nevada, for possession of methamphetamine and cocaine. Because the Children had been living in Utah the previous two years, a Verified Petition was filed in Utah, and the juvenile court placed the Children in the temporary custody of the Division of Child and Family Services (DCFS). At a dispositional hearing on the petition, the parties stipulated to the return of the Children to Mother's care and custody, subject to protective supervision services. Mother successfully completed the treatment plan ordered in that case, and the juvenile court terminated protective supervision services, released the guardian ad litem, and terminated the court's jurisdiction on May 25, 2005.

¶ 4 On or about July 27, 2006, Mother was again arrested for illegal possession of drugs. At a shelter hearing, the parties stipulated that the removal of the Children was appropriate, and the juvenile court awarded interim custody of the Children to DCFS. At a disposition hearing, the State recommended that no reunification services be offered to Mother. The juvenile court found that it was not in the best interests of the Children to order reunification services. On August 21, 2006, the State filed a Verified Petition for Termination of Parental Rights based on the grounds that, due to her drug problems, (1) Mother had abused and neglected the Children; (2) Mother was an unfit or incompetent parent; (3) Mother neglected, willfully refused, or had been unable or unwilling to remedy the circumstances that caused the removal of the children; (4) Mother failed to make parental adjustment; (5) Mother failed to provide proper parental care and protection to the Children after they were returned to Mother following previous child welfare cases; and (6) Mother had made only token efforts to prevent neglect of the Children.

¶ 5 On August 28, 2006, the juvenile court held a consolidated permanency hearing and pretrial hearing. The State recommended that reunification services not be offered to Mother and that the matter proceed toward the goal of termination of parental rights. Mother testified about her prior success with various outpatient programs and the progress she had recently made, i.e., entering another outpatient treatment program, returning to Alcoholics Anonymous (AA) meetings, attending religious services, and obtaining employment. The juvenile court was not persuaded that reunification services would be successful when they had failed to help Mother secure lasting sobriety in the past, and denied Mother reunification services. At the close of the hearing the juvenile court inquired about the status of the State's request that the court take judicial notice of prior proceedings. The State informed the court that a formal motion would be filed.

¶ 6 On September 5, 2006, the State filed a motion in limine requesting that the juvenile court take judicial notice of facts established at previous proceedings in the case. The juvenile court granted the State's motion the next day and entered an order detailing the scope of its ruling on September 8.

¶ 7 On November 20, 2006, the juvenile court held a termination trial wherein Mother presented evidence that despite the absence of court-ordered reunification services, she had enrolled in and attended an outpatient substance abuse treatment program, been sober for four months, attended AA meetings several times per week, obtained full time employment with the prospect of a promotion, obtained a residence of her own, and stopped seeing her boyfriend two months prior to trial due to his decision to continue using drugs. The State presented evidence that focused on Mother's drug dependence, her parenting ability, and the relationship between Mother and T.F.B.

¶ 8 Mother called three witnesses (a former employer, a friend from AA, and another friend) to testify about her rehabilitative efforts. The State called Dr. Christine Durham, a court-appointed clinical psychologist, to testify regarding Mother's substance dependence and the relationship between Mother and T.F.B. Additionally, Shea Redd, a DCFS caseworker, testified about the relationship between Mother and T.F.B., and T.F.B.'s foster parents testified about their willingness to adopt T.F.B.

¶ 9 At the close of trial, the juvenile court ordered the parties to brief issues pertaining to In re B.R., 2006 UT App 354, 144 P.3d 231.² The parties submitted their briefs at the end of December 2006. On January 5, 2007, the trial court notified the parties that it found the State's trial brief persuasive on the In re B.R. issues, and that it intended to terminate Mother's parental rights in the Children. On January 19, 2007, the juvenile court signed its Findings of Fact, Conclusion of Law, and Order Terminating Parental Rights. Mother now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 10 Mother first argues that the juvenile court failed to comply with the Utah Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA) and therefore lacked jurisdiction. Both jurisdictional questions and questions of statutory interpretation are questions of law that we review for correctness. See Beaver County v. Qwest, Inc., 2001 UT 81, ¶ 8, 31 P.3d 1147 ("The determination of whether a court has subject matter jurisdiction is a question of law, which we review for correctness, according no deference to the district court's determination."); Gutierrez v. Medley, 972 P.2d 913, 914-15 (Utah 1998) ("The proper interpretation and application of a statute is a question of law which we review for correctness. . . .").

¶ 11 Mother also argues that the evidence was insufficient to support the juvenile court's decision to terminate her parental rights. We will not disturb a juvenile court's termination order unless the court "failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence." In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. Mother further argues that the juvenile court committed plain error by taking judicial notice of prior proceedings without providing Mother with adequate notice and opportunity to respond. Under the plain error doctrine, we will reverse the trial court's ruling only if (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the defendant. See State v. Cox, 2007 UT App 317, ¶ 10, 169 P.3d 806.

¶ 12 Lastly, Mother argues that her appointed trial counsel failed to render effective assistance of counsel. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.

ANALYSIS

I. UCCJEA Jurisdiction

¶ 13 Mother first argues that the juvenile court lacked jurisdiction to modify a prior custody order allegedly entered by a Minnesota court in 1998 or 1999.³ Mother bases this argument on the provisions of the UCCJEA, see Utah Code Ann. § 78-45c-101 to -318 (2002 & Supp.2007).

¶ 14 Pursuant to the UCCJEA, a Utah court may not modify a child custody determination rendered by a court of another state unless several conditions are met. See id. § 78-45c-203 (2002). First, the Utah court must have jurisdiction to make an initial determination over the child under Utah Code section 78-45c-201(1)(a), which requires that Utah be the child's current or recent home state,⁴ or under section 78-45c-201(1)(b), which establishes jurisdiction based on certain minimum contacts with the state of Utah in combination with a lack of jurisdiction in any other state.⁵ See id. §§ 78-45c-201, -203. Additionally, either the court issuing the original decision must determine that it no longer has exclusive continuing jurisdiction or is a less convenient forum than Utah, see id. § 78-45c-203(1),⁶ or a court of either state must determine that neither the child nor a parent continues to reside in the first state, see id. § 78-45c-203(2).⁷

¶ 15 Thus, the juvenile court had jurisdiction to modify the prior Minnesota order if Utah was the Children's home state at the commencement of the proceeding and if neither the Children nor either parent continued to reside in Minnesota. See id. §§ 78-45c-201(1)(a), -203(2). Although the juvenile court did not make formal findings of fact as to either of these factors, there was no suggestion below that Utah was not the Children's home state or that any relevant person continued to reside in Minnesota. Trial testimony from multiple witnesses established that Mother and the Children had lived in Utah for several years, and the State had proferred at a prior shelter hearing that the father's last known whereabouts...