State Ex Rel. Walter B.

577 P.2d 119, 1978 Utah LEXIS 1266
CourtUtah Supreme Court
DecidedMarch 20, 1978
Docket14864
StatusPublished
Cited by31 cases

This text of 577 P.2d 119 (State Ex Rel. Walter B.) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Walter B., 577 P.2d 119, 1978 Utah LEXIS 1266 (Utah 1978).

Opinions

MAUGHAN, Justice:

Mrs. B., the mother of Walter B., appeals from a decree of the Juvenile Court terminating all of her rights, including her residual parental rights. This case is reversed and remanded to the Juvenile Court; because, as a matter of law, the grounds for termination under Sec. 78-3a-48(1)(a) have not been established.

The trial court ruled Mrs. B. was unfit by reason of conditions seriously detrimental to the child. The court found:

The mother is emotionally stable but cannot properly care for the child; that the child has minimal brain disfunction, is intensely hyperactive, anxious and impulsive; that he responds to contacts by his mother in an emotionally explosive and destructive manner; that the child’s physical and emotional condition and his response to the relationship with his mother, is a condition that is seriously detrimental to the child; that by reason of this condition the mother is rendered unfit to care for this child.

Thus, it is the alleged condition of the child which the court concluded rendered the mother unfit. May such construction be sustained under the law?

Section 78-3a-48, U.C.A.1953, as enacted 1965, provides:

[121]*121(1) The court may decree termination of all parental rights with respect to one or both parents if the court finds:
(a) That the parent or parents are.unfit or incompetent by reason of conduct or condition seriously detrimental to the child; .

This statute was interpreted in State In Interest of Winger,1 wherein it was ruled that the condition of the mother must have a seriously detrimental effect on the child. To sustain a termination, the characteristics ascribed to the mother must represent such a substantial departure from the norm as to constitute a condition seriously detrimental to the child.

Mrs. B. is the mother of five children; Walter is the youngest and at the time of the hearing was twelve years old. The older two children are adults and successfully established in the world. The middle two live with Mrs. B., and the state stipulated Mrs. B. had good parenting skills with these children.

Shortly after Walter’s birth, Mrs. B.’s husband deserted her, and she was compelled to accept welfare. Walter’s behavior was such a departure from the norm that Mrs. B. requested assistance when he was four years old. She was referred to Primary Children’s Hospital, where Walter underwent extensive testing. Mrs. B. was informed he had minimal brain disfunction, and a medication was prescribed. No one explained that this term as applied to Walter meant he was hyperactive, and no training for the mother was provided. Walter participated in a head start program, where his behavior was noted as disruptive. He received group therapy at the Granite Mental Health Center for two or three months; thereafter the program was discontinued. Walter entered kindergarten and progressed through the first and second grades. His behavior was frequently outrageous, and his mother was compelled to supervise him constantly. Mrs. B. was still not provided with any counseling or training.

Walter entered third grade. The principal of the school contacted Mrs. B. a number of times to complain of Walter’s behavior. Finally, Walter was expelled. Mrs. B. contacted welfare seeking assistance. The state rather than providing training and counseling for Mrs. B., removed Walter and placed him in a foster home on March 16, 1972, where he remained for the next 4½ years. This foster environment was evidently insufficient to resolve Walter’s behavioral problems, since he came before the Juvenile Court on June 19, 1973 and was found to be in need of specialized care for his emotional problems. Mrs. B. was deprived of her custodial rights and he was placed with the Division of Family Services, hereinafter, D.F.S. Walter began treatment for his problems as an out patient at Primary Children’s Medical Center in September, 1973. However, he continued to live with foster parents. The record does not indicate that D.F.S. devised any plan to reunite Walter with his family, viz., his mother, brother, and sister.

Two witnesses, a social worker, Mrs. Fer-rugia, and a psychiatrist, Dr. Gill, testified that parents of hyperactive children are given special training to educate them how to care and cope with such children. Mrs. Ferrugia testified there are community resources available to train parents in such techniques as behavior modification. Dr. Gill explained that in private practice the entire family is educated in a series of three to six sessions; thereafter, periodic sessions are held as long as the child remains in treatment. Dr. Gill further testified that in private practice a hyperactive child is not removed from his home unless the child is uncontrollable. If such circumstances occur, the child is removed on a temporary basis, until his behavior becomes more appropriate.

A psychiatric social worker, Mr. Facey, and a psychiatrist, Dr. Goates, who are employed by the Primary Children’s Hospital testified as to Walter’s condition. Both were of the opinion that Walter’s relationship should be terminated with his mother; [122]*122however, their contacts were limited to two brief encounters with Mrs. B. One of these contacts was to show Mrs. B. a video tape of Walter expressing that he didn’t love his mother and wanted his relationship with her terminated. Mr. Facey through an emotional appeal attempted to pressure Mrs. B. into voluntarily relinquishing the child. Her response he characterized as narcissistic. Mrs. Ferrugia witnessed this session and described Facey’s questioning as inappropriate, because Mrs. B. was so overwhelmed with intense feelings from this traumatic experience. Mr. Facey admitted his contacts were so limited with Mrs. B. he couldn’t diagnose her.

The opinion of Dr. Goates appeared to be based primarily on a second video tape of Walter and Mrs. B. He interpreted the mother’s appeal to Walter as made on a basis of guilt and her emotional need for him. The doctor was of the opinion Walter did not have the capacity to meet his mother’s emotional needs and wanted the relationship terminated.

Dr. Gill, who was employed to do a psychiatric evaluation of Mrs. B. did not find her to have narcissistic characteristics. He testified Mrs. B.’s resistance to termination indicated she had enough self-esteem and enough self-pride to fight for what she believed was right, viz., a parent should have an on-going relationship with his child. He described Mrs. B. as highly motivated concerning Walter.

Dr. Gill recommended the relationship not be terminated, but should be reestablished and strengthened. He explained Mrs. B. was emotionally stable and a loving, caring parent. She was able to parent adequately, and a relationship with Walter was important to her. He believed Mrs. B. should visit with Walter on a regular basis. He was unable to give his expert opinion concerning Walter, because the foster parents had cancelled the appointment to interview Walter. This fact points up one of the major inadequacies of the instant record; the experts with knowledge of Walter’s condition had never examined the mother. The expert who had evaluated the mother was prevented by the foster parents (upon advice of an agent of the state) from contacting Walter.

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Bluebook (online)
577 P.2d 119, 1978 Utah LEXIS 1266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-walter-b-utah-1978.