STATE EX REL. SY

• Decision Date: 06 March 2003
• Docket Number: No. 20020508-CA.,20020508-CA.
• Citation: 66 P.3d 601,2003 UT App 66
• Parties: STATE of Utah, in the interest of S.Y. and Z.Y., persons under eighteen years of age. T.Y., Appellant, v. State of Utah, Appellee.
• Court: Utah Court of Appeals

66 P.3d 601

2003 UT App 66

STATE of Utah, in the interest of S.Y. and Z.Y., persons under eighteen years of age.

T.Y., Appellant, v. State of Utah, Appellee.

No. 20020508-CA.

Court of Appeals of Utah.

March 6, 2003.

Gary L. Bell, Salt Lake City, for Appellant.

Mark L. Shurtleff, Attorney General, Carol L. Verdoia, and John M. Peterson, Assistant Attorneys General, Salt Lake City, for Appellee.

Martha Pierce, Salt Lake City, Guardian Ad Litem.

Before Judges BILLINGS, BENCH, and GREENWOOD.

OPINION

BILLINGS, Associate Presiding Judge:

¶ 1 T.Y. appeals the juvenile court's order terminating her parental rights to S.Y. and Z.Y. We affirm.

BACKGROUND

¶ 2 T.Y. is the natural mother of eight-year-old S.Y. and three-year-old Z.Y. On July 12, 2000, an investigator for the Division of Child and Family Services (DCFS) and two police detectives went to the parents'¹ home to investigate a referral regarding the possible production of methamphetamine (meth). When they arrived, the garage door was open and one of the detectives smelled an odor he believed indicated meth production. The DCFS investigator testified she spoke with T.Y., who denied using drugs but admitted she was selling meth out of her home. One of the detectives testified the father produced a quantity of meth, a digital scale, and a smoking pipe. Later that day, DCFS placed the children in protective custody for safety reasons relating to, among other things, the presence and sale of meth in the home.

¶ 3 On October 27, 2000, the juvenile court deemed the children neglected and continued temporary custody of the children with their maternal grandmother. As directed by the juvenile court, DCFS issued a family service plan on November 6, 2000, requiring the mother to: 1) complete random urinalyses (UA's);² 2) complete a drug and alcohol assessment through Salt Lake County Substance Abuse Center; 3) provide safe, stable, and adequate housing and maintain employment; 4) visit the children upon completing two clean UA's; and 5) provide a safe, drug-free environment for the children.

¶ 4 In early November of 2000, after receiving further information that both parents were still active in the meth trade, police recovered a small bag containing meth residue in the trash outside of the parents' residence. Police executed a search warrant at the parents' home several days later and recovered an iodine lab,³ a quantity of meth, bottles of ephedrine tablets, firearms, scales, and packing material. According to one detective, T.Y. stated that she had a meth addiction but was not involved in meth sales. Both parents were arrested and temporarily incarcerated, with criminal action still pending at the time of the termination hearing. Also that day, a DCFS caseworker found bottles, diapers, formula, baby food, children's clothing, toys, and a half-used bottle of Z.Y.'s prescription formula in the parents' home. T.Y. was not at that time authorized to visit with the children.

¶ 5 On January 12, 2001, a DCFS caseworker reported T.Y. made no progress regarding the five service plan directives issued by the juvenile court on November 6, 2000. DCFS filed a petition to terminate both parents' parental rights to S.Y. and Z.Y. on January 25, 2001.

¶ 6 During the time the parents were not authorized to visit the children, who were in the custody of their maternal grandmother, the parents were pulled over by police during a traffic stop on June 15, 2001 and cited with three counts of having children in a vehicle with improper restraints. Two of these children were S.Y. and Z.Y. The children were removed from the maternal grandmother's home and placed in a foster-adopt home, where they remain today.

¶ 7 On January 10, 2002, police searched the parents' trash and found: meth; a glass pipe; a tube and plastic straw; thirteen bottles of Heat, a chemical used to soak pill binders to separate pseudoephedrine as part of meth production; fifty-three empty bottles of pseudoephedrine, an over-the-counter medication often used as a precursor to meth; and a large quantity of empty matchbooks without the striker plate, which can be used to harvest red phosphoreus in the production of meth. By one detective's calculations, the amount of precursor chemicals they found in the trash could manufacture up to four-hundred-fifty-six doses of street meth. During execution of a search warrant on January 16, 2002, police found a large amount of drug paraphernalia, meth, and ephedrine in the parents' home. In T.Y.'s bedroom, police located meth, glass vials, and several pipes. Police arrested T.Y. on meth-related charges.

¶ 8 At the termination hearing, the foster mother testified that S.Y. told her she knew her parents were doing drugs and it scared her. S.Y. also told her foster mother she knew where the drugs were in her parents' house and was not allowed to let her friends into the bedroom. S.Y. further described to her foster mother "a long thin thing with a thing on the end that [T.Y.] would dump something in and smoke."

¶ 9 In terminating T.Y.'s parental rights to S.Y. and Z.Y., the juvenile court emphasized the children's numerous exposures to meth and meth production, as well as T.Y.'s addiction to meth and its effect on her ability as a parent. The court found nothing had changed with T.Y., except that she had become more and more emaciated. In its Findings of Fact, Conclusions of Law and Order Terminating [T.Y.'s] Parental Rights (termination order), the court found, inter alia, that T.Y. neglected the children and is an unfit parent. T.Y. appeals the termination order.

ISSUES AND STANDARDS OF REVIEW

¶ 10 T.Y. first asserts the juvenile court failed to make findings required by the amended version of Utah Code Ann. § 78-3a-407 (termination statute), effective May 6, 2002, in its order terminating T.Y.'s parental rights. The juvenile court's decision concerning which version of the termination statute applied is a matter of statutory interpretation, which presents a "question[] of law which we review for correctness, according no particular deference to the [juvenile] court's interpretation." State v. Coleman, 2001 UT App 281, ¶ 5, 34 P.3d 790 (quotations and citation omitted). However, where "a party ... fails to bring an issue to the [juvenile] court's attention," that party is "barred from asserting it on appeal" absent a showing of "exceptional circumstances or plain error." Brigham City v. Stuart, 2002 UT App 317, ¶ 14, 57 P.3d 1111. ¶ 11 Next, T.Y. argues the evidence supporting the juvenile court's findings and decision to terminate her parental rights was insufficient. "Findings of fact in a parental rights termination proceeding are overturned only if they are clearly erroneous." In re G.B., 2002 UT App 270, ¶ 9, 53 P.3d 963 (quotations and citation omitted). "The clearly erroneous standard requires that if the findings ... are against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made, the findings... will be set aside." In re S.L., 1999 UT App 390, ¶ 20, 995 P.2d 17 (alterations in original) (quotations and citation omitted). "Moreover, we defer to the juvenile court because of its advantageous position with respect to the parties and the witnesses in assessing credibility and personalities." In re G.B., 2002 UT App 270 at ¶ 9, 53 P.3d 963 (quotations and citation omitted).

ANALYSIS

I. Retroactive Application of the Amended Termination Statute

¶ 12 T.Y. argues the amended version of the termination statute, effective May 6, 2002, applied to the juvenile court's termination order. The termination statute provides the grounds upon which juvenile courts may terminate parental rights. See Utah Code Ann. § 78-3a-407 (2002). In relevant part, the amended termination statute added the following provision: "In any case in which the [juvenile] court has directed [DCFS] to provide reunification services to a parent, the court must find that [DCFS] made reasonable efforts to provide those services before the court may terminate the parent's [parental] rights...." Id. § 78-3a-407(3)(a).

¶ 13 T.Y. first points out that in October of 2000, the juvenile court ordered DCFS to provide reunification services to T.Y.'s family through the implementation of a formal service plan. Because T.Y.'s termination trial did not conclude until May 22, 2002, and the juvenile court issued its termination order on June 5, 2002, T.Y. contends the juvenile court erred in not first finding DCFS made "reasonable efforts" in its reunification services before terminating T.Y.'s parental rights.

¶ 14 However, T.Y. did not make this argument to the juvenile court. Thus, T.Y. can only obtain relief from this court by demonstrating plain error by the juvenile court or exceptional circumstances. See Brigham City, 2002 UT App 317 at ¶ 14, 57 P.3d 1111; Coleman, 2001 UT App 281 at ¶ 5, 34 P.3d 790. On appeal, T.Y. does not argue plain error or exceptional circumstances, and we therefore decline to address T.Y.'s claim. See Brigham City, 2002 UT App 317 at ¶ 14, 57 P.3d 1111.

II. Sufficiency of the Evidence

¶ 15 T.Y. challenges approximately twenty of the juvenile court's individual factual findings from its termination order in arguing the evidence was insufficient to terminate T.Y.'s parental rights. We focus on several of the juvenile court's findings regarding the children's exposure to the use and production of meth,⁴ and conclude those findings are not clearly erroneous and were sufficient to support the juvenile court's decision to terminate T.Y.'s parental rights.

¶...