In re Z.G. , 2016 UT App 98 ( 2016 )

2016 UT App 98THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF Z.G.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
H.V.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20150457-CA
Filed May 12, 2016
Third District Juvenile Court, Salt Lake Department
The Honorable Kimberly K. Hornak
No. 1106176
Julie George, Attorney for Appellant
Sean D. Reyes and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in which
JUDGES GREGORY K. ORME and J. FREDERIC VOROS JR. concurred.1
BENCH, Senior Judge:
¶1 H.V. (Guardian) appeals the juvenile court’s ruling
declining to order reunification services. We affirm.
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
In re Z.G.
BACKGROUND
¶2 Guardian was awarded permanent custody and
guardianship of Z.G. (Child) in December 2014 after Child was
adjudicated to have been neglected by her mother. Two months
later, Child was temporarily removed from Guardian’s custody
due to police involvement but was soon returned. Just six weeks
after that, Guardian was arrested on drug charges. On April 7,
2015, the Division of Child and Family Services (DCFS) filed a
verified petition alleging that Guardian had been incarcerated
and that Guardian’s mother, who had been caring for Child
since Guardian’s arrest, could not provide long-term care for
Child. The juvenile court adjudicated Child neglected by
Guardian and granted custody and guardianship of Child to
DCFS.
¶3 Apparently anticipating that Guardian might request
reunification services, Child’s appointed guardian ad litem
moved the court to deny reunification services to Guardian. The
juvenile court held a hearing on the motion and determined that
under Utah Code section 78A-6-312, Guardian did not have
standing to request reunification services and that even if she
did have standing, reunification was not in Child’s best interests.
ISSUE AND STANDARDS OF REVIEW
¶4 Guardian appeals the juvenile court’s order denying
reunification, arguing that the juvenile court erred in
determining that she lacked standing to request reunification
services under the Juvenile Court Act. The juvenile court’s
“interpretation of the Juvenile Court Act is a question of law,
reviewed for correctness.” In re S.F., 2012 UT App 10, ¶ 24, 268
P.3d 831. The ultimate decision whether to provide or deny
reunification services is a determination that we review for
abuse of discretion. In re N.R., 967 P.2d 951, 956 (Utah Ct. App.
1998).
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ANALYSIS
I. Permanent Guardians Have Standing to Seek Reunification
Services.
¶5 The Juvenile Court Act is unclear as to whether
reunification services are available to non-parents. However,
Guardian and the State agree that “the best interpretation of the
[Juvenile Court Act] is that they are.” Having reviewed the
statute, we agree that an individual who has been granted
permanent custody and guardianship over a minor child has
standing to seek reunification services when that child is
involuntarily removed from his or her custody.
¶6 First, we look to the statutory language to determine the
legislature’s intent. “We analyze the language of a statutory
provision in light of other provisions within the same statute or
act, and we attempt to harmonize the provisions in accordance
with the legislative intent so as to give meaning to each
provision.” Davis County Solid Waste Mgmt. & Energy Recovery
Special Serv. Dist. v. City of Bountiful, 2002 UT 60, ¶ 10, 52 P.3d
1174.
¶7 Section 78A-6-312, governing reunification services,
indicates that if the court has ordered “continued removal at the
dispositional hearing, and that the minor remain in the custody
of the division,” then the court shall (1) “establish a primary
permanency plan for the minor” and (2) determine whether
“reunification services are appropriate for the minor and the
minor’s family.” Utah Code Ann. § 78A-6-312(2) (LexisNexis
Supp. 2015). Further provisions in this section pertaining to
actions the court should take in facilitating or terminating
reunification services refer specifically to “parents” and do not
mention guardians. Id. § 78A-6-312. However, other sections of
the Juvenile Court Act appear to contemplate reunification
services for guardians. For example, section 78A-6-306 requires
DCFS to report to the juvenile court at the shelter hearing “the
20150457-CA 3 2016 UT App 98In re Z.G.
available services that could facilitate the return of the child to
the custody of the child’s parent or guardian” and directs the
court to determine whether “the provision of . . . services” could
permit the child to be “safely returned to the custody of the . . .
parent or guardian.” Id. § 78A-6-306(6), (10) (emphasis added).
Likewise, section 78A-6-314 contemplates the return of a minor
to a “parent or guardian” following reunification services and
outlines circumstances where the juvenile court might
determine, after reunification services have been ordered, that a
minor should not be returned to a “parent or guardian.” Id.
§ 78A-6-314(2), (4) (emphasis added). Despite the language of
section 78A-6-312, it would be inconsistent for the legislature to
include language in sections 78A-6-306 and 78A-6-314 referring
to guardians if it intended that reunification services be
provided only to parents.
¶8 This conclusion is further supported by the fact that
provisions in the Juvenile Court Act contemplate the possibility
that a guardian may be responsible to provide financial support
for a child when the child is in the custody of DCFS. See id.
§ 78A-6-306(2)(f) (providing that when a child has been removed
from his or her home or placed in the custody of DCFS, DCFS
“shall issue a notice that contains . . . a statement that the parent
or guardian is liable for the cost of support of the child”
(emphasis added)); id. § 78A-6-1106(1) (providing that when
legal custody of a child has been vested in an organization or
individual other than the child’s parents, “the court shall order
the parents, a parent, or any other obligated person to pay child
support for each month the child is in custody” (emphasis
added)). But see id. § 75-5-209(4)(a) (providing in the context of
the Uniform Probate Code that “a guardian of a minor is not . . .
legally obligated to provide from the guardian’s own funds for
the ward”). Indeed, the juvenile court’s order adjudicating Child
neglected by Guardian ordered Guardian to “contact the Office
of Recovery Services (ORS) to determine a support amount for
the period that [Child+ is in the custody of DCFS.” It would be
20150457-CA 4 2016 UT App 98In re Z.G.
inconsistent with the apparent intent of the legislature and
public policy to conclude that a guardian retains financial duties
to a child who has been removed from his or her custody but
does not have the right to seek reunification services.2
¶9 Furthermore, our case law on the subject, while not
determinative, appears to contemplate the possibility that a
permanent guardian could obtain reunification services. For
example, in In re K.G., 2009 UT App 116U (per curiam), we
acknowledged the possibility that a guardian could receive
reunification services but did not reach the question, because the
aunt seeking reunification had never obtained legal recognition
as the child’s guardian. Id. para. 3 & n.2. Likewise, in In re T.S.,
927 P.2d 1124 (Utah Ct. App. 1996), we left open the question of
whether a permanent guardian might be entitled to rights akin
to those of a parent, though we ultimately did not reach that
issue because we determined that the guardian in that case had
waived it. Id. at 1127.
¶10 Finally, denying permanent guardians the opportunity to
seek reunification is inconsistent with permanent guardianship
being a stable, long-term permanency goal. Along with
reunification and adoption, guardianship is one of the main
potential permanency goals when a child has been removed
from his or her home due to abuse or neglect. See Utah Admin.
Code R512-300-4(4)(b) (listing reunification, adoption,
2. Guardian asserts that permanent guardians retain a bundle of
“residual rights” following removal and granting of temporary
custody to DCFS. This argument is unpreserved and, apart from
its application to reunification services, undeveloped on appeal.
Thus, while we conclude that a permanent guardian has the
right to seek reunification services, we do not consider whether
other residual rights, similar to those enjoyed by parents, might
apply to permanent guardians.
20150457-CA 5 2016 UT App 98In re Z.G.
guardianship, and “[i]ndividualized [p]ermanency” as potential
permanency goals); Utah Code Ann. § 78A-6-314(4) (directing
the juvenile court, once it has terminated reunification services,
to determine “whether termination of parental rights, adoption,
or permanent custody and guardianship is the most appropriate
final plan for the minor”). Indeed, it is considered such a
permanent arrangement that the Juvenile Court Act precludes a
parent from filing a petition for restoration of custody “during
the existence of a permanent guardianship established for the
child.” Utah Code Ann. § 78A-6-1103(3)(b) (LexisNexis Supp.
2015). The only other circumstances where such a petition is
precluded are where the child is in a secure youth corrections
facility or the parent’s parental rights have been terminated. See
id. § 78A-6-1103(1), (3)(a). Guardianship also divests parents of
certain residual parental rights. Id. § 78A-6-105(35)(b). In light of
the status the legislature has granted permanent guardianship,
we cannot see how it would further the goals of the legislature to
deny permanent guardians any opportunity to obtain
reunification services.
¶11 For these reasons, we conclude that permanent guardians
have standing to seek reunification services. We now turn to the
question of whether the juvenile court exceeded its discretion by
granting the guardian ad litem’s motion to deny services to
Guardian.
II. The Juvenile Court Did Not Exceed Its Discretion in Denying
Reunification Services to Guardian.
¶12 Despite agreeing with Guardian that she had standing to
seek reunification services, the State maintains that the juvenile
court acted within its discretion in determining that reunification
services were not in Child’s best interests under the
circumstances of this case. Guardian does not address this issue
and instead requests that we remand the case for the juvenile
court “to consider whether a grant of reunification services to
20150457-CA 6 2016 UT App 98In re Z.G.
*Guardian+ is warranted.” Because the juvenile court already
addressed this issue, in spite of its alternative ruling that
Guardian lacked standing, we decline to remand the case.
¶13 Even parents have no absolute right to receive
reunification services. In re N.R., 967 P.2d 951, 955–56 (Utah Ct.
App. 1998).
Whenever the court orders continued removal at
the dispositional hearing, and that the minor
remain in the custody of the division, the court
shall first: (a) establish a primary permanency plan
for the minor; and (b) determine whether, in view
of the primary permanency plan, reunification
services are appropriate for the minor and the
minor’s family . . . .
Utah Code Ann. § 78A-6-312(2) (LexisNexis Supp. 2015). Thus,
“reunification services need only be considered when they are
implicated by the primary permanency goal for a child.” In re
A.T., 2015 UT 41, ¶ 17, 353 P.3d 131.
¶14 Here, the juvenile court found that “ordering
reunification services to [Guardian] would not be in the best
interests of” Child. The court observed that in a very short
period of time, Child had been removed from her mother,
removed from Guardian twice, and given up by Guardian’s
mother. The court expressed reluctance to leave Child in limbo
while Guardian or Child’s parents attempted to get their lives
back on track: “And how long am I supposed to put *Child’s+ life
on hold? She’s almost three years old. Until she’s five? Until
she’s six? Until she’s 16?” The court was also concerned with
Guardian’s lack of honesty regarding her drug use. Given these
concerns, the juvenile court did not exceed its discretion in
determining that reunification services were not in Child’s best
interests.
20150457-CA 7 2016 UT App 98In re Z.G.
CONCLUSION
¶15 We determine that a permanent guardian has standing to
seek reunification services. However, under the circumstances of
this case, the juvenile court did not exceed its discretion in
determining that reunification services were not in Child’s best
interests. Accordingly, we affirm the juvenile court’s grant of the
guardian ad litem’s motion to deny reunification services to
Guardian.
20150457-CA 8 2016 UT App 98