D.M. v. S.H.D.M. v. S.H.
OPINION
{1 D.M. (Fаther) challenges the termination of his parental rights in C.M. and AM. (the Children). Father first argues that the juvenile court lacked subject matter jurisdiction to consider S.H.'s (Mother) petition. In addition, Father asserts a number of issues, challenging the juvenile court's order on constitutional, evidentiary, and procedural grounds. We affirm.
BACKGROUND
12 Father and Mother have two children: C.M., who was born in 1996, and A.M., who was born in 1997. In 2001, a Utah court entered a decree of divorcee ending Father and Mother's marriage and awarding physical custody of the Childrеn to Mother, subject to Father's right to exercise parent-time. At the time of the divorce, Father, Mother, and the Children lived in Utah. Father exercised parent-time until the fall of 2004, when he twice attempted to have Mother killed by two different hired assassins. Following the murder attempts, Mother obtained a protective order prohibiting Father from having contact with her or the Children. In late 2004, she and the Children moved to another state.
13 On December 15, 2005, Father was convicted on two counts of conspiracy tо commit aggravated murder of Mother. One conviction was later vacated, but Father received an indeterminate sentence of five years to life in prison with a recommended minimum sentence of ten years on the remaining conviction. Father is currently incarcerated at the Utah State Prison and has appealed his conviction. That appeal has not yet been resolved.
1 4 Mother filed a Petition for Termination of Parental Rights in the Utah Third District Juvenile Court on May 8, 2006. Mother cited Father's conviction as the grounds for termination. She simultaneously filed a motion to conceal her current address, which the court granted. In April 2007, a Guardian Ad Litem (the GAL) was appointed to represent the best interests of the Children. Mother subsequently amended her Petition for Termination of Parental Rights to add abandonment as an alternative ground for termination.
15 Following trial on January 7 and 8, 2008, the juvenile court terminated Father's parental rights. The grounds for termination were parental unfitness and abandonment, bоth based upon "the conduct of [Father] leading to his conviction for Conspiracy to Commit Aggravated Murder of [Mother]."
ISSUES AND STANDARDS OF REVIEW
16 Father argues that the Utah juvenile court lacked subject matter jurisdiction over the termination proceedings because Mother failed to list her address in the petition for termination and because the Children no longer live in Utah. Jurisdictional questions are questions of law, which we review for correctness. See In re P.F.B.,
T7 Father also complains that the juvenile court erred in quashing his subpoenas for Mother's medical records and in issuing a protective order. Generally, we review a trial court's discovery rulings for an abuse of discretion. See Pete v. Youngblood,
T9 Father contends that the juvenile court erred in denying his motion for the appointment of a mental health therapist to evaluate Mother. See generally Utah R. Juv. P. 38(a)(2). We review an interpretation of a rule of procedure for correctness. See Ostler v. Buhler,
{10 Father also claims that he was denied due process when the juvenile court concealed Mother's address and sustained objections to questions relating to Mother's fitness and the Children's current location. "Whether a parent has been afforded adequate due process is a question of law, reviewed for correctness." - In re J.B.,
T11 Finally, Father challenges the sufficiency of the evidence to support the finding that termination of his parental rights was in the Children's best interests. "Because of the factually intense nature of such an inquiry," In re B.R.,
ANALYSIS
I. Subject Matter Jurisdiction
%12 In 2000, Utah adopted the Uniform Child Custody and Jurisdiction Enforcement Act (the UCCJEA). See
(a) a court of this state determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is mo longer available in this state concerning the child's care, protection, training, and personal relationships; or
(b) a court of this state or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this state.
113 In this case, a Utah trial court entered the initial custody and parent-time determination as part of the divorcee proceedings. Neither party alleges that Utah did not have subject matter jurisdiction at the time of that initial decree. Father, however, claims that Utah's jurisdiction has lapsed in favor of the state where the Children now live. In response, Mother and the GAL argue that Utah's jurisdiction continues becаuse Father still resides in Utah. A chal
A. Utah's Initial Subject Matter Jurisdiction Continues Until a Court Determines that Either of Two Conditions Have Occurred.
{14 Section 78B-13-202(1) contains two subparts separated by the disjunctive "or." See
B. The Juvenile Court Did Not Exceed its Discretion in Concluding that Substantial Evidence Remains in Utah.
1 15 Section 78B-18-202(1)(a) contains two factors separated by the conjunction "and." See Utah Code Ann. $ 78B-18-202(1)(a). Thus, for Utah to be divested of jurisdiction under subsection (1)(a), a Utah court must determine that "neither the child{ren}, the child[ren] and one parent, nor the child[ren]l and a person acting as a parent [continue tol have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child[ren]'s care, protection, training, and personal relationships." Id. (emphasis added). If a Utah court determines that both of the factors set forth in subsection (1)(a) have transpired, it no longer has subject mattеr jurisdiction. See id.; see also Forlenza,
{16 Father argues that the Children left Utah approximately a year and a half before Mother filed her petition and have not visited with him or his family since before the murder attempts. Thus, Father contends thаt information about the Children's "care, protection, training, and personal relationships,"
[ 17 The record reflects that the Children's maternal grandparents live in Utah and that the Children have visited with them since their relocation.
II. Order Quashing Subpoenas and Granting Protective Order
118 Having concluded that the juvenile court had subject matter jurisdiction, we now consider the issues on appeal. Father contests, on both procedural and substantive grounds, the juvenile court's order quashing his subpoenas for Mother's health records and its order granting Mother a protective order. He first contends that the juvenile court granted Mother's motion before Father's opportunity to respond had expired and without submission of the motion for decision as required under rules 6 and 7 of the Utah Rules of Civil Procedure, see
A. We Assume Father Was Entitled to Additional Time to Oppose Mother's Motions.
T19 Rule 7 of the Utah Rules of Civil Procedure allows the nonmoving party to file a memorandum in opposition within ten days of service of the original motion and memorandum. See id. R. T(c)(1).
20 Mother served Father with her motions to quash the subpoenas and issue a protective оrder and the supporting memorandum via mail on October 29, 2007. Without receiving a response from Father or a request to submit for decision from either party, the juvenile court granted those motions on November 18, 2007. Father contends that under the guidelines of rule 6, he had until November 15, 2007, to file a response. Further, Father asserts that the motions were never submitted for decision. Consequently, he claims, the court erred in issuing the order quashing the subpoenas and entering a protective order. We assume for purpоses of this analysis that Father should have been afforded additional time to oppose Mother's motions.
B. Any Error in Calculating the Time to Oppose the Motions Was Harmless.
T21 Even if Father had additional time under the rules to respond, we nevertheless uphold the juvenile court's order because the error was harmless. "[HJarmless error is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings." H.U.F. v. W.P.W.,
122 "Utah law requires a court to make two distinct findings before terminating a parent-child relationship." In re R.A.J.,
123 Father asserts that when the legislature bifurcated the termination process, it intended that juvenile courts consider the best interests of the Children in general, not just in relation to the parent whose rights are subject to termination. Father, however, cites no authority to support his position, and we decline to adopt it. In the absence of an actual challenge to her fitness, Mother has a protected right to parent the Children. See generally
III. Appointment of a Mental Health Therapist
%24 Father challenges the denial of his request for the appointment of a mental health therapist to evaluate Mother. Father claims that the Utah Rules of Juvenile Procedure permit such an appointment in rule 38, which states,
The court may order [an examination by a mental health therapist] of the minor's parent ... who is a party to the proceedings and whose ability to care for the minor is at issue, or where it is alleged that the physical, mental or emotional condition of the person is a factor in the alleged neglect, abuse or dependency of the minor.
Utah R. Juv. P. 838(a)(2) (emphases added). The plain language of rule 33 allows the juvenile court to order an evaluation of Mother if (1) Mother's ability to care for the Children was at issue or (2) Mother's mental condition contributed to the neglect, abuse, or dependency of the Children. See id. See generally Cox v. Krammer,
25 Father again claims that his concerns аbout Mother's health and fitness relate to the question of whether termination is in the
IV. Due Process
126 Father contends that he was deprived of his due process rights when the juvenile court granted Mother's motion to conceal her address
127 In this case, Father has been convicted of conspiracy to commit aggravated murder of Mother. The facts underlying Father's conviction are that he hired third parties to murder Mother in her home. Accordingly, Mother has good reasons for wanting to keep her home address secrеt from Father. Under these cireumstances, the juvenile court did not exceed its broad disceretion in permitting Mother to withhold her current address from Father. See In re Pendleton,
128 Furthermore, we fail to see how the order detrimentally affected Father's ability to conduct discovery. Father knew Mother was represented by counsel and had access to that counsel's address.
T 29 We have already affirmed the juvenile court's evidentiary and discovery rulings upon which Father bases his due process claim. We also conclude that Father was not impeded in his trial preparation by the lack of Mother's address. Therefore, we reject Father's argument that his due process rights have been violated.
V. Sufficiency of the Evidence
T30 Finally, Father claims that Mother failed to prove by clear and convine-ing evidence that termination of his parental rights was in the best interests of the Children. See generally
132 Father additionally contends that the juvenile court could not make a finding that the Children's lives would be improved by the termination of his rights. The juvenile court heard testimony from Mother that the Children are doing well in their new schools, have made close friends, and are having their medical and emotional needs attended to by Mother and Stepfather. Mother also testified that the Children are angry with and afraid of Father based on Father's attempts to have their Mother killed. Mother further testified that an ongoing relationship with Father will foster guilt and create stress in the Children's lives. The court then balanced that evidence with testimony from Father about his and his parents' close relationship with the Children prior to Father's attemрts to murder Mother. In doing so, the juvenile court carefully avoided consideration of Father's failure to exercise parent-time for over three years because such activity was prohibited by the protective order.
T 33 Essentially, Father asks us to reweigh the evidence presented in the juvenile court and to disregard Mother's testimony entirely. However, the juvenile court's "training, expertise, and superior ability to assess the credibility of parties ... [puts it] in the best position to make such a difficult detеrmination" regarding termination of parental rights. In re T.M.,
CONCLUSION
1 34 Utah retained subject matter jurisdiction over this matter. With respect to Father's constitutional, evidentiary, and procedural arguments, the juvenile court's order is affirmed because Mother's fitness was not at issue, the juvenile court had discretion to enter the protective orders and quash the subpoenas, and the evidence was sufficient to support the termination of Father's parental rights.
1 35 WE CONCUR: PAMELA T. GREENWOOD, Presiding Judge and WILLIAM A. THORNE JR., Associate Presiding Judge.
Notes
. The UCCJEA was renumbered in 2008. See
. "Child custody determination" is defined as "a judgment, decree, or other order of a court providing for the legal custody, physical custody, or parent-time with respect to a child. The term includes a permanent, temporary, initial, and modification order."
. At oral argument, the GAL began with the proposition that "so lоng as Utah is the issuing state, so long as one of the parties live[s] in Utah, case closed."
. - Although the juvenile court did not make specific findings on the factors in section 78B-13-202(1)(a), we may rely on the record where the evidence is undisputed. See In re P.F.B.,
. Because we conclude that there is substantial evidence in Utah concerning the Children's "care, protection, training, and personal relationships,"
. The Utah Rules of Civil Procedure are applicable to termination proceedings in the juvenile court. See
. The juvenile court also granted Mother's motion to quash because the information sought was privileged. Father argues that the privilege was waived because Mother put her health into issue by requiring the court to consider the Children's best interests. For the same reasons addressed in the body of this opinion, we conclude that Mother's fitness was never at issue and, thus, no waiver occurred,
. Father also challenges certain evidentiary rulings, which prеcluded him from asking questions related to Mother's parental fitness and also prevented him from inquiring into the fitness of Mother's current husband (Stepfather). Because Stepfather had not placed his fitness in issue by filing a pelition to adopt the Children and because Father did not file a cross-petition challenging Mother's fitness, we agree with the trial court that the testimony sought was irrelevant and affirm the evidentiary rulings.
. Father also argues that the motion to conceal Mother's address was improperly granted bеcause Mother did not supplement her motion with a memorandum as required by rule 7(c)(1) of the Utah Rules of Civil Procedure. See
. In fact, Father's counsel agreed to the concealment of Mother's address and indicated that counsel was aware that he could make deposition and other discovery requests through Mother's attorney.
. Father does not challenge the juvenile court's findings of unfitness and abandonment.