In re A.K. (T.K. v. State)

2015 UT App 39_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF A.K., A PERSON
UNDER EIGHTEEN YEARS OF AGE.
T.K.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20140269-CA
Filed February 20, 2015
Fourth District Juvenile Court, Heber Department
The Honorable Mary T. Noonan
No. 1085500
Corbin B. Gordon and Marie N. Bramwell, Attorneys
for Appellant
Sean D. Reyes and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
JAMES Z. DAVIS and JOHN A. PEARCE concurred.
TOOMEY, Judge:
¶1 T.K. (Mother) challenges the juvenile court’s decision to
terminate her parental rights to A.K. We affirm.
In re A.K.
BACKGROUND1
¶2 Mother has three biological children: E., J.P., and A.K.2 In
2006, E. was removed from Mother’s custody in California
because of domestic violence and substance abuse issues. Mother
participated in reunification services, but E. was never returned
to her custody and her parental rights with respect to E. were
terminated in March 2008.
¶3 J.P. was born to Mother and G.G. in 2009. In the fall of
2010, also because of domestic violence and substance abuse
issues, J.P. was removed from Mother’s custody. Mother
participated in reunification services again, which included
counseling sessions for domestic violence, substance abuse, and
parenting.
¶4 A.K. was born to Mother and R.K. (Father) in June 2011.
A.K. remained in Mother’s custody because she was maintaining
sobriety and stability at that time, and J.P. was returned to her
care later that year.
¶5 Mother’s reunification with J.P. was short-lived, however,
because in November 2012, she started abusing drugs again.
Mother and Father also began fighting with one another, which
prompted Mother to send A.K. and J.P. to live with Father’s
mother (Grandmother). Grandmother took both children to Utah
1. “We recite the facts in a light most favorable to the juvenile
court findings.” In re S.Y.T., 2011 UT App 407, ¶ 2 n.1, 267 P.3d
930 (citation and internal quotation marks omitted).
2. Although E. and J.P. are not involved in this appeal, we
include details about Mother’s involvement in their lives to
provide context for the juvenile court’s decision.
20140269-CA 2 2015 UT App 39In re A.K.
while Mother and Father remained in California to work on their
relationship. Mother and Father joined Grandmother and the
children in Utah in March 2013.
¶6 In June 2013, Mother and Father were arrested and
incarcerated. Consequently, the children were placed in the
custody of the Division of Child and Family Services (DCFS). In
its Verified Petition for Custody (Verified Petition), DCFS asked
the juvenile court to find that J.P. and A.K. were “abused, and/or
neglected” and to award it custody and guardianship. In
support of the Verified Petition, DCFS described recent instances
of domestic violence between the parents, the parents’ history of
substance abuse, J.P.’s prior removal from Mother’s care because
of “drug issues,” the parents’ criminal histories, J.P.’s report that
Mother slaps him and A.K., and the parents’ chaotic lifestyle as
evidenced by five moves between March 2013 and June 2013 and
a lack of household furniture. Because of their incarceration,
Mother and Father stipulated that DCFS would have temporary
custody of the children. The juvenile court scheduled a pretrial
hearing on the Verified Petition for June 20, 2013.
¶7 Mother and Father admitted most of the allegations set
forth in DCFS’s Verified Petition. Accordingly, at the subsequent
adjudication hearing, the juvenile court adopted those
allegations as facts and ultimately concluded that J.P. and A.K.
“are neglected in that they lack proper parental care by reason of
the fault or habits of the mother and father.” The court also
substantiated DCFS’s “findings of child endangerment, physical
neglect, and domestic violence related child abuse against both
parents.” Based on its findings and conclusions, the court
granted custody and guardianship of J.P. and A.K to DCFS.
¶8 The court held a disposition hearing on September 19,
2013, to determine whether to order reunification services. DCFS
opposed reunification services. The court heard testimony from
Mother and accepted her stipulation to additional facts
regarding her history in California. Based on her testimony and
20140269-CA 3 2015 UT App 39In re A.K.
stipulations, the court concluded that pursuant to subsections
78A-6-312(20)(a), (g), (h), and (l) of the Utah Code, reunification
services were “not appropriate” and “not in the children’s best
interest” for the following reasons:
(a) E. had already been removed, notwithstanding
Mother’s participation in reunification services;
(b) J.P. had previously been removed from
Mother’s care because of “domestic violence,
drug use, and instability”;
(c) Mother had participated in inpatient and
outpatient reunification services aimed at
protecting J.P. “from further incidents of abuse
and neglect”;
(d) Despite participating twice in reunification
services, J.P. and A.K. were now in DCFS
custody because of “the same issues . . . that
were supposedly addressed back then” by those
“extensive” services;
(e) Mother failed to remove herself from Father
and the court was skeptical of her claim they
had separated.
¶9 The court acknowledged Mother’s determination to
successfully parent her children when she was supervised, but
noted that when she was unsupervised, she seemed to “return[]
to patterns of behavior that expose the children to neglect.” In
declining to order reunification services, the court also noted it
had considered the statutory factors listed in section 78A-6-
312(22) of the Utah Code, including “the history of violent
behavior,” Mother’s failure to respond to previous services, and
“the fact that the children were abused and/or neglected while
20140269-CA 4 2015 UT App 39In re A.K.
the parents were abusing drugs or alcohol.” The court then
informed Mother she could seek services on her own.
¶10 At the permanency hearing, the juvenile court adopted
the primary permanency goal of permanent custody and
guardianship of J.P. to his biological father, G.G., and concluded
that the primary permanency goal in A.K.’s best interest would
be adoption. Consequently, DCFS filed a Verified Petition for
Termination of Parental Rights with regard to A.K.
¶11 At the termination trial, Mother testified on her own
behalf. In addition, she called witnesses, including mental-
health, substance-abuse, and parenting counselors from whom
she had or was currently receiving treatment. Specifically, Verna
Dallin testified that she worked with Mother twice in August
2013 and regularly from November 2013 to January 2014 to help
strengthen life skills and manage anxiety. Additionally, over
Mother’s objections, the court heard testimony from A.K.’s foster
mother (Foster Mother) about his improvement and
development while in DCFS’s custody. Foster Mother also
testified that if A.K. became “legally free” for adoption, she
would be interested in adopting him.
¶12 On March 20, 2014, the juvenile court concluded, “It is
appropriate and strictly necessary to terminate the father’s and
mother’s parental rights as *A.K.+ needs to achieve a sense of
permanency, stability and security and the parents have been
unable to demonstrate an ability to meet *A.K.’s+ needs and
provide him with that stability and security.”3 In support of this
conclusion the court cited, among other things, Mother’s history
in California, her continued struggles with domestic violence
3. Father has not challenged the termination of his rights and is
not a party to this appeal.
20140269-CA 5 2015 UT App 39In re A.K.
and substance abuse despite receiving reunification services on
two prior occasions,4 her decision to align herself with Father
instead of the children, her unstable living situation, and her
decision to delay approximately “one month after the State had
filed its petition to terminate her parental rights” before
beginning to “avail herself of services.” Mother timely appealed.
ISSUES FOR REVIEW
¶13 First, Mother contends the juvenile court improperly
found reunification services were inappropriate. She argues that
the court (A) failed to properly weigh evidence that rebutted the
presumption against reunification services, and (B) erred in
finding reunification services inappropriate under Utah Code
section 78A-6-312(22). Second, she argues the court erred when it
terminated her parental rights because its findings in support of
termination were against the weight of the evidence. Finally,
Mother argues that the juvenile court’s decision to permit Foster
Mother to testify was improper because she was biased.
ANALYSIS
I. The Clear Weight of the Evidence Supports the Juvenile
Court’s Decision Not to Order Reunification Services.
¶14 Mother argues the juvenile court erred when it found
reunification services inappropriate. Specifically, she argues the
court (A) failed to properly weigh evidence that rebutted the
4. The court specifically noted, Mother tested positive for
methamphetamine and marijuana twelve times between October
2013 and February 2014 and observed that “*t+he ongoing use of
illegal substances does not equate to appropriate parenting.”
20140269-CA 6 2015 UT App 39In re A.K.
presumption against ordering reunification services, and (B)
improperly found that she failed to respond to previous
reunification services and had a history of violence toward A.K.
and his immediate family members.
¶15 The juvenile court’s decision to deny reunification
services is within its sound discretion, and parents “have no
constitutional right to receive these services.” In re N.R., 967 P.2d
951, 955–56 (Utah Ct. App. 1998); see also Utah Code Ann. § 78A-
6-312(2)(b) (LexisNexis Supp. 2014).5 Moreover, because of its
advantageous position with regard to the parties and witnesses,
we afford the juvenile court “a high degree of deference,”
overturning its decision only if it is “against the clear weight of
the evidence or leave[s] the appellate court with a firm and
definite conviction that a mistake has been made.” See In re B.R.,
2007 UT 82, ¶ 12, 171 P.3d 435 (citation and internal quotation
marks omitted). In other words, “the juvenile court’s decision
could be overturned 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.” Id. “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.A. The Juvenile Court Did Not Err When It Found a
Presumption Against Ordering Reunification Services.
¶16 The juvenile court found a presumption against
reunification services because Mother’s first child, E., was
removed and her parental rights were terminated after
reunification efforts failed. According to Utah Code subsection
5. Because recent amendments to the relevant statutes do not
affect our analysis, we cite the current edition of the Utah Code
Annotated.
20140269-CA 7 2015 UT App 39In re A.K.
78A-6-312(20)(g), “*t+here is a presumption that reunification
services should not be provided to a parent if the court finds, by
clear and convincing evidence, that . . . the parent’s rights are
terminated with regard to any other minor.”
¶17 Mother does not dispute that there is clear and convincing
evidence to support the finding that her parental rights were
terminated with regard to E. Instead, she argues the juvenile
court abused its discretion when it improperly weighed the
evidence that she had submitted to rebut the presumption
against reunification services.6 In particular, Mother asserts that
although there was a presumption against reunification services
based on the termination of her parental rights with regard to E.,
this was outweighed by the following evidence: (1) “the second
offer of reunification services in California, in 2010, resulted in
full restoration of custody [with regard to J.P.] after successful
completion of numerous state services, and a period of several
years of stability and progress”; (2) losing custody of E. only
occurred because she was young and under the control of an
abusive gang member; (3) Father no longer lived with her; and
6. Mother also argues the juvenile court misinterpreted Utah
Code subsection 78A-6-312(20)(h) and improperly found a
presumption against reunification services with regard to A.K.
because the court should consider only his prior removals, not
the removal of E. or J.P. We do not address the merits of this
argument because even if the court misinterpreted subsection
(h), the court found by the clear and convincing evidence a
presumption against reunification based on at least two other
subsections of the statute. See Utah Code Ann. § 78A-6-
312(20)(g), (l) (LexisNexis Supp. 2014). Accordingly, even if the
court misinterpreted subsection (h), it would be harmless error
because there is a presumption against services based on
subsections (g) and (l).
20140269-CA 8 2015 UT App 39In re A.K.
(4) testimony by her therapist, Dallin, shows she could benefit
from further reunification services.
¶18 First, the court clearly acknowledged Mother’s successful
completion of reunification services with regard to J.P. but
ultimately found it doubtful she could remain successful another
time without the State’s supervision. Even with that supervision,
Mother repeatedly tested positive for drugs throughout A.K.’s
welfare proceedings and had not completed the reunification
services provided with regard to E. Additionally, J.P. was
removed from Mother’s custody for a second time for the same
issues that were supposedly addressed by her previous
reunification efforts.
¶19 Second, Mother does not argue that the court failed to
consider that she was “young and under the control of an
abusive gang member” when E. was removed from her custody.
Instead, she argues only that this fact was inappropriately
weighed, but she fails to demonstrate how being young and
under the control of an abusive man outweighed the undisputed
fact that her parental rights with regard to E. were terminated
after unsuccessful reunification efforts.
¶20 Third, the court considered Mother’s statement that she
had separated from Father, but it found this was outweighed by
the fact they have not divorced and by Mother’s pattern of
separating and reuniting with him. Moreover, Mother did not
sever ties to Father and continued to communicate with him.
¶21 Finally, Dallin’s testimony that Mother would benefit
from further reunification services did not outweigh the other
evidence. Mother presented this evidence only at the termination
hearing, months after the disposition hearing during which the
court decided against ordering reunification services. Moreover,
Dallin’s testimony seemed to contradict Mother’s contention that
she would successfully complete reunification services. At the
termination hearing, Dallin testified that although Mother had
20140269-CA 9 2015 UT App 39In re A.K.
improved in their short time working together, it was not
uncommon for a person with a similar history to go back and
forth with services and repeat patterns before they “pull it
together enough to figure out what else they need to do in their
life.” At any time during the proceedings Mother could have
obtained treatment on her own to attain stability and sobriety.
Instead, she received sporadic services and continued to abuse
drugs and live a chaotic lifestyle.
¶22 In sum, Mother has failed to demonstrate how the
juvenile court improperly weighed the evidence or how the
court’s decision is an abuse of discretion. Moreover, to place
more emphasis on Mother’s past successes and give them their
“full evidentiary weight” as Mother requests, would require us
to inappropriately reweigh the evidence and substitute our
judgment for that of the juvenile court.
B. The Juvenile Court Did Not Err in Finding that Mother
Failed to Respond to Previous Reunification Services and
Had a History of Violent Behavior Directed at A.K. or an
Immediate Family Member.
¶23 Mother argues the juvenile court erred when it found that
ordering reunification services was inappropriate under Utah
Code section 78A-6-312(22). Specifically, Mother argues the court
erred when it found that she (1) failed to respond to previous
reunification services, and (2) had a history of violent behavior
directed at A.K. or an immediate family member.7 Section 78A-6-
7. Mother also argues that the court failed to consider the
testimony of a competent professional at the disposition hearing
in determining whether reunification services were appropriate.
See Utah Code Ann. § 78A-6-312(22)(f) (LexisNexis Supp. 2014).
We do not address this issue. Neither party presented
professional testimony at the disposition hearing. We, therefore,
(continued...)
20140269-CA 10 2015 UT App 39In re A.K.
312(22) offers a non-exclusive list of factors the court must
consider in determining whether reunification services are
appropriate. See Utah Code Ann. § 78A-6-312(22)(a) to (g)
(LexisNexis Supp. 2014). The statute gives the court the
discretion to deny reunification services as long as it properly
considers the applicable factors in making its determination. See
id. § 78A-6-312(2)(b).
¶24 First, Mother argues the juvenile court improperly
determined that she had failed to respond to previous
reunification services. She claims that restoration of custody of
J.P. shows she successfully responded to reunification services.
The juvenile court found, however, that the children’s removal
after she had twice received reunification services, which
supposedly addressed her problems, demonstrated her failure to
respond to those services.
¶25 Utah Code subsection 78A-6-312(22)(a) requires the court
to consider “failure of the parent to respond to previous
services” in determining whether reunification services are
appropriate. The court considered this factor when it
acknowledged Mother’s successful compliance with the services
offered resulting in reunification with J.P., but doubted she
would be capable of maintaining stability and sobriety without
supervision. As discussed above, the court also considered that
understand Mother’s argument to be that the State was required
to present professional testimony before the juvenile court could
decide the issue of reunification services. Mother’s interpretation
of this statute would in effect create an affirmative duty on the
State to present expert testimony at the disposition hearing.
Moreover, Mother failed to support this argument with proper
authority or adequate briefing. See Utah R. App. P. 24(a)(9).
Thus, she has failed to demonstrate error in the juvenile court’s
decision.
20140269-CA 11 2015 UT App 39In re A.K.
Mother failed to complete reunification services with regard to
E. Because it adequately considered whether Mother had failed
to respond to previous reunification services, the juvenile court
did not abuse its discretion. We will not reweigh the evidence
and substitute our judgment for that of the juvenile court’s.
¶26 Second, Mother argues the juvenile court erred when it
determined there was a history of violent behavior against A.K.
or a family member. Specifically, Mother contends the juvenile
court improperly weighed this factor against her because she
was often the victim of the violence.
¶27 Utah Code subsection 78A-6-312(22)(c) requires the court
to consider “any history of violent behavior directed at the child
or an immediate family member” in determining whether
reunification services are appropriate. Although the court made
no factual findings regarding Mother’s violent behavior toward
A.K., the record shows J.P. reported to DCFS that Mother slaps
him and A.K. Additionally, based on her criminal convictions,
the court did find that Mother has a history of violent behavior
directed at one of A.K.’s immediate family members, Father.
Moreover, the court indicated it was “very troubled by the
mother’s behaviors and actions toward the father in that she
appears to have ongoing feelings for the father . . . [and t]he
mother may not be [as] firmly into separating herself from this
violent man as she states.” The court considered Mother a victim
of domestic violence, but properly found A.K.’s “best interests”
to be the paramount concern in determining whether
reunification services were appropriate. See id. § 78A-6-312(5).
We conclude the juvenile court properly exercised its discretion
in weighing the evidence, including considering the history of
violent behavior toward A.K. and his immediate family
members.
¶28 The juvenile court’s order contained pages of detailed
findings addressing each of the factors in Utah Code section
78A-6-312(22) before concluding not to order reunification
20140269-CA 12 2015 UT App 39In re A.K.
services. Thus, because it was supported by the clear weight of
the evidence and it properly considered and weighed all the
facts, the court’s decision not to order reunification services was
not an abuse of discretion.
II. The Clear Weight of the Evidence Supports the Juvenile
Court’s Termination of Mother’s Parental Rights.
¶29 Mother argues the clear weight of the evidence presented
at trial is against the juvenile court’s ruling that she was unfit
and has failed to adjust.8 In particular, Mother argues the
juvenile court failed to appropriately weigh her recent efforts to
reunify with A.K and her past reunification successes.
¶30 “Whether a parent’s rights should be terminated . . .
re*lies+ heavily on the juvenile court’s assessment and weighing
of the facts.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. The
juvenile court must weigh any evidence of Mother’s present
abilities against evidence of her past conduct, and her
unwillingness or inability to improve her conduct. Id. ¶ 13.
Because of its “advantaged position with respect to the parties
and the witnesses,” we afford the juvenile court “a high degree
of deference,” overturning its decision only if it is “against the
clear weight of the evidence or leave[s] the appellate court with a
8. Mother also contends that the juvenile court’s refusal to order
reunification services “fast-tracked” the termination hearing and
directly affected her fundamental rights to parent her child.
Mother seems to argue that because her constitutional rights
were affected when reunification services were denied, the
juvenile court’s decision to refuse to order reunification services
should be reviewed under a higher standard or a strict scrutiny
standard. To the extent that this could be a separate challenge on
appeal, it is not adequately briefed and we do not address it. See
Utah R. App. P. 24(a)(9).
20140269-CA 13 2015 UT App 39In re A.K.
firm and definite conviction that a mistake has been made.” Id.
¶ 12 (citation and internal quotation marks omitted).
¶31 In In re B.R., our supreme court upheld the juvenile
court’s decision to terminate a mother’s parental rights, stating,
“The juvenile court did not err in concluding that nine years of
chronic drug use, including twelve months of continued drug
use during the reunification period, was not outweighed by [the
mother’s+ recent efforts.” Id. ¶ 15. Furthermore, the court
deemed it an “inappropriate substitution of the court of appeals’
judgment for that of the juvenile court” to put more emphasis on
a parent’s recent rehabilitative efforts than the juvenile court did.
Id. ¶ 14.
¶32 Here, the court acknowledged Mother’s independent
efforts to attend substance-abuse counseling, individual
counseling, and parenting classes, but noted they were only
initiated a little over a month after DCFS filed a petition to
terminate her parental rights. The court expressly “consider*ed+
these services in light of the past services that [Mother]
participated in while living in California.” In California, Mother
participated in inpatient and outpatient treatment, individual
counseling, and life-skills, anger-management, family-recovery,
relapse-prevention, and parenting classes. Nevertheless, because
her other children have since been removed on separate
occasions for similar issues, the court found she had failed to
demonstrate the skills previously taught. Furthermore, from
November 2012 to the termination hearing, Mother failed to
achieve any stability as she continued to live in hotels, stayed
with friends or family, and went to jail. Despite extensive
inpatient and outpatient treatment, Mother continues to
habitually abuse drugs. Similar to In re B.R., Mother’s long
history of drug abuse and pattern of instability is not
outweighed by her recent efforts. Mother’s longest period of
sobriety was four years, but in the five-month period between
the disposition hearing and the termination trial Mother tested
positive for drugs at least twelve times. Indeed, at trial Mother
20140269-CA 14 2015 UT App 39In re A.K.
testified that using drugs is the only coping mechanism she
knows.
¶33 While it is true that Mother successfully regained custody
of J.P. after receiving services, the court found it troubling that
J.P. and A.K. were removed for the same issues that were
addressed in her previous reunification efforts. The court also
noted these issues were the same issues that led to the
termination of parental rights with regard to E. By weighing
Mother’s past reunification efforts—such as attending substance
abuse treatment and parenting classes—and her past issues with
drug abuse and domestic violence against her current drug
abuse, instability, and delayed efforts to reunify with A.K., the
court properly weighed her past circumstances against her
present abilities. If we were to reweigh the evidence, putting
more emphasis on Mother’s recent reunification efforts or the
absence of abusive men in her life, it would be an improper
substitution of our judgment for the juvenile court’s.
Accordingly, we conclude the juvenile court did not abuse its
discretion when it found Mother unfit and unable to adjust.
III. The Juvenile Court Did Not Abuse Its Discretion When It
Allowed Foster Mother to Testify.
¶34 Mother’s final argument concerns the juvenile court’s
decision to allow Foster Mother to testify at trial. Mother argues
that Foster Mother’s testimony was inherently biased and
allowing her to testify rendered the proceedings fundamentally
unfair. The State responds that not only was the juvenile court
required to “consider the ties between the foster family and the
child,” but Mother also had the opportunity to explore Foster
Mother’s bias during cross-examination, thereby challenging the
credibility of her testimony. The State also argues there was no
danger of unfair prejudice under rule 403 of the Utah Rules of
Evidence in this case, because juvenile court judges “have special
training and experience that gives them advantages in assessing
the credibility of a witness.”
20140269-CA 15 2015 UT App 39In re A.K.
¶35 Utah Code section 78A-6-510 requires the court to
consider “whether the child has become integrated into the
foster family to the extent that his familial identity is with that
family.” It lists a number of factors the court shall consider,
including “the love, affection, and other emotional ties existing
between the child and the parents, and the child’s ties with the
foster family.” Utah Code Ann. § 78A-6-510(1) (LexisNexis 2012).
Foster parents are competent witnesses to testify to these issues
because they have “personal knowledge of the matter.” Utah R.
Evid. 602. Although foster parents may be biased toward
adoption, we agree with the State that juvenile court judges have
the requisite training and experience to assess those biases,
particularly when the natural parent can cross-examine the
foster parents. See id. R. 608(c) (“Bias, prejudice or any motive to
misrepresent may be shown to impeach the witness either by
examination of the witness or by other evidence.”). Given this
specialized training and experience, the danger for unfair
prejudice would not merit exclusion of Foster Mother’s
testimony. The juvenile court did not abuse its discretion when it
allowed Foster Mother to testify at the termination trial.
CONCLUSION
¶36 The juvenile court properly found a presumption against
ordering reunification services. Mother has failed to demonstrate
that the juvenile court’s decision against ordering reunification
services and its findings that she was unfit and unable to adjust
were against the clear weight of the evidence. Moreover, the
juvenile court did not abuse its discretion by allowing Foster
Mother to testify at the termination trial.
¶37 We affirm the juvenile court’s decision to terminate
Mother’s parental rights with respect to A.K.
____________
20140269-CA 16 2015 UT App 39