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Category: Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

In re R.G. – 2023 UT App 144 THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF R.G., A PERSON UNDER EIGHTEEN YEARS OF AGE.

G.G.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220635-CA

Filed November 24, 2023

Second District Juvenile Court, Ogden Department

The Honorable Tasha Williams

No. 1183589

Keith Andrew Fitzgerald, Attorney for Appellant

Sean D. Reyes and John M. Peterson,

Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 G.G. (Father) appeals the juvenile court’s order terminating his parental rights to R.G. (Child). Father argues the juvenile court erred in finding that termination of his parental rights was strictly necessary, because placement of Child with Father’s sister in another state was an option. Because Father has not persuaded us that the court committed reversible error, we affirm its order terminating Father’s parental rights.

BACKGROUND[1]

¶2        Child was born in January 2020. The following day, the Division of Child and Family Services (DCFS) received a referral indicating that Child’s mother (Mother)[2] had tested positive for illegal substances both at the time of Child’s birth and during her pregnancy. Thereafter, a DCFS caseworker put a safety plan in place and Child was allowed to leave the hospital and return home with Father and Mother.

¶3        Almost exactly one month later, the juvenile court held a pretrial shelter hearing, which Father did not attend. Following the hearing, the court entered an order removing Child from Father’s and Mother’s custody and placing Child in the temporary custody of DCFS. That same day, a DCFS caseworker (Caseworker) held a kinship meeting to discuss placement options for Child. Despite being informed of the meeting, neither Father nor Mother chose to attend. Nevertheless, Caseworker identified an in-state kinship placement with a foster family (Foster Family) that had previously adopted two of Child’s biological half-siblings.

¶4        A verified petition for custody and legal guardianship was filed one day after the shelter hearing. A few days later, Mother told Caseworker that she wanted Child to be placed with Father’s sister (Aunt), who lived in Georgia. Father made the same request.

¶5        In March 2020, Father attended a pretrial hearing on the verified petition. Based on Father’s admissions to the allegations in the petition, the juvenile court adjudicated Child neglected as to Father.[3] Child was placed in DCFS’s custody, and the court set Child’s permanency goal as reunification with a concurrent goal of adoption. The court ordered that reunification services be provided to Father and that Father comply with a child and family plan.

¶6        In May 2020, Caseworker contacted Aunt to begin the placement process provided by the Interstate Compact on the Placement of Children (the ICPC).[4] Caseworker explained that the next step was to fill out paperwork to send to the Utah state office. She noted that the time required to complete the paperwork would depend on how soon she could obtain the necessary documents, including Child’s social security card and birth certificate. Because Caseworker did not have those documents for Child on file, she requested them from the parents and from the social security office.

¶7        For the remainder of 2020, the juvenile court held periodic review hearings as required by statute. At the first hearing in June,

the court ordered DCFS “to move forward with the ICPC.” At a hearing in August, the State informed the court that “the ICPC has been put on hold due to [DCFS] not having a social security number, or birth certificate for [Child].”

¶8        After multiple failed attempts to obtain Child’s social security card and birth certificate from the parents, Caseworker was finally able to obtain the documents from the social security office, which had taken several extra months due to closures related to the COVID-19 pandemic. On November 6, 2020, DCFS informed the juvenile court that it had completed its portion of the ICPC paperwork and asked the court to send the paperwork to Georgia so that the Georgia state office could complete its part. The juvenile court signed the order on November 10.

¶9        Reunification services to Father were terminated in February 2021 due to Father’s noncompliance with the child and family plan. In June, the State filed a petition to terminate Father’s parental rights.

¶10 In September 2021, the juvenile court held a pretrial hearing on the termination petition, during which the status of the ICPC was discussed. Father’s counsel indicated that Aunt had “completed and submitted” to Georgia all the required paperwork. However, DCFS reported that Caseworker had contacted the Georgia state office regarding the ICPC but there had been no information provided as to its status. Father then addressed the court. He explained that Aunt notified him that morning that she had completed the ICPC paperwork. Father also informed the court that he was willing to relinquish his rights to Child if Aunt could adopt her, and he reminded the court that his desire “from the get-go” had been to place Child with Aunt. Based in part on the unresolved questions related to the status of the ICPC, the court scheduled a second pretrial hearing to take place in October.

¶11      At the October pretrial hearing, the State reported the status of the ICPC:

[DCFS] was able to get an update from the state of Georgia and that update was filed with the Court. It does show that there were some additional documents that need to be turned in. There was a deadline of July 30th for those to be submitted and as of the date of the report which is dated September 13th, they have not been turned in. I don’t think we have anything more current than that as far as what’s happening with the ICPC but it appears that is stalled until the family turns in the necessary documents.

In response to this update, Aunt told the court that she had submitted the completed ICPC paperwork, completed a required class, and was currently participating in a home study. After discussing the status of the ICPC, the parties discussed its relevance. The guardian ad litem (the GAL) and the State indicated that the ICPC was a “backup plan” because Child was in a kinship placement with Foster Family and had been there for a “long” time. Mother and Father disagreed with this assessment. Counsel for both parents stated that the original reason for requesting the ICPC was to allow Aunt to be the primary placement. Following this discussion, the court concluded that regardless of Child’s placement goal, the parties were in “a holding pattern” and Child could not yet be placed with Aunt because “the home study hasn’t been approved” and the ICPC was therefore not complete.

¶12      Trial on the State’s petition to terminate parental rights began in November 2021. Despite having proper notice, Father failed to appear at the termination trial. Father’s counsel moved to be released due to this failure, and the juvenile court granted counsel’s motion. The trial then proceeded by proffer. At the close

of trial, the court entered an order terminating Father’s parental rights, which Father subsequently appealed. Thereafter, the State, the GAL, Father, and Mother filed a stipulated motion for summary reversal. This court granted the motion and accordingly vacated the termination order and remanded the matter for a new trial.

¶13 The second termination trial occurred over the course of three days in April 2022. The juvenile court heard testimony from Caseworker, Father, and Child’s foster parents (Foster Parents). Caseworker testified that at the beginning of the case, Father expressed interest in having Child placed with Aunt in Georgia. Caseworker explained that because Aunt lives out-of-state, DCFS cannot place Child with Aunt unless Aunt has an approved ICPC. Caseworker testified that she started the ICPC process in April 2020 and that she completed the ICPC paperwork and sent it to Georgia in November 2020. Caseworker stated that she would have been able to submit the paperwork sooner had Father provided Child’s social security card and birth certificate to her directly, but because he did not, Caseworker had to obtain the documents from the social security office, which had been closed due to the COVID-19 pandemic.

¶14 Caseworker testified that since submitting the ICPC paperwork, she had received “minimal updates” from Georgia— despite the fact that she had followed up “[a]bout every month” —and that she did not have any control over the Georgia state office. She explained that she did not contact Aunt directly during the ICPC process because the “proper channel” for all communication related to an ICPC is between the state offices; however, Caseworker testified that had Aunt contacted DCFS and requested visitation, DCFS “would have given it to her.” Caseworker noted that the most recent ICPC update from Georgia was given on February 3, 2022, which stated, “Home study is being written with an expected completion date of 2/14/2022. Will be sent for approval at that time.” At the time of trial, however,

Caseworker had not been informed whether the home study had been approved or not, nor had she received any kind of final report on the ICPC.

¶15      Lastly, Caseworker testified that under DCFS guidelines, Child was considered to be in a kinship placement because she was placed with Foster Family—the family that had adopted two of Child’s biological half-siblings. Caseworker also noted that DCFS has no “level of preference” for different kinship placements. Therefore, even if the approved ICPC had been received, DCFS had already satisfied its “internal standards” by placing Child with kin.

¶16 Regarding placement options, Father testified that although Child “is in good hands” with Foster Family, he wanted her to be placed with Aunt, a desire that he had expressed since the beginning of the case. Father acknowledged that Aunt has never met Child and that removing Child from Foster Family would be a “disruption.” However, Father blamed DCFS for the delay in the ICPC approval, claiming that Aunt had done “everything she possibly could.”

¶17 Foster Parents both testified about Child’s strong relationship with Foster Family. Child’s foster mother (Foster Mother) stated that Child is “almost inseparable” from her foster sibling and that Child and her biological half-siblings “have a great relationship.” Foster Parents expressed their desire to adopt Child, and Foster Mother explained that it would be “devastating” for the entire family, including Child, if Child were to be removed from their home.

¶18      In addition, Foster Mother testified that allowing Child to remain in contact with Father might not be in her best interest because “[t]here’s just a lot of anxiety that happens with [Child] after visits.” Specifically, Child “was having night terrors . . . when we were doing visits. She would wake up crying, but you couldn’t actually wake her up. She was just crying . . . .” Foster

Mother stated that the night terrors stopped when the visits with Father stopped.

¶19      Moreover, Father had a history of engaging in violent and threatening behavior. Specifically, Father threatened Caseworker when she canceled a visit after Father failed to check in, and from then on, DCFS was required to provide extra security during Father’s visits. Father also threatened Foster Parents and had been found looking up Foster Parents’ contact information. And Father admitted to committing violent acts against Mother on several occasions.

¶20 On June 28, 2022, approximately two months after the termination trial, the juvenile court entered a thirty-page order terminating Father’s parental rights to Child. The court found that DCFS made “reasonable efforts” in pursuing the ICPC, including that Caseworker had worked to obtain the necessary documentation and complete the ICPC paperwork as quickly as possible, that Caseworker followed up on the status of the ICPC “about every month,” that Georgia had provided “minimal updates” on the ICPC throughout the case, and that Father’s testimony that Aunt had completed the ICPC and was “cleared” was not credible. Further, the court found that it was in Child’s best interest to remain with Foster Family because Child had become “integrated” into Foster Family, because Child had developed strong bonds with her foster sibling and half-siblings, and because removing Child from her existing placement would be difficult. Moreover, the court found that Aunt “did not request contact with [Child] and has not met her.” Based on these findings, the court concluded that termination was strictly necessary to protect Child’s best interest. It explained:

[T]his Court must consider all the permanency options for [Child] and whether she can be equally protected and benefitted by an option other than termination. One option is for a placement with

[Aunt] in Georgia. However, at the time of trial the ICPC had not been approved, legally barring such placement. Further, at this point, the placement is not in [Child’s] best interest. [Child] has never met [Aunt] and [Aunt] has never requested visits with her. [Child] has no familial relationship with [Aunt]. . . . When viewed from [Child’s] point of view, as required by statute, termination is strictly necessary so that the loving family attachments she has made with [Foster Family] and her biological [half-siblings] can be preserved through adoption.

¶21      Father filed a notice of appeal of the juvenile court’s termination order on July 7, 2022. On July 18, the court held a post-termination review hearing. Because Father’s parental rights had been terminated, he did not attend the hearing; only the State, Caseworker, and the GAL were present. The parties discussed Child’s welfare as well as the status of the ICPC. Following the hearing, the court issued an order indicating that the ICPC had been approved but declining to alter Child’s placement. The court reasoned as follows:

[DCFS’s] court report indicates that [Child] continues to do well in the foster placement with her biological siblings. In June, 2022 [DCFS] received an approved ICPC from Georgia for [Aunt]. [Aunt] has never met [Child] and has no relationship with her. She never requested contact or updates during the case. It would not be appropriate or in [Child’s] best interest to change placements at this point in the case so [DCFS] sent a Case Closure Form to Georgia.

ISSUE AND STANDARDS OF REVIEW

¶22 Father appeals the juvenile court’s order terminating his parental rights to Child, arguing that the court erred in concluding it was strictly necessary to terminate his parental rights. “We review deferentially a lower court’s best-interest determination and will overturn it only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.”[5] In re J.J.W., 2022 UT App 116, ¶ 18, 520 P.3d 38 (quotation simplified)However, Father acknowledges that he did not raise this issue below, and he therefore asks us to review the court’s strictly necessary determination for plain error.[6] To succeed on a claim of plain error, Father must show that “(1) an error exists; (2) the error should have been obvious to the juvenile court; and (3) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome.” In re S.T., 2022 UT App 130, ¶ 14, 521 P.3d 887 (quotation simplified).

ANALYSIS

¶23      Father argues the juvenile court erred in determining that

it was strictly necessary to terminate his parental rights because the court did not adequately consider other feasible placement options for Child. Father’s challenge largely concerns the court’s consideration of the ICPC and whether Aunt was a feasible placement option. Because Father did not raise this issue below, to succeed on appeal he must show that a harmful error exists and that the error should have been obvious to the juvenile court. See In re J.A.L., 2022 UT 12, ¶ 12, 506 P.3d 606.

¶24 “Because the relationship between parent and child is constitutionally protected, a court may only terminate parental rights upon a finding that termination is strictly necessary to the best interest[] of the child.”[7] In re S.T., 2022 UT App 130, ¶ 33, 521 P.3d 887 (quotation simplified). Here, the juvenile court determined it was strictly necessary to terminate Father’s parental rights because there was no option available, short of termination and adoption, that would equally protect and benefit Child. In

 

making this determination, the court considered, among other options, permanent guardianship with Foster Parents and permanent guardianship with Aunt. Ultimately, the court decided against placement with Aunt for two reasons. First, Aunt was in Georgia, and “at the time of trial the ICPC had not been approved, legally barring such placement.” Second, placement with Aunt was not in Child’s best interest because Child “has never met [Aunt] and [Aunt] has never requested visits with her. [Child] has no familial relationship with [Aunt].”

¶25      Father assails the juvenile court’s reasoning on both points. As to the first, Father contends the ICPC was approved before termination was ordered and therefore it should have been adjudicated with the termination petition. And as to the second, Father contends the court’s analysis was inadequate and based on categorical concerns. For the reasons discussed below, his attack is unavailing.

¶26      First, Father mischaracterizes the record regarding the ICPC. Father asserts that the ICPC “was definitively completed before the written order of termination of parental rights [was] entered” but that the results were “concealed by DCFS until post-termination proceedings.”[8] But Father’s position on this point is undermined by his concession that “[n]one of the parties can conclusively state [when the ICPC was approved] because [DCFS] never presented this information.” Indeed, it is unclear from the record whether DCFS received the approved ICPC before or after the court entered its final order terminating Father’s parental rights. The only definitive information available in the record is that the termination trial was held in April 2022; the court entered its termination order on June 28; and on July 18, the court held a post-termination review hearing, during which DCFS reported that in June 2022 it had “received an approved ICPC from Georgia” for Aunt. Therefore, while the approved ICPC may have been received by DCFS while the matter was still under advisement by the court, Father has not demonstrated that this was absolutely the case.

¶27 Furthermore, regardless of whether the approved ICPC was presented to the juvenile court pre- or post-termination, on the facts of this case, Father cannot demonstrate that the court’s strictly necessary determination would have been any different had it received the ICPC earlier.[9] As an initial matter, it is undisputed that DCFS informed the court about the approved ICPC and the court considered the implications of that approval during a post-termination review hearing. Indeed, during the review hearing, the court stated that although the ICPC for Aunt had been approved, “[i]t would not be appropriate or in [Child’s] best interest to change placements at this point in the case.” The court reasoned that Child “continues to do well in the foster placement with her biological [half-]siblings,” whereas Aunt “has never met [Child] and has no relationship with her. [Aunt] never requested contact or updates during the case.” Because the court’s decision to not change Child’s placement post-termination rested at least in part on Aunt’s lack of engagement throughout the duration of the years-long case—including after the ICPC was approved—there is no indication that an earlier receipt of the approved ICPC would have had any bearing on the court’s reasoning. See In re G.D., 2021 UT 19, ¶ 81, 491 P.3d 867 (finding that a juvenile court’s strictly necessary analysis was not deficient where the court declined to “admit and consider the evidence [the appellants] presented after trial” because neither Utah law nor Utah caselaw “requires a juvenile court to consider supplemental evidence that merely elaborates on a factor the court already considered in its ‘strictly necessary’ analysis—especially when that evidence does not address or refute the considerations on which the court relied to reach its conclusion”).

¶28 Relatedly, Father glosses over the import of an approved ICPC. While an approved ICPC is a precursor to any out-of-state placement, an approved ICPC does not guarantee placement. After a child is removed from a parent’s custody, the juvenile court must “determine whether there is a relative . . . who is able and willing to care for the child.” Utah Code § 80-3-302(6)(a). If the court identifies an out-of-state relative as a potential placement, the court must comply with the procedures and requirements outlined in the ICPC before ordering that the child be placed in another state. See id. § 80-2-905. Following the approval of an ICPC, the court “shall give preferential consideration to a relative’s . . . request for placement of the child, if the placement is in the best interest of the child.” Id. § 80-3-302(7)(a)(i) (emphasis added). In other words, the plain language of the statute “does not guarantee that an identified relative . . . will receive custody of the child.” Id. § 80-3-302(18). Accordingly, the court was not required to place Child with Aunt if doing so was not in Child’s best interest. And as discussed below, the court’s best interest analysis was adequate to foreclose placement with Aunt.

¶29      Moreover, contrary to Father’s assertion, the juvenile court properly considered feasible placement options other than termination and adoption. As stated above, the court articulated two reasons in support of its strictly necessary determination. In addition to concluding that Aunt was legally barred as a placement option because the ICPC was still pending, the court found that placement with Aunt was not in Child’s best interest because Child “has never met [Aunt] and [Aunt] has never requested visits with her. [Child] has no familial relationship with [Aunt].” On the facts of this case, this determination was not erroneous.

¶30      Our legislature has expressed a strong preference for maintaining familial bonds. To that end, a court may terminate a parent’s rights only if termination is strictly necessary to promote a child’s best interest. Courts ordering termination “must start the best interest analysis from the legislatively mandated position that ‘[w]herever possible, family life should be strengthened and preserved.’” In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827 (quoting Utah Code § 80-4-104(12)(a)). However, once a parent is found to be unfit, a court may terminate the parent’s rights if doing so “is strictly necessary for the welfare and best interest of the child.” Id. ¶ 62. At this stage, the court must “consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered.” Utah Code § 80-4-104(12)(a).

¶31      In evaluating whether termination is strictly necessary, a juvenile court must consider, “among other relevant factors,” whether “the efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” Id. § 80-4-104(12)(b)(ii). This requires the court to “explore whether other feasible options exist that could address

the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). This inquiry cannot be satisfied merely by relying on the “categorical concern” that adoption offers the highest degree of permanency.” In re J.A.L., 2022 UT 12, ¶ 25. Instead, the court must analyze the “particularized circumstances of the case” and explore whether an alternative arrangement “can equally protect and benefit the children in the case before it.” Id. (quotation simplified). And “when two placement options would equally benefit a child, the strictly necessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.” In re G.D., 2021 UT 19, ¶ 75.

¶32 Father contends the juvenile court erred in finding that termination was strictly necessary because the court ignored that Aunt “was the preferred placement” and instead relied on “categorial concerns” to support its determination. However, neither point is well taken, and the court’s rationale is sufficient to justify its decision to terminate Father’s parental rights.

¶33 Father asserts that Aunt “was the preferred placement” because “[t]his is a case where both placement options would equally benefit” Child and “placement with [Aunt] did not necessitate termination of parental rights.” This assertion is without merit. Our caselaw is clear that the preferential status afforded to a placement option that does not necessitate termination exists only where the two placement options “equally benefit” the child. See id. But here, there is no evidence to suggest that placement with Aunt would “equally benefit” Child.

¶34 Indeed, the juvenile court’s comprehensive termination order included multiple findings concerning Aunt. Specifically, the court found that Caseworker had contacted Aunt in May 2020 to start the ICPC process. Despite this contact, at the time of trial approximately two years later, Aunt had “not request[ed] contact

with [Child] and [had] not met her.” Although Aunt may have not been available as a placement option prior to approval of the ICPC, nothing was preventing her from contacting Child and forming a relationship with her. And given the duration of the proceedings, Aunt was given ample time to do so.

¶35      Conversely, the juvenile court found that Child was in an appropriate adoptive placement with Foster Family. Among other things, Child had been living with Foster Family since “shortly before she turned one month old,” and Child had developed strong bonds with her foster sibling and two half-siblings. Yet Father does not grapple with the import of these relationships. Notably, Child is in a kinship placement with Foster Family since Child’s biological half-siblings were adopted into Foster Family. Moreover, as this court has recently recognized, “the biological connection between siblings matters.” See In re A.H., 2022 UT App 114, ¶ 42, 518 P.3d 993 (“The importance of sibling relationships is well recognized by courts and social science scholars, because a sibling relationship can be an independent emotionally supporting factor for children in ways quite distinctive from other relationships, and there are benefits and experiences that a child reaps from a relationship with his or her brother(s) or sister(s) which truly cannot be derived from any other. Such bonds are often especially important to children who experience chaotic circumstances like abuse or neglect, because in such circumstances, they learn very early to depend on and cooperate with each other to cope with their common problems.” (quotation simplified)), cert. granted, 525 P.3d 1279 (Utah 2023). Given the court’s competing findings about each potential placement, we cannot say that placing Child with Aunt—an individual she has never met—would equally benefit Child where Child is already in a kinship placement with her half-siblings. As a result, Aunt was not a preferred placement.

¶36 Moreover, the juvenile court did not merely rely on categorical concerns when determining that termination was strictly necessary. On this point, Father contends the court’s decision was based on the categorical concern that removing a child from a foster family with whom the child is bonded will disrupt and negatively impact the child’s life. See id. ¶ 56. To be sure, the court’s determination hinged in large part on Child’s attachments to Foster Family, including to her two biological half-siblings, and the potential detriment to Child that would result from removal from that placement. However, the court’s conclusion was also based on the fact that Aunt’s relationship with Child was nonexistent and that placing Child with Aunt would therefore be particularly destabilizing. Consideration of the effects of a potential disruption, when based on case-specific facts, is entirely proper. Indeed, courts are statutorily required to consider continuity of care when determining whether to terminate parental rights. See Utah Code § 80-4-303(1)(a) (requiring courts to consider “the physical, mental, or emotional condition and needs of the child”); id. § 80-4-304(5) (requiring courts to consider “the length of time the child has lived in a stable, satisfactory foster home and the desirability of the child continuing to live in that environment”). And this court has recently recognized as much, noting that the potential effect of changing a placement is “a legitimate concern, and one that courts should take into account.” In re A.H., 2022 UT App 114, ¶ 56. In sum, the court’s determination here was not based on a categorical concern inasmuch as the court considered case-specific facts such as the impact of the potential disruption in light of Child’s nonexistent relationship with Aunt.

¶37 Finally, and very importantly, even if Father is correct in his assertion that the ICPC was completed before the termination trial, the ICPC approval and resulting potential for placement with Aunt was not the lynchpin of the juvenile court’s strictly necessary determination. As discussed above, placement with Aunt was not in the best interest of Child because of the shortcomings in that option as identified by the court. And a permanent guardianship with Foster Parents put in place to preserve Father’s residual parental rights and ensure Child’s connection to her half-siblings was also not in Child’s best interest as the court identified significant problems with Father’s continued parental connection to Child vis-à-vis Foster Family. Specifically, the court found that Child had “already experienced anxiety and night terrors during visits” with Father and that Father’s “threats toward [Foster Family] and his propensity for violence puts [Child and Foster Family] at risk.”

CONCLUSION

¶38 Father has not shown the juvenile court clearly erred in determining that it was strictly necessary to terminate his parental rights. Regardless of when the court received the approved ICPC, it adequately considered the results. Further, an approved ICPC does not guarantee placement, and Father has not demonstrated that the court plainly erred when considering other feasible placement options. Accordingly, we affirm the court’s order terminating Father’s parental rights.

 

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

 

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Believing Judges Interviewing Children Harms Children Rests on False Premises

This post is the eighth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

 

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

 

To conclude that judges interviewing children harms them rests on the false premise that judges are insensitive and/or incompetent. There is obviously no inherent difference between having a judge interview a child and having a guardian ad litem interview a child. Lawyers and judges know that there is nothing about a guardian ad litem that is any better or worse than a judge when it comes to ability to question children. Judges are former lawyers, after all.

To conclude that judges who interview children inherently harm, or inherently expose children to undue risks of harm must necessarily rest on the premise that judges who interview children are insensitive and/or incompetent. For all my criticisms of the legal system, I would be lying if I claimed that all or most or even a statistically significant number of judges are too insensitive and too incompetent to question children about child custody issues without harming them any more than an interview conducted by a guardian ad litem or custody evaluator would harm children.

 

If a judge were to claim that his or her ability to question children is worse than a guardian ad litem’s ability to question children because the judge lacked GAL training, then the problem would clearly not lie in the judge’s status as a judge but in a lack of training.

GAL training is a matter of hours, not years or even months. So, the training and skills gap between a trained GAL and an untrained judge could be closed quickly and easily by the judge getting that same GAL training. It wouldn’t even cost the judge any money because the Utah State Office of Guardian ad Litem has offered to provide judges with GAL training free of charge.

 

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

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2019 UT App 201 – Bradshaw v. Pelley-Whelan – UCCJEA

2019 UT App 201 – Bradshaw v. Pelley-Whelan

THE UTAH COURT OF APPEALS
CAIRO BRADSHAW, Appellant,
v.
CHRISTOPHER PELLEY-WHELAN, Appellee.

Opinion
No. 20181003-CA
Filed December 12, 2019

Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 174906242

Theodore R. Weckel, Attorney for Appellant
Jennifer L. Falk, Cassie J. Medura, Jarrod H. Jennings,
and Adrienne Nash Wiseman, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.

MORTENSEN, Judge:

¶1        “Facts are stubborn things.”[1] In this appeal, Cairo Bradshaw asks us to reverse the district court’s legal conclusion that it lacked subject matter jurisdiction to make an initial custody determination concerning her minor child (Child) under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The crux of Bradshaw’s argument is that the district court erroneously determined that Child’s home state is California. Specifically, Bradshaw argues that the court’s error lies in its conclusion that Child was only temporarily absent from California during the relevant six-month period leading up to when Bradshaw filed her parentage petition in Utah. However, Bradshaw assumes facts that were not adopted by the district court. And what’s more, Bradshaw does not challenge the court’s actual findings of fact. Accordingly, Bradshaw falls short of showing that the district court’s legal conclusion concerning subject matter jurisdiction was erroneous as a matter of law. Therefore, we affirm.

BACKGROUND

¶2           Bradshaw and Christopher Pelley-Whelan are the parents of Child, who was born in California on July 2, 2016. On October 10, 2017, Bradshaw filed a parentage petition in Utah requesting that the court make an initial custody determination of Child. Pelley-Whelan filed a motion to dismiss Bradshaw’s petition for lack of subject matter jurisdiction under the UCCJEA on the ground that Child’s home state was California, not Utah.[2]

¶3           On March 13, 2018, after reviewing the pleadings and conducting a hearing, a commissioner deemed Child’s home state to be California and recommended that the Utah court dismiss Bradshaw’s petition for lack of jurisdiction. Bradshaw objected to the commissioner’s recommendation as authorized by rule 108(a) of the Utah Rules of Civil Procedure.

¶4           After the commissioner recommended that the district court deny her parentage petition, Bradshaw, in a separate case, filed a petition for a protective order against Pelley-Whelan, alleging two incidents of abuse which had taken place several months earlier in Massachusetts and two weeks earlier in California. On June 13, 2018, a commissioner recommended that Bradshaw’s petition for a protective order be denied. Bradshaw objected to the recommendation and requested that the objections to the parentage petition and the protective order be consolidated.

¶5           On June 20, 2018, the parties presented oral argument on jurisdiction and the protective order. Bradshaw primarily argued the district court should exercise jurisdiction under the UCCJEA because Utah, not California, was Child’s home state. In the alternative, Bradshaw argued that Child had no home state. Finally, she argued the court should exercise emergency jurisdiction under the UCCJEA because the allegations of abuse in the protective order illustrated a risk of danger for Child. Pelley-Whelan argued that Child’s home state was California because Child was born in California and had lived there ever since. The court set an evidentiary hearing to determine Child’s home state for the six-month period leading up to the time Bradshaw filed her parentage petition in Utah—April 9 through October 9, 2017.

¶6 At the evidentiary hearing, Bradshaw offered the following evidence in support of her petition: (1) documents showing that Bradshaw purchased a home in Utah in January 2016, and paid $1,000 in expenses to move personal possessions from Pelley-Whelan and Bradshaw’s home in Huntington Beach, California; (2) tax documents showing that Bradshaw filed state income tax returns in Utah for the years 2016 and 2017; (3) credentials showing that Bradshaw maintained a Utah driver license and voter registration certificate; (4) a table showing Bradshaw’s credit card transactions in Utah; (5) a table showing Bradshaw’s flights to Utah; and (6) pictures showing Child and Child’s belongings in Utah or at Bradshaw’s Utah house.

¶7           Pelley-Whelan offered rebuttal evidence in support of his position that Child’s home state for the relevant period was California. Specifically, Pelley-Whelan offered evidence that (1) Child was born in California and remained there for at least six to eight weeks; (2) Child’s doctor is in California; (3) Child was enrolled in ballet class in California; (4) although Bradshaw had purchased a home in Utah, she continued to own and live in the Huntington Beach, California home, which Pelley-Whelan had spent $90,000 renovating in anticipation of Child’s birth; (5) Bradshaw and Pelley-Whelan jointly owned a second property in Big Bear, California; (6) Bradshaw’s phone records indicate that she was in Utah for only fifty-five days during the entire 2017 year; and (7) the majority of Child’s belongings remained in California.

¶8           Bradshaw also raised the protective order at the evidentiary hearing, but only to point out that it was “relevant in terms of whether Utah should invoke jurisdiction” over the custody dispute. While the court did allow some testimony on the protective order—such as the location of the alleged instances of abuse—it limited many questions and indeed barred one of Bradshaw’s witnesses from discussing specific details of the alleged abuse that occurred in Massachusetts. At the close of the evidentiary hearing, the district court asked the parties to submit additional briefing on both the jurisdictional issue and the protective order.

¶9           The district court entered a written order denying Bradshaw’s objections on November 15, 2018. Therein, the court made the following findings: (1) in light of the fact that Bradshaw maintained two homes in California, and the fact that she purchased a home in Utah and spent $1,000 to move personal possessions from California to Utah, did not indicate that she intended to, or did, relocate to Utah; (2) although Bradshaw offered evidence that she periodically worked from her Utah home, that evidence was incomplete as to when or how often she actually did; (3) competing evidence demonstrated that the majority of Child’s belongings are in California; (4) evidence that Pelley-Whelan spent $90,000 to remodel the Huntington Beach house in anticipation of Child and Bradshaw residing in California was credible; (5) Bradshaw’s tax return evidence did not demonstrate that she had relocated to Utah because although Bradshaw filed Utah income tax returns for the years 2016 and 2017, both of those returns were prepared by a California accountant, the 2016 return showed that Bradshaw received a credit because she claimed to be a resident of another state, and Bradshaw used her California driver license when she filed the 2017 return; (6) Bradshaw’s Utah driver license and voter registration credentials were issued after October 9, 2017, and therefore did not show that Bradshaw had relocated to Utah during the relevant time period; (7) Bradshaw redacted and/or omitted large sections of her flight history and credit card information, and therefore this evidence was not credible to show that Bradshaw had relocated to Utah; and (8) Pelley­-Whelan’s phone record analysis was credible and showed that Bradshaw was in Utah for only fifty-five days in all of 2017, and thus was not in Utah for the majority of the relevant six-month period.

¶10 The district court found that “[Bradshaw] has presented insufficient evidence to establish that either California is no longer [Child’s] home state or that Utah is now [Child’s] home state.” Citing Garba v. Ndiaye, 132 A.3d 908 (Md. Ct. Spec. App. 2016), the court also concluded that Child was only ever temporarily absent from California and that California was therefore Child’s home state for the relevant six-month period. Thus, the court concluded that it lacked jurisdiction under the UCCJEA and dismissed Bradshaw’s parentage petition. The court also denied Bradshaw’s petition for a protective order, stating that “the evidence does not support the entry of a protective order.”

¶11 Bradshaw appeals.[3]

ISSUE AND STANDARD OF REVIEW

¶12 Bradshaw contends that the district court erred in concluding that Child’s home state was California and in turn concluding that it lacked subject matter jurisdiction under the UCCJEA. “Both jurisdictional questions and questions of statutory interpretation are questions of law that we review for correctness,” Meyeres v. Meyeres, 2008 UT App 364, ¶ 3, 196 P.3d 604 (cleaned up), “though we will review the [district] court’s underlying findings of fact using the clearly erroneous standard,” In re W.A., 2002 UT 127, ¶ 8, 63 P.3d 607 (cleaned up).[4]

ANALYSIS

¶13 Bradshaw challenges the district court’s conclusion that Child’s home state is California and that any time Child spent outside of California was only a “temporary absence.” The UCCJEA provides: “Except as otherwise provided in Section 78B-13-204, a court of this state has jurisdiction to make an initial child custody determination only if: (a) this state is the home state of the child on the date of the commencement of the proceeding . . . .” Utah Code Ann. § 78B-13-201(1) (LexisNexis 2018). The UCCJEA defines “home state” as the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

Id. § 78B-13-102(7).

¶14 Here, the district court correctly concluded that Child’s home state is California under the UCCJEA. First, the court correctly found—and Bradshaw does not challenge—that “[Child’s] home state was California for the two months following her birth.” See Nevares v. Adoptive Couple, 2016 UT 39, ¶ 16, 384 P.3d 213 (explaining that Utah was arguably the child’s home state for the first eight days of his life under the UCCJEA when he was born in Utah and remained for eight days before moving out of state). Although this conclusion is not determinative of the issue before us, it is helpful to give context in this case.

¶15 Second, the court made a factual finding that “[Bradshaw] has presented insufficient evidence to establish that either California is no longer [Child’s] home state or that Utah is now [Child’s] home state.” In fact, the majority of the district court’s written order is dedicated to explaining why it found Bradshaw’s evidence to be unpersuasive, incomplete, irrelevant, or lacking credibility. See supra ¶ 9. Accordingly, the court adopted findings of fact consistent with Pelley-Whelan’s evidence that Child lived in California for six consecutive months leading up to the time Bradshaw filed her parentage petition in Utah. Although Bradshaw dedicates the majority of her brief to reciting the evidence and making arguments criticizing how the court weighed the evidence in this case,[5] she adamantly maintains that she is not challenging the court’s factual findings.[6]

¶16 Third, the court correctly determined that any time Child allegedly spent away from California during the relevant six-month period was only a temporary absence. See Utah Code Ann. § 78B-13-102(7) (stating that temporary absences are credited toward the consecutive six-month period required for a home state determination). The court first made two crucial factual findings—which Bradshaw does not challenge­ (1) “[Bradshaw] spent only 55 days in Utah in 2017” and thus she “spent the majority of her time during the relevant period in California,” and (2) “[Bradshaw’s] decision to purchase a home in Utah does not establish [her] intent to relocate [from California to Utah].”

¶17 Citing Garba v. Ndiaye, 132 A.3d 908 (Md. Ct. Spec. App. 2016), the district court next applied a totality of the circumstances approach to determine that any time that Child was allegedly away from California counted only as a temporary absence. Id. at 914 (adopting and applying a totality of the circumstances test, which is “an analysis that encompasses these considerations: the duration of the absence and whether the parties intended the absence to be permanent or temporary, as well as additional circumstances that may be presented in the multiplicity of factual settings in which child custody jurisdictional issues may arise” (cleaned up)).[7] In Garba, a Maryland court concluded that when a child spent four out of six of the relevant months in Maryland, id. at 913, and the mother failed to evidence her intent to permanently relocate out of Maryland, id. at 915, the child’s absences from Maryland were only temporary, id. at 915–16.

¶18 Applying this sound approach to its factual findings­ that Bradshaw had not evidenced her intent to relocate from California to Utah and that she and Child indeed spent the majority of their time in California—the district court correctly determined that any time Child spent outside of California was only a temporary absence. Therefore, the district court properly concluded that California was Child’s home state for purposes of the UCCJEA. As a result, the court lacked subject matter jurisdiction and properly dismissed the parentage petition.

CONCLUSION

¶19 Bradshaw does not challenge the district court’s findings flowing from these stubborn facts. Bradshaw failed to present evidence sufficient to demonstrate that California ceased to be Child’s home State. And she has failed to demonstrate that the court’s ultimate conclusion—that it lacked jurisdiction under the UCCJEA—was in error. Therefore, we affirm.

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

[1] Many attribute this quote to John Adams, see Quote Details: John Adams: Facts are stubborn things, http://www.quotationspage. com/quote/3235.html [https://perma.cc/TF5W-FLJH]. However The Yale Book of Quotations credits this saying to Bernard Mandeville. The Yale Book of Quotations 612 (Fred R. Shapiro Ed., Yale Univ. Press 2006) (discussing Bernard Mandeville, An Enquiry into the Origin of Honor, and the Usefulness of Christianity in War (1732)).

[2] Pelley-Whelan filed a parentage petition in California after Bradshaw filed her petition in Utah. Because we conclude that Child’s home state is California, and that California therefore has jurisdiction under the UCCJEA, the California case is relevant to our review to note only that the California court did not decline jurisdiction.

[3] Bradshaw does not appeal the denial of her petition for a protective order.

[4] Bradshaw also argues that the court erred in declining to exercise emergency jurisdiction under the UCCJEA. The UCCJEA states, “A court of this state has temporary emergency jurisdiction if the child is present in this state and . . . it is necessary in an emergency to protect the child because . . . [a] parent of the child, is subjected to or threatened with mistreatment or abuse.” Utah Code Ann. § 78B-13-204(1) (LexisNexis 2018). Under the plain language of the statute, Child must have been present in Utah for emergency jurisdiction to obtain. Id. But Bradshaw did not demonstrate that Child was in Utah when the petition was filed or that there was an emergency requiring invocation of the court’s jurisdiction to protect Child. Therefore, a Utah court could not exercise emergency jurisdiction.

Bradshaw also argues that Pelley-Whelan consented to the court exercising personal jurisdiction over him by using the district court’s subpoena power during the proceedings. But even if this were true, Bradshaw has not demonstrated that the district court had subject matter jurisdiction under the UCCJEA to make an initial custody determination. Accordingly, we decline to address this argument further.

[5] For example, Bradshaw argues, “In focusing primarily on the evidence regarding the amount of time that [Bradshaw] could prove that she was living in Utah, the Court failed to weigh the fact that [Bradshaw] testified that she didn’t use her credit card every day that she was in Utah.” She also argues, “The Court failed to consider and weigh the testimony of [Bradshaw’s] two corroborating witnesses . . . who testified that they saw [Bradshaw] in Utah for much larger periods of time than [Bradshaw’s] personal phone records and [Bradshaw’s] bank account statements showed.”

[6] Bradshaw confirmed at oral argument that she is not challenging any factual findings. Where Bradshaw has expressly declined to challenge the court’s factual findings, and where these unchallenged findings could lead only to a conclusion that Child’s home state never ceased to be California, we are hard-pressed to see how a conclusion that Child’s home state is anyplace but California could follow.

[7] Utah’s version of the UCCJEA does not define temporary absence for purposes of a home-state analysis, but at least three different tests have been used in other jurisdictions to determine whether absences from a home state are temporary or permanent: “duration, intent, and totality of the circumstances.” Garba v. Ndiaye, 132 A.3d 908, 914 (Md. Ct. Spec. App. 2016); see also Andrea Charlow, There’s No Place Like Home: Temporary Absences in the UCCJEA Home State, 28 J. Am. Acad. Matrim. Law. 25, 30–37 (2015) (summarizing the “duration,” “intent,” and “totality of the circumstances” tests). We conclude not only that the totality of the circumstances test was appropriate in this case, but that it was properly applied by the district court.

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