State in Interest of T.J.

• Decision Date: 11 September 1997
• Docket Number: No. 960293-CA,960293-CA
• Citation: 945 P.2d 158
• Parties: STATE of Utah, in the Interest of T.J., A.H., and K.H., persons under eighteen years of age. B.J.H., Defendant and Appellant, v. STATE of Utah, H.R., and B.R., Plaintiffs and Appellees.
• Court: Utah Court of Appeals

Page 158

945 P.2d 158

STATE of Utah, in the Interest of T.J., A.H., and K.H persons under eighteen years of age B.J.H., Defendant and Appellant, v. STATE of Utah, H.R., and B.R., Plaintiffs and Appellees.

No. 960293-CA.

Court of Appeals of Utah.

Sept. 11, 1997.

Gary L. Bell, Salt Lake City, for Natural Mother.

Jan Graham and Jeffrey S. Buckner, Salt Lake City, for Appellee State of Utah.

Kellie F. Williams, Salt Lake City, for Plaintiffs and Appellees H.R. and B.R.

Martin N. Olsen, Midvale, Guardian Ad Litem.

Before WILKINS, Associate P.J., and BILLINGS and ORME, JJ.

OPINION

BILLINGS, Judge:

Appellant B.J.H. challenges the trial court's order terminating her parental rights to her three children T.J., A.H., and K.H. Specifically, appellant claims the petitions filed by the State and H.R. and B.R., the foster parents of K.H., were barred by the doctrine of res judicata. Appellant also claims the evidence was insufficient to terminate her parental rights. We affirm.

FACTS

Appellant is the mother of three children, T.J. (born 2/9/86), A.H. (2/27/92), and K.H. (10/7/93). In late summer or early fall of 1993, appellant placed T.J. in the custody of her sister, who lived in Colorado. Appellant asked her sister to take care of T.J. until the birth of K.H. and until appellant secured permanent housing. Several weeks later appellant and her sister got into an argument over T.J.'s custody. Soon thereafter, appellant's sister returned T.J. to Utah, but when she could not locate appellant she took T.J. to the South Jordan police. Apparently appellant could not be found because she had gone to Colorado to pick up T.J. When the police could not locate appellant, they delivered T.J. into shelter care. Soon thereafter, appellant returned and requested that A.H. also join T.J. in shelter care.

In its investigation, the Division of Family Services (DFS) ¹ learned T.J. had missed excessive days of school and her parents had failed to assist in solving the problem; the parents failed to provide the children with a stable home; and the parents engaged in domestic violence in the presence of the children. As a result, DFS petitioned for protective supervision of the children. Several days later, on the condition that appellant stabilize her housing situation, the children were returned to appellant's physical custody while DFS retained legal custody.

During this same time period, appellant was pregnant with K.H. Prior to K.H.'s birth, appellant contacted two families to see if they wished to adopt her unborn daughter. Both were interested and both gave appellant and her boyfriend money to help with living expenses. In fact, appellant signed a document entitled Relinquishment of Child in which she voluntarily and unconditionally agreed to release custody of the child, expected to be born in October, to the second family. Appellant changed her mind and ultimately told both families that she did not wish to let them adopt the child.

Once the child, K.H., was born, appellant placed K.H. with the foster family (foster family) while she recovered from delivery complications. K.H. has resided with the foster family ever since. On November 4, 1993, DFS learned that appellant and her boyfriend had been asked to leave the boyfriend's mother's house. About one week later, the DFS worker, Shirley Sutton, located appellant and reviewed a protective supervision treatment plan with her. This plan was to run between October 1993, and April 1994. On the following day appellant and her boyfriend became involved in a domestic dispute. As a result of this altercation, DFS filed a petition for custody of appellant's three children. This petition was granted, and the State immediately put K.H. in the custody of the foster parents.

Because of this change in custody, the State developed a new treatment plan which was to run between November 1993, and May 1994. Sutton, the DFS caseworker, ultimately determined that appellant had not substantially complied with this plan. Specifically, appellant had failed to obtain a stable living environment and had failed to comply with the family therapy requirement. During this time, appellant and her boyfriend lived in a camper or a hut.

The case was ultimately transferred to Margo Halliday on February 17, 1994. Halliday then developed a third treatment plan which appellant signed on March 11, 1994, and which was to run until May 1994. This plan increased the compliance requirements from the previous plan, but had essentially the same elements. Halliday determined that appellant had substantially failed to comply with the requirement of this treatment plan by failing to address the issue of domestic violence and failing to obtain stable housing. During the time period of this plan the Family Support Center was forced to terminate in-home services because appellant failed to keep her appointments. Also during this time, and during the entire course of DFS custody of the children, appellant's visitation of the children was sporadic.

Soon after the previous treatment plan ended, a fourth plan was created and ran from May 1994 until September 1994. Again at the end of the treatment plan, Halliday determined that appellant had failed to substantially comply with the treatment plan because appellant had failed to establish attendance at domestic violence classes and because she had discontinued her participation in peer parenting classes. Unbeknownst to the State, during this time and some ten months after the birth of K.H., appellant signed a voluntary relinquishment and consent form for the adoption of the child by a separate family. Appellant claimed that the foster parents were no longer adequate to take care of K.H. Despite appellant's efforts, K.H. remained in the custody of the foster parents.

After appellant failed to comply with this last plan, a fifth treatment plan was created; its goal was changed from having the children placed back with appellant to having them adopted. This treatment plan was to run between September 1994, and March 1995. This plan, besides once again requiring stable housing, also required appellant to attend domestic violence and anger management classes. During the time of the plan, appellant was homeless or living with friends and did not tell DFS of her whereabouts, admittedly partly because of an antagonism she had towards Halliday. Ultimately, Halliday again determined that appellant had not complied with the plan.

On December 5, 1994, the Guardian Ad Litem's office filed a petition to terminate appellant's parental rights alleging neglect, parental unfitness, failure to remedy circumstance causing an out-of-home placement, and token efforts. Prior to trial, a family wishing to adopt K.H. (prospective family) filed a motion to intervene and sought to have K.H. pre-placed with them pending the outcome of the trial. This motion to intervene was granted, although the trial court denied the prospective family's request for pre-placement. As a result of the prospective family's motion, the foster parents of K.H., who also wished to adopt K.H., filed their own motion to intervene. This motion was also granted. Soon thereafter, the prospective family filed a motion to have the termination proceedings dismissed as to K.H. and to have adoption proceedings begun. The foster parents opposed the motion. The trial court quickly held a hearing on the matter and denied the motion. This was the only participation of the foster parents in the first termination of parental rights proceeding.

In June 1995, Halliday prepared a sixth treatment plan that contained many of the same elements as the earlier plans. This plan was to run until September 1995. During the course of the plan, appellant told Halliday that she would not comply with some of the treatment objectives because she felt she did not need them. As a result, Halliday again determined that appellant failed to comply with the plan.

The trial on the Guardian Ad Litem's petition was held June 19-21, 1995. During this first trial, appellant moved to exclude the Attorney General's office from participating at the trial because they were not a party. This motion was denied. However, during trial the juvenile court began to "severely limit" the questioning of the lawyer from the Attorney General's office. She was "only allowed to ask questions that related directly to DFS services rendered in this case."

Following the trial, the juvenile court determined that there was not clear and convincing evidence that appellant's parental rights should be terminated. On August 29, 1995, the foster parents filed a petition to terminate appellant's parental rights as to K.H. on the same grounds as the previous petition alleged, as well as abandonment and failure of parental adjustment. About three weeks later, the State also filed a petition to terminate appellant's parental rights as to all three children, again alleging the same grounds relied upon in the first trial and the additional claim of failure of parental adjustment.

Following the first trial, a new case worker, Jamie Hayden, was assigned to appellant's case. She met with appellant and prepared a new treatment plan to run from September 1995, to March 1996.

The second trial was held between January 29, and February 15, 1996. At this second trial, Hayden testified that appellant had not substantially complied with the plan and the same concerns existed as had at the time the children were first removed. Specifically, she testified that appellant had not learned appropriate anger management and conflict resolution skills despite being offered anger management classes; she had not learned appropriate parenting skills despite being offered parenting classes, and she had failed to provide permanent and stable housing and income to provide for the needs of the children. The juvenile court made extensive findings on appellant's failure to comply with the plan and determined...