In re K.J. ( 2018 )

2018 UT App 216THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF K.J.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
J.J.,
Appellant,
AND
C.J.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
Nos. 20170812-CA and 20170814-CA
Filed November 16, 2018
Third District Juvenile Court, Salt Lake Department
The Honorable Susan H. Eisenman
No. 1131478
Sheleigh A. Harding, Attorney for Appellant J.J.
Jordan Putnam, Attorney for Appellant C.J.
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce and Natalia Peterson,
Guardian ad Litem
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 This case requires us to determine whether the State may
file a petition seeking termination of parental rights when the
child is already subject to ongoing abuse, neglect, and
In re K.J.
dependency proceedings. 1 We conclude that the plain language
of the Juvenile Court Act (the JCA) permits the State to file a
termination petition at any time. Accordingly, we affirm the
juvenile court’s order terminating C.J.’s (Mother) and J.J.’s
(Father) parental rights in K.J. (Child). 2
BACKGROUND
¶2 Mother and Father are the biological parents of Child. At
birth, Child tested positive for benzodiazepines, oxycodone, and
morphine and remained in the hospital’s neonatal intensive care
unit for eleven days for treatment related to opiate withdrawals.
¶3 Approximately three weeks after Child was born, he was
taken into custody by law enforcement, and the Division of
Child and Family Services (DCFS) filed a verified petition
alleging that Child was “an abused, neglected, or dependent
child.” The juvenile court held a shelter hearing and placed
Child in DCFS’s temporary custody. At the adjudication hearing,
the parents stipulated to certain factual findings, and the
1. Termination of parental rights proceedings are governed by
Part 5 of the Juvenile Court Act (the JCA), known as the
Termination of Parental Rights Act. See Utah Code Ann.
§§ 78A‑6-501 to -515 (LexisNexis Supp. 2018). Abuse, neglect,
and dependency adjudications, proceed under Part 3 of the JCA,
“Abuse, Neglect, and Dependency Proceedings.” See id.
§§ 78A‑6-301 to -324. Where the applicable statutory provisions
remain substantially unchanged or unless noted otherwise, we
refer to the current version of the Utah Code for convenience.
2. The juvenile court’s termination of Mother’s and Father’s
parental rights is the subject of separate appeals. Because both
parents’ arguments are the same, we issue a joint opinion
resolving both appeals.
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juvenile court adjudicated Child as neglected by Mother and
dependent as to Father. The court entered a dispositional order
in September 2016, ordering DCFS to provide reunification
services to Father but not to Mother who was incarcerated at the
time. After Mother’s release, the court ordered her to participate
in a substance abuse evaluation and to follow any
recommendations from that evaluation. In February 2017, the
court determined that reunification services had been successful,
transferred permanent custody of Child back to the parents, and
terminated its jurisdiction and DCFS’s involvement.
¶4 Five months later, in July 2017, DCFS filed another
verified petition alleging that Child was “abused and neglected.”
At that time, Mother was again incarcerated. The juvenile court
held a shelter hearing and placed Child in DCFS’s temporary
custody “for appropriate placement.” The court also appointed
counsel for both parents.
¶5 In August 2017, DCFS filed a verified petition seeking
termination of both Father’s and Mother’s parental rights. The
court scheduled a pretrial hearing and a trial on the termination
petition. During the pretrial hearing, the parents moved “for a
hearing for reunification services.” DCFS opposed the parents’
motion, asserting that there is no provision for reunification
services when DCFS files a termination petition instead of an
abuse and neglect petition. The juvenile court stated that it
would consider any motions for reunification services “filed in a
timely manner.”
¶6 Before trial, Father filed a “Motion to Stay Termination of
Rights Petition and Convert Trial Setting to Pretrial Hearing on
Underlying Petition.” In his motion, Father requested a stay of
the termination petition and argued that DCFS was required to
proceed on its abuse and neglect petition, “and only once [the
juvenile court] has determined that reunification services are
inappropriate should [DCFS] file a termination of rights
petition.” He further argued that “[t]he dispositional statute
clearly contemplates that there will be a hearing to determine
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whether reunification services are appropriate” and that, “[b]y
moving straight to a petition to terminate parental rights, the
State jumps over all of the safeguards and due process given to
the family in the dispositional statute.” See generally Utah Code
Ann. § 78A-6-312 (LexisNexis Supp. 2018) (discussing
dispositional hearings and reunification services).
¶7 DCFS objected to Father’s motion, arguing that Father
“does not have a constitutional right to reunification” and that
his “due process rights will be preserved and protected during
the trial” on the termination petition. DCFS further asserted that
“[t]here is no provision for reunification [services] to be granted
under the Termination of Parental Rights Act.”
¶8 At the beginning of the termination trial, the court
addressed and denied Father’s motion to stay. In its written
ruling, the court stated that it was not persuaded that Father’s
“due process rights are violated by the State pursuing alternative
petitions and acting on the more final petition first.” First, the
court determined that “there is no recognized substantive due
process right that would require the state to either dismiss . . . or
proceed on a verified [abuse or neglect adjudication] petition
prior to proceeding with a Petition for Termination of Parental
Rights.” The court recognized that parents have a “‘fundamental
liberty interest in the care, custody, and management of their
children’” and that, notwithstanding that interest, “‘a parent
shown by clear and convincing evidence to be unfit can be
permanently deprived of all parental rights.’” (Quoting In re J.S.,
2017 UT App 167, ¶ 7, 405 P.3d 828 (per curiam).) The court
observed that requiring the State to forgo “alternative
jurisdictional theories would dilute the State’s ‘moral and
statutory obligation to step in and protect children when those
children are suffering from neglect and abuse.’” (Quoting id.)
Thus, the court concluded, “[t]he separate filing does not
implicate [Father’s] substantive due process rights.”
¶9 Second, the court concluded that Father was not denied
procedural due process. Specifically, the court observed that the
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parties had “concede[d] that there is no constitutional or
statutory right to reunification services, nor do the presumptions
for or against reunification services apply to a verified petition
for termination of parental rights.” The court determined that
there is “no right to have a petition for adjudication [of abuse or
neglect] filed before a petition to terminate parental rights” and
that “the State or any party has the discretion to file a
termination petition whenever the parties believe there are
grounds to terminate parental rights.” The court observed that
Father (1) had participated in all of the proceedings since Child’s
birth, (2) had received notice of the termination petition, (3) had
been appointed counsel “at all stages of the proceeding,” and
(4) “had a full and fair opportunity to defend against” the
termination petition. The court determined that there was
“nothing ‘fundamentally unfair’ about proceeding with a
properly filed termination proceeding while a verified petition
alleging abuse and neglect remains filed and outstanding.”
¶10 Ultimately, the court terminated both parents’ parental
rights. Regarding Mother, the court found that (1) Mother had
neglected Child and was an unfit parent because she “habitually
and excessively use[d] controlled substances or dangerous drugs
that render[ed] her unable to care for [Child]”; (2) Child was
being cared for in an out-of-home placement and Mother had
“substantially neglected, willfully refused or [was] unable or
unwilling to remedy the circumstances that cause[d] [Child] to
be in an out-of-home placement[,] and there [was] a substantial
likelihood that [she would] not be capable of exercising proper
and effective parental care in the near future”; and (3) Mother
had experienced a failure of parental adjustment. See Utah Code
Ann. § 78A-6-507(1)(b), (d), (e) (LexisNexis Supp. 2018); id.
§ 78A-6-508(2)(c), (d). The court further determined that it was in
Child’s best interest to terminate Mother’s parental rights.
¶11 Regarding Father, the court found that (1) Father had
neglected Child and was an unfit parent because he “habitually
and excessively use[d] controlled substances or dangerous drugs
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that render[ed] him unable to care for [Child]”; (2) Child was
being cared for in an out-of-home placement and Father had
“substantially neglected, willfully refused or [was] unable or
unwilling to remedy the circumstances that cause[d] [Child] to
be in an out-of-home placement[,] and there [was] a substantial
likelihood that [he would] not be capable of exercising proper
and effective parental care in the near future”; and (3) Father had
experienced a failure of parental adjustment. See id.§ 78A‑6‑507(1)(b), (d), (e); id. § 78A-6-508(2)(c), (d). The court also
took judicial notice “of its disposition and review orders related
to [Father]” and found that “the services provided to [Father] in
2016 when [Child] was removed the first time were reasonable.”
The court further determined that it was in Child’s best interest
to terminate Father’s parental rights.
¶12 The parents moved to amend the order terminating their
parental rights under rule 59 of the Utah Rules of Civil
Procedure. See Utah R. Civ. P. 59(a)(7) (“[A] new trial may be
granted to any party on any issue for any of the following
reasons: . . . that the verdict or decision is contrary to law or
based on an error in law.”). They asserted that the juvenile
court’s ruling that the State could proceed on its termination
petition instead of the underlying abuse and neglect petition was
contrary to this court’s decision in In re S.F., 2012 UT App 10,
¶ 43, 268 P.3d 831. According to the parents, In re S.F. stands for
the proposition that, where juvenile court jurisdiction is
terminated in an earlier case, the child welfare proceedings must
begin anew, which requires a shelter hearing, adjudication,
disposition, and a permanency hearing before the State can seek
termination of parental rights. Thus, the parents asserted, the
State should have been required to “proceed on its underlying
verified petition of abuse and neglect prior to proceeding on its
termination of rights petition.”
¶13 The juvenile court denied the parents’ motion. The court
was not persuaded by the parents’ arguments and disagreed
with their reading of In re S.F., concluding that the case held that
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“when a child is removed after the Court’s jurisdiction is
terminated, the filing of a new petition is needed to reanimate
the Court’s jurisdiction.” But the court did not read the decision
“to limit how the Court’s jurisdiction is reanimated to only
custody petitions.” The court determined that “it is clear that
that juvenile court act procedures did begin anew in this case,”
explaining:
A new petition for custody was filed to take [Child]
back into protective custody. A shelter hearing was
held and the parents were afforded counsel and a
right to be heard. After the shelter hearing but
before adjudication of the first petition, the State
filed a second petition, this one requesting
termination of parental rights. The case proceeded
to adjudication: the termination of parental rights
petition was adjudicated, and the order
terminating parental rights constituted the
dispositional order.
(Quotation simplified.) The court further stated that it “had
jurisdiction to hear either petition and it determined to hear . . .
the more determinative petition first.”
¶14 Mother and Father appeal.
ISSUE AND STANDARDS OF REVIEW
¶15 Mother and Father contend that their due process rights
were violated “when the juvenile court allowed DCFS to proceed
on its termination of [parental] rights petition, rather than
requiring DCFS to proceed on the underlying abuse/neglect
petition.” “Whether a parent has been afforded adequate due
process is a question of law, reviewed for correctness.” In re S.F.,
2012 UT App 10, ¶ 24, 268 P.3d 831 (quotation simplified).
“Likewise, any interpretation of the Juvenile Court Act is a
question of law, reviewed for correctness.” Id.20170812-CA and
20170814-CA 7 2018 UT App 216In re K.J.
ANALYSIS
¶16 “The right to raise one’s children is a fundamental liberty
interest protected by the Fourteenth Amendment to the United
States Constitution.” In re X.C.H., 2017 UT App 106, ¶ 14, 400
P.3d 1154 (quotation simplified); see also Utah Code Ann.
§ 78A‑6-503(1) (LexisNexis Supp. 2018) (“Under both the United
States Constitution and the constitution of this state, a parent
possesses a fundamental liberty interest in the care, custody, and
management of the parent’s child.”). “Accordingly, that right
may not be terminated without due process of law.” In re X.C.H.,
2017 UT App 106, ¶ 14 (quotation simplified); see also U.S. Const.
amend. XIV, § 1 (“No State shall . . . deprive any person of life,
liberty, or property, without due process of law . . . .”); Utah
Code Ann. § 78A-6-503(2) (LexisNexis Supp. 2018) (“The court
shall provide a fundamentally fair process to a parent if a party
moves to terminate parental rights.”).
¶17 Mother and Father contend that the State “should have
been required to proceed on the underlying abuse/neglect
petition” and that their due process rights were violated when
the juvenile court instead allowed the State to proceed on its
termination petition. Once the State filed its abuse and neglect
petition, the parents contend they then “had a due process right
to an adjudication of the abuse, neglect, and/or dependency
petition . . . , and to a dispositional hearing [thirty] days later.”
They assert that “[t]he dispositional statute clearly contemplates
that there will be a hearing to determine whether reunification
services are appropriate, and if not, then the case proceeds to a
permanency hearing, where a petition to terminate parental
rights could be filed.” 3 In other words, the parents contend that,
3. Mother and Father concede that “a parent does not have a
right to reunification services from the State of Utah.” See
generally In re N.R., 967 P.2d 951, 955–56 (Utah Ct. App. 1998)
(“Reunification services are a gratuity provided to parents by the
(continued…)
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once the State filed its abuse and neglect petition, the parents
were thereafter entitled to the full panoply of proceedings set
forth in Part 3 of the JCA before the State was permitted to seek
termination of either parent’s parental rights.
¶18 “When interpreting a statute, it is axiomatic that [our]
primary goal is to give effect to the legislature’s intent in light of
the purpose that the statute was meant to achieve.” Monarrez v.
Utah Dep’t of Transp., 2016 UT 10, ¶ 11, 368 P.3d 846 (quotation
simplified). As Utah courts have often noted, “the best evidence
of the legislature’s intent is the plain language of the statute
itself.” Id. (quotation simplified). “Our task . . . is to determine
the meaning of the text given the relevant context of the statute
(including, particularly, the structure and language of the
statutory scheme).” Id. (quotation simplified). We therefore
“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.” Id. (quotation simplified). Lastly, “we
avoid any interpretation which renders parts or words in a
statute inoperative or superfluous in order to give effect to every
word of a statute.” Id. (quotation simplified).
¶19 We see nothing in the JCA’s plain language prohibiting
the State from bringing a termination proceeding while an
abuse, neglect, or dependency proceeding is pending in the
juvenile court. We first address the statutory language,
concluding that the statutes’ language permits the State to file a
termination petition at any time during the pendency of an
abuse, neglect, or dependency proceeding. We then address the
case law upon which the parents rely.
(…continued)
Legislature, and [parents] thus have no constitutional right to
receive these services.”).
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A
¶20 The JCA contains multiple statutory avenues for the
termination of parental rights. To begin with, Part 3 of the JCA,
governing abuse, neglect, and dependency proceedings, sets out
a detailed process by which the State may intervene in the
parent‑child relationship, work to improve that relationship and
the conditions of the family, and seek to terminate a parent’s
parental rights if necessary. See generally Utah Code Ann.
§§ 78A‑6-301 to ‑324 (LexisNexis Supp. 2018). Pursuant to the
JCA, a juvenile court has exclusive original jurisdiction in a
proceeding concerning “a child who is an abused child,
neglected child, or dependent child.” Id. § 78A-6-103(1)(b).
¶21 Under Part 3, an abuse, neglect, or dependency
proceeding generally begins when, after taking a child into
protective custody, the State files a verified petition alleging that
the child has been abused, neglected, or is dependent. 4 See id.
§§ 78A-6-302, -304. The juvenile court is then required to hold a
shelter hearing pursuant to section 78A-6-306 to determine
whether continued removal and placement of the child in
DCFS’s temporary custody are necessary. See id. § 78A-6-306.
The matter then proceeds, and the court holds an adjudication
hearing. See id. § 78A-6-311. “If, at the adjudication hearing, the
court finds, by clear and convincing evidence, that the
allegations contained in the petition are true, it shall conduct a
dispositional hearing.” Id. § 78A-6-311(1). At the dispositional
stage, the juvenile court has myriad dispositional choices
available to it, from protective supervision, to reunification
services, to termination of parental rights. See id.
§§ 78A‑6‑117(2), ‑312(1)–(2). If the court does not order
4. Although “any interested person” may file an abuse, neglect,
or dependency petition, for our purposes we refer only to the
State. See Utah Code Ann. § 78A-6-304(2)(a) (LexisNexis Supp.
2018).
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reunification services, a permanency hearing must be held
within thirty days. Id. §§ 78A-6-312(26), -314(1)(b). If, at the
permanency hearing, the final plan for the child is to proceed
toward termination of parental rights, “the petition for
termination of parental rights shall be filed, and a pretrial held,
within [forty-five] calendar days after the permanency hearing.”
Id. § 78A-6-314(9).
¶22 Notably, section 78A-6-314 provides that nothing in the
section pertaining to the permanency hearing and the final
permanency plan “may be construed to . . . limit or prohibit the
filing of a petition for termination of parental rights by any
party, or a hearing on termination of parental rights, at any time
prior to a permanency hearing.” Id. § 78A-6-314(11)(c). “This
provision clearly contemplates the possibility that if a
termination trial is held prior to a permanency hearing and the
parent’s rights are terminated, then the parent may never receive
a permanency hearing.” In re S.F., 2012 UT App 10, ¶ 53, 268
P.3d 831.
¶23 The State concedes that this process is “the norm” and
that, “[i]n child welfare proceedings initiated by the State, it is
more typical that the proceedings begin with a petition pursuant
to Utah Code [section] 78A-6-304” seeking adjudication of abuse,
neglect, or dependency. But while that process may be “the
norm,” we agree with the State that “it is not a legal
requirement” for this process to occur before terminating
parental rights. In other words, while most termination cases
begin as abuse, neglect, and dependency cases, a termination
proceeding does not necessarily flow from an abuse, neglect, and
dependency proceeding. Nor does a termination proceeding
depend upon a prior adjudication of abuse or neglect.
¶24 Pursuant to Utah Code section 78A-6-103(1)(f),
juvenile courts also have exclusive original jurisdiction in
proceedings concerning “the termination of the legal parent-
child relationship in accordance with Part 5, Termination of
Parental Rights Act, including termination of residual parental
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rights and duties.” Utah Code Ann. § 78A-6-103(1)(f) (LexisNexis
Supp. 2018). 5 Section 78A-6-504 provides that “[a]ny interested
party . . . may file a petition for termination of the parent-child
relationship with regard to a child.” Id. 78A-6-504(1). “When
termination proceedings are initiated under [the Termination of
Parental Rights Act], the [juvenile] court must make two distinct
findings supported by clear and convincing evidence before a
person’s parental rights can be properly terminated.” In re
Adoption of T.H., 2007 UT App 341, ¶ 11, 171 P.3d 480. “First, the
court must find that the parent is below some minimum
threshold of fitness, such as finding that a parent is unfit or
incompetent based on any of the grounds for termination under
section 78A-6-507 of the Utah Code.” In re X.C.H., 2017 UT App
106, ¶ 34, 400 P.3d 1154 (quotation simplified); see also Utah Code
Ann. § 78A-6-507(1) (LexisNexis Supp. 2018) (listing the grounds
for termination of parental rights and providing that the finding
of a single enumerated ground will support the termination of
parental rights). Second, after finding at least one of the
enumerated grounds, “the court must find that the best interests
and welfare of the child are served by terminating the parents’
parental rights.” In re X.C.H., 2017 UT App 106, ¶ 34 (quotation
simplified); see also Utah Code Ann. § 78A-6-506(3) (LexisNexis
Supp. 2018).
¶25 Mother and Father do not challenge the constitutionality
or statutory procedures set forth under either Part 3 or Part 5 of
the JCA independently. Rather, they assert that due process
5. While juvenile courts have exclusive original jurisdiction to
consider the termination of the parental rights of parents who
are deemed unfit, pursuant to Utah Code section 78B-6-112, a
district court has jurisdiction “to terminate parental rights in a
child if the party who filed the petition is seeking to terminate
parental rights in the child for the purpose of facilitating the
adoption of the child.” Utah Code Ann. § 78B-6-112(1)
(LexisNexis Supp. 2018).
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prohibits the State from jumping to a termination proceeding
under Part 5, while an adjudication of abuse, neglect, or
dependency is proceeding under Part 3. Such a change in course,
the parents argue, deprives them of “the safeguards and due
process” provided in the adjudication statute. We are not
persuaded. The statutes do not prohibit the State from changing
course and, as we discuss later, infra ¶¶ 39–42, such a turn does
not violate the parents’ due process rights. The plain language of
the applicable statutes simply does not prohibit the State from
filing a petition seeking termination of parental rights while an
abuse, neglect, or dependency proceeding is pending in the
juvenile court. Indeed, as previously discussed, section 78A-6-
314 provides that nothing in the section relating to the
permanency hearing and the final permanency plan “may be
construed to . . . limit or prohibit the filing of a petition for
termination of parental rights by any party, or a hearing on
termination of parental rights, at any time prior to a permanency
hearing.” Utah Code Ann. § 78A-6-314(11)(c) (LexisNexis Supp.
2018) (emphasis added). Rather, we agree with the State that the
plain language of the JCA “allows for a termination petition to
be filed at any time [during an abuse, neglect, or dependency
proceeding], or even as a stand-alone action.”
¶26 Moreover, the JCA provides that juvenile courts have
exclusive original jurisdiction over “a child who is an abused
child, neglected child, or dependent child,” as well as “the
termination of the legal parent-child relationship in accordance
with Part 5, Termination of Parental Rights Act, including
termination of residual parental rights and duties.” Utah Code
Ann. § 78A-6-103(1)(b), (1)(f). Here, DCFS filed a verified
petition alleging that Child was “abused and neglected.” The
juvenile court held a shelter hearing and placed Child in DCFS’s
temporary custody “for appropriate placement.” Before
adjudication on the first petition, DCFS filed a second verified
petition seeking termination of both Mother’s and Father’s
parental rights. The juvenile court had exclusive original
jurisdiction over both petitions, and we agree with the juvenile
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court that the State may elect to proceed with the more final
petition first. Indeed, as the juvenile court observed, “[t]o require
the State to [forgo] alternative jurisdictional theories would
dilute the State’s ‘moral and statutory obligation to step in and
protect children when those children are suffering from neglect
and abuse.’” (Quoting In re J.S., 2017 UT App 167, ¶ 7, 405 P.3d
828 (per curiam).)
¶27 In sum, where an abuse, neglect, or dependency
proceeding is pending, nothing in the plain language of the JCA
prohibits the State from reasserting jurisdiction by filing another
petition seeking termination of parental rights.
B
¶28 Mother and Father direct our attention to In re S.F., 2012
UT App 10, 268 P.3d 831, for the proposition that the State must
go through all of the statutory child welfare proceedings under
Part 3, once initiated, before proceeding to termination under
Part 5. The parents’ reliance on In re S.F. is misplaced.
¶29 There, the father’s children were first placed in DCFS’s
protective custody in August 2007, and the juvenile court later
adjudicated the children as neglected. Id. ¶ 2. After twelve
months of reunification services, the juvenile court found that
the father had substantially complied with the treatment plan,
and the court returned custody and guardianship of the children
to the father “subject to protective supervision by DCFS.” Id.
¶¶ 3–4 (quotation simplified). The court also ordered DCFS to
create a new service plan for the father and scheduled a review
hearing for a few months later. Id. ¶ 4. Shortly after the father
entered into the new service plan, police responded to two
separate domestic violence incidents at his home, and in
November 2008, DCFS filed a petition seeking to have the
children removed from the father’s custody. Id. ¶ 5. The juvenile
court placed the children in DCFS’s temporary custody, having
determined that removal was necessary and in the children’s
best interests. Id. ¶ 7. At the next pretrial hearing, the State filed
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a petition to terminate the father’s parental rights, id. ¶ 9, and at
a subsequent hearing, the court denied further reunification
services to the father, see id. ¶¶ 10, 13–14. The case proceeded to
a termination trial, and the court ultimately terminated the
father’s parental rights. Id. ¶ 16.
¶30 On appeal, the father asserted that the juvenile court
failed “to hold statutorily-mandated child welfare proceedings”
after his children were removed for the second time and that the
juvenile court therefore exceeded its “jurisdiction and violated
his due process rights.” See id. ¶ 24. More specifically, he argued
that when his children were returned to DCFS’s custody in
November 2008, the juvenile court was required “to adjudicate
the [c]hildren again in order to obtain jurisdiction over the
[c]hildren.” Id.
¶31 This court first determined that, although the juvenile
court had returned legal custody of the children to the father in
August 2008, the court had retained its dispositional authority
over the children as evidenced by the court’s order, which
anticipated continued protective supervision by DCFS and
required the father to enter into a new service plan. Id. ¶¶ 33, 35.
We determined that “as long as the juvenile court does not
dismiss the case or terminate jurisdiction, the court retains
dispositional authority over the [c]hildren because there has
been an initial legal determination that those [c]hildren are
abused, neglected, or dependent.” Id. ¶ 34. “In contrast, where
the juvenile court makes a ruling incompatible with a
continuation of its authority, the court’s jurisdiction ends.” Id.
Because the juvenile court “did not affirmatively renounce its
jurisdiction or enter any ruling incompatible with its continuing
authority,” the juvenile court retained jurisdiction over the
children. See id. ¶¶ 35–36.
¶32 Regarding the father’s argument that the juvenile court
was required to adjudicate the children as neglected again, this
court concluded that the juvenile court was not required to
restart the child welfare proceedings in November 2008. Id. ¶ 39.
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Observing that “the juvenile court did not amend the children’s
status as neglected [or] surrender its jurisdiction over the family”
in August 2008 when it restored legal custody to the father, we
determined that the court retained dispositional authority over
the children and could therefore return the children to DCFS’s
custody in November 2008. Id. ¶¶ 41, 44. As a result, the court
was not required to restart the child welfare proceedings after
the children’s second removal. That is, the court was not
required to hold a shelter hearing or readjudicate the children as
neglected. See id. ¶ 48.
¶33 Relevant to this appeal, this court also observed, in dicta,
that under a different set of circumstances—for example, if the
father “had abided by the service plan until the court had
terminated child supervision services and its jurisdiction, and
only then had engaged in domestic violence in front of the
[c]hildren”—“the situation would be entirely different.” Id. ¶ 43.
We stated that “[i]n such a case, where the court has terminated
its jurisdiction, the Juvenile Court Act procedures would begin
anew.” Id. (emphasis added). We then set forth a hypothetical
sequence of events that would occur in the new proceedings:
After taking the [c]hildren into protective custody,
the State would file a petition introducing new
allegations of neglect pursuant to Utah Code
section 78A-6-304(1)(b). The court would then hold
a shelter hearing pursuant to section 78A-6-306, the
result of which might be to remove the children
and place them in DCFS’s temporary legal custody.
After that, the matter would proceed to
adjudication.
See id. (quotation simplified).
¶34 The parents assert that In re S.F. demonstrates that “where
new grounds for removal occur after termination of jurisdiction”
in a previous case, the juvenile court is required to “restart the
child welfare proceedings.” Relying on the sequence of events
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described in In re S.F., the parents assert that they were entitled
to “an adjudication of the abuse, neglect, and/or dependency
petition . . . , and to a dispositional hearing 30 days later,” at
which hearing the juvenile court could have determined whether
reunification services were appropriate. See id. ¶ 43. We are not
persuaded.
¶35 In In re S.F., this court was concerned with the juvenile
court’s jurisdiction over the children, not with setting forth a
mandatory sequence of events that must occur in all child
welfare proceedings before a party can seek termination of
parental rights. Specifically, we observed that “where the court
has terminated its jurisdiction, the Juvenile Court Act
procedures would begin anew,” which would involve the filing
of a new petition. See id. But as the juvenile court in this case
correctly observed, In re S.F. does not “limit how the [c]ourt’s
jurisdiction is reanimated.” The juvenile court’s jurisdiction may
be reanimated with a petition alleging abuse, neglect, or
dependency, or with a petition seeking termination of parental
rights. Our legislature has given juvenile courts exclusive
original jurisdiction over both types of proceedings. See Utah
Code Ann. § 78A-6-103(1)(b), (1)(f) (LexisNexis Supp. 2018).
Here, the juvenile court had jurisdiction over both the State’s
abuse and neglect petition and its termination petition. Thus, as
previously discussed, the only issue was deciding on which
petition to proceed, and the State opted to proceed on the
termination petition. As such, the statutory procedures relating
to abuse, neglect, and dependency proceedings in Part 3 of the
JCA had no bearing on the termination proceedings.
¶36 Our conclusion is supported by this court’s decision in In
re A.K., 2012 UT App 232, 285 P.3d 772. In that case, the daughter
had been removed from her mother’s custody twice. Id. ¶¶ 3–4.
Both times, the daughter was returned to the mother’s custody
with protective supervision services. Id. ¶¶ 3, 5. DCFS later filed
a joint petition for custody and termination of the mother’s
parental rights. Id. ¶¶ 6–7. The juvenile court ordered removal of
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both the daughter and mother’s infant son (daughter’s third
removal and son’s first removal), granted custody to DCFS, and
set a discovery schedule for the termination hearing. Id. ¶ 7. The
court ultimately terminated the mother’s parental rights. Id. ¶ 10.
¶37 On appeal, the mother asserted that “certain statutory
procedures were not followed after the final removal of her
children” and that the juvenile court therefore lacked
“jurisdiction to hear the State’s petition to terminate her parental
rights.” Id. ¶ 11. More specifically, she asserted that the juvenile
court “failed to hold a shelter hearing, an adjudication, and a
dispositional hearing,” and that the juvenile court was
“deprived of jurisdiction by its failure to strictly comply with the
statutory procedures for the abuse, neglect, and dependency
proceedings.” Id. ¶¶ 15–16.
¶38 This court disagreed, observing that juvenile courts have
jurisdiction over proceedings concerning “‘a child who is an
abused child, neglected child, or dependent child,’” id. ¶ 16
(quoting Utah Code Ann. § 78A-6-103(1)(c) (Supp. 2012)), and
that juvenile courts also have a separate statutory basis for
jurisdiction in proceedings concerning “‘the termination of the
legal parent-child relationship in accordance with Part 5,
Termination of Parental Rights Act,’” id. ¶ 17 (quoting Utah
Code Ann. § 78A-6-103(1)(g) (Supp. 2012)). Consequently, this
court concluded that, “[e]ven if the alleged defects deprived the
court of jurisdiction over abuse, neglect, and dependency
proceedings,” the juvenile court “clearly had jurisdiction over
the termination proceedings . . . pursuant to subsection (1)(g).”
Id. In other words, any jurisdictional defects in the underlying
adjudication were remedied by the termination proceeding,
which provided the juvenile court with an independent grant of
jurisdiction. 6 See id. Here, the State initially filed an abuse,
6. The mother in In re A.K. also asserted that the alleged
procedural defects violated her due process rights. In re A.K.,
(continued…)
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neglect, or dependency petition. Switching course, the State filed
a separate petition seeking termination of Mother’s and Father’s
parental rights. The State’s new petition under Part 5 of the JCA
called upon a separate grant of jurisdiction given to the juvenile
court. Consequently, the State’s abandonment of the Part 3
neglect adjudication proceedings did not impact its ability to
proceed to termination of parental rights pursuant to a Part 5
petition. See id.¶39 Mother and Father do not challenge the statutory
procedures set forth under either Part 3 (abuse, neglect, or
dependency adjudication) or Part 5 (termination of parental
rights) independently. Rather, they assert that due process
requires the State to follow through with the dispositional
portion of Part 3, once that adjudication process is initiated,
before changing course and commencing termination
proceedings under Part 5. We have already concluded that the
statutes do not prohibit the State from altering course in this
way, supra ¶ 25, and we are not persuaded that the State doing
so in this case infringed on the parents’ due process rights.
¶40 “Parties to a judicial proceeding are entitled to notice that
a particular issue is being considered by a court and must be
given an opportunity to present evidence and argument on that
issue before decision.” In re M.J., 2011 UT App 398, ¶ 51, 266
P.3d 850 (quotation simplified). “Parties are deprived of due
process when they are not properly informed of the nature of a
proceeding, or notice is not given sufficiently in advance to
(…continued)
2012 UT App 232, ¶¶ 12, 18, 285 P.3d 772. However, she failed to
“adequately demonstrate[] what the alleged procedural
deficiency was or how, under the facts of [the] case, any alleged
deficiency violated her due process rights.” Id. ¶ 20.
Consequently, she failed to carry her burden of persuasion on
her due process claim. Id. ¶ 36.
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allow preparation.” In re A.H., 2004 UT App 39, ¶ 11, 86 P.3d
745. “Judicial and administrative proceedings following the
State’s removal of children from their home are no exception to
this fundamental principle.” Id. ¶ 12.
¶41 Here, once the State filed its termination petition, the
juvenile court scheduled a pretrial hearing on the petition and
set a date for the termination trial. See supra ¶ 5. Both parents
had proper notice of both hearings and an opportunity to argue
their positions at both hearings. See supra ¶¶ 5–8. In addition,
each parent was assisted by legal counsel throughout the
termination proceedings. See supra ¶ 4. The fact that the parents
were ultimately unsuccessful in their arguments does not mean
that they did not receive the due process to which they were
entitled.
¶42 As a general consideration, we note that the State’s
decision regarding which cases should proceed through the
statutory abuse, neglect, and dependency proceedings and
which cases should proceed directly, or more swiftly, to
termination proceedings does seem somewhat arbitrary. But the
State’s decisions in that regard fall squarely within its use of
executive discretion. “It is not a function of the courts to review
the exercise of executive discretion,” see State v. Garcia, 504 P.2d
1015, 1015–16 (Utah 1972), and given the plain language of our
current statutory scheme, we cannot conclude that it was a
violation of due process for the State and DCFS to deviate from
the usual sequence of events in abuse, neglect, and dependency
proceedings and to proceed on the termination petition instead.
¶43 The Guardian ad Litem is correct that what the parents
seek in this case is “a legislative remedy, not a judicial one.”
“The policy of the law in this instance has been set by the
legislature, as is its responsibility.” See In re S.L., 1999 UT App
390, ¶ 56, 995 P.2d 17 (Wilkins, J., concurring). That policy allows
the State to determine how to proceed in child welfare
proceedings. If this is not what the legislature intended, then it
should consider amending the relevant portions of the JCA to
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limit the circumstances under which the State may abandon
pending abuse, neglect, and dependency proceedings in favor of
termination proceedings. 7
CONCLUSION
¶44 We conclude that the State was not required to see its
abuse, neglect, and dependency petition through to its end
before the State could file and proceed on a separate termination
petition. Both parents had notice of, and a meaningful
opportunity to participate in, the termination proceedings, and
we therefore conclude that they each received the due process to
which they were entitled. Accordingly, we affirm the juvenile
court’s termination of Mother’s and Father’s parental rights.
7. Regarding the juvenile court’s grounds for termination of the
parents’ parental rights, Mother and Father both assert that their
“only argument . . . in response to each of the grounds for
termination of parental rights [is] that [they were] not afforded
an opportunity to correct these problems by the juvenile court in
violation of due process.” They concede that “the due process
argument is key to the entirety of [their] appeal[].” Because we
have concluded that Mother’s and Father’s due process rights
were not violated, we need not address the court’s grounds for
termination.
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