State ex rel. A.T. v. State, 032620 UTCA, 20190591-CA

Docket Nº:20190591-CA
Opinion Judge:HARRIS, Judge.
Party Name:State of Utah, in the interest of A.T., J.T., and K.B., persons under eighteen years of age. v. State of Utah, Appellee. K.B., Appellant,
Attorney:Daniel H. Shen and Margaret P. Lindsay, Attorneys for Appellant Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee Martha Pierce, Guardian ad Litem
Judge Panel:Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Kate Appleby concurred.
Case Date:March 26, 2020
Court:Court of Appeals of Utah
 
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2020 UT App 50

State of Utah, in the interest of A.T., J.T., and K.B., persons under eighteen years of age.

K.B., Appellant,

v.

State of Utah, Appellee.

No. 20190591-CA

Court of Appeals of Utah

March 26, 2020

Fourth District Juvenile Court, Provo Department The Honorable Suchada P. Bazzelle No. 1160859

Daniel H. Shen and Margaret P. Lindsay, Attorneys for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Kate Appleby concurred.

OPINION

HARRIS, Judge.

¶1 After eight-year-old A.T. called authorities to report that her mother (Appellant K.B., herein referred to as Mother) had overdosed on drugs, the State of Utah's Division of Child and Family Services (DCFS) took custody of A.T. and her brother J.T. (the Children) and placed them-at least temporarily-with their biological father (Father). After attempting for eight months to reunify the Children with Mother, the juvenile court decided to terminate reunification services and award Father permanent custody and guardianship of the Children. In making its decision, the court relied heavily on a principle of "parental presumption." That principle, as articulated by the juvenile court, does not apply in this case, and therefore the court incorrectly relied upon it. And given some of the statements the court made in arriving at its decision, we are not convinced that the court would have made the same decision, at least at that time, had it not so heavily relied on the parental presumption. Accordingly, we vacate the juvenile court's order and remand this case for further proceedings.

BACKGROUND

¶2 Mother and Father divorced in December 2013. Following the divorce, Mother was awarded sole custody of the Children; at the time, A.T. was three years old and J.T. was two. Several months later, in May 2014, Mother married Stepfather, and about a year later gave birth to a third child, whose initials (like Mother's) are also K.B. (Brother).

¶3 On June 21, 2018, Mother overdosed on an unknown substance. Both of the Children were in the house at the time, and A.T.-who was then eight years old-called 911. Mother was transported to the hospital and given life-saving treatment, though she refused to tell medical or law-enforcement personnel what substance she had overdosed on. Additionally, Mother refused to provide names and contact information for additional caregivers for the Children, prompting law enforcement to contact DCFS to take emergency physical custody of the children. Shortly thereafter, Father contacted DCFS, which later placed the Children with Father on a temporary basis.

¶4 DCFS's petition for custody of the Children, filed with the juvenile court on the day after Mother's overdose and amended a few weeks later, sought abuse and neglect findings as to Mother and a dependency finding as to Father.1 At adjudication hearings held early in the case, the juvenile court found the Children to be dependent as to Father and neglected as to Mother. Neither parent has, at any point, contested those findings. After adjudication, the court kept the Children in DCFS custody and placed them with Father on a temporary basis. The court set a permanency goal of reunification with Mother, with a concurrent plan of "permanent custody and guardianship with a relative," for which Father would be "first in line," and ordered that Mother receive reunification services pursuant to a child and family plan.

¶5 As part of that child and family plan, the court ordered Mother to, among other things, complete mental health and substance abuse assessments in a timely manner, including following all recommendations of those assessments; maintain stable and appropriate housing; and maintain a legitimate means of financially supporting her children. Finally, the court warned Mother that failure to comply with its order could result in termination of reunification services, a change in the permanency goal, or even termination of parental rights.

¶6 Over the course of the next few months, the court held two review hearings to learn how Mother was doing with her reunification efforts. At those hearings, DCFS reported that Mother was doing quite well with the substance abuse side of the reunification plan-she not only had completed her assessment, but also had completed drug treatment, and her drug tests had come back clean. Mother also was consistent with her in-person visits with the Children, though she was inconsistent with telephonic visitation. However, even after eight months, Mother had not found acceptable housing, had not found suitable employment, and had not yet completed a mental health assessment, let alone any treatment or counseling.

¶7 In February 2019, DCFS-eventually joined by the guardian ad litem (GAL)-asked the juvenile court to terminate reunification services, given Mother's lack of complete compliance with the plan. At the hearing on DCFS's motion, Mother pointed out that she was in compliance with a great many of the plan's requirements, and that she was excelling with regard to the substance abuse aspects of it. She also asked the juvenile court to afford her additional time to complete the remaining items, including the mental health assessment, and represented to the court that she could at least come close to full compliance with the plan, given additional time. The court rejected these arguments, and granted DCFS's motion to terminate reunification services at the eight-month mark.

¶8 In making its ruling, the juvenile court was heavily influenced by its perception of the "parental presumption," a legal principle discussed more fully below and which was first introduced into our jurisprudence by our supreme court in Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982). No party had mentioned the parental presumption in briefing prior to the hearing. The court began its oral ruling by referencing the parental presumption, stating that in this case there had been "a neglect finding against the mother, which does rebut the parental presumption in favor of the mother," but stating that the dependency finding against Father did not rebut his parental presumption, because it was "a no...

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