D.H. v. State

2015 UT App 66, 347 P.3d 2, 2015 WL 1254877
CourtCourt of Appeals of Utah
DecidedMarch 19, 2015
DocketNo. 20140265-CA
StatusPublished

This text of 2015 UT App 66 (D.H. v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D.H. v. State, 2015 UT App 66, 347 P.3d 2, 2015 WL 1254877 (Utah Ct. App. 2015).

Opinion

Memorandum Decision

ROTH, Judge:

11 D.H. (Father) appeals from the juvenile court's order terminating reunification services and awarding custody of his three minor children to their mother (Mother). Father challenges the sufficiency of the evidence to support that decision. We conclude that the juvenile court's findings are supported by the record, and we therefore affirm.

12 "[In order to overturn the juvenile court's decision [on custody,] [tihe 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." See In re B.R., 2007 UT 82, 112, 171 P.3d 485 (third alteration in original) (citation and internal quotation marks omitted). In considering whether this standard has been satisfied, 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. We "may not engage in a reweighing of the evidence" but instead must only assess whether there is evidence that supports the Juvenile court's findings and conclusions. In re B.R., 2007 UT 82, ¶12, 171 P.3d 435.

T8 This case originated in April 2018 from allegations of environmental neglect in the parents' home. Based on Mother's and Father's admissions,1 the juvenile court adjudicated the children neglected. Accordingly, the court entered an order for "[plrotected supervision," which is "a legal status created by court order following an adjudication on the ground of ... neglect ..., whereby the minor[s are] permitted to remain in the ... home, and supervision and assistance to correct the ... neglect ... is provided" by the Division of Child and Family Services (DCFS). See Utah Code Ann. § 78A-6-10583) (LexisNexis2 At a subsequent disposition hearing, the juvenile court set a goal of keeping the children in the custody of both parents, provided that the parents could acquire and implement the skills necessary to keep the children safe in the homes.3 DCFS created a child and family plan with specific services and responsibilities for each parent (the Service Plan).

T4 Both parents initially made efforts to comply with the Service Plan, but on September 11, 2018, Mother obtained a protective order against Father that required him to move out of the home. The protective order did not specifically preclude Father's contact with the children but instead awarded temporary custody to Mother and "[dle-fer[red] to Juvenile Court" on parent-time. The juvenile court subsequently prohibited Father from exercising parent-time with the oldest child until a therapist authorized visitation to resume. It allowed Father to have parent-time with the younger two children but mandated that all visits be supervised by DCFS or another court-approved agency.

T5 By late September 2013, police had arrested Father for violation of the protec[4]*4tive order. Father was in and out of custody for protective order violations until at least January 2014. During his incarceration, Father could not participate in the services offered through the Service Plan. Onee he was released from custody in January 2014, he participated in regular supervised parent-time with the two youngest children and had a trial visit with the oldest child, after which the child expressed a desire to resume visitation.

T6 On March 19, 2014, the juvenile court conducted a review hearing. Counsel for each parent, the State, and the Guardian ad Litem (GAL) addressed the need for the juvenile court's continued involvement with the family and the allocation of custody and parent-time going forward. The parties presented no testimony at the hearing. Mother, through her attorney, asked the juvenile court to close the case and award her sole legal and physical custody of the children. Counsel argued that such action was appropriate because Mother had remedied the environmental situation that resulted in the adjudication of neglect and she planned to continue participating in therapy and skills training through Hopeful Beginnings even after the case terminated. Mother's attorney also reported that Mother was abiding by the protective order and cooperating with law enforcement's ongoing investigation of criminal charges against Father for repeatedly violating the protective order. Mother's attorney also stated that Mother had demonstrated a willingness to facilitate Father's parent-time with the children. Father's attorney responded that Father sought joint legal custody and that he wanted the court either to allow him unsupervised parent-time with the children according to the standard statutory schedule or to continue its jurisdiction over the family until such an order could be put in place. Father's attorney reported that Father was complying with Adult Probation and Parole and was "extremely eager ... to prove that he is a safe and stable father figure to these children." The State recommended, based on the significant improvement of the children's environment, that custody be given to Mother and the juvenile case be closed. The GAL recommended that the case be kept open so as to better assess Father's ability to care for the children now that he had been released from jail.

17 After hearing all of the arguments and considering written reports prepared by DCFS and Hopeful Beginnings, the juvenile court agreed with Mother and the State that the case should be closed. Accordingly, it entered an order giving Mother sole legal and physical custody of the children, granting Mother discretion, with the input of Hopeful Beginnings, to determine how much visitation the children should have with Father, and terminating both DCFS services and the juvenile court's jurisdiction over the family. Father appeals, arguing that the evidence does not support the juvenile court's decision.

1 8 Specifically, Father contends that there is insufficient evidence to support three findings: (1) "that it was not safe to return the minor children to the custody of Father"; (2) "that Father was not in substantial compliance with the Service Plan"; and (8) "that it would be in the children's best interest that Father's reunification services be terminated and that permanen{t] custody and guardianship be awarded to [Mother]." It is not apparent from the record that the juvenile court actually made either of the first two findings. Instead, it appears that the juvenile court determined that it was in the children's best interests to terminate the court's jurisdiction and that doing so required that the children be placed in the legal custody of one parent. In light of that decision, the juvenile court awarded Mother "[slole legal custody" and "discretion to determine the visitation with the Father and children.4 These decisions have support in the record.

19 Regarding the decision to terminate jurisdiction, the juvenile court stated that although "there [were] several reasons why it would make sense to keep [the case] open," the court would close the case because the parties had come under the jurisdiction of the court due to an environmental neglect [5]*5issue that had since been resolved. The court further noted that custody had not been a concern until the issuance of the protective order because the court had initially ordered protective supervision, which permitted the children to remain in both their parents' custody in the family home.

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Related

State Ex Rel. E.R.
2001 UT App 66 (Court of Appeals of Utah, 2001)
State Ex Rel. B.R.
2007 UT 82 (Utah Supreme Court, 2007)
In Re Adoption of T.H.
2007 UT App 341 (Court of Appeals of Utah, 2007)

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Bluebook (online)
2015 UT App 66, 347 P.3d 2, 2015 WL 1254877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dh-v-state-utahctapp-2015.