State Ex Rel. Er

2001 UT App 66, 21 P.3d 680, 2001 WL 225268
CourtCourt of Appeals of Utah
DecidedMarch 8, 2001
Docket990334-CA
StatusPublished
Cited by1 cases

This text of 2001 UT App 66 (State Ex Rel. Er) 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
State Ex Rel. Er, 2001 UT App 66, 21 P.3d 680, 2001 WL 225268 (Utah Ct. App. 2001).

Opinion

21 P.3d 680 (2001)
2001 UT App 66

STATE of Utah, in the interest of E.R., J.R., J.R., and C.R., persons under eighteen years of age.
F.R. and T.R., Appellants,
v.
State of Utah, Appellee.

No. 990334-CA.

Court of Appeals of Utah.

March 8, 2001.

*681 Matthew Hilton, Springville, for Appellants.

Mark L. Shurtleff, Atty. Gen., and Jeffrey S. Buckner, Asst. Atty. Gen., Salt Lake City, for Appellee.

Martha Pierce, Salt Lake City, Guardian Ad Litem.

Before Judges BILLINGS, DAVIS, and ORME.

OPINION

DAVIS, Judge:

¶ 1 F.R. and T.R. (Parents) appeal the results of a permanency hearing and ask that we review three issues: First, did the juvenile court improperly conclude at the permanency hearing that the two oldest children should be placed in permanent foster care and the two youngest children be placed for adoption? Second, did the juvenile court illegally consider the Guardian ad Litem's (GAL) petition to terminate parental rights? Third, did the juvenile court err in granting the State permission to administer psychiatric medications to the children?

BACKGROUND

¶ 2 The Division of Child and Family Services (DCFS) has monitored Parents' four children, E.R, J.R., J.R., and C.R., since at least 1996. In December 1996, the juvenile *682 court issued a pick-up order authorizing DCFS to remove the children from Parents' custody. Although removed, the children were placed back with Parents and a service plan was ordered; however, custody and guardianship remained with DCFS. On May 23, 1997, Parents filed an "objection to service plan," contesting the plan's requirement of parenting classes and psychological evaluation of Parents. In July 1997, Parents obtained permission to take the children out of state for thirty days. Four months later, the court issued another pick-up order because Parents did not return with the children. The children were found with Parents in Arizona in February 1998, removed from Parents' custody, and returned to Utah.

¶ 3 On April 28, 1998, the court ordered a modified service plan pursuant to a hearing on Parents' objection to the service plan. Parents acquiesced to the modified plan. On June 16, 1998, an expedited hearing was held due to a suicidal gesture made by the oldest child. The court determined that DCFS, as guardian of the children, could administer psychiatric medication to the children without Parents' consent. Parents' attorney conceded that the court had the authority to grant such an order.

¶ 4 A permanency motion and termination petition were heard together in March 1999. The court denied the GAL's termination petition, finding that the GAL had established grounds for termination of parental rights, but that termination was not in the best interest of the children. In regards to the permanency hearing, based on Parents' lack of compliance with the modified service plan, the court ordered that the permanency goal of the two oldest children be long term foster care, and the permanency goal for the two youngest children be adoption.[1]

ISSUES AND STANDARDS OF REVIEW

¶ 5 We review three issues. First, did the juvenile court err at the permanency hearing by ordering that the two oldest children be placed in permanent foster care and the two youngest children be placed for adoption? A review of a permanency plan involves interpretation of statutory provisions which this court generally reviews without deference to the lower court's decision. See In re K.M., 965 P.2d 576, 579 (Utah Ct.App.1998). Further, when appellant challenges the court's findings of fact, appellant "`"must marshall [sic] the evidence in support of the findings and then demonstrate that despite this evidence, the [juvenile] court's findings are so lacking in support as to be against the clear weight of the evidence."'" In re D.G., 938 P.2d 298, 301 (Utah Ct.App.1997)(alterations in original) (citations omitted).

¶ 6 Second, did the juvenile court illegally consider the GAL's petition to terminate parental rights? This presents a question of statutory interpretation which we review for correctness, giving no deference to the trial court's interpretation. See In re R.N.J., 908 P.2d 345, 349 (Utah Ct.App.1995)(overruled on other grounds).

¶ 7 Third, did the juvenile court err in granting the State permission to administer psychiatric medications to the children? Juvenile courts are granted broad discretion in making such determinations. See In re M.L., 965 P.2d 551, 559 (Utah Ct.App.1998). However, in order for this court to review this issue, Parents must first show that this court has jurisdiction to hear the appeal. See Utah R.App. P. 3(a). For this court to have jurisdiction to hear the claim, the claim must arise from the order being appealed. Id.

ANALYSIS

A. Permanency Hearing

¶ 8 Parents contest the results of the permanency hearing arguing the following: (1) Parents were denied access to certain evidence and discovery material; (2) the plan imposed upon Parents was illegal; (3) the juvenile court erred in ruling that Parents failed to fulfill portions of the plan; and (4) the court erred by ordering adoption as the *683 permanency goal for the two youngest children when parental rights had not yet been terminated.

1) Access to Evidence and Discovery Material

¶ 9 Rule 24 of the Utah Rules of Appellate Procedure requires appellant's brief to contain "citation to the record showing that the issue was preserved in the trial court." Utah R.App. P. 24(a)(5)(A). No such citation was provided in this case. This failure is particularly significant because Parents are appealing two rulings that were not part of the permanency order. Our review of the record reveals that Parents never objected to discovery defects or denial of access to evidence before trial. "Under ordinary circumstances, appellate courts will not consider an issue, including a constitutional argument, raised for the first time on appeal unless the trial court committed plain error." State v. Helmick, 2000 UT 70, ¶ 8, 9 P.3d 164; see also State v. Gibbons, 740 P.2d 1309, 1311 (Utah 1987). Here, Parents complained to the trial court about discovery issues during the trial; however, these complaints were voiced well after the pre-trial meeting set up specifically to deal with such matters. Further, Parents did not request a sanction or object to the material during the trial itself. Thus, Parents did not preserve any discovery or evidence denial issues for our review.[2]

2) Legality of Service Plan

¶ 10 Likewise, Parents waived their right to appeal the legality of the modified service plan.[3] Here, the service plan had been in place for about one year before the permanency hearing. Parents never objected to the plan[4] or petitioned the trial court for its modification[5] and never attempted to appeal the final order arising from the dispositional hearing.[6]See Utah Code Ann. § 78-3a-311

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2013 UT App 36 (Court of Appeals of Utah, 2013)

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Bluebook (online)
2001 UT App 66, 21 P.3d 680, 2001 WL 225268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-er-utahctapp-2001.