State in Interest of Jlw

900 P.2d 543, 270 Utah Adv. Rep. 3, 1995 Utah App. LEXIS 75, 1995 WL 456099

• Court: Court of Appeals of Utah
• Decided: July 27, 1995
• Docket: 940164-CA
• Status: Published

Opinions

OPINION

ORME, Presiding Judge:

M.J.G. appeals the order of the juvenile court terminating her parental rights in her daughter, J.L.W., with whom she has not had a meaningful relationship in many years. We affirm.

FACTS

M.J.G. is the biological mother of J.L.W., who was bom on August 17,1980. The Utah State Division of Family Services (DFS) assumed temporary guardianship and custody of J.L.W. in August 1984, following an investigation that found J.L.W. had been sexually abused by M.J.G. and unknown third parties over approximately a two-year period.¹ DFS placed J.L.W. in foster care with G.S., who has been able to continue serving as her foster mother for the entire term of her DFS custody, which now approaches eleven years’ duration. Between 1984 and 1986, DFS involved M.J.G. in a program of counseling and treatment plans, although early assistance efforts were hampered by M.J.G.’s frequent moves. After this period of instability, however, M.J.G. complied with a 1985 treatment plan and participated in counseling.

On April 24, 1986, J.L.W.’s guardian ad litem filed a petition to terminate M.J.G.’s parental rights.² Following an evidentiary hearing on the petition some months later, the juvenile court entered its ruling on March 6, 1987.³ The court concluded there was clear and convincing evidence of sexual abuse, but declined to terminate M.J.G.’s rights because of her attempts to put her life in order and comply with DFS treatment plans.⁴ The court ordered continuation of temporary DFS custody, continued foster placement in G.S.’s home, and a treatment plan designed to reunite mother and child “at such time as the mother is ready and the child is able to cope with such reuniting without the fear of new trauma.” M.J.G. participated in sexual abuse counseling for approximately two years thereafter, and complied with subsequent treatment plans.

Between August 1987 and August 1988, the juvenile court reviewed the case every few months. In January 1988, the court heard testimony that past visitations with M.J.G. had a detrimental effect upon J.L.W. The court modified the visitation schedule, with the proviso that it would terminate visitation if J.L.W. exhibited further trauma from contact with her mother. Following testimony by therapists on the continuing effects of the visits upon J.L.W., the court suspended all visitation in May, pending further review. At its August 1988 review, the court awarded guardianship to G.S. and ordered that visitation by M.J.G. could only be resumed at J.L.W.’s request.⁵

The court reviewed the case eight times between August 1989 and May 1993. At the May 1993 review, the court ordered a psychological evaluation of J.L.W. to assess the effect of prior visitation with M.J.G. and evaluate her probable response to future visitation. Dr. Kimberly Walsh of the McKay-Dee Institute for Behavioral Medicine performed an evaluation the following August, finding, inter alia, that J.L.W.

is a very fragile individual. Although she is stabilized now, she appears to have tremendous issues of unresolved anger, sadness, and an underlying thought disorder. Were she to be forced to resume contact with her biological mother, this fragile sense of psychological equilibrium would be disrupted, and there would likely be a return to the previous pattern of regression and destabilization that occurred when she previously had contacts with her biological family.

The State filed a second petition to terminate M.J.G.’s parental rights on November 2, 1993, at which time J.L.W., who had first been placed in foster care at age four, was thirteen years old. The juvenile court held a trial on January 13, 1994, and issued its memorandum decision on February 22.⁶ The court ordered termination of M.J.G.’s parental rights and directed DFS to “proceed with a permanent plan in the best interest of this child.” It is contemplated that such a plan will have, as a primary ingredient, J.L.W.’s adoption by her foster mother of eleven years.

M.J.G. appeals from this order.

ISSUES

This case presents two issues for our review: (1) whether the State has a duty, prior to terminating parental rights, to offer remedial or rehabilitative services to parents who have sexually abused their children; and (2) whether the rule is different due to the passage of time and/or any failures or oversights on the part of the State.

STATE’S DUTY

M.J.G. contends that the State, prior to terminating her rights, was obligated to provide her with reasonable assistance in correcting the cause of her parental unfitness.

First, despite M.J.G.’s claim that inconsistency pervades the existing law pertaining to the State’s duty to assist problem parents, the law in this area is very clear: The State owes no duty to offer rehabilitative services to parents in cases of obvious physical abuse, neglect, or abandonment.⁷ See J.C.O. v. Anderson, 734 P.2d 458, 463 (Utah 1987); State ex rel. W.D., III v. W.M., 856 P.2d 363, 368 (Utah App.1993); State ex rel. P.H. v. Harrison, 783 P.2d 565, 570-71 (Utah App.1989); State ex rel. J.R.T. v. Timperly, 750 P.2d 1234, 1237 (Utah App.1988); State ex rel. M.A.V. v. Vargas, 736 P.2d 1031, 1034 (Utah App.1987). The duty to notify the parent of his or her deficiencies and offer assistance arises only in a narrow range of cases involving subtle forms of neglect or abuse, i.e., patterns of unintended behavior that create an inadequate environment for the child, such as by interfering -with the child’s education or social development. Anderson, 734 P.2d at 463; State v. Lance, 23 Utah 2d 407, 413, 464 P.2d 395, 399 (1970).⁸

Moreover, even in the narrow range of subtle abuse cases where a duty to help may arise, there is no duty to offer rehabilitative services in those cases where such services would be futile or could expose a child to harm. State ex rel. W.D., III, 856 P.2d at 368; Harrison, 783 P.2d at 571. This exception is not, as M.L.G. maintains, inconsistent with our past opinions on the duty to assist.⁹ Rather, the futility/harm exception acts as a second prong in a two-part test to assess the necessity of rehabilitative assistance in the cases of subtle abuse of the sort discussed in Lance. In other words, even if the abuse involved was of a subtle, psychological nature rather than physical, there is no duty to offer rehabilitative services if such assistance is not likely to correct the situation or if innocent children would continue to be exposed to harm while the parent attempts to rehabilitate.

In the instant case, there is extensive, reliable testimony documenting a pattern of sexual abuse extending over a period of approximately two years, inflicted by M.J.G. and unidentified third parties, during J.L.W.’s early childhood. Such a prolonged pattern of egregious physical abuse is precisely the type of conduct for which the State has no duty to offer rehabilitative services.¹⁰ M.J.G. did receive counseling and assistance after DFS assumed custody of J.L.W. in 1984, and received additional counseling after the court denied the first termination petition in 1987. Whatever services M.J.G. has received have been gratuitously provided by the State. The fact that the State has failed to follow up with additional services in the last five or six years, or might have offered better or more consistent services in the early going, is of no legal significance whatsoever.

ESTOPPEL

M.J.G. contends that even if the State initially lacked any duty to offer assistance in this case, the fact that the State nonetheless initiated such assistance and then failed to offer further assistance or attempt to reunite the family within the past seven years, estops the State from terminating her rights without now offering meaningful assistance.

Ordinarily, a party wishing to raise a claim of estoppel must prove three elements: (1) that the other party made claims inconsistent with earlier actions or statements; (2) that the complaining party reasonably relied on the other party’s prior actions or statements; and (8) as a result, the complaining party was harmed by the other party’s later inconsistent claims. United Park City Mines Co. v. Greater Park City Co., 870 P.2d 880, 891 (Utah 1993). See Warren v. Provo City Corp., 838 P.2d 1125, 1130 n. 16 (Utah 1992).

In the instant ease, the court’s ultimate termination of M.J.G.’s parental rights was not inconsistent with its prior claims or statements. Although the juvenile court did not terminate her rights in 1987 pursuant to the first termination petition, it also did not promise that reunification of the family was imminent or even probable. On the contrary, the court found

that a reuniting of the child with the parent at the present time and in the foreseeable future would be difficult, that any establishment of any visitation should only commence when the child’s maturity level is such that the child could cope with said visitation and the commencement of the reuniting with the mother.

Admittedly, the State allowed an extraordinarily long time to pass before filing the second petition in 1993, but such delay is not inconsistent with the court’s 1987 decision denying termination in the hope that time and maturity would cure J.L.W.’s trauma visa-vis any relationship with M.J.G.¹¹

Perhaps more importantly, it is inappropriate to consider application of so-called equitable doctrines or those which promote mere judicial efficiency at the expense of a child’s welfare.¹² It is extremely unfortunate that the State has allowed this case to linger for eleven years.¹³ However, the State’s ill-advised actions cannot preclude the inevitable disposition of this case — a disposition that will allow J.L.W. to escape the legal limbo she has been in for essentially her entire life. “At some reasonable point in time, for the sake of the children, the adults who are in control ... must say, ‘Enough!’ ” State ex rel. P.H. v. Harrison, 783 P.2d 565, 573 (Utah App.1989) (Garff, J., concurring).

CONCLUSION

Because of the nature of the abuse involved, the State had no duty to offer rehabilitative assistance to M.J.G. prior to terminating her parental rights. Any assistance M.J.G. did receive was gratuitously offered by the State and cannot be relied upon by M.J.G. to enhance her legal position at J.L.W.’s expense. Further, the extended period of time between the State’s active efforts to reunify the family and the final phase of the termination proceedings does not create additional obligations upon the State regarding M.J.G. Accordingly, the juvenile court’s decision to terminate M.J.G.’s parental rights was not erroneous and is therefore affirmed.

1 . For reasons not explained in the record before us, criminal charges were never brought against M.J.G. despite the seriousness of her offense.

2 . The petition also sought to terminate the parental rights of J.L.W.'s father, L.W., who is not a party to this appeal. After he failed to appear at the petition hearing, the juvenile court terminated his rights by default.

3 . To illustrate the unacceptable delay in bringing J.L.W.’s status to a final conclusion, we note that it was in March of 1987 that this court, then recently established, heard its first oral arguments.

4 . In conjunction with the court's decision not to terminate M.J.G.’s rights, it made the following pertinent conclusions of law:

4. [The] interests of the parent must be gauged by attempts to better oneself by therapy, in pursuing therapeutic goals and the social changes brought about by the parent in attempting to put herself and her life in order to have the child returned to her.

5. That since the acts of the abuse were last detected as late as May of 1984, the mother has stabilized herself and has fit properly into a scheme of therapy as supervised by the Division of Family Services and is progressing well within this plan.

6. That the reuniting of the child and the parent may be years away even if this progress is continued. The mother will have to accept the reality that the child is not willing to return to instability and abuse and such an environment would most likely destroy the child, even though the environment has improved substantially for the mother.

5 . G.S. testified that J.L.W. had been admitted to Primary Children’s Medical Center in June or July of 1988 to determine her emotional state regarding visitation with her mother. On that occasion, she had her last visit with M.J.G.

6 . The juvenile court entered detailed factual findings, including the following:

12. That the mother loves [J.L.W.] but the court finds she is rejecting the continual evaluations of the child's fragile mental condition, which condition has stabilized but not progressed sufficiently in the last years. She does not understand her daughter’s desperate need not to have any contact with her....

13. The court further finds that the mother has struggled and tried to help herself and keep up her desires to have the child returned to her. This desire has been demonstrated by her concern over her child and her own voluntary submission to counseling, in an attempt to try and understand her own dilemma.

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15. That the mother is unablef,] together with therapists, social workers, and the foster parent[,] to overcome or remedy the results of the child’s abuse. The care givers to this child have been[,] as the motherf,] incompetent in their own actionsf] to remedy the reasons for her placement away from the parent. Time, therapy and challenges to change have been attempted over this long period of time and nothing has succeeded.

The court concluded, in part,

that there is no likelihood in the foreseeable future for the child to beneficially recuperate from the trauma that brought about her placement in foster care.... [T]he motherf,] although meaning well[,j does not have the ability to remedy the resulting circumstances of a long ago abuse.

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3. The termination of the parent[’]s rights are not to be put off with the wishful hope that things will soon change. They will not change and may never change....

7 . The concurring opinion suggests that the focus should be on the destruction of the parent-child relationship as the determinative factor relieving the State of its duly to assist. Such analysis. while intellectually intriguing, is not, as the opinion recognizes, an established component of the doctrine announced in prior cases and binding upon us under the doctrine of stare decisis. See, e.g., J.C.O. v. Anderson, 734 P.2d 458, 463 (Utah 1987) (holding that any requirement to notify parents of deficiencies does not apply to children "physically endangered by abuse or neglect”; nothing said about separate focus on impact on parent-child relationship); State ex rel. J.R.T. v. Timperly, 750 P.2d 1234, 1237 (Utah App.1988) ("in cases involving circumstances over which the parent has control, such as abandonment or physical abuse, the state does not have a comparable duty to assist”; no discussion of separate requirement that parent-child relationship be affected); State ex ret M.A.V. v. Vargas, 736 P.2d 1031, 1034 (Utah App.1987) ("the Lance requirement of particularized notice and efforts at ‘remedial action’ prior to commencement of termination proceedings applies only to more exotic forms of abuse or neglect and certainly not to a consistent pattern of obvious physical abuse and neglect”; no suggestion that pattern of abuse be shown to have any particular effect on parent-child relationship); State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993) (stare decisis has equal application to decisions rendered by different panels of multi-panel appellate court). See also infra note 8.

The concurring opinion points out that the recently enacted Child Welfare Reform Act has no applicability to this case, and suggests that the outcome might be different if it did. Even if the Act were applicable, it is far from clear that the State would have a duty to provide rehabilitative services in cases of severe, prolonged physical abuse or neglect. For example, Utah Code Ann. § 78-3a-311 states, in part, that

the Legislature finds that a parent's interest in receiving reunification services is limited. The court may, under any circumstances, determine that efforts to reunify a child with his family are not reasonable, based on the individual circumstances, and that reunification services need not be provided. In any case, reunification services need not be provided to a parent if the court finds, by clear and convincing evidence, that any of the following circumstances exist:

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(e) the minor is under the age of five and has suffered severe abuse by the parent or by any person known by the parent, if the parent knew or reasonably should have known that the person was abusing the minor;

(f) the minor has been adjudicated an abused child as a result of severe abuse by the parent, and the court finds that it would not benefit the child to pursue reunification services with the offending parent.

Utah Code Ann. § 78-3a-311(3)(e), (f) (Supp. 1994) (emphasis added). See also Utah Code Ann. § 62A-4a-203(3) (Supp. 1994) (services designed to help family remain intact not reasonable, and therefore not required, if child's welfare endangered in home and placement in other care is only alternative); id. § 62A-4a-202(l)(a) (preventative services must be provided, but only "if the child's welfare is not immediately endangered and ... it is possible and appropriate").

8 . The Utah Supreme Court later declared that the statement defining this duly, as it appeared in State v. Lance, 23 Utah 2d 407, 413, 464 P.2d 395, 399 (1970), was dicta and has declined to expand its applicability to any more obvious forms of abuse or neglect. J.C.O. v. Anderson, 734 P.2d 458, 463 (Utah 1987).

Without knowing the Court's rationale in Lance, one may speculate that it reasoned subtle psychological abuse may be relatively easy to correct through education and training. It may also have thought that the more subtle forms of abuse or neglect are inadvertent or the product of poor parenting skills, perpetrated by well-meaning but ignorant parents, who would be anxious to change their ways if given a little guidance or support. In contrast, once a child has been subjected to physical abuse, remedial assistance to the parent responsible for the conduct is less likely to undo the harm to the child. Such abuse is also more culpable on the part of the parent and more likely to be the product of a violent or sadistic nature than of the mere lack of parenting skills.

Additionally, in identifying the subtle kind of abuse that triggers the State's duty to lend assistance to the parent, the focus is not on whether subtle psychological factors prompted the abuse, but instead on the subtle nature of the abuse itself. See State ex rel. P.H. v. Harrison, 783 P.2d 565, 571 (Utah App.1989). M.J.G. undisputedly had a traumatic childhood which may well have induced her aberrant behavior toward her own daughter, but such facts do not change the obvious nature of the abuse inflicted upon J.L.W.

9 . M.J.G. mistakenly attempts to place all cases involving parental “unfitness” under the purview of the State’s duty to assist. See State ex rel. J.R.T. v. Timperly, 750 P.2d 1234, 1238 (Utah 1988) (stating duty to assist is triggered if defendant’s rights terminated based on unfitness rather than abandonment). Of course, unfitness, by itself, does not trigger the State’s duty to notify parents of their deficiencies and offer remedial services. Egregious physical abuse is a result of one form of parental unfitness. Only unfitness in the context of the limited, subtle abuse specified in Lance implicates the State's duty to help.

Additionally, M.J.G. misconstrues the court's occasional focus on "control" as a means to define situations in which the State has no duty to offer assistance. See Timperly, 750 P.2d at 1237-38. Simply put, physical abuse, obvious neglect, and abandonment require the parent to act in an affirmative maimer — to engage in conduct over which he or she has control. Whether or not, as a psycho-behavioral matter, the parent is actually able to exercise control over these actions is not the question. In contrast, the subtle abuse discussed in Lance occurs in situations over which parents have no control. For example, the mother in Lance was impoverished, unable to stay in one place, and thus ended up moving very frequently. 464 P.2d at 396-97. As a result, her children suffered emotional distress from the ensuing instability, although the mother kept them clean and otherwise well cared-for. Id. at 397. Her housing situation was out of her control, but could be remedied with assistance in proemring subsidized housing or comparable programs. Similarly, in In re Walter B., 577 P.2d 119 (Utah 1978), the mother did not have the existing ability to adequately deal with her hyperactive son, a situation not in her control but relatively easy to remedy through training. Id. at 121.

10 . Because the abuse in this case was of an obvious, physical nature, it is not necessary to weigh the futility of providing additional services. Nonetheless, the state of J.L.W.’s mental and emotional health, the lack of a mother-child bond, and the simple fact that J.L.W. is now almost fifteen, all make clear that farther rehabilitative services for M.J.G. would have no positive effect on the unfortunate state of their relationship.

11 . Moreover, the guardian ad litem has joined in the petition. Even if the State were somehow estopped, neither the guardian ad litem, nor the child, nor the child's foster motherAegal guardian could be estopped from asserting their claims because of inconsistency on the State’s part. See Dansie v. Anderson Lumber Co., 878 P.2d 1155, 1159 n. 10 (Utah App.1994).

12 . This court has previously held that the doctrine of res judicata should not be applied to cases which involve the best interests of children. See Larson v. Larson, 888 P.2d 719, 722 n. 2 (Utah App.1994); In re J.J.T., 877 P.2d 161, 163-65 (Utah App.1994).

13 . The Legislature has recognized the need to adjudicate such cases with reasonable dispatch by its passage of the Child Welfare Reform Act, Utah Code Ann. §§ 62A-4a-101 to -709 (Supp.1994), and related statutes, id. §§ 78-3a-301 to -315, -401 to -414. Under this new legislation, there are specific time lines established to prevent a child from languishing indefinitely in foster care. See, e.g., id. § 78-3a-312(l) (requiring dispositional review hearing no more than 18 months after child placed in out-of-home care); id. § 62A-4a-205(6)(b) (requiring treatment plans to have specific time frames for compliance).