State of Utah, in the interest of J.F., W.F., and M.P.S.

----ooOoo----

State of Utah, in the interest of J.F., W.F., and M.P.S.,
persons under eighteen years of age.
______________________________

C.S. and T.S.,
Appellants,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010197-CA

F I L E D
April 4, 2002 2002 UT App 92 -----

Second District Juvenile, Farmington Department
The Honorable Diane W. Wilkins

Attorneys:
Scott L. Wiggins, Salt Lake City, for Appellants
Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, Guardian Ad Litem

-----

Before Judges Jackson, Billings, and Davis.

BILLINGS, Associate Presiding Judge:

C.S. (Mother) and T.S. (Stepfather)(1) appeal from a dispositional order denying them reunification services under Utah Code Ann. § 78-3a-311 (Supp. 2000). In relevant part, subsection 78-3a-311(2)(a) provides that when a juvenile court orders continued removal at the dispositional hearing . . . it shall . . . determine whether, in view of the primary permanency goal, reunification services are appropriate . . . pursuant to Subsection (3). In cases where . . . serious physical abuse or neglect are involved, neither [DCFS] nor the court has any duty to make "reasonable efforts" or to, in any other way, attempt to provide reunification services, or to attempt to rehabilitate the offending parent or parents. In all cases, the child's health, safety, and welfare shall be the court's paramount concern in determining whether reasonable efforts to reunify should be made.

Subsection 78-3a-311(3)(a) provides: [A] parent's interest in receiving reunification services is limited. The court may, under any circumstances, determine that efforts to reunify a child with his [or her] family are not reasonable or appropriate, based on the individual circumstances, and that reunification services should not be provided. (Emphasis added.) Subsection 78-3a-311(4)(a) provides that the "[f]ailure of the parent to respond to previous services or comply with any previous treatment plan . . . shall be considered in determining whether reunification services are appropriate."

In the present case, the juvenile court ordered the continued removal of W.F. and J.F. and adopted a primary permanency goal of long term foster care and a concurrent permanency goal of adoption. The court concluded that because Parents seriously abused and neglected W.F. and J.F., DCFS had no duty to provide reunification services. Parents stipulated that Stepfather physically abused W.F. and J.F. by striking them with a PVC pipe, leaving welts, to teach them what it would be like in the future if they misbehaved. Parents also stipulated that Mother was aware Stepfather was going to strike W.F. and J.F. with the PVC pipe and she failed to protect them from the abuse. The juvenile court found that the State of Oregon had previously removed W.F. for failure to thrive and for severe physical abuse and had removed J.F. as a child at risk. The court further found that Mother received extensive services from Oregon Child and Family Services over several years, yet Mother has "continued to lack proper and necessary parenting ability." Based upon these findings, the juvenile court concluded it would be merely repetitive and futile to offer reunification services.

Parents do not challenge the juvenile court's conclusion that they seriously neglected W.F. and J.F. Parents argue the juvenile court erred in concluding the abuse was severe and thus denying services under subsections 78-3a-311(3)(b)(v) and (vi). However, subsection 78-3a-311(3) plainly provides that any one of the circumstances will support the presumption. See id. Because Parents do not challenge the juvenile court's conclusions in regard to the circumstances in subsections 78-3a-311(b)(iii) and (viii), we do not consider whether the abuse was "severe," and conclude the juvenile court could presume that reunification services did not need to be provided in the present case.

Parents next argue the juvenile court erred because it treated the presumptive circumstances in subsection 78-3a-311(3)(b) as conclusive and failed to consider the "individual circumstances." We disagree. In support of their argument, Parents selectively cite paragraph fifteen of the juvenile court's findings and conclusions. However, the court's other findings and conclusions establish that the court considered other circumstances.

Parents also appear to argue that reunification services would not be futile in the present case because W.F. and J.F. have Attention Deficit Hyperactivity Disorder (ADHD) and Obsessive Compulsive Disorder (OCD). Although the juvenile court did not make any findings in regard to how challenging W.F. and J.F. were to parent because of ADHD and OCD, the court found they have suffered extreme instability because of Mother's choices.

In sum, we cannot say the juvenile court exceeded its discretion in denying reunification services.
 
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge -----

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
James Z. Davis, Judge

1. We refer to C.S. and T.S. together as "Parents."