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Category: Reunification

Is It Common for Ex-spouses to Continue Supporting Each Other Financially and Emotionally After a Divorce? What Are Some Potential Solutions for This Situation?

See parent question. I am a divorce lawyer, and after a divorce case ends (meaning a decree of divorce has been issued and case essentially closed), I literally never know how the divorced couple interacts afterward unless their interactions result in the violation of provisions of the decree, or circumstances change so substantially and materially from what they were at the time the decree of divorce was entered that modifying the decree becomes either necessary or warranted.

If a court orders an ex-spouse to pay child support and/or alimony, then clearly that ex-spouse will be supporting the other financially, but this is due to a court order, not out of the goodness of that ex-spouse’s heart (in fairness, most people have no objection to supporting their own minor children and would do so whether they were “court-ordered” to do so).

That stated, it is my impression that post-divorce, most (most, not all) couples interact with each other very little, and only as much as necessary. Obviously, divorced parents of minor children almost always find themselves interacting with each other more than a couple without children or whose children are grown adults and not living with either parent because these divorced parents of minor children need to sign documents pertaining to the children, attend health care appointments and parent teacher conferences, performances and athletic events in which the children participate, etc.

Some ex-spouses end up voluntarily supporting an ex-spouse financially and/or emotionally because they didn’t want the divorce and still care for their ex-spouses and genuinely want to help them. Some provide support over and above what the court orders because it’s easier to provide the support than it is to ignore the ex-spouse’s constant wheedling and complaining, threats, and overall nuisance-causing.

Some people divorce in such an amicable way that they can truly care for each other yet conclude (often mutually) that they are better off friends than spouses. In those situations, they can and do care about and support each other as friends. I don’t know about you, but I am not in the habit of supporting my friends financially (with friends like those . . . ). Of course I’ll help in a time of emergency or need, I’ll buy a friend a birthday gift, pick up the tab for a meal, and things like that, but I don’t consider it part of a friendship to be paying a friend’s expenses with any degree of regularity. So a “friendly ex-spouse” who expects your friendship with him/her to include regular financial support of any amount is probably exploiting your good will.

For the most part, it is my experience that most ex-spouses do not voluntarily continue to support each other financially and emotionally after a divorce; it’s part of the divorce process to cut those ties.

A divorced person who feels “cheated” or “deprived” of an ex-spouse’s financial and/or emotional support after divorce because of divorce is someone who either does not understand divorce or its purpose.

If one is an innocent spouse who was nothing but loving and supporting and faithful and devoted during the married and his/her spouse divorced him/her due to no fault of the innocent spouse, well, honey, unless your ex comes to his/her senses and sincerely begs your forgiveness (and it is known to happen in rare, rare circumstances—not frequently enough to justify believing or even hoping it is likely to happen), then if your ex wants nothing more to do with you, you’re much better off finding love, affection, and support elsewhere.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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I’m a Divorce Lawyer. Too Many People Divorce.

I’m a divorce lawyer. I’m not divorced (God willing, I won’t ever be), I am opposed to divorce generally (while there are times when a divorce is plainly necessary, most of the time divorce makes what one is suffering, what one’s spouse, and what one’s family are suffering worse). The family law legal system is adequately designed but poorly administered (and that includes many of the litigants).

While I acknowledge that many people marry foolishly and recklessly, people divorce far too often.

If your marriage is not placing your physical safety or life in danger, if your spouse is not flouting his/her marital vows, and yet you are still contemplating divorce, ask yourself if it’s your spouse or even merely being married that is your problem (it likely isn’t).

If your spouse or marriage is not your problem, they are likely more help to you than a hindrance, and throwing them away will likely do you (and your spouse) more harm than good.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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John v. John – 2023 UT App 103

John v. John – 2023 UT App 103

THE UTAH COURT OF APPEALS

LUCAS ALLEN JOHN,

Appellee,

v.

CASSANDRA KATHLEEN JOHN,

Appellant.

Opinion

No. 20210506-CA

Filed September 14, 2023

Third District Court, Salt Lake Department

The Honorable Su Chon

Commission Joanna Sagers

No. 164904953

Benjamin K. Lusty, Attorney for Appellant Mary Deiss Brown, Attorney for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which

JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1        In Lucas Allen and Cassandra Kathleen John’s divorce decree, the district court gave Lucas[1] sole legal and physical custody of the parties’ daughter, Child. The decree gave Cassandra once-a-week virtual parent-time and in-person parent-time as often “as the parties agree, or as recommended by the reunification therapist.” The court ordered that Cassandra’s virtual parent-time “not be . . . monitored” but that her in-person parent-time be “subject to line-of-sight supervision.” The court then outlined a “reunification” plan, with the goal of Cassandra’s eventual transition to unsupervised parent-time with Child.

¶2        Cassandra contends that the district court erred by ordering supervised in-person parent-time without making the statutorily required finding of “evidence that [Child] would be subject to physical or emotional harm or child abuse . . . from [Cassandra] if left unsupervised with [her].” Utah Code § 30-3-34.5(1).[2] Cassandra also forwards multiple arguments in support of the assertion that the court erred by failing to provide, as required by statute, “specific goals and expectations” for her to meet “before unsupervised parent-time may be granted.” Id. § 30-3-34.5(5). We conclude that the district court made an adequate finding of evidence that Child would be subject to physical or emotional harm from Cassandra if left unsupervised with her, and we conclude that each of Cassandra’s arguments regarding specific goals and expectations is either mistaken or unpreserved. We therefore affirm.

BACKGROUND

¶3        Lucas and Cassandra married in March 2014. Child was born in September of that year. Cassandra had “engaged in drug use over the years,” and “even though [Cassandra] was a stay-at-home mom,” Lucas “hired a baby-sitter to take care of [Child] . . . because of [Cassandra’s] drug use” and because “he feared for [Child’s] safety.”

¶4        Soon after Child was born, Cassandra became pregnant with the parties’ second child. When the second child was born, the baby “had substances in her system,” “indicat[ing] that [Cassandra had been] engaging in activities that were potentially harmful to the . . . child.” This child died shortly after her birth.[3]

¶5        The parties separated around May 2016, and Cassandra moved in with her boyfriend later that year. In August 2016, Lucas petitioned for divorce. The next month, he moved for temporary orders to grant him sole legal and physical custody of Child. He also requested that Cassandra’s visitation time with Child be supervised and that Cassandra be ordered to submit to drug testing.

¶6        Around this time, Lucas and Cassandra were together “at a local restaurant” when Cassandra “took [Child], put her in the front seat of [a] truck without any car seat or any appropriate child restraints and then drove off,” hitting Lucas with the truck in the process. A temporary protective order was entered against Cassandra because she had attempted to run Lucas over with her truck and abscond with Child. A hearing on the protective order was held in October 2016, at which the commissioner recommended dismissal of the protective order,[4] entry of a mutual restraining order, and the granting to Cassandra of “unsupervised parent time . . . with no overnights.”

¶7        On December 8, 2016, a hearing was held on Lucas’s Motion for Temporary Orders. Following the hearing, the court entered mutual restraining and no-contact orders against the parties, awarded Lucas temporary sole legal and physical custody of Child, and directed Cassandra to “submit to a hair follicle [drug] test before 5:00 p.m.” that day. The court gave Cassandra parent-time “with . . . no overnights” and provisionally ordered that it be “facilitated” by a particular family friend. The court further instructed that if Cassandra’s drug test came back positive, Lucas’s attorney was to “call the court to schedule a telephone conference to determine the status moving forward.”

¶8        Cassandra’s hair follicle drug test came back positive for both cocaine and marijuana, and another hearing was held on December 20, 2016. Following that hearing, the court ordered that Cassandra’s parent-time be subject to line-of-sight supervision and that Cassandra complete another drug test by January 9, 2017.

¶9        On January 9, 2017, Cassandra submitted an “unofficial” drug test showing negative results for a collection taken that day. At a review hearing on January 30, 2017, however, the commissioner was “concern[ed]” because the results of the January 9 unofficial test were “drastically different” than the results of the test on December 8, 2016. The commissioner therefore directed Cassandra to complete another drug test that day. The commissioner also ordered “continue[d] . . . supervised parent time, status quo,” and set a review hearing for February 13, 2017.

¶10 Cassandra’s drug test on January 30, 2017, came back positive for marijuana, and following the February 13 review hearing, the court ordered “expanded supervised parent-time” with “no overnight visits.” It also ordered Cassandra to submit to a urinalysis by March 8, 2017, and it set another review hearing for March 13, 2017.

¶11 Cassandra took the required test before the March 13 review hearing, but she failed to submit the results. Her counsel (Counsel) nevertheless proffered at the hearing that the test had come back “positive for THC.” The court ordered that Cassandra’s parent-time remain subject to “direct line-of-sight” supervision “with no overnight visits.”

¶12 “At some point”—likely during April 2017—Cassandra “moved to Idaho for several months.” After a “stint in Louisiana,” she then moved to Iowa and lived there with a boyfriend. Once she had left Utah, Cassandra did not request any review hearings or make any attempt to exercise in-person parent-time with Child. As a result, she was “around [Child] physically on [only] three occasions” between January 2017 and June 2021.

¶13      Eventually, in March 2021, after compromise negotiations proved only minimally successful, the court held a bench trial on the parties’ outstanding issues. At the time of trial, Child was six years old.

¶14      Following trial, the court held a hearing to orally announce its rulings. To Cassandra’s credit, the court found that she was “trying to make some changes in her life,” including engaging in “therapy to resolve anger, trauma, and substance abuse” issues, and that she “appear[ed] to be improving.” But the court found that Cassandra still “lack[ed] . . . maturity in her decision-making processes,” “consider[ed] her own needs first and primary over [Child]’s,” and might not be “completely emotionally stable.” The court also found that Cassandra had engaged in “instances of violence” in the past (including the one that led to the temporary protective order noted above). And it found that Cassandra’s failures to “give[] first priority to [Child]’s welfare” were due to her “history with drug abuse.” Based on the foregoing findings, the court awarded Lucas sole legal and physical custody of Child.

¶15 The court then granted Cassandra supervised in-person parent-time at a frequency to be determined by a therapist and unsupervised virtual parent-time at least once per week. The court said that it thought there ought to be “some sort of ramping up” of supervised in-person visits and that a therapist should “come up with a schedule” for those visits after talking with Child, Cassandra, and Lucas to “see what’s appropriate.” The court further explained, “I expect that the therapist will come up with so many overnights so that [Cassandra] can practice with all of those things, and then once she’s completed the therapist’s plan, then I would say that the standard relocation statute would then become effective.” Counsel then asked whether “at that point”—i.e., when Cassandra had completed the therapist’s plan—“supervision would no longer be required.” The court responded, “I don’t know, Counsel,” “because there’s . . . some ongoing drug issues . . . and we don’t have any evidence . . . that she would have clean tests.”

¶16      Counsel then asked if the court was going to make findings as to whether Child “would be in danger if she were with [Cassandra unsupervised].” In response, the court said:

[G]iven that [Cassandra]’s not complied with the Court orders, it’s not clear to me whether or not she’s a danger to [Child] still. She hasn’t completed the drug tests, et cetera, so given her noncompliance with the Court’s prior temporary orders, she potentially could still be a danger; but given also that she hasn’t been around [Child] physically except for three times, I just think that’s problematic.[5]

¶17      Counsel then said, “So . . . [a]fter two things occur, if I understand correctly, then [Cassandra]’s parent time will be according to [section] 30-3-37 and unsupervised.” He listed “one, the completion of the ramp up period as recommended by the therapist; and two, . . . submitting to the Court a clean drug test.” He asked, “Is that accurate?” The court responded that it could not “say that [Cassandra]’s going to go immediately to unsupervised [visitation] after the ramp up” because the court might “need some more information at that point.”

¶18 Counsel then informed the court, “My understanding, your Honor, is that the Court needs to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed.” The court replied, “I . . . don’t know what the therapist is going to say, Counsel. So I think it’s a little bit speculative. . . . What I’m going to have to see is what the therapist recommends, and then I can give you some further instructions at that point.” It added, “But yes, we do need her to have clean drug tests . . . .” Then the court, Counsel, and Lucas’s attorney discussed what the drug test requirements would be.

¶19      Counsel later asked, “Your Honor, what would be the time line and/or process for setting up what sounds like is a . . . review hearing on how we are going to . . . establish the criteria for having supervision lifted?” The court asked Lucas’s attorney if she “want[ed] to respond,” saying, “[Counsel] wants criteria on how to remove supervision.” Lucas’s attorney explained that she did not think there was “enough information . . . to anticipate . . . the factors that [the court was] going to have to consider” and that it seemed reasonable to “notice up a hearing after [the parties got] a lot of these things going[] and have enough information to go ahead.” But the court indicated that it was “not going to notice up a hearing at [that] point.” It directed the parties to “get the therapist on board first, and . . . to do that within three weeks,” then to get “the drug test filed.” The court said, “[A]fter I’ve reviewed these things[,] . . . I’d like to make sure that Cassandra is complying with everything, and that she’s able to do what she needs to do.” It further stated, “So I would like to do that as quickly as possible, [Counsel], but I don’t know how long of a period it’s going to take because it will also depend on whether or not your client is able to do everything that’s required. I hope that she does.”

¶20      Counsel then, again, stated his interpretation of the process the court was explaining:

[I]t sounds like . . . you’re saying that there’s a two-step process. That we won’t be able to arrive at the criteria for . . . when supervision will be lifted until [Cassandra] has complied with everything the therapist has said and filed clean drug tests. Then we can come back to have a hearing to determine what the criteria are for supervision to be lifted; is that accurate?

¶21 At that point, the court turned to Lucas’s attorney and asked whether she “[had] any objection” to the process Counsel had just summarized or whether she thought that supervision “should be lifted” as soon as Cassandra “completes the criteria” the court had already identified. She said that she thought “there might be concerns” even after Cassandra completes reunification therapy, although she did not “know what they would be.” The court then said, “Let’s just get through the therapy portion, and then I want to see what the reports are. . . . It could be likely that if she’s successful with all of th[e] things [the therapist recommends] that the Court will lift supervision at that time.”

¶22      Counsel once again spoke, seeking “to clarify” certain matters by asking, “[I]f after [Cassandra] has met with the therapist and complied with the therapist, the therapist recommends that supervision be lifted, . . . then would the Court accept that recommendation . . . or do we still need to meet to determine criteria for if and how supervision would be lifted?” The court replied that it “[did not] know the answer to that yet,” saying, “[B]ut let’s go through that, and if the therapist recommends it, if we need to have a discussion with the therapist present, then we might need to do that, okay? Because I might . . . have some questions.”

¶23      Counsel then asked the court to order that the therapist be an Association for Family and Conciliation Courts therapist, and the court agreed. Then the court said, “If there’s no other questions, I do need to get to my next hearing.” Counsel initially replied that he had “[n]o other questions” but then said, “Last question, your Honor. . . . [I]s the review hearing going to be . . . before you or the Commissioner?” The court answered that the review hearing would be before the court.

¶24      The court concluded the hearing and memorialized its oral rulings into written Findings of Fact and Conclusions of Law and a Decree of Divorce. Cassandra appeals.

ISSUES AND STANDARDS OF REVIEW

¶25      On appeal, Cassandra contends that the district court erred in two ways when it ordered supervised parent-time. First, she argues that the order of supervised parent-time was legally inappropriate under Utah Code section 30-3-34.5(1) because the court “did not find that Cassandra poses a present threat of harm” to Child. Second, she argues that the order of supervised parent-time was legally inappropriate under Utah Code section 30-3-34.5(5) because the court did not “provide specific goals and expectations for Cassandra to meet” in order to be granted unsupervised parent-time. “We generally will not disturb the district court’s parent-time determination absent a showing that the court has abused its discretion. However, we review the district court’s interpretation of a statute for correctness. Likewise, we review the legal adequacy of findings of fact for correctness as a question of law.” Lay v. Lay, 2018 UT App 137, ¶ 4, 427 P.3d 1221 (cleaned up).

ANALYSIS

  1. Adequacy of the District Court’s Findings in Support of
    Supervised Parent-Time

¶26      Cassandra argues that the district court erred in ordering supervised parent-time because it did not make the finding that the Utah Code mandates as a prerequisite to supervised parent-time. The pertinent portion of the relevant provision reads as follows:

When necessary to protect a child and no less restrictive means is reasonably available . . . , a court may order supervised parent-time if the court finds evidence that the child would be subject to physical or emotional harm or child abuse, as described in Sections 76-5-109, 76-5-109.2, 76-5-109.3, and 76-5­114, from the noncustodial parent if left unsupervised with the noncustodial parent.

Utah Code § 30-3-34.5(1).

¶27 As an initial matter, we agree with Cassandra’s assertion that this statute means that the court must find a current risk of harm to the child from unsupervised parent-time, “rather than merely [a] past or historic risk of harm.” (Emphasis added.) To require “evidence that the child would be subject to . . . harm or . . . abuse . . . if left unsupervised with the noncustodial parent,” id. (emphasis added), is to require evidence of harm or abuse during a potential situation that would occur, if at all, in the future.[6] Thus, before ordering supervised parent-time, a court must find that there is evidence that harm or abuse could occur in the future, not merely that harm or abuse, or a risk of harm or abuse, occurred or was present in the past.

¶28      That is not to say that the existence of harm, or a risk of harm, from a noncustodial parent in the past has no bearing on whether there is a risk of harm from that parent in the future. Evidence that harmful or potentially harmful circumstances from the past have recurred or have not substantially abated could certainly be probative of whether there is a risk of harm in the future.

¶29      Moreover, a court need not find that the child definitely would be subjected to harm or abuse if left unsupervised with the noncustodial parent. Rather, a court is required to find only “evidence that the child would be subject to . . . harm or . . . abuse” if left alone with the noncustodial parent. Id. (emphasis added). For this reason, we, like Cassandra, conclude that a finding of a presently existing threat or risk of harm or abuse is sufficient to support supervised parent-time under section 30-3-34.5(1).

¶30      However, we disagree with Cassandra that “the district court did not find that [she] presently poses a threat of harm to [Child] if she were [to be left] unsupervised with [Child].”

¶31      Cassandra’s argument here is a challenge to the adequacy of the district court’s findings, not to the sufficiency of the evidence.[7] When we assess the adequacy of findings, “we review the [trial court’s] written and oral findings of fact together to determine if they are [adequate] to support the trial court’s rulings.” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 17, 176 P.3d 476. See generally Utah R. Civ. P. 52(a)(1) (“The findings . . . may be stated in writing or orally following the close of the evidence.”). This is particularly true when “the written findings are incomplete, inadequate, or ambiguous.” Bill Nay & Sons Excavating v. Neeley Constr. Co., 677 P.2d 1120, 1121 (Utah 1984). In those instances, the written findings “may be elaborated [on] or interpreted (in respects not inconsistent therewith) by reference to the trial court’s . . . oral explanation of the decision.” Id. This is one of those instances.

¶32      Cassandra supports her argument that the court failed to make the requisite finding by pointing to only one statement from the district court’s written findings: “[I]t is not clear whether [Cassandra] is still a danger to [Child].” But the court orally supplied additional findings and reasoning. When asked if it was going to make findings as to whether “[Child] would be in danger if she were with [Cassandra],” the court replied, “[G]iven that [Cassandra has] not complied with the Court orders, it’s not clear to me whether or not she’s a danger to [Child] still. She hasn’t completed the drug tests, et cetera, so given her noncompliance with the Court’s prior temporary orders, she potentially could still be a danger . . . .” (Emphasis added.) The court then added that it also found it “problematic” that Cassandra “[had]n’t been around [Child] physically except for three times” during the preceding four-plus years. Because Counsel, in posing the question, employed the phrase “[Child] would be in danger if she were with [Cassandra]” to summarize the requirement of a current threat of harm or abuse, we take the court’s responsive statement that Cassandra “potentially could still be a danger” to Child to be a finding of a current threat of physical or emotional harm to Child if Child were to be left unsupervised with Cassandra.[8]

¶3        Our reading of the court’s answer to Counsel’s question is bolstered by the fact that it came on the heels of additional findings that Cassandra still “lack[ed] . . . maturity in her decision-making processes,” that Cassandra still “consider[ed] her own needs first and primary over [Child]’s,” that Cassandra still might not be “completely emotionally stable,” and that Cassandra’s failures to “give[] first priority to [Child]’s welfare” were linked to her “history with drug abuse.” When the court’s response to Counsel’s question is viewed in the context of these and other findings, its import is unmistakable: Cassandra has a history of drug abuse, which, without objection, merited supervised parent-time in the past; since supervised parent-time was instituted, Cassandra has failed to provide a negative drug test; six-year-old Child has been in Cassandra’s physical presence only three times over the course of four-plus years; and Cassandra remains immature, potentially emotionally unstable, and self-centered in relation to Child; accordingly, Cassandra “potentially could still be a danger” to Child in the present. This finding is adequate to support the court’s order of supervised parent-time.[9]

  1. The District Court’s Provision of Specific Goals and Expectations to Discontinue Supervised Parent-Time

¶34 When a court orders supervised parent-time, it must “provide specific goals and expectations for the noncustodial parent to accomplish before unsupervised parent-time may be granted.” Utah Code § 30-3-34.5(5). Cassandra’s initial brief on appeal states at least two, and perhaps three, independent arguments to support her assertion that the district court did not comply with section 30-3-34.5(5). We disagree with her first argument, and we conclude that her second possible argument and her third argument are unpreserved.

¶35      Cassandra’s first argument regarding the district court’s compliance with section 30-3-34.5(5) is that the court’s orders “are silent on the question of what conditions Cassandra must meet prior to [the] lifting of supervised parent time” and that, because of this purported silence, “the district court erred.” Cassandra is mistaken, however.

¶36      After Counsel informed the court of his understanding that the court “need[ed] to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed,” the court said that it “need[ed] her to have clean drug tests” and also directed the parties to “get [a] therapist on board . . . within three weeks.” Moreover, Cassandra acknowledges that the court ordered her to complete reunification therapy. The court repeated these requirements multiple times. Plainly, the court provided three specific goals or expectations for Cassandra to meet before unsupervised parent-time would be granted: (1) Cassandra needed to provide clean drug tests in connection with her supervised visitation; (2) Cassandra needed to work with Lucas to identify a therapist within three weeks; and (3) Cassandra needed to complete reunification therapy as determined by the therapist. Thus, Cassandra’s first argument fails.

¶37      Next, Cassandra asserts that the district court did not comply with Utah Code section 30-3-34.5(5) because the court did not say that “completion of reunification therapy . . . [was] a condition precedent to lifting supervised parent time.”[10] What Cassandra means by this assertion is not clear. If what she means is that completion of reunification therapy is not a condition the court expected her to meet before supervision would be lifted, this is merely a restatement of Cassandra’s first argument and Cassandra is simply mistaken, as we have explained. On the other hand, if what she means is that to comply with section 30-3-34.5(5), a court must identify at the time it orders supervised parent-time comprehensive list of the things the parent must do to receive a guarantee that supervision will be lifted, she did not preserve this potential issue for our review.

¶38      “In order to preserve an issue for appeal,” the appellant must have “presented [it] to the trial court in such a way that the trial court ha[d] an opportunity to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (cleaned up). “For a trial court to be afforded an opportunity to correct [an asserted] error (1) the issue must be raised in a timely fashion, (2) the issue must be specifically raised, and (3) the challenging party must introduce supporting evidence or relevant legal authority.” Id. (cleaned up). As to the second of these requirements, “an objection must at least be raised to a level of consciousness such that the trial court can consider it.” State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (cleaned up).

¶39      Here, Counsel indicated to the district court that his “understanding” was “that the Court needs to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed.” The court then identified or reiterated three specific criteria for Cassandra to meet, as we have explained. Counsel then repeated, over the course of a lengthy discussion, essentially the same question three times. First, he asked, “[W]hat would be the time line and/or process for setting up what sounds like is a . . . review hearing on how we are going to . . . establish the criteria for having supervision lifted?” The second time he described “a two-step process” in which the parties “won’t be able to arrive at the criteria for” lifting supervision “until [Cassandra] has complied with everything the therapist has said and filed clean drug tests” and they then “come back to have a hearing to determine what the criteria are for supervision to be lifted.” He asked the court, “[I]s that accurate?” Finally, “to clarify,” he asked a third time whether—“after [Cassandra] has met with the therapist and complied with the therapist”—if “the therapist recommends that supervision be lifted, . . . would the Court accept that recommendation . . . or do we still need to meet to determine criteria for if and how supervision would be lifted?” Each of these questions came after the court had iterated or reiterated specific initial expectations for Cassandra to meet to have supervision lifted. In that context, each of Counsel’s foregoing questions can be fairly understood as an attempt to clarify when or whether additional expectations would be set, not as an objection to the fact that the court had not identified a comprehensive set of expectations at the outset.

¶40      Indeed, after the second of the foregoing questions from Counsel, the court turned to Lucas’s attorney and asked if she objected to the process Counsel had just summarized. This clearly indicates that the court did not understand Counsel’s question to be an objection but rather an attempt at clarification. Thereafter, Counsel emphasized the notion that he was attempting to gain clarity rather than objecting when he explicitly prefaced the third of his questions by stating that he was seeking “to clarify.” Then, after the court reiterated for the third time its initial expectation— for Cassandra to “go through” therapy—it said, “If there’s no other questions, I do need to get to my next hearing.” Cassandra’s counsel responded not by objecting but by saying: “Last question, your Honor. . . . [Ills the review hearing going to be . . . before you or the Commissioner?”

¶41      Given the foregoing, we conclude that even if Counsel was trying to raise an objection to the fact that the district court had not provided a comprehensive set of expectations for Cassandra to meet in order to have supervision of her parent-time lifted, he did not raise that objection to a level of consciousness in the mind of the court such that the court could consider it. Accordingly, this potential issue was not preserved for our review. See Cruz, 2005 UT 45, ¶ 33; State v. Olsen, 860 P.2d 332, 336 (Utah 1993) (“A party who fails to make a clear and timely objection waives the right to raise the issue at the appellate level.” (cleaned up)).

¶42 Finally, Cassandra argues that the expectation that she complete reunification therapy as determined by a therapist before she is allowed unsupervised parent-time violates section 30-3-34.5(5) because that section “does not allow the district court to delegate the [setting of conditions for the lifting of supervision] to a therapist.” Again, she did not raise this issue below. Because it is unpreserved, we do not address it. See True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 32, 427 P.3d 338 (stating that “an argument based upon an entirely distinct legal theory is a new claim or issue and must be separately preserved” (cleaned up)).

CONCLUSION

¶43 The district court made an adequate finding that Cassandra posed a present risk of harm to Child if Child were to be left unsupervised with her. Additionally, Cassandra’s first argument in support of a conclusion that the district court failed to comply with Utah Code section 30-3-34.5(5) by not providing specific goals and expectations for Cassandra to meet before being granted unsupervised parent-time is mistaken, and her other arguments in support of that conclusion were unpreserved. We therefore affirm.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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I suspect my husband fathered a child with someone else. Can I challenge our divorce ruling?

If I suspect my ex-husband fathered a child with someone else while we were married, can I challenge our divorce ruling?

If, by this question, you mean that

  1. you are the wife; and
  2. you discovered, after you divorced, that your husband had fathered a child during the marriage, but this fact was not known or adjudicated during the divorce proceedings,

it is unlikely that raising the discovery of the bastard/illegitimate (whatever term you want to use to describe the innocent) child would benefit you as the wife, if you tried to assert the discovery of this child as the basis for “challenging” or modifying the terms of the decree of divorce. Why? Because unless you could show that the discovery of this child has led to the discovery that the terms of your decree of divorce are unfair to you and would have been different had the court been aware of and taken the child’s existence into consideration when entering the orders that comprise your decree of divorce, discovery of the child may be irrelevant.

However, it may be worth your while to raise the discovery of this child with the divorce court, if for no other reason than to protect yourself from being deemed the child’s mother, given that the child was born, or at least conceived, during your marriage because it is possible for your husband to claim that the child is now your legal responsibility.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/If-I-suspect-my-ex-husband-fathered-a-child-with-someone-else-while-we-were-married-can-I-challenge-our-divorce-ruling?__nsrc__=4

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In re A.R. 2017 UT App 154 – August 17, 2017 – termination of parental rights – reunification services

In re A.R. 2017 UT App 154 – August 17, 2017

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF A.R. AND M.R., PERSONS UNDER EIGHTEEN YEARS OF AGE.

J.S.R.,

Appellant,

v.

STATE OF UTAH, Appellee.

Opinion

No. 20160330-CA

Filed August 17, 2017

Third District Juvenile Court, Salt Lake Department

The Honorable Mark W. May No. 1108329

Colleen K. Coebergh, Attorney 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 MICHELE M. CHRISTIANSEN and JILL M. POHLMAN concurred.

TOOMEY, Judge:

¶1 J.S.R. (Father) appeals the juvenile court’s order terminating his parental rights. We reverse.

BACKGROUND

¶2 A.R. and M.R., born in March 2008 and June 2009, respectively, are the children of C.S. (Mother) and Father.[1]

[1.] Mother was also a party to the termination proceedings. Her parental rights were terminated and she filed a separate appeal. See In re A.R., 2017 UT App 153.

In December 2014, the Division of Child and Family Services (DCFS) filed a verified petition alleging that the children were “abused, neglected and/or dependent.” The petition alleged there was a domestic disturbance between Father and Mother and that Father was arrested for violating a protective order between him and Mother. It also alleged Mother was using methamphetamine, sometimes in the children’s presence. At a shelter hearing during which both parents were present and represented by counsel, the juvenile court gave DCFS temporary legal and physical custody of the children.

¶3 An adjudication hearing took place in January 2015. Father was incarcerated at that time but was transported to the hearing. The juvenile court determined that Father had been arrested for violating a protective order between himself and Mother. It also determined that the children were dependent [2] as to Father and neglected [3] as to Mother and gave custody of the children to DCFS.

[2.] A “dependent child” is one “who is homeless or without proper care through no fault of the child’s parent.” See Utah Code Ann. § 78A-6-105(11) (LexisNexis Supp. 2016).

[3.] A “neglected child” includes one who lacks “proper parental care . . . by reason of the fault or habits of the parent.” See Utah Code Ann. § 78A-6-105(27)(a)(ii) (LexisNexis Supp. 2016).

It also ordered DCFS to create a plan to address the children’s needs.

¶4 In February 2015, the court conducted a dispositional hearing. The State explained that the Utah Code “requires DCFS to [provide] reasonable services to a father who’s incarcerated, unless [the court] determines that those services would be detrimental to the minor.” The court concluded that reunification services would not be detrimental to the children but acknowledged the difficulty of providing them to an incarcerated parent, especially since Father still had ten months until his release. The court stated:

But at this point I’m not ordering the Division to go out and set up services at the prison, because I’m not going to find that that’s reasonable. So the Division will provide reasonable services, meaning that to the extent that [Father] can take those services . . . at the prison, [Father] should avail [himself] of those opportunities.

When [Father] get[s] out [he] need[s] to immediately contact the Division, and then the Division will have to expedite placement in some sort of domestic violence/anger management.

The court stated that any contact the children had with Father should be approved by their therapist and concluded, “So that will be the treatment plan for [Father]. That’s what you’ll have to put in writing and make sure he has a copy of it.”

¶5 The court’s conclusion regarding reunification services is further memorialized in a disposition order (the Disposition Order). The court found that services would not be detrimental to the children, that there were no reasonable services DCFS could provide to Father while he was in prison, that it was “reasonable to expedite services for [Father] if he contacts [DCFS]” upon his release from prison, that Father should avail himself of services offered at the prison, and that the child and family plan for Father should be amended to include classes available to him in prison. Additionally, the minutes of the disposition hearing stated, “The Court orders DCFS to provide reasonable reunification services for the father and children.”

¶6 The State filed a verified petition for termination of parental rights as to both parents in September 2015. With respect to Father, the petition stated he was currently incarcerated and listed his criminal convictions. It acknowledged that the court had “ordered DCFS to provide reasonable reunification services” for him, but urged the court to conclude that DCFS had provided reasonable reunification services for Father and to terminate his parental rights on several grounds. The matter proceeded to trial beginning in December 2015 and intermittently continued over eleven days through April 2016.

¶7 Father was released from prison on January 5, 2016, between the first and second days of trial. He contacted a DCFS caseworker the next day.

¶8 During trial, the caseworker testified she was aware that reunification services had been ordered for Father. She explained she had provided supervised visitation with the children but stated she had not contacted Father’s parole officer, had not investigated his living situation, had not inquired about which classes Father had taken, and did not know whether he had participated in domestic violence assessments. She testified she had not provided a service plan to Father, and indeed, that a plan had not yet been drafted. The State then asked the court to determine that both parents had received reasonable reunification services. Both the guardian ad litem and the court expressed “grave concerns about whether the State . . . met the first requirement of reasonable efforts concerning [Father].” The court decided to postpone that determination and stated, “[U]ntil [the court] determine[s] otherwise, [the court will] have the Division continue to provide services” to both parents.

¶9 Later in February 2016, on the fifth day of trial, the State again raised the issue of reunification services, asking the court to rule on whether “services were either extended or whether the Court finds them appropriate.” The court replied that it had “already ruled on the issue and [it had] already ruled that reunification services continued.” But after reconsidering the Disposition Order, the court noted “in the disposition order, there’s something different . . . [it] really did not order reunification services for [Father] but indicated that, once he was released from prison . . . they could be expedited.” The court ordered briefing on whether, “given the findings of fact and time frames that we’re dealing with,” DCFS should “even be working on a service plan for [Father]” and whether “reunification services should even be offered to [Father].”

¶10 After considering the briefing from Father’s counsel, the State, and the guardian ad litem, the juvenile court issued a written order (the March Order) stating that the court “did not order reunification services for [Father].” The trial concluded in April 2016. The court determined Father was an unfit parent, that he had neglected his children “by exposing them to domestic violence,” and had made only token efforts to support them. The court terminated Father’s parental rights, concluding termination was in the children’s best interests. Father appeals.

ISSUES AND STANDARD OF REVIEW

¶11 Father raises several issues on appeal. First, during the course of trial, the children’s foster mother testified to several hearsay statements the children made to her, and Father challenges the constitutionality of the statute under which those hearsay statements were admitted.[4]

[4.] The juvenile court admitted the statements under Utah Code section 78A-6-115, which states that hearsay statements from children under eight are admissible if they are made “to a person

in a trust relationship” for “the purpose of establishing the fact of abuse, neglect, or dependency.” Utah Code Ann. § 78A-6-115(6) (LexisNexis 2012). Father argues this statute is unconstitutional, in part because the legislature did not have authority under the Utah Constitution to promulgate such a rule. In support of his argument, Father cites In re L.M., 2013 UT App 191, 308 P.3d 553. In that case, this court acknowledged that the Utah Constitution permits the legislature to amend the Utah Rules of Evidence, but it also noted that “this provision explicitly granting the legislature the power to amend the rules of evidence was adopted one year after the hearsay exception was promulgated.” Id. ¶ 3 n.3. Because the parties in that case did not address what effect that fact may have had on the “propriety of the hearsay exception,” this court declined to consider the matter. Id. We also do not address the constitutionality of the statute here because we reverse the juvenile court’s decision on alternative grounds. See Clegg v. Wasatch County, 2010 UT 5, ¶ 26, 227 P.3d 1243 (“[W]here any direction we may provide . . . may ultimately prove to be irrelevant, or where there are possible circumstances under which we would not need to address the constitutionality of [a statute], to do so would be to impermissibly render an advisory opinion.” (omission and second alteration in original) (citations and internal quotation marks omitted)).

Second, Father contends the juvenile court abused its discretion in allowing the State to amend its verified petition during trial. Third, Father contends the court erred by “retroactively deciding it had not ordered reunification services” in its March Order. Finally, Father raises a due process challenge. Because we ultimately determine the juvenile court erred in its decision regarding reunification services and reverse its decision on this basis, we need not analyze Father’s other claims.

¶12 In concluding that reunification services had not been ordered for Father, the juvenile court was interpreting its own prior order. “A court’s interpretation of its own order is reviewed for clear abuse of discretion and we afford the district court great deference.” Uintah Basin Med. Center v. Hardy, 2008 UT 15, ¶ 9, 179 P.3d 786. Additionally, because the juvenile court has an “advantageous position with regard to the parties and witnesses,” we afford it “‘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.’” In re A.K., 2015 UT App 39, ¶ 15, 344 P.3d 1153 (stating that a juvenile court’s decision whether to offer reunification services is within its sound discretion) (alteration in original) (quoting In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435).

ANALYSIS

¶13 Father contends the juvenile court erred in interpreting its prior order. He asserts the court’s Disposition Order stated that reunification services were ordered for Father, and he argues every participant understood “that the Court had ordered reunification services.” He further argues the March Order, which stated that reunification services had never been ordered, prejudiced his case. We begin by examining the March Order in greater depth.

I. Additional Background

¶14 The court’s March Order stated that during trial, “[t]here ha[d] been discussions and confusion about whether reunification services were ordered for [Father].” This order then summarized the court’s reasoning behind the prior Disposition Order. At the time of the disposition hearing, In re A.T., 2013 UT App 184, 307 P.3d 672, rev’d, 2015 UT 41, 353 P.3d 131, was controlling authority. That case stated a juvenile court was required to order reunification services for an incarcerated parent unless the court determined that services would be detrimental to the children. Id. ¶ 13; see Utah Code Ann. § 78A-6312(25)(a) (LexisNexis 2012). In the March Order, the court explained that at the disposition hearing, its analysis had focused on (1) whether services would be detrimental to the children and (2) what services would be reasonable. The court acknowledged that at the disposition hearing it had determined that services would not be detrimental to the children and that it had determined DCFS could not provide reasonable services while Father was incarcerated. In the March Order, the court admitted it had made a “confusing statement” at the disposition hearing:

So the Division will provide reasonable services, meaning to the extent that you can take those services . . . out at the prison, you should avail yourself of those opportunities. . . . When you get out you need to immediately contact the Division and then the Division will have to expedite placement in some sort of domestic violence/anger management.

(Internal quotation marks omitted.)

¶15 The March Order provided this interpretation of the “confusing statement”:

The court’s intended meaning was that it was not ordering the Division to provide reunification services to the father while he was in prison; the father should avail himself of any services he could while incarcerated; and when the father was released from prison, the Division should help him get into domestic violence and anger management classes.

¶16 The court additionally stated that “any such confusion was cleared up by the formal written order prepared by the Assistant Attorney General,” and quoted the following statements from the Disposition Order:

2. Based on the Father’s expected 10 month incarceration, there are not services that are reasonable that The Division of Child and Family Services can provide the father at this time. The 10 months remaining on the father’s sentence pose a problem and an impediment to reasonable services.

3. The Division of Child and Family Services does not offer any services in the prison.

4. When he gets out of prison, it is reasonable to expedite services for him if he contacts The Division of Child and Family Services.

5. There may be services or classes that are offered by the prison that the father could avail himself of. If there are, the father should avail himself of those services.

6. The child and family plan for the father should be amended to include the father attending any classes in domestic violence, anger management or parenting that are available to him in prison.

¶17 The March Order concluded by stating, “At no time during the [Disposition Hearing] did the court state that reunification services were ordered for the father. The court did not order reunification services for the father.” Alternatively, the court concluded that reunification services “are a gratuity provided to parents by the Legislature” and “because there is no fundamental right to receive services, the decision to provide or deny services is in the judge’s discretion.” (Citations and internal quotation marks omitted.)

II. Abuse of Discretion

¶18 The juvenile court abused its discretion in interpreting its prior Disposition Order. The plain language of both the Disposition Order and the March Order contradict the court’s ultimate conclusion that services were not ordered for Father.

¶19 In the Disposition Order, the court stated that based on Father’s incarceration, there were “no services that are reasonable that [DCFS] can provide the father at this time.” (Emphasis added.) It then stated, “When he gets out of prison, it is reasonable to expedite services for him if he contacts [DCFS].” (Emphasis added.) The plain language of these statements reveals that the court did not expect DCFS to provide services for Father while he was in prison, because such services would not be reasonable. But the court further explained it was reasonable for DCFS to expedite services for Father once he was released. This indicates the court ordered expedited services for Father once he made contact with DCFS after his release.

¶20 The court attempted to clarify its determination in the March Order, but its clarification also reveals that at least some services were ordered for Father. At the disposition hearing, the court stated that DCFS “will provide reasonable services,” that Father should avail himself of classes offered at the prison, and that DCFS would help expedite placement in domestic violence or anger management classes upon his release. In the March Order, the court interpreted this statement to mean the court “was not ordering [DCFS] to provide reunification services to the father while he was in prison; . . . and when the father was released from prison, [DCFS] should help him get into domestic violence and anger management classes.” (Emphases added.) Similar to the statements in the Disposition Order, these statements demonstrate that some services were in fact ordered for Father: DCFS was ordered to help Father enroll in classes once he was released from prison.

¶21 The March Order attempts to clarify any confusion over whether reunification services were ordered. But both the court’s interpretation of its oral statements at the disposition hearing and the written Disposition Order conflict with the March Order’s ultimate conclusion that the court “did not order reunification services for the father.”

¶22 Next, the authority on which the court relied during the disposition hearing suggests the court ordered some services for Father. The March Order indicated that the juvenile court relied on In re A.T., 2013 UT App 184, 307 P.3d 672, rev’d, 2015 UT 41, 353 P.3d 131, in determining whether reunification services were appropriate. That case, which the court notes was the controlling authority at the time, “requires the juvenile court to order reasonable services to [an incarcerated parent] unless it makes an actual determination that those services would be detrimental to the [c]hildren.”[5]  See id. ¶ 12 (noting that Utah Code section 78A6-312(25)(a) (LexisNexis 2012) “expressly states that ‘the court shall order reasonable services unless it determines that those services would be detrimental to the minor’”).

[5.] In re A.T. (A.T. I), 2013 UT App 184, 307 P.3d 672, was overruled by the Utah Supreme Court in 2015. See In re A.T. (A.T. II), 2015 UT 41, 353 P.3d 131. A.T. II issued on March 27, 2015, after the juvenile court had relied on A.T. I in the disposition hearing. A.T. II held that reunification services for an incarcerated parent need only be ordered when reunification services for that parent are consistent with the juvenile court’s permanency goal for the child. Id. ¶¶ 14–21.

¶23 Under section 312, the juvenile court focused on a twopart analysis: whether services would be detrimental to the children, and if not, what services would be reasonable. Because the court determined services would not be detrimental to the children, the remaining question was what services were reasonable, not whether services would be offered at all. Additionally, at the disposition hearing, the court indicated that it believed services were required by the statute: “Looking at the statute . . . services are a gratuity offered by the State unless you’re incarcerated. Then you do get them.” Thus, the authority the court was operating under at the time of the disposition hearing required it to order services to an incarcerated parent if those services were not detrimental to the children. Both the hearing transcript and the Disposition Order indicate the court’s understanding of this authority, which cuts against the court’s later interpretation stating it did not order services for Father.

¶24 We also note that until February 2016, five days into the termination trial and a full year after the disposition hearing, all parties understood the Disposition Order to mean that the court had ordered reunification services for Father. The court stated at the disposition hearing that “the Division will provide reasonable services, meaning that to the extent that [Father] can take those services . . . at the prison, [he] should avail [himself] of those opportunities” and that once he was released from prison, “the Division will have to expedite placement in some sort of domestic violence/anger management.” In the Disposition Order, the court concluded that when Father “gets out of prison, it is reasonable to expedite services for him if he contacts [DCFS].” The disposition hearing minutes reflect that the court “order[ed] DCFS to provide reasonable reunification services for the father and children.”

¶25 In its petition to terminate parental rights, the State acknowledged that the court had ordered reunification services, and in his reply, Father confirmed that DCFS was ordered to provide reasonable reunification services. In fact, one of Father’s defenses at trial rested on the fact that the court had ordered reunification services but the State had not made reasonable efforts to provide them. During trial, the State asked the court to terminate services, and the court reiterated that it had “ordered reunification services” and that they would continue. The guardian ad litem also raised “grave concerns about whether the State . . . met the first requirement of reasonable efforts” concerning Father. See Utah Code Ann. § 78A-6-507(3)(a) (stating that, except in specified circumstances, “in any case in which the court has directed the division to provide reunification services to a parent, the court must find that the division made reasonable efforts to provide those services before the court may terminate the parent’s rights”). Finally, the DCFS caseworker assigned to Father’s case acknowledged that Father had the benefit of reunification services. Each party involved in the termination trial separately expressed the belief that services had been ordered for Father, and the trial proceeded under that assumption for two months.

¶26 Furthermore, in the March Order, the court indicated that there “have been discussions and confusion about whether reunification services were ordered” for Father. But in reviewing the transcripts, it seems the discussions and confusion were not in regard to whether services had been ordered, but instead, involved what services would be reasonable given Father’s situation.

¶27 The discussion surrounding services first arose when the State requested a court ruling on whether “services were either extended or whether the Court finds them appropriate.” The State’s main contention was that Father should not be able to request a service plan from DCFS where the twelve-month statutory period for reunification services had already expired.[6]

[6.] An additional complication to this issue was the fact that the permanency hearing had been combined with the termination trial. Thus, the court did not begin hearing evidence on whether the State had made reasonable efforts to provide the parties with services and whether services should be extended or terminated until after the twelve-month deadline for services had already expired. See Utah Code Ann. § 78A-6-314(6) (LexisNexis Supp. 2016) (noting a court “may not extend reunification services beyond 12 months after the day on which the minor was initially removed from the minor’s home”).

The guardian ad litem then directed the court’s attention to the Disposition Order, noting the determination that services were not reasonable while Father was incarcerated but could be expedited once Father was released and stating, “So as we address those questions of reasonable services, I think they needed to be guided by . . . what the Court found and what the Division [was] ordered to do . . . .” The court then noted the Disposition Order stated that reunification services could be expedited once Father was released from prison and reiterated the State’s argument that it should not have to provide those services because the statutory deadline for services had already run. See Utah Code Ann. § 78A-6-314(6). Finally, the court ordered briefing on whether “reunification services should even be offered to [Father]” and whether DCFS should “be working on a service plan for [Father] at this point, given the findings of fact and given the time frames that we’re dealing with[.]”

¶28 The court noted that “at this point, no service plan has ever been drafted, no services have ever been ordered; [the Disposition Order] was an order that [was prospective]: When [Father] gets out, expedite this.” But the main issue with which the court seemed concerned was whether the State should have to provide services considering the timing of Father’s release from prison and the passing of the statutory deadline for services.

¶29 The State’s motion in response to the court’s request for briefing was the first time any party had argued that services had never been ordered for Father. Citing authority that was issued after the disposition hearing, the State argued the court “was not required to order reunification services to Father because he was incarcerated” and claimed that the court “correctly ordered no DCFS reunification services for him.” See A.T. II, 2015 UT 41, 353 P.3d 131. The State concluded that ordering services “at this point is inappropriate because the twelve-month deadline for reunification services has passed.” In contrast, the guardian ad litem’s motion argued that the court “should clarify that [DCFS] is no longer required to provide services to [Father].” (Emphasis added.) The March Order followed the lead in the State’s briefing, and instead of discussing what services were reasonable given the timing concerns, it discussed only whether services had been originally ordered by the court.

¶30 The discussion that preceded the briefing and the briefing itself demonstrate the court was trying to discern what services should be offered to Father given the timing issues. There is an important difference between (1) whether services were actually ordered and (2) what services would be reasonable to offer under the circumstances. The discussion revolved around the latter issue, and the former issue—whether services were originally ordered—was not raised until the State’s briefing was submitted.

¶31 Finally, it is troubling that the confusion surrounding reunification services manifested itself only after it became clear the State’s case was in jeopardy. During cross-examination of the DCFS caseworker, Father’s counsel revealed that the State had undertaken minimal effort to provide services to Father. Both the court and the guardian ad litem expressed “grave concerns about whether the State . . . met the first requirement of reasonable efforts concerning [Father].” The court asked the State directly, “So if I find the Division so far, based on the information I have, has failed to make reasonable efforts concerning [Father], what’s your position?,” which demonstrates the court’s skepticism that the State had met its burden.

¶32 Under Utah law, if a court orders the State to provide reunification services, it must determine that the State made reasonable efforts to provide those services before it can terminate parental rights. See Utah Code Ann. § 78A-6-507(3)(a) (LexisNexis 2012). Father’s defense was based on demonstrating that even though services were ordered, the State did not make reasonable efforts to provide them. Father’s counsel revealed the minimal efforts the State had made in providing services and exposed a potentially fatal weakness in the State’s case. It was only after this weakness was revealed that the court interpreted its order to mean that services had never been ordered for Father.[7]

[7.] In the March Order, the juvenile court cited In re D.W., 2006 UT App 42U (per curiam), which states, “Because there is no fundamental right to receive services, the decision to provide or deny services is ‘in the judge’s discretion’ and ‘a judge may deny services if for any reason he or she finds they are inappropriate.’” Id. at para. 2 (quoting In re N.R., 967 P.2d 951, 955–56 (Utah Ct. App. 1998)). The court relied on this language for an alternative basis for denying reunification services. But, although a judge has discretion to award reunification services, once it orders such services, it must “determine whether the services offered or provided by the division under the child and family plan constitute ‘reasonable efforts’ on the part of the division.” Utah Code Ann. § 78A-6-312(12)(a)(i) (LexisNexis Supp. 2016); see also id. § 78A-6-507(3)(a) (LexisNexis 2012) (“[I]n any case in which the court has directed the division to provide reunification services to a parent, the court must find that the division made reasonable efforts to provide those services before the court may terminate the parent’s rights.”). The court did not make this necessary determination and could not have terminated reunification services without it.

¶33 Given the plain language of the Disposition Order and the March Order, the authority the court relied on in the disposition hearing, the discussion surrounding the March Order, and the context of the matter in the entire trial, the juvenile court clearly abused its discretion in interpreting the Disposition Order to mean that reunification services had never been ordered for Father. There is significant evidence that the court ordered at least some services for Father after he was released from prison. The juvenile court is granted great deference in interpreting its own orders, but we are firmly convinced a mistake has been made in this case. See Uintah Basin Med. Center v. Hardy, 2008 UT 15, ¶ 9, 179 P.3d 786; In re A.K., 2015 UT App 39, ¶ 15, 344 P.3d 1153. Though we conclude the court abused its discretion in stating that no services were ordered, we do not comment on the reasonableness of the services provided to Father.

CONCLUSION

¶34 Because the juvenile court abused its discretion in interpreting its prior order, we reverse and remand this case for a new trial.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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