State ex rel. T.E. v. B.B.

• Decision Date: 23 August 2011
• Docket Number: No. 20090638.,20090638.
• Parties: The STATE of Utah, in the interest of T.E., a person under eighteen years of age.R.E., Petitioner, v. B.B., Respondent.
• Court: Utah Supreme Court

2011 UT 51

266 P.3d 739

689 Utah Adv. Rep. 31

The STATE of Utah, in the interest of T.E., a person under eighteen years of age.R.E., Petitioner,

v.

B.B., Respondent.

No. 20090638.

Supreme Court of Utah.

Aug. 23, 2011.

Kenneth L. Combs, St. George, for petitioner.

Brent M. Brindley, St. George, for respondent.

Martha M. Pierce, Salt Lake City, for the Office of the Guardian Ad Litem.

On Certiorari to the Utah Court of Appeals

Associate Chief Justice DURRANT, opinion of the Court:

INTRODUCTION

¶ 1 In this case, R.E. (Father) argues that the court of appeals erred in affirming the juvenile court's termination of his parental rights in T.E., his biological child. On certiorari, we address three issues. First, we must determine whether the court of appeals erred in upholding the juvenile court's finding that Father had abandoned T.E. Second, we must decide whether the court of appeals erred in concluding that, even if Father did not abandon T.E., there was another permissible ground to terminate Father's parental rights because it was apparent on the record that Father made only “token efforts” to communicate with T.E. Finally, we must determine whether the court of appeals erred in upholding the juvenile court's use of Father's statements at the termination hearing in its analysis of whether termination of parental rights was in T.E.'s best interest.

¶ 2 We hold that the court of appeals erred in concluding that Father had abandoned T.E. because the court did not evaluate whether Father's evidence showed that he did not “consciously disregard” his parental obligations. In addition, we hold that the court of appeals erred in affirming the juvenile court on the alternative ground because it is not apparent on the record that Father made only “token efforts” to communicate with T.E. Finally, we hold that the court of appeals was correct in upholding the juvenile court's use of Father's statements because they were probative of whether termination of parental rights was in T.E.'s best interest.

BACKGROUND

¶ 3 When T.E. was born in 1999, Father was married to B.B. (Mother). Approximately two years after T.E.'s birth, Father and Mother separated, and Mother became T.E.'s primary caregiver. Father and Mother divorced in 2003. Although Father retained the right to visit T.E. after the divorce, Father's pattern of visitation was inconsistent. For example, there were periods of time when Father visited T.E. regularly and periods of time when Father would go weeks or months without visiting T.E. As a result of Father's irregular visits, T.E. isolated himself, cried himself to sleep, and lashed out at others physically and verbally.

¶ 4 After a visit between Father and T.E. in February 2004, Mother smelled marijuana smoke when she retrieved T.E. from Father's home. Mother then obtained a protective order prohibiting Father from contacting T.E. from February 2004 to December 2005. During that period, Mother tried to terminate Father's parental rights, but the juvenile court denied her petition. In December 2005, the protective order was modified to allow Father to visit T.E. for three hours per week. Father visited T.E. on the terms allowed by the modified protective order, and normal visitation rights were restored in January 2006. After his normal visitation rights were restored, Father again began his inconsistent pattern of visiting T.E.

¶ 5 Because Mother and Father did not get along with each other, they agreed that Father's mother (Grandmother) would serve as a liaison between them to schedule Father's visits with T.E. Accordingly, Grandmother scheduled a visit between Father and T.E. on April 1, 2007. After that visit, Mother stopped returning or answering Grandmother's phone calls about additional visits.

¶ 6 On October 18, 2007, Grandmother visited T.E. at his school and ate lunch with him. At this visit, Grandmother gave T.E. a birthday card from Father. When Mother learned of Grandmother's visit with T.E., she became angry with school personnel and said that she could not let Father into T.E.'s life.

¶ 7 Mother then continued to ignore Grandmother's attempts to schedule visits between Father and T.E. In December 2007, Mother reinitiated her efforts to terminate Father's parental rights by filing a second termination petition in juvenile court. Specifically, Mother alleged that Father had abandoned T.E. because he failed to communicate with T.E. for a period of six months or longer. In response, Father filed a motion to hold Mother in contempt of their divorce decree because he believed Mother was improperly withholding visitation.

¶ 8 The juvenile court held a joint hearing to address Father's motion to hold Mother in contempt and Mother's request to terminate Father's parental rights. The juvenile court found that Mother had improperly rejected an attempt by Father to visit with T.E. in December 2007. The court also concluded that Mother “intentionally ignored the attempts by [Grandmother]” and “did indeed ignore [Grandmother's] phone calls.”

¶ 9 In addition, the juvenile court held that pursuant to section 78A–6–508(1)(b) of the Utah Code, Mother established prima facie evidence that Father had abandoned T.E. because he “failed to communicate [with T.E.] by mail, phone or otherwise” from April 2007 to December 2007.¹ The court concluded that by establishing prima facie evidence of abandonment, Mother created a rebuttable presumption that Father had abandoned T.E.

¶ 10 In an effort to rebut this presumption, Father testified about Grandmother's efforts to contact Mother to coordinate his visits with T.E. Father also testified that Mother had interfered with these attempts to schedule his visitation. During the hearing, Father made it clear that he refused to speak with Mother himself and that he would continue to refuse to speak with Mother. Specifically, Father stated, “I am never talking to her again. I refuse to talk to her” and “I won't talk to [her] anymore. I refuse to. There is nothing anybody can do to change my mind.” He also testified that he would not risk his life to save T.E. because he had “two other kids.”

¶ 11 After hearing Father's evidence, the juvenile court judge chastised Father for his unwillingness to speak with Mother. Specifically, the judge told Father that he had “seldom heard a statement as childish as the one [Father] said ... when [Father] said ‘you can't make me talk to [Mother].’ ” During this colloquy, Father interrupted the judge with two separate outbursts. First, Father stated that he would “stick by [his] answer” regarding his refusal to communicate with Mother. Second, Father stated that he had “two other kids to worry about.” Following Father's outbursts, the judge noted that he was going to research whether he could consider those statements in his determination of whether it was in T.E.'s best interest to terminate Father's parental rights.

¶ 12 Ultimately, the juvenile court concluded that (1) Mother had established a prima facie case of abandonment because Father had no contact with T.E. by mail, telephone, or other means between April 2007 and December 2007; and (2) Father did not meet his burden of rebutting the prima facie evidence of abandonment. Regarding Mother's alleged interference with visitation, the court stated that Father did not “convince [the court] by clear and convincing evidence that [Mother] interfered.” The court specifically held that Father failed to rebut the presumption of abandonment because any efforts to communicate with T.E. “were made by [Grandmother] instead of [Father] ... [and] Father's only action was to ask [Grandmother] to make a few (unanswered) phone calls within an eight month period, which is only token efforts anyway.”

¶ 13 Although the juvenile court acknowledged that the best interest analysis was “a close call,” the court found that it was in T.E.'s best interest to terminate Father's parental rights. In support of its finding, the court noted that

Father made two comments that have affected this [c]ourt's decision. First, Father said something like “I stand by what I said,” indicating he still refused to communicate with Mother. Next, he said something like, “I have other kids anyway,” indicating that rather than change his attitude in the interest of [T.E.], he would simply refocus his ongoing efforts to parent his other children. These statements are neither evidence nor argument, really, but they affected the [c]ourt's decision.

....

But for these statements, the [c]ourt would almost certainly have denied the Mother's [termination] petition. The [c]ourt would likely have ordered the Father to step up his parental role, ordered the Mother to do a better job of making [T.E.] available, and ordered the parties to cooperate and put their feelings aside in the best interest of [T.E.]. But that has been tried once before, and with the attitude of Father, as confirmed in the statements made, the [c]ourt sees clearly that these things won't happen.

....

[W]hile eight months is a long time for no contact, it certainly could be rehabilitated if the parties, and especially the Father, were willing to do so. The difference here is that Father stated plainly, and with conviction, that he would not change his approach to parenting. To do anything other than terminate would do nothing but prolong turmoil in [T.E.'s] life.

Accordingly, the juvenile court terminated Father's parental rights.

¶ 14 Father appealed the juvenile court's order, and the Utah Court of Appeals affirmed the juvenile court's decision to terminate his parental rights. ² The court of appeals held that Mother had established prima facie evidence of abandonment under section 78A–6–508 of the Utah Code because Father did not communicate with T.E. for six months.³ In addition, the court concluded that Father failed to rebut the presumption of abandonment because it believed that Grandmother's efforts were irrelevant and that “Mother's less-than-perfect...