J.H. v. State (In re B.H.)

J.H. v. State (In re B.H.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of B.H., V.H., D.H., and A.H.,
persons under eighteen years of age.

______________________________

J.H.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020108-CA
 

F I L E D
(May 22, 2003)
 

2003 UT App 159

 

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Third District Juvenile, Salt Lake Department

The Honorable Olof A. Johansson

Attorneys: Justin Gary Jensen, Draper, for Appellant

Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee

Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Davis, Greenwood, and Thorne.

GREENWOOD, Judge:

J.H. (Mother) appeals the termination of her parental rights, claiming the juvenile court erred (1) in determining that she neglected B.H., V.H., D.H., and A.H. (the children), and (2) in determining that the State provided diligent and reasonable services to Mother. As Mother is challenging only the court's legal conclusions, we review them for correctness. See In re C.M., 965 P.2d 590, 591 (Utah Ct. App. 1998).

First, Mother argues that the juvenile court erred in determining, pursuant to Utah Code Ann. § 78-3a-407(2) (2001) (amended in 2002, partially renumbering and adding new subsections), she had neglected her children. Mother argues that because she did not physically abuse the children, but was a victim of her husband's abusive behavior, the children suffered only "subtle neglect" by her,(1) which she asserts requires the State to demonstrate that it provided diligent and reasonable services to assist her in remedying the situation. This argument fails for two reasons.

First, this court has previously held that cases such as In re Pilling, 23 Utah 2d 407, 464 P.2d 395 (1970), cited by Mother, "predate[] the current statutory scheme." In re M.E.C., 942 P.2d 955, 959 (Utah Ct. App. 1997). Second, as stated in M.E.C, under statutes existing at the time of the present case, a duty existed "requiring the State to first provide rehabilitation services" only in limited circumstances,(2) not including when neglect is alleged. Id. at 959-60. Neither applicable case law nor statutory law required DCFS to provide services to Mother.(3)

Mother next claims that the juvenile court erred in determining that DCFS provided reasonable services to assist Mother in regaining custody of the children. Mother focuses on the fact that DCFS failed to follow the court order requiring DCFS to translate the service plans into "Czechoslovakian." Citing M.E.C., 942 P.2d at 958, Mother argues that because the service plans were not translated, she cannot be held responsible for failing to meet the terms of the plans; thus her parental rights should not have been terminated.

Although we are greatly disturbed by DCFS's failure to follow the juvenile court's instructions to translate the service plans for Mother into Czechoslovakian, we distinguish the present case from M.E.C. because the plans here were translated orally to Mother by a translator who also provided services to Mother at each stage of the court proceedings. Additionally, the juvenile court specifically found that although the language barrier may have been "a factor," Mother "understood [English] better than she spoke in English. Also, Mother's counsel established on the record that she [was] able to fully understand the proceedings, and that the language factor was not an impediment to her understanding of what was required of her."

Furthermore, pursuant to Utah Code Ann. § 78-3a-407, the juvenile court "may terminate all parental rights with respect to one or both parents if it finds any one" of a list of circumstances justifying the termination of parental rights. (Emphasis added.) In this case, aside from those grounds for termination requiring DCFS services, the juvenile court also based its termination of Mother's parental rights on neglect, token efforts, and unfitness or incompetence, none of which require DCFS to provide services. See M.E.C., 942 P.2d at 960 ("[A] juvenile court has the statutory authority to order the termination of a parent's rights based on finding abandonment, neglect, unfitness, and token efforts, regardless of whether the State provided any services, reasonable or not." (emphasis added)). Mother has challenged only the court's reliance on negligence as a ground for termination. We therefore must hold that "the juvenile court properly terminated [Mother's] parental rights."(4) Id.

Affirmed.

______________________________

Pamela T. Greenwood, Judge

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WE CONCUR:

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James Z. Davis, Judge

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William A. Thorne Jr., Judge

1. Mother cites In re Pilling, 23 Utah 2d 407, 464 P.2d 395 (1970), in which the Utah Supreme Court held that in cases of subtle abuse, defined as neglect that involves merely the "interference with the adequate social, educational, and psychological adjustment of [] children," the State must inform the parents and assist them in remedying their behavior. Id. at 399.

2. Under Utah Code Ann. § 78-3a-407 (2001) (amended in 2002, partially renumbering and adding new subsections),

only two of the statutory grounds require the juvenile court to first find that the state provided reasonable and adequate services before terminating parental rights. To terminate parental rights under section 78-3a-407(4) (the failure to remedy the circumstances which caused the out-of-home placement) and section 78-3a-407(5) (the failure of parental adjustment), the juvenile court is required to find that [the Division of Child and Family Services (DCFS)] first provided "diligent" or "reasonable" services.

In re M.E.C., 942 P.2d 955, 960 (Utah Ct. App. 1997).

3. Under current law, the juvenile court must find that DCFS provided reasonable services to a parent prior to terminating parental rights for neglect. See Utah Code Ann. § 78-3a-407(3)(a) (2002).

4. Because of this resolution we do not address Mother's assertion that the juvenile court improperly terminated her parental rights solely based on the children's best interest.