State in Interest of WS

939 P.2d 196, 1997 WL 282940
Procedural entryThis page is a short order in State in Interest of WS. Read the opinion of the Court — 318 Utah Adv. Rep. 10
Court of Appeals of Utah·Decided May 30, 1997·No. 960477-CA·Published

Opinion

939 P.2d 196 (1997)

STATE of Utah, In the Interest of W.S. and J.S., persons under eighteen years of age.
J.S., Defendant and Appellant,
v.
STATE of Utah, Plaintiff and Appellee.

No. 960477-CA.

Court of Appeals of Utah.

May 30, 1997.

*198 Loren M. Lambert, Richardson, Packard & Lambert, Salt Lake City, for Defendant and Appellant.

Jan Graham, Atty. Gen. and Jeffrey S. Buckner, Asst. Atty. Gen., Salt Lake City, for Plaintiff and Appellee.

Elizabeth M. Knight, Salt Lake City, Guardian Ad Litem.

Before WILKINS, Associate Presiding Judge, and BENCH and JACKSON, JJ.

OPINION

BENCH, Judge:

Appellant J.S. appeals the juvenile court's order that her children W.S. and J.S. remain in the custody of the Division of Child and Family Services (DCFS). We remand for a new dispositional hearing.

BACKGROUND

Appellant is the natural mother and custodial parent of W.S. and J.S. On March 6, 1996, appellant drove into a shopping center parking lot with W.S., then four years old, and J.S., then three years old. Appellant left W.S. and J.S. in the car while she went into a store. While appellant was in the store, W.S. and J.S. found a "Bic-type" cigarette lighter in the car and started the back seat of the car on fire. Smoke was coming from inside the car and the children had their heads hanging out of the front driver side window of the car when two passersby pulled the children out.

An ambulance and fire engine arrived and firefighters extinguished the fire. Officer McLam of the West Jordan Police Department also arrived and told appellant to remain at the scene until he could gather statements from her and other witnesses. The firefighters apparently made a cursory examination of the two children soon after arriving, but because witnesses stated the children may have been breathing in smoke, the firefighters wanted to make a closer examination of the children. One of the firefighters testified that appellant would not let them reexamine the children because she did not have insurance to pay for medical examinations or ambulance services.

Appellant and the children left the scene and began to walk home. Two firefighters caught up with appellant and her children to more closely examine the children. Appellant was upset that the firefighters had pursued her. A firefighter testified that appellant said, "Fine, take them. That's what you want," and started to walk away. One of the firefighters stepped in front of appellant and told her he would not let her leave the children there. When appellant stepped around the firefighter and continued walking, the firefighter grabbed appellant's jacket sleeve to stop her, but let her go after appellant said he was assaulting her.

After appellant left the scene, the firefighter more thoroughly examined the children and determined that they were uninjured. Officer McLam thereafter arrested appellant for failing to obey a lawful order to remain at the scene, and took appellant, W.S., and J.S. to the police station.

At the police station, appellant was booked and released after posting bail. DCFS placed the children into shelter. After a shelter hearing, the court found proof by a preponderance of the evidence that "substantial danger to the physical health and/or safety of the children existed" and that appellant's "actions and behavior were highly inappropriate and neglectful." The court further held that the situation justified removal without providing preplacement services. The court determined that "the mother needed assessment and evaluation for mental stability in that she reacted most inappropriately under the circumstances." The court ordered that the children remain in the temporary legal custody of DCFS pending the adjudication hearing and that DCFS offer the mother services determined to be in her best interests.

At the adjudication hearing, the court made findings of fact similar to those made at the shelter hearing and concluded by clear and convincing evidence that W.S. and J.S. were neglected, that custody should remain with DCFS, and that appellant would continue to be allowed supervised visitation.

*199 Appellant requested that the dispositional hearing be conducted the day after adjudication. Among the documents submitted to the court just prior to disposition was a Predisposition Court Report prepared by a DCFS caseworker. The report recounted the past history of referrals to Child Protective Services (CPS), stated concerns, and made recommendations for disposition to the court.

The court granted a ten-minute recess to allow appellant and her counsel the opportunity to review the report before cross-examining the caseworker who prepared it. The caseworker testified that she had no personal knowledge of the information in her report. The record reflects that in preparing her report, the caseworker relied on CPS referral records and assessments of the children, as well as other secondary sources. During cross-examination, the caseworker admitted that she did not know the names of the CPS investigators upon whose reports she relied. She also did not know who made various substantiated and unsubstantiated referrals, or the specifics of many of the referrals of neglect or abuse.

After cross-examining the caseworker who prepared the report, appellant's counsel asked for another recess to prepare his client to testify and rebut information in the predisposition report. The trial court denied the request for a recess and did not permit appellant to testify. The trial court's disposition ordered DCFS to retain custody of W.S. and J.S. and to establish a service plan. This appeal followed.

ISSUES

Appellant claims the following errors on appeal: (1) there was insufficient evidence to justify continued removal of J.S. and W.S. from appellant's custody; (2) the trial court abused its discretion in permitting only supervised visitation; (3) the trial court erroneously allowed unreliable hearsay at the dispositional hearing; and (4) the trial court abused its discretion by denying appellant's request for time to review the pre-disposition report and by denying appellant the opportunity to be heard at the dispositional hearing.

ANALYSIS

Sufficiency of Evidence

Appellant claims there was insufficient evidence for continued removal of her children from her custody. Appellant essentially argues that one incident of neglect does not warrant deprivation of custody. "The challenge to a factual finding must be conducted in two steps: (1) appellant must first marshal all the evidence that supports the finding, and (2) then demonstrate to us that, despite this evidence, the finding is so lacking in support as to be `against the clear weight of the evidence' and, thus, clearly erroneous." State ex rel. D.M. & N.M., 790 P.2d 562, 567 (Utah.Ct.App.1990) (quoting Doelle v. Bradley, 784 P.2d 1176, 1178 (Utah 1989)).

Appellant has marshaled the evidence, but has not shown that the court's findings (both in the shelter hearing and at adjudication) are against the clear weight of the evidence. The evidence shows that appellant left young children unattended in a car while she went shopping, during which time the children located a lighter and started the inside of the car on fire. In the face of this near tragedy, appellant was uncooperative with paramedics who wanted to check W.S. and J.S. for smoke inhalation.

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State in Interest of WS, 939 P.2d 196, 1997 WL 282940 (Utah Ct. App. 1997).

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