State in Interest of J.C. v. Cruz
| Decision Date | 02 April 1991 |
| Docket Number | No. 900162-CA,900162-CA |
| Citation | 808 P.2d 1131 |
| Parties | STATE of Utah, in the Interest of J.C., A person under 18 years of age, v. Juanita CRUZ, Appellant. |
| Court | Utah Court of Appeals |
Kim Rilling (argued), Rilling & Associates, Salt Lake City, for appellant.
R. Paul Van Dam, State Atty. Gen., Linda Luinstra, Carol Verdoia (argued), Asst. Attys. Gen., for appellee.
Ann Wassermann (argued), Salt Lake City, for Guardian Ad Litem.
Before BENCH, GREENWOOD and ORME, JJ.
Appellant Juanita Cruz, the natural mother of J.C., appeals the termination of her parental rights in J.C. based upon abandonment, Utah Code Ann. § 78-3a-48(1)(b) (1987). 1 We affirm.
J.C. was born on December 8, 1979, and suffers from mental retardation and impaired hearing. He has been under the care of the Utah Division of Family Services (DFS), and in various placements arranged by that agency, since 1984. The State's petition to terminate appellant's parental rights in J.C. on the basis of abandonment was filed in November 1989 and heard in the juvenile court in January 1990.
The State's witness at the termination hearing was Cathy Haderlie, a DFS social worker who, at the time of the hearing, had been J.C.'s caseworker for nearly two years. Much of Ms. Haderlie's testimony concerned events that occurred before she became J.C.'s caseworker, and was based upon her review of the DFS file on J.C. that had been maintained since 1984. Appellant's timely and continuing hearsay objection to that portion of Ms. Haderlie's testimony was overruled under the business records exception to the hearsay rule, Rule 803(6), Utah Rules of Evidence.
From her review of J.C.'s file, Ms. Haderlie testified as follows: Appellant had placed J.C. in a private care center when he was two years old. In 1984, when J.C. was four, appellant voluntarily placed him in DFS custody. In 1986 and 1987, J.C. had a number of visits with appellant. During these visits, appellant displayed an inability to deal with the special needs related to J.C.'s handicaps. J.C. was hearing-impaired and mentally retarded. DFS observers reported no evident mother-child bonding during these visits. Additionally, J.C. manifested an unwillingness to visit his mother, and behavior problems associated with his handicaps would worsen following the visits. 2
According to Ms. Haderlie, the DFS file also showed that some visits between J.C. and appellant were ended early at appellant's request, some scheduled visits were cancelled by appellant, and some offered visits were refused by appellant. Finally, Ms. Haderlie testified that the court file reflected appellant's noncompliance with several treatment plans developed by DFS in 1986 and 1987, at least two of which had been ordered by the juvenile court. Those plans were designed to reunite J.C. with appellant, and included efforts to teach appellant sign language so that she would be able to communicate with J.C.
The DFS file itself was never offered into evidence. However, a written summary of the file, prepared by Ms. Haderlie for the hearing, was offered. Appellant's sole objection to admission of the summary related to a statement in the summary that was not relevant to the issue of abandonment. This statement was stricken, whereupon appellant's counsel indicated that she had no further objection, and the summary was admitted into evidence. The summary essentially repeated Ms. Haderlie's testimony; it also indicated that appellant had not seen J.C. since May 1987, and that appellant had moved in September 1987, refusing to give DFS her new address.
Because she had been J.C.'s caseworker for nearly two years, a substantial portion of Ms. Haderlie's testimony was based upon her personal knowledge. She testified that during her tenure as J.C.'s caseworker, appellant had no contact with J.C., had not sent him Christmas or birthday presents, and had not provided any financial support for J.C.'s care. Ms. Haderlie testified that she had no contact from appellant regarding J.C. until April 1989, when appellant telephoned her. Appellant explained that she was calling because her mother--i.e., J.C.'s grandmother--suggested that she do so. This explanation was given in response to Ms. Haderlie's question as to why appellant had not called about J.C. during the prior eighteen months. Appellant asked if J.C. was ten years old, and Ms. Haderlie informed her that he had recently turned nine.
During the April 1989 call, appellant also asked if she could visit J.C. Ms. Haderlie explained that this would not be a good time to visit him, because he had just been placed in a new foster home and was going through an adjustment period. According to Ms. Haderlie, appellant did not, then or later, insist on visiting J.C. In fact, Ms Haderlie's only subsequent contacts from appellant came in May 1989, when appellant asked for and was provided with the name of an attorney to assist her, and in November 1989, when she called again, angry about being served with the termination petition and summons. Ms. Haderlie denied any effort on her part to avoid communicating with appellant, including any deliberate failure to return appellant's calls.
Ms. Haderlie also testified that she would recommend termination of appellant's rights in J.C. based solely on her knowledge gained during nearly two years as J.C.'s caseworker. She opined that appellant's lack of involvement with J.C. was a substantial departure not only from general community norms, but also from her observations of other parents whose children were in DFS custody. Ms. Haderlie asserted that there was no parent-child relationship between J.C. and appellant, but admitted that she had never personally observed the two together.
Finally, Ms. Haderlie testified that any permanent caretaker of J.C. would need to be competent in sign language and behavior modification techniques because of J.C.'s hearing and mental handicaps. She indicated that J.C.'s foster parents possessed these skills and had a strong desire to adopt J.C. According to Ms. Haderlie, J.C.'s language skills had greatly improved, and his behavior problems had greatly diminished, under the foster parents' care.
Appellant testified on her own behalf. Her testimony was often rambling and confused. The gist of appellant's testimony was that she had not willfully failed to contact her son, but that her attempts to contact him had been rebuffed by DFS. She testified that she had originally consented to J.C.'s placement out of her home " 'cause they wanted him." She asserted that she had not sent cards or presents to J.C. because DFS had refused to tell her his whereabouts. Appellant claimed that she had tried "a lot" of times to reach Ms. Haderlie to inquire about her son before the April 1989 phone call. She claimed to have called for Ms. Haderlie at DFS "about five or more" times after the May 1989 contact, only to be told that Ms. Haderlie was not in the office.
On direct examination, appellant promised that she would do whatever was necessary to care for J.C. if her parental rights were preserved, and attempted to explain her lack of success with the previous court-ordered treatment plans: "[W]hat I wanted, I never denied none of these treatment plans, you know I wanted to do them and stuff, but then ladies come, you know, and then start fading away."
Appellant also testified that she had been studying sign language. She produced a book that she had purchased in connection with that course of study, and testified that she had learned "quite a bit" of sign language. However, when asked to demonstrate her skill, appellant could not produce any of three simple, child care-related questions or commands in sign language. 3 Moreover, she did not volunteer any demonstration of signing ability.
The juvenile court determined that the evidence presented at the hearing was clear and convincing. It found that appellant had not contacted J.C. since May 1987, and that appellant had "failed to provide any suitable reason" for that two and one-half year lack of contact. The court found that appellant had failed to send gifts or cards to J.C. on holidays and birthdays, that she had moved in September 1987 and refused to tell DFS her new address, that she had then failed to contact DFS for eighteen months, and that she had failed to comply with court-ordered treatment plans. These findings supported the court's determination that appellant had "failed to demonstrate a reasonable and normal concern" for J.C.'s welfare and, therefore, had abandoned J.C. The court also found that there was no significant bonding between appellant and J.C., that J.C.'s behavior deteriorated upon visits with his mother, and that this represented a "breakdown of the child-parent relationship." Finally, the court found that J.C.'s foster parents were capable of properly caring for J.C. and that they wished to adopt him. The court therefore concluded that appellant had abandoned J.C.; doing so, the court terminated appellant's parental rights.
Appellant raises two points on appeal: (1) the trial court improperly relied on hearsay evidence in concluding that appellant had abandoned J.C.; and (2) absent the improper hearsay, insufficient evidence remained to support the conclusion of abandonment.
Our analysis begins with the identification of the elements necessary to establish abandonment. These elements must be proven by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re J. Children, 664 P.2d 1158, 1159 (Utah 1983); Rule 21, Utah Juvenile Court Rules of Practice & Procedure. The statutory abandonment provision for the termination of parental rights reads as follows:
(1) The court may decree a termination of all parental rights with respect to one or both parents if the court finds either (a), (b), (c), or (d) as follows:
....
(b) that the parent or parents have...
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