STATE EX REL. SL

• Decision Date: 30 December 1999
• Docket Number: No. 990128-CA.,990128-CA.
• Citation: 995 P.2d 17,1999 Utah Ct. App. 390
• Parties: STATE of Utah, In the Interest of S.L., a person under eighteen years of age. State of Utah, Appellee and Cross-Appellant, v. C.A., Appellant and Cross-Appellee.
• Court: Utah Court of Appeals

995 P.2d 17

1999 Utah Ct. App. 390

STATE of Utah, In the Interest of S.L., a person under eighteen years of age.

State of Utah, Appellee and Cross-Appellant, v. C.A., Appellant and Cross-Appellee.

No. 990128-CA.

Court of Appeals of Utah.

December 30, 1999.

John E. Laherty, Laherty & Associates, PC, Salt Lake City, for Appellant.

Jan Graham, Atty. Gen., and Carol L. Verdoia, Atty. General's Office, Salt Lake City, for Appellee.

Martha Pierce and Tracy Mills, Salt Lake City, Guardians Ad Litem.

Before WILKINS, P.J., GREENWOOD, Associate P.J., and JACKSON, J.

OPINION

JACKSON, Judge:

¶ 1 C.A. appeals from a juvenile court order terminating her parental rights to her son, S.L., under Utah Code Ann. §§ 78-3a-401 to -414 (1996 & Supp.1999). We affirm. The Division of Child and Family Services (DCFS) cross-appeals the juvenile court's stay of the termination order, which was previously vacated by this court.

BACKGROUND

¶ 2 "`Because the termination of parental rights is fact sensitive, we review the facts of the controversy in detail.'" In re J.P., 921 P.2d 1012, 1014 (Utah Ct.App.1996) (citation omitted).

¶ 3 C.A.'s son, S.L., was born on May 31, 1995.¹ In the months before S.L.'s removal from C.A.'s custody, C.A. had been living mainly on the streets and leaving S.L. in her parents' care. C.A. had a history of using cocaine, methamphetamine, and marijuana, and was sometimes on drugs while with S.L. In late August 1997, S.L. found marijuana in C.A.'s purse and gave it to his grandfather. When the grandfather confronted C.A. with this, she became violent and the police were called.

¶ 4 C.A. was charged with assault and possessing marijuana, and S.L. was taken into protective custody by DCFS. When he was taken into custody by DCFS, S.L. was two years and three months old. He had a bite mark on his cheek that had been inflicted by his mother as a disciplinary tactic.

¶ 15 DCFS filed a petition on September 3, 1997, alleging that S.L. was abused and neglected. C.A. admitted to the allegations, stating that she was not able to care for her child at that time. As a result, the juvenile court found that S.L. was neglected and granted custody to DCFS.

¶ 16 DCFS prepared a service plan, with reunification as the goal, which covered the period from September 30, 1997 to March 30, 1998. The plan required C.A. to complete a residential drug treatment program; stay off drugs; obtain and keep suitable housing and employment; and complete parenting classes, peer parenting instruction, individual therapy, anger management therapy, and family therapy with S.L. C.A. began a residential drug treatment program at the House of Hope in late October 1997, but voluntarily left the program on December 23, 1997. As a result, S.L. was never placed with C.A. in the House of Hope's mother and toddler program.

¶ 17 Soon after leaving the House of Hope, C.A. began an outpatient drug treatment program at Odyssey House. C.A. submitted to two urinalysis drug tests in January 1998, testing positive for cocaine both times. C.A. admitted that she used cocaine during that time. She left the Odyssey House program voluntarily after about three weeks.

¶ 18 From about January 27 to May 5, 1998, C.A. had no contact with S.L. or with DCFS. During that time, she says she "disappeared" and was doing drugs, living variously on the streets and with friends. Because of her drug use and failure to complete a drug treatment program, C.A. did not satisfy the requirements of the first service plan. During the time when C.A. "disappeared," DCFS prepared a second treatment plan, covering the period of March 1 through September 1, 1998. The terms of the second plan were identical to the first.

¶ 19 A hearing was held on March 2, 1998 to adopt the second treatment plan. C.A. later testified that she was in sporadic contact with her parents during her "disappearance," and that the notice of this hearing would have gone to her parents' house. Nonetheless, C.A. failed to attend the March 2 hearing. The court adopted the second treatment plan. The court ordered that C.A. have no visitation with S.L. until she had reentered drug treatment and shown some compliance with the treatment plan.

¶ 10 C.A. resurfaced in late April 1998 and contacted DCFS. She decided that she wanted to enter drug treatment and regain custody of her son. She moved in with her brother's family, on the condition that she not use drugs. By July 1998, she was employed full-time and participating in outpatient drug treatment, and was allowed to begin visiting S.L. again. In late July, her brother and sister-in-law confronted her with reports that she had been using drugs with her friends. They also said they found marijuana seeds and stems in her belongings. They said that C.A. admitted she had used drugs twice recently, but said she would not do so again. When she returned home late a few days later, her brother and sister-in-law, believing she had been using drugs again, insisted that she move out.

¶ 11 C.A. took a urinalysis on the morning of August 5, 1998, which was negative.² Because her caseworker suspected she might be drinking large quantities of water to flush out her system, C.A. was ordered to take another urinalysis later that afternoon.³ The second urinalysis tested positive for marijuana. At trial, C.A. denied using drugs during this time but admitted being in the presence of others who were smoking marijuana.

¶ 12 A twelve-month permanency hearing was held on September 3, 1998. The parties, including C.A., stipulated that S.L. could not be returned to C.A. at that time without a substantial risk of harm to him. Accordingly, reunification services were discontinued, and S.L.'s permanency goal was changed to adoption. The State petitioned to terminate C.A.'s parental rights on September 11, 1998.

¶ 13 Trial on the petition was held on December 16 and 17, 1998. At the time of trial, C.A. had completed or was in the process of completing most of the requirements of the second service plan — which had expired on September 1, 1998. At the end of the trial, the court took the matter under advisement. On January 8, 1999, the court entered Findings of Fact, Conclusions of Law, and an Order. In a section captioned "Parental Fitness and Competence," the court found, in relevant part, that

4) On or about August 29, 1997, [S.L.] was removed from the custody of his mother after he had found marijuana in his mother's purse and gave it to his grandparents. The grandfather hid the marijuana from [C.A.] which resulted in a violent reaction from [C.A.,] who was charged with assault and possession of marijuana. When [S.L.] was taken into custody, he had a bite mark on his cheek which had been inflicted by his mother as a form of discipline;

. . . .

6) When [S.L.] was taken into custody, [C.A.] had been basically living on the streets for the previous six to eight months. [S.L.] had been residing with his maternal grandparents when he was taken into custody by the State and he viewed his grandmother as his mother;

7) Prior to [S.L.'s] removal, [C.A.] had a history of using cocaine, marijuana, and methamphetamines. She had allowed [S.L.] in residences where illegal drugs were being used and was periodically under the influence of drugs while she was around [S.L.];

. . . .

16) During the operation of the first treatment plan, [C.A.] failed to complete drug treatment; failed to maintain a drug free lifestyle, she failed to obtain and maintain suitable housing or employment, did not complete a parenting class, anger management counseling, or peer parenting, and failed to complete individual therapy;

17) [C.A.] had no contact with her DCFS worker from January 27, 1998 until May 5, 1998;

. . . .

30) During September of 1997 through January of 1998, [C.A.] had ongoing but irregular visitation with [S.L.] even when she was in substance abuse programs. [S.L.] was somewhat tentative in his visitation with his mother during this time frame and had minimal interaction with her. Visitation was suspended between February and May 1998, because [C.A.] was not involved in substance abuse treatment. [C.A.] didn't have any contact with [S.L.] during this time and he progressed well in her absence.

In May of 1998, [C.A.] resumed visitation with her son and has maintained consistent supervised visitation with [S.L.] since that time. [C.A.] has never demonstrated any signs of drug usage during visits and she has always been appropriate with [S.L.] during visits. [S.L.] does not demonstrate any spontaneous affection toward his mother, and is sometimes apprehensive about visiting with her. [S.L.] always seems to enjoy visits with his mother and is always happy to see her although he generally seeks reassurance from his foster mother before and after visitation;

[C.A.] has not missed any visits with [S.L.] since May of 1998. [S.L.] periodically has emotional difficulty following visitation with his mother. He easily separates from his mother after visits and is often more emotionally needy following visitation with his mother;

31) On September 3, 1998, Reunification Services were terminated by the Court due to a lack of therapeutic recommendation to return [S.L.] to his mother;

32) [C.A.] began paying support for [S.L.] in November of 1998[.]

¶ 14 In a section headed "Best Interest of the Child," the court made the following findings and conclusions:

1) [S.L.] is a sad and clingy three year old. He is easily frustrated and prone to tantruming. [S.L.] has a difficult time engaging in peer play and is very unsure about himself. [S.L.] is approximately one year developmentally delayed;

2) [S.L.] is a difficult and anxious child who has emotional problems which will require intensive therapy for at least six more months and ongoing less intensive therapy after that;

3) [C.A.] doesn't fully comprehend [S.L.'s] needs and does not presently have the skills to successfully parent him;

4) [S.L.] was not bonded with [

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