In re K.B... , 2024 UT App 114 ( 2024 )

2024 UT App 114THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF K.B.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
M.B.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Opinion
No. 20240136-CA
Filed August 8, 2024
Second District Juvenile Court, Farmington Department
The Honorable Sharon S. Sipes
No. 1202076
Colleen K. Coeberg, Attorney for Appellant
Sean D. Reyes and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES GREGORY K. ORME, MICHELE M. CHRISTIANSEN
FORSTER and AMY J. OLIVER.
PER CURIAM:
¶1 M.B. (Mother) appeals the termination of her parental
rights in K.B. and K.B. (Children).
¶2 Mother asserts that the juvenile court’s determination that
the Division of Child and Family Services (DCFS) made active
efforts to provide services to Mother was clearly erroneous.
Children are within the scope of the Indian Child Welfare Act
(ICWA). See 25 U.S.C. §§ 1901—1963. Under section 1912 of
In re K.B
ICWA, before terminating the parental rights of a parent of an
Indian child, the juvenile court must determine that “active efforts
have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family
and that these efforts have proved unsuccessful.” Id. § 1912(d). A
juvenile court’s determination regarding the provision of services
is “a mixed question of fact and law.” In re A.C., 2004 UT App 255,
¶ 9, 97 P.3d 706 (quotation simplified). “[T]he determination of
whether [the active efforts] standard has been met should be
made on a case-by-case basis.” In re C.D., 2008 UT App 477, ¶ 35,
200 P.3d 194. “Accordingly, the juvenile court is afforded some
discretion on this issue.” Id. “We review the juvenile court's
factual findings for clear error and its conclusions of law for
correctness, affording the court some discretion in applying the
law to the facts.” Id. (quotation simplified).
¶3 Mother does not challenge any of the findings of fact
underlying the juvenile court’s determination that active efforts
were made. Rather, she argues that the court’s determination that
DCFS made active efforts to provide services to Mother was not
supported by the evidence. She also contends that the court
improperly relied on expert testimony from the Colorado River
Indian Tribes’ (Tribe) ICWA expert (Tribe Representative).
¶4 Mother first argues that the juvenile court improperly
relied on Tribe Representative’s expert testimony. Tribe
Representative testified that DCFS provided information
regarding the case to Tribe, included Tribe Representative and
Tribe counsel in regular meetings, accepted suggestions
regarding the case, and provided appropriate services to Mother.
Tribe Representative also stated that the services DCFS offered
were essentially the same as Tribe would have provided. There
were no other services identified from which Mother would have
benefitted that were not offered. Tribe Representative opined that
the services provided by DCFS constituted “active efforts.”
20240136-CA 2 2024 UT App 114In re K.B
¶5 Mother asserts that the juvenile court “simply adopted the
ICWA expert’s opinion regarding active efforts” when such
expert testimony was not required. Although expert testimony
regarding “active efforts” is not required, see In re P.F., 2017 UT
App 159, ¶ 32, 405 P.3d 755 (quotation simplified), the court may
consider expert testimony on the issue, see id. ¶ 33. No objection
was made to Tribe Representative’s testimony. The court was
entitled to consider the expert testimony as part of its analysis of
whether DCFS made active efforts. See id. Furthermore, Mother’s
assertion that the court “simply adopted” Tribe Representative’s
opinion is incorrect. The court referred to the testimony as part of
its analysis and found it to support the determination that DCFS
made active efforts to provide remedial services.
¶6 Mother also argues that the juvenile court’s finding is not
supported by the evidence. Although Mother faults the court’s
analysis for not including “meticulous findings,” she does not
challenge here any of the more than two hundred findings of fact
regarding the proceedings, including many specifically regarding
the services provided in an effort to prevent the breakup of the
family. The court’s findings of fact included numerous findings
regarding the services provided, follow up with Mother on issues,
active communication with Tribe, Mother’s compliance with
some provisions of the service plan, and Mother’s lack of
compliance with other parts of the service plan. The findings
support the juvenile court’s analysis of the efforts made. Mother
implies that the summary of facts in the analysis constitute the
whole of the findings, which is inaccurate.
¶7 Although the juvenile court made numerous findings of
fact that support its determination that DCFS made active efforts
to provide services, Mother contends that other evidence should
be weighed against the determination of active efforts. A finding
of fact in parental termination proceedings will not be overturned
unless it is against the clear weight of the evidence or the appellate
court otherwise reaches a conviction that a mistake has been
20240136-CA 3 2024 UT App 114In re K.B
made. See In re S.Y., 2003 UT App 66, ¶ 11, 66 P.3d 601. The weight
of the evidence in the record supports the juvenile court’s finding
that DCFS made active efforts.
¶8 Mother argues that the DCFS caseworker (Caseworker)
should have done more in areas where Mother had not complied
with the service plan. She contends that Caseworker should have
consulted with Mother’s criminal attorney to assist with Mental
Health Court. However, Caseworker testified that DCFS has no
control over Mental Health Court or compliance in criminal
matters that are beyond the scope of the underlying proceeding.
Caseworker also testified that there may have been some question
about Mother’s eligibility for Mental Health Court depending on
the charges. Mother also asserts that Caseworker should have
done more to get Mother to comply with a requirement to get a
medication management assessment. Mother consistently
declined to take medication, even after multiple discussions.
Caseworker engaged in multiple discussions with Mother, but
Caseworker also testified there is no mechanism to force a parent
to take medication. Additionally, Caseworker followed up with
Mother multiple times regarding releases and forms, but
Caseworker testified she could not fill out forms for Mother.
Overall, Mother resists responsibility for her own recalcitrance
and seeks to attribute that responsibility to DCFS. But, the weight
of the evidence, including the services provided by DCFS,
Caseworker’s regular communication and follow up with Mother
and Tribe, and expert testimony from Tribe Representative,
supports the juvenile court’s finding that DCFS made active
efforts to provide services to Mother.
¶9 Mother also asserts that the juvenile court improperly
relied on hearsay to determine that Mother continued her criminal
activity. Mother identifies an objection to particular testimony
and challenges a specific finding of fact. However, the testimony
and objection do not relate to the challenged finding.
20240136-CA 4 2024 UT App 114In re K.B
¶10 Caseworker testified regarding Mother’s continued
criminal activity. Caseworker testified that Mother had been
arrested twice since Caseworker had come onto the case in
September 2022. Mother had been jailed for each arrest. Those
arrests were supported by the criminal court dockets admitted as
exhibits without objection. Caseworker also testified that the
parents’ (Parents) relationship was frequently discussed at team
meetings. Parents both reported that they were no longer
together. Caseworker requested police reports to monitor Parents’
interactions with law enforcement. She received about fifteen
reports from September 2022 to May 2023. Although Parents
denied that they were together, Caseworker testified that several
of the police reports involved both parents and were labeled as
family disturbance or domestic violence interactions. Based on the
police reports, Caseworker was concerned about Parents’
relationship and their honesty. No objection was made to this
testimony.
¶11 Caseworker also testified that she had concerns regarding
whether Mother had internalized the information from services in
which she had participated. Caseworker explained her concern by
referring to the police reports she had seen that indicated
domestic violence issues. It is this testimony to which an objection
was made. Mother’s counsel stated that the testimony was
hearsay as to the content of the police reports. The court overruled
the objection because the court determined that the testimony was
not offered for the truth of matter of the content of the police
reports. Rather, the testimony provided the rationale for
Caseworker’s continued concerns about Mother.
¶12 On appeal, Mother asserts that the juvenile court used the
challenged testimony as affirmative evidence of domestic
violence. She specifically challenges finding of fact number ten:
“On January 16, 2022, [Mother] was arrested after police
responded to a report of domestic violence at [Parents’]
apartment. [Mother] was released with a jail release no contact
20240136-CA 5 2024 UT App 114In re K.B
order from the district court. On January 17, 2022, [Mother] was
arrested for violating that order.” However, the challenged
testimony and police reports involve a time period well after
January 2022. The challenged finding was not based on the
identified testimony. Furthermore, there is no finding of fact that
is specifically based on the identified testimony. 1
¶13 To the extent that Mother contends the challenged finding
of fact is unsupported because it is from an unproven petition, she
is partially correct. The fact of Mother’s arrest in January 2022 and
the resulting removal of Children are established through
testimony. The details that the police responded to a report of
domestic violence and that Mother subsequently was arrested
again for violating a no contact order appear not to be
independently supported in the record on appeal.
¶14 Mother contends that this unsupported finding of fact
affected multiple grounds for termination. The juvenile court
referred to the January 2022 arrest and domestic violence in a few,
but not all, of the multiple grounds for termination found by the
court. However, a finding of any single ground is sufficient to
support the termination of parental rights. Utah Code § 80-4-
301(1) (providing “the juvenile court may terminate all parental
1. Mother asserts that inadmissible hearsay led to the court’s
finding regarding “inconsistencies between the parents’ reports
of their no contact and numerous police reports of ongoing
domestic violence between the parents.” This misstates the
finding. The complete finding related to discussions at family
team meetings: “At family team meetings, the relationship
between the parents was discussed to address the inconsistencies
between the parents’ reports of their no contact and numerous
police reports of ongoing domestic violence between the parents.”
As noted above, no objection was made to Caseworker’s
testimony regarding the meetings and police reports obtained to
monitor Parents’ relationship.
20240136-CA 6 2024 UT App 114In re K.B
rights with respect to the parent if the juvenile court finds any one
of the” listed grounds for termination). Because the juvenile court
found grounds for termination that did not rely on the challenged
finding, any reference to the challenged finding is harmless error.
The independent grounds are sufficient to support the
termination of Mother’s parental rights.
¶15 Accordingly, the termination of Mother’s parental rights is
affirmed.
20240136-CA 7 2024 UT App 114