In re A.T...

2020 UT App 50THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF A.T., J.T., AND K.B.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
K.B.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20190591-CA
Filed March 26, 2020
Fourth District Juvenile Court, Provo Department
The Honorable Suchada P. Bazzelle
No. 1160859
Daniel H. Shen and Margaret P. Lindsay, Attorneys
for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and KATE APPLEBY concurred.
HARRIS, Judge:
¶1 After eight-year-old A.T. called authorities to report that
her mother (Appellant K.B., herein referred to as Mother) had
overdosed on drugs, the State of Utah’s Division of Child and
Family Services (DCFS) took custody of A.T. and her brother J.T.
(the Children) and placed them—at least temporarily—with
their biological father (Father). After attempting for eight months
to reunify the Children with Mother, the juvenile court decided
In re A.T.
to terminate reunification services and award Father permanent
custody and guardianship of the Children. In making its
decision, the court relied heavily on a principle of “parental
presumption.” That principle, as articulated by the juvenile
court, does not apply in this case, and therefore the court
incorrectly relied upon it. And given some of the statements the
court made in arriving at its decision, we are not convinced that
the court would have made the same decision, at least at that
time, had it not so heavily relied on the parental presumption.
Accordingly, we vacate the juvenile court’s order and remand
this case for further proceedings.
BACKGROUND
¶2 Mother and Father divorced in December 2013. Following
the divorce, Mother was awarded sole custody of the Children;
at the time, A.T. was three years old and J.T. was two. Several
months later, in May 2014, Mother married Stepfather, and
about a year later gave birth to a third child, whose initials (like
Mother’s) are also K.B. (Brother).
¶3 On June 21, 2018, Mother overdosed on an unknown
substance. Both of the Children were in the house at the time,
and A.T.—who was then eight years old—called 911. Mother
was transported to the hospital and given life-saving treatment,
though she refused to tell medical or law-enforcement personnel
what substance she had overdosed on. Additionally, Mother
refused to provide names and contact information for additional
caregivers for the Children, prompting law enforcement to
contact DCFS to take emergency physical custody of the
children. Shortly thereafter, Father contacted DCFS, which later
placed the Children with Father on a temporary basis.
¶4 DCFS’s petition for custody of the Children, filed with the
juvenile court on the day after Mother’s overdose and amended
a few weeks later, sought abuse and neglect findings as to
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Mother and a dependency finding as to Father. 1 At adjudication
hearings held early in the case, the juvenile court found the
Children to be dependent as to Father and neglected as to
Mother. Neither parent has, at any point, contested those
findings. After adjudication, the court kept the Children in DCFS
custody and placed them with Father on a temporary basis. The
court set a permanency goal of reunification with Mother, with a
concurrent plan of “permanent custody and guardianship with a
relative,” for which Father would be “first in line,” and ordered
that Mother receive reunification services pursuant to a child
and family plan.
¶5 As part of that child and family plan, the court ordered
Mother to, among other things, complete mental health and
substance abuse assessments in a timely manner, including
following all recommendations of those assessments; maintain
stable and appropriate housing; and maintain a legitimate means
of financially supporting her children. Finally, the court warned
Mother that failure to comply with its order could result in
termination of reunification services, a change in the
permanency goal, or even termination of parental rights.
¶6 Over the course of the next few months, the court held
two review hearings to learn how Mother was doing with her
reunification efforts. At those hearings, DCFS reported that
Mother was doing quite well with the substance abuse side of
the reunification plan—she not only had completed her
1. DCFS’s petition also discussed Mother’s third child, Brother,
but DCFS did not seek custody of Brother; instead, it asked the
juvenile court to award custody and guardianship of Brother to
Stepfather, who is Brother’s biological father. The juvenile
court’s determinations regarding Brother are not directly at issue
in this appeal, and reference to Brother and Stepfather are
included here only as background.
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assessment, but also had completed drug treatment, and her
drug tests had come back clean. Mother also was consistent with
her in-person visits with the Children, though she was
inconsistent with telephonic visitation. However, even after
eight months, Mother had not found acceptable housing, had not
found suitable employment, and had not yet completed a mental
health assessment, let alone any treatment or counseling.
¶7 In February 2019, DCFS—eventually joined by the
guardian ad litem (GAL)—asked the juvenile court to terminate
reunification services, given Mother’s lack of complete
compliance with the plan. At the hearing on DCFS’s motion,
Mother pointed out that she was in compliance with a great
many of the plan’s requirements, and that she was excelling with
regard to the substance abuse aspects of it. She also asked the
juvenile court to afford her additional time to complete the
remaining items, including the mental health assessment, and
represented to the court that she could at least come close to full
compliance with the plan, given additional time. The court
rejected these arguments, and granted DCFS’s motion to
terminate reunification services at the eight-month mark.
¶8 In making its ruling, the juvenile court was heavily
influenced by its perception of the “parental presumption,” a
legal principle discussed more fully below and which was first
introduced into our jurisprudence by our supreme court in
Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982). No party had
mentioned the parental presumption in briefing prior to the
hearing. The court began its oral ruling by referencing the
parental presumption, stating that in this case there had been “a
neglect finding against the mother, which does rebut the
parental presumption in favor of the mother,” but stating that
the dependency finding against Father did not rebut his parental
presumption, because it was “a no fault finding.” Thus, the court
framed the issue like this: “we have one parent whose parental
presumption is rebutted and one whose isn’t.” The court went
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on to clarify that “just from a legal standpoint, the father’s claims
are superior to anybody else’s claims in the courtroom,” and that
the court did not “have any findings against him that would
rebut that standing.” Against that backdrop, the juvenile court
then transitioned to a discussion of Mother’s compliance with
the reunification plan, stating as follows:
Nothing entitles [Mother] to a full twelve months
[of reunification services], and on that issue . . . I
think if I had a neglect finding against [Father] or
we didn’t have a dad, we’d probably keep working
at [Mother’s reunification goal]; but that’s not
where we are. I have a father with an unrebutted
presumption who wants custody.
¶9 The juvenile court then looked specifically to Mother’s
non-compliance with the plan, stating that “[w]e have been in
progress for eight months and [Mother] has done some things,
but she’s lacking at this point some pretty important parts,”
including housing and employment. The juvenile court also
noted that Mother had not completed even a mental health
assessment, let alone any treatment, and that her failure to
complete the assessment within the first eight months meant that
she likely would not be able to complete the necessary mental
health treatment within the twelve-month period mandated by
statute, absent exceptional circumstances, for completion of
reunification services. See Utah Code Ann. § 78A-6-314(6)
(LexisNexis Supp. 2019). After considering these facts, the
juvenile court summed up its ruling:
By the time [Mother] gets [a mental health]
assessment . . . I just don’t think it’s going to make
that much of a difference at this point. When I
weigh that against the father’s superior claim for
these children . . . I think that legally I need to
terminate reunification services.
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¶10 Following the hearing, the juvenile court memorialized
its holding in a written order, which noted that “we have
one parent whose parental presumption is rebutted and one
parent whose parental presumption is unrebutted,” as well as
that “[Mother] has not started with her mental health
assessment and this . . . is one of the longest running part[s]
of this reunification process,” and that even “[i]f this Court
were to give her a full 12 months” to complete the plan,
“there just isn’t enough time left.” The court ordered
reunification services terminated, and ordered that the
Children be placed in the “permanent physical and
legal custody” of Father, with Mother to receive periodic
visitation.
ISSUES AND STANDARDS OF REVIEW
¶11 Mother now appeals from the juvenile court’s order.
Mother’s chief argument is that the juvenile court committed
legal error by misconstruing the parental presumption; Mother
asserts that this error influenced the court’s decision to terminate
her reunification services. 2 Mother’s challenge to the juvenile
court’s application of the law, including its interpretation of the
parental presumption, presents a legal issue, which we review
for correctness. 3 In re F.L., 2015 UT App 224, ¶ 10, 359 P.3d 693.
2. Mother also asserts that, even if the juvenile court did not
commit legal error in its evaluation of the parental presumption,
the adjudicated facts still do not support the court’s decision to
terminate reunification services. Given our resolution of the
other issues in this appeal, we need not consider this argument.
3. The State takes the position that Mother failed to preserve any
challenge to the juvenile court’s application of the parental
presumption. It points out that Mother never asked the juvenile
(continued…)
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Because we conclude that the juvenile court misapplied the
parental presumption, we must then evaluate the argument,
made by the GAL and the State, that any error was harmless.
The concept of harmless error is applicable to juvenile court
decisions. See, e.g., In re W.A., 2002 UT 127, ¶ 36 n.11, 63 P.3d 607;
In re B.C., 2018 UT App 125, ¶ 6, 428 P.3d 18; see also Utah R. Juv.
P. 2(a) (stating that “the Utah Rules of Civil Procedure shall
apply” to juvenile court proceedings involving “neglect, abuse,
[or] dependency,” unless the civil rules are inconsistent with the
juvenile rules); Utah R. Civ. P. 61 (“No error or defect in any
ruling or order . . . is ground for granting a new trial or
otherwise disturbing a judgment or order, unless refusal to take
such action appears to the court inconsistent with substantial
justice”). An error is harmless if it is “sufficiently inconsequential
that there is no reasonable likelihood that it affected the outcome
of the proceedings.” In re W.A., 2002 UT 127, ¶ 36 n.11 (quotation
simplified).
(…continued)
court to address the issue, and did not challenge the court’s
application of the presumption after it had issued its ruling. But
the juvenile court raised the issue sua sponte, and made the issue
a central part of its ultimate ruling. Under these circumstances,
the issue was preserved for appellate review. See Helf v. Chevron
U.S.A., Inc, 2015 UT 81, ¶ 42, 361 P.3d 63 (stating that, “[w]here a
district court itself raises and then resolves an issue sua sponte, it
obviously had an opportunity to rule on the issue,” and these
circumstances “satisf[y] the basic purposes of the preservation
rule”); see also Kell v. State, 2012 UT 25, ¶ 11, 285 P.3d 1133(holding that an issue was preserved for appeal when “the
district court not only had an opportunity to rule on the issue . . .
[but] it did rule on it”); State v. Cowlishaw, 2017 UT App 181,
¶ 21, 405 P.3d 885 (holding that an issue was preserved when
“the [district] court addressed the issue sua sponte”).
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ANALYSIS
I
¶12 Our supreme court first introduced the concept of a
“parental presumption” into our case law several decades ago,
in Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982). At the center
of that case was a dispute “between former spouses over the
custody of a child born to the wife before their marriage.” Id. at
39. A “blood test” confirmed that the husband was not the
biological father of the child, and he had apparently not legally
adopted the child, but the court noted that he had “in every
way” treated the child as his own and that the child viewed him
as her father. Id. at 39–40. Despite the husband’s lack of a
biological or legal connection to the child, the district court
placed both mother and husband on equal footing for purposes
of its custody determination, and used a simple best-interest test
to determine custody, finding that it would be in the child’s best
interest for the husband to have custody. Id. at 40. Our supreme
court held that this analysis was incorrect, stating that, in a
dispute over custody between two natural parents, 4 “the
paramount consideration is the best interest of the child, but
where one party to the controversy is a nonparent, there is a
presumption in favor of the natural parent,” even if an ordinary
best-interest inquiry would come out in favor of the nonparent.
Id. The court based this presumption on “the common
experience of mankind, which teaches that parent and child
normally share a strong attachment or bond for each other, [and]
4. Utah’s Juvenile Court Act defines “natural parent” as “a
minor’s biological or adoptive parent, and includes the minor’s
noncustodial parent.” See Utah Code Ann. § 78A-6-105(38)
(LexisNexis Supp. 2019). As mandated by statute, we employ
this definition for the purposes of our analysis.
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that a natural parent will normally sacrifice personal interest and
welfare for the child’s benefit.” Id. The court noted, however,
that the parental presumption was “not conclusive” and was
subject to being rebutted, but that it “cannot be rebutted merely
by demonstrating that the opposing party possesses superior
qualifications, has established a deeper bond with the child, or is
able to provide more desirable circumstances.” Id. at 41. Indeed,
the court held that
the parental presumption can be rebutted only by
evidence establishing that a particular parent at a
particular time generally lacks all three of the
characteristics that give rise to the presumption:
that no strong mutual bond exists, that the parent
has not demonstrated a willingness to sacrifice his
or her own interest and welfare for the child’s, and
that the parent lacks the sympathy for and
understanding of the child that is characteristic of
parents generally. The presumption does not apply
to a parent who would be subject to the
termination of all parental rights due to unfitness,
abandonment, or substantial neglect, since such a
parent is a fortiori not entitled to custody.
Id. Unless the parental presumption is rebutted, a natural parent
will always prevail in a custody battle with a nonparent, even if
a best-interest analysis would counsel otherwise. On the other
hand, if the presumption is rebutted, then the parent and the
nonparent “compete on equal footing,” and the court should
make a custody decision that is in the best interest of the child,
with no inherent preference for the natural parent. Id.
¶13 As demonstrated by the facts of Hutchison, the parental
presumption was introduced into our jurisprudence in a case
involving a dispute between a natural parent and an individual
without a biological or legal connection to the child. Since
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Hutchison, both this court and our supreme court have continued
to apply the parental presumption in appropriate cases, but
always in cases, like Hutchison, involving a custody dispute
between a natural parent and a nonparent. See, e.g., In re K.F.,
2009 UT 4, ¶ 69, 201 P.3d 985; Kishpaugh v. Kishpaugh, 745 P.2d
1248, 1250–53 (Utah 1987); Davis v. Davis, 2001 UT App 225,
¶¶ 7–13, 29 P.3d 676; Duncan v. Howard, 918 P.2d 888, 891–94
(Utah Ct. App. 1996). The parties have not directed us to—and
we are not independently aware of—any Utah case in which the
parental presumption as conceived in Hutchison has been
applied in a dispute between two natural parents. Based on this
absence of case law, Mother asserts that “the presumption does
not apply in parent-to-parent custody matters,” and we
acknowledge that this position has significant force.
¶14 But in this case, we need not determine the inapplicability
of the parental presumption on that basis. Even assuming—
without deciding, and only for the purposes of the analysis—
that the parental presumption could conceivably apply in a
dispute between two natural parents, it does not apply in this
case, because here both parents lost the presumption, given the
uncontested findings made by the juvenile court regarding
neglect (against Mother) and dependency (against Father). As
the GAL points out, 5 our supreme court has clearly stated that
the presumption “does not apply . . . to cases brought before the
juvenile court on abuse, neglect, and dependency petitions.” See
In re K.F., 2009 UT 4, ¶ 69 (quotation simplified). Parental rights,
though “fundamental,” “are not absolute.” See Jensen ex rel.
Jensen v. Cunningham, 2011 UT 17, ¶ 74, 250 P.3d 465 (quotation
5. The GAL agrees with Mother that the juvenile court
incorrectly applied the parental presumption in this case,
specifically asserting that “[t]he juvenile court’s claim that Father
retained the parental presumption was legally wrong.” As
noted, in our view the GAL’s position is correct.
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simplified). “A parent’s rights must be balanced against the
state’s important interest in protecting children from harm.” Id.In cases in which abuse, neglect, or dependency is established,
the usual parental presumption that prevents the State (a
nonparent) from intervening in parental decision-making no
longer applies, and the State (supervised by the juvenile court)
may take custody of children, even over their parents’ objections,
and place them appropriately.
¶15 In this case, Mother was the subject of a neglect petition,
and Father was the subject of a dependency petition; the court
entered affirmative findings on each, and those findings are
uncontested here. Accordingly, even if we assume that the
parental presumption could potentially apply to some parent-
versus-parent contests, it cannot apply to this one, because in
this case neither parent is entitled to its benefits. The neglect
finding against Mother rebuts any parental presumption she
might have, and the dependency finding against Father rebuts
any parental presumption he might have. In a case like this one,
the court is free to make its determinations about placement of
the Children solely on best interest and on the other provisions
of the Juvenile Court Act, without deferring to any parental
presumption as envisioned in Hutchison. Accordingly, the
juvenile court erred by concluding that a Hutchison-style
parental presumption existed here in favor of Father.
II
¶16 However, all of this is not to say that Father enjoys no
advantages over Mother, given the facts of this case, when it
comes to making a best-interest determination with regard to the
Children. Even though a dependency finding erases any
Hutchison-style parental presumption that may have existed in
favor of Father, see In re K.F., 2009 UT 4, ¶¶ 66–69, 201 P.3d 985,
the juvenile court correctly noted that a dependency finding is,
after all, a “no fault” finding, see Utah Code Ann. § 78A-6-105(14)
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(LexisNexis Supp. 2019) (defining a “dependent child” as “a
child who is homeless or without proper care through no fault of
the child’s parent”), and is in that respect significantly different
from a finding of abuse or neglect. In this vein, the GAL and the
State assert that, even if the juvenile court erred in its application
of the parental presumption, it did not err in making the
ultimate decision to terminate reunification services and place
the Children with Father. Essentially, the GAL and the State
argue that any legal error the juvenile court made in its
application of the parental presumption was harmless here, and
that the court would almost certainly have placed the Children
with Father in any event, given that Father had not been found
to have abused or neglected the Children, and given that there
was no evidence that he was in any other way unfit or unable to
care for the Children. As noted above, “[h]armless error is an
error that is sufficiently inconsequential that there is no
reasonable likelihood that it affected the outcome of the
proceedings.” In re B.C., 2018 UT App 125, ¶ 6, 428 P.3d 18(quotation simplified). While we acknowledge that the harmless
error argument advanced by the GAL and the State is not
without force, we are ultimately unconvinced—given the tenor
of some of the juvenile court’s statements in the course of
making its ruling—that there is no reasonable likelihood that the
juvenile court’s legal error affected the result. Under these
circumstances, we are unable to affirm the juvenile court’s
ultimate decision on the harmless error grounds suggested by
the GAL and the State.
¶17 At the outset of the court’s analysis, it stated that it had “a
neglect finding against the mother, which does rebut the
parental presumption in favor of the mother,” and that it had “a
dependency finding as to [Father], which was a no fault
finding,” and that therefore it had “one parent whose parental
presumption is rebutted, and one whose isn’t,” and that “from a
legal standpoint, the father’s claims are superior to anybody
else’s claims in the courtroom.” Then, with “that being said,” the
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court moved on to discuss reunification services, noting that
“we’ve given it a really good try” and finding that, “[a]t eight
months” the State “has made reasonable efforts” to provide
reunification services to Mother. In the very next paragraph,
however, the court returned to the parental presumption, and
stated that if it “had a neglect finding against [Father] or we
didn’t have a [d]ad, we’d probably keep working” at the goal of
reunification with Mother. And again, at the end of its ruling, it
weighed Mother’s partial compliance with the plan “against the
father’s superior claim,” and concluded that it “legally . . .
need[ed] to terminate reunification services and grant the State’s
motion and the father’s request for custody at this time.”
¶18 The court’s statements make plain that its analysis was
highly dependent upon its understanding of the parental
presumption. Based on what it understood about the law
governing such presumptions, the court considered itself legally
bound to make a ruling in Father’s favor, and even went so far as
to state that, absent a parental presumption in favor of Father, it
would probably have given Mother additional time to complete
the requirements of the plan. Under these circumstances, we are
uncomfortable with the GAL’s and the State’s suggested
conclusion that the juvenile court would have reached the same
decision anyway. In this case, we think it best to remand this
matter to the juvenile court so that it may hold another
permanency hearing at which it should reconsider the matter
anew without being unduly influenced by a belief that a
Hutchison-style parental presumption drives the outcome.
¶19 We take pains to point out, however, that we are not
attempting to instruct the juvenile court to reach one particular
outcome or another, or to imply that the ultimate result the
juvenile court reached was necessarily the wrong one. As we
have already pointed out, Father has certain advantages in this
proceeding, given that he is a natural parent of the Children and
has not been found to have abused or neglected them. But given
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the dependency finding, any advantages he might enjoy are
specific to the facts of the case and become relevant at the best-
interest stage of the analysis; his advantages are not the result of
a Hutchison-style parental presumption in his favor. Given the
findings pertinent to both parents, in this case the juvenile court
is tasked with placing the Children in accordance with the
Juvenile Court Act and with their best interest, and is not bound
to favor one side simply because of any parental presumption.
¶20 On remand, and among other things, the juvenile court
should consider “whether the [Children] may safely be returned
to the custody of [their] parent,” Utah Code Ann. § 78A-6-
314(2)(a), or whether there is a “substantial risk of detriment” to
the Children’s well-being in doing so, id. § 78A-6-314(2)(b). In
making this determination, the court may consider various
factors, including Mother’s level of “participat[ion] in a court
approved child and family plan,” id. § 78A-6-314(2)(c)(i)(A). The
court may also consider whether to extend additional
reunification services to Mother, an inquiry that includes
consideration of whether extension of additional services “is in
the best interest of” the Children. See id. § 78A-6-314(7)(a)(iii).
CONCLUSION
¶21 We vacate the juvenile court’s order terminating
reunification services and establishing permanent custody and
guardianship of the Children with Father. As explained herein,
we do so not necessarily because we consider the result the
juvenile court reached to be ultimately incorrect, but because the
juvenile court committed legal error in the course of making its
ruling, which error we cannot here label “harmless.” We remand
for a new permanency hearing, at which the juvenile court
should reach the result it believes is dictated by the Juvenile
Court Act and by the best interest of the Children, and not by
any parental presumption.
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