State v. State
| Decision Date | 04 August 2022 |
| Docket Number | 20210396-CA |
| Citation | 2022 UT App 98 |
| Parties | State of Utah, in the interest of G.B. and A.C., persons under eighteen years of age. v. State of Utah, Appellee. T.R.B., Appellant, |
| Court | Utah Court of Appeals |
Fifth District Juvenile Court, Cedar City Department The Honorable Troy A. Little No. 1195807
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Carol L. C. Verdoia, and John M. Peterson Attorneys for Appellee
Martha Pierce, Guardian ad Litem
[1]
OPINION
¶1 The Division of Child and Family Services (DCFS) removed G.B and his maternal half-brother, A.C., from their home in connection with their mother's arrest on drug-related charges and reports of domestic violence at the home. The juvenile court later adjudicated the two children as "abused and neglected," and as part of this determination, it made a subsidiary finding that G.B.'s father, T.R.B. (Father), "has issues related to the use of illegal substances." Based on this finding, the court ordered Father to complete a substance abuse evaluation and submit to random drug testing.
¶2 Father now challenges the juvenile court's abuse determination as well as its disposition order. For the reasons set forth below, we affirm.
¶3 In February 2021, two-year-old G.B. and six-year-old A.C were living with Father and their biological mother (Mother). Father is G.B.'s biological father, but he's not A.C.'s. That month, DCFS filed a verified petition seeking protective custody of the children on the basis that they were "abused, neglected, or dependent." The petition set forth several sets of facts in support of the "abuse, neglect, or dependency" allegations.
¶4 First, the petition alleged that Mother and Father "had recently engaged in Domestic Violence" and that the children had been "exposed" to that domestic violence. It alleged that when police responded to a recent domestic disturbance at the home, Mother told officers that Father had "pushed [her] into the tub [and] rammed her head into the wall, before throwing her into the wall." It also noted that A.C. reported that Mother and Father "say mean words to each other," that A.C. "has had to go upstairs so that he would not have to hear the fighting," and that Father "broke his door when upset on one occasion."
¶5 Second, the petition alleged that DCFS had recently received "information" indicating that Father "had hit a child on the back hard enough to leave bruising."
¶6 Third, the petition made a number of allegations about the living conditions at the family home. Of note, it alleged that the home was "observed to have broken pieces of glass outside" and "a nail . . . in close proximity to the children's toys." It also alleged that the "children were observed between February 8, 2021 and February 12, 2021 to be dirty, [with] hair so messy that knots had to be cut out" and "feet which were black."
¶7 Finally (and most significantly for purposes of this appeal), the petition included several allegations about illegal drug use by both Mother and Father.
¶8 With respect to Mother, the petition asserted that she had recently been arrested for driving while intoxicated and that the arresting officer had discovered illegal drugs and drug paraphernalia in her backpack. The petition also detailed other instances in which illegal drugs or drug paraphernalia had been found near Mother, including an instance in which drugs and paraphernalia were found in a place that "would have been accessible by the children."
¶9 The petition further alleged that Father "has issues related to the use of illegal substances." According to the petition, "Mother has stated that she uses heroin with [Father] daily and that he uses approximately a gram a day." The petition also alleged that when police responded to the domestic disturbance described above, Mother told them "that she and [Father] got into an argument after she discovered [Father] and another individual getting ready to use substances." According to the petition, responding officers had searched a "camp trailer" on the property and found "several pipes, tinfoil with heroin residue, a burned spoon, and syringes."[2]
¶10 The petition did note, however, that Father "denied any use of illegal substances or that he was aware the Mother used illegal substances." And it further noted that Father had "claimed [that] any paraphernalia" found in the trailer "belonged [to his friend]." But the petition also alleged that about two months after the paraphernalia was found in the trailer, Father refused to let a DCFS caseworker inside that trailer and declined to take a drug test. And it alleged that Father then "admitted" to the caseworker that he and Mother smoked cigarettes in the trailer where the drug paraphernalia was found.
¶11 The juvenile court held a shelter hearing after the petition was filed. At the close of the hearing, the court approved the removal of the children and placed them in DCFS's temporary custody.
¶12 On March 23, 2021, the court held a pretrial hearing. At that hearing, Mother responded to the allegations in the petition pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure, meaning that while she neither admitted nor denied the allegations, she agreed that the court would treat the allegations as true. See Utah R. Juv. P. 34(e) ( ). Father continued to deny the allegations pertaining to his substance abuse, however, so the court scheduled an adjudication hearing to address the allegations against him. The court also found the children to be neglected and abused by Mother and ordered DCFS to develop a child and family service plan for the family and each child, to set a primary permanency goal of reunification, and to provide reunification services to Mother. That plan required Mother to, among other things, "participate and engage in a parenting program to increase parenting knowledge and behavior." See Utah Code Ann. § 62A-4a-205(8)(d) (LexisNexis Supp. 2021) ().
¶13 At his adjudication hearing, Father entered a rule 34(e) plea of his own regarding most of the allegations in the petition, but he still denied the allegation that he "has issues related to the use of illegal substances." The hearing was accordingly limited to determining whether Father had "issues related to the use of illegal substances." As a further point of specificity, Father did not dispute that drug paraphernalia was "found on the property"; instead, Father only disputed that the paraphernalia "pertain[ed] to him."
¶14 The State presented three witnesses: an officer (Officer) who was present when police found the drug paraphernalia in the camp trailer, Mother, and the DCFS investigator (Investigator) assigned to the case.
¶15 Officer testified that when he responded to the domestic disturbance, Mother told him that she and Father started fighting because Father "was out with his girlfriend in the camp trailer using drugs." According to Officer, Mother told him she "had seen [Father] using out [in the trailer] many times." Officer also testified that another officer found drug paraphernalia in the trailer that day, including "several used syringes," "used tinfoil with burn marks on it consistent with smoking illegal substances," "a pipe or two," and "a spoon with burnt residue in it." Officer further testified that he spoke with Father on the phone a week later and that Father admitted during that conversation that his friend "used drugs . . . out in the trailer." Finally, Officer testified that Father offered to "submit to a drug test" but that Officer never actually had him complete one.
¶16 In her testimony, Mother confirmed that she had told police that Father "had been using illegal substances in the trailer on the property." She also confirmed that she had reported that Father "was using one gram of heroin daily." But Mother also claimed that she had only "made an assumption that he was using heroin" because she "had picked it up for him" and that she "had never actually seen him doing it." Mother also testified that she and Father "smoke[d] cigarettes" in the trailer. On cross-examination, Mother stated that she was "satisfied that [Father] was not using drugs" after seeing the results of a drug test that he had taken for work in March 2021.
¶17 Finally, Investigator testified that he spoke with Father in February 2021 and that Father's "pupils were very pinpoint" at that time. Investigator said that when he asked Father about Mother's drug use, Father "claimed that he didn't know anything that was going on with her." Investigator further testified that when he asked to see the trailer where police had found drug paraphernalia, Father "den[ied him] access." Investigator said that Father also initially "claimed it wasn't his trailer . . . and that just no one goes in it." But when Investigator pressed, Father "admitted that he goes inside to smoke cigarettes." Investigator said that he asked Father to take a drug test but that Father "declined." Finally, Investigator testified that he spoke with Mother in February 2021 and that Mother told him that she and Father "had used together, that she was using more than him, specifically heroin, but that they were using together daily."
¶18 After the State res...
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