In re E.R. , 2019 UT App 208 ( 2019 )


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    2019 UT App 208
    THE UTAH COURT OF APPEALS
    STATE OF UTAH, IN THE INTEREST OF E.R.,
    A PERSON UNDER EIGHTEEN YEARS OF AGE.
    J.R.,
    Appellant,
    v.
    STATE OF UTAH,
    Appellee.
    Opinion
    No. 20190184-CA
    Filed December 19, 2019
    Fourth District Juvenile Court, Provo Department
    The Honorable F. Richards Smith
    No. 1012098
    Margaret P. Lindsay, Attorney for Appellant
    Sean D. Reyes, Carol L.C. Verdoia, and John M.
    Peterson, Attorneys for Appellee
    Martha Pierce, Guardian ad Litem
    JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
    in which JUDGES GREGORY K. ORME and KATE APPLEBY concurred.
    CHRISTIANSEN FORSTER, Judge:
    ¶1    J.R. (Mother) appeals the juvenile court’s termination of
    her parental rights to E.R. We affirm.
    BACKGROUND
    ¶2     The Division of Child and Family Services (DCFS) has
    been involved with Mother and her family on and off since 2008.
    Between 2008 and Mother’s termination trial in 2018, DCFS
    In re E.R.
    made multiple supported findings of environmental neglect
    against both Mother and her husband (Father) with respect to
    their three children, as well as findings of emotional
    maltreatment, emotional abuse, domestic-violence abuse, and
    physical abuse against Father.
    ¶3    E.R. is the youngest of Mother’s three children and was
    eleven years old at the time of Mother’s termination trial. E.R.
    “has been diagnosed with behavioral and emotional
    dysregulation, secondary post-traumatic stress disorder (PTSD),
    mood disorder and Asperger’s.” E.R. has severe behavioral
    problems, including aggression and suicidal ideation.
    ¶4     Mother and Father divorced in 2013. “The current case
    was initiated in January 2016 when DCFS supported a finding of
    dependency against the parents as to” E.R. after he was
    hospitalized twice in the course of a month. The Utah State
    Hospital accepted E.R. for admission but eventually withdrew
    its placement offer after Father refused to consent to his
    hospitalization. Subsequently, DCFS sought and obtained a
    warrant to take E.R. into protective custody. The juvenile court
    awarded legal custody and guardianship of E.R. to DCFS and set
    concurrent goals for E.R. of reunification with Mother or
    permanent custody and guardianship with a relative. 1 DCFS first
    placed E.R. at the Utah State Hospital and later placed him with
    a foster family. On November 30, 2016, the court terminated
    reunification services after finding that neither parent was in
    substantial compliance with the reunification plan. The court
    then “set a primary goal of adoption with a concurrent goal of
    permanent custody and guardianship.” On September 28, 2017,
    the State filed a petition to terminate Mother’s and Father’s
    1. E.R.’s two older siblings continued to reside with Mother until
    they were removed in October 2016 as a result of several
    incidents of abuse and neglect by Mother.
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    parental rights, which was later bifurcated. The court terminated
    Father’s parental rights following a trial in March 2018.
    ¶5      Mother’s termination trial was held in August and
    November 2018, following which the court terminated Mother’s
    parental rights. The court found that Mother had made “some
    progress” in therapy but that she “continues to minimize her
    own issues and the role she played in the difficulties in her
    home.” The court attributed her progress “partly to her years of
    treatment, and partly to the fact that she has not been parenting
    [E.R.] for the last three years.” It further found that although E.R.
    and Mother are bonded and have had appropriate contact in
    their bi-weekly visits, Mother “does not possess the skills needed
    to effectively parent [E.R.] over time.” The court found grounds
    for termination based on its determination that Mother is “an
    unfit or incompetent parent,” that there had “been a failure of
    parental adjustment,” and that Mother had not remedied the
    circumstances causing E.R. to be in an out-of-home placement
    and was unlikely to be capable of exercising proper parental care
    in the future. See Utah Code Ann. § 78A-6-507(1)(c)–(e)
    (LexisNexis 2018).
    ¶6      The court found that E.R. had made “significant progress”
    through the “intense treatment he received at the State
    Hospital,” “ongoing treatment,” and the skills and efforts of his
    foster family. It found that E.R. was “bonded with his mother,
    and desires to have ongoing contact with her,” and that the
    “foster parents are supportive of appropriate ongoing contact
    between [E.R.] and his now-adult siblings, and between [E.R.]
    and his mother, and have encouraged such contact.” The court
    believed that “[i]f the foster parents were to adopt [E.R.,] they
    would continue to support that contact as long as it is healthy for
    [E.R.] and in his best interest.”
    ¶7    The court found that it was in E.R.’s best interest to be
    adopted by the foster parents. It observed that E.R. “has a
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    particular aversion to anything court related” and that court
    proceedings cause him significant distress. For this reason, the
    court determined that E.R. “has a significant need for stability in
    his placement” and that awarding permanent custody and
    guardianship to the foster parents, rather than terminating
    Mother’s rights and permitting him to be adopted, “would be
    detrimental to [him], and deny him the sense of permanency and
    stability that he so desperately needs.” The court therefore
    determined that terminating Mother’s parental rights was
    strictly necessary to further E.R.’s best interest. Mother now
    appeals the court’s termination decision.
    ISSUE AND STANDARD OF REVIEW
    ¶8      “The ultimate decision about whether to terminate a
    parent’s rights presents a mixed question of law and fact.” In re
    B.T.B., 
    2018 UT App 157
    , ¶ 8, 
    436 P.3d 206
     (quotation simplified),
    cert. granted, 
    440 P.3d 692
     (Utah 2019). We review the court’s
    factual findings for clear error and its legal conclusions for
    correctness, “affording the court some discretion in applying the
    law to the facts.” 
    Id.
     (quotation simplified). Ultimately, due to
    “the factually intense nature” of a termination decision, “the
    juvenile court’s decision should be afforded a high degree of
    deference,” and we should overturn it only if the result is
    “against the clear weight of the evidence” or leaves us “with a
    firm and definite conviction that a mistake has been made.” 2 In
    re B.R., 
    2007 UT 82
    , ¶ 12, 
    171 P.3d 435
     (quotation simplified).
    2. Mother challenges this standard of review, asserting that
    appellate courts should take a more active role in examining the
    correctness of a juvenile court’s decision regarding termination
    of parental rights in light of the important constitutional rights
    involved. She asserts that the “standard of review that has
    developed over time in termination of parental rights cases is so
    (continued…)
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    ANALYSIS
    ¶9      Mother argues that the juvenile court exceeded its
    discretion in terminating her parental rights. In assessing
    whether termination of parental rights is appropriate, a court
    must engage in a “two-part test.” In re B.T.B., 
    2018 UT App 157
    ,
    ¶ 13, 
    436 P.3d 206
    , cert. granted, 
    440 P.3d 692
     (Utah 2019). “First, a
    trial court must find that one or more of the statutory grounds
    for termination are present,” and second, “a trial court must find
    (…continued)
    deferential to the decision of the juvenile courts that . . . no
    longer do these decisions concern mixed questions” and that the
    standard of review “takes any responsibility and power in these
    mixed questions of law and fact away from the appellate court
    and affords total power and discretion to the individual juvenile
    courts around the State.” Mother urges us to reexamine the
    correct “spectrum of deference” for parental termination cases in
    light of the factors outlined by our supreme court in State v.
    Levin, 
    2006 UT 50
    , 
    144 P.3d 1096
    . 
    Id. ¶¶ 25, 28
    .
    However, we are not in a position to overturn the
    supreme court’s articulated standard of review, see State v.
    Tenorio, 
    2007 UT App 92
    , ¶ 9, 
    156 P.3d 854
     (“Vertical stare decisis
    compels a court to follow strictly the decisions rendered by a
    higher court.” (quotation simplified)), which instructs us to
    afford the juvenile court’s termination decision “a high degree of
    deference,” In re B.R., 
    2007 UT 82
    , ¶ 12, 
    171 P.3d 435
    . Moreover,
    we have previously rejected the assertion that due process
    requires a more stringent standard of review in termination
    cases, In re S.Y.T., 
    2011 UT App 407
    , ¶¶ 31–37, 
    267 P.3d 930
    ,
    reaffirming the principle that the juvenile court’s superior
    opportunity to make witness-credibility determinations entitles
    it to a high degree of deference and that we should overturn
    termination decisions only “if the clear weight of that evidence is
    against the juvenile court’s determination,” 
    id. ¶¶ 36
    –37.
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    that termination of the parent’s rights is in the best interests of
    the child.” 
    Id.
     (quotation simplified). Mother does not contest the
    juvenile court’s determination that grounds existed to support
    termination, but she maintains that termination was not in E.R.’s
    best interest.
    ¶10 “[A] parent’s right to raise her child is a fundamental
    right, and although courts must view the ‘best interest’ element
    from the perspective of the child, in so doing courts should not
    forget the constitutional dimension of the parental rights on the
    other side of the ledger.” 
    Id. ¶ 55
    . “[A]s part of the ‘best interest’
    analysis required by the second element of the two-part test,
    along with all of the other facts and circumstances relevant to the
    case, trial courts should analyze whether termination of a child’s
    parent’s rights is ‘strictly necessary.’” 
    Id. ¶ 50
    ; see also Utah Code
    Ann. § 78A-6-507 (LexisNexis 2018) (“Subject to the protections
    and requirements of Section 78A-6-503, and if the court finds
    strictly necessary, the court may terminate all parental rights with
    respect to a parent if the court finds any one of the following
    [statutory factors] . . . .” (emphasis added)). An assessment of
    whether termination is strictly necessary “requires courts to
    explore whether other feasible options exist that could address
    the specific problems or issues facing the family, short of
    imposing the ultimate remedy of terminating the parent’s
    rights.” In re B.T.B., 
    2018 UT App 157
    , ¶ 55. “[I]f there is a
    practical way to keep parents involved in the children’s lives
    that is not contrary to the children’s best interests, a court should
    seriously consider such an option.” 
    Id.
     “After this consideration,
    if a juvenile court determines that no such alternatives are
    available or articulates supported reasons for rejecting
    alternatives that do exist, such findings are entitled to deference
    on appeal.” In re C.T., 
    2018 UT App 233
    , ¶ 16, 
    438 P.3d 100
    .
    ¶11 Mother asserts that the court did not adequately explore
    the feasibility of granting permanent custody and guardianship
    to the foster parents while permitting her to continue having
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    visitation rights. First, she points to the court’s observation that
    “the only issue before the Court in this matter is whether
    parental rights should be terminated” and that “[q]uestions of
    . . . potential permanent custody and guardianship . . . are not
    even before the Court at this time.” Mother contends that this
    statement demonstrates that the juvenile court misunderstood its
    duty to examine the feasibility of alternatives to termination.
    However, in context, it is clear that the court was merely
    explaining its inability to make a final ruling on other options at
    the time of the termination trial. The court further clarified,
    “[C]ertainly if parental rights are not terminated, it does not
    mean an automatic change in status. In fact, all it means is status
    quo until further decision by the Court. . . . I just didn’t want
    anyone to have false expectations regarding the outcome of this
    trial either way.” And the court’s written findings ultimately did
    address the feasibility of alternatives in the context of its best
    interest analysis.
    ¶12 The court found that E.R. is an autistic child with
    significant behavioral issues. He “has been diagnosed with
    behavioral and emotional dysregulation, secondary post-
    traumatic stress disorder (PTSD), mood disorder and
    Asperger’s.” His behavioral issues require his foster parents to
    “respond to [his] emotional dysregulation . . . , sometimes
    multiple times a day, and help him work through it, get back to
    rational thinking, and avoid escalation.” The court found that
    E.R. was “weary” of “DCFS and court involvement” and that
    “[p]articipation in court proceedings of any kind causes him
    distress, to the point that he doesn’t even want to be aware of
    when court hearings will occur.” The court found that E.R.
    “needs the stability and peace that would come with closure of
    the DCFS case and a permanent end to court involvement.” In
    light of E.R.’s specific needs and his aversion to court
    involvement, the court concluded, “[E.R.] has a significant need
    for stability in his placement. He needs to know where he’s
    going to stay, and who will be his permanent caretaker.” The
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    court further concluded that “[a]warding permanent custody
    and guardianship of [E.R.] to his foster parents . . . would leave
    open the specter of repeated court involvement in the form of
    orders to show cause, motions, hearings, and so forth, related to
    visitation compliance issues, visitation modification requests,
    etc.” and that this would be “detrimental to [E.R.], and deny him
    the sense of permanency and stability that he so desperately
    needs.”
    ¶13 Mother challenges these findings, asserting that E.R.
    would not need to be told about future court proceedings and
    that it was by no means certain that further court proceedings
    would actually occur once an order of guardianship and
    visitation was entered. But Mother’s challenges do not
    demonstrate that the juvenile court’s findings were against the
    clear weight of the evidence. Having examined the specific
    circumstances of this case and the individual needs of E.R., the
    court concluded that even the “specter” of future court
    involvement was detrimental to E.R. And even if a concerted
    effort were made to shield E.R. from knowledge about court
    dates, there is no guarantee that such efforts would be
    successful, especially if a contentious order to show cause or
    petition to modify were filed in the future. See In re J.P., 
    921 P.2d 1012
    , 1019 (Utah Ct. App. 1996) (discussing the nature of
    permanent guardianship and its lack of finality).
    ¶14 Although we have previously made it clear that the need
    for permanency “does not, by itself, establish that termination is
    in a particular child’s best interest,” In re D.R.A., 
    2011 UT App 397
    , ¶ 14, 
    266 P.3d 844
    , the court’s emphasis of E.R.’s need for
    permanency in this case was reasonable. The court did not rely
    on the general desirability of permanency but on E.R.’s personal
    need for permanency in light of his significant psychological
    issues and his particular aversion to anything court-related.
    These articulated reasons for rejecting the feasibility of
    permanent guardianship were supported by the evidence and
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    In re E.R.
    are entitled to deference. See In re C.T., 
    2018 UT App 233
    , ¶ 16.
    Thus, we decline to disturb the juvenile court’s finding that
    termination of Mother’s parental rights was in E.R.’s best
    interest.
    CONCLUSION
    ¶15 The juvenile court adequately examined the feasibility of
    alternatives to terminating Mother’s parental rights in assessing
    E.R.’s best interest, and its finding that termination was strictly
    necessary was not against the clear weight of the evidence.
    Accordingly, we affirm the juvenile court’s termination of
    Mother’s parental rights.
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Document Info

Docket Number: 20190184-CA

Citation Numbers: 2019 UT App 208

Filed Date: 12/19/2019

Precedential Status: Precedential

Modified Date: 12/21/2021