2017 UT App 57

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF B.J.V.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

B.A.V.,

Appellant,

v.

STATE OF UTAH AND B.J.,

Appellees.

Per Curiam Decision

No. 20170094-CA

Filed March 30, 2017

Third District Juvenile Court, Salt Lake Department

The Honorable Julie V. Lund

No. 1133541

Sheleigh A. Harding, Attorney for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. 

Peterson, Attorneys for Appellee State of Utah

Julie George, Attorney for Appellee B.J.

Martha Pierce, Guardian ad Litem

Before JUDGES STEPHEN L. ROTH, MICHELE M. CHRISTIANSEN, and 

DAVID N. MORTENSEN.

PER CURIAM:

¶1 B.A.V. (Mother) appeals from an order awarding 

permanent custody and guardianship of B.J.V. to his biological 

and legal father B.J. (Father) and terminating juvenile court 

jurisdiction. We affirm.

¶2 “[T]o overturn the juvenile court’s decision[,] [t]he result 

must be against the clear weight of the evidence or leave the 
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20170094-CA 2 2017 UT App 57

appellate court with a firm and definite conviction that a mistake 

has been made.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (third

alteration in original) (citation and internal quotation marks 

omitted). We “review the juvenile court’s factual findings based 

upon the clearly erroneous standard.” In re E.R., 2001 UT App 66, 

¶ 11, 21 P.3d 680. A finding of fact is clearly erroneous when the 

court “failed to consider all of the facts or considered all of the 

facts and its decision was nonetheless against the clear weight of 

the evidence.” In re B.R., 2007 UT 82, ¶ 12. Therefore, “[w]hen a 

foundation for the court’s decision exists in the evidence, an 

appellate court may not engage in a reweighing of the evidence.” 

Id.

¶3 At the adjudication hearing held in September 2016, 

Mother entered admissions to the State’s amended petition 

pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure. 

The juvenile court adjudicated B.J.V. to be a neglected child as to 

Mother because he lacked proper parental care by reason of the 

faults or habits of Mother. The court adjudicated B.J.V. to be a 

dependent child as to Father because he was “without proper 

care through no fault of” Father. The juvenile court set a primary 

permanency goal for B.J.V. of reunification with Mother and a 

concurrent permanency goal of guardianship with Father. The 

court placed B.J.V. in the temporary custody of Father with 

protective supervision services and took Father’s motion for 

permanent custody under advisement. The written adjudication 

order “set the matter for review on December 8, 2016 to measure 

mother’s progress and again address the motion for an order to 

place [B.J.V.] in the Permanent Custody and Guardianship of 

[Father].”

¶4 At the adjudication hearing, Mother stipulated to a 

service plan requiring her to comply with random drug testing,

to complete substance abuse, mental health, and domestic 

violence evaluations, and to complete any recommended 

treatment. Mother also stipulated that she could be ordered to 
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20170094-CA 3 2017 UT App 57

observe drug court. At the December 8, 2016 review hearing, it 

was undisputed that Mother left her residential substance abuse 

treatment program and did not participate in drug court, that 

she had not visited B.J.V. since August 2016, and that she still 

had outstanding warrants. Mother argued that she was working 

to return to residential treatment and requested another hearing 

in one month to review her progress. The State and the Guardian 

ad Litem (GAL) joined in Father’s renewed motion for 

permanent custody and guardianship. During the hearing, 

Father’s counsel made statements regarding B.J.V.’s condition 

when he came into Father’s temporary custody. Mother’s 

counsel argued that an evidentiary hearing should be set as a 

result of this new information. The juvenile court denied the 

request for an evidentiary hearing.

¶5 The juvenile court granted Father’s motion for permanent 

custody and guardianship and terminated protective supervision

services and juvenile court jurisdiction over B.J.V. After reciting 

that Father’s renewed motion for permanent custody had been 

taken under advisement at the September 29, 2016 adjudication 

hearing, the juvenile court made findings based upon 

“[u]ndisputed facts detailed in the court report/progress 

summary, provided to all counsel prior to the hearing.” The 

court found those undisputed facts were that Mother left 

residential substance abuse treatment on November 1, 2016, and 

that she denied she had a substance abuse problem, wanted to 

opt out of Family Dependency Drug court, took a month to meet 

with the evaluator after being ordered to do so, missed a drug 

test, and “had not visited with the child for months having just 

recently made two scheduled visits prior to court.” The report

provided to the juvenile court stated

that since being placed with his father, [B.J.V.] was 

enrolled in an after-school program, [and] the 

father ha[d] hired a tutor to help his son as he is so 

far behind in school. He is catching up on grade 
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20170094-CA 4 2017 UT App 57

level work, he is playing sports in extra-curricular 

activities, the home is clean, meets safety standards 

and the case worker had no concerns about the 

parent child relationship or the care [B.J.V.] was 

receiving from his father.

The court found that Father and B.J.V. were bonded, the child 

was cared for appropriately, and Father was obtaining services 

to meet the child’s needs.

¶6 Mother claims that the juvenile court erred in denying her 

request for an evidentiary hearing. This argument relies upon a 

superseded rule and case law interpreting it. See In re P.D., 2013 

UT App 162, ¶ 6, 306 P.3d 817 (discussing a previous version of 

Utah Rule of Juvenile Procedure 47 requiring the juvenile court 

to schedule an evidentiary hearing “if the modification is 

objected to by any party prior to or in the review hearing”). At 

all times relevant to this case, current rule 47(b)(3) of the Utah 

Rules of Juvenile Procedure has stated,

The court shall not modify a prior order in a 

review hearing that would further restrict the 

rights of the parent, guardian, custodian or minor 

if any party objects to the modification. Upon 

objection, the court shall schedule the matter for a 

motion hearing and require that a motion be filed 

with notice to all parties. A party requesting an 

evidentiary hearing shall state the request in the 

motion to modify the prior order or the response to 

the motion.

Utah R. Juv. P. 47(b)(3).

¶7 In this case, the juvenile court took Father’s motion for 

permanent custody and guardianship under advisement at the 

adjudication hearing after Mother objected to the relief 

requested. The court specifically set a review hearing to consider 
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20170094-CA 5 2017 UT App 57

Father’s motion and review Mother’s progress. Mother did not 

request an evidentiary hearing at any time before the review 

hearing scheduled for December 8, 2016, as current rule 47(b)(3) 

would require. Mother claimed that new information from 

Father’s counsel’s arguments at the review hearing entitled her 

to an evidentiary hearing. However, the juvenile court’s ruling 

focused narrowly on the undisputed facts related to Mother’s 

lack of any significant progress since the adjudication hearing. 

Thus, even if the evidentiary hearing requirement discussed in 

In re P.D. had applied, so would its requirement that Mother 

demonstrate prejudice from the failure to provide such a 

hearing. And here Mother has not demonstrated that she was 

prejudiced by the lack of an evidentiary hearing on the narrow 

issues raised by Father’s counsel’s arguments. See In re P.D., 2013 

UT App 162, ¶ 12 (requiring a demonstration that “had an 

evidentiary hearing been granted, the likelihood of a different 

outcome [would have been] sufficiently high as to undermine 

our confidence in the [judgment]” (alterations in original) 

(citations and internal quotation marks omitted)).

¶8 Mother also claims that the juvenile court erred in 

granting permanent custody and guardianship to Father because 

the evidence was insufficient to demonstrate that the permanent 

custody award was in B.J.V.’s best interest. Mother does not state

any disagreement with the juvenile court’s findings regarding 

the suitability of Father’s home or the efforts Father has made to 

address B.J.V.’s needs. Although couched in terms of B.J.V.’s best 

interest, Mother’s argument is that she is entitled to more time to 

reunify with B.J.V. despite making no significant progress since

his removal. Reunification services can be terminated at any 

time. See Utah Code Ann. § 78A-6-312(14)(a) (LexisNexis Supp. 

2016) (“If reunification services are ordered, the court may 

terminate those services at any time.”). In addition, Mother’s 

parental rights to B.J.V. have not been terminated so any 

argument regarding severance of the parent–child relationship is

premature. At best, her argument is simply that she should have 
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20170094-CA 6 2017 UT App 57

more time to seek reunification, but she has failed to demonstrate 

any level of progress that would support her claims.

¶9 Given the undisputed facts regarding Mother’s lack of 

progress up to the time of the review hearing and the lack of any 

dispute regarding the suitability of Father’s care, this court 

concludes that “a foundation for the court’s decision existed in 

the evidence” and it will not be disturbed. See In re B.R., 2007 UT 

82, ¶ 12, 171 P.3d 435. Accordingly, we affirm.