STATE OF UTAH, IN THE INTEREST OF J.M. AND M.M., PERSONS UNDER EIGHTEEN YEARS OF AGE. Μ.Μ., Aрpellant, υ. STATE OF UTAH, Appellee.
No. 20190673-CA
March 26, 2020
2020 UT App 52
Third District Juvenile Court, Salt Lake Department; The Honorable Julie V. Lund; Nos. 1156280 and 1156281. Thomas A. Luchs, Attorney for Appellant.
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER concurred.
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 reunificatiоn 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 оriginally 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.
¶7 Between April and December 2018, Mother never failed to attend a scheduled visit with the Children (excеpt 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 thе [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 rеunification 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—
¶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 sеparated 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 evidence concerning the circumstances that led to the termination of Mother‘s parental rights with regard to A.M., the Children‘s half-sibling. Mother‘s attorney objected to the admission of any evidence that Mother‘s parental rights as to A.M. had been terminated, but the court ultimately overruled Mother‘s objection.
¶16 Mother called five witnesses at trial, in addition to herself: her therapist, case manager, programming teacher, and housemate from Treatment Facility; and her probation officer. Each of these individuals explained the progress they hаd witnessed Mother make during and after the time she was at Treatment Facility, and they specifically described the decline in her criminal activity, the improvement in her finances, and the substantial improvements Mother had made toward sobriety. The case manager, in particular, testified that Mother‘s time at Treatment Facility had brought about a “drastic change” in Mother, and that she began “consistently working on building sober supports” and “finding healthy people in her life” while in the program. The case manager said that Mother had been “a remarkable participant” in the program because “she was always very organized, very structured, very determined,” “she took feedback well, [and] she was very good at working on her emotional regulation.” Her therapist and case manager both testified that they had high hopes for her future success. And Mother‘s probation officer testified that Mother had been staying out of legal trouble, and that, at the time of trial, Mother had not committed any additional probation violations. The probation officer added that all of Mother‘s drug tests, both during and after her time at Treatment Facility, had come back clean.
¶17 Mother herself also testified at trial, explaining everything she had learned through her care at Treatment Facility, the progress she felt she was making, and how happy it made her to spend time with the Children during their visits.
¶18 In its closing argument, the State emphasized Mother‘s long history of substance usе and her relative lack of experience with sobriety in the community, noting that, since her early teen years, Mother‘s “longest period of sobriety [has been] seven and a half months,” and even that was only recently “attained in a very highly structured setting” in jail and later at Treatment Facility. The State argued that “Mother has never maintained her sobriety outside of a structure of jail or treatment.”
¶20 Next, the court found that “it is in the best interest of the [C]hildren to have the parental rights of Mother terminated so that the [C]hildren can be adopted and protected from further neglect and/or abuse.” On this point, the court specifically took into account the “safety and well-being of the [C]hildren,” as well as their “physical, mental or emotional condition and needs.” The court found that the Children need stability and an “assurance” that they “will be given care, treatment, and guidance that will assist them in developing into self-sufficient adults,” and determined that the Children were currently receiving that level of care with the foster parents. The court noted that it had specifically “considered and explored ‘less permanеnt arrangements’ such as custody and guardianship with a family member,” but that “[n]o such kinship is available.” As part of the best-interest inquiry, the court found it to be “strictly necessary” that Mother‘s parental rights be terminated.
¶21 The court made specific findings about Mother‘s improved behavior following her November incarceration. The court noted its duty to consider evidence of both current and past events, and to weigh whether Mother‘s current improved behavior overcame her poor past history. While acknowledging that Mother‘s “progress since she was released from jail to [Treatment Facility] has been significant,” the court concluded that “the 6 months that she has been sober and participating in treatment does nоt overcome her lengthy history of drug abuse and neglect beginning in 2014 with... [A.M.] and her failure to respond to DCFS services at that time and for the first 9 months of this case.”
ISSUES AND STANDARDS OF REVIEW
¶22 Mother now appeals from the juvenile court‘s order terminating her parental rights, and asks us to consider three issues. First, Mother challenges the court‘s determination that statutory grounds for termination exist in this case. “The ultimate conclusion that a parent is unfit or that other grounds for termination have been established is a legal question, but such decisions rely heavily on the juvenile court‘s assessment and weighing of the facts in any given case.” In re E.A., 2018 UT App 83, ¶ 2, 424 P.3d 1169 (quotation simplified). Accordingly, we afford “a high degree of deference” to a juvenile court‘s decision with regard to the existencе of statutory grounds, and overturn it only when the result is “against the clear weight of the evidence or leave[s] [us] with a firm and definite conviction that a mistake has been made.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (quotation simplified). In sum, “when a foundation for the [juvenile] court‘s decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence.” Id.
¶23 Second, Mother takes issue with the juvenile court‘s decision to admit and consider evidence regarding the previous termination of her parental rights to A.M., asserting that this evidence is impermissible “prior act” evidence barred by
¶24 Finally, Mother appeals the court‘s determination that termination of her parental rights was in the best interest of the Children. We afford a juvenile court‘s best-interest decision “a high degree of deference,” see In re D.V., 2017 UT App 80, ¶ 11, 397 P.3d 853, reversing only for “clear error,” which we find when “the result is against the clear weight of the evidence or leaves [us] with a firm and definite conviction that a mistake has been made,” In re K.J., 2013 UT App 237, ¶ 9, 327 P.3d 1203 (quotation simplified).
ANALYSIS
¶25 Utah courts apply a two-part test to determine whether to terminate parental rights, asking first “whether statutory grounds for termination are present,” and then “whether termination of the parent‘s rights is in the best interest of the affected child.” In re B.T.B., 2018 UT App 157, ¶ 4, 436 P.3d 206 (quotation simplified), cert. granted, 440 P.3d 692 (Utah 2019). Courts terminate parental rights only when both of these elements are met and supported by clear and convincing evidence. See Id. ¶ 13. In this case, the juvenile court found both parts of the test satisfied, and entered an order terminating Mother‘s parental rights. Mother now challenges both parts of that order, and in addition complains that the court improperly considered evidence of her past parental experience with A.Μ.
A
¶26 Our legislature has authorized courts to terminate parental rights “if the court finds any one of” several statutory grounds for termination.
¶27 In challenging the court‘s findings on statutory grounds, Mother spends the entirety of her energies discussing the manner in which the juvenile court weighed her past behavior against her current improved behavior. The interplay between Mother‘s past behavior and her current improved behavior is certainly relevant to some of the statutory grounds, such as whether Mother “is unfit,” or perhaps whether there has been a “failure of parental adjustment.” See
¶28 “Has neglected” is a past-tense locution; it is by nature different than language аsking a court to examine whether a parent is currently neglecting a child. We begin any statutory interpretation inquiry by examining the plain meaning of the language employed by the legislature. See, e.g., Anadarko Petroleum Corp. v. Utah State Tax Comm‘n, 2015 UT 25, ¶ 11, 345 P.3d 648 (stating that “[w]hen interpreting a statute, we look first to the plain and ordinary meaning of its terms“). On its face, the past-tense nature of the language used indicates a legislative intent that past episodes of neglect, even if they occurred a while ago and even if the parent has since taken steps to improve her behavior, are enough to meet the statutory requirements. And our supreme court has held that the tense used—whether past or
¶29 The juvenile court found that Mother neglected the Children in February 2018 when she exposed M.M. to methamphetamine. Mother does not challenge this adjudication on appeal, nor does she contend that her improved behavior following her November incarceration somehow changed the facts underlying the previous neglect finding. Because the legislature—by using the past-tense phrase “has neglected” instead of a present-tense phrase like “is currently neglecting“—has mandated a lookback-style inquiry, an adjudicated and unappealed past act of neglect by a parent will by definition result in a judicial determination that the parent “has neglected” the child.2 And for the purposes of this inquiry, there is no need—at least not at this stage—to engage in any weighing of a parent‘s past behavior against a parent‘s improved current behavior. Once neglect has occurred, a juvenile court is entirely justified in making a finding that a parent “has neglected” a child, even if that parent has improved herself since.3
¶30 Mother‘s failure to appeal either (a) the juvenile court‘s original neglect adjudication or (b) the court‘s later finding that Mother “has neglected” the Children results in Mother being unable to carry her burden of persuasion on appeal regarding statutory grounds for termination. The termination statute itself, as noted above, plainly states that the presence of “any one” statutory ground for termination is sufficient. See
¶31 Accordingly, we reject Mother‘s contention that none of the statutory grounds for termination is present here.
B
¶32 Next, Mother argues that the juvenile court should not have admitted and considered evidence regarding the tеrmination of her parental rights to A.M. Mother maintains that the admission of this evidence violated
¶33
¶34 But in this case, as the GAL correctly notes, the evidence in question “was not admitted to prove Mother‘s actions ‘on a particular occasion’ but to prove her general incompetency and unfitness over a period of time.” Indeed, the evidence was admitted to help the court assess a number of inquiries that were not necessarily connected to any single occasion, including whether Mother was currently fit to parent the Children and whether termination of parental rights would be in the Children‘s best interest.4 In these sorts of inquiries, consideration of a parent‘s past actions is not only allowed, but encouraged, both by the Juvenile Court Act and by case law interpreting it.
¶35 In parental termination cases in which a parent‘s fitness is at issue, our legislature requires courts to consider a parent‘s “habitual or excessive use of intoxicating liquors, controlled substances, or dangerous drugs,” as well as a parent‘s “history of violent behavior.”
¶36 Mother has not demonstrated that
C
¶37 Finally, Mother takes issue with the juvenile court‘s conclusion that termination of her parental rights was in the best interest of the Children. Once a court finds a statutory ground for termination, it must next address the second part of the test by determining whether severing a parent‘s rights is in the best interest of the child. “The best interest of the child has always been a paramount or polar star principle in cases involving termination of parental rights.” In re J.P., 648 P.2d 1364, 1368 (Utah 1982) (quotation simplified). And, as noted above, determining a child‘s best interest requires a court to undergo a comprehensive review оf the unique and specific conditions a child faces in any given case. See In re B.T.B., 2018 UT App 157, ¶ 47–50. Accordingly, the juvenile court‘s inquiry into a child‘s best interest is necessarily quite “broad, and is intended as a holistic examination of all of the relevant circumstances that might affect a child‘s situation,” and includes an analysis of “the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” Id. ¶ 47 (quotation simplified). The breadth of this “subjective assessment based on the totality of the circumstances surrounding the child” has “never been diminished” and remains a “paramount consideration in cases involving termination of parental rights.” Id. (quotation simplified).
¶38 The juvenile court heard evidence in this case that cut both ways on the best-interest question. On the one hand, the court heard evidence that Mother, chiefly through her uncontrolled substance use, had endangered her children on previous occasions. Two of her three children had been exposed to methamphetamine while in utero. She continued to use methamphetamine after the birth of the Children, which led to the February 2018 episode in which methamphetamine was found in M.M.‘s urine. Even after that episode, which resulted in the Children being taken from her, Mother did very little over the next nine months to comply with the plan that the juvenile court set out that would enable her to be reunited with the Children. Mother continued to use methamphetamine, failed to seek and complete drug treatment, and committed multiple violations of her criminal probation. The court also considered evidence that the Children were happy and well-adjusted with the foster parents, who are ready and willing to adopt them, a placement that would unify them with their half-sibling A.M.
¶39 On the other hand, the juvenile court heard evidence that Mother‘s November 2018 incarceration functioned as a real wake-up call for her. Between November 2018 and the time of trial in June 2019, Mother‘s behavior was nothing short of exemplary. With the able assistance of personnel both at the jail and at Treatment Facility, Mother was not only able to complete an inpatient substance use treatment program, but was also able to get a GED, obtain new parenting skills, and continue building her bond with the Children. Indeed, the evidence presented was that, after the court terminated reunification services in December 2018, Mother completed each and every item in her child and family plan, without the benefit of any services from DCFS. At trial, some of the counselors who worked with Mother at Treatment Facility testified that Mother had been very successful in their program, that she had learned a lot of the skills necessary to succeed after returning to the community, and that they had high hopes for her success.
¶40 Presented with evidence like this, the juvenile court could have reasonably gone either way on the best-interest question. Indeed, after In re B.T.B., it no longer follows “almost automatically” from a finding of statutory grounds that it is in the best interest of the child to terminate a parent‘s rights. See In re B.T.B., 2018 UT App 157, ¶ 44. Even though a statutory ground for termination (neglect) is present here, the juvenile court could potentially have determined that the best interest evidence militated in the other direction, and could have therefore declined to terminate parental rights. Given Mother‘s significant progress following her incarceration, there exists sufficient
¶41 But the juvenile court decided to terminate, concluding that it was in the Children‘s best interest to terminate Mother‘s rights. The court made extensive findings supporting its conclusion, and was ultimately swayed by several factors, including Mother‘s lengthy past history of substance use and relatively short (four-week) history of sobriety outside the context of an inpatient treatment facility, and the positive experience the Children were having with the same foster parents who had previously adopted A.M. The court emphasized the need for the Children to find stability and permanence, and ultimately found that those goals were best furthered through termination and adoption.
¶42 Each of us might not have reached the same decision that the juvenile court reached, had we been in the juvenile court‘s position. But that does not make the court‘s decision reversible. Our court has recognized that “the juvenile court is in the best position to weigh conflicting testimony, to assess witness credibility, and from such determinations, to render findings of fact” and, therefore, “an appellate court should not substitute its own judgment for that of the juvenile court‘s judgment in matters relating to termination proceedings.” In re B.O., 2011 UT App 215, ¶ 2, 262 P.3d 46 (per curiam). In reviewing cases like this one, we “must be capable of discriminating between discomfort over a trial court‘s findings of fact—which [an appellate court] must tolerate—and those [situations] that require a court‘s intercession.” See In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (quotation simplified). And the standard of review we apply in these cases is so deferential that we must “forebear disturbing the close call,” even if we may view the facts in a different light. Id. (quotation simplified); see also id. ¶ 14 (“Simply because an appellate court may have come to a different result had it been the initial trier of fact does not permit it to reverse the juvenile court absent a firm and definite conviction that the court‘s decision was against the clear weight of the evidence.“); Gunn Hill Dairy Props., LLC v. Los Angeles Dep‘t of Water & Power, 2015 UT App 261, ¶ 21, 361 P.3d 703 (Orme, J., concurring) (stating that “standards of review really do matter,” and noting that two of the judges on the panel were “affirming the trial court‘s decision—not because [they thought] it was the right decision but because of [the] deferential standard of review“).
¶43 The juvenile court‘s best-interest decision wаs supported by competent findings and by record evidence. Accordingly, we defer to the juvenile court‘s ultimate determination. See In re C.T., 2018 UT App 233, ¶ 11, 438 P.3d 100.
CONCLUSION
¶44 Statutory grounds existed to support a termination order, given the juvenile court‘s unchallenged adjudication of neglect. The juvenile court properly considered Mother‘s history with A.M. in assessing Mother‘s fitness as a parent and in evaluating the best interest of the Children. While the best-interest inquiry appears to have been a close call, the juvenile court‘s finding is supported by evidence and articulated findings, and is therefore not subject to reversal under applicable standards of review. We therefore affirm the juvenile court‘s termination order.