In re A.T. and J.B.J. (L.G. v. State)

2013 UT App 184_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF A.T. AND J.B.J., PERSONS
UNDER EIGHTEEN YEARS OF AGE.
L.G.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20120329‐CA
Filed July 26, 2013
Fourth District Juvenile, Provo Department
The Honorable Suchada P. Bazzelle
No. 522670
D. Grant Dickinson, Attorney for Appellant
John E. Swallow and John M. Peterson, Attorneys
for Appellee
Paul Waldron, Guardian ad Litem
JUDGE WILLIAM A. THORNE JR. authored this Opinion, in which
JUDGE J. FREDERIC VOROS JR. concurred. JUDGE JAMES Z. DAVIS
concurred in part and dissented in part, with opinion.
THORNE, Judge:
¶1 L.G. (Mother) appeals the juvenile court’s termination of her
parental rights in A.T. and J.B.J. (the Children). Mother argues that
she is entitled to reunification services pursuant to Utah Code
In re A.T. and J.B.J.
section 78A‐6‐312(25)(a). See Utah Code Ann. § 78A‐6‐312(25)(a)
(LexisNexis 2012).1 We reverse and remand.
BACKGROUND
¶2 Mother is the biological mother of the Children. J.B. (Father)
is the biological father of J.B.J. and the stepfather of A.T.
¶3 On February 4, 2011, Mother was convicted of felony drug
offenses. She was sentenced to serve one to fifteen years in the Utah
State Prison. At the time of Mother’s incarceration, the Children
remained with Father. In May, law enforcement authorities
received a report that Father had used heroin. Officers obtained a
warrant to search the home and found several bags of pills
belonging to Father and drug paraphernalia. The Division of Child
and Family Services (DCFS) removed the Children from Father’s
care and placed them in the home of a paternal aunt and her
husband (the Foster Parents).
¶4 Thereafter, DCFS identified a primary permanency goal for
the Children of reunification with Father. The juvenile court
approved a service plan for Father because he was the custodial
parent of the Children at the time of removal and Mother was
incarcerated for an extended sentence. Father was subsequently
1. The Utah State Legislature has altered Utah Code section 78A‐6‐
312 but has not chosen to change the requirements of subsection
(25)(a). Since the relevant time period, the legislature has twice
amended section 78A‐6‐312. See Utah Code Ann. § 78A‐6‐312
amend. notes (LexisNexis 2012) (adding several subsections and
including “fetal alcohol spectrum disorder” in subsection (21)(k));
see also S.B. 255, 60th Leg., Gen. Sess. (Utah 2013) (adding several
subsections and eliminating subsection (17), thereby renumbering
subsection (25)(a) to (24)(a)). For the parties’ convenience, we cite
to the relevant code section with the previous numbering. See Utah
Code Ann. § 78A‐6‐312.
20120329‐CA 2 2013 UT App 184In re A.T. and J.B.J.
charged with several counts of possession of drugs and drug
paraphernalia. On August 24, Father was incarcerated in the Utah
County Jail. On September 28, the State requested that Father’s
reunification services be terminated due to Father’s failure to
comply with the service plan objectives and due to his recent
incarceration.2 The parties, including Mother, stipulated that a
permanency hearing could also be held on September 28.
¶5 At the permanency hearing, the juvenile court inquired
about the status of Mother’s sentence. Mother’s attorney informed
the court that Mother had recently been before the parole board
and that she had seven months of incarceration remaining and then
would spend some time at a half‐way house. The juvenile court
changed the permanency goal for the Children to adoption, stating,
“With another seven months [left] it does not appear that there’s
any reasonable likelihood that [Mother] would be able to put
herself in a position to obtain custody of [the C]hildren upon her
release.”
¶6 The juvenile court held a termination of parental rights trial
on February 16, 2012. Mother argued that her parental rights
should not be terminated because DCFS failed to make reasonable
efforts to provide her with reunification services. The juvenile court
was not persuaded, observing that Mother “has been incarcerated
for the entire course of this case and reunification services, as a
practical matter, could not possibly be provided to her.” The
juvenile court also rejected Mother’s argument stating,
[T]he permanency goal set by the Court in this case
was for reunification with [Father] because he was
the custodial parent at the time of removal and
because [Mother] was serving a long‐term prison
sentence. The Service Plan was geared toward
services for [Father] and the [C]hildren and DCFS
was ordered by the Court to move in that direction.
2. The State anticipated Father would be incarcerated for at least
one year.
20120329‐CA 3 2013 UT App 184In re A.T. and J.B.J.
Therefore, [Father], not [Mother], is the parent
entitled to reasonable efforts from DCFS.
The juvenile court determined that Mother and Father had
“substantially neglected, willfully refused or have been unable or
unwilling to remedy the circumstances that caused the out‐of‐home
placement and there is no substantial likelihood that they will [be]
capable of exercising proper and effective parental care in the near
future.” The juvenile court terminated Mother’s and Father’s
parental rights in the Children. The juvenile court then ordered the
permanency plan for the Children to be changed to adoption.
Mother appeals.
ISSUES AND STANDARDS OF REVIEW
¶7 Mother argues that she is entitled to reunification services
because the juvenile court failed to comply with Utah Code section
78A‐6‐312(25)(a), which section provides that when a parent is
incarcerated, “the court shall order reasonable services unless it
determines that those services would be detrimental to the minor.”
Utah Code Ann. § 78A‐6‐312(25)(a) (LexisNexis 2012). Mother also
argues that the juvenile court erred by failing to order reasonable
reunification services. A decision to order reunification services lies
within the sound discretion of the juvenile court. See In re N.R., 967
P.2d 951, 956 (Utah Ct. App. 1998). Accordingly, we review the
juvenile court’s decision not to order reunification services for an
abuse of discretion. However, “we review the district court’s
decision for correctness to the extent it involves questions of
statutory interpretation” of section 78A‐6‐312(25). Diener v. Diener,
2004 UT App 314, ¶ 4, 98 P.3d 1178 (citation and internal quotation
marks omitted).3
3. Because we reverse the matter based on Mother’s reunification
services argument, we do not address her additional argument that
the juvenile court erred in concluding that termination was in the
best interest of the Children when it failed to order the statutorily
(continued...)
20120329‐CA 4 2013 UT App 184In re A.T. and J.B.J.
ANALYSIS
¶8 Mother asserts that the juvenile court erred in determining
that she was not entitled to reunification services because at the
time of the Children’s removal Father was the custodial parent and
Mother was serving a long‐term prison sentence. Specifically,
Mother argues that the juvenile court was required, under Utah
Code section 78A‐6‐312(25)(a), to order reasonable services to her
while she was in prison unless the court “determine[d] that those
services would be detrimental to the [Children].” See Utah Code
Ann. § 78A‐6‐312(25)(a). Mother contends that because the juvenile
court had not determined that reunification services would be
detrimental to the Children, it erred in deciding that she was not
entitled to services while in prison.
¶9 Both the State and the Guardian ad Litem argue that the
statute does not require the juvenile court to make a specific
finding that reunification services would be detrimental to the
Children. They argue that instead of a specific “detrimental to the
minor” finding the court need only make findings which
demonstrate that reunification services would have been
detrimental to the Children. For instance, the State asserts that the
juvenile court found that services were never contemplated for
Mother because of her extensive history with DCFS wherein she
ostensibly improved but quickly reverted to her past behaviors;
Mother’s extensive history of substance abuse, violent behavior,
and criminal activity; and Mother’s incarceration before and
throughout the proceedings. These findings, the State argues, are
sufficient to demonstrate that the juvenile court considered the
section 78A‐6‐312(25)(b) factors that are relevant to a detrimental
3. (...continued)
required independent investigation into allegations that the Foster
Parents had abused the Children. See Archuleta v. Galetka, 2011 UT
73, ¶ 33, 267 P.3d 232 (“[An appellate court] need not analyze and
address in writing each and every argument, issue, or claim raised
[and properly before it on appeal].” (citation and internal quotation
marks omitted)).
20120329‐CA 5 2013 UT App 184In re A.T. and J.B.J.
to the minor finding and that the findings that were made
demonstrate the court’s decision‐making process regarding the
detrimental to the minor issue.
¶10 This question appears to be governed by section 78A‐6‐
312(25). When interpreting statutes, “our primary goal is to evince
the true intent and purpose of the [Utah] Legislature.” State v.
Davis, 2011 UT 57, ¶ 21, 266 P.3d 765. To discern legislative intent,
we first look to the plain language of the statute and give effect to
that language unless it is ambiguous. State v. Jeffries, 2009 UT 57,
¶ 7, 217 P.3d 265 (citation and internal quotation marks omitted).
“[W]e assume the legislature used each term advisedly and in
accordance with its ordinary meaning.” Id. (citation and internal
quotation marks omitted).
¶11 With these rules in mind, we turn to the pertinent language
in section 78A‐6‐312(25),
(a) If a parent is incarcerated or institutionalized, the
court shall order reasonable services unless it
determines that those services would be detrimental to the
minor.
(b) In making the determination described in
Subsection (25)(a), the court shall consider:
(i) the age of the minor;
(ii) the degree of parent‐child bonding;
(iii) the length of the sentence;
(iv) the nature of the treatment;
(v) the nature of the crime or illness;
(vi) the degree of detriment to the minor if
services are not offered;
(vii) for a minor 10 years of age or older, the
minor’s attitude toward the implementation
of family reunification services; and
(viii) any other appropriate factors.
Id. (emphases added).
20120329‐CA 6 2013 UT App 184In re A.T. and J.B.J.
¶12 Relying on the plain language of the statute, we agree with
Mother that the statute requires the juvenile court to order
reasonable services to Mother unless it makes an actual
determination that those services would be detrimental to the
Children. Utah Code section 78A‐6‐312(25)(a) expressly states that
“the court shall order reasonable services unless it determines that
those services would be detrimental to the minor.” Utah Code Ann.
§ 78A‐6‐312(25)(a) (LexisNexis 2012) (emphases added). “The term
‘shall’ is generally ‘presumed mandatory’ and has ‘a usually
accepted mandatory connotation’ that requires strict compliance
with the other statutory terms.” Brewster v. Brewster, 2010 UT App
260, ¶ 18, 241 P.3d 357 (quoting Board of Educ. of Granite Sch. Dist.
v. Salt Lake Cnty., 659 P.2d 1030, 1035 (Utah 1983)). The legislature’s
use of “shall” in section 78A‐6‐312(25) plainly expresses an
instruction that a court order reasonable services to an incarcerated
individual under the conditions set forth in the statute.
¶13 Thus, under the statute, a court may only deny reasonable
services to an incarcerated individual if the court “determines that
those services would be detrimental to the minor.” Utah Code Ann.
§ 78A‐6‐312(25)(a) (emphases added). The statute instructs the
court to consider several factors when making that determination.
See id. § 78A‐6‐312(25)(b). The State and the Guardian ad Litem,
however, assert that the juvenile court is not required to make a
specific “detrimental to the minor” determination in order to
comply with subsection (25)(a). They argue that the juvenile court
complied with subsection (25)(a) by making findings that clearly
demonstrate that it considered the factors in subsection (25)(b) in
its reunification services decision. We disagree. Considering the
factors in subsection (25)(b), without making an actual
determination, does not comport with the plain language
requirement of subsection (25)(a) that the court “shall order
reasonable services unless it determines that those services would be
detrimental to the minor.” See id. § 78A‐6‐312(25)(a) (emphases
added).
¶14 Webster’s Dictionary defines determine to mean “a: to fix
conclusively or authoritatively” or “b: to settle a question or
controversy about: decide by judicial sentence.” Webster’s Third
20120329‐CA 7 2013 UT App 184In re A.T. and J.B.J.
New International Dictionary Unabridged 616 (1986). Webster’s
defines determination as “the settling and ending of a controversy
esp. by judicial decision: CONCLUSION, DECISION.” Id.According to Black’s Law Dictionary, determination means “a final
decision by a court or administrative agency.” Black’s Law
Dictionary 514 (9th ed. 2009). Based on these definitions of the
relevant statutory terms, we conclude that section 78A‐6‐312(25)(a)
instructs the court to make and explain a judicial determination
about whether services would be detrimental to the minor after
consideration of the factors outlined in subsection (25)(b).
¶15 The juvenile court, in this case, did not, by an oral or written
ruling, order, or judgment, articulate a decision that it would be
detrimental to the Children to order reunification services to
Mother. To the contrary, the court’s reunification ruling specifies
that a determining factor for the court’s decision to deny services
to Mother was the fact that Mother “was incarcerated at the Utah
State Prison for an extended sentence,” and “reunification services,
as a practical matter could not possibly be provided to her.” It may
be, as the court stated, inconvenient or difficult as a practical matter
to provide reunification services to Mother while she is
incarcerated. Inconvenience or difficulty is not, however, the
ultimate consideration for denial of said services to an incarcerated
individual. Rather, the court is to evaluate and determine whether
reunification services would be harmful or damaging to the minor
children. Here, the juvenile court has not explained how the
provision of services to Mother in prison would be detrimental to
the Children. Although the court made some findings of fact
related to Mother’s extensive history with DCFS and her history of
substance abuse, violent behavior, and criminal activity, those
findings alone do not fulfill the juvenile court’s requirement to
itself make an actual determination that, based on certain findings,
the provision of reunification services to Mother would be
detrimental to the Children. Because the court did not make the
necessary determination under section 78A‐6‐312(25)(a), we
conclude that the court erred by denying reasonable services to
Mother and terminating her parental rights.
20120329‐CA 8 2013 UT App 184In re A.T. and J.B.J.
CONCLUSION
¶16 Utah Code section 78A‐6‐312(25)(a) directs courts to order
reasonable reunification services to an incarcerated parent unless
the court, after considering the statutory factors outlined in
subsection (25)(b), arrives at a judicial determination that services
would be detrimental to the minor. Here, the juvenile court did not
make a determination that services would be detrimental to the
Children. We therefore reverse the juvenile court’s denial of
reasonable reunification services to Mother and subsequent
termination of her parental rights and remand for further
proceedings consistent with this decision.
DAVIS, Judge (concurring in part and dissenting in part):
¶17 I concur with the majority’s opinion with respect to its
interpretation of Utah Code section 78A‐6‐312(25), to the extent it
requires a determination that providing reasonable services would
be detrimental to the Children. I dissent, however, as to the result
that opinion reaches. Under the facts and circumstances of this
case, the juvenile court made more than adequate findings to
support that determination. I would exercise this court’s power to
modify the juvenile court’s order accordingly, rather than reverse
and remand for further proceedings. See Utah R. App. P. 30(a)
(“The court may reverse, affirm, modify, or otherwise dispose of
any order or judgment appealed from.”).
¶18 The juvenile court’s order touches upon the factors
enumerated by subsection (25)(b). The court found that DCFS has
been involved in the Children’s lives almost continuously since
A.T. was barely a toddler and throughout J.B.J.’s entire life. See
Utah Code Ann. § 78A‐6‐312(25)(b)(i) (LexisNexis 2012) (directing
the court to consider the age of the children). The juvenile court
noted that the Children were raised in a “chaotic environment” in
which they were exposed to domestic violence and illegal drug use,
prompting its earlier adjudication “that the [C]hildren had . . . been
chronically neglected by [Mother] due to the prolonged history
with DCFS, the recurrence of domestic violence and substance
20120329‐CA 9 2013 UT App 184In re A.T. and J.B.J.
abuse, and criminal activity that resulted in frequent and now
prolonged incarceration.” See id. § 78A‐6‐312(25)(b)(v) (requiring
the court to consider the nature of the crime). Indeed, Mother “has
been incarcerated for the entire course of this case” and, at the time
of the juvenile court’s order, was not going to be “in a position
to . . . have custody of the [C]hildren” “for at least another six to
eight months.” See id. § 78A‐6‐312(25)(b)(iii) (directing the court to
consider the length of the sentence). Further, Mother had not seen
the Children since her November 2010 incarceration and had
written them just two or three letters throughout her prolonged
incarceration. See id. § 78A‐6‐312(25)(b)(ii) (requiring the court to
consider the strength of the parent‐child bond). Before Mother’s
prolonged incarceration, DCFS had, over the course of several
years, made “[e]xtensive efforts . . . to facilitate appropriate and
necessary services to [Mother] so that she could make necessary
changes in her life, including family drug court, substance abuse
treatment, drug testing, parenting, etc.,” but she returned to her
bad behaviors after her case was closed. See id. § 78A‐6‐
312(25)(b)(iv) (directing the court to consider the nature of the
treatment). The juvenile court noted that Mother “has had the
benefit of previous services on multiple occasions and has failed to
make permanent changes in her lifestyle and decision making in
order to provide a suitable home for her children.” See id.
¶19 The majority nonetheless reverses the juvenile court’s
decision and remands for further proceedings because the court
did not specifically “articulate a decision that it would be
detrimental to the Children to order services to Mother,” see supra
¶¶ 15–16. I do not believe such an outcome is warranted here.
Instead, I would rule that by following the rubric prescribed by
subsection (25)(b), the juvenile court’s findings necessarily
illustrate that it would be detrimental to the Children to order
services to Mother. Accordingly, given this court’s ability to
“modify . . . any order or judgment appealed from,” Utah R. App.
P. 30(a), I would modify the juvenile court’s order to make the
required determination based on the findings the juvenile court has
already made in support thereof.
20120329‐CA 10 2013 UT App 184