In re State

360 P.2d 486, 11 Utah 2d 393

• Court: Utah Supreme Court
• Decided: March 9, 1961
• Docket: No. 9329
• Status: Published

Opinions

WADE, Chief Justice.

Mr. and Mrs. B-, petitioners in the juvenile court, appeal from the decision of that court refusing to allow a hearing of their petition for the custody of eight minor children. The appellants are the father and mother of six of the children, and Mrs. B- is the mother of the two older children who were born to her by previous marriages.

On account of excessive drinking by the appellants, on June 20, 1959, the juvenile court made an order declaring all of the children neglected and placed them within the jurisdiction of the juvenile court under the protective supervision of the State Department of Public Welfare, but returned them to the custody of the appellants, the natural parents, upon condition that such parents would not drink' intoxicating liquor or frequent taverns. Appellants resumed their drinking and a petition was filed in the juvenile court -to take the custody of the children.: from them, and appellants were served with notice to appear on August 7, 1959, for a hearing on this petition. Instead of appearing at such hearing they took the children and left the state. In December of 1959, the appellants returned with the children to this state, upon which the children were immediately taken into custody by the juvenile court; a hearing was held in the presence of the parents, and the court amended its findings of fact and decree to contain the following provision:

"That all the parental rights of the father [name omitted] and the mother [name omitted], be and are hereby terminated and said parents are hereby deprived of the custody, control and guardianship of said children. That the said children shall be placed in the custody, control and guardianship of the Utah State Department of Public Welfare and said Welfare Department be and are hereby authorized to place said children for the purpose of adoption. That said children shall remain under the continuous jurisdiction of this court until said adoption is granted by a court having jurisdiction. That said Utah State Department of Public Welfare, upon finding a proposed adoptive home for said children shall submit to this court for its approval, a report regarding the character and social background of said proposed adoptive parents and that said children shall not be placed with said adoptive parents for the proposed adoption until so authorized by this court.” (Emphasis ours.)

On May 23, 1960, the appellants filed a petition for the restoration of the custody of their children to them on the grounds of changed conditions as provided for in Section 55-10-41, U.C.A.1953. Such petition alleged that the parents had conquered their alcoholic problem and definitely had quit drinking alcoholic beverages of any kind, and by reason thereof were able to furnish their children a good home, parental love and affection, and the best of care. The State answered this petition alleging (a) that the court has no jurisdiction to grant the petition; (b) that the mother has had insufficient time to overcome her alcoholic problem; (c) that suitable homes and adoptive parents have been found for the two sets of twins; (d) that the other children were adjusting well in foster homes and asked that the petition be denied. On July 12, 1960, the juvenile court entered an order denying further hearing on these matters and directed the Utah State Department of Public Welfare to proceed with the adoption of the above named children after the expiration of 30 days unless otherwise directed. On the 30th of August, 1960, after the notice of appeal was filed, the juvenile court ordered a stay of all proceedings to adopt the children.

On July 13, 1960, the juvenile - court entered a memorandum of decision. Therein it pointed out that since July 6, 195.1, there had been various petitions and proceedings in the juvenile court with reference to the neglect of one or more of these children, and that almost constantly since that time the mother, and later the father, had been before the juvenile court promising to refrain from drinking and to take care of the children; that these promises had invariably been broken; that the children had been left in the custody of the parents until December of 1959, after the parents had removed them from the state and later returned, at which time the court had ordered the children placed for adoption. The court further pointed out that the two •sets of twins had been placed by the Welfare Department for adoption in suitable homes; that the other children had been placed in suitable homes and were adjusting themselves to their surroundings; that only about seven months had elapsed since the parents were deprived of the custody of their children, which it pointed out was a rather short period in which to determine whether or not the parents had actually permanently stopped drinking.

Appellants urge that had they been granted a hearing they would have shown that soon after being deprived of the custody of their children, they were inducted into Alcoholics Anonymous and thereupon they had both completely refrained from drinking alcoholic beverages; that they had rented and furnished a home in a good 'residential area; that the father was steadily employed at a base pay of $88 per week and that they were in a position to furnish their children with good parental care and sustenance. They also claimed that they could produce testimony of a psychiatrist and an AA worker that in their opinion these parents would continue in their sobriety and be good parents to their children.

Section 55-10-41, U.C.A.1953 provides:

“A parent, guardian or next friend of a child who has been committed to any children’s aid society or institution, except the state industrial school or the district court, may at any time file with the clerk of the juvenile court a petition, verified under oath, asking for the return of such child to its parents or guardian, for the reason that they have reformed or the conditions have changed and that they are fit and proper persons to have its custody and are able to support and educate it. * * If, upon examination of the petition and the reply, the court is of the opinion that a hearing and further examination should be had, it may, upon due notice to all persons concerned, proceed to hear the facts and determine the question at issue. The court may thereupon order such child to be restored to the custody of its parents or guardian, or to be retained in the custody of the children’s aid society or institution, and may direct the proper authorities of the society or institution to make any other arrangements for the child’s care and welfare as the circumstances of the case may require, or the court may make a further order of commitment as the interest and welfare of such child may demand.” (Emphasis ours.)

From the foregoing section it is clear that it was proper for the parents to file this petition, and that it was within the sound discretion of the juvenile court whether it would grant a hearing or not. We should reverse the trial court’s decision on that question only if we find that it acted arbitrarily or abused its discretion.

Section 55-10-32, U.C.A.1953, provides that no child shall be taken from the custody of its parents without their consent ■“unless the court shall find from all the circumstances in the case that public welfare or the welfare of a child requires that his custody be taken from its parents *

This section, although not determinative in this case because the juvenile court had previously on ample evidence entered an order depriving the parents of the custody of the children here in question, does emphasize and point out that it is the policy of the law not to deprive the natural parents of the custody of their children without careful consideration of the welfare of the children involved.

Furthermore, this court has repeatedly recognized that there is a presumption that it will be for the best interests of the child to be raised under the care, custody, control and supervision of its natural parents. Such presumption is only overcome when the trier of the facts is convinced by the evidence that the welfare of the child requires that the child be awarded to someone other than the natural parents. Thus, the ultimate burden of proof on this question is always in favor of the natural parents and against any other person seeking custody of such child. In addition thereto, this presumption is based on logic, and experience shows generally that parents have more love, devotion and regard for their own children than do other people. Therefore, this fact has evidentiary value which should be considered by the trier of the facts in determining such question.¹

Also, it is very unusual for a court to attempt to determine facts without hearing all of the evidence available which has a bearing on that question. This is particularly true in a case where the trial court is called upon to determine a complicated question such as, what will he most beneficial to the child. Ordinarily to refuse to hear all the evidence available on an issue of fact would be a violation of due process of law. However, in this case these children have been under the supervision of the juvenile court, and it has been repeatedly brought to the court’s attention that these parents have promised to abstain from the use of intoxicating liquor but have failed to live up to such promises, and the juvenile court has finally permanently deprived these parents of the custody of their children after a complete hearing of the matter. So probably there is no lack of due process of law by the failure of the juvenile court to hear this petition.

Here the petition is based on changed conditions. It alleges that the parents have completely conquered their alcoholic problem and have definitely quit drinking any alcoholic beverages of any kind; that this has been accomplished through the aid of the AA society, and that by reason thereof they are now able to furnish their children a good home, parental love and affection and the best of care. If this were only a question of the parents reaffirming their vows to overcome their alcoholic problem, which they have broken many times in the past, then the trial court would be well within its discretion in. refusing to hear further evidence. But this is not the case. The, plaintiffs claim that they have joined the AA society and with its help have completely overcome their drinking habits. They claim that they have not touched alcohol since joining the AA society and that they intend to and will continue to abstain from such drinking in the future. They claim that the husband has now obtained a good job, and that they are living in a desirable home, and that they are desirous and able to provide the children with the necessary care and support.

It is not unusual for a person who has for a long period of his life had an uncontrolled drinking habit to completely overcome such habit during the rest of his life. Such a reformation often occurs with the aid of the AA society, which was established for that purpose. In view of these facts, the juvenile court abused its discretion in refusing to allow a hearing on this question. The contention that sufficient time had not elapsed to demonstrate that the parents had overcome these drinking habits has now been eliminated by the lapse of time, and if more time were needed the juvenile court could hold the proceedings in abeyance until it is satisfied on that point.

Whether some or all of these children shall be returned to the parents is a ques¹ tion for the juvenile court to decide after hearing all of the evidence and determining what will be most beneficial to each child. However, since the parents have presented an issue of fact under which the parents prbbably can make a showing that the best interests of these children requires that they be reared by their natural parents, the trial court abused its discretion in refusing to give them a hearing. The children need not attend such hearing nor be disturbed in their adjustment to their surroundings unless the juvenile court concludes in view of all the evidence that the best interests of one or more of such children requires a return to the custody of the parents.

Decision reversed with directions that the juvenile court proceed with such hearing in accordance with the view herein expressed. No costs awarded.

HENRIOD and McDONOUGH, JJ., concur.

1 . Bradley v. Miller, 109 Utah 538, 167 P.2d 978; Walton v. Coliman, 110 Utah 1, 169 P.2d 97; Baldwin v. Neilson, 110 Utah 172, 170 P.2d 179; In re Olson (Hardy v. Olson), 111 Utah 365, 180 P.2d 210; Deveraux’ Adoption v. Brown, 2 Utah 2d 334, 273 P.2d 185; Front v. State, 7 Utah 2d 245, 322 P.2d 397; State in Interest of K- B-, 7 Utah 2d 398, 326 P.2d 395.