In re A.R.

2017 UT App 154

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF A.R. AND M.R.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.

J.S.R.,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20160330-CA
Filed August 17, 2017

Third District Juvenile Court, Salt Lake Department
The Honorable Mark W. May
No. 1108329

Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and JILL M. POHLMAN concurred.

TOOMEY, Judge:

¶1 J.S.R. (Father) appeals the juvenile court’s order
terminating his parental rights. We reverse.
 In re A.R.

BACKGROUND

¶2 A.R. and M.R., born in March 2008 and June 2009,
respectively, are the children of C.S. (Mother) and Father. 1 In
December 2014, the Division of Child and Family Services
(DCFS) filed a verified petition alleging that the children were
“abused, neglected and/or dependent.” The petition alleged
there was a domestic disturbance between Father and Mother
and that Father was arrested for violating a protective order
between him and Mother. It also alleged Mother was using
methamphetamine, sometimes in the children’s presence. At a
shelter hearing during which both parents were present and
represented by counsel, the juvenile court gave DCFS temporary
legal and physical custody of the children.

¶3 An adjudication hearing took place in January 2015.
Father was incarcerated at that time but was transported to the
hearing. The juvenile court determined that Father had been
arrested for violating a protective order between himself and
Mother. It also determined that the children were dependent 2 as
to Father and neglected 3 as to Mother and gave custody of the
children to DCFS. It also ordered DCFS to create a plan to
address the children’s needs.

1. Mother was also a party to the termination proceedings. Her
parental rights were terminated and she filed a separate appeal.
See In re A.R., 2017 UT App 153.

2. A “dependent child” is one “who is homeless or without
proper care through no fault of the child’s parent.” See Utah
Code Ann. § 78A-6-105(11) (LexisNexis Supp. 2016).

3. A “neglected child” includes one who lacks “proper parental
care . . . by reason of the fault or habits of the parent.” See Utah
Code Ann. § 78A-6-105(27)(a)(ii) (LexisNexis Supp. 2016).

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¶4 In February 2015, the court conducted a dispositional
hearing. The State explained that the Utah Code “requires DCFS
to [provide] reasonable services to a father who’s incarcerated,
unless [the court] determines that those services would be
detrimental to the minor.” The court concluded that
reunification services would not be detrimental to the children
but acknowledged the difficulty of providing them to an
incarcerated parent, especially since Father still had ten months
until his release. The court stated:

But at this point I’m not ordering the Division to go
out and set up services at the prison, because I’m
not going to find that that’s reasonable. So the
Division will provide reasonable services, meaning
that to the extent that [Father] can take those
services . . . at the prison, [Father] should avail
[himself] of those opportunities.

When [Father] get[s] out [he] need[s] to
immediately contact the Division, and then the
Division will have to expedite placement in some
sort of domestic violence/anger management.

The court stated that any contact the children had with Father
should be approved by their therapist and concluded, “So that
will be the treatment plan for [Father]. That’s what you’ll have to
put in writing and make sure he has a copy of it.”

¶5 The court’s conclusion regarding reunification services is
further memorialized in a disposition order (the Disposition
Order). The court found that services would not be detrimental
to the children, that there were no reasonable services DCFS
could provide to Father while he was in prison, that it was
“reasonable to expedite services for [Father] if he contacts
[DCFS]” upon his release from prison, that Father should avail
himself of services offered at the prison, and that the child and
family plan for Father should be amended to include classes

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available to him in prison. Additionally, the minutes of the
disposition hearing stated, “The Court orders DCFS to provide
reasonable reunification services for the father and children.”

¶6 The State filed a verified petition for termination of
parental rights as to both parents in September 2015. With
respect to Father, the petition stated he was currently
incarcerated and listed his criminal convictions. It acknowledged
that the court had “ordered DCFS to provide reasonable
reunification services” for him, but urged the court to conclude
that DCFS had provided reasonable reunification services for
Father and to terminate his parental rights on several grounds.
The matter proceeded to trial beginning in December 2015 and
intermittently continued over eleven days through April 2016.

¶7 Father was released from prison on January 5, 2016,
between the first and second days of trial. He contacted a DCFS
caseworker the next day.

¶8 During trial, the caseworker testified she was aware that
reunification services had been ordered for Father. She explained
she had provided supervised visitation with the children but
stated she had not contacted Father’s parole officer, had not
investigated his living situation, had not inquired about which
classes Father had taken, and did not know whether he had
participated in domestic violence assessments. She testified she
had not provided a service plan to Father, and indeed, that a
plan had not yet been drafted. The State then asked the court to
determine that both parents had received reasonable
reunification services. Both the guardian ad litem and the court
expressed “grave concerns about whether the State . . . met the
first requirement of reasonable efforts concerning [Father].” The
court decided to postpone that determination and stated,
“[U]ntil [the court] determine[s] otherwise, [the court will] have
the Division continue to provide services” to both parents.

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¶9 Later in February 2016, on the fifth day of trial, the State
again raised the issue of reunification services, asking the court
to rule on whether “services were either extended or whether the
Court finds them appropriate.” The court replied that it had
“already ruled on the issue and [it had] already ruled that
reunification services continued.” But after reconsidering the
Disposition Order, the court noted “in the disposition order,
there’s something different . . . [it] really did not order
reunification services for [Father] but indicated that, once he was
released from prison . . . they could be expedited.” The court
ordered briefing on whether, “given the findings of fact and time
frames that we’re dealing with,” DCFS should “even be working
on a service plan for [Father]” and whether “reunification
services should even be offered to [Father].”

¶10 After considering the briefing from Father’s counsel, the
State, and the guardian ad litem, the juvenile court issued a
written order (the March Order) stating that the court “did not
order reunification services for [Father].” The trial concluded in
April 2016. The court determined Father was an unfit parent,
that he had neglected his children “by exposing them to
domestic violence,” and had made only token efforts to support
them. The court terminated Father’s parental rights, concluding
termination was in the children’s best interests. Father appeals.

ISSUES AND STANDARD OF REVIEW

¶11 Father raises several issues on appeal. First, during the
course of trial, the children’s foster mother testified to several
hearsay statements the children made to her, and Father
challenges the constitutionality of the statute under which those
hearsay statements were admitted. 4 Second, Father contends the

4. The juvenile court admitted the statements under Utah Code
section 78A-6-115, which states that hearsay statements from
(continued…)

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juvenile court abused its discretion in allowing the State to
amend its verified petition during trial. Third, Father contends
the court erred by “retroactively deciding it had not ordered
reunification services” in its March Order. Finally, Father raises a
due process challenge. Because we ultimately determine the
juvenile court erred in its decision regarding reunification
services and reverse its decision on this basis, we need not
analyze Father’s other claims.

(…continued)
children under eight are admissible if they are made “to a person
in a trust relationship” for “the purpose of establishing the fact
of abuse, neglect, or dependency.” Utah Code Ann. § 78A-6-
115(6) (LexisNexis 2012). Father argues this statute is
unconstitutional, in part because the legislature did not have
authority under the Utah Constitution to promulgate such a rule.
In support of his argument, Father cites In re L.M., 2013 UT App
191, 308 P.3d 553. In that case, this court acknowledged that the
Utah Constitution permits the legislature to amend the Utah
Rules of Evidence, but it also noted that “this provision explicitly
granting the legislature the power to amend the rules of
evidence was adopted one year after the hearsay exception was
promulgated.” Id. ¶ 3 n.3. Because the parties in that case did not
address what effect that fact may have had on the “propriety of
the hearsay exception,” this court declined to consider the
matter. Id. We also do not address the constitutionality of the
statute here because we reverse the juvenile court’s decision on
alternative grounds. See Clegg v. Wasatch County, 2010 UT 5, ¶ 26,
227 P.3d 1243 (“[W]here any direction we may provide . . . may
ultimately prove to be irrelevant, or where there are possible
circumstances under which we would not need to address the
constitutionality of [a statute], to do so would be to
impermissibly render an advisory opinion.” (omission and
second alteration in original) (citations and internal quotation
marks omitted)).

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¶12 In concluding that reunification services had not been
ordered for Father, the juvenile court was interpreting its own
prior order. “A court’s interpretation of its own order is
reviewed for clear abuse of discretion and we afford the district
court great deference.” Uintah Basin Med. Center v. Hardy, 2008
UT 15, ¶ 9, 179 P.3d 786. Additionally, because the juvenile court
has an “advantageous position with regard to the parties and
witnesses,” we afford it “‘a high degree of deference,’
overturning its decision only if it is ‘against the clear weight of
the evidence or leave[s] the appellate court with a firm and
definite conviction that a mistake has been made.’” In re A.K.,
2015 UT App 39, ¶ 15, 344 P.3d 1153 (stating that a juvenile
court’s decision whether to offer reunification services is within
its sound discretion) (alteration in original) (quoting In re B.R.,
2007 UT 82, ¶ 12, 171 P.3d 435).

ANALYSIS

¶13 Father contends the juvenile court erred in interpreting its
prior order. He asserts the court’s Disposition Order stated that
reunification services were ordered for Father, and he argues
every participant understood “that the Court had ordered
reunification services.” He further argues the March Order,
which stated that reunification services had never been ordered,
prejudiced his case. We begin by examining the March Order in
greater depth.

I. Additional Background

¶14 The court’s March Order stated that during trial, “[t]here
ha[d] been discussions and confusion about whether
reunification services were ordered for [Father].” This order then
summarized the court’s reasoning behind the prior Disposition
Order. At the time of the disposition hearing, In re A.T., 2013 UT
App 184, 307 P.3d 672, rev’d, 2015 UT 41, 353 P.3d 131, was
controlling authority. That case stated a juvenile court was

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required to order reunification services for an incarcerated
parent unless the court determined that services would be
detrimental to the children. Id. ¶ 13; see Utah Code Ann. § 78A-6-
312(25)(a) (LexisNexis 2012). In the March Order, the court
explained that at the disposition hearing, its analysis had
focused on (1) whether services would be detrimental to the
children and (2) what services would be reasonable. The court
acknowledged that at the disposition hearing it had determined
that services would not be detrimental to the children and that it
had determined DCFS could not provide reasonable services
while Father was incarcerated. In the March Order, the court
admitted it had made a “confusing statement” at the disposition
hearing:

So the Division will provide reasonable services,
meaning to the extent that you can take those
services . . . out at the prison, you should avail
yourself of those opportunities. . . . When you get
out you need to immediately contact the Division
and then the Division will have to expedite
placement in some sort of domestic violence/anger
management.

(Internal quotation marks omitted.)

¶15 The March Order provided this interpretation of the
“confusing statement”:

The court’s intended meaning was that it was not
ordering the Division to provide reunification
services to the father while he was in prison; the
father should avail himself of any services he could
while incarcerated; and when the father was
released from prison, the Division should help him
get into domestic violence and anger management
classes.

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¶16 The court additionally stated that “any such confusion
was cleared up by the formal written order prepared by the
Assistant Attorney General,” and quoted the following
statements from the Disposition Order:

2. Based on the Father’s expected 10 month
incarceration, there are not services that are
reasonable that The Division of Child and Family
Services can provide the father at this time. The 10
months remaining on the father’s sentence pose a
problem and an impediment to reasonable
services.

3. The Division of Child and Family Services does
not offer any services in the prison.

4. When he gets out of prison, it is reasonable to
expedite services for him if he contacts The
Division of Child and Family Services.

5. There may be services or classes that are offered
by the prison that the father could avail himself of.
If there are, the father should avail himself of those
services.

6. The child and family plan for the father should
be amended to include the father attending any
classes in domestic violence, anger management or
parenting that are available to him in prison.

¶17 The March Order concluded by stating, “At no time
during the [Disposition Hearing] did the court state that
reunification services were ordered for the father. The court did
not order reunification services for the father.” Alternatively, the
court concluded that reunification services “are a gratuity
provided to parents by the Legislature” and “because there is no
fundamental right to receive services, the decision to provide or

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deny services is in the judge’s discretion.” (Citations and internal
quotation marks omitted.)

II. Abuse of Discretion

¶18 The juvenile court abused its discretion in interpreting its
prior Disposition Order. The plain language of both the
Disposition Order and the March Order contradict the court’s
ultimate conclusion that services were not ordered for Father.

¶19 In the Disposition Order, the court stated that based on
Father’s incarceration, there were “no services that are
reasonable that [DCFS] can provide the father at this time.”
(Emphasis added.) It then stated, “When he gets out of prison, it
is reasonable to expedite services for him if he contacts [DCFS].”
(Emphasis added.) The plain language of these statements
reveals that the court did not expect DCFS to provide services
for Father while he was in prison, because such services would
not be reasonable. But the court further explained it was
reasonable for DCFS to expedite services for Father once he was
released. This indicates the court ordered expedited services for
Father once he made contact with DCFS after his release.

¶20 The court attempted to clarify its determination in the
March Order, but its clarification also reveals that at least some
services were ordered for Father. At the disposition hearing, the
court stated that DCFS “will provide reasonable services,” that
Father should avail himself of classes offered at the prison, and
that DCFS would help expedite placement in domestic violence
or anger management classes upon his release. In the March
Order, the court interpreted this statement to mean the court
“was not ordering [DCFS] to provide reunification services to
the father while he was in prison; . . . and when the father was
released from prison, [DCFS] should help him get into domestic
violence and anger management classes.” (Emphases added.)
Similar to the statements in the Disposition Order, these
statements demonstrate that some services were in fact ordered

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for Father: DCFS was ordered to help Father enroll in classes
once he was released from prison.

¶21 The March Order attempts to clarify any confusion over
whether reunification services were ordered. But both the court’s
interpretation of its oral statements at the disposition hearing
and the written Disposition Order conflict with the March
Order’s ultimate conclusion that the court “did not order
reunification services for the father.”

¶22 Next, the authority on which the court relied during the
disposition hearing suggests the court ordered some services for
Father. The March Order indicated that the juvenile court relied
on In re A.T., 2013 UT App 184, 307 P.3d 672, rev’d, 2015 UT 41,
353 P.3d 131, in determining whether reunification services were
appropriate. That case, which the court notes was the controlling
authority at the time, “requires the juvenile court to order
reasonable services to [an incarcerated parent] unless it makes an
actual determination that those services would be detrimental to
the [c]hildren.” 5 See id. ¶ 12 (noting that Utah Code section 78A-
6-312(25)(a) (LexisNexis 2012) “expressly states that ‘the court
shall order reasonable services unless it determines that those
services would be detrimental to the minor’”).

¶23 Under section 312, the juvenile court focused on a two-
part analysis: whether services would be detrimental to the

5. In re A.T. (A.T. I), 2013 UT App 184, 307 P.3d 672, was
overruled by the Utah Supreme Court in 2015. See In re A.T. (A.T.
II), 2015 UT 41, 353 P.3d 131. A.T. II issued on March 27, 2015,
after the juvenile court had relied on A.T. I in the disposition
hearing. A.T. II held that reunification services for an
incarcerated parent need only be ordered when reunification
services for that parent are consistent with the juvenile court’s
permanency goal for the child. Id. ¶¶ 14–21.

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children, and if not, what services would be reasonable. Because
the court determined services would not be detrimental to the
children, the remaining question was what services were
reasonable, not whether services would be offered at all.
Additionally, at the disposition hearing, the court indicated that
it believed services were required by the statute: “Looking at the
statute . . . services are a gratuity offered by the State unless
you’re incarcerated. Then you do get them.” Thus, the authority
the court was operating under at the time of the disposition
hearing required it to order services to an incarcerated parent if
those services were not detrimental to the children. Both the
hearing transcript and the Disposition Order indicate the court’s
understanding of this authority, which cuts against the court’s
later interpretation stating it did not order services for Father.

¶24 We also note that until February 2016, five days into the
termination trial and a full year after the disposition hearing, all
parties understood the Disposition Order to mean that the court
had ordered reunification services for Father. The court stated at
the disposition hearing that “the Division will provide
reasonable services, meaning that to the extent that [Father] can
take those services . . . at the prison, [he] should avail [himself] of
those opportunities” and that once he was released from prison,
“the Division will have to expedite placement in some sort of
domestic violence/anger management.” In the Disposition
Order, the court concluded that when Father “gets out of prison,
it is reasonable to expedite services for him if he contacts
[DCFS].” The disposition hearing minutes reflect that the court
“order[ed] DCFS to provide reasonable reunification services for
the father and children.”

¶25 In its petition to terminate parental rights, the State
acknowledged that the court had ordered reunification services,
and in his reply, Father confirmed that DCFS was ordered to
provide reasonable reunification services. In fact, one of Father’s
defenses at trial rested on the fact that the court had ordered

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reunification services but the State had not made reasonable
efforts to provide them. During trial, the State asked the court to
terminate services, and the court reiterated that it had “ordered
reunification services” and that they would continue. The
guardian ad litem also raised “grave concerns about whether the
State . . . met the first requirement of reasonable efforts”
concerning Father. See Utah Code Ann. § 78A-6-507(3)(a) (stating
that, except in specified circumstances, “in any case in which the
court has directed the division to provide reunification services
to a parent, the court must find that the division made
reasonable efforts to provide those services before the court may
terminate the parent’s rights”). Finally, the DCFS caseworker
assigned to Father’s case acknowledged that Father had the
benefit of reunification services. Each party involved in the
termination trial separately expressed the belief that services had
been ordered for Father, and the trial proceeded under that
assumption for two months.

¶26 Furthermore, in the March Order, the court indicated that
there “have been discussions and confusion about whether
reunification services were ordered” for Father. But in reviewing
the transcripts, it seems the discussions and confusion were not
in regard to whether services had been ordered, but instead,
involved what services would be reasonable given Father’s
situation.

¶27 The discussion surrounding services first arose when the
State requested a court ruling on whether “services were either
extended or whether the Court finds them appropriate.” The
State’s main contention was that Father should not be able to
request a service plan from DCFS where the twelve-month
statutory period for reunification services had already expired. 6

6. An additional complication to this issue was the fact that the
permanency hearing had been combined with the termination
(continued…)

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The guardian ad litem then directed the court’s attention to the
Disposition Order, noting the determination that services were
not reasonable while Father was incarcerated but could be
expedited once Father was released and stating, “So as we
address those questions of reasonable services, I think they
needed to be guided by . . . what the Court found and what the
Division [was] ordered to do . . . .” The court then noted the
Disposition Order stated that reunification services could be
expedited once Father was released from prison and reiterated
the State’s argument that it should not have to provide those
services because the statutory deadline for services had already
run. See Utah Code Ann. § 78A-6-314(6). Finally, the court
ordered briefing on whether “reunification services should even
be offered to [Father]” and whether DCFS should “be working
on a service plan for [Father] at this point, given the findings of
fact and given the time frames that we’re dealing with[.]”

¶28 The court noted that “at this point, no service plan has
ever been drafted, no services have ever been ordered; [the
Disposition Order] was an order that [was prospective]: When
[Father] gets out, expedite this.” But the main issue with which
the court seemed concerned was whether the State should have
to provide services considering the timing of Father’s release
from prison and the passing of the statutory deadline for
services.

(…continued)
trial. Thus, the court did not begin hearing evidence on whether
the State had made reasonable efforts to provide the parties with
services and whether services should be extended or terminated
until after the twelve-month deadline for services had already
expired. See Utah Code Ann. § 78A-6-314(6) (LexisNexis Supp.
2016) (noting a court “may not extend reunification services
beyond 12 months after the day on which the minor was initially
removed from the minor’s home”).

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¶29 The State’s motion in response to the court’s request for
briefing was the first time any party had argued that services
had never been ordered for Father. Citing authority that was
issued after the disposition hearing, the State argued the court
“was not required to order reunification services to Father
because he was incarcerated” and claimed that the court
“correctly ordered no DCFS reunification services for him.” See
A.T. II, 2015 UT 41, 353 P.3d 131. The State concluded that
ordering services “at this point is inappropriate because the
twelve-month deadline for reunification services has passed.” In
contrast, the guardian ad litem’s motion argued that the court
“should clarify that [DCFS] is no longer required to provide
services to [Father].” (Emphasis added.) The March Order
followed the lead in the State’s briefing, and instead of
discussing what services were reasonable given the timing
concerns, it discussed only whether services had been originally
ordered by the court.

¶30 The discussion that preceded the briefing and the briefing
itself demonstrate the court was trying to discern what services
should be offered to Father given the timing issues. There is an
important difference between (1) whether services were actually
ordered and (2) what services would be reasonable to offer
under the circumstances. The discussion revolved around the
latter issue, and the former issue—whether services were
originally ordered—was not raised until the State’s briefing was
submitted.

¶31 Finally, it is troubling that the confusion surrounding
reunification services manifested itself only after it became clear
the State’s case was in jeopardy. During cross-examination of the
DCFS caseworker, Father’s counsel revealed that the State had
undertaken minimal effort to provide services to Father. Both the
court and the guardian ad litem expressed “grave concerns
about whether the State . . . met the first requirement of
reasonable efforts concerning [Father].” The court asked the

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State directly, “So if I find the Division so far, based on the
information I have, has failed to make reasonable efforts
concerning [Father], what’s your position?,” which demonstrates
the court’s skepticism that the State had met its burden.

¶32 Under Utah law, if a court orders the State to provide
reunification services, it must determine that the State made
reasonable efforts to provide those services before it can
terminate parental rights. See Utah Code Ann. § 78A-6-507(3)(a)
(LexisNexis 2012). Father’s defense was based on demonstrating
that even though services were ordered, the State did not make
reasonable efforts to provide them. Father’s counsel revealed the
minimal efforts the State had made in providing services and
exposed a potentially fatal weakness in the State’s case. It was
only after this weakness was revealed that the court interpreted
its order to mean that services had never been ordered for
Father. 7

7. In the March Order, the juvenile court cited In re D.W., 2006
UT App 42U (per curiam), which states, “Because there is no
fundamental right to receive services, the decision to provide or
deny services is ‘in the judge’s discretion’ and ‘a judge may deny
services if for any reason he or she finds they are
inappropriate.’” Id. at para. 2 (quoting In re N.R., 967 P.2d 951,
955–56 (Utah Ct. App. 1998)). The court relied on this language
for an alternative basis for denying reunification services. But,
although a judge has discretion to award reunification services,
once it orders such services, it must “determine whether the
services offered or provided by the division under the child and
family plan constitute ‘reasonable efforts’ on the part of the
division.” Utah Code Ann. § 78A-6-312(12)(a)(i) (LexisNexis
Supp. 2016); see also id. § 78A-6-507(3)(a) (LexisNexis 2012) (“[I]n
any case in which the court has directed the division to provide
reunification services to a parent, the court must find that the
division made reasonable efforts to provide those services before
(continued…)

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¶33 Given the plain language of the Disposition Order and the
March Order, the authority the court relied on in the disposition
hearing, the discussion surrounding the March Order, and the
context of the matter in the entire trial, the juvenile court clearly
abused its discretion in interpreting the Disposition Order to
mean that reunification services had never been ordered for
Father. There is significant evidence that the court ordered at
least some services for Father after he was released from prison.
The juvenile court is granted great deference in interpreting its
own orders, but we are firmly convinced a mistake has been
made in this case. See Uintah Basin Med. Center v. Hardy, 2008 UT
15, ¶ 9, 179 P.3d 786; In re A.K., 2015 UT App 39, ¶ 15, 344 P.3d
1153. Though we conclude the court abused its discretion in
stating that no services were ordered, we do not comment on the
reasonableness of the services provided to Father.

CONCLUSION

¶34 Because the juvenile court abused its discretion in
interpreting its prior order, we reverse and remand this case for
a new trial.

(…continued)
the court may terminate the parent’s rights.”). The court did not
make this necessary determination and could not have
terminated reunification services without it.

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