STATE OF UTAH, IN THE INTEREST OF A.T. AND J.B.J., PERSONS UNDER EIGHTEEN YEARS OF AGE. L.G., Appellant, v. STATE OF UTAH, Appellee.
No. 20120329-CA
THE UTAH COURT OF APPEALS
July 26, 2013
2013 UT App 184
JUDGE WILLIAM A. THORNE JR. authored this Opinion, in which JUDGE J. FREDERIC VOROS JR. concurred. JUDGE JAMES Z. DAVIS concurred in part and dissented in part, with opinion.
Fourth District Juvenile, Provo Department. The Honorable Suchada P. Bazzelle. No. 522670
John E. Swallow and John M. Peterson, Attorneys for Appellee
Paul Waldron, Guardian ad Litem
THORNE, Judge:
¶1 L.G. (Mother) appeals the juvenile court‘s termination of her parental rights in A.T. and J.B.J. (the Children). Mother argues that she is entitled to reunification services pursuant to
¶2 Mother is the biological mother of the Children. J.B. (Father) is the biological father of J.B.J. and the stepfather of A.T.
¶3 On February 4, 2011, Mother was convicted of felony drug offenses. She was sentenced to serve one to fifteen years in the Utah State Prison. At the time of Mother‘s incarceration, the Children remained with Father. In May, law enforcement authorities received a report that Father had used heroin. Officers obtained a warrant to search the home and found several bags of pills belonging to Father and drug paraphernalia. The Division of Child and Family Services (DCFS) removed the Children from Father‘s care and placed them in the home of a paternal aunt and her husband (the Foster Parents).
¶4 Thereafter, DCFS identified a primary permanency goal for the Children of reunification with Father. The juvenile court approved a service plan for Father because he was the custodial parent of the Children at the time of removal and Mother was incarcerated for an extended sentence. Father was subsequently
¶5 At the permanency hearing, the juvenile court inquired about the status of Mother‘s sentence. Mother‘s attorney informed the court that Mother had recently been before the parole board and that she had seven months of incarceration remaining and then would spend some time at a half-way house. The juvenile court changed the permanency goal for the Children to adoption, stating, “With another seven months [left] it does not appear that there‘s any reasonable likelihood that [Mother] would be able to put herself in a position to obtain custody of [the C]hildren upon her release.”
¶6 The juvenile court held a termination of parental rights trial on February 16, 2012. Mother argued that her parental rights should not be terminated because DCFS failed to make reasonable efforts to provide her with reunification services. The juvenile court was not persuaded, observing that Mother “has been incarcerated for the entire course of this case and reunification services, as a practical matter, could not possibly be provided to her.” The juvenile court also rejected Mother‘s argument stating,
[T]he permanency goal set by the Court in this case was for reunification with [Father] because he was the custodial parent at the time of removal and because [Mother] was serving a long-term prison sentence. The Service Plan was geared toward services for [Father] and the [C]hildren and DCFS was ordered by the Court to move in that direction.
Therefore, [Father], not [Mother], is the parent entitled to reasonable efforts from DCFS.
The juvenile court determined that Mother and Father had “substantially neglected, willfully refused or have been unable or unwilling to remedy the circumstances that caused the out-of-home placement and there is no substantial likelihood that they will [be] capable of exercising proper and effective parental care in the near future.” The juvenile court terminated Mother‘s and Father‘s parental rights in the Children. The juvenile court then ordered the permanency plan for the Children to be changed to adoption. Mother appeals.
ISSUES AND STANDARDS OF REVIEW
¶7 Mother argues that she is entitled to reunification services because the juvenile court failed to comply with
¶8 Mother asserts that the juvenile court erred in determining that she was not entitled to reunification services because at the time of the Children‘s removal Father was the custodial parent and Mother was serving a long-term prison sentence. Specifically, Mother argues that the juvenile court was required, under
¶9 Both the State and the Guardian ad Litem argue that the statute does not require the juvenile court to make a specific finding that reunification services would be detrimental to the Children. They argue that instead of a specific “detrimental to the minor” finding the court need only make findings which demonstrate that reunification services would have been detrimental to the Children. For instance, the State asserts that the juvenile court found that services were never contemplated for Mother because of her extensive history with DCFS wherein she ostensibly improved but quickly reverted to her past behaviors; Mother‘s extensive history of substance abuse, violent behavior, and criminal activity; and Mother‘s incarceration before and throughout the proceedings. These findings, the State argues, are sufficient to demonstrate that the juvenile court considered the section 78A-6-312(25)(b) factors that are relevant to a detrimental
¶10 This question appears to be governed by
¶11 With these rules in mind, we turn to the pertinent language in
(a) If a parent is incarcerated or institutionalized, the court shall order reasonable services unless it determines that those services would be detrimental to the minor.
(b) In making the determination described in Subsection (25)(a), the court shall consider:
- the age of the minor;
- the degree of parent-child bonding;
- the length of the sentence;
- the nature of the treatment;
- the nature of the crime or illness;
- the degree of detriment to the minor if services are not offered;
- for a minor 10 years of age or older, the minor‘s attitude toward the implementation of family reunification services; and
- any other appropriate factors.
Id. (emphases added).
¶13 Thus, under the statute, a court may only deny reasonable services to an incarcerated individual if the court ”determines that those services would be detrimental to the minor.”
¶14 Webster‘s Dictionary defines determine to mean “a: to fix conclusively or authoritatively” or “b: to settle a question or controversy about: decide by judicial sentence.” Webster‘s Third
¶15 The juvenile court, in this case, did not, by an oral or written ruling, order, or judgment, articulate a decision that it would be detrimental to the Children to order reunification services to Mother. To the contrary, the court‘s reunification ruling specifies that a determining factor for the court‘s decision to deny services to Mother was the fact that Mother “was incarcerated at the Utah State Prison for an extended sentence,” and “reunification services, as a practical matter could not possibly be provided to her.” It may be, as the court stated, inconvenient or difficult as a practical matter to provide reunification services to Mother while she is incarcerated. Inconvenience or difficulty is not, however, the ultimate consideration for denial of said services to an incarcerated individual. Rather, the court is to evaluate and determine whether reunification services would be harmful or damaging to the minor children. Here, the juvenile court has not explained how the provision of services to Mother in prison would be detrimental to the Children. Although the court made some findings of fact related to Mother‘s extensive history with DCFS and her history of substance abuse, violent behavior, and criminal activity, those findings alone do not fulfill the juvenile court‘s requirement to itself make an actual determination that, based on certain findings, the provision of reunification services to Mother would be detrimental to the Children. Because the court did not make the necessary determination under
¶16
DAVIS, Judge (concurring in part and dissenting in part):
¶17 I concur with the majority‘s opinion with respect to its interpretation of
¶18 The juvenile court‘s order touches upon the factors enumerated by subsection (25)(b). The court found that DCFS has been involved in the Children‘s lives almost continuously since A.T. was barely a toddler and throughout J.B.J.‘s entire life. See
¶19 The majority nonetheless reverses the juvenile court‘s decision and remands for further proceedings because the court did not specifically “articulate a decision that it would be detrimental to the Children to order services to Mother,” see supra ¶¶ 15-16. I do not believe such an outcome is warranted here. Instead, I would rule that by following the rubric prescribed by subsection (25)(b), the juvenile court‘s findings necessarily illustrate that it would be detrimental to the Children to order services to Mother. Accordingly, given this court‘s ability to “modify . . . any order or judgment appealed from,”