SLlaw done-37The court has focused on the right to counsel in private termination cases and has also given helpful clarifications around protective orders and stalking injunctions. Enjoy!

Termination

C.B.S. v. J.S.D. and R.A.D., 2016 UT 56

Utah Supreme Court

Attorneys: Marshall Thompson; Mark H. Tanner; Sean D. Reyes; Bridget K. Romano

Summary: The Court rules that certain constitutional protections apply when terminating a parent’s rights, even in cases that were initiated by a private actor. If the mother was indigent during the termination of her rigths that were initiated by a private actor, she should receive counsel.

Holding: U.C.A. § 78A-6-1111(2) says that in cases initiated by a private party, an attorney is not provided by the state. The Court held that “all termination proceedings involve sufficient state action to trigger constitutional protections.” This is true even for privately initiated terminations. The Court cites to some federal caselaw to support its position. The Court should determine whether the mother was indigent and whether due process required the appointment of counsel. In Lassiter v. Department of Social Services, 452 U.S. 18 (1981), the Supreme Court said that the Court should determine on a case by case basis whether counsel is required for a case where liberty is not at stake. The court said that the following must be balanced: the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions.

L.E.S. v. C.D.M. and M.K.M., 2016 UT 55

Utah Supreme Court

Attorneys: Marshall Thompson; Jordan R. Van Oostendorp; Sean Dr. Reyes; John M. Peterson; Tyler R. Green; Stanford E. Purser

Summary: The Supreme Court held that the denial of counsel in a termination case violated bio dad’s federal due process rights, even though the termination was taking place in the District Court, rather than the juvenile court, and was in regards to a private adoption petition from the step father.

Holding: The court again applies the test from Lassiter v. Department of Social Services, 452 U.S. 18 (1981). The court was incorrect in not applying the Eldridge factors from the Lassiter case. The case conducts the full analysis, which may be helpful to review in any future similar cases. Essentially it is a balance test of the bio parent’s interests, the state’s interest, and the risks of error. The factors should be weighed against each other and then against the presumption that there is not a right to counsel. In this case, it came out in favor of appointing counsel. This test in parental termination cases must be applied on a case by case analysis.

Concurrence (Durham):  The state constitutional protection should have been applied first.

Dissent (Lee): Father did not preserve his constitutional claims. Also, Lassiter prescribes a presumption against appointment of counsel in parental-rights termination cases and the majority decision turns this on its head, and holds that nearly all termination cases should be guaranteed counsel cases.

Protective Order and Stalking Injunction

Mota v. Mota, II, 2016 UT App 201

Utah Court of Appeals

Attorneys: Shirl Don LeBaron; D. Grant Dickinson; Justin Caplin

Summary: The court affirms the denial of man’s request to dismiss a protective order

Holding: Jennifer received a protective order for, among other things, Lawrence pointing a gun at her while she held their youngest child and threatening to shoot her. Lawrence attempted to have the protective order dismissed after two years pursuant to U.C.A. § 78B-7-115. The commissioner found, and the district court agreed, that Jennifer had a continuing and ongoing fear of Lawrence because he pulled the gun on her and threatened to kill her. The inquiry of the elements for consideration under U.C.A. § 78B-7-115 is not necessarily limited to the facts that occurred since the protective order was entered. The court was allowed to consider things that happened before. Section (f) invites the court to consider “any other factors the court considers relevant to the case before it.” The previous actions were considered in relation to Jennifer’s ongoing fear of abuse. In addition, “[a] personal actions at a time when he was not subject to a court order bear on whether he is likely to engage in future abuse if he is again not subject to a court order.” The commissioner was also correct in considering the severity of the past abuse. A mere two years “would not necessarily erase the fear associated with having a gun pointed at a person [and] residual fear would be reasonable, given the accompanying threat to kill.”

Card v. Card, 2016 UT App 233

Utah Court of Appeals

Attorneys: Mark W. Wiser; Scott B. Wiser; James H. Woodall

Summary: Card appealed the district court’s decision to deny his request to dismiss a 2 year old protective order and award her attorney fees. The appellate court affirmed the district court.

Holding (Dismissing Protective Order): U.C.A. § 78B-7-115(1) allows a court to dismiss a protective order that has been in effect for at least two years if the court determines that the petition no longer has a reasonable fear of future abuse. The court should consider the following factors: (a) whether the respondent has complied with treatment recommendations related to domestic violence, entered at the time the protective order was entered; (b) whether the protective order was violated during the time it was in force; (c) claims of harassment, abuse, or violence by either party during the time the protective order was in force; (d) counseling or therapy undertaken by either party; (e) impact on the well-being of any minor children of the parties, if relevant; and (f) any other factors the court considers relevant to the case before it. The district court was correct in maintaining the protective order where the respondent ferreted out the petitoner’s bank information without her knowledge, demanded that she be personally present for parent-time exchanges at a location he selected, and hired a process server to personally serve her with child support checks. These actions were undertaken with the intent to harass and intimidate the petitioner.” Although the respondent had taken an anger management class, he had not “internalized the principles of the course.” He had not “demonstrated a change in his behavior from the time of the protective order…and he continued to justify the behavior that the court found to be threatening, intimidating, and harassing.”

Carson v. Barnes, 2016 UT App 214

Utah Court of Appeals

Attorneys: Bart J. Johnsen; Alan S. Mouritsen; Jeremy M. Shorts

Summary: Stalking injunction was proper. Barnes had pulled a gun on the Burgesses and then followed Carson in his and also drove past Carson’s house slowly to monitor what he was doing.

Holding: Stalking injunctions are governed by U.C.A. § 77-3a-101. Stalking is defined in U.C.A. § 76-5-106.5 as “a person is guilty of stalking who intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person: (a) to fear for the person’s own safety of the safety of a third person; or (b) to suffer other emotional distress.”

Holding (Same Course of Conduct): Barnes had pulled a gun on the Burgesses, not Carson. But because Barnes was stalking all of them in the same “course of conduct” it could be considered together. The “threatening act need not be direct, and it includes situations in which the actor comes to the person’s workplace or contacts the person’s coworkers without requiring the presence of the victim.” The court said that that Burgesses and Carsen were essentially coworkers who were working on the same plot of land.

Holding (Pattern of Behavior): Barnes argued, unpersuasively, that driving past Carson’s house and following him in a car were not enough to make him fear for his safety. However, the court reiterates that the individual actions are not considered alone. “We do not read the plain language of 76-5-106.5(2) to require that each act or incident independently be such as to cause a reasonable person to fear for his or her safety; rather, it is the pattern of behavior or the course of conduct considered in the context of the circumstances that must have that cumulative effect.” Coombs v. Dietrich, 2011 UT App 136, 253 P.3d 1121. “Indeed stalking, by its very nature, is an offense of repetition and events should not be considered in a vacuum.”  Ellison v. Stam, 2006 UT App 150; 136 P.3d 1242.

Attorney Fees

Card v. Card, 2016 UT App 233

Utah Court of Appeals

Attorneys: Mark W. Wiser; Scott B. Wiser; James H. Woodall

Summary: Card appealed the district court’s decision to deny his request to dismiss a 2 year old protective order and award her attorney fees. The appellate court affirmed the district court.

Holding (Attorney Fees as Sanction in Protective Order): The district court imposed attorney fees against the respondent under U.C.A. § 78B-7-115(3). That sections says “the court shall enter sanctions against either party if the court determined that either party acted: (a) in bad faith; (b) with intent to harass or intimidate either party.” The district court found that Card’s actions were intended to harass or intimidate petitioner. Therefore, the attorney fees were proper.

Civil Procedure

Mota v. Mota, II, 2016 UT App 201

Utah Court of Appeals

Attorneys: Shirl Don LeBaron; D. Grant Dickinson; Justin Caplin

Summary: The court affirms the denial of man’s request to dismiss a protective order

Holding: The appellant is not required to object to a commissioner’s ruling in order to preserve it for appeal. Rule 108 is an option for objection, not a requirement.

Danielle Hawkes

Danielle Hawkes

Partner at the Salt Lake Lawyers
Danielle Hawkes

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