L.G. v. State

2013 UT App 184, 307 P.3d 672, 2013 WL 3864530
CourtCourt of Appeals of Utah
DecidedJuly 26, 2013
DocketNo. 20120329-CA
StatusPublished
Cited by9 cases

This text of 2013 UT App 184 (L.G. 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
L.G. v. State, 2013 UT App 184, 307 P.3d 672, 2013 WL 3864530 (Utah Ct. App. 2013).

Opinions

[673]*673Opinion

THORNE, Judge:

{1 L.G. (Mother) appeals the juvenile court's termination of her parental rights in AT. and J.B.J. (the Children). Mother argues that she is entitled to reunification services pursuant to Utah Code section 78A-6-312(25)(a). See Utah Code Ann. § 78A-6-812(25)(a) (LexisNexis 2012) .1 We reverse and remand.

BACKGROUND

12 Mother is the biological mother of the Children. J.B. (Father) is the biological father of J.B.J. and the stepfather of AT.

3 On February 4, 2011, Mother was convicted of felony drug offenses. She was sentenced to serve one to fifteen years in the Utah State Prison. At the time of Mother's incarceration, the Children remained with Father. In May, law enforcement authorities received a report that Father had used heroin. Officers obtained a warrant to search the home and found several bags of pills belonging to Father and drug paraphernalia. The Division of Child and Family Services (DCFS) removed the Children from Father's care and placed them in the home of a paternal aunt and her husband (the Foster Parents).

1 4 Thereafter, DCFS identified a primary permanency goal for the Children of reunification with Father. The juvenile court approved a service plan for Father because he was the custodial parent of the Children at the time of removal and Mother was incarcerated for an extended sentence. Father was subsequently charged with several counts of possession of drugs and drug paraphernalia. On August 24, Father was incarcerated in the Utah County Jail. On September 28, the State requested that Father's reunification services be terminated due to Father's failure to comply with the service plan objectives and due to his recent incarceration.2 The parties, including Mother, stipulated that a permanency hearing could also be held on September 28.

15 At the permanency hearing, the juvenile court inquired about the status of Mother's sentence. Mother's attorney informed the court that Mother had recently been before the parole board and that she had seven months of incarceration remaining and then would spend some time at a half-way house. The juvenile court changed the per-maneney goal for the Children to adoption, stating, "With another seven months [left] it does not appear that there's any reasonable likelihood that [Mother] would be able to put herself in a position to obtain custody of [the Clhildren upon her release."

1 6 The juvenile court held a termination of parental rights trial on February 16, 2012. Mother argued that her parental rights should not be terminated because DCFS failed to make reasonable efforts to provide her with reunification services. The juvenile court was not persuaded, observing that Mother "has been incarcerated for the entire course of this case and reunification services, as a practical matter, could not possibly be provided to her." The juvenile court also rejected Mother's argument stating,

[The permanency goal set by the Court in this case was for reunification with [Father] because he was the custodial parent at the time of removal and because [Mother] was serving a long-term prison sentence. The Service Plan was geared toward services for [Father] and the [CJhildren and DCFS was ordered by the Court to move in that direction. Therefore, [Father], not [Mother], is the parent entitled to reasonable efforts from DCFS.

[674]*674The juvenile court determined that Mother and Father had "substantially neglected, willfully refused or have been unable or unwilling to remedy the cireumstances that caused the out-of-home placement and there is no substantial likelihood that they will [be] capable of exercising proper and effective parental care in the near future." The juvenile court terminated Mother's and Father's parental rights in the Children. The juvenile court then ordered the permanency plan for the Children to be changed to adoption. Mother appeals.

ISSUES AND STANDARDS OF REVIEW

17 Mother argues that she is entitled to reunification services because the juvenile court failed to comply with Utah Code section 78A-6-312(25)(a), which section provides that when a parent is incarcerated, "the court shall order reasonable services unless it determines that those services would be detrimental to the minor." Utah Code Ann. § (LexisNexis - 2012). Mother also argues that the juvenile court erred by failing to order reasonable reunification services. A decision to order reunification services lies within the sound disceretion of the juvenile court. See In re N.R., 967 P.2d 951, 956 (Utah Ct.App.1998). Accordingly, we review the juvenile court's decision not to order reunification services for an abuse of discretion. However, "we review the district court's decision for correctness to the extent it involves questions of statutory interpretation" of section 78A-6-812(25). Diener v. Diener, 2004 UT App 314, ¶ 4, 98 P.3d 1178 (citation and internal quotation marks omitted)3

ANALYSIS

T8 Mother asserts that the juvenile court erred in determining that she was not entitled to reunification services because at the time of the Children's removal Father was the custodial parent and Mother was serving a long-term prison sentence. Specifically, Mother argues that the juvenile court was required, under Utah Code section T78A-6-312(25)(a), to order reasonable services to her while she was in prison unless the court "determine[d] that those services would be detrimental to the [Children]." See Utah Code Ann. § 78A-6-812(25)(a). Mother contends that because the juvenile court had not determined that reunification services would be detrimental to the Children, it erred in deciding that she was not entitled to services while in prison.

19 Both the State and the Guardian ad Litem argue that the statute does not require the juvenile court to make a specific finding that reunification services would be detrimental to the Children. They argue that instead of a specific "detrimental to the minor" finding the court need only make findings which demonstrate that reunification services would have been detrimental to the Children. For instance, the State asserts that the juvenile court found that services were never contemplated for Mother because of her extensive history with DCFS wherein she ostensibly improved but quickly reverted to her past behaviors; Mother's extensive history of substance abuse, violent behavior, and criminal activity; and Mother's incarceration before and throughout the proceedings. These findings, the State argues, are sufficient to demonstrate that the juvenile court considered the section 78A-6-312(25)(b) factors that are relevant to a detrimental to the minor finding and that the findings that were made demonstrate the court's decision-making process regarding the detrimental to the minor issue.

1 10 This question appears to be governed by section 78A-6-312(25). When interpreting statutes, "our primary goal is to evince the true intent and purpose of the [Utah] Legislature." State v. Davis, 2011 UT 57, ¶ 21, 266 P.3d 765. To discern legislative intent, we first look to the plain language of [675]

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In re A.T. and J.B.J. (L.G. v. State)
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Bluebook (online)
2013 UT App 184, 307 P.3d 672, 2013 WL 3864530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lg-v-state-utahctapp-2013.