T.W. v. State (In re D.W.)

T.W. v. State (In re D.W.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of D.W., K.W., M.W., and S.W.,
persons under eighteen years of age.

______________________________

T.W.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030700-CA
 

F I L E D
(July 15, 2004)
 

2004 UT App 246

 

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Third District Juvenile, Salt Lake Department

The Honorable Sharon P. McCully

Attorneys: John E. Laherty, Salt Lake City, for Appellant

Mark L. Shurtleff and Carol L.C. Verdoia, Salt Lake City, for Appellee

Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Billings, Bench, and Thorne.

BILLINGS, Presiding Judge:

T.W. appeals a juvenile court order terminating her parental rights. We affirm.

T.W. argues that when the juvenile court terminated her parental rights, it failed to consider (1) the physical, mental, and emotional condition and needs of her children and (2) the desires of her children, both of which are required by Utah Code Annotated section 78-3a-409(1)(a) (2002). "Application of the statutory law to the facts presents a mixed question of fact and law. We review the juvenile court's findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts." In re G.B., 2002 UT App 270,¶11, 53 P.3d 963 (quotations and citation omitted).

Section 78-3a-409 does not require a juvenile court to make separate findings specifically addressing "the children's physical, mental, and emotional condition and needs," but rather requires only that such matters be considered by the court. In re S.T., 928 P.2d 393, 400 (Utah Ct. App. 1996). The juvenile court made the following relevant findings: (1) all four children had been neglected and had been removed from T.W.'s custody numerous times; (2) the youngest child had been abused; (3) all four children were at risk of serious physical, mental, and emotional abuse in the future; (4) T.W.'s drug use impaired her ability to provide appropriate care for the children; (5) T.W. had failed to provide proper or necessary subsistence, education, or medical care for the children; (6) T.W. had not demonstrated that she could provide appropriate care for the children despite assistance provided by the State; and (7) the children needed proper parental care, security, stability, and protection from abuse and neglect, which will be provided by couples currently willing to adopt them.

These findings demonstrate that the juvenile "court did consider the requirements set forth in [section 78-3a-409(1)(a)] when making its final determination. Therefore, we conclude that prior to terminating [T.W.'s] parental rights, the juvenile court properly considered each statutory factor." In re G.B., 2002 UT App 270 at ¶22 (quotations and citations omitted).

T.W. also argues that the juvenile court erred by failing to consider the children's desires regarding termination as required by section 78-3a-409(1)(a). T.W. concedes that the juvenile court was presented no evidence of the children's desires and that T.W. did not raise this issue before the juvenile court. Thus, T.W. did not preserve this issue for appeal and does not argue plain error on appeal. See Harris v. IES Assocs., Inc., 2003 UT App 112,¶45 n.15, 69 P.3d 297 (stating that where an appellant "did not raise [an] argument below . . . we need not consider it"). For this reason, even if the juvenile court committed error by not considering the desires of the children, it is beyond our review.

Furthermore, under Utah Code Annotated section 78-3a-412(8)(a) (2002), the Guardian Ad Litem is required to inform the court whenever a child's desires differ from its recommendation. The Guardian Ad Litem never informed the court that the children's desires differed from her recommendations in this case, and T.W. does not argue that the Guardian Ad Litem failed to perform her duty under section 78-3a-412. Thus, it was reasonable for the juvenile court to assume that the children's desires were adequately expressed by the recommendations provided by the Guardian Ad Litem, which the court considered. See State v. Pecht, 2002 UT 41,¶22, 48 P.3d 931 (noting that appellate courts generally uphold "the trial court even if it failed to make findings on the record whenever it would be reasonable to assume that the court actually made such findings." (quotations and citations omitted)). Thus, we affirm.

______________________________

Judith M. Billings,

Presiding Judge

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I CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

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THORNE, Judge (concurring in the result):

While I respectfully disagree with the majority's analytical approach, I concur in the result reached in this case.

The majority concludes that the trial court committed no error in failing to consider the requirements of Utah Code Annotated section 78-3a-409(1)(a) (2002). I disagree. Section 78-3a-409(1)(a) specifically requires the court to consider the desires of the involved children, "if the court determines [they are] of sufficient capacity to express [their] desires."(1) To comply with this requirement, the court must have placed before it some evidence of the children's desires.(2) The record, however, is silent concerning the children's desires; thus, the trial court could not, and did not, consider what result the children desired in this proceeding.

The majority excuses the absence of any record evidence, and the trial court's failure to consider the section 78-3a-409 factors, asserting that since the guardian has a duty to present the children's desires to the court, if the desires differed from the guardian's recommendation, the guardian would have informed the court. The majority's decision to eliminate the trial court's duty to consider the children's desires any time the guardian is silent on the issue, however, does harm to the legislative statutory scheme--an outcome that is contrary to our normal decision making rules. See In re K.M., 965 P.2d 576, 580 (Utah Ct. App. 1998) ("'In interpreting [the Juvenile Court Act], we read it to harmonize it with its subsections.'" (quoting A.E. v. Christean, 938 P.2d 811, 816 (Utah Ct. App. 1997)).

The juvenile court act places separate duties upon both the guardian and the trial court, and I cannot agree that the legislature intended that the discharge of one abrogates the necessity of the other. The language of the statute is clear; the trial court "shall" consider the desires of the children. The legislature's use of the word "shall" leaves no room for confusion, and it is clearly not left to the trial court's discretion to presume that the guardian has explored this issue. Nor does the statute allow for a presumption that the trial court knows the children's minds. The trial court is charged with ensuring that the children's desires are made known to the court. Absent that information, the trial court cannot satisfy its section 78-3a-409(1)(a) duties. Consequently, I would conclude that the trial court has a duty to inquire about and then consider the children's desires regardless of the guardian's silence, and the court failed to discharge its duty in this case.

However, the central question is not whether the trial court erred, but rather "whether the error resulted in prejudice sufficient to warrant reversal of the termination order." In re C.Y. 765 P.2d 251, 254 (Utah Ct. App. 1988). "An error is prejudicial 'only if a review of the record persuades [this] court that without the error there was "a reasonable likelihood of a more favorable result for [T.W.]."'" Id. (citations and emphasis omitted). If, after reviewing the record, we conclude that the occurrence of the error "'undermine[s our] confidence in the outcome'" we will reverse the termination order. Id. (citation omitted).

In this case, the children were removed following the discovery that T.W. had used both heroin and methamphetamine while pregnant with her youngest child. It was further discovered that T.W. had exposed the children to repeated episodes of domestic violence, and that she was either unwilling or unable to cease her drug use. T.W. failed to take advantage of a court ordered trial home placement, as well as all of the other "extraordinary" services that the Division of Child and Family Services attempted to provide. Finally, the removal of T.W.'s children on this occasion is just the last of many similar removals. Consequently, the record establishes that T.W.'s parental rights were otherwise properly terminated and that the termination was in the children's best interests.

Therefore, I would conclude that the trial court erred in failing to specifically consider the children's desires prior to terminating T.W.'s parental rights. However, because there is virtually no probability that such consideration would have changed the outcome of this case, I would conclude that the error was harmless in this case. Accordingly, although I cannot join in the analytical path chosen by the majority, I concur in the result reached.(3)

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William A. Thorne Jr., Judge

1. Although not as clear as they might be, I agree with the majority that the trial court's findings sufficiently addressed "the [children's] physical, mental, [and] emotional conditions and needs." Utah Code Ann. § 78-3a-409(1)(a) (2002).

2. At least two of the children were of sufficient age to express their desires. Thus, the court was duty bound to consider their desires prior to determining whether termination was the appropriate resolution to this case.

3. It is unclear from the record whether T.W. actually preserved her issue in the trial court. However, because the outcome would not change under either a harmless error analysis or a plain error analysis, her failure to preserve is immaterial. See State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993) (stating that plain error will not be found in the absence of a demonstration of any one of three factors). I would add, however, that the trial court's failure to consider the desires of the children, at least to the extent that the statutory language is clear, is an obvious error. See generally In re M.C., 2003 UT App 429,¶28, 82 P.3d 1159 (setting out plain error test), cert. denied, 90 P.3d 1041 (Utah 2004).