In re K.J. (A.J. v. T.M. and L.M.) , 2013 UT App 237 ( 2013 )

2013 UT App 237_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF K.J., A PERSON UNDER
EIGHTEEN YEARS OF AGE.
A.J.,
Appellant,
v.
T.M. AND L.M.,
Appellees.
Opinion
No. 20111113‐CA
Filed October 3, 2013
Second District Juvenile, Ogden Department
The Honorable Janice L. Frost
No. 1039586
Gary W. Barr, Attorney for Appellant
Steven C. Russell, Attorney for Appellees
Martha Pierce, Guardian ad Litem
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGE CAROLYN B. MCHUGH concurred. JUDGE WILLIAM A.
THORNE JR.1 dissented, with opinion.
CHRISTIANSEN, Judge:
¶1 A.J. (Mother) appeals from the juvenile court’s order
terminating her parental rights with respect to her daughter, K.J.
Mother asserts that the juvenile court erred in determining that the
1. Judge William A. Thorne Jr. participated in and voted on this
case as a regular member of the Utah Court of Appeals. He retired
from the court before this decision issued.
In re K.J.
Juvenile Court Act’s (the Act) reunification timelines precluded
additional reunification efforts and that the juvenile court’s
termination of Mother’s parental rights was against the clear
weight of the evidence. We affirm.
BACKGROUND
¶2 K.J. was born in April 2010 to Mother.2 In July 2010, Mother
moved with her brother, sister‐in‐law, and K.J. to Ogden, Utah.
N.B. (Father) is K.J.’s natural father. At the time of trial, Father had
seen K.J. only one time, had never made visitation arrangements,
had not financially supported K.J., and had never attempted to
assert his parental rights.3
¶3 On July 29, 2010, K.J. was taken by ambulance to an
emergency room due to difficulty breathing and lethargy. X‐rays
revealed four broken ribs, a broken collarbone, and both old and
new indications of chronic bilateral subdural hematomas and
retinal hemorrhaging. K.J. was taken by helicopter to Primary
Children’s Medical Center (PCMC) where additional tests
indicated chronic subdural fluid collection, a more recent subdural
hemorrhage, and healing rib and collarbone fractures. The
examining doctor at PCMC reported that the fractures were
approximately two to three weeks old and that the likely cause of
K.J.’s injuries was inflicted trauma.
¶4 On August 2, the juvenile court signed a warrant ordering
K.J. to be placed in the custody of the Division of Child and Family
2. “We recite the facts in a light most favorable to the juvenile court
findings.” In re S.Y.T., 2011 UT App 407, ¶ 2 n.1, 267 P.3d 930.
3. The juvenile court terminated Father’s parental rights with
respect to K.J. at the same time it terminated Mother’s. Father has
not challenged the termination of his rights and is not a party to
this appeal.
20111113‐CA 2 2013 UT App 237In re K.J.
Services (the Division). On August 12, the juvenile court held a
pretrial hearing on the State’s verified petition to adjudicate K.J. as
abused, neglected, or dependent. Mother declined to admit or deny
the factual allegations in the petition and the juvenile court
therefore deemed the allegations in the petition to be true.4 Based
on these facts, the juvenile court adjudicated K.J. as abused and
neglected and ordered that her custody with the Division be
continued.
¶5 In its September 1, 2010 order adjudicating K.J. as abused
and neglected, the juvenile court ordered Mother to contact the
Office of Recovery Services (ORS) to arrange for and pay child
support and to complete a child and family plan (the Plan) that
required, among other conditions, that Mother maintain stable and
suitable housing and stable employment. The juvenile court
established reunification with Mother as the primary permanency
goal, with adoption as a concurrent permanency goal in the event
that Mother “fail[ed] to meet the goals of a treatment plan or follow
[court] orders.” The court ordered the Division to provide
reunification services to Mother until the time set for the
permanency hearing. K.J. was thereafter placed in foster care with
appellees T.M. and L.M. (Foster Parents). A permanency hearing
was set for January 20, 2011, which was subsequently rescheduled
for March 21, 2011. During this time, Mother completed most of the
goals outlined in the Plan, but she was unable to obtain stable
employment or suitable housing. Mother also failed to comply with
the juvenile court’s order to contact ORS to arrange for and pay
child support.
¶6 At the March 21, 2011 hearing, the State submitted a verified
petition to terminate Mother’s and Father’s parental rights with
4. Rule 34(e) of the Utah Rules of Juvenile Procedure provides, “A
respondent may answer by admitting or denying the specific
allegations of the petition, or by declining to admit or deny the
allegations. Allegations not specifically denied by a respondent
shall be deemed true.” Utah R. Juv. P. 34(e).
20111113‐CA 3 2013 UT App 237In re K.J.
respect to K.J. The State’s request to terminate Mother’s rights was
based principally on Mother’s inability or failure to provide for
K.J.’s needs, including Mother’s failure to comply with the
employment and housing requirements of the Plan and her failure
to comply with the juvenile court’s order to contact ORS and
arrange for child support. The parties then investigated placing K.J.
with her maternal grandmother in Mexico but they were ultimately
unsuccessful in making the necessary arrangements. On May 26,
2011, Foster Parents filed a third‐party petition for termination of
Mother’s and Father’s parental rights with respect to K.J. In August
2011, the State withdrew its termination petition and trial on Foster
Parents’ petition was set for November 2011.
¶7 Following the termination trial on November 3, 2011, the
juvenile court entered findings of fact and conclusions of law and
ordered Mother’s and Father’s parental rights with respect to K.J.
terminated. Mother appeals the termination of her parental rights.
ISSUES AND STANDARDS OF REVIEW
¶8 Mother first claims that the juvenile court erred in
determining that the timelines established by the Act precluded
additional time for reunification of K.J. with Mother. We review the
juvenile court’s interpretation of the Act for correctness. In re S.F.,
2012 UT App 10, ¶ 24, 268 P.3d 831.
¶9 Mother also asserts that the juvenile court’s termination of
her parental rights is against the clear weight of the evidence. We
review a juvenile court’s determinations that grounds for
termination exist and that termination is in the best interest of the
child “for clear error, reversing only if the result is ‘against the clear
weight of the evidence or leave[s] the appellate court with a firm
and definite conviction that a mistake has been made.’” In re A.K.,
2012 UT App 232, ¶ 14, 285 P.3d 772 (alteration in original)
(quoting In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435). “When a
foundation for the [juvenile] court’s decision exists in the evidence,
20111113‐CA 4 2013 UT App 237In re K.J.
an appellate court may not engage in a reweighing of the
evidence.” In re B.R., 2007 UT 82, ¶ 12.
ANALYSIS
I. The Juvenile Court Did Not Err In Determining that the
Juvenile Court Act Did Not Provide Additional Time for
Reunification.
¶10 First, Mother argues that the Act’s timelines governing the
time for decision on a termination petition and limiting the
duration of reunification services are applicable only when
termination proceedings are initiated by the Division and not when
a third party files a termination petition. She thus claims that the
juvenile court erred by applying the timelines set forth in the Act,
specifically Utah Code sections 78A‐6‐312 and ‐314, to the
proceedings before it. Next, Mother argues that even if the
timelines are applicable to a proceeding involving a private
termination petition, a termination petition need not be adjudicated
until eighteen months after the child was removed from the home,
in accordance with subsection ‐314(13)(c), and the juvenile court
therefore erred in its conclusion that no time for reunification
remained.
A. The Act’s Timelines Were Applicable in This Proceeding.
¶11 Mother argues that because Utah Code section 78A‐6‐510
identifies specific considerations the juvenile court must make
when the Division has instituted proceedings to facilitate the
adoption of a child by foster parents, the Act’s termination and
reunification timelines are not applicable in a termination
proceeding initiated by a third party. We disagree.
¶12 “When interpreting a statute . . . [w]e employ plain language
analysis to carry out the legislative purpose of the statute as
expressed through the enacted text.” See Richards v. Brown, 2012 UT
14, ¶ 23, 274 P.3d 911. “Where a statute’s language is unambiguous
20111113‐CA 5 2013 UT App 237In re K.J.
and provides a workable result, we need not resort to other
interpretive tools, and our analysis ends.” Id.¶13 First, the plain language of the Act does not restrict the
timeline for decision on a termination petition only to petitions
filed by the Division. The Act provides, “Any interested party,
including a foster parent, may file a petition for termination of the
parent‐child relationship with regard to a child.” Utah Code Ann.
§ 78A‐6‐504 (LexisNexis 2012).5 “A decision on a petition for
termination of parental rights shall be made within 18 months from
the day on which the minor is removed from the minor’s home.”
Id. § 78A‐6‐314(13)(c). Subsection ‐314(13)(c) makes no distinction
between petitions brought by the Division and those brought by a
third party; it unambiguously applies to both. Mother argues that
a reference to Division‐instituted proceedings in a different section
of the Act, unrelated to these timelines, compels the result that the
given timelines are applicable only to Division‐filed termination
petitions. This interpretation is neither “obvious,” as Mother
asserts, nor consistent with the plain language of the statute.
¶14 Second, the shorter timelines imposed by the Act on the
underlying reunification proceedings are applicable when a private
termination petition has been filed because the reunification
timelines operate independently of the termination proceeding.6
“The time period for reunification services may not exceed 12
5. The Act has been amended since the time that K.J. was placed in
the Division’s custody. However, except as otherwise noted, see
infra note 7, the provisions in effect at the relevant time do not
differ in any way material to our analysis from the provisions now
in effect, and we cite the current version of the Act as a convenience
to the reader. See State v. Phillips, 2012 UT App 286, ¶ 1 n.1, 288
P.3d 310.
6. However, a successful termination petition will immediately put
an end to any ongoing reunification proceedings. See In re S.F., 2012
UT App 10, ¶ 53, 268 P.3d 831.
20111113‐CA 6 2013 UT App 237In re K.J.
months from the date that the minor was initially removed from
the minor’s home, unless the time period is extended under
Subsection 78A‐6‐314(8).” Id. § 78A‐6‐312(13)(a) (Supp. 2013). “If
reunification services are ordered, a permanency hearing shall be
conducted by the court . . . at the expiration of the time period for
reunification services.” Id. § 78A‐6‐312(16)(a). With respect to a
child who is thirty‐six months old or younger when removed from
the home, the permanency hearing shall be conducted within eight
months from the date of removal. Id. § 78A‐6‐312(17) (2012).7 These
timelines are applicable in all proceedings where a child is
removed from the home on the basis of a finding of abuse, neglect,
or dependency. See id. §§ 78A‐6‐304, ‐306, ‐307(17), ‐311, ‐312(2),
‐312(13)(a), ‐312(16)(a) (2012 & Supp. 2013). The plain language of
the Act does not impose a different timeline upon reunification
efforts based on the filing of a termination petition, whether by the
Division or a private party.
¶15 Because the plain language of the Act does not provide for
different termination or reunification timelines when a third‐party
termination petition has been filed, the juvenile court did not err in
concluding that the statutory timelines were applicable to this
proceeding.
B. The Act Did Not Allow Additional Time for Reunification.
¶16 Mother next asserts that even if the statutory timelines
applied to her reunification efforts, there was nevertheless time
remaining to reunify K.J. with Mother at the time of trial. Mother
argues that Utah Code section 78A‐6‐314(13)(c) is the only
provision that could have required her to “resume custody
immediately” in the event that the termination petition was not
granted, and that section ‐314(13)(c) only requires the court to
adjudicate a termination petition within eighteen months of the
child’s removal from the home. See id. § 78A‐6‐314(13)(c) (2012).
7. The 2013 amendments to the Act eliminated this provision. See
Utah Code Ann. § 78A‐6‐312 (LexisNexis Supp. 2013).
20111113‐CA 7 2013 UT App 237In re K.J.
Because K.J. had only been in an out‐of‐home placement for fifteen
months at the time of trial, Mother argues that three months
remained for the Division to reunify K.J. with Mother.
¶17 However, the juvenile court did not base its determination
that no time remained for reunification on the time limit for
adjudicating a termination petition. Rather, the juvenile court
found that “permanency for a child of this age should be achieved
within [eight] months with the possibility of another six months,”
consistent with the reunification timelines provided in Utah Code
sections 78A‐6‐312(17) and ‐314(8).8 Because more than fourteen
months had elapsed since K.J. had been removed from Mother’s
home, the juvenile court would have been required to terminate
reunification services and make a permanency determination with
respect to K.J. if the termination petition had not been granted. See
id. § 78A‐6‐312(16)(a) (“[A] permanency hearing shall be conducted
by the court . . . at the expiration of the time period for reunification
8. The juvenile court interpreted sections 78A‐6‐312(17) and ‐314(8)
together to provide a maximum of fourteen months of reunification
services when a child is less than thirty‐six months old at the time
of removal. See Utah Code Ann. § 78A‐6‐312(17) (LexisNexis 2012)
(establishing shorter reunification timeline for child under thirty‐
six months of age); id. § 78A‐6‐314(8) (providing for a maximum of
two three‐month extensions to the period for reunification services
upon sufficient findings). Mother’s argument that time remained
under section ‐314(13)(c) does not address this interpretation of the
Act by the juvenile court. Because Mother has not challenged this
aspect of the juvenile court’s ruling, we do not review this
interpretation of the Act by the juvenile court. See Utah R. App. P.
24(a)(9) (requiring the appellant’s brief to “contain the contentions
and reasons of the appellant with respect to the issues presented
. . . with citations to the authorities, statutes, and parts of the record
relied on”); Wilson v. IHC Hosps., Inc., 2012 UT 43, ¶ 25 n.3, 289 P.3d
369 (“[T]he brief must go beyond providing conclusory statements
and fully identify, analyze, and cite its legal arguments.”(citation
and internal quotation marks omitted)).
20111113‐CA 8 2013 UT App 237In re K.J.
services.”). The juvenile court would have been required to
determine whether K.J. could safely be returned to Mother at that
time. See id. § 78A‐6‐315(2)(a). “[I]f a minor is not returned to the
minor’s parent or guardian at the permanency hearing,” the court
must terminate reunification services and make a final
determination regarding an alternate permanency plan, such as
termination of parental rights or adoption. Id. § 78A‐6‐314(4)
(emphasis added).9
¶18 Because K.J. was less than thirty‐six months old when she
was removed from the home and more than fourteen months had
passed since her removal, the juvenile court did not err in
determining that the Act precluded continued reunification efforts.
II. The Juvenile Court’s Termination of Mother’s Parental Rights
Is Not Against the Clear Weight of the Evidence.
¶19 Mother next argues that the juvenile court’s decision to
terminate her parental rights was against the clear weight of the
evidence presented at trial. A court may terminate parental rights
with respect to a parent if it finds that any one of the circumstances
enumerated in Utah Code section 78A‐6‐507 exists. See Utah Code
Ann. § 78A‐6‐507 (LexisNexis 2012). The juvenile court premised
9. Mother argues that the Division wanted to continue reunification
services with the ultimate goal of placing K.J. with Mother, who
would return to Mexico. Mother asserts that “[t]he only thing that
stopped this plan was the petition filed by the foster parents.”
However, the time for reunification services had expired and the
juvenile court found that Mother had failed to comply with the
Plan, see Utah Code Ann. § 78A‐6‐314(2)(c), and that insufficient
evidence was presented that she was able to safely resume
immediate custody, see id. § 78A‐6‐314(2)(b). Thus, the juvenile
court would have been unable to place K.J. in Mother’s custody
and would have been required to make a final determination
regarding alternate permanency even in the absence of a
termination petition.
20111113‐CA 9 2013 UT App 237In re K.J.
the termination of Mother’s parental rights upon its conclusion that
Mother abused K.J., see id. § 78A‐6‐507(1)(b),10 that Mother was
unfit, see id. § 78A‐6‐507(1)(c), that Mother had been unable to
remedy the circumstances causing the child’s out‐of‐home
placement and would not be capable of exercising proper and
effective parental care in the near future, see id. § 78A‐6‐507(1)(d),
and that Mother failed to adjust parentally, see id. § 78A‐6‐507(1)(e).
Mother specifically challenges the juvenile court’s conclusions that
she had failed to adjust parentally, that her failure to pay financial
support is evidence that she was unfit, and that she was not
capable of exercising proper and effective parental care under
subsection 78A‐6‐507(1)(d)(iii) at the time of trial.
¶20 Mother also challenges the juvenile court’s best interest
determination, arguing that the juvenile court misunderstood the
custody arrangement proposed by the Division. See id. § 78A‐6‐
506(3) (“[I]f a parent is found . . . to be unfit or incompetent based
upon any of the grounds for termination described in this part, the
court shall then consider the welfare and best interest of the child
of paramount importance in determining whether termination of
parental rights shall be ordered.”).
10. Mother asserts that the juvenile court “did not make any
finding or conclusion that the abuse originally inflicted by [Mother]
upon the child was evidence to support the [juvenile] court’s
conclusion that [Mother] is unfit.” It is true that the juvenile court’s
termination ruling does not premise a specific factual finding that
Mother was unfit on the abuse inflicted upon K.J. However, citing
Utah Code section 78A‐6‐507(1)(b), the court concluded that
“[Mother], the natural mother, physically abused the child.” See
Utah Code Ann. § 78A‐6‐507(1)(b) (providing that the juvenile
court may terminate parental rights if the court finds “that the
parent has neglected or abused the child”). Thus, it can be
reasonably inferred that the juvenile court considered Mother’s
abuse of K.J. as an independent ground for termination under Utah
Code section 78A‐6‐507(1)(b).
20111113‐CA 10 2013 UT App 237In re K.J.
A. The Juvenile Court’s Determination that Mother Failed to
Adjust Parentally Is Not Against the Clear Weight of the
Evidence.
¶21 Mother argues that the juvenile court’s determination that
she had failed to adjust parentally is against the clear weight of the
evidence. The juvenile court “may terminate all parental rights
with respect to a parent if the court finds . . . failure of parental
adjustment.” Id. § 78A‐6‐507(1)(e). Failure of parental adjustment
means that “a parent or parents are unable or unwilling within a
reasonable time to substantially correct the circumstances, conduct,
or conditions that led to placement of their child outside of their
home.” Id. § 78A‐6‐502(2). A parent’s failure to comply with the
conditions of a Division service plan within six months of the
plan’s commencement is evidence of failure of parental adjustment.
Id. § 78A‐6‐508(5).11
11. The dissent asserts that it was improper for the juvenile court
to require Mother to obtain stable employment and suitable
housing as conditions of the Plan or to consider Mother’s
compliance with those requirements in determining whether she
had failed to adjust parentally because the stability of Mother’s
income and housing is “unrelated to circumstances that led to the
child’s placement outside of the home.” See infra ¶ 49. However, it
is not the role of this court to determine what corrective measures
are necessary to protect a child from further abuse and neglect.
Rather, the juvenile court has the obligation and is in the best
position to determine what corrective obligations should be
required of a parent, and to determine whether the necessary steps
have been taken to ensure a child’s protection from further
instances of abuse or neglect. See Utah Code Ann. § 78A‐6‐
312(12)(a) (LexisNexis Supp. 2013) (“The [juvenile] court shall . . .
determine and define the responsibilities of the parent under the
child and family plan . . . .”); In re O.C., 2005 UT App 563, ¶ 19, 127
P.3d 1286 (explaining that the juvenile court is given broad
discretion in its rulings “based on the juvenile court judges’ special
(continued...)
20111113‐CA 11 2013 UT App 237In re K.J.
¶22 Mother argues that the juvenile court failed to appropriately
weigh her efforts to comply with the Plan at the time of the trial
against her previous noncompliance, as required by In re B.R., 2007
UT 82, 171 P.3d 435.12 See id. ¶ 13. Mother also claims that the
juvenile court improperly shifted the burden onto her to prove that
she had obtained suitable housing and could financially support
her child. See Utah Code Ann. § 78A‐6‐506(3) (LexisNexis 2012)
(“The court shall in all cases require the petitioner to establish the
facts by clear and convincing evidence . . . .”).
¶23 First, Mother argues that the juvenile court was required to
weigh her past conduct with her present abilities when
determining whether she had failed to adjust parentally and that,
considering the totality of the evidence, the juvenile court’s finding
of failure of parental adjustment is against the clear weight of the
evidence. “In termination cases, the juvenile court must weigh a
parent’s past conduct with her present abilities.” In re B.R., 2007 UT
82, ¶ 13. However,
if a parent has demonstrated some improvement in
parenting ability but not a strong likelihood that the
parent can provide a proper home for the child in the
11. (...continued)
training, experience and interest in this field, and devoted attention
to such matters” (ellipses, citation, and internal quotation marks
omitted)).These determinations are ones to which we generally
defer, affording the juvenile court “a wide latitude of discretion.”
See In re K.F., 2009 UT 4, ¶ 18, 201 P.3d 985 (citation and internal
quotation marks omitted).
12. Mother’s argument could also be read as an attack on the
juvenile court’s factual finding that Mother had failed to comply
with the stable housing and income requirements of the Plan.
However, because Mother does not marshal the evidence
supporting this factual finding, we decline to review the juvenile
court’s finding. See In re K.F., 2009 UT 4, ¶ 44, 201 P.3d 985.
20111113‐CA 12 2013 UT App 237In re K.J.
very near future, after a long period of separation, a
history of problems and failure to remedy, and
deterioration of the relationship between the child
and parent, this court should not overturn a court’s
order terminating parental rights.
Id. (citation and internal quotation marks omitted).
¶24 Here, the juvenile court found that Mother had failed to
comply substantially with the Plan, which was evidence of failure
of parental adjustment. See Utah Code Ann. § 78A‐6‐508(5)
(LexisNexis 2012). Specifically, the juvenile court found that
Mother had failed to maintain suitable housing and stable
employment and had failed to pay child support when she was
employed. The juvenile court then observed that Mother was not
employed at the time of trial and had only limited employment at
times during the case. The juvenile court also found that Mother’s
living situation remained “tenuous” and dependent upon the
father of her second child (Boyfriend), who was married to another
woman, in the country illegally, and potentially subject to
deportation. Based on Boyfriend’s absence at trial, his support for
Mother’s return to Mexico with both K.J. and his own child, and his
lack of intent to divorce his current wife in favor of a permanent
relationship with Mother, the juvenile court did not find credible
the testimony that Boyfriend was willing to support Mother and
K.J. The juvenile court also found that in light of the Division’s
prior determination that Boyfriend’s home was unsuitable for an
overnight or trial placement with K.J., insufficient evidence was
presented that Boyfriend’s home could satisfy the suitable housing
requirement. Based on these findings, the court determined that
Mother had failed to adjust parentally.
¶25 We do not agree that the juvenile court failed to properly
weigh Mother’s past conduct with her present abilities. While the
juvenile court considered Mother’s failure to comply with the Plan
as evidence of her failure of parental adjustment, it also considered
her circumstances at the time of the trial in making its
20111113‐CA 13 2013 UT App 237In re K.J.
determination regarding parental adjustment. The juvenile court’s
factual findings are adequate to support its determination that at
the time of trial, Mother had not found stable employment or
suitable housing and that her living situation with Boyfriend did
not evidence stability. Considering the totality of the evidence
demonstrating Mother’s continued failure to comply with the
requirements of the Plan, it was not against the clear weight of the
evidence for the juvenile court to determine that Mother had failed
to adjust parentally.
¶26 Mother also argues that in considering the evidence of
parental adjustment, the juvenile court improperly shifted the
burden of proof to her. While the petitioner bears the ultimate
burden of proving the grounds for termination by clear and
convincing evidence, see id. § 78A‐6‐506(3), once evidence is
presented that would justify termination, the burden shifts to the
parent to “persuade the court that the [petitioner] had not
established [the ground for termination] by clear and convincing
evidence,” In re J.B., 2002 UT App 267, ¶ 22, 53 P.3d 958.
¶27 Mother claims that Foster Parents presented no evidence
that Boyfriend’s home was unsuitable or that Boyfriend was
unwilling to support Mother and K.J. She argues that the juvenile
court therefore improperly imposed the burden of proof on her. We
disagree. As discussed above, the juvenile court concluded that
Mother’s failure to comply with the Plan presented evidence of
failure of parental adjustment. The evidence presented at trial
demonstrated that Mother had failed to obtain stable employment
or suitable housing and otherwise lacked the resources to care for
K.J. Given this evidence, Mother bore the burden of demonstrating
that her efforts toward finding alternate means of providing for
K.J., rather than those prescribed by the Plan, were adequate. See
id. However, the juvenile court did not find credible the testimony
at trial that Boyfriend was willing and able to support Mother and
K.J. or that Boyfriend’s home was suitable. See supra ¶ 24. Given the
evidence supporting the juvenile court’s determination, we cannot
20111113‐CA 14 2013 UT App 237In re K.J.
say that the juvenile court improperly placed the burden of proof
on Mother.
B. The Juvenile Court’s Determination that Mother’s Failure to
Pay Child Support Was Evidence that She Was Unfit Is Not
Against the Clear Weight of the Evidence.
¶28 Mother argues that the juvenile court’s determination that
she was unfit was against the clear weight of the evidence because
it was based on a flawed understanding of Mother’s obligation to
provide financial support.13 The juvenile court “may terminate all
parental rights with respect to a parent if the court finds . . . that the
parent is unfit or incompetent.” Utah Code Ann. § 78A‐6‐507(1)(c)
(LexisNexis 2012). In evaluating whether a parent is fit, the court
must consider a parent’s “repeated or continuous failure to provide
the child with adequate food, clothing, shelter, education, or other
care necessary for the child’s physical, mental, and emotional
health and development by a parent or parents who are capable of
providing that care.” Id. § 78A‐6‐508(2)(d).
¶29 Mother argues that it was impossible for her to provide
financial support for K.J. because she was illegally in the country
and thus unable to work legally. She argues, alternatively, that the
juvenile court failed to consider whether Mother was “financially
able” or “capable” of providing support, as required by statute.
¶30 First, Mother argues that the common law doctrine of
impossibility excuses her failure to pay child support as required
13. Mother’s argument is framed as a challenge to the juvenile
court’s termination of her parental rights for failure to provide
financial support. However, because failure to pay financial
support is not a ground for termination, see Utah Code Ann.
§ 78A‐6‐507 (LexisNexis 2012), we view Mother’s argument as a
challenge to the juvenile court’s reliance on Mother’s failure to
provide financial support as evidence that she was unfit pursuant
to Utah Code section 78A‐6‐508(2)(d).
20111113‐CA 15 2013 UT App 237In re K.J.
by the Plan and that it was therefore improper for the juvenile
court to conclude that her failure to provide child support for K.J.
was evidence that she was unfit. This common law exception has
been applied to statutes governing termination of parental rights
“‘where a [parent] does not know of the need to protect [parental]
rights,’ such that ‘there is no “reasonable opportunity” to assert or
protect parental rights.’” In re I.K., 2009 UT 70, ¶ 22, 220 P.3d 464(quoting In re Adoption of Baby Boy Doe, 717 P.2d 686, 689 (Utah
1986)). Mother argues that because she cannot work legally in the
country, the juvenile court ordered her to complete an impossible
task, and she therefore had no reasonable opportunity to protect
her parental rights.
¶31 We do not decide whether the impossibility exception is
applicable to Mother’s requirement to pay child support, because
Mother challenges this requirement of the Plan for the first time on
appeal. Even prior to the juvenile court’s adjudication of K.J. as
abused and neglected, Mother, represented by counsel, agreed in
mediation to cooperate with the Division in developing a service
plan as described in the State’s verified petition, which included
the stable income, suitable housing, and child support
requirements. When the Plan was adopted, Mother agreed that she
had assisted in its development and agreed to actively participate
in the Plan. There is nothing in the record before this court
indicating that Mother or her counsel ever objected to the
employment and child support requirements of the Plan or
requested that the juvenile court order the Plan to be modified to
effect her compliance. Mother failed to comply with these
provisions of the Plan from the time of its entry until the time of the
termination trial. Under these circumstances, Mother cannot now
argue on appeal that her compliance with the Plan was impossible,
because she never raised this issue before the juvenile court and
therefore has not preserved this issue for appellate review.14 “‘[T]o
14. We note that it is unlikely Mother would prevail on this claim
even if it were properly preserved. The “essential elements” of the
(continued...)
20111113‐CA 16 2013 UT App 237In re K.J.
preserve an issue for appeal[,] the issue must be presented to the
trial court in such a way that the trial court has an opportunity to
rule on that issue.’” In re A.K., 2012 UT App 232, ¶ 22, 285 P.3d 772(alterations in original) (quoting 438 Main St. v. Easy Heat, Inc., 2004
UT 72, ¶ 51, 99 P.3d 801); cf. Donnelly v. Donnelly, 2013 UT App 84,
¶ 16, 301 P.3d 6 (determining that a husband had failed to preserve
his argument that temporary alimony award was too high for him
to afford because he did not demonstrate that the issue had been
argued to the trial court).
¶32 Mother further argues that because she was not capable of
providing child support as a result of her illegal status, the juvenile
court improperly considered her failure to do so as evidence of
unfitness. In evaluating whether a parent is fit, the court must
consider a parent’s “repeated or continuous failure to provide the
child with adequate food, clothing, shelter, education, or other care
necessary for the child’s physical, mental, and emotional health
and development by a parent or parents who are capable of providing
that care.” Utah Code Ann. § 78A‐6‐508(2)(d) (emphasis added).
¶33 Mother argues that because she is in the country illegally,
she was unable to obtain legal employment and was therefore
incapable of paying child support. However, the juvenile court
found that Mother had failed to contact ORS to establish child
support and that during the times when Mother was employed, she
did not pay any child support. The juvenile court’s determination
that her failure to provide financial support for K.J. was evidence
of unfitness under section 78A‐6‐508(2)(d) was specifically based
14. (...continued)
impossibility exception are that it was (1) impossible for the parent
to comply with the statutory requirement (2) “through no fault of
[her] own.” See In re Adoption of Baby Boy Doe, 717 P.2d 686, 690
(Utah 1986) (citation and internal quotation marks omitted). Here,
Mother’s failure to ever contact ORS to establish child support, as
ordered by the court, appears to defeat the argument that she was
faultless in her failure to provide child support for K.J.
20111113‐CA 17 2013 UT App 237In re K.J.
on her failure to do so “[e]ven when [M]other was employed.”
Furthermore, while Mother argues that she would be able to
provide financial support for K.J. by living with Boyfriend, she
nevertheless failed to contact ORS to arrange or pay child support
despite having lived with Boyfriend for six months at the time of
trial. We thus do not agree that the juvenile court failed to consider
whether Mother was capable of providing financial support for
K.J., because the juvenile court’s determination was based only on
her failure to provide support when she was employed or
otherwise capable of providing support.
¶34 Because the juvenile court properly considered Mother’s
failure to pay child support as evidence that she was unfit pursuant
to Utah Code section 78A‐6‐508, we conclude that the juvenile
court’s determination that Mother was unfit under section 78A‐6‐
507(1)(c) is not against the clear weight of the evidence.
C. The Juvenile Court’s Determination that Mother Would Not
Have Been Capable of Exercising Proper and Effective
Parental Care in the Near Future Is Not Against the Clear
Weight of the Evidence.
¶35 Mother next argues that the juvenile court’s determination
that she would be unable to exercise proper and effective parental
care in the near future is against the clear weight of the evidence.
The juvenile court may terminate all parental rights with respect to
a parent if the court finds
that the child is being cared for in an out‐of‐home
placement under the supervision of the court or the
division[,] . . . that the parent has substantially
neglected, wilfully refused, or has been unable or
unwilling to remedy the circumstances that cause the
child to be in an out‐of‐home placement[,] . . . [and]
that there is a substantial likelihood that the parent
will not be capable of exercising proper and effective
parental care in the near future . . . .
20111113‐CA 18 2013 UT App 237In re K.J.
Utah Code Ann. § 78A‐6‐507(1)(d) (LexisNexis 2012).
¶36 Mother argues that the juvenile court’s factual finding that
no evidence was presented that Mother is capable of parenting her
child is unsupported by any evidence, and therefore against the
clear weight of the evidence. “To overturn a finding of fact, we
require the appellant to marshal all the evidence in support of the
finding and then demonstrate that the evidence is legally
insufficient to support the finding when viewing it in a light most
favorable to the court below.” See In re K.F., 2009 UT 4, ¶ 44, 201
P.3d 985 (citation and internal quotation marks omitted). Mother
also contends that the juvenile court improperly shifted the burden
to her to demonstrate that she was capable of parenting her child.
See Utah Code Ann. § 78A‐6‐506(3) (LexisNexis 2012) (“The court
shall in all cases require the petitioner to establish the facts by clear
and convincing evidence . . . .”).
¶37 First, the juvenile court found that “no evidence was
presented that [Mother] is capable of parenting the child.” Mother
misreads the juvenile court’s findings as stating that “no evidence
was presented on the matter of the [Mother]’s parenting ability”
and argues that she is therefore not obligated to marshal the
evidence in support of the juvenile court’s findings. See Kimball v.
Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (explaining
appellant’s marshaling burden when no evidence supports the
challenged finding). However, the juvenile court’s other factual
findings demonstrate that substantial evidence was presented as to
Mother’s parenting ability but that the juvenile court found that
none of the evidence demonstrated that Mother was presently
capable of parenting her child in practice, rather than in theory.
Accordingly, the juvenile court found that the evidence
demonstrated that Mother was not capable of successfully
parenting K.J. on her own.
¶38 Having determined that Mother is incorrect that no evidence
supported the juvenile court’s factual finding, we decline to review
the challenged finding further because Mother has failed to
20111113‐CA 19 2013 UT App 237In re K.J.
marshal the evidence in support of the challenged finding. See In re
K.F., 2009 UT 4, ¶ 44; Wilson Supply, Inc. v. Fradan Mfg. Corp., 2002
UT 94, ¶ 22, 54 P.3d 1177 (explaining that “a scintilla of credible
evidence” will overcome a “no evidence assertion” and
“demonstrate that the appellant has failed to meet its marshaling
burden”). In her opening brief, Mother presents only those facts
favorable to her argument on this issue rather than those
supporting the challenged finding. In response to Foster Parents’
argument that she had failed to marshal the evidence, Mother’s
reply brief merely asserts that the juvenile court’s finding was
unsupported by any evidence and reiterates the facts favorable to
her argument. This is inadequate to meet the marshaling burden
necessary to challenge a factual finding when any evidence
supports the finding. See id; Kimball, 2009 UT App 233, ¶ 20 n.5.
¶39 Mother next argues that in weighing the evidence of
Mother’s parental ability, the juvenile court improperly shifted the
burden of proof to Mother. While the petitioner bears the ultimate
burden of proving the grounds for termination by clear and
convincing evidence, see Utah Code Ann. § 78A‐6‐506(3), once
evidence is presented that would justify termination, the burden
shifts to the parent to “persuade the court that the [petitioner] had
not established [the ground for termination] by clear and
convincing evidence,” In re J.B., 2002 UT App 267, ¶ 22, 53 P.3d 958.
¶40 Mother argues that juvenile court improperly placed the
burden of proof on her to prove that she was capable of exercising
proper and effective parental care for K.J. because Foster Parents
presented no evidence that she was incapable of exercising such
care. However, the juvenile court found that the evidence
presented showed that Mother did not fully understand K.J.’s
needs and lacked the resources to meet those needs in any case.
The juvenile court concluded, based on the testimony and evidence
presented at trial, that Mother would not succeed at parenting on
her own. Mother then had the burden to show that her parenting
skills were adequate to persuade the court that the evidence did
not prove that she was incapable of caring for K.J. See id. While
20111113‐CA 20 2013 UT App 237In re K.J.
Mother presented the testimony of her Division‐assigned
caseworker and peer parent to demonstrate her parenting abilities,
the juvenile court found that Mother had never been able to put her
parenting ability into practice due to her living situation and that
her parenting ability was therefore only theoretical. Given the
evidence supporting the juvenile court’s determination, we cannot
say that the juvenile court improperly placed the burden of proof.15
¶41 We conclude that Mother has not demonstrated that the
juvenile court’s factual findings were erroneous or that the juvenile
court improperly shifted the burden of proof. Therefore, we
conclude that the juvenile court’s determination that Mother would
not be capable of exercising proper and effective parental care in
the near future is not against the clear weight of the evidence.
D. The Juvenile Court’s Determination that It Would Be in
K.J.’s Best Interest to Be Free for Adoption by Foster Parents
Is Not Against the Clear Weight of the Evidence.
¶42 Finally, Mother challenges the juvenile court’s determination
that it would be in K.J.’s best interest to terminate Mother’s
parental rights, freeing K.J. for adoption by Foster Parents. “[I]f a
parent is found . . . to be unfit or incompetent . . . the court shall
then consider the welfare and best interest of the child of
paramount importance in determining whether termination of
parental rights shall be ordered.” Utah Code Ann. § 78A‐6‐506(3)
(LexisNexis 2012). The only challenge raised by Mother to the
juvenile court’s best interest determination is that the
determination was based on an incorrect belief that the Division
15. We agree that the juvenile court’s factual findings could have
been more carefully drafted to avoid the implication that the
burden of persuasion was on Mother to demonstrate that she was
capable of parenting her child, rather than upon Foster Parents.
However, having reviewed the juvenile court’s findings and
conclusions as a whole, we are satisfied that the juvenile court
understood and applied the correct burden of proof in this case.
20111113‐CA 21 2013 UT App 237In re K.J.
sought to place K.J. with her maternal grandmother rather than
with Mother.16
¶43 We disagree with Mother’s characterization of the juvenile
court’s best interest determination. The juvenile court concluded
that the Division’s plan for placement of K.J. “contemplates
custody to the maternal grandmother, if not in law, in fact.”
(Emphasis added.) The juvenile court recognized that Mother
would have custody of K.J. but determined that because Mother
was unable to care for K.J., she would be completely dependent
upon the maternal grandmother under the Division’s plan. Thus,
the juvenile court’s conclusion that the Division’s placement plan
contemplated custody to the maternal grandmother “in fact” is
merely a recognition of Mother’s dependence on the grandmother
under the Division’s placement plan. Because Mother does not
otherwise challenge the sufficiency of the evidence underlying the
juvenile court’s best interest determination and we are not left with
“a firm and definite conviction that a mistake has been made,” we
decline to overturn the juvenile court’s best interest determination.
See In re A.K., 2012 UT App 232, ¶ 14, 285 P.3d 772 (citation and
internal quotation marks omitted).
CONCLUSION
16. While purporting to be a challenge to termination on the
grounds of failure to provide child support, Mother’s argument
that the juvenile court improperly considered her failure to pay
child support could also be read as a challenge to the juvenile
court’s best interest determination on the same ground. See Utah
Code Ann. § 78A‐6‐509(1)(b)(i) (LexisNexis 2012) (requiring the
juvenile court to consider whether a parent had paid a reasonable
portion of substitute physical care and maintenance in making its
best interest determination regarding a child not in the physical
custody of the parents). However, to the extent such an argument
is raised by Mother’s brief, we reject it for the reasons explained
above. See supra ¶¶ 28–34.
20111113‐CA 22 2013 UT App 237In re K.J.
¶44 The juvenile court properly applied the reunification
timelines provided by the Act. Mother has failed to demonstrate
that the juvenile court’s determinations were against the clear
weight of the evidence. Grounds for termination exist, and Mother
has not successfully challenged the juvenile court’s best interest
determination.
¶45 We affirm the termination of Mother’s parental rights with
respect to K.J.
THORNE, Judge (dissenting):
¶46 I respectfully dissent from the majority’s decision. I disagree
with the majority’s determinations regarding the juvenile court’s
conclusion that Mother has failed to accomplish the necessary
parental adjustment required by the applicable section of the Utah
Code and further disagree that it has been adequately
demonstrated that she is an unfit parent.
I. The Juvenile Court’s Parental Adjustment Determination
¶47 The juvenile court determined that Mother had failed to
parentally “adjust” based on her inability or failure to secure stable
employment or suitable housing. Additionally, the juvenile court
was troubled that her living situation with Boyfriend did not
evidence stability. Although Mother’s employment and housing
situation are far from ideal, they are not, in my opinion, evidence
of failure of parental adjustment in this matter or sufficient
justification for terminating the natural parent‐child relationship.
“Failure of parental adjustment” means that a parent
or parents are unable or unwilling within a
reasonable time to substantially correct the
circumstances, conduct, or conditions that led to
placement of their child outside of their home,
notwithstanding reasonable and appropriate efforts
20111113‐CA 23 2013 UT App 237In re K.J.
made by the Division of Child and Family Services to
return the child to that home.
Utah Code Ann. § 78A‐6‐502(2) (LexisNexis 2012) (emphasis
added).
¶48 Here, K.J. was placed in the custody of the Division based
upon the juvenile court’s adjudication of K.J. as abused and
neglected. The Plan the juvenile court adopted included multiple
requirements; many focused on improving Mother’s general
parenting issues and reducing the risk of future abuse and neglect
of K.J. In particular, the Plan required Mother to complete (1) an
age appropriate parenting course; (2) an anger management course
and follow all recommendations; and (3) a mental health
evaluation and follow all recommendations. The Plan also
prohibited Mother from using physical discipline on the child.
After trial, the juvenile court determined that Mother had
completed a parenting course through the peer parent program,
submitted to a mental health assessment and participated in
individual therapy following the recommendations of the
assessment, and completed an anger management course. By
timely completing all of the Plan’s requirements designed to
address Mother’s parenting deficiencies, Mother has for all intents
and purposes substantially corrected the very circumstances,
conduct, and conditions that led to K.J.’s placement outside of
Mother’s home. Indeed, the juvenile court acknowledged that
Mother had complied with the majority of the service plan except
for two factors—stability of income and housing—both of which
are unrelated to the reasons for the child’s removal.17 Furthermore,
17. The juvenile court did also tangentially note that no evidence
was presented that Mother is capable of parenting the child and
that there has been no opportunity for Mother to demonstrate that
she is able to incorporate what she has learned. However, the
evidence before the juvenile court demonstrates that Mother
completed all of the Plan’s requirements focused on her parenting
(continued...)
20111113‐CA 24 2013 UT App 237In re K.J.
trial testimony supports that Mother has corrected the parenting
issues that led to K.J.’s removal from Mother’s care in the first
place.18
17. (...continued)
issues and as a result has corrected the circumstances, conduct, or
conditions that led to K.J.’s removal from her home. Foster Parents
did not allege in their termination petition or present evidence at
the termination hearing that Mother had failed to correct the
behavioral circumstances that led to the removal of the child from
Mother.
18. Dr. Marie Green has a doctorate in social work. She conducted
a psychological evaluation of Mother and provided approximately
fifteen therapy sessions to Mother. Dr. Green testified at the
termination hearing that she believed Mother has accepted
responsibility for her abuse of K.J. She further testified that
Mother’s abuse of K.J. can be explained by the fact that K.J. was
born premature with high needs and that Mother was young,
inexperienced, and without support. Dr. Green opined that Mother
has matured, learned better ways to deal with her stress, and is
better prepared to parent K.J. In addition, Dr. Green did not believe
that Mother would harm the K.J. should she be returned to
Mother’s care.
The caseworker, Christina Duke, testified at the termination
hearing that it is in K.J.’s best interest that the court return custody
and reunify Mother and the child subject to conditions. The
conditions included a slow transition of the child into Mother’s care
in the United States before having Mother and the child move to
Mexico to live with K.J.’s maternal grandmother. The caseworker’s
recommendation that Mother and the child move to Mexico
appears to be based on the stable family support—both emotional
and financial—available to Mother in Mexico. The caseworker
further testified that Mother’s current home was appropriate and
that she believed that the child would be safe with Mother.
Specifically, the caseworker responded, “[Y]es. I think so,” to the
(continued...)
20111113‐CA 25 2013 UT App 237In re K.J.
¶49 Although the Plan required Mother to obtain stable income
and housing, the supposed failure of these requirements does not,
in this case, demonstrate Mother’s failure to parentally adjust. The
juvenile court did not place K.J. in the Division’s custody based on
Mother’s lack of stable income and housing, nor did the court
determine that said instability created or substantially caused
Mother’s parenting issues. Instead, the court placed the child in the
custody of the Division based on its determination that the child,
who had suffered numerous trauma‐inflicted injuries, was abused
and neglected. It was improper for the court to determine that
Mother had failed to adjust based on financial stability—factors
unrelated to circumstances that led to the child’s placement outside
of the home—when Mother completed all the requirements geared
toward protecting the child from abuse and neglect.
¶50 Moreover, given Mother’s immigration status, the Plan’s
requirement that Mother obtain employment and essentially
procure independent housing is effectively designed for failure as
it is legally impossible for Mother to comply with either of these
requirements.19 “[U]nder federal immigration law, only immigrant
aliens and nonimmigrant aliens with special permission are
entitled to work.” Plyler v. Doe, 457 U.S. 202, 240 n.6 (1982) (Powell,
J., concurring) (citing 1 C. Gordon & H. Rosenfield, Immigration Law
and Procedure, §§ 1.34a., 1.36, 2.6b (1981)); see also 8 U.S.C. § 1324a
(making employment of aliens unlawful). The Juvenile Court Act
requires the juvenile court to “provide a fundamentally fair process
to a parent if a party moves to terminate parental rights.” Utah
18. (...continued)
question, “If [Mother] had her own apartment and it was just
[Mother], her child and then [K.J.], do you think [K.J.] being
returned to [Mother] with just her other child there, that [K.J.]
would be safe in that environment?”
19. The Plan required Mother to “maintain suitable housing and
stable employment” and contact ORS regarding support for the
child, and establish and pay child support.
20111113‐CA 26 2013 UT App 237In re K.J.
Code Ann. § 78A‐6‐503(2) (LexisNexis Supp. 2013). Mother is faced
with two unacceptable alternatives: work, and by so doing commit
a crime, or not work and lose her child. It is unfair to implement a
plan that precludes a parent’s lawful compliance. The
implementation of the Plan in this case prevented Mother from
receiving a fair opportunity to reunite with her child.
¶51 Here, Mother had no means of achieving the financial
requirements of the Plan, and it is unjust to implement a plan that
precludes a parent’s compliance. Such a plan specifically puts
Mother at risk of losing her child and puts the immigrant
population in particular risk of losing their children, based
primarily on their illegal status and an inability to lawfully obtain
stable employment and housing despite any efforts towards or
demonstration of parental adjustment. In effect, the juvenile court’s
termination determination was based on Mother’s immigration
status in that Mother cannot legally obtain employment and
acceptable housing due to her status as an illegal resident. Indeed,
several other courts around the country have considered the
relevance of illegal status, with the majority concluding that illegal
status and deportation are not in themselves grounds for the
termination of parental rights. See In re M.M., 587 S.E.2d 825,
832–33 (Ga. Ct. App. 2003) (concluding that the evidence was
insufficient to terminate a Mexican’s parental rights when the basis
was the father’s illegal status in this country and the possibility that
he could be deported); In re Angelica L., 767 N.W.2d 74, 94–96 (Neb.
2009) (concluding that the evidence was insufficient to terminate a
Guatemalan’s parental rights on the basis of twice failing to
provide a child with adequate medical care and subsequent
deportation on the basis of living illegally in this country); In re
E.N.C., 384 S.W.3d 796, 805, 806 n.13 (Tex. 2012) (determining that
the mere threat of deportation resulting from an unlawful act does
not in itself establish endangerment and providing a summary of
court decisions considering illegal status and deportation in
parental rights termination proceedings).
20111113‐CA 27 2013 UT App 237In re K.J.
¶52 Finally, there is some question whether a natural parent’s
rights can be terminated merely because he or she is not financially
or emotionally capable of parenting the child at the time of the
termination hearing. See In re C.J.V., No. A13A0792, 2013 WL
3655806, at *6 (Ga. Ct. App. July 16, 2013) (Dillard, J., concurring
specially); see also id. at *5 (“Indeed, the notion that parental rights
can be terminated, in part, because a parent has failed to secure
independent housing, stable employment, or work on ‘vocational
rehabilitation’ (or the like) is not only patently unconstitutional but
morally repugnant—as such ‘goals,’ inter alia, disproportionately
discriminate against those who are socioeconomically
disadvantaged.” (footnote omitted)). As such, it is wrong to justify
Mother’s termination of her parental rights based on the fact that
she has had to live with different people and depend on others for
financial support. See id. (“I find it deeply troubling that both the
trial court and dissent justify the termination of the mother’s
parental rights, in part, because she has moved from place to place,
lived with different people, [and] depended on others for financial
support[.]”). A family’s financial situation should not be a basis for
termination. Cf. Division of Youth & Family Servs. v. P.W.R., 11 A.3d
844, 856–57 (N.J. 2011) (holding that a family’s tight financial
situation is not a proper basis to remove a child from the home).
Despite familial financial difficulties, children should be given the
benefit of being raised by their parents and parents should be
allowed to raise their children free from state interference. See id. at
856 (“Despite financial difficulties, many parents have raised
children appropriately free from state interference.”); see also In re
C.J.V., 2013 WL 3655806, at *5 (Dillard, J., concurring specially)
(“The State’s primary goal must be to maintain and preserve the
natural parent‐child relationship, not to act as a clandestine
adoption agency.”).
The overarching question in a termination
proceeding is not whether the child has a model
parent, or even whether that parent is presently
capable of taking his or her child back in custody, but
is instead whether the natural parent‐child
20111113‐CA 28 2013 UT App 237In re K.J.
relationship has been irretrievably damaged as a
result of the parent’s unwillingness or inability to
care for the child—i.e., that the continuation of the
natural parent‐child relationship, as it presently exists
with the child in the custody of the State, is causing
or is likely to cause that child serious harm.
In re C.J.V., 2013 WL 3655806, at *5 (Dillard, J., concurring specially)
(citation and internal quotation marks omitted).
¶53 To permit state interference based on a parent’s financial
ability also disproportionately discriminates against single‐parent
families. A large share of single‐parent families live at or below the
poverty level when compared to all other families. Jason M.
Merrill, Note, Falling Through the Cracks: Distinguishing Parental
Rights from Parental Obligations in Cases Involving Termination of the
Parent‐Child Relationship, 11 J.L. & Fam. Stud. 203, 210 (2008) (citing
Barbara R. Rowe & Kay W. Hansen, Child Support Awards in Utah:
Have Guidelines Made a Difference?, 21 J. Contemp. L. 195, 195
(1995)); see also id. (“Nationally, it is much more likely for children
living in single parent households to live in low‐income families.”
(citing Rhode Island Kids Count, 2008 Rhode Island Kids Count
Factbook 10–11 (2008) (citing national statistics regarding single‐
parent families from the 2006 U.S. Census Bureau American
Community Survey))). Moreover, 63% of Hispanic/Latino children
live in low‐income families. Martin Westerman, The Interplay of
Poverty and Child Welfare, The Connection (Nat’l Court Appointed
Special Advocate Ass’n), Fall 2006, at 7, 10. Mother, a young single‐
parent illegal immigrant, is severely limited financially, and it is
patently unfair and unjust to terminate her parental rights based on
her poverty. This is especially true given the fact that Mother has
corrected the parenting issues that instigated the removal of K.J.
from Mother’s care.
¶54 As detailed above, I would hold that the juvenile court erred
by basing its parental adjustment determination on factors not in
Mother’s control and not directly related to the reason for removal
20111113‐CA 29 2013 UT App 237In re K.J.
of K.J. from Mother’s care. I would, therefore, remand the matter
to the juvenile court to determine whether Mother substantially
corrected the parenting issues that led to the initial placement of
K.J. in the Division’s care.
II. The Juvenile Court’s Unfit Parent Determination
¶55 I also disagree with the majority’s determination that the
juvenile court properly relied upon Mother’s failure to pay child
support as evidence that she was unfit pursuant to Utah Code
section 78A‐6‐508. See supra ¶ 34. The juvenile court determined
that Mother was an unfit parent based on her failure to contact ORS
to establish support and pay child support even during the times
when Mother was employed and living with Boyfriend. See supra
¶ 33. Once again, Mother, due to her immigration status, is placed
in a difficult situation wherein she is asked to contact an official
government office, disclose her status, and hope that she is not then
involuntarily transported hundreds of miles from her child. In
addition, it is impossible for her to legally comply with the Plan’s
requirement that she contact ORS and pay child support as
evidence of parental fitness.20 The majority argues that “Mother,
represented by counsel, agreed in mediation to cooperate with the
Division in developing a service plan as described in the State’s
verified petition, which included the stable income and housing
requirements and the child support requirement.” Supra ¶ 31.
20. The majority declines to consider whether the impossibility
exception is applicable to Mother’s requirement to pay child
support, deciding instead that Mother has failed to preserve this
issue. See supra ¶ 31. Because the impossibility of compliance in this
matter is so intertwined in the underlying issue of unfitness, this
court should consider it despite any possible preservation
problems. See generally Patterson v. Patterson, 2011 UT 68, ¶ 13, 266
P.3d 828 (“Our preservation requirement is self‐imposed and is
therefore one of prudence rather than jurisdiction. Consequently,
we exercise wide discretion when deciding whether to entertain or
reject matters that are first raised on appeal.”).
20111113‐CA 30 2013 UT App 237In re K.J.
There are no findings pertaining to the circumstances of the
mediation. As such, we do not know whether Mother (1)
understood the terms of the service plan, (2) accepted the terms out
of intimidation, or (3) failed to express the impossibility of the
specific provisions out of a fear of losing her parental rights based
on such issues. Thus, absent a juvenile court determination
following an evidentiary hearing, it is not appropriate to rely on a
presumption that Mother voluntarily agreed to the provisions of
the service plan in this instance. The child support requirements of
the Plan are tantamount to ordering Mother to undertake and
document illegal actions that may subject her to deportation and
require her to obtain or continue employment, without the
required documentation, or risk losing her parental rights of K.J.
Under those parameters, there is nothing Mother can legally do to
satisfy the juvenile court’s requirement of employment or securing
an income stream so as to pay child support. Indeed, I believe the
juvenile court erred by taking such a constrained view of the
parental fitness factors contained in Utah Code section 78A‐6‐
508(2)(d).
¶56 Under Utah Code section 78A‐6‐508(2)(d), the juvenile court
is required to consider, in its determination of whether a parent is
unfit, “repeated or continuous failure to provide the child with
adequate food, clothing, shelter, education, or other care necessary
for the child’s physical, mental, and emotional health and
development by a parent or parents who are capable of providing
that care.” Utah Code Ann. § 78A‐6‐508(2)(d) (LexisNexis 2012).
Although it may not be possible for Mother, due to her
immigration status, to provide K.J. with the basic necessities
without outside assistance, this does not mean that she is not
capable of making sure her child’s needs are met. Requiring
Mother, under these circumstances, to solely and independently
provide for her child’s care bases termination of her parental rights
on her lack of legal income despite Mother’s significant efforts at
parental adjustment and the utilization of other means that may be
available to assist her in taking care of her child until such time as
either her immigration status changes to allow employment within
20111113‐CA 31 2013 UT App 237In re K.J.
the United States or she returns to her country of origin. See Plyler
v. Doe, 457 U.S. 202, 240 n.6 (1982) (Powell, J., concurring) (“[U]nder
federal immigration law, only immigrant aliens and nonimmigrant
aliens with special permission are entitled to work.”). Given
Mother’s circumstances,21 it is unjust and unfair to terminate her
21. In a case similar to ours, absent the immigration issue, where
the mother was impoverished, Judge Dillard of the Georgia Court
of Appeals observed,
In other words, the mother is really, really poor.
....
Indeed, the notion that parental rights can be
terminated, in part, because a parent has failed to
secure independent housing, stable employment, or
work on “vocational rehabilitation” (or the like) is
not only patently unconstitutional but morally
repugnant—as such “goals,” inter alia,
disproportionately discriminate against those who
are socioeconomically disadvantaged. To be sure,
securing independent housing, stable employment,
and furthering one’s job training or education are
commendable goals, and there is nothing inherently
wrong with the government encouraging the citizens
it serves to better their lives. What the government is
not entitled to do, regardless of any apparent
statutory authority for doing so, is to force some
generalized, bureaucratic, Orwellian notion of
parenting onto citizens who have temporarily lost
custody of their children as a precondition to regaining
custody of those children. Indeed, I find it deeply
troubling that both the trial court and dissent justify
the termination of the mother’s parental rights, in
part, because she has moved from place to place,
lived with different people, depended on others for
financial support, and failed to provide toys for her
children. The State has no right to irrevocably sever
(continued...)
20111113‐CA 32 2013 UT App 237In re K.J.
parental rights simply because she is not in a position to financially
provide for her child in the exact manner set out by the court. The
statute does not require Mother to be a perfect parent. Cf. Utah
Code Ann. § 78A‐6‐503(4) (LexisNexis Supp. 2013) (“The
fundamental liberty interest of a parent concerning the care,
custody and management of the parent’s child is recognized,
protected, and does not cease to exist simply because a parent may
fail to be a model parent . . . .”).
¶57 As such, if Mother is able to provide for her child’s needs by
whatever legal means are available to her, she should not be
deemed unfit simply because she is personally unable to provide
for the support of her child. As a result, I would remand the case
to the juvenile court to consider all the factors—not just her failure
to pay child support to ORS—relevant to determine whether
Mother is able to secure the resources required to provide care for
her child. Being an illegal immigrant and poor should no longer
provide a legitimate basis for permanently depriving a child of his
or her parent or parents and replacing them with a more
financially‐advantaged substitute. This is not a case where the state
has decided that a parent is beyond redemption; this is a private
action by people of means seeking to claim a child.
21. (...continued)
the natural parent‐child relationship simply because
a parent is incapable of providing her children with
an idyllic middle‐class lifestyle. . . . The State’s
primary goal must be to maintain and preserve the
natural parent‐child relationship, not to act as a
clandestine adoption agency.
....
An order terminating parental rights is the death
penalty of civil cases, and this Court should start
treating it as such.
In re C.J.V., No. A3A0792, 2013 WL 3655806, at **5–6 (Ga. Ct. App.
July 16, 2013) (Dillard, J., concurring specially) (emphasis and
footnotes omitted) (emphasis added).
20111113‐CA 33 2013 UT App 237In re K.J.
¶58 In addition, it is not necessary to reach the issue as to
whether or not the Juvenile Court Act’s timelines are applicable in
this proceeding. In my opinion, application of the Act’s timelines
governing the time permitted to remedy the problem necessitating
intervention under either my or the majority’s analysis of the
termination of parental rights issue, would not change the result
given the circumstances in this matter.22 This is not a timelines case.
The termination proceedings in this case did not go beyond the
Act’s timelines, and the juvenile court had the information before
it to decide the parental rights issue without delaying the
proceedings. Thus, this case is not the appropriate occasion to
announce the application of the Act’s timelines to a private petition
for termination of parental rights as the majority has chosen to do.
III. Summary
¶59 The juvenile court found that Mother had complied with the
Plan’s requirements that were directly related to the problems that
necessitated the original removal. It was not, therefore, proper for
the court to base its failure of parental adjustment decision on
requirements unrelated to the problems which caused the initial
removal. Additionally, the court erred by failing to consider all of
the circumstances related to whether Mother is able to provide for
her child. The outcome of this case is not affected by the application
of the Act’s timelines, and it is improper for this court to consider
that issue. I dissent and would remand to the juvenile court for
further consideration.
22. I am not convinced that the timelines imposed by the Act on the
underlying reunification proceedings are applicable when a private
termination petition has been filed.
20111113‐CA 34 2013 UT App 237