This case law update includes information about protective order violations, accumulated interest on premarital property, and several termination issues. Enjoy!

Personal Property

Smith v. Smith, 2017 UT App 40
Utah Court of Appeals
Attorneys: Michael D. Black
Troy L. Booher
Julie Nelson

Summary: Keith Smith appeals from a divorce decree on the basis that the trial court misinterpreted the terms of a family trust and improperly allocated certain property between the two spouses. Sharon Smith came from a farming family and her mother created the Luveda Fincher Family Limited Partnership. The partnership was distributing money on a monthly basis to Sharon for family expenses. At issue here is whether Keith is entitled to Sharon’s inheritance, or in the alternative, entitled to alimony.

Holding (Inheritance/Interpretation of Trust): In 2006, the Smiths drafted a family trust document “to shelter their real and personal property. The Smith Family Trust was comprised of two constituent trusts,” one for each of the spouses. All assets transferred into the Family Trust “were to be part of one spouse’s individual trust as specified in the trust documents, or, if neither individual trust were specifically designated, the property would be ‘allocated equally between [the individual trusts].’” Once Sharon’s mother died, she inherited a large check from the partnership and placed it into two accounts in her own name. The trial court asserted that the inheritance was a traditional inheritance, which Utah law usually considers separate property. However, Keith had unmet financial needs of $502/month, so the lower court ordered Sharon to pay that in alimony for up to the length of the marriage. The court holds that the inheritance did not change in character “from separate to joint property simply because Sharon deposited it into a financial account.” “’We employ familiar principles of contract interpretation when construing trust instruments.’” Dahl v. Dahl, 2015 UT 23, ¶ 29, 345 P.3d 566. “‘When interpreting a [trust], a court first looks to the [trust’s] four corners to determine the parties’ intentions, which are controlling.’” Bakowski v. Mountain States Steel, Inc., 2002 UT 62, ¶ 16, 52 P.3d 1179. “When a trust is unambiguous . . . ‘a court determines the parties’ intentions from the plain meaning of the [trust’s] language.’” Id. Further, the court will “’consider each [trust] provision in relation to all of the others, with a view toward giving effect to all and ignoring none.’” JENCO LC v. Perkins Coie LLP, 2016 UT App 140, ¶ 11, 378 P.3d 131. With respect to conflicting provisions in a trust, “’[g]eneral terms and provisions are restricted by specific terms and provisions following them.’” 90 C.J.S. Trusts § 208 (2016); see also CoBon Energy, LLC v. AGTC, Inc., 2011 UT App 330, ¶ 22, 264 P.3d 219. Moreover, “[a]n interest is a ‘legal share in something; all or part of a . . . claim to or right in property.’ Interest, Black’s Law Dictionary 934 (10th ed. 2014). And a distribution is the tangible result of ‘[t]he act or process of apportioning or giving out.’” Distribution, Black’s Law Dictionary 576 (10th ed. 2014). Therefore, distribution of the property is exclusively her right. This court affirmed the lower court’s ruling in Sharon’s favor.
Real Property

Oldroyd v. Oldroyd, 2017 UT App 45
Utah Court of Appeals
Attorneys: Brent D Wride
Bryant McConkie
Brian E. Arnold
Lauren Schultz

Summary: Robben Ann and Farrell Oldroyd divorced in 2015. Both raise challenges to the lower court’s division of their assets. Specifically, the issue is whether the district court appropriately determined that Farrell possessed premarital interest in a house he helped build before the parties’ marriage on land solely owned by Robben Ann.

Holding (Inadequate Findings): The parcel of land was owned by Robben Ann before the marriage, she funded the construction project and paid Farrell for his work on the home. The home was finished before the parties married. The district court asserted that “neither of the parties could have accomplished that building of the home without the joint efforts of each other” and that the contributions of both parties “to the value of the property occurred before the marriage relationship, and because of those efforts, both acquired a separate premarital interest in the improvements on the property.”

The court opined that “[i]n a divorce, each party ‘is presumed to be entitled to all of his or her separate property and fifty percent of the marital property.’” Burt v. Burt, 799 P.2d 1166, 1172 (Utah Ct. App. 1990). Accordingly, “the court should first properly categorize the parties’ property as part of the marital estate or as the separate property of one or the other.” Id.; accord Kelley v. Kelley, 2000 UT App 236, ¶ 24, 9 P.3d 171. “Generally, trial courts are . . . required to award premarital property, and appreciation on that property, to the spouse who brought the property into the marriage.” Elman v. Elman, 2002 UT App 83, ¶ 18, 45 P.3d 176. Here, the lower court seemingly reasoned that an equitable interest in the house accrued to Farrell as a result of his construction-related labor and assistance. However, the court failed to explain which legal theory gave rise to that equitable interest. Moreover, the district court did not rule that the house was marital property that should be divided unequally or find that exceptional circumstances existed. “Because the court did not divide the house as an item of marital property, let alone unequally, the exceptional-circumstances doctrine does not apply.” Furthermore, “[t]here was no premarital agreement existing between the parties, nor was there any postnuptial agreement entered into by the parties.” For these reasons, the court concluded that it was “unable to trace with accuracy the steps by which the district court reached its ultimate conclusion that Farrell had obtained a premarital interest in the house. The findings of fact are thus inadequate to support the court’s financial determinations.” Hall v. Hall, 858 P.2d 1018, 1021 (Utah Ct. App. 1993). Thus, the ruling was vacated.
Business Interests Division

Lindsey v. Lindsey, 2017 UT App 38
Utah Court of Appeals
Attorneys: Douglas B. Thayer
Mark R. Nelson
Dean C. Andreasen
Diana L. Telfer
Troy L. Booher
Julie J. Nelson

Summary: Rick and Karen Lindsey were married for almost 20 years. During their marriage, the value of Mr. Lindsey’s premarital business interests substantially appreciated. The trial court properly awarded business interests solely to the husband, when the value of the husband’s premarital business interests substantially appreciated during the parties’ marriage, as his separate property. Rick and Karen have one child together and both had minor children from previous marriages. Before the parties got married, Rick Lindsey owned Evolution Insurance Group and its subsidiaries; he also held part ownership in Prime Holdings Insurance Services Inc. The two companies merged and Mr. Lindsey became CEO of Prime Holdings and acquired substantial ownership in the company’s interest a year after the marriage. Eventually his equity rose to $10.9 million.

Holding (Division): This court held that [w]hen distributing “’marital property in a divorce proceeding, the overriding consideration is that the ultimate division be equitable—that property be fairly divided between the parties.’” Granger v. Granger, 2016 UT App 117, ¶ 15, 374 P.3d 1043. “To that end, a trial court must first ‘identify the property in dispute and determine whether it is marital or separate.’” Dahl v. Dahl, 2015 UT 23, ¶ 121, 345 P.3d 566. Moreover, marital property usually includes “all property acquired during marriage,” “whenever obtained and from whatever source derived.” Dunn v. Dunn, 802 P.2d 1314, 1317-18 (Utah Ct. App. 1990). “Separate property ordinarily includes premarital property, gifts, and inheritances, including any appreciation that may accrue during the marriage.” See Dahl, 2015 UT 23, ¶ 143; Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988). The court further asserted that “[t]he presumption is that marital property will be divided equally while separate property will not be divided at all.” See Dahl, 2015 UT 23, ¶ 121; Dunn, 802 P.2d at 1323. “Married persons have a right to separately own and enjoy property, and that right does not dissipate upon divorce.” See Mortensen, 760 P.2d at 308. The court held, therefore, that “equity generally requires that ‘each party retain the separate property he or she brought into the marriage, including any appreciation’ thereof.” Dunn, 802 P.2d at 1320, 1323; accord Dahl, 2015 UT 23, ¶ 143; Mortensen, 760 P.2d at 308.
The court went on to say, however, that separate property “’is not totally beyond a court’s reach.’” Elman v. Elman, 2002 UT App 83, ¶ 19, 45 P.3d 176. Furthermore, “[b]efore carving property out of the marital estate, a trial court must consider whether circumstances warrant an equitable override of the separate-property retention rule.’” See Henshaw v. Henshaw, 2012 UT App 56, ¶ 15, 271 P.3d 837. The court opined that there have been three circumstances identified “under Utah law as supporting an award of separate property at the time of divorce. These exceptions are when separate property has been commingled; when the other spouse has augmented, maintained, or protected the separate property; and in extraordinary situations when equity so demands.” See Mortensen, 760 P.2d at 308; Dunn, 802 P.2d at 1320. In this case, the latter two exceptions are at issue.
Holding (Contribution Exception): This exception did not apply in this case. “Under the contribution exception, a spouse’s separate property may be subject to equitable distribution when ‘the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it.’” Mortensen, 760 P.2d at 308. Moreover, this “exception may be satisfied when one spouse brings assets into the marriage and the other spouse’s prudent investment of those assets substantially increases their value,” see Dubois v. Dubois, 29 Utah 2d 75, 504 P.2d 1380, 1381 (Utah 1973), “or when marital funds are expended or marital debt is incurred for the benefit of one spouse’s separate property,” see Schaumberg v. Schaumberg, 875 P.2d 598, 602-03 (Utah Ct. App. 1994). Furthermore, “the exception might apply when one spouse works for a business owned by the other spouse but is not ‘paid a wage or salary,’” see Rappleye v. Rappleye, 855 P.2d 260, 262-63 (Utah Ct. App. 1993), “or when a spouse elects to forgo salary or related compensation that would have benefited the marriage so that those funds may be reinvested in his or her separate business.” See Keyes v. Keyes, 2015 UT App 114, ¶ 30, 351 P.3d 90. Additionally, “one spouse’s effort or investment may render the other spouse’s underlying asset, its appreciated value, or some portion thereof subject to equitable distribution.” See Schaumberg, 875 P.2d at 602-03.
The court went on to provide that “[w]hile spouses often contribute to one another’s financial success in a variety of ways, Utah law draws a line between contributions that qualify as ‘enhancement, maintenance or protection’ of a spouse’s separate property and those that do not.” See Jensen v. Jensen, 2009 UT App 1, ¶¶ 11, 16, 203 P.3d 1020. Moreover, “perhaps the most common type of spousal assistance—taking on some measure of household or family responsibilities to allow the other spouse to spend time enhancing the value of his or her separate property—has been rejected as a standalone basis for awarding separate property under the contribution theory. See Jensen v. Jensen, 2009 UT App 1, ¶¶ 11, 16, 203 P.3d 1020.
“[O]ne spouse’s efforts to ‘maintain[] the household,’ provide childcare, and run a part-time business that ‘contributed to [the] family finances’ were insufficient to justify awarding even ‘part’ of the appreciated value of the other spouse’s interest in the corporation of which he was president. Jensen v. Jensen, 2009 UT App 1, ¶¶ 11, 10-11, 15-16, 203 P.3d 1020. The spouse must “assist in running the business [or] contribute in any way to its increase in equity.” Id. Here, the court said, the increase in equity could have merely been due to inflation.” Finally, the “division of labor among married parties may take any number of forms, and the give-and-take often inherent in marital relationships is generally not a sufficient basis for judicially rewriting title to property. The presumption that parties retain their separate property at divorce would be rendered largely irrelevant if rebutted by any spousal effort that freed the other spouse to work on his or her separate property.” Therefore, the lower court’s judgment was affirmed and “direct involvement with or financial expenditures toward a spouse’s separate property appear to be key.”
Holding (Extraordinary Circumstances): It did not apply in this case. “Under Utah law, a spouse’s separate property may be awarded to the other spouse ‘in extraordinary situations where equity so demands.’” Elman v. Elman, 2002 UT App 83, ¶ 19, 45 P.3d 176. Moreover, “The bar for establishing an extraordinary situation is high, traditionally requiring that ‘invasion of a spouse’s separate property’ is ‘the only way to achieve equity.’” Kunzler v. Kunzler, 2008 UT App 263, ¶ 35, 190 P.3d 497. A typical extraordinary circumstance comes up when “a spouse owns separate property but lacks income to provide alimony; in that circumstance, ‘an equitable distribution of the [separate property] would be well within the trial court’s discretion.’” See id. ¶ 37. Moreover, an extraordinary circumstance has also come up in rare and unique cases where, “absent the exception, a husband would have shared in profits his wife created as to their marital property, but she would not have shared in profits he created—and which she enabled him to create—with respect to his separate property.” Elman, 2002 UT App 83, ¶ 24, 45 P.3d 176.
A court might look at “the rate of return earned on separate property during the marriage when determining whether an extraordinary situation exists or in calculating the amount of any such award.” See, e.g., id. ¶¶ 20, 26, 29-30. “But an award of separate property may also be independent of any rate of return earned on the property during the marriage.” See Henshaw v. Henshaw, 2012 UT App 56, ¶ 20 n.7, 271 P.3d 837. “If a court were to award separate property due to a spouse’s inability to pay alimony, [ ] that award could well be made irrespective of the rate of return earned on the property during the marriage.” Here, the court concluded that the “overriding consideration for a property division generally, and the underlying purpose of the equitable circumstances exception, is to ensure an equitable outcome. Granger v. Granger, 2016 UT App 117, ¶ 15, 374 P.3d 1043. Here, the record revealed no inequity towards the wife.

 

Childcare and Medical Expenses
Veysey v. Nelson, 2017 UT App 77
Utah Court of Appeals
Attorneys: Troy L. Booher
Beth E. Kennedy
Jenna Hatch

Summary: A mother appeals the district court’s order denying her claim for daycare expenses arrearages.

Holding (Laches/Unreasonable Delay): In a prior appeal, this court concluded that “variable daycare expenses constitute[d] child support” and also that the statute of limitations does “not preclude Mother from seeking reimbursement for the pre-2005 daycare expenses.” The court provided, however, “that if supported by adequate factual findings, laches could equitably preclude recovery of daycare expenses that were legally recoverable under the statute of limitations.” Veysey v. Veysey, 2014 UT App 264. Specifically, “[t]he doctrine of laches may apply in equity, whether or not a statute of limitation also applies and whether or not an applicable statute of limitation has been satisfied.” Insight Assets, Inc. v. Farias, 2013 UT 47, ¶ 18, 321 P.3d 1021. Moreover, “[t]he laches doctrine ‘is founded upon considerations of time and injury.’” Id. ¶ 17. “To successfully assert a laches defense, a defendant must establish both that the plaintiff unreasonably delayed in bringing an action and that the defendant was prejudiced by that delay.” Borland, 733 P.2d at 147. The mother waited an entire decade to seek reimbursement for some of the daycare costs. Utah law, however, requires that the mother notify the father of changes in child care providers and expenses within 30 days. See Utah Code Ann. § 78B-12-214(2)(b)(ii) (LexisNexis 2012). Therefore, because the district court found that the mother had no justifiable reason for her delay, it did not err when it held that the delay was unreasonable.

 

Custody
State ex rel. A.B., 2017 UT App 14
Utah Court of Appeals
Attorneys: A. Erin Bradley
Sean D. Reyes
Carol L.C. Verdoia
John M. Peterson

Summary: A mother appeals the juvenile court’s order placing her children in the permanent custody of their grandfather. The mother did not participate in, comply with or meet the goals of the court-approved service plan. The lower court gave her another opportunity to demonstrate her seriousness in regaining custody by engaging in the child and family plan, but the mother did not take advantage of this within the extra 45 days she had been given.

Holding (Custody): There was sufficient evidence to support awarding the children’s grandfather permanent custody. Under Utah Code Ann. § 78A-6-314(2)(c) (Supp. 2016), appellant mother did not follow a court-approved service plan, showing, prima facie, that returning the children to her “would create a substantial risk of detriment to the children’s physical or emotional well-being,” and they were doing well with their grandfather in a more stable environment. Utah Code Ann. § 78A-6-314(2)(b) (LexisNexis Supp. 2016). “It is ‘[p]rima facie evidence that return of the minor to a parent or guardian would create a substantial risk of detriment to the minor’ if a parent fails to participate, comply with, or meet the goals of a court-approved service plan.” Utah Code Ann. § 78A-6-314(2)(c) (Supp. 2016). Finally, the mother presented nothing to refute that evidence, requiring the court to terminate reunification services and to determine the children’s most appropriate final plan, under Utah Code Ann. § 78A-6-314(4)(b) (Supp. 2016).

State ex rel. B.J.V., 2017 UT App 57
Utah Court of Appeals
Attorneys: Sheleigh A. Harding
Sean D. Reyes
Carol L.C. Verdoia
John M. Peterson
Julie George

Summary: A mother appeals an order terminating juvenile court jurisdiction and awarding permanent custody of her child to his biological father.

Holding (Custody): The juvenile court held that the child had been neglected by his mother “because he lacked proper parental care by reason of the faults and habits of Mother.” The court, consequently held that the child was a dependent of the father because he was “without proper care through no fault of” his father. The court did, however, set a primary permanency goal of reunification of the mother and child. The outcome was temporary custody for the father with protective supervision services and took the father’s motion for permanent custody under advisement.

Pope v. Pope, 2017 UT App 24
Utah Court of Appeals
Attorneys: Marshall Thompson
Emily Adams
Russel Yauney

Summary: A father appeals a district court custody determination that gave mother primary custody and right to choose school. Father wanted primary custody, but the appellate court agreed and left it as is.

Holding (Custody): The district court ultimately determined that the mother and father should have joint legal and physical custody with the mother as the children’s primary custodian. The court held that although it believed mother’s assertions that father was “involved in meeting for romantic liaisons with people he met through the internet,” that it found his conduct to be distasteful rather than criminal and that these alleged activities did little to influence the lower court’s ultimate conclusions with respect to custody. “Rather, the court explained that the primary factor contributing to its decision on this issue was that Father had taken his two-year old son with him during a criminal episode in Maryland in which he attempted to extort money from another individual, and Father’s resulting felony conviction.” The court stated that the father showed a “lack of judgment” and that he “did not convince the Court that he appreciated the gravity of his past actions.”

Holding (School Choice): “While the district court recognized that Father was then in the best position to provide personal care because he was working part-time at night, it concluded that, in the long term, ‘the most likely scenario is that both parties will need to be gainfully employed on a full-time basis to adequately provide for the needs of themselves and the Minor Children as they mature.’” Finally, the court concluded that while children were doing well at their current school in father’s neighborhood, he did not specifically argue at trial “that the children would be emotionally harmed by changing schools” to mother’s neighborhood. “Further, while we acknowledge that a change in schools can be difficult for a child, the transitory distress from such a move does not as a matter of law necessarily outweigh other factors that might impact that child’s well-being.” The opportunities and quality of the education in mother’s neighborhood was drastically better. Therefore, custody was afforded to mother and the children were ordered to change schools.
Protective Orders

State v. Moosman, 2017 UT 11
Utah Court of Appeals
Attorneys: Joanna E. Landau
Daniel M. Torrence
Sean D. Reyes
Jeanne B. Inouye

Summary: A mother obtained a protective order against Moosman, her former intimate partner with whom she shares a child. Moosman pleaded guilty to violating the protective order, resulting in his third conviction for that offense. Moosman violated the order while on probation and was sentenced to prison for his three violations to run concurrently not to exceed five years.

Holding (Protective Order/Probation): A district court’s decision to sentence defendant to a term of imprisonment and revoke his probation for prior offenses of violating a protective order was affirmed. “A defendant is not entitled to probation, but rather the trial court is empowered to place the defendant on probation if it thinks that it will best serve the ends of justice and is compatible with the public interest.” State v. Valdovinos, 2003 UT App 432, 82 P.3d 1167. The court reasoned that he had repeatedly violated the protective order, imprisonment had been recommended, and defendant did not challenge the reliability of the court’s general holding. “In context, the district court’s statement was that a defendant’s ongoing attempts to control a former intimate partner are indicative that the defendant remains a danger to her.” In referring to his actions, the court stated that “’there is a great deal of literature about the simple fact of not letting go, [and] continued efforts at control, however, innocuous [that] may seem,’ it is nonetheless ‘dangerous.’”

 

Modification
Blocker v. Blocker, 2017 UT App 10
Utah Court of Appeals
Attorneys: Michael P. Blocker (Pro Se)
Grant W.P. Morrisson

Summary: A father appeals the district court’s grant of unsupervised parent time for mother. The district court called this case a “procedural mess.”
Holding (Modification): The lower court initially granted custody to the mother, then after a modification awarded it to father. Since then, mother has gone back and forth between supervised and unsupervised visitation. The lower court asserted that “awarding [Mother] statutory parent-time is an experiment as she ha[d] been unable to cooperate with at least twelve (12) past professionals.” There is a two-step process in modifying a custody award: “First, the court must make a finding that ‘there have been changes in the circumstances upon which the previous award was based’ that are “sufficiently substantial and material to justify reopening the question of custody.” Id. at 54. “And second, the court must determine what custody arrangement would serve the child’s best interest. Id. A modification of parent-time rights generally requires this same two-step process.” Becker v. Becker, 694 P.2d 608, 611 (Utah 1984). The Utah Supreme Court has provided that the “change in circumstances required to justify a modification of a divorce decree varies with the type of modification sought.” Haslam v. Haslam, 657 P.2d 757, 758 (Utah 1982). “Whether there has been a ‘material change with respect to visitation’ is a different inquiry from whether there has been a ‘material change with respect to custody.’” Jones v. Jones, 2016 UT App 94, ¶ 10 374 P.3d 45. “While the inquiry with regard to parent time ‘does not rise to the same level as the substantial and material showing required when a district court alters custody,’ it still requires a showing of a change in circumstances.” Id. ¶ 10; see Becker, 694 P.2d at 611; Hogge, 649 P.2d at 54. Here, the court did not have enough facts to base a decision on. “[p]roper findings of fact ensure that the ultimate award follows logically from, and is supported by, the evidence and the controlling principles.” Sukin v. Sukin, 842 P.2d 922, 924 (Utah Ct. App. 1992). Here, there were no new findings of fact to review, so the court could not determine whether the lower court’s decision was based on sound legal principles or supported by the evidence. Thus, the court remanded for more detailed findings of fact.

 

Parentage
State v. Bazzelle (In the Interest of M.L.), 2017 UT App 61
Utah Court of Appeals
Attorneys: Sean D. Reyes
Carol L.C. Verdoia
John M. Peterson
Caleb Proulx

Summary: This case arose out of a child neglect proceeding in the course of which the child’s putative father petitioned to establish paternity. The father’s paternity petition had not been resolved when the juvenile court had terminated the biological mother’s parental rights. The juvenile court continued to adjudicate the paternity matter.

The juvenile court initially ordered reunification services for the mother, but also set a plan for adoption. At a later permanency hearing, the court changed the goal of permanency to adoption. Mother then voluntarily relinquished her parental rights. Before the termination of the mother’s rights, the putative father petitioned the juvenile court for custody, an adjudication of paternity, and filed a motion to intervene in the child welfare case. Finally, the state, through DCFS, petitioned the Court of Appeals for extraordinary relief seeking custody of the child.

Holding (Extraordinary Relief): The Utah Court of Appeals denied the state’s request for extraordinary relief and held that pursuant to the Utah Uniform Parentage Act’s joinder provision, a putative father’s petition for adjudication of parentage was joined with the child welfare proceeding before the mother relinquished her parental rights, extending the juvenile court’s jurisdiction to the putative father’s petition. “[W]hen determining whether or not to grant the relief requested in the petition,” the court will consider several factors, such as: (1) “the egregiousness of the alleged error,” (2) “the significance of the legal issue presented by the petition,” and (3) “the severity of the consequences occasioned by the alleged error.” State v. Barrett, 2005 UT 88, ¶ 24, 127 P.3d 682. Moreover, “Juvenile courts have exclusive original jurisdiction in several types of proceedings involving children, including those who are abused or neglected. Utah Code Ann. § 78A-6-103(1)(c) (LexisNexis 2012). Juvenile courts also have exclusive original jurisdiction in ‘the termination of the legal parent-child relationship,’ in certain contexts such as neglect and abuse. Id. §§ 78A-6-103(1)(g), -507(1). This case originated in a child neglect proceeding, and as to Mother, ended with the relinquishment of her parental rights. Furthermore, “Juvenile courts also have concurrent jurisdiction with the district courts ‘in establishing paternity,’ id. § 78A-6-104(1)(b), and ‘to adjudicate parentage,’ id. § 78B-15-104(1). These powers are vested under separate titles and chapters of the Utah Code—the Juvenile Court Act (the JCA) at Title 78A, Chapter -6, and the Utah Uniform Parentage Act (the UUPA) at Title 78B, Chapter 15—but they complement one another.”
Moreover, the “UUPA does not explicitly refer to the JCA, but broadly provides that ‘a judicial proceeding to adjudicate parentage may be joined with a proceeding for adoption, termination of parental rights, child custody or visitation, child support, divorce, annulment, legal separation or separate maintenance, probate or administration of an estate, or other appropriate proceeding.’” Id. § 78B-15-610(1). “’On appeal, our supreme court noted that, although the UUPA authorizes ‘both the district court and the juvenile court . . . to adjudicate paternity,’ juvenile courts may adjudicate paternity ‘only in proceedings involving abuse, neglect and dependency, or termination of parental rights.’” Id. Here, the putative father filed a petition to adjudicate parentage, which is very different than filing a motion for paternity testing, which the court asserted would not have given the juvenile court the requisite subject matter jurisdiction. Because the putative father’s petition was filed before the mother relinquished her parental rights, the child welfare case remained open. Consequently, the juvenile court did not lack jurisdiction when it granted the putative father’s petition and the State was ineligible for extraordinary relief.
Termination of Parental Rights
L.K. v. State (State ex rel. K.K.), 2017 UT App 58
Utah Court of Appeals
Attorneys: Benjamin D. Gordon
Sean D. Reyes
Carol L.C. Verdoia
John M. Peterson

Summary: A father appeals the juvenile court’s order terminating his parental rights. The juvenile court noted that “this is not a typical case, rather, it has been a very high-maintenance, chaotic case.”

Holding (Insufficient Evidence): The court held that due to his failure to address a variety of internal issues, such as severe drug abuse and domestic violence history, he was not pursuing the best interest of the children. Moreover, mother and father expressed their desire to maintain their relationship, however, their relationship is volatile with each committing violent acts against one another. Both parents have demonstrated clear trends of drug abuse, domestic violence issues, and mental health issues. Therefore, the juvenile court did not err in finding that it would not be safe if it returned the children to the father’s custody.
Holding (Reasonable Efforts): Second, the court held that DCFS made reasonable efforts to reunify the father with his children. “’Reasonable efforts’ has been defined as ‘a fair and serious attempt to reunify a parent with a child prior to seeking to terminate parental rights.’” In re A.C., 2004 UT App 255, ¶ 14, 97 P.3d 706. “However, the process of reunification is a two-way street which requires commitment on the part of the parents, as well as the availability of services from the State.” In re P.H., 783 P.2d 565, 572 (Utah Ct. App. 1989) (citations omitted). “Ultimately, reasonableness is an objective standard that ‘depends upon careful consideration of the facts of each individual case.” In re K.F., 2009 UT 4, ¶ 51, 201 P.3d 985. The court pointed out that DCFS provided extensive help to the father; DCFS set up appointments for the father to receive domestic violence and psychological evaluations, provide referrals for other services, and helped the father pay for the services and other financial support. DCFS even assisted father with a down-payment on an apartment. Further, the father tested positive for methamphetamine and marijuana after completing his drug counseling. Neither parent took advantage of these resources, thus, DCFS did in fact exhibit reasonable efforts to reunify the father with the children.
Holding (Spousal Privilege): The court held that the juvenile court correctly found that the spousal privilege did not apply under Utah R. Evid. 502(e)(4) where the father never objected to any part of the mother’s testimony. The issue was not adequately preserved.

B.D.J. v. State (State ex rel. C.A.), 2017 UT App 72
Utah Court of Appeals
Attorneys: Don M. Torgerson
Sean D. Reyes
Carol L.C. Verdoia
John M. Peterson

Summary: A mother appeals the termination of her parental rights on the basis that it was not in the best interest of her children to terminate her rights.
Holding (Termination of Parental Rights): The mother asserted that the juvenile court erred in determining that it was in the children’s best interests to terminate her parental rights. Particularly, the mother argued that since the children were not yet eligible for adoption by their foster parents that she should have been given more time to demonstrate her fitness as a mother. The court, however, held that the lower court’s ruling was sound. The mother’s visits with the children was negatively affecting the progress and behavior of the children. “[T]he juvenile court found that the children appear to have ‘no bonds of love and affection with their Mother or any significant relationship with her.’” “[I]t was in the best interests of the children to terminate Mother’s parental rights regardless of the timing of any potential approval to allow the foster parents to adopt the children.” Therefore, the court affirmed the juvenile court’s holding.

State ex rel. L.B. v. State, 2017 UT App 82
Utah Court of Appeals
Attorneys: Jordan Putnam
Sean D. Reyes
Carol L.C. Verdoia
John M. Peterson

Summary: A mother appeals the juvenile court’s order terminating her parental rights. Mother had failed parental adjustment.

Holding (Termination of Parental Rights): Mother argued that there was insufficient evidence to show grounds supporting termination of her parental rights. The juvenile court, however, based its decision on several grounds. Therefore, the court held that the juvenile court properly terminated the mother’s parental rights for failure of parental adjustment under Utah Code Ann. § 78A-6-502(2) (2012) (“means that a parent or parents are unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to the placement of their child outside of their home, notwithstanding reasonable and appropriate efforts . . . to return the child to that home”). “Failure of parental adjustment “means that a parent or parents are unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to the placement of their child outside of their home, notwithstanding reasonable and appropriate efforts . . . to return the child to that home.” Utah Code Ann. § 78A-6-502(2).

The court reasoned that termination was in the best interests of the children because the mother did very little to complete the goals set out in her service plan, which were meant to address many of the underlying reasons the children were removed from her custody in the first place. Finally, it was necessary for the mother’s parental rights to be terminated in order to free the children up for adoption by their maternal grandparents, with whom they had been doing very well.

State ex rel. D.V. v. State, 2017 UT App 79
Utah Court of Appeals
Attorneys: Jordan Putnam
Sean D. Reyes
Carol L.C. Verdoia
John M. Peterson

Summary: Mother appeals termination of her parental rights to her two children. The juvenile court held that termination of mother’s rights was proper due to her incompetence, unfitness, and abuse and neglect of her children.

Holding (Termination of Parental Rights): The court affirmed the lower court’s ruling because mother was found to be unfit and incompetent, insofar that she abused and neglected her children. Moreover, the mother experienced a failure of parental adjustment even though the DCFS made reasonable and appropriate efforts to return the children to the mother’s care. The mother was not willing or able to correct her circumstances or conduct, which led to her children’s placement in an out-of-home DCFS placement, within a reasonable time frame. The juvenile court asserted that the likelihood of change on the mother’s part is minimal and that the children were likely to serious suffer detriment. “’Utah law requires a court to make two distinct findings before terminating a parent-child relationship.’” In re R.A.J., 1999 UT App 329, ¶ 7, 991 P.2d 1118. “’First, the court must find that the parent is below some minimum threshold of fitness, such as a finding that a parent is unfit or incompetent based on any of the grounds for termination’ in section 78A-6-507.” Id. “’Second, the court must find that the best interests and welfare of the child are served by terminating . . . parental rights.’” Id. The court affirmed the lower court because it was clear that these two considerations weighed against the mother; both children were found to have been exposed to methamphetamine when they were born. Although the mother completed drug treatment, she relapsed twice, did not have a home of her own, always kept the children with their grandmother, had the children removed from her custody 3 times, did not have a job, and is currently serving prison time for possession with intent to distribute. Finally, they were bonded to their foster parents, who were willing to adopt them and provide them with safety and stability.
State ex rel. D.V. v. State, 2017 UT App 80
Utah Court of Appeals
Attorneys: Sheleigh A. Harding
Sean D. Reyes
Carol L.C. Verdoia
John M. Peterson

Summary: Father appeals the termination of his parental rights to both of his children. Father was convicted of a felony and would be incarcerated for a period of more than one year.
Holding (Termination of Parental Rights): The juvenile court found that the Father neglected or abused the children, see Utah Code Ann. § 78A-6-507(1)(b) (LexisNexis 2012), and was an unfit or incompetent parent, see id. § 78A-6-507(1)(c). Moreover, the children had been in an out-of-home placement under the supervision of DCFS, see id. § 78A-6-507(1)(d)(i); that Father had “substantially neglected, willfully refused, or has been unable or unwilling to remedy the circumstances that caused the child to be in an out-of-home placement,” see id. § 78A-6-507(1)(d)(ii); and that “there is a substantial likelihood that [Father] will not be capable of exercising proper and effective parental care in the near future,” see id. § 78A-6-507(1)(d)(iii). The juvenile court concluded that the children had suffered or were substantially likely to suffer serious detriment due to parental unfitness, see id. § 78A-6-503(7) (Supp. 2016), and that it was strictly necessary to terminate parental rights. The court then concluded that it was in the child’s best interest to terminate parental rights. See id. § 78A-6-503(12). “Utah law requires a court to make two distinct findings before terminating a parent-child relationship.” In re R.A.J., 1999 UT App 329, ¶ 7, 991 P.2d 1118. “First, the court must find that the parent is below some minimum threshold of fitness, such as a finding that a parent is unfit or incompetent based on any of the grounds for termination.” § 78A-6-507. “Second, the court must find that the best interests and welfare of the child are served by terminating . . . parental rights.” Id. The “finding of a single ground will support termination of parental rights.” See Utah Code Ann. § 78A-6-507(1) (LexisNexis 2012).
Furthermore, in determining unfitness and neglect, courts will look to “whether the parent is incarcerated as a result of conviction or a felony and the sentence is of such length that the children will be deprived of a normal home for more than one year.” Utah Code Ann. § 78A-6-508(2)(e) (LexisNexis Supp. 2016). Therefore, the court affirmed the lower court’s ruling that termination was appropriate.

Danielle Hawkes

Danielle Hawkes

Partner at the Salt Lake Lawyers
Danielle Hawkes

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