IN THE UTAH COURT OF APPEALS

‐‐‐‐ ooOoo

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State of Utah, in the interest of S.F. and

C.F., persons under eighteen years of

age.

____________________________________

K.F.,

Appellant,

v.

State of Utah,

Appellee. )

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) AMENDED OPINION 1

Case No. 20090484

‐ CA

F I L E D

(January 12, 2012)

2012 UT App 10

‐‐‐‐‐

Fourth District Juvenile, Orem Department, 535184

The Honorable Mary T. Noonan

Attorneys: Neil D. Skousen, Orem, for Appellant

Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee

Martha Pierce, Salt Lake City, Guardian ad Litem

‐‐‐‐‐

Before Judges Orme, Roth, and Christiansen.

CHRISTIANSEN, Judge:

¶1 K.F. (Father) appeals the juvenile court order terminating his parental rights to

his children, S.F. and C.F. (the Children). Father argues that in failing to comply with

1. This Amended Opinion replaces our Opinion in Case No. 20090484

‐ CA issued on

November 10, 2011. We add the word ʺ temporary ʺ before ʺ custody ʺ in paragraph 47.

Our opinion is otherwise unchanged.2 Because substantive changes have been made to the Juvenile Court Act of 1996

since 2008, see generally Utah Code Ann. §§ 78A

‐ 6

‐ 101 to

‐ 1210 (Supp. 2011), throughout

this opinion we cite and rely on the version in effect in 2008. See id. §§ 78A

‐ 6

‐ 101 to

‐

1210 (2008).

3 “Because the termination of parental rights is fact sensitive, we review the facts

of the controversy in detail.” In re A.H.

, 2004 UT App 39, ¶ 1 n.1, 86 P.3d 745 (internal

quotation marks omitted).

4 Mother died June 13, 2009.

20090484

‐ CA 2 the Juvenile Court Act of 1996 after the Children were returned to the Division of Child

and Family Services’ (DCFS) custody for the second time, the juvenile court exceeded its

jurisdiction and violated his due process rights. See Utah Code Ann. §§ 78A

‐ 6

‐ 101 to

‐ 1210 (2008). 2 Father also argues that the State presented insufficient evidence to

support the termination of his parental rights. We affirm.

BACKGROUND 3

¶2 Father and H.F. (Mother), who is now deceased, 4 are the biological parents of

S.F., who was born in 2003, and C.F., who was born in 2006. The Children were placed

in DCFS’s protective custody on August 14, 2007. At a hearing on October 9, 2007, the

parents stipulated to certain factual findings, thereby allowing the juvenile court to

adjudicate the Children as neglected. Based upon this finding of neglect, the juvenile

court ordered DCFS to continue its custody and guardianship of the Children in an out

‐

of

‐ home placement. Specifically, the court entered the following conclusions of law:

Pursuant to Utah Code Ann. § [78A

‐ 6

‐ 105(25)(a) (2008)], the

[C]hildren

. . . are neglected in that [they] have been

subjected to mistreatment

. . . ; the [C]hildren lack proper

parental care by reason of the fault or habits of [M]other and

[Father]; [M]other and [Father] fail or refuse to provide the

necessary or proper subsistence, education, medical care, or

any other care necessary for the health, safety and well being

of the [C]hildren; and the [C]hildren are at risk of being5 These conclusions of law also applied to two other children, J.G. and E.M.,

stepchildren of Father and biological children of Mother, who were also placed in

DCFS’s protective custody on August 14, 2007. In addition to the findings of neglect,

J.G. and E.M. were adjudicated as physically and emotionally abused by Mother and

Father. The subsequent determinations regarding J.G. and E.M. are not relevant for the

purposes of this appeal.

6 On June 30, 2008, the court terminated reunification services as to Mother. The

court found that Mother had not fulfilled her responsibilities according to the service

plan, that she violated the order allowing only supervised contact with the Children,

that she was “pink slipped” into the hospital more than once, and that she engaged in

numerous physical and verbal domestic violence incidents in which she hit, bit, or

otherwise attempted to harm Father, at times in the Children’s presence. Following the

termination trial, Mother’s parental rights were ultimately terminated along with

Father’s.

20090484

‐ CA 3 abused and/or neglected because another minor in the home

has been abused and/or neglected.[ 5 ]

¶3 The court entered a dispositional order on November 1, 2007, ordering DCFS to

provide reunification services to Father and Mother for twelve months as to S.F. and

eight months as to C.F. The court also approved a service plan, which required Father

and Mother to submit to psychological and parental fitness evaluations, participate in

family therapy and parenting classes, regularly visit with the Children, maintain stable

and appropriate housing, and maintain a legitimate means for providing for the

Children. At the first permanency hearing on April 1, 2008, the court determined that

the permanency goal for the Children would be reunification with Father. At several

subsequent permanency hearings, the court renewed this permanency goal for Father. 6

I. August 12, 2008 Permanency Hearing

¶4 At the August 12, 2008 permanency hearing, the juvenile court returned custody

and guardianship of the Children to Father. The court found that Father, “substantially

complied with the treatment plan, reunification of the [C]hildren [with Father] is

probable, and extension of services is in the best interest of the [C]hildren.” The court

further found, “[I]t is safe [and] appropriate to return [the C]hildren to

. . . Father.

. . . Father has substantially complied with the service plan goals.” The court modified its7 Mother was permitted only supervised visitation as recommended by DCFS, the

guardian ad litem, and Mother’s therapists.

20090484

‐ CA 4 order for custody and guardianship from DCFS to Father, specifically stating, “Custody

and guardianship of [the Children] is restored to

. . . Father,

. . . subject to protective

supervision by DCFS, effective Friday, Aug[ust] 15, 2008, no later than midnight.”

Additionally, the court stated,

Dad, I am returning physical and legal custody to you today

by court order. The responsibility that you have to the

[c]ourt and to the kids remains in place to keep them safe,

and to continue to work with the agency on

. . . an in

‐ home

plan, because they’ll be at home rather than out of home.

The court ordered DCFS to create a new service plan and scheduled a review hearing

on November 7, 2008. The court also emphasized, “[W]hat we’ll be looking for when

next we’re in court is [to] see how you’re doing with the kids at home [and] to answer

any questions that there might be under the new service plan

. . . .” At the end of the

hearing, the court added, “[On] November 7th we’ll be back in court to check on

everybody’s progress, see how the school year is going, see how daycare is going,

visitation and the like.” On September 25, 2008, Father agreed to a service plan that

included ensuring that Mother would have only authorized contact with the Children

and would not enter the family home. 7

II. November 3, 2008 Hearing

¶5 Just one month after Father entered into the service plan on October 27, 2008, law

enforcement officers responded to two separate incidents of domestic violence

involving both parents at Father’s home. On November 3, 2008, the juvenile court held

a hearing on DCFS’s October 30, 2008 Motion for Expedited Placement in Temporary

Custody and Verified Petition for Expedited Custody. After receiving the responding

officers’ testimonies, the court found that Father’s

confrontation of [M]other was an inappropriate response.

Given the history, [F]ather should have backed out of the

home and called the police immediately and sought redress

in that manner. Father should have kept the [C]hildren8 The court amended this order on May 27, 2009, after the termination trial, with

more comprehensive findings consistent with the transcript of the hearing.

20090484

‐ CA 5 completely protected, and his actions are not consistent with

the protection of these [C]hildren.

¶6 As to the incident that occurred later on October 27, the court found that Father

told law enforcement that he had observed [M]other

damaging his car and he confronted her. [F]ather again

chose to confront [M]other about the damage to the car,

subjecting the [C]hildren to exposure to further harmful

violent behavior on the part of the parents. The [C]hildren

were in the home during this incident. There was yelling

between the parents.

¶7 On a state

‐ provided shelter order form entitled “Custody Hearing Findings and

Order,” the court concluded, “[Father’s]

. . . actions, omissions, or habitual action create

an environment that poses a threat to the child’s health or safety

. . . .” See Utah Code

Ann. § 78A

‐ 6

‐ 302(1)(a) (2008). The court therefore ordered that removal was necessary

and that it was in the Children’s best interests “to be placed in the temporary legal

custody of [DCFS] for continued care and placement pending the adjudication

hearing.” 8 The court also concluded, by clear and convincing evidence, that it was

appropriate for the Children to be removed from Father’s custody because “the conduct

between the parents continues to place these [C]hildren in danger.” The court also

ordered that there should be “[n]o contact between the parents from now [until] further

order of the [c]ourt.”

¶8 Father stipulated to the removal of the Children and stipulated to the majority of

the facts DCFS presented in its Verified Petition for Expedited Custody and at the

hearing. But Father contested the State’s new factual allegations that relied on Mother’s

credibility, and he argued at the hearing that the court should not base any of its

findings on Mother’s version of the October 27 events. The court recognized that while

“[n]ot every allegation in the petition has been addressed[] as an evidentiary matter,”

“the parents’ conduct continue[d] to place the [C]hildren in danger” and, thus, it was

appropriate to remove them from Father’s custody. As to “[t]he rest of the factual9 After arguing these points at the December 8 hearing, Father’s counsel

acknowledged that the court might believe these issues could be reserved for the

termination trial, yet he reasoned,

[I]f it’s in the best interests of the [C]hildren on the

reunification issue

. . . the [c]ourt should use its discretion to

give [Father] one last chance to demonstrate that he can

protect the [C]hildren

. . . because in my view of the statute

and this case

. . . if the [c]ourt does not order the [S]tate to

offer reunification services, then of course we’re on a track

for termination of parental rights.

20090484

‐ CA 6 allegations in the petition, the [c]ourt

. . . refer[red the parents] to mediation and second

pretrial [hearing],” which the court scheduled on December 2, 2008.

¶9 At the December 2, 2008 pretrial hearing, the court denied Father’s request for

oral argument on whether reunification could be extended because Father had not yet

filed the required motion. But the court scheduled a hearing on December 8, 2008, in

anticipation of Father’s filing of a written motion for reunification services.

Additionally, the court scheduled a trial on the State’s Petition for Termination of

Parental Rights, which the State had filed at the pretrial hearing. At the December 2

hearing, Father’s counsel confirmed, “[M]y understanding is

. . . that we [a]re going to

have an opportunity to try to argue for reunification services prior to going forward

with the [termination of parental rights].”

III. December 8, 2008 Hearing

¶10 In Father’s Motion for Reunification Services and at the December 8, 2008

hearing, Father argued that reunification services were justified because, among other

reasons, he recognized that he needed to place the Children’s welfare and safety first

and to obey the court’s no

‐ contact order with Mother. Father conceded that he violated

the service plan, which was grounds for not offering reunification services. However,

he urged the juvenile court to give him a second chance and to consider his positive

accomplishments and the Children’s best interests. Father stated, “In light of the

[C]hildren’s obvious strong bond to [me], it would be in the [C]hildren’s best interests

to order reunification services and to not terminate [my] parental rights.” 9 According to

Father, the Children’s bond was demonstrated by the caseworker’s opinion that “[t]he

[C]hildren were very excited to see their father” at a supervised visit, “mak[ing] it very20090484

‐ CA 7 clear that [Father] is worthy of one more chance to demonstrate

. . . that he can protect

[and] that he can keep Mom out of the picture.” Father also argued that he had a

constitutionally

‐ protected liberty interest in the Children that included a right to correct

his shortcomings during reunification services. Finally, Father represented that Mother

had attempted to sabotage Father’s successful compliance with the service plan.

¶11 The court inquired of Father whether he had taken any measures to dissolve his

marriage, and Father’s counsel responded that he did not believe anything had been

filed. The court also questioned Father about his admitted shortcomings, and Father’s

counsel responded that one of Father’s shortcomings was the October 27 domestic

violence incident that occurred in front of S.F.

¶12 The court also inquired of Father and the State how many times it had previously

adjudicated the Children as neglected. Father’s counsel replied that it was at least once.

The State responded that the court had adjudicated the Children as neglected by Father

after they were removed in August 2007 and again after they were returned to DCFS’s

custody in November 2008. The State contended that no further adjudication was

needed because the court had made factual findings that the majority of the State’s

allegations in its Verified Petition for Expedited Custody were supported by clear and

convincing evidence.

¶13 Although acknowledging the Children’s bond with Father, the court denied

reunification services pursuant to Utah Code section 78A

‐ 6

‐ 312. See Utah Code Ann.

§ 78A

‐ 6

‐ 312(3)(d)(i)(K) (2008) (stating that there is a presumption that reunification

services should be denied if the court finds, by clear and convincing evidence, any

circumstance it “determines should preclude reunification efforts or services”); id.

§ 78A

‐ 6

‐ 312(4)(a), (c)

‐ (e) (stating that in determining the appropriateness of

reunification services, the court shall consider, inter alia, “failure of the parent to

respond to previous services or comply with a previous child and family plan,” “any

history of violent behavior directed at the child or an immediate family member,”

“whether a parent continues to live with an individual who abused the minor,” and

“any patterns of the parent’s behavior that have exposed the minor to repeated abuse”).

During the hearing, the court acknowledged, “[F]ather does have difficult choices to

. . . ma[k]e. However, his primary and only and principal concern with respect to this

[c]ourt’s order on reunification is [F]ather’s responsibility to put the [C]hildren first at

all times.

. . . [T]hat message has been delivered on multiple occasions to [F]ather, and

unequivocally delivered.” The court continued,20090484

‐ CA 8 The bottom line is that the parents have a volatile

relationship. The parents have behaved aggressively with

one another and in the presence of the [C]hildren on more

than one occasion. The parents remain married. The

parents are apparently committed to that union. That union,

by definition, puts the [C]hildren at risk.

[F]ather, it appears to the [c]ourt, is either unwilling

or unable to give up that relationship,

. . . nor does he

indicate today that he intends to.

In addition, it is clear that [F]ather is either unwilling

or unable to put the [C]hildren first. These [C]hildren are so

young. They deserve permanency in a safe and appropriate

family. The law allows, in fact requires, that this [c]ourt

make every effort to [e]nsure that they grow up in a safe and

appropriate home.

¶14 In denying further reunification services to Father, the court also considered that

DCFS had already provided reunification services for one year, which included

evaluations, individual and family counseling for Father and the Children, parenting

classes, and visitation services for Father and the Children. Additionally, the court

considered that the family had received protective supervision services between August

and October 2008. The court concluded, “There are no additional services that can be

pulled out of the hat at this point in time to address the concerns that remain rather

static and rather constant across all the months that this [c]ourt has had jurisdiction.”

At the end of the hearing, Father declined a pretrial hearing and mediation and stated

that he instead “just want[ed] to go straight to trial.”

IV. January 8, 2009 Order To Lift the No

‐ Contact Order

¶15 On December 22, 2008, Father moved the court to lift or modify the no

‐ contact

order between him and Mother, arguing that “he [would] be disadvantaged at trial if he

[could] not work with [M]other

. . . to improve their marital relationship generally, to

attend couples counseling and other therapeutic settings, and attend church services

together.” In recognition that this case was proceeding to the termination stage, Father

also asserted that he was prepared to offer evidence at trial from his LDS bishop and an

LDS Social Services therapist “to demonstrate the need to preserve the family

relationship and to not terminate parental rights.” Neither the guardian ad litem (GAL)20090484

‐ CA 9 nor the State opposed Father’s motion to lift the no

‐ contact order. As a result, the court

lifted its no

‐ contact order on January 8, 2009.

V. Termination Trial

¶16 The case proceeded to a three

‐ day trial on the termination of Father’s and

Mother’s parental rights, which began February 3, 2009, and concluded March 3. At the

close of the State’s evidence, Father and Mother jointly moved the juvenile court for a

directed verdict, arguing that the State had failed to meet its burden of showing that

termination was in the Children’s best interests. The court denied the motion and

ultimately terminated Father’s parental rights. The court found,

[F]ather fail[ed] to recognize [M]other’s mental health issues

and how these issues have negatively affected the [C]hildren

or his relationship with [M]other. [F]ather testified that

[M]other’s mental health issues do not affect their

relationship and further testified that [M]other has no

mental health issues as of the date of trial. [F]ather clearly

has chosen to stay with [M]other and continue their

relationship even though this [c]ourt found that [M]other

had failed to substantially comply with the DCFS service

plan at [her] permanency trial in June 2008 and is still not in

substantial compliance.

¶17 Additionally, the court found,

[F]rom the Spring of 2008 through the Autumn of 2008, there

have been approximately eight

. . . separate domestic

violence incidents between the parents which have required

police involvement. The [C]hildren have been present for

some of these incidents and were aware of other incidents.

The [c]ourt finds these domestic violence incidents severe in

nature.

. . . The parents fail to recognize the negative impact

that these domestic violence incidents have on the [C]hildren

or the risk to these [C]hildren as a result.20090484

‐ CA 10 ¶18 With regard to the return of custody to Father and subsequent domestic violence

incidents, the court found,

In August 2008, the [c]ourt made it very clear that there

would be no contact between [M]other and the [C]hildren

and [F]ather understood he had the duty to protect and

enforce the [c]ourt’s order. [F]ather committed to the [c]ourt

that he would place the [C]hildren first; however, that

commitment was extremely short lived. [F]ather failed to

protect and willfully violated this [c]ourt’s order a mere 12

weeks later. [F]ather willfully imposed his ideas over what,

in fact, was safe for the [C]hildren and over the specific

needs of the [C]hildren to be protected.

¶19 The court also found that the parents had violated the court’s November 3, 2008

no

‐ contact order.

[I]mmediately after [the November 3] hearing, the parents

had contact and in fact, another domestic violence incident

ensued. [M]other either jumped out of the car or was

pushed by [F]ather, although law enforcement indicated

after looking at the car, it would have been difficult for

[F]ather to accomplish this. Again, the parents willfully

chose to violate this [c]ourt’s order. Again, [M]other chose

to engage in this type of behavior and [F]ather chose to

confront or deal with [M]other, rather than walking away

from the car and seeking assistance from the police station,

which was within walking distance. [F]ather testified that

he felt there was no danger so he attempted to drive [with

Mother in the car] to the police station, even though there

had been [two] domestic violence incidents less than one

week previous.

¶20 The court based its termination of Father’s parental rights on the following

grounds: first, Father neglected the Children, see Utah Code Ann. § 78A

‐ 6

‐ 507(1)(b)

(2008); second, Father was an unfit or incompetent parent, see id. § 78A

‐ 6

‐ 507(1)(c);

third, the Children were being cared for in an out

‐ of

‐ home placement and Father20090484

‐ CA 11 “substantially neglected, willfully refused, or [was] unable or unwilling to remedy the

circumstances that cause[d] the [C]hildren to be in an out

‐ of

‐ home placement, and there

[was] a substantial likelihood that [he would] not be capable of exercising proper and

effective parental care in the near future,” see id. § 78A

‐ 6

‐ 507(1)(d); and fourth, Father

failed to make parental adjustments, see id. § 78A

‐ 6

‐ 507(1)(e). The court also considered

that Father was unfit and had “neglected his [C]hildren due to [the parents’] history of

violent behavior throughout the pendency of this case.” See generally id. § 78A

‐ 6

‐ 508(2)(f). Finally, the court concluded it was in the Children’s best interests that

Father’s parental rights be terminated. See id. § 78A

‐ 6

‐ 503(2).

VI. Father’s Rule 59 Motion and the Juvenile Court’s

Amendment of Prior Orders

¶21 On June 5, 2009, Father moved the juvenile court to order a new trial or to amend

the order terminating his parental rights under rule 59 of the Utah Rules of Civil

Procedure (rule 59 motion). See Utah R. Civ. P. 59(a)(1) (providing for a new trial where

the court proceedings were irregular); id

. R. 59(a)(7) (providing for a new trial where the

court committed a legal error). Father argued that he was entitled to a new permanency

hearing after the State “removed” the Children for a second time in November 2008.

He asserted that the December 8 hearing on his motion for reunification services was

solely a dispositional hearing, and not a concurrent, statutorily

‐ mandated permanency

hearing, because the permanency hearing must be held within thirty days after the

dispositional hearing if reunification services are not ordered. See Utah Code Ann.

§ 78A

‐ 6

‐ 314(1)(b). In addition, Father argued, the State filed its Petition for Termination

of Parental Rights six days before the purported permanency hearing when, by statute,

such a petition must be filed within forty

‐ five days after the permanency hearing. See id

. § 78A

‐ 6

‐ 314(5). Even though Father conceded that it is statutorily permissible for “the

court [to] consolidate the hearing on termination of parental rights with the

permanency hearing” when a termination petition is filed prior to the permanency

hearing, see id

. § 78A

‐ 6

‐ 314(8)(a), he argued that the court did not consolidate the

permanency hearing with the termination trial. Father concluded that the court’s

failure to hold a permanency hearing as required by the statute violated his right to due

process.

¶22 After Father filed his rule 59 motion, the court amended two of its previous

orders. On June 30, 2009, the court amended its May 27, 2009 Order on Reunification,

retitling it “Amended Order on Reunification and Permanency Order” and adding a20090484

‐ CA 12 finding of fact that stated, “Pursuant to Utah Code Ann. § 78A

‐ 6

‐ 314, continuation in, or

return to, the home would be contrary to the welfare of the Children. Return of the

Children to the home would create a substantial risk of detriment to the Children’s

physical or emotional well

‐ being.” On July 15, 2009, the court also amended its May 27,

2009 Termination of Parental Rights, Findings of Fact, Conclusions of Law, and Order

by adding the following finding of fact:

[O]n December 8, 2008 at the disposition/permanency

hearing, this [c]ourt found that reunification services were

not appropriate to [F]ather. Specifically, this [c]ourt found

that the static and constant issue in this case has been the

volatile relationship between the parents. They have

behaved aggressively with one another and in front of the

[C]hildren. They remain married and that union places the

[C]hildren at risk. [F]ather is unable or unwilling to give up

that relationship nor does he intend to as of today’s hearing.

[F]ather is not able or not willing to put the [C]hildren and

their needs first. The [C]hildren need permanency and a

safe and appropriate environment. The appropriate goal at

this time is adoption. The matter was set for trial on the

State’s Petition to Terminate Parental Rights.

¶23 The court denied the portion of Father’s rule 59 motion that was grounded on

rule 59(a)(1) because Father failed to file an affidavit, as required by the rule. See Utah

R. Civ. P. 59(c) (“When the application for a new trial is made under Subdivision (a)(1)

. . . it shall be supported by affidavit.”). After considering whether it had committed an

error of law, the court concluded that, even though the resulting May 27, 2009 Order

was termed “Order on Reunification,” the December 8 hearing was, in effect, both a

dispositional and a permanency hearing. The court determined that its original Order

on Reunification addressed permanency issues, such as its conclusions that “the

[C]hildren cannot safely return to the parents’ custody,” and that “adoption is the most

appropriate goal.” Additionally, the court pointed out that in Father’s Motion for

Reunification Services and at the December 8 hearing, he raised many of the facts he

claims he was not afforded the opportunity to present due to the court’s failure to hold

a permanency hearing—for instance, his positive actions in securing housing and

exercising safe and proper visitation. The court also determined that Father had20090484

‐ CA 13 presented his argument that it was in the Children’s best interests for the court to order

reunification services and to not terminate his parental rights.

ISSUES AND STANDARDS OF REVIEW

¶24 Father appeals the juvenile court’s orders terminating reunification services,

denying his directed verdict motion, terminating his parental rights, and denying his

rule 59 motion. Father’s central argument on appeal is that, in failing to hold

statutorily

‐ mandated child welfare proceedings, the juvenile court exceeded its subject

matter jurisdiction and violated his due process rights. Much of Father’s due process

argument relies on his contention that the Children’s return to DCFS’s custody in

November 2008 required the juvenile court to adjudicate the Children again in order to

obtain jurisdiction over the Children. “Whether a parent has been afforded adequate

due process is a question of law, reviewed for correctness.” In re A.H.

, 2004 UT App 39,

¶ 8, 86 P.3d 745 (internal quotation marks omitted). In addition to resolving the issue of

the adequacy of the process provided to Father, we must determine whether the

juvenile court had subject matter jurisdiction, which we also review for correctness. See

In re K.F.

, 2009 UT 4, ¶ 18, 201 P.3d 985. Likewise, any interpretation of the Juvenile

Court Act is a question of law, reviewed for correctness. See In re J.H.

, 2006 UT App

205, ¶ 5, 138 P.3d 70.

¶25 Father also argues that there was insufficient evidence to support terminating his

parental rights. “Whether a parent’s rights should be terminated presents a mixed

question of law and fact.” In re B.R.

, 2007 UT 82, ¶ 12, 171 P.3d 435. Termination

decisions “rely heavily on the juvenile court’s assessment and weighing of the facts in

any given case. Because of the factually intense nature of such an inquiry, the juvenile

court’s decision should be afforded a high degree of deference.” Id. “Thus, in order to

overturn the juvenile court’s decision the result must be against the clear weight of the

evidence or leave the appellate court with a firm and definite conviction that a mistake

has been made.” Id. (internal quotation marks omitted).20090484

‐ CA 14 ANALYSIS

I. This Court Has Jurisdiction To Consider Father’s Appeal

¶26 As a preliminary matter, we address the GAL’s contention that this court does

not have jurisdiction to hear Father’s appeal concerning any issue other than the

sufficiency of the evidence issue arising from the termination trial. The Utah Rules of

Appellate Procedure allow a party to “appeal from all final orders and judgments.”

Utah R. App. P. 3(a). Our supreme court has explained that, “[i]n the child welfare

arena,” “[t]he question of whether an order is final and appealable is determined by the

‘substance and effect’ of the order” and “the determining factor in deciding if an order

is final and appealable is whether it effects a change in the permanent status of the

child.” In re A.F.

, 2007 UT 69, ¶ 3, 167 P.3d 1070. The GAL asserts that we lack

jurisdiction to review the juvenile court’s decisions made after the Children were

returned to DCFS’s custody in November 2008 because Father did not appeal from any

of those decisions and has thus waived his right to seek review of those decisions. We

disagree.

¶27 In child welfare proceedings such as these, a final order “is one that ends the

current juvenile proceedings, leaving no question open for further judicial action.” In re

M.W.

, 2000 UT 79, ¶ 25, 12 P.3d 80 (internal quotation marks omitted). But here, none

of the court’s interim determinations or its alleged failure to hold required proceedings

that Father claims violated his due process rights resulted in the issuance of any final,

appealable orders. From the point that the court restored custody of the Children to

DCFS in November 2008 until it terminated Father’s parental rights, the juvenile court

made only interim determinations regarding the Children. Specifically, as we explain in

greater detail below, the November 3 hearing was not adjudicatory. See In re S.A.K.

,

2003 UT App 87, ¶ 13, 67 P.3d 1037 (explaining that an adjudication order is one

example of a final, appealable order in a juvenile proceeding). Likewise, the court’s

determination on December 8 denying Father continued reunification services did not

result in the entry of a final permanency order. See In re A.F.

, 2007 UT 69, ¶¶ 6

‐ 7

(discussing instances when a permanency hearing results in a final order and

concluding that “[t]he order terminating reunification services and changing the

permanency goal left the Child’s status unchanged and unresolved and therefore was

not a final determination of the Mother’s rights or the Child’s status”).20090484

‐ CA 15 ¶28 Moreover, under the unique circumstances of this case, the juvenile court’s

termination of Father’s parental rights is the only final order following the Children’s

return to DCFS’s custody from which Father could appeal. Because the rulings

resulting from the November 3 and December 8 hearings were not final, appealable

orders, Father was not required to appeal them under rule 3 of the Utah Rules of

Appellate Procedure, see Utah R. App. P. 3(a), and the fact that he could have elected to

petition for interlocutory appeal, see id. R. 5, does not eliminate our authority to review

those decisions once the neglect and termination proceedings were completed and an

appeal timely filed. Contrary to the GAL’s contention, Father’s failure to petition for

interlocutory appeal does not limit either his ability to later appeal these issues or our

jurisdiction to consider these issues. See State v. Troyer

, 866 P.2d 528, 530 (Utah 1993)

(“In no other instance, in either civil or criminal appellate procedure, is the scope of

appellate review from a final judgment in any way affected or limited because of the

possibility that any one or more of the trial court’s rulings might have formed the basis

of a petition for an interlocutory appeal. In other words, the scope of a statutory appeal

of right at the end of the case should not be affected or diminished by the possibility of

an earlier discretionary appeal.”). Accordingly, we have jurisdiction to determine

whether the juvenile court exceeded its jurisdiction and violated Father’s due process

rights by failing to follow the statutorily

‐ mandated child welfare proceedings.

II. The Juvenile Court Had Continuing Jurisdiction and

Father’s Due Process Rights Were Not Violated

¶29 Father complains that in failing to strictly comply with the statutory process set

forth in the Juvenile Court Act, the juvenile court exceeded its subject matter

jurisdiction and violated his due process rights. Utah law clearly establishes that

parents have a fundamental liberty interest in their children, protected under the due

process clause. See Utah Code Ann. § 62A

‐ 4a

‐ 201(1)(a) (2006) (“Under both the United

States Constitution and the constitution of this state, a parent possesses a fundamental

liberty interest in the care, custody, and management of the parent’s children.”); In re

A.H.

, 2004 UT App 39, ¶ 10, 86 P.3d 745 (“It is widely recognized that [a] parent has a

fundamental right, protected by the Constitution, to sustain his relationship with his

child.” (alteration in original) (internal quotation marks omitted)). “Thus, parties to a

judicial proceeding are entitled to notice that a particular issue is being considered by a

court and must be given an opportunity to present evidence and argument on that issue

before decision.” In re A.H.

, 2004 UT App 39, ¶ 11 (internal quotation marks omitted).20090484

‐ CA 16 And “[j]udicial and administrative proceedings following the State’s removal of

children from their home are no exception to this fundamental principle.” Id. ¶ 12.

¶30 We determine that, although the juvenile court could have more clearly

articulated for the parties where they were in the proceedings, the court properly

followed the statutory child welfare proceedings after the Children were returned to

DCFS’s custody for the second time and provided Father with sufficient notice of the

issues and the appropriate opportunity to argue that his parental rights should not be

terminated. Thus, we cannot say that the juvenile court exceeded its subject matter

jurisdiction or violated Father’s due process rights.

A. The Juvenile Court Did Not Surrender Its Subject Matter Jurisdiction When It

Restored Legal Custody to Father in August 2008.

¶31 The parties do not dispute that the juvenile court’s exclusive, original subject

matter jurisdiction in this case began with the October 9, 2007 adjudication, at which the

parents stipulated to the court’s findings supporting its conclusion that the Children

were neglected. See generally Utah Code Ann. § 78A

‐ 6

‐ 103(1)(c) (2008) (“[T]he juvenile

court has exclusive original jurisdiction in proceedings concerning

. . . a child who is an

abused child, neglected child, or dependent child

. . . .”). Father argues that the juvenile

court exceeded its jurisdiction after it failed to adjudicate the Children again when they

were returned to DCFS’s custody in November 2008. We address Father’s contention in

the next section, infra ¶¶ 37

‐ 53. Before we reach this issue, however, we must

determine whether the juvenile court retained jurisdiction after the August 2008

permanency hearing when it returned custody of the Children to Father, or whether

returning custody to Father terminated the court’s jurisdiction over the Children.

¶32 Father argues, and we agree, that the court intended to return permanent, legal

custody to him and not to merely provide a trial home placement in August 2008. Cf.

Utah Code Ann. § 78A

‐ 6

‐ 507(1)(h) (allowing the court to terminate parental rights

following a trial home placement, i.e., “a period of trial during which the child was

returned to live in the child’s own home”). The State and GAL also agree with Father

that the court restored legal custody to Father in August 2008, but they assert that the

court did not terminate its jurisdiction by making a final custody determination

regarding the Children because the order was conditioned on Father keeping the10 The GAL specifically argues that Father was given “conditional custody”

within the court’s “dispositional jurisdiction.”

11 Father does not necessarily disagree that the court retained its jurisdiction after

it restored legal custody to him in August 2008. Rather, Father contends that the

juvenile court exceeded its jurisdiction after it failed to again adjudicate the Children as

neglected when they were returned to DCFS’s custody in November 2008.

20090484

‐ CA 17 Children safe and away from Mother. 10 The State and GAL thus assert that the juvenile

court did not surrender its jurisdiction as a result of the August 2008 permanency

hearing. 11

¶33 We conclude that although the court returned legal custody to Father in August

2008, the court retained subject matter jurisdiction and its dispositional authority over

the Children. Returning custody of the Children to Father did not amend the legal

status of the Children as neglected. Importantly, once a child has been adjudicated as

neglected, the juvenile court has continuing jurisdiction over the child until he or she

turns twenty

‐ one, unless it terminates its jurisdiction by “order of the court.” See id.

§ 78A

‐ 6

‐ 120(1), (2)(a)(i). In fact, a juvenile court’s jurisdiction often continues in spite of

its entry of a final and appealable order. See In re S.M.

, 2007 UT 21, ¶ 18, 154 P.3d 835

(“Because considerations regarding a child’s welfare are rarely, if ever, static and

because the child’s environment is constantly evolving, the juvenile court frequently

retains jurisdiction over cases after some of the issues have been finally resolved.”

(internal quotation marks omitted)). As our supreme court has observed, “[T]he court

is under a statutory mandate to retain jurisdiction over a child who is the subject of

. . . neglect.” In re M.W.

, 2000 UT 79, ¶ 26 n.9, 12 P.3d 80.

¶34 Thus, as long as the juvenile court does not dismiss the case or terminate

jurisdiction, the court retains dispositional authority over the Children because there

has been an initial legal determination that those Children are abused, neglected, or

dependent. See Utah Code Ann. § 78A

‐ 6

‐ 103(1)(c). In contrast, where the juvenile court

makes a ruling incompatible with a continuation of its authority, the court’s jurisdiction

ends. For example, in In re B.B.

, 2002 UT App 82, 45 P.3d 527, aff’d

, 2004 UT 39, 94 P.2d

252, the adoptive parents argued that the juvenile court lacked jurisdiction to enforce a

preadoption order allowing certain visitation to the biological grandparents that was

not ordered in the adoption decree. See id. ¶¶ 1

‐ 2, 5. This court determined that once

the juvenile court granted the adoption petition, it lost its jurisdiction to enforce the20090484

‐ CA 18 preadoption order because the adoption itself permanently altered the child’s status.

See id. ¶¶ 15

‐ 16. “[T]he original basis for jurisdiction over [the child] ceased to exist

because [the child] was no longer an abused or neglected child and permanency had

been achieved.” Id. ¶ 12.

¶35 Despite returning the Children to Father’s legal custody at the August 2008

permanency hearing, the court continued its authority and jurisdiction over the

Children, and the Children’s return to Father’s legal custody did not alter their status as

neglected. This is clear from the court’s order, which anticipated continued protective

supervision services by DCFS. As part of those continued services and consistent with

the court’s statements at the hearing, Father entered into a service plan on or about

September 25, 2008. This new plan included responsibilities for Father such as ensuring

that Mother have only authorized contact with the Children and that Mother not have

unauthorized entry into the family home. The court also scheduled a review hearing in

ninety days to check the status of the protective supervision services it had ordered.

¶36 At the anticipated review hearing, if Father had complied with the service plan,

the court may have finally disposed of the case and terminated its jurisdiction. See, e.g.

, In re A.H.

, 2009 UT App 232, ¶¶ 2

‐ 3, 217 P.3d 278 (explaining that the juvenile court

retained jurisdiction while DCFS provided protective supervision and completed the

reports to release the children from the court’s jurisdiction); In re P.F.B.

, 2008 UT App

271, ¶ 3, 191 P.3d 49 (reviewing a case in which the juvenile court retained jurisdiction

until it terminated DCFS’s protective supervision services and the guardian ad litem’s

services). However, Father did not comply with the service plan. And because the

court did not affirmatively renounce its jurisdiction or enter any ruling incompatible

with its continuing authority, it clearly retained jurisdiction over the Children.

B. The Child Welfare Proceedings Did Not Start Over When the Court Returned the

Children To DCFS’s Custody in November 2008.

¶37 Father argues that any time a child is removed from a parent’s legal custody, the

Juvenile Court Act requires the juvenile court to adjudicate that child as to neglect,

abuse, or dependency regardless of whether the court has previously done so. As such,

he argues that parents with legal custody are entitled to the full procedural protections

under the Juvenile Court Act at the time of any removal regardless of whether the

juvenile court has ongoing jurisdiction.20090484

‐ CA 19 ¶38 Therefore, according to Father, the juvenile court was required to timely comply

with all procedures mandated by the Juvenile Court Act when the State filed its Motion

for Expedited Placement in Temporary Custody and Verified Petition for Expedited

Custody on October 30, 2008. Because he had regained legal custody as of August 2008,

he contends that when the Children were later “removed” from his custody, i.e.,

returned to DCFS’s custody, in November 2008, the Juvenile Court Act mandated the

commencement of new child welfare proceedings. Father asserts that after the court

failed to again adjudicate the Children as to neglect, abuse, or dependency when they

were returned to DCFS’s custody in November 2008, the court exceeded its subject

matter jurisdiction and violated his due process rights by considering the State’s

petition for termination of Father’s parental rights. Father also seems to imply that the

court violated his due process rights when it denied him another year of reunification

services. He argues that because new child welfare proceedings were initiated after

November 2008, he became eligible to receive another year of reunification services.

Finally, Father argues that the juvenile court failed to hold a permanency hearing

because the December 8 hearing was scheduled only to hear his motion for reunification

services.

¶39 Based upon the factual findings in its original order, it appears that the juvenile

court incorrectly intended that the child welfare proceedings start over in this case in

November 2008. However, we determine that the court was not required to restart the

neglect proceedings in the particular circumstances of this case. Consequently, Father

was not denied his due process rights. We will first explain our conclusion that because

the court retained its jurisdiction, and therefore its dispositional authority over the

Children, the Juvenile Court Act did not require the court to restart the proceedings. As

part of that discussion, we will also address why Father was not entitled to another

adjudication hearing, renewed reunification services, or another permanency hearing.

1. The Juvenile Court’s Dispositional Authority

¶40 Father contends that the court never adjudicated the Children again after they

were “removed” in November 2008 and that the November 3 hearing was a shelter

hearing, as opposed to an adjudication hearing. In support of this proposition, Father

relies on the fact that on October 30, 2008, the State filed the necessary petition to

commence child welfare proceedings, see Utah Code Ann. § 78A

‐ 6

‐ 304(1) (2008)

(outlining procedure for commencing neglect, abuse, or dependency proceedings in

juvenile court); that the State filed a Motion for Expedited Placement in Temporary20090484

‐ CA 20 Custody, id. § 78A

‐ 6

‐ 106(4) (explaining when the court shall hold an expedited hearing);

that the November 3 hearing was a shelter hearing, id. § 78A

‐ 6

‐ 306(1) (explaining when

a shelter hearing shall occur); that the hearing resulted in DCFS gaining temporary

custody, pending adjudication and disposition, id. § 78A

‐ 6

‐ 301(3) (defining “temporary

custody”); id. § 78A

‐ 6

‐ 307(17) (“When the court orders that a child be removed from the

custody of the child’s parent and does not award custody and guardianship to another

parent, relative, or friend under this section, the court shall order that the child be

placed in the temporary custody of [DCFS], to proceed to adjudication and

disposition

. . . .”); and that adjudication did not occur, id. § 78A

‐ 6

‐ 117(1)(a) (“When a

minor is found to come within the provisions of Section 78A

‐ 6

‐ 103, the court shall so

adjudicate.”); id. § 78A

‐ 6

‐ 105(3), (25) (defining “adjudication” and “neglect”).

¶41 Although the court restored legal custody to Father in August 2008, as discussed

above, the juvenile court did not amend the Children’s status as neglected and did not

surrender its jurisdiction over the family. See generally id. § 78A

‐ 6

‐ 103(1)(c). The neglect

adjudication from October 2007, which conferred jurisdiction on the juvenile court,

remained effective. The court thus retained dispositional authority over the Children

and could thereafter place the Children consistent with the Juvenile Court Act,

including returning the Children to DCFS’s custody in November 2008.

¶42 Several circumstances in these child welfare proceedings collided to create a

situation where the juvenile court retained jurisdiction over the Children even though it

had restored legal custody to Father, instead of implementing a trial home placement in

August 2008. Importantly, however, the court continued DCFS’s protective supervision

services and did not terminate its own jurisdiction. When Father then proceeded to

violate the court’s order and service plan during the narrow window of time in which

he had regained custody, the court had continuing jurisdiction to make further

decisions regarding the best interests of the Children.

¶43 In a different set of circumstances—for example, if in August 2008 the court had

implemented a trial home placement for Father rather than restoring his legal custody,

and Father then violated the service plan and engaged in domestic violence in front of

the Children—the parties and the court would have unquestionably picked up where

they left off in the child welfare proceedings, moving ahead to a change of physical

custody and termination trial. Or, if Father had abided by the service plan until the

court had terminated child supervision services and its jurisdiction, and only then had

engaged in domestic violence in front of the Children, the situation would be entirely20090484

‐ CA 21 different. In such a case, where the court has terminated its jurisdiction, the Juvenile

Court Act procedures would begin anew. After taking the Children into protective

custody, the State would file a petition introducing new allegations of neglect pursuant

to Utah Code section 78A

‐ 6

‐ 304(1)(b). See id. § 78A

‐ 6

‐ 304(1)(b). The court would then

hold a shelter hearing pursuant to section 78A

‐ 6

‐ 306, the result of which might be to

remove the children and place them in DCFS’s temporary legal custody. See generally id.

§ 78A

‐ 6

‐ 301(3) (defining “temporary custody”); id. § 78A

‐ 6

‐ 306 (setting forth procedures

for a shelter hearing); id. § 78A

‐ 6

‐ 306(9)(a)(iii) (requiring the court to determine, at a

shelter hearing, by a preponderance of the evidence, whether “there is a substantial risk

that the child[ren would] suffer abuse or neglect if [they were] not removed from

[Father’s] custody”); id. § 78A

‐ 6

‐ 307(17) (“When the court orders that a child be

removed from the custody of the child’s parent and does not award custody and

guardianship to another parent, relative, or friend under this section, the court shall

order that the child be placed in the temporary custody of [DCFS], to proceed to

adjudication and disposition and to be provided with care and services in accordance

with this chapter and Title 62A, Chapter 4a, Child and Family Services.”). After that,

the matter would proceed to adjudication. See generally id. § 78A

‐ 6

‐ 311.

¶44 However, under the circumstances of this case—where Father violated the

court’s order and service plan, the Children’s adjudicated status as neglected was

unchanged and the court retained its jurisdiction, which allowed it to make

dispositional decisions regarding the Children’s custody—the State was only required

to file a motion for change of custody seeking return of the Children to DCFS’s custody,

which is a simple dispositional matter within the court’s continuing jurisdiction. See id.

§ 78A

‐ 6

‐ 301(1) (defining “custody” as “the custody of a minor in [DCFS] as of the date

of disposition”); id. § 78A

‐ 6

‐ 307(6) (“Legal custody of the child is not affected by a

[removal order]. In order to affect a previous court order regarding legal custody, the

party must petition that court for modification of the order.”). Since the Children had

already been adjudicated and the court had continuing jurisdiction over them, it was

also within the court’s dispositional authority to “vest legal custody” of the Children in

DCFS’s custody without a motion from the State. See id. § 78A

‐ 6

‐ 117(2)(g).

¶45 The Utah Rules of Juvenile Procedure define a “disposition” as “any order of the

court, after adjudication, pursuant to Section 78A

‐ 6

‐ 117.” Utah R. Juv. P. 5(f). See

generally id. R. 46

‐ 47 (explaining procedure for disposition hearings and modification of

orders). A mandatory dispositional hearing occurs either at or not later than thirty days

after the adjudication. See Utah Code Ann. § 78A

‐ 6

‐ 311 (2008) (describing adjudication12 At the November 3, 2008 hearing, the court took evidence, considered the

State’s new allegations of neglect, and found, by clear and convincing evidence, that the

Children had been exposed to two separate incidents of domestic violence on October

27, 2008—incidents that put the Children in danger and demonstrated Father’s inability

to protect them. This indicates that the court viewed the hearing as adjudicatory. See

generally Utah Code Ann. § 78A

‐ 6

‐ 311(1) (2008) (“If, at the adjudication hearing, the

court finds, by clear and convincing evidence, that the allegations contained in the

petition are true, it shall conduct a dispositional hearing.”). However, the court also

stated that it was removing the Children and placing them in DCFS’s temporary custody

pending adjudication, which indicates that the court viewed the hearing as a shelter

hearing. See generally id. §§ 78A

‐ 6

‐ 301(3),

‐ 306. And yet, the court based its conclusion

to remove the Children on the fact that Father’s “actions, omissions, or habitual action

create[d] an environment that pose[d] a threat to the child’s health or safety.” See id.

§ 78A

‐ 6

‐ 302(1)(a)(i) (providing that the children should be placed under DCFS’s

protective custody pending a shelter hearing if the court finds, by the preponderance of

the evidence, that “there is imminent danger to the physical health or safety of the

child[] and

. . . the child’s physical health or safety may not be protected without

removing the child from the custody of the child’s parent or guardian”); id. § 78A

‐ 6

‐ 301(2) (defining “protective custody” as “the shelter of a child by [DCFS] from the time

the child is removed from home until the earlier of

. . . the shelter hearing[] or

. . . the

child’s return home”).

20090484

‐ CA 22 and dispositional hearings). However, the mandatory dispositional hearing pursuant to

section 78A

‐ 6

‐ 311 is not the only dispositional hearing that can occur during child

welfare proceedings. The court may hold dispositional hearings as it sees fit pursuant

to section 78A

‐ 6

‐ 117 and the Utah Rules of Juvenile Procedure. See generally id. § 78A

‐ 6

‐

117 (listing all of the dispositions a court may make); Utah R. Juv. P. 5, 46

‐ 47. In

particular, “[u]pon adjudication the court may make the following dispositions by court

order:

. . . The court may vest legal custody of an abused, neglected, or dependent

minor in [DCFS]

. . . in accordance with the requirements and procedures of Title 78A,

Chapter 6, Part 3, Abuse, Neglect, and Dependency Proceedings.” Utah Code Ann.

§ 78A

‐ 6

‐ 117(2)(g); see also id. § 78A

‐ 6

‐ 312(1)(b) (allowing the court to make various

dispositions).

¶46 It is unclear from the record what child welfare proceeding the court conducted

at the November 3 hearing. 12 It is also unclear why the State filed a petition pursuant to

section 78A

‐ 6

‐ 304 rather than a motion to request a dispositional hearing or to modify20090484

‐ CA 23 the court’s previous custody order. Nevertheless, the court previously adjudicated the

Children as to neglect on October 9, 2007. The court also previously held a dispositional

hearing on November 1, 2007, at which it ordered DCFS to provide reunification

services to Father and ordered Father to comply with the service plan.

¶47 On October 30, 2008, the State clearly indicated in its verified petition that it

sought a return of custody of the Children to DCFS, and the court clearly so ordered.

As such, the November 8 hearing appears to have been a nonmandatory, dispositional,

evidentiary hearing that resulted in a change of custody from Father to DCFS. See id.

§ 78A

‐ 6

‐ 117(2)(g) (permitting the court to make various dispositional orders, including

“vest[ing] legal custody of an abused, neglected, or dependent minor in [DCFS]”); id.

§ 78A

‐ 6

‐ 312(1)(b) (allowing the court, at a dispositional hearing, to place the children in

DCFS’s custody). Father had proper notice of this hearing and an opportunity to argue

his position at the hearing. See generally Utah R. Juv. P. 46

‐ 47. We also consider it

significant that Father stipulated to certain of the State’s allegations in its October 30,

2008 petition and to some of the court’s findings about the new domestic violence

incidents. Father also stipulated to the Children’s return to DCFS’s temporary custody.

Subsequently, Father also waived a mediation and a pretrial hearing regarding the

disputed allegations from the petition. We conclude, therefore, that although the court

did not clearly articulate what procedure it was following in the Juvenile Court Act, it

did not violate Father’s due process rights because it provided him with ample

opportunity to argue and present his case to retain custody of the Children.

¶48 In sum, because the court did not terminate its jurisdiction after legal custody of

the Children was returned to Father and because the court did not alter the Children’s

status as neglected, it was not required to restart the child welfare proceedings. The

court was therefore also not required to hold a shelter hearing and readjudicate the

Children as to neglect when it returned custody of the Children to DCFS. Although the

parties and the court may have been confused about the nature of the hearing and

although the court may have misconstrued this proceeding as either a shelter hearing or

an adjudication, the court properly considered the domestic violence incidents in late

October 2008 and determined that there was substantial risk that Father might endanger

the Children if they remained in his custody. Based on this information, the court

properly exercised its dispositional authority in returning the Children to DCFS’s

custody.20090484

‐ CA 24 2. Reunification Services

¶49 Father argues that the court violated his due process rights by not ordering

reunification services for another year because the child welfare proceedings started

anew when the Children were returned to DCFS’s custody in November 2008. Father

contends that the phrase, “reunification services may not exceed 12 months from the

date that the minor was initially removed,” see Utah Code Ann. § 78A

‐ 6

‐ 312(2)(d)(iii)(A)

(emphasis added), does not actually mean the first removal, but rather any removal

from the parent’s legal custody. Thus, according to Father, the fact that the Children

were returned to DCFS’s custody in November 2008 entitled him to another year of

services from the point of this “second removal.”

¶50 We agree with the juvenile court’s determination that Father had already

received a full year of reunification services and was not entitled to additional

reunification services upon the Children’s return to DCFS’s custody in November 2008.

As we have already discussed, the child welfare proceedings do not start over every

time a child’s custody is changed. Additionally, the juvenile court has discretion to

deny reunification services. See Utah Code Ann. § 78A

‐ 6

‐ 312(2)(a)(iii) (2008) (“In all

cases, the minor’s health, safety, and welfare shall be the court’s paramount concern in

determining whether reasonable efforts to reunify should be made.”); id. § 78A

‐ 6

‐

‐ 312(3)(a)

‐ (b) (“Because of the state’s interest in and responsibility to protect and

provide permanency for minors who are abused, neglected, or dependent, the

Legislature finds that a parent’s interest in receiving reunification services is limited.

The court may determine that: (i) efforts to reunify a minor with the minor’s family are

not reasonable or appropriate, based on the individual circumstances; and (ii)

reunification services should not be provided.” (emphasis added)); id. § 78A

‐ 6

‐ 314(7)

(“Nothing in this section may be construed to: (a) entitle any parent to reunification

services for any specified period of time; [or] (b) limit a court’s ability to terminate

reunification services at any time prior to a permanency hearing

. . . .”); In re N.R.

, 967

P.2d 951, 955 (Utah Ct. App. 1998) (“Reunification services are a gratuity provided to

parents by the Legislature

. . . .”).

3. Permanency Hearing

¶51 Father argues that the court denied him due process by failing to grant him a

mandatory permanency hearing. See generally Utah Code Ann. § 78A

‐ 6

‐ 314(1)(b) (“If

reunification services were not ordered at the dispositional hearing, a permanency

hearing shall be held within 30 days from the date of the dispositional hearing.”).13 It is difficult to say how the juvenile court perceived the December 8 hearing.

On May 27, 2009, it entered an Order on Reunification, but after Father filed his rule 59

motion, the court entered an amended December 8 hearing order, over one year later, as

well as amended termination trial findings discussing the December 8 hearing. In both

amendments, the court sought to recharacterize the December 8 hearing as a

permanency hearing.

20090484

‐ CA 25 Father contends that the December 8 hearing was scheduled only on his motion for

reunification services and should not be considered a permanency hearing or even a

dispositional hearing. The State argues that the December 8 hearing was “for all intents

and purposes, a permanency hearing.”

¶52 Assuming that the State had not filed its petition for termination of Father’s

parental rights on December 2, 2008, because of the court’s dispositional change of

custody following the October 2008 incidents, the court should have held another

permanency hearing to determine a final plan for the Children. See id. § 78A

‐ 6

‐ 314(1)(b)

(obligating the court to schedule the permanency hearing within thirty days after the

dispositional hearing that denies reunification services). Specifically, the court should

have held the permanency hearing within thirty days, see id.

, or should have

consolidated the permanency hearing with the three

‐ day termination trial, see id. § 78A

‐

6

‐ 314(8)(a) (“Subject to Subsection (8)(b), if a petition for termination of parental rights

is filed prior to the date scheduled for a permanency hearing, the court may consolidate

the hearing on termination of parental rights with the permanency hearing.” (emphasis

added)).

¶53 We need not characterize the December 8 hearing as either a dispositional

hearing or a permanency hearing because, as stated, the State filed its petition for

termination on December 2, and on the same day, the court scheduled the termination

trial. 13 Utah Code section 78A

‐ 6

‐ 314(7)(c) provides that nothing in the section

pertaining to the permanency hearing and final permanency plan shall “limit or

prohibit the filing of a petition for termination of parental rights by any party, or a

hearing on termination of parental rights, at any time prior to a permanency hearing.”

Id. § 78A

‐ 6

‐ 314(7)(c). This provision clearly contemplates the possibility that if a

termination trial is held prior to a permanency hearing and the parent’s rights are

terminated, then the parent may never receive a permanency hearing. We therefore14 Although the court was not required to hold a permanency hearing because the

State filed a petition for termination and the court ultimately held a termination trial,

we note that the court certainly could have elected to hold a permanency hearing after

the December 8 hearing. Nonetheless, this was certainly not a case where the

permanency goal of termination was a surprise to Father or where an articulation by the

court of that course could have resulted in a different outcome for Father. On

December 2, the court scheduled the termination trial. On December 8, the court denied

reunification services, at which time Father indicated that he “just want[ed] to go

straight to trial.”

20090484

‐ CA 26 conclude that the juvenile court did not err in failing to hold a permanency hearing after

the court returned the Children to DCFS’s custody. 14

III. Sufficient Evidence Supported the Court’s Termination of Father’s Parental Rights

¶54 Father also appeals from the juvenile court’s denial of his rule 41(b) motion made

after the State concluded its case

‐ in

‐ chief at the termination trial. His argument there

and on appeal is essentially a challenge to the sufficiency of the evidence supporting the

termination of his parental rights, including the juvenile court’s conclusion that

termination was in the Children’s best interests.

¶55 “When termination proceedings are initiated under the [Juvenile Court] Act, the

court must make two distinct findings supported by clear and convincing evidence

before a person’s parental rights can be properly terminated.” In re adoption of T.H.

,

2007 UT App 341, ¶ 11, 171 P.3d 480. First, the juvenile court must establish the

existence of any one of the grounds in section 78A

‐ 6

‐ 507(1). See Utah Code Ann. § 78A

‐

6

‐ 507(1) (2008) (“The court may terminate all parental rights with respect to a parent if

the court finds any one of the [grounds enumerated in that section].”). “Second, after

finding one of the enumerated grounds, the court must find that termination of parental

rights serves the best interests of the child.” In re adoption of T.H.

, 2007 UT App 341, ¶

11 (internal quotation marks omitted); see also Utah Code Ann. § 78A

‐ 6

‐ 503(2)

(“Wherever possible family life should be strengthened and preserved, but if a parent is

found, by reason of his conduct or condition, to be unfit or incompetent based upon any

of the grounds for termination described in this part, the court shall then consider the

welfare and best interest of the child of paramount importance in determining whether

termination of parental rights shall be ordered.”); id. § 78A

‐ 6

‐ 506(3) (same).20090484

‐ CA 27 A. Grounds for Termination

¶56 Father challenges the sufficiency of the evidence for each ground on which the

juvenile court based its decision to terminate his parental rights: Father’s neglect, see

Utah Code Ann. § 78A

‐ 6

‐ 507(1)(b); Father’s unfitness or incompetency, see id. § 78A

‐ 6

‐ 507(1)(c); the Children’s out

‐ of

‐ home placement with a substantial likelihood that

Father would not remedy the circumstances causing the Children to be placed out

‐ of

‐

home and that Father “[would] not be capable of exercising proper and effective

parental care in the near future,” see id. § 78A

‐ 6

‐ 507(1)(d)(i)

‐ (iii); and Father’s failure to

adjust parentally, see id. § 78A

‐ 6

‐ 507(1)(e). Father claims that the juvenile court failed to

appropriately weigh Father’s reinstated custody in August 2008 after he successfully

completed the service plan, Father’s positive visits with the Children after they were

returned to DCFS’s custody the second time, Mother’s previous attempts to sabotage

Father’s successful relationship with the Children, the absence of domestic violence in

the three months preceding the trial, and Father’s recently stabilized relationship with

Mother.

¶57 Because the juvenile court “is in an advantaged position with respect to the

parties and the witnesses” and because the juvenile court’s decisions “rely heavily on

the juvenile court’s assessment and weighing of the facts,” we “afford[ its decision]

. . . a

high degree of deference.” In re B.R.

, 2007 UT 82, ¶ 12, 171 P.3d 435 (internal quotation

marks omitted). Accordingly, “[w]hen a foundation for the court’s decision exists in the

evidence, [we] may not engage in a reweighing of the evidence.” Id

. “Thus, in order to

overturn the juvenile court’s decision the result must be against the clear weight of the

evidence or leave the appellate court with a firm and definite conviction that a mistake

has been made.” Id. (internal quotation marks omitted).

¶58 The court found that Father failed to recognize Mother’s mental health issues

and the negative effects they have on the Children, including causing instability and

volatility throughout this case; that Father chose to stay with Mother in spite of her

failure to comply with the DCFS service plan; that in 2008, eight separate and severe

domestic violence incidents requiring police involvement occurred between Father and

Mother; and that Father continued to engage in contact with Mother in spite of the no

‐

contact order and in spite of the negative effect the domestic violence incidents had on

the Children. The court found that Father chose his wife over the Children, as indicated

by the violent contact between Father and Mother in late October 2008, by the contact

between Father and Mother following the November 3 hearing where the court had

ordered the parents to avoid contact with each other, and by Father’s Motion To Lift or20090484

‐ CA 28 Modify the No Contact Order. Specifically, the court stated, “[T]he parents have made

recent efforts to address their issues,” but “[any] progress and commitment is too little

too late.” The court emphasized that although Father had committed to protecting the

Children and placing them first when custody was returned to him in August 2008, he

failed to do so. “[T]he pattern of inappropriate behavior, stress, instability, and mental

health issues since Day 1 of this case continues.” The court concluded that the “history

of violent behavior” throughout the eighteen months of proceedings supported its

determination that Father was unfit and had neglected the Children. See Utah Code

Ann. § 78A

‐ 6

‐ 508(2)(f) (“In determining whether a parent

. . . [is] unfit or [has] neglected

a child the court shall consider, but is not limited to,

. . . a history of violent behavior.”).

¶59 Rather than challenging these findings, Father urges us to reweigh the evidence,

which we will not do. See In re B.R.

, 2007 UT 82, ¶ 12. The court recognized Father’s

evidence of improvements and nonetheless determined that the other evidence of his

neglect outweighed any progress he had made. We conclude that the juvenile court

considered all of the facts Father disputes and that its decision was not against the clear

weight of the evidence. Thus, we conclude that the evidence sufficiently supports the

juvenile court’s termination of Father’s parental rights based upon Father’s neglect and

unfitness or incompetency. See Utah Code Ann. § 78A

‐ 6

‐ 507(1)(b) (neglect); id. § 78A

‐ 6

‐ 507(1)(c) (unfit or incompetent); see also In re V.L

, 2008 UT App 88, ¶ 22, 182 P.3d 395

(affirming juvenile court’s conclusion that the father was unfit or incompetent because

he was “unwilling to end his relationship with [the m]other, who has been determined

to be an unfit parent” and was “unable to or unwilling to prevent contact between [the

m]other and the children”); In re T.M.

, 2006 UT App 435, ¶ 18, 147 P.3d 529 (affirming

juvenile court’s termination of the father’s parental rights due to his “unwillingness to

give up his ongoing relationship with [the m]other,” which “prevent[ed] him from

being an adequate father and endanger[ed] the children” and due to his insistence on

choosing his relationship with the mother over his children). Because the evidence was

sufficient to support termination of Father’s parental rights on these grounds, we do not

address the other grounds on which the court based its termination of Father’s parental

rights, see Utah Code Ann. § 78A

‐ 6

‐ 507(1) (stating that “[t]he court may terminate all

parental rights” if it finds any one of the grounds listed in section 78A

‐ 6

‐ 507(1)).

B. Best Interests of the Children

¶60 Finally, Father argues that insufficient evidence supported the juvenile court’s

determination that termination of his parental rights was in the Children’s best15 Father actually appeals the juvenile court’s denial of his motion for a directed

verdict, in which he asserted that the State failed to show by clear and convincing

evidence that termination was in the Children’s best interests. “When reviewing the

denial of a motion for [a directed verdict], an appellate court should defer to the trial

court’s findings and inferences under a clearly erroneous standard and review the trial

court’s conclusions of law for correctness.” Markham v. Bradley

, 2007 UT App 379, ¶ 13,

173 P.3d 865. Because Father challenges the sufficiency of the evidence supporting the

juvenile court’s best interests determination, our review is under the same clearly

erroneous standard. See In re S.L.

, 1999 UT App 390, ¶ 20, 995 P.2d 17 (“The clearly

erroneous standard requires that if the findings

. . . are against the clear weight of the

evidence, or if the appellate court otherwise reaches a definite and firm conviction that a

mistake has been made, the findings

. . . will be set aside.” (omissions in original)

(internal quotation marks omitted)).

20090484

‐ CA 29 interests. 15 The State must prove its allegations supporting termination by clear and

convincing evidence. See In re adoption of T.H.

, 2007 UT App 341, ¶ 11, 171 P.3d 480.

The court found that over the last eighteen months of proceedings, “the [C]hildren have

needed the parents to focus on them and provide a safe home, which the parents have

failed to do.

. . . These [C]hildren need stability and a sense of permanency.” The court

also weighed Father’s initial accomplishments in having custody restored to him in

August 2008, against his failure to keep his commitment to the court to avoid contact

with Mother: “[F]ather failed to protect and willfully violated th[e c]ourt’s order a mere

12 weeks later.

. . . [F]ather willfully imposed his ideas over what, in fact, was safe for

the [C]hildren and over the specific needs of the [C]hildren to be protected.”

Additionally, the court found that “the [C]hildren are treated as members of the family”

in the foster home. “These [C]hildren deserve stability and to have the moving from

one home to another eliminated. The [C]hildren deserve a loving, safe and appropriate

family, which they have found in the foster home.” The court found that the Children

now recognize their foster parents as their mother and father.

¶61 In spite of these findings, Father specifically challenges the court’s rejection of the

testimony of his and Mother’s marriage therapist that it was in the Children’s best

interests to remain in custody with Father. The court gave little weight to the marriage

therapist’s opinion because she had not conducted counseling with the Children, or

with the Children and Father, and she had not conducted any bonding assessment of20090484

‐ CA 30 the Children with Father. Although Father points to other witnesses’ testimonies that

may have supported a different conclusion, the court acted within its discretion in

assigning less weight to the testimonies, and we will not reweigh the evidence. See In re

B.R.

, 2007 UT 82, ¶ 12.

¶62 Based upon the factual findings, the juvenile court appropriately considered “the

physical, mental, or emotional condition and needs of the child[ren],” see Utah Code

Ann. § 78A

‐ 6

‐ 509(1)(a) (2008), along with Father’s efforts to adjust his “circumstances,

conduct, or conditions to make it in the children’s best interest to return

. . . to his

home,” see id. § 78A

‐ 6

‐ 509(1)(b). The juvenile court’s termination of Father’s parental

rights was supported by the clear weight of the evidence. Father may have initially

demonstrated his desire to change his conduct, which prompted the juvenile court to

restore his custody in August 2008, but his improvement was short

‐ lived, and he

relapsed into the same conduct that prompted the Children’s removal in August 2007.

After the Children were returned to DCFS’s custody the second time, Father failed to

abide by the court’s rulings and accept the condition that he simply could not have

contact with Mother if he was to keep the Children in a safe and stable environment.

Given the Children’s stable environment with their foster family and Father’s inability

to provide a stable environment, we conclude that the juvenile court did not err in

determining that it was in the Children’s best interests to terminate Father’s parental

rights, and we therefore affirm its decision.

CONCLUSION

¶63 Although the juvenile court permanently restored legal custody to Father, it

retained jurisdiction and dispositional authority over the Children. When the Children

were returned to DCFS’s custody only a few months later in November 2008, the

juvenile court did not need to adjudicate the Children again. The clock did not start

over for additional reunification services. Father received the due process to which he

was entitled. These proceedings presented a unique situation to the parties and to the

court. Ultimately, because the court had jurisdiction over the Children in November

2008, the proceedings essentially resumed, ensuring the Juvenile Court Act’s policy that

the Children would not “be placed in a ‘legal limbo’ for an unwarranted time period.”

See In re S.C.

, 1999 UT App 251, ¶ 10, 987 P.2d 611 (citation omitted). We also cannot

say that the juvenile court’s determinations that Father neglected the Children and was20090484

‐ CA 31 unfit and that termination was in the Children’s best interests was against the clear

weight of the evidence.

¶64 Affirmed.

____________________________________ Michele M. Christiansen, Judge

‐‐‐‐‐

¶65 WE CONCUR:

____________________________________ Gregory K. Orme, Judge

____________________________________ Stephen L. Roth, Judge