L.G. v. State , 2015 UT 41 ( 2015 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2015 UT 41IN THE
S UPREME C OURT OF THE S TATE OF U TAH
STATE OF UTAH , in the interest of A.T. and J.B.J.,
persons under eighteen years of age,
Petitioner.
L.G.,
Respondent,
v.
STATE OF UTAH ,
Respondent.
No. 20130863
Filed March 27, 2015
On Certiorari to the Utah Court of Appeals
Fourth Juvenile, Provo Dep’t
The Honorable Suchada P. Buzzelle
No. 20120329
Attorneys:
Martin N. Olsen, Midvale, Dixie A. Jackson, Salt Lake City,
for petitioner Guardian ad Litem
D. Grant Dickinson, Provo, for respondent L.G.
Sean D. Reyes, Att’y Gen., John M. Peterson, Asst. Att’y Gen.,
Salt Lake City, for respondent State of Utah
JUSTICE PARRISH authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM , and JUDGE MAUGHAN joined.
JUSTICE NEHRING did not participate herein;
DISTRICT JUDGE PAUL G. MAUGHAN sat.
JUSTICE DENO G. HIMONAS became a member of the Court on
February 13, 2015, after oral argument in this matter, and
accordingly did not participate.
STATE ex rel. A.T.
Opinion of the Court
JUSTICE PARRISH , opinion of the Court:
INTRODUCTION
¶ 1 On certiorari, the Guardian ad Litem challenges the court
of appeals’ holding that a juvenile court is required to order
reasonable reunification services to an incarcerated parent unless it
determines on the record that those services would be detrimental
to the child. The Guardian ad Litem asserts that the juvenile court
is required to consider whether reunification services would be
detrimental only when it has established a primary permanency goal
for the child that implicates reunification with the incarcerated
parent. We agree. If a child’s primary permanency goal does not
contemplate reunification with a parent, the court need not order
reunification services.
BACKGROUND
¶ 2 L.G. (Mother) is the biological mother of A.T. and J.B.J.
(Children). J.B. (Father) is the biological father of J.B.J. and has acted
as a stepfather to A.T. In 2011, Mother was convicted of drug
offenses and sentenced to one to fifteen years in the Utah State
Prison. Mother arranged for Father to care for the Children during
her incarceration. However, Father was subsequently arrested for
possession of drugs and drug paraphernalia. The Utah Division of
Child and Family Services (DCFS) removed the Children from
Father’s care and placed them with a foster family.
¶ 3 The State filed a Petition for Custody, which was
adjudicated as to both parents. Following an adjudication of neglect,
the juvenile court held a dispositional hearing. At the hearing, the
juvenile court established a primary permanency goal of reunifying
the Children with Father. Because Father was the custodial parent,
the juvenile court approved a service plan for him that included
reunification services. The court did not, however, order that
reunification services be provided to Mother. Mother was
represented by counsel and did not request services or inclusion in
the primary permanency goal.
¶ 4 Shortly thereafter, Father failed to comply with his case
plan and was incarcerated. DCFS therefore requested that
reunification services to Father be terminated. Following a
permanency hearing, the juvenile court established a primary
permanency goal of adoption and terminated Father’s services.
Mother did not object to the change in the primary permanency goal.
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¶ 5 During the termination hearing, Mother argued that her
parental rights could not be terminated because DCFS had not
provided her reasonable reunification services. The juvenile court
rejected her argument, noting that Father was the parent entitled to
reunification services because he was the custodial parent. The
juvenile court also found that both Mother and Father were “wholly
unfit and unable to care for the children,” and that there was no
likelihood that either parent would be able to begin caring for the
Children in a reasonable time frame. The juvenile court then
terminated both Mother’s and Father’s parental rights.
¶ 6 Mother appealed the termination of her parental rights.
The court of appeals reversed the denial of reasonable reunification
services to Mother and the termination of her parental rights and
held that Utah Code section 78A-6-312(24)(a) “instructs the court to
make and explain a judicial determination about whether services
would be detrimental to the minor after consideration of the factors”
enumerated in subsection (24)(b). L.G. v. State (State ex rel. A.T.),
2013 UT App 184, ¶¶ 14, 16, 307 P.3d 672. The court of appeals did
not address Mother’s additional argument that the juvenile court
erred in failing to order an independent investigation into
allegations of child abuse by the Children’s foster parents. Id. ¶ 7
n.3. The Guardian ad Litem appeals. We have jurisdiction pursuant
to section 78A-3-102(3)(a) of the Utah Code.
STANDARD OF REVIEW
¶ 7 On certiorari, we review the decision of the court of
appeals for correctness. Harold Selman, Inc. v. Box Elder Cnty., 2011
UT 18, ¶ 15, 251 P.3d 804. We review questions of statutory
construction for correctness. Anderson v. United Parcel Serv., 2004 UT
57, ¶ 7, 96 P.3d 903.
ANALYSIS
I. MOTHER’S ARGUMENT WAS CONSIDERED BY THE
JUVENILE COURT
¶ 8 The Guardian ad Litem first argues that the court of
appeals erred by failing to address whether Mother preserved her
claim that the juvenile court did not comply with the requirements
of section 78A-6-312(24) of the Utah Code. Specifically, it asserts that
Mother’s request for reunification services was untimely because she
did not raise it at the dispositional hearing when the primary
permanency goal was established. We are not persuaded and
conclude that Mother’s argument concerning reunification services
was sufficiently preserved.
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STATE ex rel. A.T.
Opinion of the Court
¶ 9 “We generally will not consider an issue unless it has been
preserved for appeal.” Patterson v. Patterson, 2011 UT 68, ¶ 12, 266
P.3d 828. To be preserved for appeal, the issue must have been
“presented to the trial court in such a way that the trial court has an
opportunity to rule on [it].” J.M.W. v. T.I.Z. (In re Adoption of Baby
E.Z.), 2011 UT 38, ¶ 25, 266 P.3d 702 (internal quotation marks
omitted).
¶ 10 Mother presented her argument to the juvenile court and
the juvenile court ruled on it. The juvenile court noted, “[Mother]
argued at trial that her parental rights should not be terminated
because DCFS has failed to make reasonable efforts to provide her
reunification services.” The juvenile court reasoned that Mother’s
argument failed because the permanency goal set by the court was
for reunification with Father, not her, and therefore he was the
parent entitled to reasonable services from DCFS.
¶ 11 The Guardian ad Litem contends that Mother raised the
issue too late because a parent is required to bring a request for
reasonable reunification services at the dispositional hearing when
the primary permanency goal is established. The Guardian ad Litem
also argues that allowing Mother to raise her claim after the
dispositional hearing creates an absurd result by depriving “the
juvenile court of an opportunity to rule on the issue” and depriving
parents of “precious time to engage in services.”
¶ 12 We disagree and conclude that Mother’s request for
reunification services was brought in a timely manner. The
Guardian ad Litem’s argument is inconsistent with what the statute
envisions and what our precedent requires. Under Utah Code
section 78A-6-507(3)(a), during a termination hearing the juvenile
court is required to find that DCFS “made reasonable efforts to
provide [reunification] services before the court may terminate the
parent’s rights.” Thus, the statute provides that a parent may raise
DCFS’ failure to provide reasonable reunification services at the
termination hearing itself.
¶ 13 Similarly, under our case law, Mother was free to object to
the lack of reunification services at the termination hearing because
the earlier dispositional hearing was neither final nor appealable.
See A.O. v. State (State ex rel. K.F.), 2009 UT 4, ¶ 37, 201 P.3d 985. A
dispositional or permanency hearing “does not always result in an
order that affects the permanent status of the child.” C.M.F. v. State
(State ex rel. A.F.), 2007 UT 69, ¶ 6, 167 P.3d 1070. In many cases,
these hearings “result in orders that merely set a direction for the
remainder of the proceedings,” id., and the parties are still able to
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regain custody “by taking steps to show fitness and petitioning the
court for custody at any time prior to termination of [their] parental
rights,” id. ¶ 8. Thus, Mother could have petitioned the court for
reunification services up until termination of her parental rights.1
We therefore conclude that Mother’s request for reunification
services was timely and was accordingly preserved for appeal. We
now turn to the Guardian ad Litem’s argument that Mother was not
entitled to reunification services.
II. REUNIFICATION SERVICES FOR AN INCARCERATED
PARENT NEED ONLY BE CONSIDERED WHEN
REUNIFICATION WITH THAT PARENT IS THE JUVENILE
COURT’S PERMANENCY GOAL
¶ 14 Mother argues that the juvenile court was required to
provide reasonable reunification services to her before it could
terminate her parental rights. In so arguing, she relies on Utah Code
section 78A-6-312(24)(a), which provides that in the event a parent
is incarcerated, the juvenile court “shall order reasonable services
unless it determines that those services would be detrimental to the
minor.”2 Mother contends the juvenile court erred when it withheld
1
The Guardian ad Litem may be correct that the dispositional
hearing is the most prudent and effective time for a parent to request
reunification services. But our preservation rule does not require
that the request be made at the optimal time. However, as Part II
demonstrates, when a litigant preserves an argument may affect what
she may argue on appeal. For instance, here, Mother’s failure to
request reunification services at the dispositional hearing does not
prevent us from considering her appeal on preservation grounds.
But her failure to request a primary permanency goal involving
reunification nonetheless affects our disposition of her appeal. As
we conclude in Part II, because Mother never sought a primary
permanency goal that included reunification with the Children, the
juvenile court was not required to order reunification services.
Thus, though Mother’s argument was preserved, her failure to
request inclusion in the primary permanency goal ultimately affects
the merits of her appeal.
2
We granted certiorari on the question of whether the juvenile
court was required to make an explicit determination of detriment
on the record. In view of our holding that reunification services
were not implicated under the facts presented here, we need not
address the question of whether such a determination, where
(continued...)
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STATE ex rel. A.T.
Opinion of the Court
reasonable services because of her incarceration without making a
specific finding of detriment. We disagree.
¶ 15 A juvenile court must order reasonable services for an
incarcerated parent only when reunification is consistent with the
primary permanency goal established by the court. When the
juvenile court has established a permanency goal that envisions
reunification with an incarcerated parent, it “shall order reasonable
services unless it determines that those services would be
detrimental to the minor.” UTAH CODE § 78A-6-312(24)(a).
¶ 16 With any question of statutory interpretation, our primary
goal is to effectuate the intent of the Legislature. State v. Watkins,
2013 UT 28, ¶ 18, 309 P.3d 209. The best evidence of the Legislature’s
intent is the statute’s plain language. Marion Energy, Inc. v. KFJ
Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863. “[W]e read the plain
language of the statute as a whole, and interpret its provisions in
harmony with other statutes in the same chapter and related
chapters.” State v. Barrett, 2005 UT 88, ¶ 29, 127 P.3d 682 (internal
quotation marks omitted).
¶ 17 Our holding that reunification services need only be
considered when they are implicated by the primary permanency
goal for a child is consistent with a harmonious reading of section
312. Under section 312, “[w]henever the court orders continued
removal” of the child, “the court shall first establish a permanency
goal for the minor.” UTAH CODE § 78A-6-312(2). The court is then
required to “determine whether, in view of the primary permanency
goal, reunification services are appropriate.” Id. § 78A-6-312(2)(b).
The statute also states that if the parent is incarcerated or
institutionalized, “the court shall order reasonable services unless it
determines that those services would be detrimental to the minor.”
Id. § 78A-6-312(24)(a). Thus, the statutory framework begins with
the establishment of a primary permanency goal. And reunification
services are considered in relation to that goal. Because reunification
services are linked to the permanency goal and not independent of
it, the requirement for providing such services must be construed in
light of that goal. Thus, if a parent is incarcerated and the primary
permanency goal does not envision reunification, then the
requirements of subsection (24) do not come into play. It is only
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(...continued)
required, need be made explicitly on the record or merely supported
by it.
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when a primary permanency goal implicates an incarcerated parent
that subsection (24) apply.
¶ 18 Nothing in the statutory language suggests that the
juvenile court must order reunification services to incarcerated
parents regardless of the primary permanency goal. Nor does the
statutory language indicate that the juvenile court must invert the
usual decision process and order services to an incarcerated parent
before setting a primary permanency goal.
¶ 19 Mother’s proposed construction of subsection (24) would
require the juvenile court to order reunification services to an
incarcerated parent, absent a finding of detriment, regardless of the
primary permanency goal. But such an interpretation would
privilege the class of incarcerated parents over nonincarcerated
parents whose eligibility for such services is dependent upon a
primary permanency goal that contemplates reunification.
Moreover, the factors listed in section 24(b) need only be considered
when, “in view of the primary permanency goal, reunification
services are appropriate for the minor and the minor’s family.” Id.§ 78A-6-312(2)(b). For example, in a situation where a child’s
primary permanency goal is adoption, it would be futile for the
juvenile court to consider “the degree of parent-child bonding,” “the
length of the [parent’s] sentence,” or “the nature of the treatment.”
Id. § 78A-6-312(24)(b). Similarly, when adoption is a child’s primary
permanency goal, many of the statutory factors, such as “the degree
of detriment of the minor if services are not offered” and “the
minor’s attitude toward the implementation of family reunification
services” are rendered moot. Id. In short, the factors enumerated in
subsection 24(b) contemplate a continuing relationship between
parent and child. This is evidence of the Legislature’s intent that
these factors need only be considered when “reunification services
are appropriate for the minor and the minor’s family,” “in view of
the primary permanency goal.” Id. § 78A-6-312(2)(b).
¶ 20 At the dispositional hearing in this case, the juvenile court
set a permanency goal of reunification with Father. Because Mother
was not implicated by that permanency goal, the juvenile court was
not required to consider whether she qualified for reunification
services. The juvenile court understood this. It explained that “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
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STATE ex rel. A.T.
Opinion of the Court
sentence.” And when the primary permanency goal was changed to
adoption, ordering reunification services to either parent would
have been inconsistent with that goal.3
¶ 21 The court of appeals reversed the juvenile court because
the juvenile court failed to make an explicit on-the-record
determination that reunification services with Mother would be
detrimental to the Children. L.G. v. State (State ex rel. A.T.), 2013 UT
App 184, ¶ 15, 307 P.3d 672. But whether such a determination must
be made on the record or simply supported by the record is not
implicated here. In this case, the juvenile court was simply not
required to determine whether reunification services would be
detrimental to the Children because the permanency goal did not
contemplate reunification with Mother. We therefore reverse the
court of appeals.
CONCLUSION
¶ 22 Utah Code section 78A-6-312 directs juvenile courts to
order reasonable reunification services for an incarcerated parent
when the services are consistent with the primary permanency goal
set by the court. Here, the juvenile court established a primary
permanency goal of adoption. It therefore was not required to
provide reunification services to Mother. We reverse the court of
appeals and remand this case to the court of appeals with
instructions that it consider Mother’s additional argument regarding
the allegations of child abuse.
3
Had the Children’s primary permanency goal implicated
reunification with Mother, the juvenile court would have erred had
it withheld reunification services based solely on Mother’s incarcera-
tion without performing the analysis required under Utah Code
section 78A-6-312(24).
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