State ex rel. S.F. v. State
| Decision Date | 12 January 2012 |
| Docket Number | No. 20090484–CA.,20090484–CA. |
| Parties | STATE of Utah, in the interest of S.F. and C.F., persons under eighteen years of age.K.F., Appellant, v. State of Utah, Appellee. |
| Court | Utah Court of Appeals |
OPINION TEXT STARTS HERE
Neil D. Skousen, Orem, for Appellant.
Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee.
Martha Pierce, Salt Lake City, Guardian ad Litem.Before Judges ORME, ROTH, and CHRISTIANSEN.
¶ 1 K.F. (Father) appeals the juvenile court order terminating his parental rights to his children, S.F. and C.F. (the Children). Father argues that in failing to comply with the Juvenile Court Act of 1996 after the Children were returned to the Division of Child and Family Services' (DCFS) custody for the second time, the juvenile court exceeded its jurisdiction and violated his due process rights. See Utah Code Ann. §§ 78A–6–101 to–1210 (2008).2 Father also argues that the State presented insufficient evidence to support the termination of his parental rights. We affirm.
¶ 2 Father and H.F. (Mother), who is now deceased,4 are the biological parents of S.F., who was born in 2003, and C.F., who was born in 2006. The Children were placed in DCFS's protective custody on August 14, 2007. At a hearing on October 9, 2007, the parents stipulated to certain factual findings, thereby allowing the juvenile court to adjudicate the Children as neglected. Based upon this finding of neglect, the juvenile court ordered DCFS to continue its custody and guardianship of the Children in an out-of- home placement. Specifically, the court entered the following conclusions of law:
Pursuant to Utah Code Ann. § [78A–6–105(25)(a) (2008) ], the [C] hildren ... are neglected in that [they] have been subjected to mistreatment ...; the [C]hildren lack proper parental care by reason of the fault or habits of [M]other and [Father]; [M]other and [Father] fail or refuse to provide the necessary or proper subsistence, education, medical care, or any other care necessary for the health, safety and well being of the [C]hildren; and the [C]hildren are at risk of being abused and/or neglected because another minor in the home has been abused and/or neglected.[ 5]
¶ 3 The court entered a dispositional order on November 1, 2007, ordering DCFS to provide reunification services to Father and Mother for twelve months as to S.F. and eight months as to C.F. The court also approved a service plan, which required Father and Mother to submit to psychological and parental fitness evaluations, participate in family therapy and parenting classes, regularly visit with the Children, maintain stable and appropriate housing, and maintain a legitimate means for providing for the Children. At the first permanency hearing on April 1, 2008, the court determined that the permanency goal for the Children would be reunification with Father. At several subsequent permanency hearings, the court renewed this permanency goal for Father.6
¶ 4 At the August 12, 2008 permanency hearing, the juvenile court returned custody and guardianship of the Children to Father. The court found that Father, “substantially complied with the treatment plan, reunification of the [C]hildren [with Father] is probable, and extension of services is in the best interest of the [C]hildren.” The court further found, The court modified its order for custody and guardianship from DCFS to Father, specifically stating, “Custody and guardianship of [the Children] is restored to ... Father, ... subject to protective supervision by DCFS, effective Friday, Aug[ust] 15, 2008, no later than midnight.” Additionally, the court stated,
Dad, I am returning physical and legal custody to you today by court order. The responsibility that you have to the [c]ourt and to the kids remains in place to keep them safe, and to continue to work with the agency on ... an in-home plan, because they'll be at home rather than out of home.
The court ordered DCFS to create a new service plan and scheduled a review hearing on November 7, 2008. The court also emphasized, “[W]hat we'll be looking for when next we're in court is [to] see how you're doing with the kids at home [and] to answer any questions that there might be under the new service plan....” At the end of the hearing, the court added, “[On] November 7th we'll be back in court to check on everybody's progress, see how the school year is going, see how daycare is going, visitation and the like.” On September 25, 2008, Father agreed to a service plan that included ensuring that Mother would have only authorized contact with the Children and would not enter the family home.7
¶ 5 Just one month after Father entered into the service plan on October 27, 2008, law enforcement officers responded to two separate incidents of domestic violence involving both parents at Father's home. On November 3, 2008, the juvenile court held a hearing on DCFS's October 30, 2008 Motion for Expedited Placement in Temporary Custody and Verified Petition for Expedited Custody. After receiving the responding officers' testimonies, the court found that Father's
confrontation of [M]other was an inappropriate response. Given the history, [F]ather should have backed out of the home and called the police immediately and sought redress in that manner. Father should have kept the [C]hildren completely protected, and his actions are not consistent with the protection of these [C]hildren.
¶ 6 As to the incident that occurred later on October 27, the court found that Father
told law enforcement that he had observed [M]other damaging his car and he confronted her. [F]ather again chose to confront [M]other about the damage to the car, subjecting the [C]hildren to exposure to further harmful violent behavior on the part of the parents. The [C]hildren were in the home during this incident. There was yelling between the parents.
¶ 7 On a state-provided shelter order form entitled “Custody Hearing Findings and Order,” the court concluded, “[Father's] ... actions, omissions, or habitual action create an environment that poses a threat to the child's health or safety....” See Utah Code Ann. § 78A–6–302(1)(a) (2008). The court therefore ordered that removal was necessary and that it was in the Children's best interests “to be placed in the temporary legal custody of [DCFS] for continued care and placement pending the adjudication hearing.” 8 The court also concluded, by clear and convincing evidence, that it was appropriate for the Children to be removed from Father's custody because “the conduct between the parents continues to place these [C]hildren in danger.” The court also ordered that there should be “[n]o contact between the parents from now [until] further order of the [c]ourt.”
¶ 8 Father stipulated to the removal of the Children and stipulated to the majority of the facts DCFS presented in its Verified Petition for Expedited Custody and at the hearing. But Father contested the State's new factual allegations that relied on Mother's credibility, and he argued at the hearing that the court should not base any of its findings on Mother's version of the October 27 events. The court recognized that while “[n]ot every allegation in the petition has been addressed[ ] as an evidentiary matter,” “the parents' conduct continue[d] to place the [C]hildren in danger” and, thus, it was appropriate to remove them from Father's custody. As to “[t]he rest of the factual allegations in the petition, the [c]ourt ... refer[red the parents] to mediation and second pretrial [hearing],” which the court scheduled on December 2, 2008.
¶ 9 At the December 2, 2008 pretrial hearing, the court denied Father's request for oral argument on whether reunification could be extended because Father had not yet filed the required motion. But the court scheduled a hearing on December 8, 2008, in anticipation of Father's filing of a written motion for reunification services. Additionally, the court scheduled a trial on the State's Petition for Termination of Parental Rights, which the State had filed at the pretrial hearing. At the December 2 hearing, Father's counsel confirmed, “[M]y understanding is ... that we [a]re going to have an opportunity to try to argue for reunification services prior to going forward with the [termination of parental rights].”
¶ 10 In Father's Motion for Reunification Services and at the December 8, 2008 hearing, Father argued that reunification services were justified because, among other reasons, he recognized that he needed to place the Children's welfare and safety first and to obey the court's no-contact order with Mother. Father conceded that he violated the service plan, which was grounds for not offering reunification services. However, he urged the juvenile court to give him a second chance and to consider his positive accomplishments and the Children's best interests. Father stated, “In light of the [C]hildren's obvious strong bond to [me], it would be in the [C]hildren's best interests to order reunification services and to not terminate [my] parental rights.” 9 According to Father, the Children's bond was demonstrated by the caseworker's opinion that “[t]he [C]hildren were very excited to see their father” at a supervised visit, “mak[ing] it very clear that [Father] is worthy of one more chance to demonstrate ... that he can protect [and] that he can keep Mom out of the picture.” Father also argued that he had a constitutionally-protected liberty interest in the Children that included a right to correct his shortcomings during reunification services. Finally, Father represented that Mother had attempted to sabotage Father's...
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