In re Z.Z...(K.Z. and V.Z. v. State)

2013 UT App 215_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF Z.Z., S.Z., S.Z., R.Z.,
AND J.Z., PERSONS UNDER EIGHTEEN YEARS OF AGE.
K.Z. AND V.Z.,
Appellants,
v.
STATE OF UTAH,
Appellee.
Amended Opinion1
No. 20110678‐CA
Filed September 6, 2013
Eighth District Juvenile, Duchesne Department
The Honorable Larry A. Steele
No. 167143
Marea A. Doherty and Herbert W. Gillespie,
Attorneys for Appellants
John E. Swallow and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
JUDGE GREGORY K. ORME authored this Amended Opinion, in
which JUDGES STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN
concurred.
ORME, Judge:
¶1 K.Z. (Father) and V.Z. (Mother) appeal from an order
of the juvenile court terminating their parental rights in their five
children and from a subsequent order denying their motions for a
new trial. We affirm.
1. This Amended Opinion supersedes the court’s November 8, 2012
Opinion in this matter. That Opinion is hereby vacated and is of no
force, effect, or precedential value.
In re Z.Z.
BACKGROUND
¶2 The parents have an extensive history with the Utah juvenile
court system and with the Utah Department of Child and Family
Services (DCFS), dating as far back as 1997. They have had other
children permanently removed from their custody in the past,2 and
DCFS has opened sixteen cases involving the parents over the
years. We outline only the facts relevant to this appeal.
¶3 DCFS filed a Motion for Expedited Placement and a Petition
for Custody in July 2009, alleging that the parents were habitual
users of illegal drugs3 and that their children should be removed
from their home. The parents were provided notice of the
scheduled shelter hearing. Father was present at the hearing, but
Mother failed to appear and a warrant was issued. At that time, the
children were placed in the legal custody of DCFS but were unable
to be placed in its physical custody because their whereabouts were
unknown. The next month, both parents failed to appear for a
pretrial hearing. The warrant for Mother was continued in effect,
and the issuance of a warrant for Father was taken under
advisement.
¶4 Two weeks later, the parents again failed to appear for a
pretrial hearing. Counsel for Mother reported that he had been
unable to make any contact with her. The warrant for Mother was
left in effect, and a warrant for Father was issued. Late in 2009,
DCFS filed a motion to close the custody case because it had
2. The parents’ rights to another child they had together were
terminated earlier. During the investigation involving that child,
three children that Mother had with a man other than Father were
removed and placed with their biological father.
3. DCFS alleged that Mother used methamphetamine and that
Father took unprescribed controlled medication. Additionally,
DCFS claimed that there were two other drug users living in the
home with the parents and the children.
20110678‐CA 2 2013 UT App 215In re Z.Z.
become aware that the parents had fled to Colorado with their
children.4 Given the thrust of the parents’ appeal, the terms of
dismissal are of pivotal significance. DCFS moved the court “to
terminate the State of Utah’s custody and guardianship custody
case.” The motion, while reciting that the family had moved to
Colorado, specifically requested that the court “retain jurisdiction
in this matter in the event the family returns.” The court granted
the motion in January 2010, ordering that “the custody and
guardianship foster care case be terminated . . . and that the Court
retain jurisdiction in this matter.”
¶5 A few months later, four of the children were back in Utah.
DCFS took them into protective custody in April 2010. At that time,
DCFS spoke to Mother on the phone but she would not disclose the
whereabouts of the fifth child. DCFS then filed a new verified
petition,5 and a shelter hearing was held later that month. The fifth
child was located and taken into DCFS’s custody in May 2010.
DCFS eventually served notice on the parents through publication,
and Mother and Father were also both served with notice prior to
the termination trial held in April 2011.
4. The parents characterize this as a routine relocation. “Fled” is the
term used by the juvenile court in its findings of fact entered on
May 25, 2011. On appeal, the parents have not challenged the
juvenile court’s findings.
5. The new petition and all subsequent pleadings and orders
employed the same case numbers as were used in the proceeding
commenced in 2009—the same case numbers as had been used in
prior cases involving this family. As recounted in the findings of
fact, the new petition “alleg[ed] the same facts as the July 2009
petition and alleg[ed] that the parents had fled from the State of
Utah with the children after the Court had placed the children in
the State’s custody in July of 2009.” Given the arguments advanced
by the parents on appeal, it is noteworthy that the juvenile court’s
findings recite matter‐of‐factly that “[t]he instant case began on
July 21, 2009.”
20110678‐CA 3 2013 UT App 215In re Z.Z.
¶6 Neither DCFS nor the juvenile court received any
communication from the parents prior to the April 2011 trial date.6
On the morning of trial, the court received a faxed note from
Mother’s Colorado counsel stating that the parents would not
appear for the termination trial because of a conflicting criminal
hearing involving Mother in Colorado. The parents, through their
Utah counsel, moved for a continuance at that time, which the
juvenile court denied.
¶7 The trial proceeded as scheduled, and the court entered an
order on May 25, 2011, terminating the parents’ parental rights. The
parents filed motions for a new trial in June 2011. DCFS and the
children’s guardian ad litem objected on the basis that the parents
had habitually failed to appear and did not request a continuance
in advance of the actual day of trial. The juvenile court denied the
motions for a new trial, and this appeal followed.
ISSUES AND STANDARDS OF REVIEW
¶8 On appeal, the parents argue that the juvenile court lacked
subject matter jurisdiction to terminate their parental rights by
reason of the Uniform Child Custody Jurisdiction and Enforcement
Act (UCCJEA), as enacted in Utah. See Utah Code Ann. § 78B‐13‐
101 to ‐318 (LexisNexis 2012).7 “[J]urisdictional questions and
questions of statutory interpretation are questions of law that we
review for correctness.” In re P.F.B., 2008 UT App 271, ¶ 10, 191
6. The parents have been effectively and diligently represented by
their counsel. Despite the absence of their clients, both counsel
attended a pretrial hearing on April 28, 2010. At a further pretrial
hearing in May, both parents were absent but, again, both counsel
were present. Counsel raised a concern about notice to the parents,
and the court continued the trial to a later date.
7. Because no material amendments have been made to the relevant
statutes since the events in issue, we cite the most current version
of the code as a convenience to the reader.
20110678‐CA 4 2013 UT App 215In re Z.Z.
P.3d 49. We accept the validity of the juvenile court’s underlying
factual findings because the parents, as the appellants, have not
challenged the juvenile court’s findings, much less demonstrated
that the findings are clearly erroneous. See In re J.R., 2011 UT App
180, ¶ 2, 257 P.3d 1043 (per curiam).
¶9 The parents also argue that the juvenile court violated their
due process rights when it denied their motions for a new trial.
“Because a trial court has broad discretion to grant or deny a
motion for a new trial under rule 59 of the Utah Rules of Civil
Procedure, we will reverse only if there is no reasonable basis for
the decision.” In re Adoption of A.F.K., 2009 UT App 198, ¶ 17, 216
P.3d 980 (citation and internal quotation marks omitted). That said,
“[w]hether a parent has been afforded adequate due process is a
question of law, reviewed for correctness.” In re J.B., 2002 UT App
268, ¶ 7, 53 P.3d 968.
ANALYSIS
I. Subject Matter Jurisdiction
¶10 Section 78A‐6‐103 of the Utah Code vests the juvenile court
with exclusive jurisdiction over all cases involving “a child who is
an abused child, neglected child, or dependent child.” Utah Code
Ann. § 78A‐6‐103(1)(c) (LexisNexis 2012). Nonetheless, the parents’
principal claim on appeal is that the juvenile court did not have
subject matter jurisdiction to enter the order terminating their
parental rights. The parents do not challenge the actions of the
juvenile court leading up to January 2010 when the court, while
specifically retaining its own jurisdiction, granted DCFS’s motion
to terminate the case. They argue, however, that the juvenile court,
through its January 2010 order, “fulfill[ed], in its entirety, the
conditions required to divest the juvenile court of exclusive
ongoing jurisdiction, and thus subject matter jurisdiction in this
matter.” We disagree.
20110678‐CA 5 2013 UT App 215In re Z.Z.
¶11 As a threshold matter, we first note—and both parties
agree—that the juvenile court properly exercised jurisdiction under
Utah Code section 78B‐13‐201 when it held the shelter hearing and
ordered the children into the custody of DCFS in July 2009. A
juvenile court in this state “has jurisdiction to make an initial child
custody determination”8 if “this state is the home state of the
child[ren] on the date of the commencement of the proceeding.”
Utah Code Ann. § 78B‐13‐201(1)(a) (LexisNexis 2012). Because Utah
was the children’s home state when the proceeding commenced in
July 2009, as it was at the earlier time when the Utah court made its
initial custody determination as to some of the other children, see
supra note 8, the juvenile court had exclusive, continuing
jurisdiction over the custody determination it made at the July 2009
shelter hearing. See Utah Code Ann. § 78B‐13‐202(1) (LexisNexis
2012). While Mother and Father do not deny that the juvenile court
originally possessed exclusive, continuing jurisdiction when it
made the July 2009 determination, they assert that because they
relocated with the children to Colorado after the July 2009 order
was entered, Utah effectively ceased to be the proper forum in
which to adjudicate their parental rights. They contend that DCFS’s
motion to terminate the custody case in December 2009 confirmed
the impropriety of the juvenile court’s continued jurisdiction after
their move to Colorado and that the court’s January 2010 order
unequivocally divested the court of its exclusive, continuing
jurisdiction.
8. It appears from the record that the July 2009 determination
was the initial child custody determination, as that term is defined
by the statute, for the two youngest children involved here, but it
was not the initial custody determination for the older three.
See Utah Code Ann. § 78B‐13‐102(8) (LexisNexis 2012) (“‘Initial
determination’ means the first child custody determination
concerning a particular child.”). As to the older three children, the
July 2009 determination was a subsequent modification of a prior
initial custody determination over which the court had exclusive,
continuing jurisdiction under section 78B‐13‐202. See id. § 78B‐13‐
202(1).
20110678‐CA 6 2013 UT App 215In re Z.Z.
¶12 If a court of this state has made a child custody
determination consistent with section 201, the court has and retains
exclusive, continuing jurisdiction over that determination until
(a) a court of this state determines that neither the
child, the child and one parent, nor the child and a
person acting as a parent have a significant
connection with this state and that substantial
evidence is no longer available in this state
concerning the child’s care, protection, training, and
personal relationships; or
(b) a court of this state or a court of another state
determines that neither the child, nor a parent, nor
any person acting as a parent presently resides in this
state.
Id. § 78B‐13‐202(1)(a)–(b). Thus, the juvenile court retained
jurisdiction over the July 2009 determination unless, as the parents
contend, one of the two determinations from subsection 202(1) was
made prior to the April 2010 proceedings.
¶13 It is clear from the record that no court of this state had
made a subsection 202(1)(a) determination prior to the April 2010
proceedings, and there was certainly no basis for doing so. These
children are lifelong residents of Utah—save for their brief
furlough in Colorado—and their parents have a lengthy and
involved history with the Utah juvenile court system. The family’s
temporary retreat to Colorado did not eliminate the significant
connection that both the children and the parents have with this
state, nor did it diminish the “evidence . . . available in this state
concerning the child[ren]’s care, protection, training, and personal
relationships.” See id. § 78B‐13‐202(1)(a). Most importantly, neither
the juvenile court nor any other Utah court made a determination
that no significant connection existed and that substantial evidence
was unavailable.
20110678‐CA 7 2013 UT App 215In re Z.Z.
¶14 The parents premise their primary argument on subsection
202(1)(b), claiming that the juvenile court’s January 2010 order
determined that “the Parents and Children did not presently reside
in this state.” But a plain reading of DCFS’s motion and the court’s
order shows that the juvenile court did nothing more than
terminate the guardianship and custody case and retain its
jurisdiction “in this matter.” When Mother and Father took
the children and headed for Colorado, DCFS could no longer
provide services to the children and had no reason to keep its case
file open. Accordingly, DCFS moved to terminate the case and
represented in its motion that the family was in Colorado
and being monitored by Colorado authorities. DCFS did not,
however, state that the courts of Colorado had become involved,
much less that Colorado had obtained jurisdiction over the July
2009 determination. Nor did DCFS assert that Utah had lost
jurisdiction. Instead, and notwithstanding its request that the case
be terminated, DCFS specifically asked the juvenile court to retain
jurisdiction in the event that the family returned to Utah. The clear
import of the motion was not to concede that Utah had lost its
exclusive, continuing jurisdiction but rather that DCFS wanted to
close out its case file while leaving the door open for continued
proceedings should any of the family members return to Utah.
¶15 The parents seem to conflate the representations made in
DCFS’s motion with the juvenile court’s order. The order—all four
lines of it—did not adopt any of DCFS’s statements as findings,
and, critically, did not make a determination that “neither [a] child,
nor a parent . . . resides in this state.” See id. § 78B‐13‐202(1)(b).
Instead, it merely ordered that the “custody and guardianship
foster care case be terminated” while expressly providing that “the
Court retain jurisdiction in this matter.” From all that appears,
then, the court simply terminated the case for the administrative
convenience of DCFS while expressly retaining its own jurisdiction
over the outstanding July 2009 determination for potential future
modifications. Given that there is nothing in the record to
indicate that a court of another state made a determination that
qualifies as one made under subsection 202(1)(b), we conclude that
no determination was made under subsection 202(1) and that
the juvenile court consequently retained exclusive, continuing
20110678‐CA 8 2013 UT App 215In re Z.Z.
jurisdiction over the July 2009 determination. Thus, the juvenile
court’s jurisdiction was not ended by operation of law and,
especially given that jurisdiction was expressly retained by the
court, its jurisdiction remained in full force and effect.
¶16 The juvenile court’s retention of jurisdiction here is both
proper and fully consistent with the scheme and philosophy of the
UCCJEA. As explained in the official comment, “Jurisdiction
attaches at the commencement of a proceeding. If State A had
jurisdiction under this section at the time a modification
proceeding was commenced there, it would not be lost by all
parties moving out of the State prior to the conclusion of [the]
proceeding.” Uniform Child Custody Jurisdiction & Enforcement
Act § 202 cmt. (1997). Thus, an uncooperative set of parents cannot
unilaterally divest the court of its exclusive, continuing jurisdiction
by fleeing to another state during the pendency of a custody
proceeding. See id. And along largely parallel lines, a court does not
divest itself of jurisdiction when it allows DCFS to close out a case
that lies dormant—albeit still alive and jurisdictionally
sound—merely because the family absconded to another state. This
is especially true where, as here, the court explicitly retains
jurisdiction in its dismissal order. Were the law otherwise,
conniving parents could easily render a custody proceeding null
and void, and consequently destroy a court’s jurisdiction, by
rounding up their children and hightailing it to a neighboring state.
The purposes and goals of the UCCJEA would be nearly
impossible to accomplish because they would be subject to and
entirely contingent upon the whims of parents and their level of
willingness to be bound by the orders of a court properly
possessing and exercising jurisdiction. Such a system would be
untenable, and we decline to adopt a view of the statute that allows
parents to unilaterally upend a court’s proper exercise of
jurisdiction by leaving the state while a proceeding is pending.
¶17 Finally, we emphasize that the April 2010 proceedings and
subsequent termination of Mother’s and Father’s parental rights
logically followed and were built upon the juvenile court’s July
2009 determination. As previously stated, the court did not vacate
the July 2009 determination in its January 2010 dismissal order, and
20110678‐CA 9 2013 UT App 215In re Z.Z.
there was no reason to do so. The court had warrants out for both
parents, it had a long history of dealings with the parents, and no
court from another state was asserting jurisdiction. When the
children resurfaced in Utah after their brief absence, both the court
and DCFS simply pulled the same case off the shelf and picked up
where things had left off,9 with DCFS getting physical custody of
the children and the case eventually culminating in the court’s
decision to terminate Mother’s and Father’s parental rights.
¶18 A court of this state that has made a custody determination
consistent with Utah Code section 78B‐13‐201(1) maintains
exclusive, continuing jurisdiction over that determination unless a
subsequent determination is made pursuant to section 78B‐13‐
202(1). See Utah Code Ann. § 78B‐13‐202(1)(a)–(b) (LexisNexis
2012). We conclude that the juvenile court retained exclusive,
continuing jurisdiction over its July 2009 determination and that no
determination under subsection 202(1) was made prior to the April
2010 proceedings. And of course none was made thereafter. We
further conclude that a court does not divest itself of exclusive,
continuing jurisdiction when it expressly retains jurisdiction in an
order dismissing a pending case that can no longer be effectively
managed because the parents relocate to another state before the
matter can be resolved. Because the juvenile court’s order expressly
retained jurisdiction over the July 2009 determination and because
that retention is consistent with the policies and terms of the
UCCJEA, the court’s exercise of jurisdiction over the parents from
the April 2010 proceedings onward was every bit as appropriate as
was the jurisdiction it exercised in the summer of 2009.
II. Due Process
¶19 The parents argue that they were denied their due process
rights when the April 2011 trial was conducted despite their
9. DCFS did file a new petition to bring the matter back before the
court, but the new petition “alleg[ed] the same facts as the July
2009 petition” and the juvenile court considered it as part of the
same “case [that] began on July 21, 2009.” See supra note 5.
20110678‐CA 10 2013 UT App 215In re Z.Z.
absence. They contend that the juvenile court abused its discretion
when it denied their motions for a new trial.
¶20 “Proceedings to terminate parental rights must comport
with the requirements of Due Process.” In re A.E., 2001 UT App
202, ¶ 14, 29 P.3d 31 (citation and internal quotation marks
omitted). This right, however, is not boundless. The parents
concede that “the juvenile court had no duty to ensure a parent’s
presence at a termination trial.” While the parents were entitled to
proper notice of the proceedings, “there is no absolute statutory or
constitutional right to attend the trial” in child welfare matters,
including termination proceedings. See id. (citation and internal
quotation marks omitted). This court has held, in the context of a
criminal sentencing hearing, that “[n]otice of the proceedings is
alone sufficient to allow a defendant to exercise the right to be
present by appearing, or to waive that right through voluntary
absence.” State v. Wanosik, 2001 UT App 241, ¶ 12, 31 P.3d 615, aff’d,
2003 UT 46, 79 P.3d 937.
¶21 The parents contend that they—especially Mother—were
prevented from attending the April 2011 trial and should have been
granted a continuance on the morning of trial. They ignore the fact
that they were properly provided notice of the trial well before
Mother’s scheduling conflict arose in Colorado. Father’s counsel
accepted service on his behalf, and Mother was served in open
court in Utah during a January 2011 pretrial hearing. The parents
do not contest that they were provided notice and fail to explain
how they were prevented from seeking a continuance in a timely
fashion rather than on the very morning of their termination trial.
¶22 The circumstances of this case are even less compelling than
the facts in In re A.E., where we found a similar argument to be
unpersuasive:
[A.E.’s father] argues that because he was
incarcerated and, therefore, not a free agent, the
juvenile court had a duty to either assure his
presence at trial, or not hold the trial in his absence.
However, [A.E.’s father] has failed to show us how
20110678‐CA 11 2013 UT App 215In re Z.Z.
he exercised due diligence in attempting to be
present for all stages of the trial, but was prevented
from appearing by circumstances over which he had
no control.
2001 UT App 202, ¶ 16 (citation and internal quotation marks
omitted). Mother failed to submit any proof to the juvenile court
indicating that she even attempted to reschedule her Colorado
matter. And as noted, Mother failed to inform the Utah juvenile
court of the conflict until the very morning of trial, even though she
had been on notice of the trial date for nearly four months. Father’s
sole justification for missing the trial appears to be that “he was in
attendance with [Mother] in the Colorado criminal proceeding.”
Therefore, both Mother and Father failed to show that they
exercised any semblance of due diligence in attempting to be
present for the termination trial in Utah or at least to seek a
continuance in a timely manner.10 Because we conclude that
Mother’s and Father’s due process rights were not violated, it
follows that the juvenile court did not err in denying the parents’
motions for a new trial.11
10. The parents argue that we should extend State v. Wanosik, 2001
UT App 241, 31 P.3d 615, aff’d, 2003 UT 46, 79 P.3d 937, to parental
termination proceedings. Such an extension would do them no
good, as the rationale of Wanosik is inapplicable because the reason
for the parents’ absence in this case was not unknown. See id. ¶ 21.
11. Furthermore, even if we were to conclude that the parents’ due
process rights were violated,
[t]he appellate court will only find prejudicial error
after a review of the record demonstrates that there
was a reasonable likelihood of a more favorable
result for the [parents]. [W]e must review the record
and determine whether there is a reasonable
likelihood that the outcome of the termination
hearing would have been more favorable to [the
parents] had the juvenile court not [committed the
(continued...)
20110678‐CA 12 2013 UT App 215In re Z.Z.
CONCLUSION
¶23 The Utah juvenile court properly exercised jurisdiction
when it made the July 2009 custody determination. The family’s
subsequent relocation to Colorado did not divest the court of its
exclusive, continuing jurisdiction over the July 2009 determination.
Moreover, the court’s January 2010 order closed the case only to the
extent that it temporarily ended DCFS’s involvement, but the court
did not lose jurisdiction over the July 2009 determination and the
July 2009 proceedings were not extinguished. Accordingly, the
court’s exercise of jurisdiction during the April 2010 proceedings
and continuing on through its termination of Mother’s and Father’s
parental rights was appropriate.
¶24 Additionally, the juvenile court did not err in denying the
parents’ motions for a new trial. The parents were not denied due
process when the court rejected their request for a last minute
continuance and conducted the trial in their absence.
¶25 Affirmed.
11. (...continued)
due process violation].
In re J.B., 2002 UT App 268, ¶ 9, 53 P.3d 968 (third alteration in
original) (citations and internal quotation marks omitted). The
extensive evidence against the parents and their prior history with
DCFS strongly suggest that the result of the trial would have been
no different had the parents attended the termination trial, and
they have not demonstrated the likelihood of a more favorable
outcome.
20110678‐CA 13 2013 UT App 215