In re M.H.

This opinion is subject to revision before final
publication in the Pacific Reporter.
2014 UT 26
IN THE
SUPREME COURT OF THE STATE OF UTAH
———————
THE STATE OF UTAH, in the interest of M.H., M.H. and D.H.,
persons under eighteen years of age.
———————
D.H.,
Appellant,
v.
STATE OF UTAH,
Appellee.
———————
No. 20120213
Filed June 27, 2014
———————
Third District Juvenile, Tooele Dep’t
The Honorable Mark W. May
No. 1060238
———————
Attorneys:
Mark W. Wiser, Scott B. Wiser, Salt Lake City, for appellant
Sean D. Reyes, Att’y Gen., John M. Peterson, Asst. Att’y Gen.,
Salt Lake City, for appellee
Martha M. Pierce, Salt Lake City, for minors M.H. and D.H.
———————
JUSTICE LEE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, JUSTICE DURHAM, and
JUSTICE PARRISH joined.
ASSOCIATE CHIEF JUSTICE NEHRING filed a concurring opinion.
JUSTICE LEE, opinion of the Court:
¶1 This is an appeal from a juvenile court order adjudicating
the children of appellant D.H. “abused” and “neglected” under
Utah Code section 78A-6-105 (2008), and prohibiting any further
contact between D.H. and his children. D.H.’s appeal is premised
on a challenge to the juvenile court’s denial of a request for addi-
tional time to allow D.H.’s expert to conduct a pre-trial investiga-
tion. While recognizing the potential value of such an investiga-
tion, the juvenile court denied that request on the ground that the
IN RE M.H.
Opinion of the Court
governing statute required a final adjudication hearing in cases
like this one within sixty days of the filing of a petition. See UTAH
CODE § 78A-6-309(2).
¶2 We reverse and remand. Because the parties had jointly
stipulated to an extension of the sixty-day period set forth by stat-
ute, D.H.’s request for additional time to conduct an investigation
should not have been denied on the ground that the statutory
deadline had passed. Instead the juvenile court should have exer-
cised its discretion to decide whether further discovery was justi-
fied under the circumstances of the case. We reverse on that basis.
And we remand to allow the juvenile court to determine the terms
and conditions of additional time for pretrial investigation by
D.H.’s expert and to hold a new final adjudication hearing in light
of the results of that investigation.
I
¶3 D.H. and K.H. had been married for about ten years when
they divorced in 2010. They had three children, M.H., Mw.H., and
Dn.H. Under their divorce decree, K.H. (the mother) was awarded
sole custody, with D.H. (the father) retaining rights to visitation,
or statutory “parent-time.”
¶4 In or about April 2011, K.H. began to refuse to make the
children available to D.H. for parent-time. She did so based on her
claim that her son, M.H., then five years old, had told her that his
father had let M.H. look at “naked magazines” and had threat-
ened violence if M.H. told his mother about it. K.H. responded by
reporting the incident to the Division of Child and Family Ser-
vices (DCFS) and by requesting therapy through Valley Mental
Health.
¶5 DCFS investigated K.H.’s complaint but ultimately dis-
missed it as insufficiently supported. In May 2011, however, M.H.
began to see a therapist with Valley Mental Health. Later, in Sep-
tember 2011, M.H. allegedly told the therapist that his father had
made M.H. touch his father’s penis, that his father then touched
his penis, that his father had put his finger in M.H.’s anus, and
that his father had made M.H. lick his father’s penis. M.H. made
the same charges in a recorded interview at the Tooele County
Children’s Justice Center.
¶6 In light of these allegations, the State filed a juvenile court
petition under Utah Code section 78A-6-304, seeking an adjudica-
2
Cite as: 2014 UT 26
Opinion of the Court
tion that D.H. had abused and neglected M.H., Mw.H., and Dn.H,
under Utah Code section 78A-6-105 (2008). 1 The petition was filed
on November 14, 2011. Under Utah Code section 78A-6-309(2), the
State’s petition triggered a requirement of a hearing within “60
calendar days” of the “filing of the petition.” 2
¶7 At pretrial conference on November 17, 2011, the juvenile
court entered an order suspending D.H.’s parent-time with M.H.,
restricting D.H. to supervised visits with his other children, and
directing that the children remain in the custody of K.H. during
the pendency of the proceedings. At that same hearing, D.H. as-
serted a right to “have his own individual therapist . . . talk to the
children,” and to have an expert conduct an “independent evalua-
tion” in preparation for trial on the State’s petition. The juvenile
court agreed, indicating that DCFS could supervise the evaluation
process using its “best judgment.”
¶8 D.H. also requested an order that K.H. be required to “co-
operate with making the children available” to meet with D.H.’s
expert. The court agreed, while cautioning that the children
should not be subjected to an excessive number of meetings with
the expert. And the court also ordered that the children be re-
quired to meet with an expert of D.H.’s choosing, although for
some reason that requirement did not appear in the court’s mi-
nute entry or in any written order.
¶9 Despite the court’s orders, K.H. refused to cooperate with
D.H.’s attempts to have his expert meet with the children. On two
separate occasions, K.H. declined to make the children available
for scheduled appointments with D.H.’s expert. D.H. responded
by filing a motion for an order to show cause.
¶10 The juvenile court heard argument on this motion at a pre-
trial conference on December 15, 2011. At that hearing K.H. con-
ceded that she had failed to make her children available for ap-
1 Section 78A-6-105 has been amended and renumbered three
times since the 2008 version, in 2011, 2012, and 2014. All citations
to section 78A-6-105 in this opinion refer to the 2008 version of the
statute.
2 Technically, the statute requires a final adjudication hearing
within sixty days of the later of the date of a “shelter hearing” or
“the filing of the petition.” UTAH CODE § 78A-6-309(2).
3
IN RE M.H.
Opinion of the Court
pointments with D.H.’s expert. But she claimed that she had done
so on advice of counsel—a new attorney who had not been pre-
sent at the November 17 pretrial hearing, and who apparently had
based his advice on the lack of a written order or minute entry re-
flecting a requirement that she make the children available for
consultation with D.H.’s expert. The juvenile court then con-
firmed—and the parties apparently agreed—that such an order
had in fact been issued orally by the judge at the November 17
hearing. Because the order had not been reflected in writing,
however, the court declined to find K.H. in contempt, and instead
proceeded to clarify her obligations going forward.
¶11 Specifically, the court ordered K.H. to make M.H. and
Mw.H. available for one meeting with D.H.’s expert some time
before January 5, 2012. When D.H. objected, insisting that a single
visit would not be enough, the court responded by requiring that
D.H.’s expert submit a letter by the next hearing (on January 5,
2012) setting forth the “protocol and procedure” for any addition-
al visits that he requested and specifying the time needed for any
such visits.
¶12 D.H. then raised a concern regarding the impending sixty-
day statutory deadline for a hearing on the State’s petition—a
deadline that would require a hearing on or before January 13,
2012. Given that expert discovery had been stalled by K.H. from
the time of the filing of the petition on November 14 through the
date of the pretrial hearing on December 15, and in light of the
additional difficulty presented by the impending holiday season,
D.H. requested an extension of the statutory deadline, emphasiz-
ing the need for additional time for his expert to meet with M.H.
¶13 The court acknowledged D.H.’s motion to “waive” his
statutory right to a trial within sixty days to allow for additional
time for D.H.’s expert to meet with M.H. prior to trial. The court
then turned to counsel for K.H., counsel for the State, and counsel
for the children (an attorney from the Guardian ad Litem’s office)
and asked whether they had any objection. All parties stipulated
to waiver of the statutory deadline and to an extension of the trial
date.
¶14 The initial court-ordered meeting of D.H.’s expert with
M.H. took place on December 28, 2011. According to the expert,
he had a difficult time during this visit getting direct answers to
4
Cite as: 2014 UT 26
Opinion of the Court
his questions from M.H. because his older brother Mw.H. was
present and dominated the conversation “even when M.H. was
asked to respond.” The expert also indicated a concern, based on
M.H.’s responses and body language, that “it seemed clear he was
being led [by Mw.H.] to say things.” In light of these concerns, the
expert indicated that he needed additional time with M.H. to pre-
pare to testify at trial, while also representing that his holiday
schedule had not allowed time to prepare a formal letter to the
court as requested.
¶15 The parties next appeared in the juvenile court for another
pretrial hearing on January 5, 2012. At that hearing D.H. formally
requested additional time for expert discovery and trial prepara-
tion. The court denied the request. Despite the parties’ prior stipu-
lation to waive the sixty-day statutory deadline for a hearing, the
court denied the request for additional time on the basis of the
impending deadline. It emphasized that “the statute says we have
to try these cases within 60 days,” and set a trial date on the basis
of the “legislative decision” to establish a “deadline” advancing
the interest of expedited resolution. In so doing, the court
acknowledged the value of further discovery, but concluded that
the legislature had indicated that it did not “want these issues to
linger,” but “want[ed] [the court] to make a decision based on the
evidence that’s there.” The court entered a written order to the
same effect, confirming the judge’s view that although all parties
“might benefit from more time to prepare for trial,” the “Legisla-
ture has had to take into account and balance the interests of all
parties,” and has “set a 60 day time limit on juvenile court adjudi-
cations.”
¶16 At that point D.H. raised a constitutional objection to the
sixty-day deadline prescribed by statute, challenging the provi-
sion both generally and as applied here. The court responded by
indicating that he would allow the parties to present further ar-
gument on the question whether the sixty-day deadline was con-
stitutional as a matter of due process. It also set the case for a two-
day bench trial on February 6 and 7, 2012.
¶17 The court denied D.H.’s constitutional challenge on Febru-
ary 2, 2012, concluding that D.H. had been afforded sufficient due
process and that the children’s interest “in seeing that juvenile
court proceedings do not linger” outweighed D.H.’s interest in
preparing his defense. The parties then proceeded to the bench
5
IN RE M.H.
Opinion of the Court
trial on February 6 and 7, 2012, where D.H.’s counsel in opening
renewed his assertion that his client’s “due process rights ha[d]
been prejudiced because of his almost no time to prepare ade-
quately for trial.”
¶18 At trial D.H.’s expert testified concerning his one meeting
with M.H. and Mw.H. He opined that although the court had not
allowed him enough time to properly evaluate M.H. and Mw.H.,
M.H.’s behavior and statements during their interaction indicated
that K.H. had asked M.H. to keep some sort of secret from him.
What that secret was he did not know, but the expert testified it
was important to find out. He also noted that during his interac-
tion with M.H., Mw.H. attempted to dominate the conversation
and answer questions on M.H.’s behalf. The expert declined to
give an opinion as to the abuse allegations, however, stating only
that he would need more time for such a determination.
¶19 The State, the Guardian ad Litem, and counsel for K.H. ob-
jected to the expert’s qualifications, in part because he had spent
so little time with the children. The court overruled the objections,
concluding that the objections affected only the weight to be given
to the expert’s testimony. On cross-examination, the State ques-
tioned the expert at length, challenging his ability to reach any re-
liable conclusions after only a single two-hour visit with the chil-
dren, and highlighting the fact that he had never visited with
M.H. alone.
¶20 At the close of the evidence, the juvenile court determined
that D.H. had sexually abused and neglected M.H under Utah
Code sections 78A-6-105(1), (19), (23), (25)(a)(ii), and (35), and ne-
glected Mw.H. and Dn.H. under section 78A-6-105(25)(a)(iv). In so
doing, the court rejected D.H.’s expert’s opinions as “sweeping
conclusions [based on] limited evidence.” The court ordered that
custody and guardianship of all three children be with K.H., ter-
minated all reunification services for D.H., and prohibited D.H.
from having any contact with M.H. and Mw.H. 3
3 The court allowed D.H. to have professionally supervised vis-
its with Dn.H., but only up to two hours twice a month, and at
D.H.’s expense.
6
Cite as: 2014 UT 26
Opinion of the Court
¶21 D.H. filed this appeal, which was certified to us by the
court of appeals. We review the matter on standards of review ar-
ticulated in the body of the opinion below.
II
¶22 D.H.’s appeal challenges the juvenile court’s decision on
due process grounds. Echoing part of the constitutional challenge
he raised in the juvenile court, D.H. asserts that the sixty-day
deadline prescribed by statute was constitutionally suspect as ap-
plied to the circumstances of this case. Citing Mathews v. Eldridge,
424 U.S. 319 (1976), D.H. asserts that constitutional principles of
due process should have required a further extension of the statu-
tory deadline for the hearing in this case to allow his expert an
opportunity for further discovery and trial preparation. He ar-
gues, specifically, that his parental interests are paramount, that
the government’s interest in opposing an extension was minimal,
and that there was a significant “risk of an erroneous deprivation”
of his rights and a significant “value” in a further extension. Id. at
334–35 (identifying the factors to be balanced in a procedural due
process analysis). And because the district court denied his re-
quest for a further extension, D.H. asserts that his due process
rights were denied by the juvenile court’s decision.
¶23 We reverse, but without reaching the constitutional ques-
tion presented by D.H. First, because all parties stipulated to ex-
tension of the sixty-day deadline prescribed by statute, we con-
clude that the statutory deadline was off the table, and that the
question presented was one to be decided by the juvenile court
judge as a matter of discretion. Second, we conclude that for that
reason the constitutionality of the sixty-day deadline was not
properly presented to the juvenile court and should not have been
addressed. And finally, we hold that D.H.’s request for more time
for expert discovery and trial preparation should have been
granted based on a balance of the relevant interests of all parties.
A
¶24 The threshold decision of the juvenile court was the deter-
mination (on December 15, 2011) to accept the parties’ stipulation
to waive the sixty-day deadline prescribed by statute. All parties
expressly agreed to that extension in the juvenile court. And no
one has challenged it on appeal.
7
IN RE M.H.
Opinion of the Court
¶25 In light of the stipulated, unchallenged waiver of the statu-
tory timeframe, the juvenile court should have deemed the sixty-
day deadline to be off the table. And the judge should thereafter
have proceeded to decide pretrial scheduling questions as matters
committed to his sound discretion. See Gardner v. Bd. of Cnty.
Comm’rs, 2008 UT 6, ¶ 51, 178 P.3d 893 (trial courts have broad
discretion in matters of discovery); DeBry v. Cascade Enters., 879
P.2d 1353, 1361 (Utah 1994) (pretrial scheduling and case man-
agement are matters for the trial court’s discretion).
¶26 The juvenile court judge erred in treating the statutory
deadline as somehow still controlling. In denying D.H.’s motion
for additional time for expert discovery and trial preparation, the
judge reverted back to the statutory deadline—asserting that “the
statute says we have to try these cases within 60 days,” and set-
ting a trial date on the basis of the “legislative decision” to estab-
lish a “deadline” for trials in cases such as this one. That was er-
ror, as the “legislative decision” had been waived by joint stipula-
tion of all parties. And the error was highlighted, moreover, in the
judge’s written order, which coupled a concession that the parties
“might benefit from more time to prepare for trial” with the re-
minder that the “Legislature has had to take into account and bal-
ance the interests of all parties” and has “set a 60 day time limit on
juvenile court adjudications.”
¶27 This was error. Because the parties stipulated to waive the
statutory deadline, the legislative directive of a final resolution at
the end of sixty days was no longer in effect. And with the statu-
tory timeframe off the table, the juvenile court should have exer-
cised its discretion to decide whether to allow D.H. additional
time for expert discovery. No such discretion was exercised. To
the contrary, the court acknowledged the possible value of grant-
ing further time for trial preparation, but deemed himself bound
by a statutory deadline that had previously been waived by joint
stipulation of all parties. 4
4 The decision to reverse on this basis stems from a straightfor-
ward assessment of the procedural history of the case—of the fact
that the parties and the court had unquestionably extended be-
yond the sixty-day deadline prescribed by statute. That procedur-
al fact, in turn, dictates the conclusion that the juvenile court
judge was mistaken in basing a refusal to allow further pretrial
8
Cite as: 2014 UT 26
Opinion of the Court
¶28 We reverse on that basis. Because the parties had jointly
stipulated to waive the statutory deadline, the court should have
proceeded to exercise its discretion. Its failure to do so was a
threshold, reversible error.
¶29 In so concluding, we respectfully disagree with the contra-
ry views advanced by Justice Nehring in his concurrence, which
concludes that the statutory deadline could not be waived because
“the parties and the court” had not “strictly compl[ied]” with our
Rules of Juvenile Procedure. Infra ¶¶ 41–53.
¶30 The concerns raised in the concurrence are not properly be-
fore us, as no party has questioned the validity of the stipulated
waiver of the statutory deadline—not on the grounds articulated
in the concurrence or on any other basis. The parties’ failure to
raise this issue is reason alone not to address it. A matter unpre-
served is a matter not properly presented, and our decision can be
sustained on that basis alone.
¶31 Rule 54 of the juvenile rules is not properly implicated. The
rule was certainly cited in the juvenile court and on appeal, see in-
fra ¶¶ 43 & 55, but not to raise the point pressed by the concur-
rence. Thus, at no point in these proceedings has the Guardian ad
Litem or any other counsel or party ever challenged the viability
of the stipulated waiver of the statutory deadline on the basis of a
lack of findings under rule 54. And even if they had, that rule
would hardly establish a basis for reversal given that (a) there was
no error under rule 54(c) because the rule includes an escape
preparation on the very deadline that had already been overridden.
And the procedural history of a case is not a legal “theory” that
must be argued by the parties in order to be “preserved.” See infra
¶ 55 (suggesting that waiver of the statutory deadline is a matter
that was “unpreserved”). It is simply an element of the context in
which we review the decisions that come before us on appeal.
Thus, if a lower-court decision is made on the basis of a mistak-
en procedural premise rendering its analysis advisory, an appel-
late court cannot be required to ignore the procedural history of
the case and to proceed on the basis of the same mistaken under-
standing. Instead, we must review the lower court decision in ac-
cordance with an accurate view of the procedural history of the
case. That is the basis of the approach we take here.
9
IN RE M.H.
Opinion of the Court
clause (“unavoidable circumstances,” UTAH R. JUV. P. 54(c)) that
could easily encompass a joint stipulation of all parties in a case
where the accused father has no access to the children and the
mother has inexcusably interfered with the father’s expert’s trial
preparation; (b) there was no error under rule 54(d) because the
parties’ joint stipulation could easily qualify as the practical
equivalent of a “written finding by the court,” UTAH R. JUV. P.
54(d) 5; and (c) in any event, any arguable error was harmless in
light of the joint stipulation of all parties through their counsel. 6
5 Office of the Guardian ad Litem ex rel. S.C. v. Anderson, 1999 UT
App 251, 987 P.2d 611, is distinguishable on that basis. In S.C., the
Guardian ad Litem attorney expressly objected to the requested ex-
tension and asserted that “it would not be in the best interests of
the children” to go beyond the statutory deadline. Id. ¶ 17 (em-
phasis omitted). The S.C. court’s requirement of explicit findings
makes sense in that context. But that requirement does not extend
to a case like this one, where counsel for the children made a stip-
ulation that served as an adequate substitute for findings.
6 To assess whether any arguable error by the juvenile court un-
der rule 54 would justify reversal (and thus reinstatement of the
statutory deadline), we would determine whether an express con-
sideration of the standards of rule 54 would be satisfied if the
court had considered them explicitly. We have little doubt on that
score. The express stipulation to waiver of the statutory deadline
by the attorney from the Guardian ad Litem’s office (counsel for
the children) easily establishes that the continuance would not
“adversely affect the interest of the child[ren]” as required by rule
54(c). And in any event, that point is hammered home by the un-
disputed fact that D.H.’s parent-time had been suspended and
K.H. had sole custody of the children throughout the proceedings
below. Moreover, the unusual circumstances of this case empha-
size the “unavoidable circumstances” justifying continuance of
the hearing beyond the “timeline[] established by statute,” as also
contemplated under rule 54(c). And finally, for all these reasons
any technical deficiency in a failure to memorialize “written find-
ing[s]” under rule 54(d) is likewise harmless. The record estab-
lishes ample grounds for a determination of the need for a contin-
uance in this “sexual abuse case[] involving child victims.” UTAH
R. JUV. P. 54(d). In light of these points, we would not find re-
10
Cite as: 2014 UT 26
Opinion of the Court
¶32 Granted, the governing statute speaks in mandatory terms.
See infra ¶ 45 & n.16 (noting that the term “shall” is “presumed
mandatory”). But a broad range of constitutional and statutory
rights and responsibilities are likewise framed in such terms. And
we roundly treat them as subject to knowing and voluntary waiv-
er. The constitutional right to a speedy trial is a prime example.
Under the Sixth Amendment “the accused shall enjoy the right to
a speedy . . . trial.” U.S. CONST. amend. VI (emphasis added). That
right is mandatory, but nonetheless subject to waiver,7 as are most
all rights in our legal system. 8 Thus, absent some clear statement
in a statute, or some established caselaw deeming a deadline ju-
risdictional, 9 the settled presumption is that statutory deadlines are
subject to waiver. We see no basis on the face of this statute to re-
but that presumption, and accordingly deem it subject to waiver.
¶33 We accordingly reverse the juvenile court’s threshold deni-
al of D.H.’s request for additional expert discovery time on the
basis of the statutory deadline under Utah Code section 78A-6-
309(2). Because that deadline was waived by all parties and was
accordingly off the table, the court should instead have exercised
its discretion to determine the appropriateness of any further ex-
tension of the statutory deadline and to proceed to set a timely
trial date.
versible (non-harmless) error even if the rule 54 issue had been
preserved, and even if a technical violation of the rule had been
established.
7 Barker v. Wingo, 407 U.S. 514, 529 (1972) (recognizing that the
Sixth Amendment right to a speedy trial is subject to waiver, and
indicating that “waiver may be given effect under standard waiv-
er doctrine” where “delay is attributable to the defendant”).
8 See United States v. Mezzanatto, 513 U.S. 196, 203 (1995) (noting
and relying on the “background presumption that legal rights
generally . . . are subject to waiver by voluntary agreement of the
parties”).
9 See, e.g., Bowles v. Russell, 551 U.S. 205, 214 (2007) (appellant’s
failure to file his notice of appeal within time limitations deprived
the court of appeals of jurisdiction and could not be excused by
forfeiture or waiver).
11
IN RE M.H.
Opinion of the Court
B
¶34 The juvenile court’s evaluation of the due process question
was also improper. That question was not properly addressed and
ruled upon below, and is thus not properly before us on appeal.
Instead of evaluating the question whether D.H.’s due process
rights were violated in the circumstances of this case, the juvenile
court assessed a hypothetical question—“whether the Legislature
provided the father with sufficient due process under the sixty
day requirement.” Yet that was not the issue before the court, as
the “60-day requirement” had been waived by the parties’ stipula-
tion. So the juvenile court was not in a proper position to “find[]
that Utah Code § 78A-6-319 provides sufficient due process,” as it
did in its order.
¶35 We accordingly vacate that portion of the juvenile court’s
order, as it was improperly advisory. And we likewise decline to
reach it here, as a matter not properly presented below is not an
appropriate matter for our attention on appeal.
C
¶36 The remaining question concerns the basis and scope of our
remand to the juvenile court. Above we found error in the deci-
sion treating the sixty-day statutory deadline as foreclosing any
further expert discovery and trial preparation. Here we proceed to
the subsequent question whether the court’s decision might none-
theless be sustained on an alternative ground—that a proper exer-
cise of discretion would have led the court to the same decision.
¶37 In our view the answer is no. First, there was substantial
upside in a further extension allowing D.H.’s expert additional
time for discovery and trial preparation. D.H. had a lot riding on
the proceeding—a determination that he sexually abused his
child, a decision threatening his parent-time and, potentially, his
fundamental right to have a say in the upbringing of his children.
See UTAH CODE § 78A-6-117(2). And his expert was substantially
unprepared to present effective testimony on his behalf, as coun-
sel for the State emphasized and the juvenile court ultimately con-
cluded.
¶38 Second, D.H.’s expert’s lack of preparation was a direct re-
sult of K.H.’s indefensible (borderline contemptuous) interference
with his attempts to pursue early pretrial discovery in initial
scheduled visits. Absent such interference, there is every reason to
12
Cite as: 2014 UT __
ACJ NEHRING, concurring
believe that D.H.’s expert would have been better prepared to tes-
tify at trial. And that interference is perhaps the reason that
K.H.—and all parties—readily agreed to D.H.’s initial request for
waiver of the statutory deadline. It is also a significant basis for a
further extension, as the one visit that was allowed did not appear
to have been enough given Mw.H.’s apparent interference with
the expert’s questioning of M.H.
¶39 Third, and for many of the same reasons, there were suffi-
cient grounds to believe that further time for expert discovery and
trial preparation might have made a difference to the outcome of
the trial. It is worth reiterating that D.H.’s expert acknowledged
the deficiency of his interactions with M.H. in the testimony he
provided at trial, that counsel for the State jumped on that point in
challenging his testimony on cross-examination and closing, and
that the court itself seized on the problem in announcing its deci-
sion. The point is not to express confidence that further expert
discovery will produce sufficient evidence to exonerate D.H. of
the charges against him. We do not and cannot know that at this
stage. But we can say that there was sufficient reason to justify
further discovery and trial preparation at the time that D.H. re-
quested it on January 5, 2012. And we reverse and remand on that
basis.
¶40 Our remand leaves for the juvenile court the determination
of the precise terms and conditions of further discovery and trial
preparation, and of the time for a new trial on the merits, subject
of course to the need to protect the interests of the children and to
proceed to trial as expeditiously as possible. But we do direct that
some further time for expert discovery and trial preparation is
necessary, with a new trial to follow.
———————
ASSOCIATE CHIEF JUSTICE NEHRING, concurring:
¶41 I cannot agree with the majority’s analysis that the statu-
tory deadline contained in Utah Code section 78A-6-309(2) was
waived; and thus I respectfully dissent and concur only in the
result. I do not say that the statutory deadline can never be
waived, but I would hold that waiver is only possible if the parties
and the court strictly comply with the relevant Utah Rules of
Juvenile Procedure. I would hold that no waiver of the mandatory
statutory deadline occurred because the juvenile court did not
13
IN RE M.H.
ACJ NEHRING, concurring
follow rule 54 of the Utah Rules of Juvenile Procedure, which
describes the procedure for granting a continuance in a child
welfare case. Moreover, the court did not actually accept any such
waiver where it imposed the statutory deadline on D.H. before
the sixty days were up. 1
¶42 I believe that Utah Code section 78A-6-309(2)’s sixty-day
deadline was in effect when the juvenile court imposed it upon
D.H. The statute was not “off the table” 2 both because it was not
properly waived and because in any event the court did not actu-
ally accept the purported waiver. This was made clear by the
court’s invocation of the sixty-day deadline at the hearing on
January 5, 2012—after the purported waiver but before the
deadline had yet passed. 3 Most importantly, I dissent because the
majority’s approach undermines both the Juvenile Court Act and
the Utah Rules of Juvenile Procedure.
¶43 At a hearing on December 15, 2011, the juvenile court
purported to allow D.H. to “waive” the statutory deadline
contained in Utah Code section 78A-6-309(2). The following
exchange took place:
1 Though the juvenile court purported to accept a “waiver” of
the statutory deadline on December 15, 2011, when the parties re-
turned on January 5, the juvenile court denied D.H.’s request for
more time, reasoning that “the statute doesn’t give [D.H.] more
time, the statute says we have to try these cases within 60 days.”
Based on the date the petition was filed, the sixty days had not
yet passed—that would happen over a week later, on Friday, Jan-
uary 13, 2012.
2 Supra ¶ 33.
3 The fact that the court took up and addressed D.H.’s constitu-
tional challenge to its ruling imposing the sixty-day deadline
shows that the court itself recognized that the deadline had not in
fact been waived. The court’s imposition of the deadline on
January 5 led directly to the court’s decision to rule on D.H.’s
constitutional challenge to the statute. Thus, I do not agree that
the court merely “assessed a hypothetical question” and gave an
“improperly advisory” opinion. Supra ¶¶ 34, 35. Instead, it is clear
from the court’s actions that there was, in fact, no waiver.
14
Cite as: 2014 UT __
ACJ NEHRING, concurring
The Court: The statute says I have to—we should
have the trial within 60 days. The person
that would be prejudiced would, like
most—most prejudiced, would be your
client . . . and I take it that you’re willing
to waive the 60-day time frame?
[D.H.’s
Counsel]: I am, under Rule 54(c) as well. And we
would ask that we have at least four
months before we have trial . . .
The Court: I’m not sure I’m willing to go that far.
The court then decided that “[d]ue to the holiday, I’m going to
give some leniency here,” and made discovery due on January 5,
2012. Later, the court set the pretrial hearing for January 5 as well,
in order to allow time for discovery and, apparently, the Christ-
mas holiday. The court then offhandedly remarked, sua sponte,
It should be noted in the order that the father is waiv-
ing his right to have a trial within 60 days. Okay. Is
there any objection to that? With the 60 days?
The attorney for the State and the Guardian ad Litem both
responded, “[n]o objection.”
¶44 The purpose of the Juvenile Court Act and the juvenile
courts themselves has long been to protect children’s welfare and
act in the interest of children. 4 Juvenile courts work in two
primary areas: juvenile delinquency and child protection. 5 In
1966, this court stated that the purpose of the “newly enacted Ju-
venile Court Act” was to “act in the interest of Children in various
kinds of troubled circumstances . . . because of the public interest
4 See 1905 Utah Laws 182 (codified at UTAH REV. STAT. § 16-9-
720x to 720x22 (1907)); UTAH CODE § 55-10-1 (1953); id. § 78-3a-1
(1977); id. § 78-3a-1 (1992); id. § 78A-6-102(5)(e), (g) (2013).
5 In the early versions of the Act the purpose was twofold: to
serve both the “[child’s] welfare” and “the best interests of the
state.” 1965 Utah Laws 595 (codified at UTAH CODE § 55-10-63
(Supp. 1965)); UTAH CODE § 78-3a-1 (1977).
15
IN RE M.H.
ACJ NEHRING, concurring
in their welfare.” 6 By 1988, the Act had been reworded to state
that the purpose of the juvenile courts was to “strive to act in the
best interests of the children in all cases.” 7 The “best interests of the
children” remains the guiding principle in juvenile court
proceedings today. 8 Our case law, court rules, and statutes in this
area are generally organized to achieve this worthy goal. The
Juvenile Court Act and the Utah Rules of Juvenile Procedure are
also designed to ensure that proceedings involving children are
done expeditiously so that children do not languish in “legal
limbo.” 9 The legislature has “determined that the best interests of
children and families in abuse, neglect, and dependency cases are
served when judges follow strict time limits.” 10 Indeed, the policy
“underlying” the Child Welfare Reform Act is “one of swift
permanency.” 11 And “[t]he only way to accomplish this goal is for
courts to adhere to the time restrictions imposed by law.” 12
¶45 Part three of the Juvenile Court Act governs abuse,
neglect, and dependency proceedings, and thus governs this child
6 Anderson v. Anderson, 416 P.2d 308, 309–10 (Utah 1966).
7 1988 Utah Laws 322 (emphasis added) (codified at UTAH CODE
§ 78-3a-1 (Supp. 1988)).
8 UTAH CODE § 78A-6-102(5) (2013) (“The purpose of the court
under this chapter is to : . . . (g) consistent with the ends of justice,
act in the best interests of the minor in all cases and preserve and
strengthen family ties.”).
9 Office of the Guardian ad Litem ex rel. S.M. v. H.M., 2007 UT 21,
¶ 50, 154 P.3d 835 (quoting C.H. v. State ex rel. J.H., 2006 UT App
205, ¶ 7, 138 P.3d 70); C.M.F v. State ex rel. A.F., 2007 UT 69, ¶ 5,
167 P.3d 1070; see also State ex rel. J.H., 2006 UT App 205, ¶ 9 n.2
(“[R]equirements of [the child welfare statutes] . . . are designed to
end a child’s legal limbo. . . . Further, there are mandatory dictates
within the [child welfare] statute as to what actions the court may
take . . . and strict compliance with these requirements is neces-
sary.” (internal quotation marks omitted)).
10Office of the Guardian ad Litem ex rel. S.C. v. Anderson, 1999 UT
App 251, ¶ 15, 987 P.2d 611.
11 Id. ¶ 13 (internal quotation marks omitted).
12 Id.
16
Cite as: 2014 UT __
ACJ NEHRING, concurring
abuse proceeding. 13 It contains various deadlines that apply in
these proceedings. 14 One of those deadlines is contained in Utah
Code section 78A-6-309, which provides a time limit for the final
adjudication in a child abuse proceeding. The statute states simply
that “the final adjudication hearing shall be held no later than 60
calendar days from the later of: (a) the date of the shelter hearing;
or (b) the filing of the petition.” 15 The language of this statutory
deadline is mandatory. This is because the word “shall” is gener-
ally “presumed mandatory.” 16 When interpreting a statute, we
assume that terms are “used advisedly” and give them the
“interpretation and application which is in accord with their
usually accepted meanings.” 17 We do this because “[o]nly by this
construction is legislative intent followed to carry out the
purposes of the statutes in a manner which is consistent with their
language.” 18 “[S]ince ‘shall’, a word with a usually accepted
mandatory connotation,” is used in Utah Code section 78A-6-
309(2), it “must be interpreted strictly as [it is] plainly written.” 19
The majority ignores the plain language of Utah Code section
13 See generally UTAH CODE §§ 78A-6-301 to 78A-6-324.
14 See, e.g., id. § 78A-6-309(2) (“[T]he final adjudication hearing
shall be held no later than 60 calendar days from the later of: (a)
the date of the shelter hearing; or (b) the filing of the petition.”); id.
§ 78A-6-311(2) (“The dispositional hearing may be held on the
same date as the adjudication hearing, but shall be held no later
than 30 calendar days after the date of the adjudication hearing.”);
id. § 78A-6-313 (“If reunification efforts have been ordered by the
court, a hearing shall be held no more than six months after initial
removal of a minor from the minor’s home . . . .”).
15 Id. § 78A-6-309(2).
16 Bd. of Educ. v. Salt Lake Cnty., 659 P.2d 1030, 1035 (Utah 1983);
accord S.C. v. Anderson, 1999 UT App 251, ¶ 10; A.E. v. Christean,
938 P.2d 811, 815 (Utah Ct. App. 1997) superseded by statute on other
grounds, UTAH CODE § 78-3a-312(6)(c) (2002), as recognized in F.C.
Jr. v. State ex rel. F.C. III, 2003 UT App 397, ¶ 2 n.1, 81 P.3d 790.
17 Bd. of Educ., 659 P.2d at 1035.
18 Id.
19 Id.
17
IN RE M.H.
ACJ NEHRING, concurring
78A-6-309 by concluding that where the parties merely agree to
disregard the statutory deadline, it is “off the table.” 20
¶46 The Utah Rules of Juvenile Procedure govern all
procedures in the juvenile court and are “intended to provide a
just, speedy, and efficient determination” of those cases. 21 Rule 54
of the Utah Rules of Juvenile Procedure governs continuances in
all child welfare proceedings. It states that in no event may a court
grant a continuance “absent unavoidable circumstances . . . in any
child protection case” if that continuance will “adversely affect the
interest of the child or cause a hearing to be held later than child
welfare timelines established by statute.” 22
¶47 Under this rule, Utah Code section 78A-6-309’s sixty-day
deadline can only be sidestepped if (1) there is a showing that the
noncompliant continuance is required by “unavoidable
circumstances,” (2) there is a showing that the continuance will
not “adversely affect the interest of the child,” and (3) in a sexual
abuse case, if the court makes a written finding or written minute
entry that “include[s] the reason(s) for the continuance.” 23
¶48 In sum, when read together, Utah Code section 78A-6-
309(2) and Utah Rule of Juvenile Procedure 54(c) and (d) mandate
that the sixty-day time limitation for the final adjudication hearing
in an abuse proceeding can be waived in a sexual abuse case only
when the court makes a written finding containing a
consideration of the best interests of the child and the existence of
“unavoidable circumstances” that justify the continuance. 24 Yet
the majority characterizes the court’s failure to follow the dictates
of the Rules of Juvenile Procedure as a “technical deficiency” and
a “harmless” error.25 Because the Rules of Juvenile Procedure are
designed to protect the best interests of the children, “harmless
20 Supra ¶ 33.
21 UTAH R. JUV. P. 1 (a)–(b).
22 Id. 54(c).
23 Id. 54(c)–(d); see also S.C. v. Anderson, 1999 UT App 251, ¶ 16.
24 UTAH R. JUV. P. 54(c); see also S.C. v. Anderson, 1999 UT App
251, ¶ 16.
25 Supra ¶ 31 & n.6.
18
Cite as: 2014 UT __
ACJ NEHRING, concurring
error” is not the appropriate standard to use. Even more
strangely, the majority writes that the parties’ oral agreement to
ignore the statutory deadline “could easily qualify as the practical
equivalent of a ‘written finding by the court.’” 26 I fail to see how
an oral agreement is “equivalent” to a written finding, as it lacks
the most important element of a written finding—that of being
written. Moreover, the rule does not allow for a written finding or
its “practical equivalent.” It requires a written finding and a
consideration of the best interests of the child. Neither happened
here.
¶49 The majority does away with rule 54(c)’s requirement
that a continuance in a child welfare proceeding may only be
granted only if the court considers the best interests of the
children. According to the majority, if the Guardian ad Litem
simply agrees to ignore mandatory statutory deadlines, this
“easily establishes that the continuance would not ‘adversely
affect’” the children’s interest. 27
¶50 While the “role of the guardian ad litem is to represent
the interests of the child,” 28 we have never said that the Guardian
ad Litem’s imprimatur is the final word on the child’s best
interests. 29 If that were so, the court would never be required to
make a finding concerning a child’s best interests—it would
merely need to consult the Guardian ad Litem. This is of course
not true. 30 The juvenile court’s primary task is to ensure the best
26 Supra ¶ 31.
27 Supra ¶ 31 n.6.
28 M.W. v. A.N. (State ex rel. A.C.M.), 2009 UT 30, ¶ 20, 221 P.3d
185.
29 See generally Office of the Guardian ad Litem ex rel. S.M., 2007 UT
21 (upholding the juvenile court’s decision to return mother’s
eleven children to her custody despite Guardian ad Litem’s ap-
peal of that order).
30 See, e.g., V.D. v. State ex rel. J.D., 2011 UT App 184, ¶ 24, 257
P.3d 1062 (emphasizing juvenile court’s duty to make a finding
concerning the children’s best interest before terminating parental
rights because “the legislature has deemed that ‘the welfare and
the best interest of the child [are] of paramount importance’ . . .
19
IN RE M.H.
ACJ NEHRING, concurring
interests of the child, which is why the court is regularly asked to
make findings on that point. The Guardian ad Litem’s judgment
cannot stand in for the court’s judgment. The juvenile court’s very
reason for being is to “act in the best interests of the minor in all
cases.” 31
¶51 The majority’s approach does a great disservice to the
plain language of the statute and our Rules of Juvenile Procedure.
Indeed, the majority’s new rule renders meaningless Utah Rule of
Juvenile Procedure 54’s clear directives for granting continuances
in child welfare cases—specifically, in situations where the
attorney for the State, the Guardian ad Litem, and the attorney for
the parent merely agree, without more, that they would like to
ignore the sixty-day deadline that is set out in mandatory terms in
Utah Code section 78A-6-309(2). This is not allowed under the
rule or the statute. The majority is apparently motivated by a
desire to avoid reaching the constitutional question presented by
D.H. This is not a persuasive justification for ignoring both the
mandatory language of the statute and the clear procedures
outlined in rule 54. 32
¶52 The statute and the Rules of Juvenile Procedure were
enacted to serve the best interests of children and ensure that
child welfare proceedings do not linger. I believe the majority’s
approach has troubling implications for future child welfare cases
because it ignores the plain language of both the statue and the
and has mandated that the juvenile court . . . mak[e] that
determination.” (first alteration in original) (citation omitted));
Office of the Guardian ad Litem ex rel. S.M., 2007 UT 21.
31 UTAH CODE § 78A-6-102(5)(g).
32 Though it is true that we have “a duty to construe statutes to
avoid constitutional conflicts,” State v. Mooney, 2004 UT 49, ¶ 12,
98 P.3d 420 (internal quotation marks omitted), this canon of
constitutional avoidance “is not a method of adjudicating consti-
tutional questions by other means.” Clark v. Martinez, 543 U.S. 371,
381 (2005). Constitutional avoidance “is a tool for choosing
between competing plausible interpretations of a [rule or] statuto-
ry text.” Id. It is not a justification for avoiding a constitutional
challenge by any means necessary simply because we would
prefer not to tackle difficult constitutional questions.
20
Cite as: 2014 UT __
ACJ NEHRING, concurring
rules and creates an unacceptably loose standard for the waiver of
mandatory child welfare deadlines. Again, these deadlines were
created to protect children. They were not created to yield to the
convenience of the State, the court, or the Guardian ad Litem’s
office. In the rare case, like this one, where waiver of the strict
time deadlines would be justified, the court must undertake the
proper analysis under rule 54, which includes the requirement
that the court consider the children’s best interest before granting
the continuance. Our clear, strict statutory and procedural rules
cannot be so easily disregarded, particularly where a child’s
interest in expedited legal proceedings is implicated.
¶53 Though I do not agree that the sixty-day deadline was
properly waived here, I would hold that waiver of the deadline is
possible when the court follows the procedure dictated by
rule 54. 33 This procedure is particularly important given the
unequivocal, mandatory language of the statute.
¶54 The majority simultaneously claims that its decision to
reverse “stems from a straightforward assessment of the
procedural history of the case,” but the relevant procedural rule is
“not properly before us” and “not properly implicated.” 34 This is
inconsistent. It matters not if an assessment of procedural history
is “straightforward” if that assessment ignores a clear rule of
procedure. Moreover, I was not aware of any “straightforward
assessment” exception to our preservation rule; certainly not one
that allows us to conjure new law out of thin air. 35 We have never
held that mandatory child welfare deadlines can be informally
waived by a joint agreement of the parties, and especially not
without any finding on the record concerning the best interest of
the children.
33 See, e.g., S.C. v. Anderson, 1999 UT App 251, ¶ 16.
34 Supra ¶ 27 n.4.
35 Patterson v. Patterson, 2011 UT 68, ¶¶ 13, 16, 20, 266 P.3d 828
(discussing the limited exceptions to the general preservation rule,
which include “exceptional circumstances” and “plain error” and
explaining that it “generally would be unfair to reverse a district
court for a reason presented first on appeal” but holding that
nevertheless the court has a duty to consider all controlling au-
thority that is “necessary to a proper decision”).
21
IN RE M.H.
ACJ NEHRING, concurring
¶55 The significance of the purported waiver was an issue
that was raised for the first time on appeal. That explains why “no
party . . . ever challenged” the “viability” of the waiver. 36 As the
majority points out, “[a] matter unpreserved is a matter not
properly presented.”37 “Preservation rules are an essential part of
our adversary system,” in part because they “assure[] fairness by
exempting a party from the inequity of having to defend on
appeal on a ground that it had no opportunity to address at
trial.” 38 At no point below did any party make any argument
concerning the significance of the purported waiver. Nor is any
argument concerning waiver found in the State’s brief on
appeal. The Guardian ad Litem was the only party to raise the
“waiver” theory that the majority adopts, and she did so for the
first time on appeal. Moreover, her briefing on that point was
barely adequate and consisted of a few bare, conclusory
sentences. D.H. responded to this argument in an equally curt
fashion in his reply brief. 39
¶56 Because the majority has decided to reverse on an
unpreserved ground, it finds itself in a no-man’s land and cannot
claim that a directly relevant rule may be ignored. 40 And even if
the waiver theory had been preserved or were a ground for
reversal as part of an “assessment of the procedural history,”41
rule 54 unquestionably applies to all child welfare continuances,
36 Supra ¶¶ 30–31.
37 Supra ¶ 30.
38 In re Baby Girl T, 2012 UT 78, ¶ 42, 298 P.3d 1251 (Lee, J.,
dissenting); accord Patterson, 2011 UT 68, ¶ 16 (“Notions of fairness
therefore dictate that a party should be given an opportunity to
address the alleged error . . . .”).
39 In his reply, D.H. asserted that the district court in fact
“refused to accept” any purported waiver when it applied the six-
ty-day deadline on January 5, 2012.
40 See supra ¶ 29 n.4 (describing the purported waiver as an
“element of the context in which we review the decision[],” but
failing to explain why rule 54 is not similarly an “element of the
context”).
41 Id.
22
Cite as: 2014 UT __
ACJ NEHRING, concurring
and is thus squarely implicated. 42 The majority cannot arbitrarily
choose which procedures are relevant to its sua sponte
“assessment of the procedural history” as a ground for reversal.
To the extent that the waiver theory was raised by the parties on
appeal—which is to say, barely—so too was rule 54 raised.43 And
neither of these arguments was preserved below. 44 Accordingly, I
respectfully disapprove of the majority’s lopsided deployment of
the preservation rule and concurrent failure to acknowledge the
importance and relevance of rule 54.
¶57 The majority ignores the plain language of Utah Code
section 78A-6-309(2) and our directly relevant, duly adopted Rules
of Juvenile Procedure. The deadlines contained in the Juvenile
Court Act and the procedures contained in the Utah Rules of
Juvenile Procedure are designed to protect children and to ensure
that child welfare proceedings do not linger. I cannot agree with
the majority that the parents, the State, and the Guardian ad
Litem’s offhand agreement to waive the deadlines is sufficient to
justify the disregard of those deadlines. I thus respectfully dissent
from the majority’s analysis and concur in the result only.
42 Patterson, 2011 UT 68, ¶ 20 (noting that the court must consid-
er controlling law when it is “necessary to a proper decision”).
43 In her brief on appeal, the Guardian ad Litem argued that
D.H. “invited error,” when he “declined to invoke or comply with
Utah R. Juv. P. 54, which governs child welfare continuances.”
D.H. responded to the Guardian ad Litem’s rule 54 argument by
stating that he “did specifically invoke and comply with” rule 54,
but emphasized that because he believed the rule strictly prohibit-
ed a court from granting a continuance that would cause a hear-
ing to be held “later than child welfare timelines established by
statute,” UTAH R. JUV. P. 54(c), he had focused on his challenge to
the statute itself.
44 Patterson, 2011 UT 68, ¶ 15 (explaining that the preservation
rule is designed to ensure “judicial economy and fairness”).
23