In re T.H...

2015 UT App 66
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF T.H., T.H.,
AND T.H., PERSONS UNDER EIGHTEEN YEARS OF AGE.

D.H.,
Respondent and Appellant,
v.
STATE OF UTAH,
Petitioner and Appellee.

Memorandum Decision
No. 20140265-CA
Filed March 19, 2015

Third District Juvenile Court, Salt Lake Department
The Honorable James R. Michie Jr.
No. 1086063, 1086064, 1086066

Richard K. Clark, Attorney for Appellant

Sean D. Reyes and John M. Peterson,
Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES MICHELE M. CHRISTIANSEN and JOHN A. PEARCE
concurred.

ROTH, Judge:

¶1 D.H. (Father) appeals from the juvenile court’s order
terminating reunification services and awarding custody of his
three minor children to their mother (Mother). Father challenges
the sufficiency of the evidence to support that decision. We
In re T.H.

conclude that the juvenile court’s findings are supported by the
record, and we therefore affirm.

¶2 “[I]n order to overturn the juvenile court’s decision *on
custody,] [t]he result must be against the clear weight of the
evidence or leave the appellate court with a firm and definite
conviction that a mistake has been made.” See In re B.R., 2007 UT
82, ¶ 12, 171 P.3d 435 (third alteration in original) (citation and
internal quotation marks omitted). In considering whether this
standard has been satisfied, we “review the juvenile court’s
factual findings based upon the clearly erroneous standard.” In
re E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680. We “may not engage
in a reweighing of the evidence” but instead must only assess
whether there is evidence that supports the juvenile court’s
findings and conclusions. In re B.R., 2007 UT 82, ¶ 12.

¶3 This case originated in April 2013 from allegations of
environmental neglect in the parents’ home. Based on Mother’s
and Father’s admissions,1 the juvenile court adjudicated the
children neglected. Accordingly, the court entered an order for
“[p]rotected supervision,” which is “a legal status created by
court order following an adjudication on the ground of . . .
neglect . . . , whereby the minor[s are] permitted to remain in the
. . . home, and supervision and assistance to correct the . . .
neglect . . . is provided” by the Division of Child and Family
Services (DCFS). See Utah Code Ann. § 78A-6-105(33)
(LexisNexis Supp. 2014).2 At a subsequent disposition hearing,

1. Mother and Father admitted some of the allegations outright,
and other allegations were deemed true pursuant to rule 34(e) of
the Utah Rules of Juvenile Procedure, which treats “*a+llegations
not specifically denied by a respondent *to+ be deemed true,”
Utah R. Juv. P. 34(e).

2. Several provisions of the Juvenile Court Act, including this
one, were amended in 2014. See, e.g., Utah Code Ann. § 78A-6-
(continued...)

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the juvenile court set a goal of keeping the children in the
custody of both parents, provided that the parents could acquire
and implement the skills necessary to keep the children safe in
the home.3 DCFS created a child and family plan with specific
services and responsibilities for each parent (the Service Plan).

¶4 Both parents initially made efforts to comply with the
Service Plan, but on September 11, 2013, Mother obtained a
protective order against Father that required him to move out of
the home. The protective order did not specifically preclude
Father’s contact with the children but instead awarded
temporary custody to Mother and “*d+efer*red+ to Juvenile
Court” on parent-time. The juvenile court subsequently
prohibited Father from exercising parent-time with the oldest
child until a therapist authorized visitation to resume. It allowed
Father to have parent-time with the younger two children but
mandated that all visits be supervised by DCFS or another court-
approved agency.

¶5 By late September 2013, police had arrested Father for
violation of the protective order. Father was in and out of
custody for protective order violations until at least January
2014. During his incarceration, Father could not participate in
the services offered through the Service Plan. Once he was
released from custody in January 2014, he participated in regular

(<continued)
105 amend. notes (LexisNexis Supp. 2014). The particular
subsections that are relevant to this appeal have not been
amended, so we cite the current version of the Utah Code
Annotated for the reader’s convenience.

3. The juvenile court set a concurrent goal of adoption of the
children. Because Mother adequately remedied the situation that
caused the children’s neglect, this goal was not pursued and
thus is not at issue in the appeal.

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supervised parent-time with the two youngest children and had
a trial visit with the oldest child, after which the child expressed
a desire to resume visitation.

¶6 On March 19, 2014, the juvenile court conducted a review
hearing. Counsel for each parent, the State, and the Guardian ad
Litem (GAL) addressed the need for the juvenile court’s
continued involvement with the family and the allocation of
custody and parent-time going forward. The parties presented
no testimony at the hearing. Mother, through her attorney, asked
the juvenile court to close the case and award her sole legal and
physical custody of the children. Counsel argued that such
action was appropriate because Mother had remedied the
environmental situation that resulted in the adjudication of
neglect and she planned to continue participating in therapy and
skills training through Hopeful Beginnings even after the case
terminated. Mother’s attorney also reported that Mother was
abiding by the protective order and cooperating with law
enforcement’s ongoing investigation of criminal charges against
Father for repeatedly violating the protective order. Mother’s
attorney also stated that Mother had demonstrated a willingness
to facilitate Father’s parent-time with the children. Father’s
attorney responded that Father sought joint legal custody and
that he wanted the court either to allow him unsupervised
parent-time with the children according to the standard
statutory schedule or to continue its jurisdiction over the family
until such an order could be put in place. Father’s attorney
reported that Father was complying with Adult Probation and
Parole and was “extremely eager . . . to prove that he is a safe
and stable father figure to these children.” The State
recommended, based on the significant improvement of the
children’s environment, that custody be given to Mother and the
juvenile case be closed. The GAL recommended that the case be
kept open so as to better assess Father’s ability to care for the
children now that he had been released from jail.

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¶7 After hearing all of the arguments and considering
written reports prepared by DCFS and Hopeful Beginnings, the
juvenile court agreed with Mother and the State that the case
should be closed. Accordingly, it entered an order giving Mother
sole legal and physical custody of the children, granting Mother
discretion, with the input of Hopeful Beginnings, to determine
how much visitation the children should have with Father, and
terminating both DCFS services and the juvenile court’s
jurisdiction over the family. Father appeals, arguing that the
evidence does not support the juvenile court’s decision.

¶8 Specifically, Father contends that there is insufficient
evidence to support three findings: (1) “that it was not safe to
return the minor children to the custody of Father”; (2) “that
Father was not in substantial compliance with the Service Plan”;
and (3) “that it would be in the children’s best interest that
Father’s reunification services be terminated and that
permanen[t] custody and guardianship be awarded to
*Mother+.” It is not apparent from the record that the juvenile
court actually made either of the first two findings. Instead, it
appears that the juvenile court determined that it was in the
children’s best interests to terminate the court’s jurisdiction and
that doing so required that the children be placed in the legal
custody of one parent. In light of that decision, the juvenile court
awarded Mother “*s+ole legal custody” and “discretion to
determine the visitation with the Father and children.”4 These
decisions have support in the record.

¶9 Regarding the decision to terminate jurisdiction, the
juvenile court stated that although “there *were+ several reasons
why it would make sense to keep *the case+ open,” the court
would close the case because the parties had come under the

4. Father has not challenged the juvenile court’s decision to
award Mother “discretion to determine the visitation” rather
than to set a parent-time schedule.

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jurisdiction of the court due to an environmental neglect issue
that had since been resolved. The court further noted that
custody had not been a concern until the issuance of the
protective order because the court had initially ordered
protective supervision, which permitted the children to remain
in both their parents’ custody in the family home. And even with
the issuance of the protective order and Father’s subsequent
incarceration, the parties themselves, with the assistance of
DCFS and Hopeful Beginnings, had been able to craft a parent-
time arrangement that allowed the children a safe and healthy
relationship with Father. Because the parents would continue to
receive services from Hopeful Beginnings beyond the
termination of the juvenile court case and because Mother had
demonstrated her willingness to facilitate the children’s
visitation with Father, the juvenile court concluded that the
“limited scope” of the juvenile court jurisdiction did not permit
it to keep the case open solely for the purpose of monitoring the
“conflict between mom and dad.” Given the function of the
juvenile court and the circumstances that caused it to become
involved with this family, the court’s finding that it would be in
the children’s best interests to terminate DCFS services and the
court’s jurisdiction has a basis in the record.

¶10 The record also supports the court’s decision to choose
Mother as the children’s custodian. Although Father apparently
complied with DCFS as much as he could while out of custody
and expressed a willingness and desire to parent the children,
Father placed himself in a position, by repeatedly violating the
protective order, where he could not fully participate in the
Service Plan or care for the children. Because of his violations,
Father was in and out of jail during at least five of the nine
months that the Service Plan was in effect. While he was in jail,
he did not participate in services or exercise parent-time with the
children. And even when he was out of custody, Father had no
parent-time with the oldest child, except for one trial visit, and
had only supervised visitation with the two younger children.
Although by the time of the final review hearing Father had

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resumed parent-time with all three children, it was still on the
condition that the visits be supervised. Thus, the court had a
basis for determining that it was not feasible for Father to have
physical custody of the children.

¶11 With respect to the juvenile court’s decision to deny joint
legal custody, it is important to recognize that Father is not
allowed to have any contact with Mother until after the
protective order expires in September 2015. This includes a
prohibition on physical contact and also a ban on any form of
communication, such as telephone, email, or mail contact. Thus,
there was a basis for the juvenile court to determine that given
the severe constraints on their ability to communicate, the
parents could not jointly make the types of decisions that legal
custody entails. See Utah Code Ann. § 78A-6-105(22) (LexisNexis
Supp. 2014) (defining legal custody to include decisions
regarding physical custody, education, and ordinary and
emergency medical care of minor children). For these reasons,
we conclude that there is no clear error in the court’s finding that
it was in the children’s best interests for the court to award
Mother sole legal custody.

¶12 Because “a foundation for the court’s decision exists in the
evidence,” we affirm the juvenile court’s custody order. See In re
B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.

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