State in Interest of M.C.

• Decision Date: 26 June 1997
• Docket Number: No. 960412-CA,960412-CA
• Parties: 320 Utah Adv. Rep. 8 STATE of Utah, in the Interest of M.C. aka M.M., and K.S. aka K.C., persons under eighteen years of age. M.C. and K.S., by and through their Guardians Ad Litem, Appellants, v. K.H.C., Appellee.
• Court: Utah Court of Appeals

Page 1229

940 P.2d 1229

320 Utah Adv. Rep. 8

STATE of Utah, in the Interest of M.C. aka M.M., and K.S. aka K.C., persons under eighteen years of age M.C. and K.S., by and through their Guardians Ad Litem, Appellants, v. K.H.C., Appellee.

No. 960412-CA.

Court of Appeals of Utah.

June 26, 1997.

Martin N. Olsen and Elizabeth M. Knight, Office of the Guardian Ad Litem, Salt Lake City, for Appellants.

Julie George McPherson, Laherty & Associates, Salt Lake City, for Appellee.

Before BENCH, JACKSON and ORME, JJ.

ORME, Judge:

The children, by and through their guardians ad litem, appeal a juvenile court order denying their petition to terminate the parental rights of their mother. The guardians argue that the facts established at trial require termination of the mother's rights on grounds of unfitness, abuse and neglect, and "token efforts," pursuant to Utah Code Ann. § 78-3a-407(2), (3), and (6) (1996), respectively. We remand for further consideration.

FACTS

" 'Because the termination of parental rights is fact sensitive, we review the facts of the controversy in detail.' " In re J.P., 921 K.C. is the mother of L.C., born December 23, 1980; K.S., born July 16, 1990; and M.C., born October 15, 1993. On November 3, 1995, the guardians for K.S. and M.C. petitioned the juvenile court to terminate the mother's parental rights. ¹ The petition alleged several grounds for termination, including abuse and neglect of K.S. and M.C., pursuant to Utah Code Ann. § 78-3a-407(2) (1996); unfitness and incompetence, pursuant to Utah Code Ann. § 78-3a-407(3) (1996); and "token efforts," pursuant to Utah Code Ann. § 78-3a-407(6) (1996). These allegations were tried before the juvenile court on March 5, 6, and 7, 1996.

P.2d 1012, 1014 (Utah.Ct.App.1996) (quoting State ex rel. C.Y. v. Yates, 765 P.2d 251, 252 (Utah.Ct.App.1988)), cert. denied, 931 P.2d 146 (Utah 1997).

In support of their allegations of abuse and neglect, the guardians presented testimony regarding two incidents involving K.S. and her mother. The first incident occurred in December 1992, when her mother left K.S., who was one year old at the time, unattended in an unheated truck. Testimony indicated that K.S. was not wearing gloves, a coat, or a hat, and that the child was "very cold" and her hands were "very cold."

The second incident occurred on September 5, 1994, when her mother beat K.S. so severely that it left distinct marks and bruises on K.S.'s chin, neck, legs, and face. This incident subsequently led to a guilty plea by the mother on assault charges.

Both incidents were undisputed at trial. In addressing these two incidents, the trial court made the following two findings:

These incidents, of neglect and abuse, although reprehensible, are not of a sufficient emotionally or physically disabling nature in and of themselves to justify termination of [the mother]'s parental rights.

It is impossible, and improper, to apply one inflexible or formalistic measure to assess the degree of abuse or neglect which a child must endure before termination of parental rights is warranted. Utah Law provides some guidance, however scant, concerning this issue in Utah Code Ann. § 78-3a-408(2)(i), which states that a single incident of life threatening or gravely disabling injury to or disfiguring of the child makes the court determination of unfitness or neglect. [sic] Neither the 1992 incident of neglect or the 1994 incident of abuse rose [to the] level of this magnitude, and although two incidents occurred here, based on the statutory guidance such as it is and the exercise of my own conscience[,] I conclude that termination in this setting is inappropriate.

To support their "token efforts" allegation against the mother, the guardians presented evidence of the mother's incarceration for the assault on K.S. and the resulting court orders barring her from contacting the children. ² In this regard, the trial court found that the mother was excused from maintaining contact with both K.S. and M.C. "because she was court ordered to have no contact either with her children or the adults who had custody of them."

To establish the mother's unfitness as a parent, the guardians presented evidence of her habitual and excessive use of alcohol and drugs, her emotional and mental condition, and her history of violent behavior. Three witnesses testified at trial concerning her drug and alcohol abuse. One witness, the paternal grandmother of M.C., testified that Evidence of the mother's alleged mental or emotional illness came from a psychologist retained by the guardians. He testified that the mother had "histrionic personality patterns." Such people, according to the psychologist, tend to be "highly emotional, very dependent on external approval, external direction, [and] external guidance," and "base many of their decisions on ... emotion rather than ... intellect." He stated that her personality pattern indicated a tendency "to have episodic outbursts of emotion which may run the gamut from sadness to anger to frustration to rage." He characterized people with "histrionic personality patterns" as often being "emotionally volatile and labile[, i.e., unstable]." When asked whether this impacted negatively on the mother's ability to parent her children, the psychologist stated:

                she noticed the odor of alcohol on the mother's breath several times and had observed her in an intoxicated state.  The father of K.S. testified that in 1991, the mother was using alcohol and drugs and failed to maintain a clean house.  He described the house as "messy."   A third witness, the mother's sister, testified that the mother told her she used "crank" sometime during the middle of 1995.  However, the sister also stated that, at least so far as she was aware, the mother had not used drugs or alcohol when she had custody of her children
                

That impacts parenting in that I think to be a functional or adequate parent, one needs to understand the longitudinal impact of one's behavior. So that means the ability to predict that if I do this with my child, this will occur. And to be consistent with that and not make decisions or disciplinary strategies based on emotion, but more on intellect.

This was the only evidence regarding the mother's alleged mental and emotional illness. In its findings, the trial court stated that an emotional or mental illness must be subject to diagnosis before it may act as an indicator of unfitness. Since no such diagnosis was ever made by the witness, the trial court stated that there was no "requisite showing of unfitness based on emotional [or mental] illness."

In addressing the mother's violent behavior, and its relation to the allegation of unfitness, the trial court acknowledged that "[t]he record contains ample evidence to support the conclusion that [the mother] has committed violent acts during her adult life." However, in the trial court's view, these acts, when considered together, do not "create the portrait of the violent person which the legislature envisioned when it enacted the [Termination of Parental Rights Act]." Thus, the trial court found that the acts of violence toward the children were "not of sufficient quantity or quality to warrant the termination of [the mother]'s parental rights."

Although there was evidence regarding the mother's violent behavior and inability to provide adequately for her children, the court specifically found that her ability to care for and support her children was amply supported by the testimony of other, more "objective observers." In this regard, the trial court found as follows:

Margo Johnson, a very experienced DFS worker, observed [the mother] appropriately caring for her children during 1991. Cyndy Johnson, a DFS transportation worker, indicated she saw no inappropriate conduct between [the mother] and her children during the three to six month period in 1990-1991 during which she supervised visits between [the mother] and her children. Max Park, a DFS family preservation worker who extensively investigated the home, determined that [the mother] was adequately caring for her children during the period of August-November 1991. Garth Andrus, a Division of Family Services worker, testified that he had received positive reports about [the mother]'s parenting abilities from Gus Pannos, a DFS worker now deceased, and that Mr. Andrus successfully closed [the mother]'s voluntary supervision case in January, 1993. Jim Gould, a DFS child protection investigator, observed appropriate care and environment as of May 1994.

In its conclusions of law, the trial court stated that the guardians had failed to prove by clear and convincing evidence that any of the incidents of drug or alcohol abuse, physical abuse and neglect, or mental or emotional

illness rose to the degree which would support the termination of the mother's parental rights. This appeal followed.

ISSUES ON APPEAL

The guardians have raised several issues on appeal. ³ Although couched in somewhat different terms by the parties, the pivotal issues in this case are essentially as follows: (1) whether a parent's failure to maintain contact with her children is justified when such failure is caused by the involuntary confinement of the parent and (2) whether a single incident of serious abuse is enough under the Termination of Parental Rights Act to entitle a child to have the parent's rights terminated at the petition of his or her guardian ad litem.

STANDARD OF REVIEW

" 'We review questions of statutory interpretation for correctness giving no deference to the trial court's interpretation.' " In re R.N.J., 908 P.2d 345, 349 (Utah.Ct.App.1995) (quoting Wells v. Wells, 871 P.2d 1036, 1038 (Utah.Ct.App.1994)).

TOKEN EFFORTS TO COMMUNICATE AND SUPPORT

We first decide whether, under Utah Code Ann. § 78-3a-407 (1996), ⁴ a parent is excused from making meaningful efforts to contact or support her children when the parent's failure to maintain contact is caused...