State v. State

• Decision Date: 26 March 2020
• Docket Number: No. 20190673-CA,20190673-CA
• Citation: 463 P.3d 66
• Parties: STATE of Utah, IN the INTEREST OF J.M. and M.M., Persons Under Eighteen Years of Age. M.M., Appellant, v. State of Utah, Appellee.
• Court: Utah Court of Appeals

463 P.3d 66

STATE of Utah, IN the INTEREST OF J.M. and M.M., Persons Under Eighteen Years of Age.

M.M., Appellant,

v.State of Utah, Appellee.

No. 20190673-CA

Court of Appeals of Utah.

Filed March 26, 2020

Thomas A. Luchs, Attorney for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Salt Lake City, Attorneys for Appellee

Martha Pierce, Salt Lake City, Guardian ad Litem

Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.

Opinion

HARRIS, Judge:

¶1 After appellant M.M. (Mother) brought her two young children (M.M. and J.M., collectively referred to as the Children) to the hospital because they were having trouble breathing, M.M.'s urine tested positive for amphetamines, including methamphetamine. The State's Division of Child and Family Services (DCFS) took custody of the Children, and placed them with foster parents. The juvenile court found the Children neglected by Mother, and set a goal of reunification with Mother. For nearly a year, however, Mother did very little to comply with the reunification plan, and she was eventually incarcerated for probation violations related to previous criminal drug offenses she had committed. At that point, the court terminated reunification services and changed the primary permanency goal to adoption. Around the same time, the State filed a petition to terminate Mother's parental rights.

¶2 Once she was incarcerated, though, Mother turned over a new leaf. Without the assistance of DCFS, Mother entered an inpatient drug treatment program and completed it successfully, and she eventually fulfilled all of the other requirements that the juvenile court had originally set for her. But she completed the inpatient treatment program only about four weeks prior to the termination hearing, and based on the evidence presented at that hearing, the court ordered Mother's parental rights terminated. Mother now appeals that order. Although each of us may not have ordered termination were we in the juvenile court's position, we cannot conclude that the juvenile court committed reversible error here, given our standard of review. We therefore affirm the order of the juvenile court.

BACKGROUND¹

¶3 Mother's substance use began when she was around thirteen years old. Initially, Mother was only using marijuana, but over the course of her teenage years, she progressed to using methamphetamine. In 2013, at the age of eighteen, Mother gave birth to her first child, A.M., who was born fetally exposed to methamphetamine. Thereafter, A.M. was removed from her custody, and her parental rights to A.M. were eventually terminated. Later, A.M. was adopted by foster parents.

¶4 In July 2016, Mother gave birth to M.M., who was also born fetally exposed to methamphetamine. In addition, M.M. was born with a heart defect and has required special medical care, including a recent surgery. In October 2017, Mother gave birth to J.M. Paternity to the Children has never been established.

¶5 On February 23, 2018, Mother noticed that the Children were both having trouble breathing, so she took them to a local hospital, where they were diagnosed with respiratory illness and admitted for treatment. The medical staff conducted a number of tests on the Children, and those tests initially came back negative for illegal substances. When further testing was done, however, it was discovered that methamphetamine was present in M.M.'s urine. At some point, the hospital apparently received an anonymous phone call alleging that Mother had used methamphetamine around the Children. Hospital officials alerted DCFS to the situation, and DCFS opened an investigation, eventually taking the Children into custody and placing them with the same foster parents who had previously adopted the Children's half-sibling A.M. ¶6 At an adjudication hearing in April 2018, the juvenile court found that Mother had neglected the Children, and that finding is not contested on appeal. The court set reunification as the primary permanency goal, with a concurrent goal of adoption. The court ordered DCFS to provide reunification services to Mother and ordered Mother to comply with a child and family plan that required her, among other things, to: submit to a mental health evaluation and complete recommended treatment; submit to a substance abuse evaluation and complete recommended treatment; submit to random urine tests for drugs; maintain stable housing and employment; and "complete all obligations with criminal court."

¶7 Between April and December 2018, Mother never failed to attend a scheduled visit with the Children (except when incarcerated), and she interacted appropriately with them during her visits. But Mother substantially failed to comply with most other aspects of the reunification plan. For example, while Mother did complete both mental health and substance abuse evaluations, she did not complete the recommended treatment. Additionally, Mother missed many of her scheduled drug tests, and many of the tests she did take came back positive for marijuana or methamphetamine. At one point in the summer of 2018, Mother began outpatient substance abuse treatment at a treatment facility (Treatment Facility), but she failed to complete the program.

¶8 Moreover, Mother did not appropriately address all of her pending criminal matters. In September 2018, she was ordered to serve thirty days in jail for probation violations. Even after being released, Mother continued to test positive for illegal substances, including methamphetamine. Mother was reincarcerated on November 29, 2018.

¶9 In light of Mother's incarceration and her failure to comply with the terms of the reunification plan, in December 2018 both the State and the guardian ad litem (GAL) asked the court to terminate reunification services and change the permanency goal to adoption. After a hearing, the juvenile court agreed with this request, and made findings that Mother had been "unsuccessful in completion of her service plan" and that "return of the [C]hildren would create a substantial risk of detriment" to their emotional or physical well-being. The court terminated reunification services and changed the permanency goal to adoption. A few weeks later, the State filed a petition for termination of Mother's parental rights.

¶10 After being incarcerated again in November 2018, Mother finally started taking meaningful steps to address her issues. She enrolled in educational programs at the jail, including a GED class, and obtained her GED in just four weeks, which she claimed made her "the fastest GED graduate in jail history." She began attending substance abuse treatment groups inside the jail, and in January 2019 she was able to arrange a release from the jail directly to an inpatient program at Treatment Facility. Mother resided at Treatment Facility for four months, and she successfully completed the inpatient program there prior to her release on May 22, 2019. While at Treatment Facility, all of her drug tests came back clean. Her programming at Treatment Facility included not only substance abuse treatment, but also education in a number of other areas, including mental health and parenting skills.

¶11 In March 2019, while Mother was at Treatment Facility, she asked the juvenile court to reinstate reunification services, asserting that she had made "remarkable progress" in the program. The court noted that Mother had done "amazingly well" at Treatment Facility, but denied Mother's motion for additional reunification services on the ground that "Mother does not need services from [DCFS] at this point," due to the fact that she was receiving appropriate services at Treatment Facility. In recognition of Mother's significant progress, however, the court "expanded visitation" for Mother with the Children. At that time, a date had already been set for a trial regarding the State's petition to terminate Mother's parental rights, and the court kept that date on the calendar.

¶12 The three-day termination trial took place in mid-June 2019, about four weeks after Mother's release from Treatment Facility. The State called two expert witnesses—psychologists who had evaluated Mother and M.M.—and the Children's foster mother, as well as a DCFS social worker. The GAL also called, as a limited expert, another social worker. The psychologist who evaluated Mother explained that she conducted the evaluation before Mother had been admitted to the residential program at Treatment Facility; she discussed Mother's ongoing struggles with substance use and described other conditions Mother sometimes experienced, such as "forgetfulness, disorganization, impulsivity, [and] restlessness."

¶13 M.M.'s evaluator testified that, in her opinion, M.M. had been exposed to a number of traumas, including exposure to substance use, hospitalization, and removal from Mother's care, and stated that children who have been traumatized often struggle when separated from their caregivers. The expert also testified that, while M.M.'s ability to regulate her emotions and control her temper improved during the time she was in her foster family's care, her ability to interact smoothly with adults was negatively impacted by her visits with Mother.

¶14 The foster mother testified that the Children were shy and timid during visits with Mother, and often returned to the foster mother for hugs even while Mother was in the room. The foster mother also testified that, while M.M. was in her family's care, M.M. had required heart surgery at the Mayo Clinic in Minnesota, and the foster family had arranged for this surgery and accompanied M.M. on the trip to Minnesota. The foster mother also testified that the Children called her "Mom" and saw her as their mother, and that they had bonded strongly with the other children in the household.

¶15 As part of its presentation at trial, the State attempted to introduce evidence regarding Mother's history of drug abuse, including...