In re A.M. (D.H. v. State)

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, in the interest of A.M., ) PER CURIAM DECISION
a person under eighteen years of age. )
____________________________________ ) Case No. 20120044‐CA
)
D.H., )
) FILED
Appellant, ) (March 22, 2012)
)
v. ) 2012 UT App 79)
State of Utah, )
)
Appellee. )
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Third District Juvenile, West Jordan Department, 938747
The Honorable Julie V. Lund
Attorneys: Judith L.C. Ledkins, Salt Lake City, for Appellant
Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, Guardian ad Litem
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Before Judges McHugh, Davis, and Christiansen.
¶1 D.H. (Mother) appeals an order granting permanent custody and guardianship
of A.M. to non‐relatives. The State did not seek to terminate Mother’s parental rights.
Mother challenges the sufficiency of the evidence to support the grant of permanent
custody and guardianship.
¶2 Mother was deemed to have admitted the allegations of the petition pursuant to
rule 34(e) of the Utah Rules of Juvenile Procedure. See Utah R. Juv. P. 34(e)
(“Allegations not specifically denied by a respondent shall be deemed true.”).
Accordingly, Mother was adjudicated as having neglected A.M. The initial permanency
goal for A.M. was reunification with Mother, and the Division of Child and Family
Services (DCFS) was ordered to provide reunification services. At the conclusion of the
reunification period, the juvenile court held an evidentiary permanency hearing to
determine whether A.M. could be safely returned to Mother’s custody. The juvenile
court found that returning A.M. would create a substantial risk of detriment to her
physical or emotional well‐being. Accordingly, the juvenile court terminated
reunification services and changed A.M.’s primary permanency goal to custody and
guardianship with a non‐relative. After a further review, the juvenile court granted
permanent custody and guardianship to the foster parents and terminated juvenile
court jurisdiction.
¶3 An order granting permanent custody and guardianship does not permanently
sever the parent‐child relationship and may be revisited in the future based upon
changed circumstances. See In re J.P., 921 P.2d 1012, 1019 (Utah Ct. App. 1996).
Therefore, the State did not bear the burden to prove unfitness or any other ground that
would be necessary to support a termination of parental rights. The juvenile court was
only required to determine, by a preponderance of the evidence, whether A.M. could
safely return to Mother’s custody. See Utah Code Ann. § 78A‐6‐314(2)(b) (Supp. 2011).
At the permanency hearing, Mother did not claim that she should then regain custody
of A.M. but sought an extension of the time for reunification services, which the juvenile
court denied. Because Mother had previously been adjudicated as neglecting A.M., she
was not entitled to a parental presumption in a custody contest with a non‐relative. See
In re M.W., 2000 UT 79, ¶ 30, 12 P.3d 80.
¶4 Mother claims that the juvenile court’s ruling is not supported by sufficient
evidence. Mother had a history with DCFS spanning over twenty years. As she herself
acknowledged, Mother was not in a position to regain custody of A.M. at the time of the
permanency hearing because she was residing in a homeless shelter and could not
provide a suitable home for A.M. Although Mother had completed psychological and
psychiatric assessments, she had not followed the recommendation to continue
individual therapy. She had completed eight weeks of therapy and an eight‐week
parenting course, as required by a case from another court. She had not completed
domestic violence treatment and claimed that because she was a victim, not a
perpetrator, she should not be required to satisfy this requirement. Although Mother
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had regularly visited A.M., she had not progressed beyond supervised visits. A.M. was
doing well in her foster home, had completed therapy, and was getting good grades at
school.
¶5 We will overturn the juvenile court’s decision “only if it either failed to consider
all of the facts or considered all of the facts and its decision was nonetheless against the
clear weight of the evidence.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. “When a
foundation for the court’s decision exists in the evidence, an appellate court may not
engage in a reweighing of the evidence.” Id. Because the decision was adequately
supported, we do not disturb it. Accordingly, we affirm the decision of the juvenile
court granting permanent custody and guardianship of A.M. to the foster parents.
____________________________________
Carolyn B. McHugh,
Presiding Judge
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James Z. Davis, Judge
____________________________________
Michele M. Christiansen, Judge
20120044‐CA 3