In re Z.V...

2015 UT App 85THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF Z.V., A.V., AND K.V.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
Z.V.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20141170-CA
Filed April 9, 2015
Second District Juvenile Court, Ogden Department
The Honorable Sherene T. Dillon
No. 1052053
Jason B. Richards, Attorney for Appellant
Sean D. Reyes and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES STEPHEN L. ROTH, JOHN A. PEARCE, and
KATE A. TOOMEY.
PER CURIAM:
¶1 Z.V. (Father) appeals the juvenile court’s order
terminating his parental rights in his three children. We affirm.
¶2 Father’s children were removed from their mother for the
second time in March 2014. Father was incarcerated at the time.
A disposition hearing was held for Father on May 20, 2014. At
that hearing, the juvenile court ordered that no reunification
services would be provided to Father, because he had failed to
In re Z.V.
participate in services in the prior case with the children and
because of the length of his sentence. Father acknowledged that
his expected release date would not permit him to regain his
children within the statutory time limits. He did not request
services, nor did he object to the juvenile court’s order denying
services or the rationale for the denial.
¶3 With no services provided to either parent, the Division of
Child and Family Services (DCFS) filed a petition to terminate
parental rights. Even before the petition was filed, the juvenile
court scheduled the first pretrial hearing on the expected petition
at Father’s disposition hearing. The first pretrial hearing was
held less than thirty days after the disposition hearing.
¶4 The trial on the petition was held over two days. In
closing argument, Father asserted for the first time that the
juvenile court erred in not ordering reunification services,
because the juvenile court failed to make a statutorily required
determination to support its decision. See Utah Code Ann. § 78A-
6-312(24)(a) (LexisNexis Supp. 2014) (providing that “[i]f a
parent is incarcerated . . . , the court shall order reasonable
services unless it determines that those services would be
detrimental to the minor”). With the issue raised at that time, the
juvenile court included the required determination in its
termination order.
¶5 On appeal, Father argues that the termination of his
parental rights should be reversed and that he should receive
reunification services because the juvenile court did not make
the statutorily required determination that services would be
detrimental to the children. See id. Father did not request services
or raise the issue at the May 20 hearing. The first time he
asserted the issue of the required determination was at trial. The
juvenile court then addressed the asserted error and included
extensive findings in the termination order. The juvenile court
corrected the deficiency noted by Father at the earliest
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opportunity after the issue was raised. Contrary to Father’s
assertion, the juvenile court made the required statutory
determination that providing services to him while incarcerated
would be detrimental to the children.
¶6 Father also asserts that the juvenile court erred because it
did not establish a permanency goal at the disposition hearing
and because the court did not hold a separate permanency
hearing. To the extent there was any error, these issues are moot
because there is no relief available that would affect Father’s
rights. See Towner v. Ridgway, 2012 UT App 35, ¶ 6, 272 P.3d 765.
The permanency determination and hearing requirements were
superseded by the trial on the petition to terminate parental
rights. The final order in this case has been entered, and any
intermediate goal or hearing would have no effect on the
outcome at this point.
¶7 Furthermore, there is no requirement for a separate
permanency hearing in the circumstances here. If no
reunification services are ordered, a permanency hearing must
typically be held within thirty days after the disposition hearing.
See Utah Code Ann. § 78A-6-314(1)(b). However, if a termination
petition is filed before the permanency hearing is held, the court
may consolidate the permanency hearing and termination trial.
Id. § 78A-6-314(13)(a). In this case, the termination petition was
filed before a permanency hearing was scheduled and,
accordingly, the proceedings were consolidated into the
termination trial.
¶8 Father also disputes that termination of his parental rights
was in the children’s best interests because they were not placed
with his sister (Aunt). There was conflicting testimony about
whether Aunt was an appropriate kinship placement at a point
earlier in the proceedings when kinship placements have some
preference. Regardless of Aunt’s potential as a placement in the
early stages of this case, however, the matter of a kinship
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placement has no relevance to the ultimate decision regarding
termination of parental rights after trial. See In re W.P.O., 2004
UT App 451, ¶ 10, 104 P.3d 662 (stating that “nothing in the plain
language of the [Termination of Parental Rights Act] requires a
juvenile court to consider possible kinship placements when
deciding whether termination is in the best interests of the
child”).
¶9 The two considerations for terminating parental rights are
whether a parent is unfit or incompetent and, if so, whether
termination would be in the child’s best interests. See Utah Code
Ann. § 78A-6-503(12) (LexisNexis Supp. 2014). In evaluating the
best interests of a child, a court must consider the physical,
mental, and emotional needs of the child. In re J.D., 2011 UT App
184, ¶¶ 14–16, 257 P.3d 1062. The children here were together in
a stable placement that was providing for their needs. All three
were thriving. The evidence supported that termination was in
their best interests to permit them to be adopted into a stable and
loving home.
¶10 Affirmed.
20141170-CA 4 2015 UT App 85