2013 UT App 191
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF L.M., L.M., L.M., AND A.A.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
J.P.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20120520‐CA
Filed August 1, 2013
Third District Juvenile, Salt Lake Department
The Honorable Charles D. Behrens
No. 1027718
Nicole A. Salazar‐Hall, Attorney for Appellant
John E. Swallow and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGES
GREGORY K. ORME and CAROLYN B. MCHUGH concurred.
DAVIS, Judge:
¶1 J.P. (Mother) appeals the juvenile court’s termination of her
parental rights in four of her children. We affirm.
BACKGROUND
¶2 The children were removed from Mother’s home after two
particularly severe incidents of domestic violence with her
In re L.M...
paramour, M.A., in October 2011.1 Because Mother had previously
received reunification services when the Department of Child and
Family Services (DCFS) became involved with the family in 2009,
the State elected to proceed directly to the termination of Mother’s
parental rights without offering further reunification services.
¶3 Prior to the termination trial, the State notified the juvenile
court that it intended to introduce hearsay statements made by the
two oldest children (Half Sister and Older Sister) to their therapist
and their foster mother,2 pursuant to Utah Code section 78A‐6‐
115(6) (the hearsay exception), which permits such testimony
where the child in question is under eight years old and the witness
is in a trust relationship with the child, see Utah Code Ann. § 78A‐
6‐115(6) (LexisNexis 2012).3 Mother objected to the introduction of
1. Additional background information is contained in In re L.M.,
2013 UT App 190, ¶¶ 2–8.
2. The therapist testified only to statements made by Older Sister.
The foster mother testified regarding statements made by both Half
Sister and Older Sister.
3. We note that the Utah Constitution permits the legislature to
“amend the Rules of Procedure and Evidence adopted by the
Supreme Court upon a vote of two‐thirds of all members of both
houses of the Legislature.” Utah Const. art. 8, § 4. Interestingly, this
provision explicitly granting the legislature the power to amend
the rules of evidence was adopted one year after the hearsay
exception was promulgated. See Act of March 27, 1984, S.J.R. 1, § 1,
1984 Utah Laws 2d Spec. Sess. 268, 269 (repealing and reenacting
article 8 of the Utah Constitution, including adding the provisions
in section 4); Act of March 8, 1983, ch. 163, § 1, 1983 Utah Laws 664,
664–65 (adopting the hearsay exception); see also Utah Const. art. 8,
§ 4 compiler’s notes (Michie 1991) (indicating that the pre‐1984
version of article 8 contained no provisions comparable to those
now contained in section 4). However, the parties do not address,
(continued...)
20120520‐CA 2 2013 UT App 191
In re L.M...
this testimony, arguing that the hearsay exception was inapplicable
in the context of a termination proceeding and that the State had
failed to demonstrate that a trust relationship existed between the
children and the witnesses. The juvenile court determined that the
provision did apply to termination proceedings and that the State
had sufficiently demonstrated the existence of trust relationships
between the therapist and Older Sister, the foster mother and Older
Sister, and the foster mother and Half Sister. The witnesses testified
that Older Sister and Half Sister had confided to them incidents of
abuse by M.A. against both Mother and the children. The foster
mother also testified that they told her that Mother had left the
children alone and given them “knock‐out pills” so they would
sleep while she was at work and that Mother “‘spanked them a
lot.’” Other witnesses, including Mother, also testified regarding
M.A.’s violence against her.
¶4 The juvenile court found that Mother had neglected the
children, that she was an unfit and incompetent parent, and that
she was unable or unwilling to remedy the circumstances that
caused the children to be in out‐of‐home placements. The court
further found that it was in the children’s best interests for
Mother’s rights to be terminated so the children could be freed for
adoption “into a home where they will be secure, stable, loved, and
protected from neglect and abuse.” Accordingly, the juvenile court
terminated Mother’s parental rights.
ISSUES AND STANDARDS OF REVIEW
¶5 Mother first asserts that the juvenile court erred in
determining that the hearsay exception applied in the context of a
termination proceeding, both because the legislature did not intend
3. (...continued)
and we do not consider, what, if any, effect this may have on the
propriety of the hearsay exception.
20120520‐CA 3 2013 UT App 191
In re L.M...
for it to apply and because constitutional due process protections
preclude it from applying in this context. We review questions of
statutory interpretation for correctness. In re D.A., 2009 UT 83, ¶ 15,
222 P.3d 1172. We likewise review “[c]onstitutional issues,
including questions regarding due process,” for correctness. Chen
v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177.
¶6 Mother further asserts that even if the hearsay exception
were applicable to termination proceedings, the juvenile court
erred by determining that the therapist and the foster mother had
trust relationships with Older Sister and Half Sister. This
determination, which requires the juvenile court to apply statutory
law to the facts of the case, is a mixed question of law and fact. In
re L.N., 2004 UT App 120, ¶ 11, 91 P.3d 836. Accordingly, “[w]e
review the juvenile court’s [factual] findings for clear error and its
conclusions of law for correctness, affording the court some
discretion in applying the law to the facts.” Id. (citation and internal
quotation marks omitted).
¶7 Finally, Mother argues that there was insufficient evidence
to support the juvenile court’s termination of her parental rights.
“Findings of fact in a parental rights termination proceeding are
overturned only if they are clearly erroneous. Moreover, we defer
to the juvenile court because of its advantageous position with
respect to the parties and the witnesses in assessing credibility and
personalities.” In re G.B., 2002 UT App 270, ¶ 9, 53 P.3d 963
(citations and internal quotation marks omitted).
ANALYSIS
I. The Plain Language of the Statute Indicates that the Hearsay
Exception Was Intended To Apply in Both Adjudication and
Termination Hearings.
¶8 The hearsay exception provides, “For the purpose of
establishing the fact of abuse, neglect, or dependency, the court
20120520‐CA 4 2013 UT App 191
In re L.M...
may, in its discretion, consider evidence of statements made by a
child under eight years of age to a person in a trust relationship.”
Utah Code Ann. § 78A‐6‐115(6) (LexisNexis 2012). Mother
distinguishes between adjudication hearings conducted pursuant
to a petition filed under Utah Code section 78A‐6‐304, id. § 78A‐6‐
304, and termination hearings conducted pursuant to petitions filed
under Utah Code section 78A‐6‐504, id. § 78A‐6‐504. She asserts
that the relaxed admissibility standard permitted under the
hearsay exception applies only in the context of adjudication
hearings and not in the context of termination hearings.
¶9 First, she asserts that the statute itself should be interpreted
as applying only to adjudication hearings. We disagree with
Mother’s analysis. The hearsay exception falls under “Part 1
General Provisions” of the Juvenile Court Act. See Utah Code Ann.
tit. 78A, ch. 6, tbl. of contents, at 104–05 (LexisNexis 2012). Had the
legislature intended it to apply only to adjudication hearings, it
would presumably have included the rule in “Part 3 Abuse,
Neglect, and Dependency Proceedings,” which contains additional
procedural rules for such non‐termination hearings. See id. at
105–06. Furthermore, the existence of several explicit references to
termination proceedings in section 78A‐6‐115, the section
containing the hearsay exception, suggests that the section as a
whole was intended to address both adjudication and termination
proceedings. See Utah Code Ann. § 78A‐6‐115(2)(b)(ii), (4)(a),
(5)(b)(ii).
¶10 The language contained in some of those provisions further
supports this conclusion. See generally Miller v. Weaver, 2003 UT 12,
¶ 17, 66 P.3d 592 (“We read the plain language of the statute as a
whole, and interpret its provisions in harmony with other statutes
in the same chapter and related chapters.”). First, section 78A‐6‐
115(4)(a) permits the admission of “written . . . material relating to
the minor’s mental, physical, and social history and condition”
“[f]or the purposes of . . . establishing the fact of abuse, neglect, or
dependency in adjudication hearings and in hearings upon petitions
for termination of parental rights.” Utah Code Ann. § 78A‐6‐115(4)(a)
20120520‐CA 5 2013 UT App 191
In re L.M...
(emphasis added). Mother reads this provision as indicating that
termination hearings are distinct from adjudication hearings in
which “the fact of abuse, neglect, or dependency” is established; in
other words, she suggests that one establishes the fact of abuse,
neglect, or dependency only in adjudication hearings. However,
Mother’s reading is inconsistent with the grammatical structure of
the provision. The phrase “in adjudication hearings and in hearings
upon petitions for termination of parental rights” is a conjunctive
prepositional phrase, the entirety of which modifies the verb
“establishing.” Thus, this provision clearly contemplates that “the
fact of abuse, neglect, or dependency” may well be relevant in
termination hearings as well as adjudication hearings. Because the
hearsay exception applies where “the fact of abuse, neglect, or
dependency” is at issue, it stands to reason that it would apply in
the context of termination proceedings.
¶11 Furthermore, section 78A‐6‐115(5), which identifies the
deadlines for disclosing information that will be used in a hearing
under the Juvenile Court Act, specifically lists different deadlines
for termination hearings and dispositional hearings. Id. § 78A‐6‐
115(5). This suggests that the legislature had the wherewithal to
distinguish between the two types of proceedings in that context
and, thus, would have presumably done so in the subsection
containing the hearsay exception as well had it intended for that
provision not to apply to termination proceedings. For all these
reasons, it is apparent from the plain language of the statute that
the legislature intended for the hearsay exception to apply to
termination proceedings.
II. Mother Has Not Preserved Her Argument that the Hearsay
Exception Is Unconstitutional as Applied in the Context of
Termination Proceedings.
¶12 Mother also asserts that permitting someone in a trust
relationship with the child to testify about statements made by the
child in a termination hearing where the child was not available to
testify and no finding of unavailability was made violates her due
20120520‐CA 6 2013 UT App 191
In re L.M...
process right to confront witnesses. “[T]he right to raise one’s
children is a fundamental liberty interest protected by the
Fourteenth Amendment to the United States Constitution.”
Campbell v. Campbell, 896 P.2d 635, 641 (Utah Ct. App. 1995); see also
Utah Code Ann. § 78A‐6‐503(1) (LexisNexis 2012). Accordingly,
that right may not be terminated without due process of law. See In
re S.A., 2001 UT App 307, ¶ 12, 37 P.3d 1166 (citing U.S. Const.
amend. XIV (“No state shall . . . deprive any person of life, liberty,
or property, without due process of law . . . .”)); see also Utah Code
Ann. § 78A‐6‐503(2) (“The court shall provide a fundamentally fair
process to a parent if a party moves to terminate parental rights.”).
At a minimum, due process requires “adequate notice and an
opportunity to be heard in a meaningful manner.” In re S.Y.T., 2011
UT App 407, ¶ 35, 267 P.3d 930 (citation and internal quotation
marks omitted). This includes the right to confront witnesses. In re
J.B., 2002 UT App 268, ¶ 8, 53 P.3d 968; see also Utah R. Juv. P.
37A(a)(8) (permitting visually recorded testimony of a child only
where “the child is available to testify and to be cross‐examined at
trial . . . or the court determines that the child is unavailable as a
witness to testify at trial under the Utah Rules of Evidence”); cf.
State v. Nguyen, 2011 UT App 2, ¶ 16 n.9, 246 P.3d 535 (explaining
that the right to confrontation in the criminal context requires “an
opportunity to cross‐examine the declarant” and that rule 15.5 of
the Utah Rules of Criminal Procedure was accordingly amended to
“permit[] out‐of‐court statements by unavailable child witnesses
only where ‘the defendant had a previous opportunity to cross‐
examine the child concerning the recorded statement’” (quoting
Utah R. Crim. P. 15.5(a)(1))), aff’d, 2012 UT 80, 293 P.3d 236.
¶13 However, Mother failed to preserve her confrontation
argument. See generally State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d
346 (“[T]he preservation rule applies to every claim, including
constitutional questions . . . .”). Before the juvenile court, she
asserted only that “[u]nder both the United States Constitution and
the constitution of this state, a parent possesses a fundamental
liberty interest in the care, custody, and management of the
parent’s children.” See Utah Code Ann. § 62A‐4a‐201(1)(a)
20120520‐CA 7 2013 UT App 191
In re L.M...
(LexisNexis Supp. 2012). She then attached a copy of the statute
containing that language to her objection. That was the extent of
her constitutional analysis below. “[T]o preserve an issue for
appeal[,] the issue must be presented to the trial court in such a
way that the trial court has an opportunity to rule on that issue.”
438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (second
alteration in original) (citation and internal quotation marks
omitted). This requires that the issue be “specifically raised” and
supported by “evidence or relevant legal authority.” Id. (citation
and internal quotation marks omitted). Mother did not specifically
raise her confrontation argument, relying only on a generalized
assertion of a “liberty interest” in her parental rights, and did not
support her confrontation argument with relevant authority.
Accordingly, while the application of the hearsay exception to
termination proceedings may well have constitutional implications,
we decline to consider Mother’s constitutional claim for the first
time on appeal. See In re A.K., 2012 UT App 232, ¶ 23, 285 P.3d 772.
III. The Juvenile Court Did Not Err in Admitting the Hearsay
Evidence.
¶14 Mother next asserts that even if the hearsay exception can
appropriately be applied in termination proceedings, the juvenile
court erred in finding that the therapist and the foster mother had
trust relationships with the two children to whose statements they
testified. In order to determine whether a child has a trust
relationship with an individual, the juvenile court must consider
not only the type of relationship at issue—e.g., parent–child,
teacher–student—but also whether the child “in fact trusted” that
individual. In re L.N., 2004 UT App 120, ¶ 19, 91 P.3d 836. The
juvenile court in this case specifically acknowledged this
responsibility when it declined to accept the State’s bare assertion
of a trust relationship and explained that “the trust relationship . . .
is . . . something the State [would] need[] to prove . . . during the
trial before the statements would be admitted.” The court then
carefully considered the testimony of each witness regarding her
relationship with the children before permitting the witness to
20120520‐CA 8 2013 UT App 191
In re L.M...
testify to the statements and specifically admitted only the hearsay
testimony pertaining to statements made on or after the dates when
the court determined that a trust relationship was established.
¶15 The therapist testified that she had met with Older Sister
four times and that, while gaining the child’s trust was “an ongoing
process,” Older Sister was becoming “more comfortable” with her
as evidenced by her “volunteering more information [to the
therapist] about her experiences.” The therapist also testified that
Older Sister appeared to “feel[] safe and comfortable with her
foster mother,” that she always wanted her foster mother to come
into the therapy sessions with her, and that she would often “move
her chair closer to the foster mom” during therapy sessions. The
foster mother testified that on December 19, 2011, when the
children had been living with her for a little over a month, Half
Sister had come to her for comfort, confided in her about incidents
of abuse by M.A., called her “mom,” and told her that she loved
her. She also testified that Half Sister regularly confided in her and
was physically affectionate toward her. The foster mother testified
that she formed a relationship of trust with Older Sister even
sooner: “She’s a very loving girl that, almost from . . . the first
week, . . . began calling me ‘mom,’ . . . running to me, hugging me,
giving me kisses, telling me she loved me, . . . telling me if she was
hurt.” Specifically, the foster mother testified that on November 14,
2011, after a visit with Mother, Older Sister “ran up to [the foster
mother] and gave [her] a huge hug and sobbed and said that she
was probably going to have to find a new mommy,” and that the
foster mother had comforted Older Sister until she fell asleep in her
arms.
¶16 Mother does not assert that this testimony could not
evidence the trust relationships found by the juvenile court, but
only that the testimony was biased and therefore unreliable.
However, “[i]t is the province of the trier of fact to assess the
credibility of witnesses, and we will not second‐guess the [juvenile]
court where there is a reasonable basis to support its findings.”
Reed v. Reed, 806 P.2d 1182, 1184 (Utah 1991). The testimony
20120520‐CA 9 2013 UT App 191
In re L.M...
supports the juvenile court’s determination that a trust relationship
existed between the children and the foster mother and between
Older Sister and her therapist. Cf. In re L.N., 2004 UT App 120, ¶ 19
(holding that “the trial court did not err in finding that a trust
relationship existed between” a foster mother and foster child
where it found that the child “immediately became attached” to the
foster mother and was confiding in her when she made statements
admitted under the hearsay exception). Accordingly, the juvenile
court did not err in admitting the hearsay testimony.
IV. The Evidence Is Sufficient To Support Termination of
Mother’s Parental Rights.
¶17 Mother next challenges the juvenile court’s finding that she
had neglected her children and was an unfit parent who was
unwilling or unable to remedy the circumstances leading to the
children’s out‐of‐home placement. She also asserts that the juvenile
court erred in determining that termination was in the children’s
best interests. Although Mother has marshaled the evidence in
support of the juvenile court’s findings, she fails to “ferret out a
fatal flaw in the evidence,” West Valley City v. Majestic Inv. Co., 818
P.2d 1311, 1315 (Utah Ct. App. 1991). Instead, she asserts that the
juvenile court’s findings were unjustified in light of other evidence
tending to support the opposite conclusion.4 Essentially, she is
4. For example, Mother asserts that she was afraid of M.A. because
he “was highly dangerous and virtually unstoppable,” that she
received inadequate assistance to ensure her safety against M.A.,
and that she had cooperated in seeking a protective order and
completing treatment. Assuming these points may tend to support
the case against termination, they do not demonstrate that the
juvenile court’s findings were clearly erroneous in light of other
evidence indicating Mother’s unfitness. Mother’s argument
regarding the juvenile court’s best interests determination similarly
focuses on the juvenile court’s weighing of the evidence rather than
the sufficiency of the evidence supporting the juvenile court’s
(continued...)
20120520‐CA 10 2013 UT App 191
In re L.M...
“attempting to reargue the weight of the evidence on appeal.” See
State v. Lopez, 2001 UT App 123, ¶ 19, 24 P.3d 993. “[W]e have
repeatedly recognized the juvenile court’s prerogative to weigh
evidence, deferring to both the juvenile court’s opportunity to
judge credibility first hand and its special training, experience and
interest in this field.” In re R.B., 2012 UT App 37, ¶ 9, 271 P.3d 827
(citation and internal quotation marks omitted). Accordingly, we
will not reverse based on the existence of evidence weighing
against termination where “other evidence presented at trial was
sufficient to support a prima facie case for termination.” Id.
¶18 The evidence indicated that DCFS had previously been
involved with the family as a result of Mother’s substance abuse
problems and domestic violence with M.A., that she remained in
an extremely violent relationship with M.A. for several years, that
the children had witnessed at least one brutal incident of domestic
violence, that Mother had been uncooperative with authorities
attempting to protect her from M.A., and that the children were
physically and developmentally delayed and suffered from severe
dental neglect. Mother testified that M.A.’s abuse had
“traumatized” her and admitted that she could “only imagine what
it’s doing to [her] kids.” This evidence was sufficient to support the
juvenile court’s finding that Mother had neglected her children and
was an unfit parent.
¶19 The evidence also supports the juvenile court’s finding that
termination was in the children’s best interests. The children
witnessed severe domestic violence while living with Mother.5 The
DCFS caseworker testified that she did not believe Mother would
be capable of adequately caring for and protecting her children in
4. (...continued)
findings.
5. They were also allegedly subjected to physical and sexual abuse
at the hands of M.A., but the juvenile court explicitly indicated that
it did not factor the child abuse allegations into its decision.
20120520‐CA 11 2013 UT App 191
In re L.M...
the future and that available services to assist in this endeavor had
been exhausted. Three of the children have been residing with the
same foster family since removal, and the other child, Half Sister,
though removed from the foster home two weeks before the trial,
is receiving therapy and has regular contact with the foster family
and her siblings. The foster family has been able to care for the
children’s physical and emotional needs, and at least two of the
children have become strongly bonded to the foster mother and call
her “mom.” The children are in therapy and have received
necessary medical and dental treatment. The foster family is
willing to adopt the three children still residing with them and
would consider allowing Half Sister to return to the home if certain
behavioral concerns can be resolved. In light of this evidence, we
cannot say that the juvenile court clearly erred in concluding that
termination was in the children’s best interests.
CONCLUSION
¶20 We conclude that the hearsay exception, by its plain
language, applies to termination proceedings. Mother failed to
preserve her argument that applying the statute in this context
violates her constitutional right to confrontation, and we
accordingly decline to consider that argument. We also conclude
that the juvenile court did not err in determining that the therapist
and the foster mother were qualified to testify to certain statements
made by the children, in accordance with the hearsay exception, by
virtue of having developed trust relationships with those children,
as found by the juvenile court. Finally, we see no clear error in the
juvenile court’s findings that Mother neglected her children and
was an unfit parent and that termination was in the children’s best
interests. Accordingly, we affirm.
20120520‐CA 12 2013 UT App 191