STATE IN INTEREST OF HJ
| Decision Date | 05 August 1999 |
| Docket Number | No. 981409-CA.,981409-CA. |
| Citation | 1999 UT App 238,986 P.2d 115 |
| Parties | STATE of Utah, in the Interest of H.J., M.J., and J.M., persons under eighteen years of age. J.M. and J.M., Appellants, v. State of Utah, Appellee. |
| Court | Utah Court of Appeals |
Mary C. Corporon, Corporon & Williams PC, Salt Lake City, for Appellants.
Jan Graham, Atty. Gen. and John Peterson, Salt Lake City, for Appellee.
Martha Pierce and Tracy S. Mills, Salt Lake City, Guardians Ad Litem.
Before Judges BENCH, BILLINGS, and JACKSON.
¶ 1 Appellants, grandparents of three children, H.J., M.J., and J.M., in the custody of Utah Division of Child and Family Services (DCFS), appeal two orders of the juvenile court.1 The first order terminated the parental rights of D.M., the children's mother. The second order dismissed the grandparents' petition for adoption of the children. The appeals were consolidated. We reverse and remand for proceedings consistent with our opinion.
¶ 2 In November 1996, DCFS removed the oldest child, H.J., to protective custody after receiving an allegation of abuse against her step-father.2 DCFS filed a petition alleging that H.J. and her siblings were abused, neglected, or dependent children. After a hearing in January 1997, the court found the children to be within the court's jurisdiction. The court permitted the mother, D.M., to retain custody of the children. DCFS was to provide family preservation services. The step-father was to have no contact with the children.
¶ 3 In March 1997, DCFS discovered the step-father was again living with the children. As a result, DCFS took protective custody of the children and filed a motion for temporary custody. Shortly after the children were removed, the step-father committed suicide, and D.M. attempted suicide and was hospitalized. At the March 1997 shelter hearing, the court found that DCFS acted reasonably in taking the children into custody and permitted DCFS to retain temporary custody. The court ordered DCFS to investigate appellant J.M. (grandmother) for fitness for a possible kinship placement, and ordered DCFS to provide reunification services to the mother and children.
¶ 4 DCFS initiated the evaluation of grandmother for a kinship placement. Because grandmother lived in Los Angeles, DCFS followed the Interstate Compact for the Placement of Children (ICPC) process, and contacted Los Angeles social services to conduct a home evaluation of grandmother. The evaluation was positive and recommended the children be placed with grandmother. ¶ 5 On May 27, 1997, grandmother filed a motion for temporary custody of the children. The motion alleged that the children's mother indicated her desire that grandmother care for the children. Additionally, the motion stated that grandmother was willing to be monitored by appropriate agencies to insure the children were cared for, would assure the children received therapy as needed, and would comply with visitation limits as recommended by the children's therapists. At the June 3 review hearing, the court continued the order of temporary custody with DCFS, and set grandmother's motion for temporary custody for an evidentiary hearing because the State opposed a kinship placement with grandmother. The court did not permit grandmother access to caseworker or therapist reports regarding the children.
¶ 6 At the August 22 temporary custody evidentiary hearing, the children's caseworker and therapist testified for the State. Both recommended the children remain in their current foster and group home placements. Both testified the children were progressing well and any disruption would likely result in a therapeutic setback. According to the children's therapist, it would likely take at least six months for the children to form a therapeutic bond with a new therapist. Also, the therapist believed grandmother interacted inappropriately with the children in her single visit after DCFS took custody because she failed to appreciate their special needs resulting from abuse.
¶ 7 The court denied grandmother's motion for temporary custody, finding that a disruption in placement or counseling would be detrimental to the children. The court also found that grandmother did not appreciate the children's special needs, and minimized their problems. Additionally, the court found the children did not feel safe in grandmother's home, and that grandmother would likely permit unauthorized visits by D.M.3 Based on these findings, the court concluded placement of the children with grandmother at that time would not be in the children's best interests. Consequently, the court continued the order of temporary custody with DCFS and set the next review hearing for October 23, 1997.
¶ 8 On October 9, 1997, grandmother filed a verified petition requesting permanent custody of the children. At the October 23 review hearing, the court set December 3, 1997, as the date for hearing grandmother's petition. The court also designated December 3 as the twelve-month dispositional review.
¶ 9 At the December 3 hearing, on the State's motion, the court dismissed grandmother's petition for permanent custody without holding an evidentiary hearing. The court concluded the issues in the petition had been previously addressed in the August 22 kinship placement temporary custody hearing. After dismissing grandmother's petition for permanent custody, the court excluded grandmother's attorney from the courtroom for the dispositional hearing. The court then terminated reunification services and set a permanency plan hearing for February 2, 1998.
¶ 10 On February 2, 1998, DCFS filed a petition to terminate D.M.'s parental rights.4 At the February 2 hearing, the court set March 18 as a pretrial date for the petition. The court also continued the order for temporary custody with DCFS and recognized the permanency plan goal as adoption. At the March pretrial hearing, the court set a trial date of June 8, 1998.
¶ 11 On May 29, 1998, grandmother filed a petition to adopt the children. Included with the adoption petition was a request for termination of parental rights of D.M. The court terminated D.M.'s parental rights on June 8, 1998, after D.M. failed to appear for trial on the State's petition.5 Custody of the children remained with DCFS, with the goal of adoption. The court excluded grandmother's attorney from the courtroom for the termination trial, agreeing with the State that grandmother was not an interested party.
¶ 12 DCFS filed a motion to dismiss grandmother's adoption petition on July 6. The State claimed grandmother had no standing to petition for adoption, and further, that the August 22 kinship temporary custody hearing established that placement with grandmother would be inappropriate. The court dismissed the adoption petition on October 15, 1998, without holding an evidentiary hearing. The court concluded the August 22, 1997, kinship temporary custody hearing settled matters regarding placement of the children with grandmother. The court also held as a matter of law that grandmother did not meet statutory requirements to file a petition to adopt.
¶ 13 Grandmother now appeals from the termination of parental rights order, specifically attacking the continuation of custody with DCFS. She also appeals the order dismissing her adoption petition.
¶ 14 Initially, we must decide whether grandmother has standing to appeal the order from the proceeding terminating D.M.'s parental rights. The issue of standing is primarily a matter of law, reviewed for correctness. See Kearns-Tribune Corp. v. Wilkinson, 946 P.2d 372, 373 (Utah 1997). Factual findings made by the trial court that bear on standing will be reviewed with deference. See id. at 374. Because standing involves important policy considerations, appellate courts "will closely review trial court determinations of whether a given set of facts fits the legal requirements for standing, granting minimal discretion to the trial court." Id.
¶ 15 Second, we must determine whether the trial court erred in dismissing grandmother's adoption petition without holding an evidentiary hearing. The juvenile court based its dismissal on the grounds of res judicata and statutory interpretation. The application of res judicata is a question of law, reviewed for correctness with no deference given to the trial court. See Gardner v. Madsen, 949 P.2d 785, 788 (Utah Ct.App. 1997). Issues of statutory interpretation are also matters of law, reviewed for correctness with no deference given to the trial court's interpretation. See A.E. v. Christean, 938 P.2d 811, 814 (Utah Ct.App.1997).
¶ 16 Grandmother appeals the order terminating D.M.'s parental rights, asserting the court erred in continuing custody with DCFS without holding a hearing regarding the best interests of the children.
¶ 17 "Traditional standing criteria require that the interests of the parties be adverse and that the party `seeking relief have a legally protectible interest in the controversy.'" State ex rel A.H. v. Mr. & Mrs. H., 716 P.2d 284, 286 (Utah 1986) (quoting Kennecott Corp. v. Salt Lake County, 702 P.2d 451, 454 (Utah 1985)). Additionally, "an appellant generally must show both that he or she was a party or privy to the action below and that he or she is aggrieved by that court's judgment." Society of Prof. Journalists v. Bullock, 743 P.2d 1166, 1171 (Utah 1987).
¶ 18 Under Utah law, notice of a hearing on a petition to terminate parental rights must be provided to the parents, guardian, and custodian of the children. See Utah Code Ann. § 78-3a-406 (1996). Grandparents are not entitled to notice. "Relatives other than the parents have no such rights in a child as to require service of process in [a termination] proceeding, nor to have an adjudication of the severance of any asserted right." Wilson v. Family Servs. Div.,...
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