2017 UT App 57
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF B.J.V.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
B.A.V.,
Appellant,
v.
STATE OF UTAH AND B.J.,
Appellees.
Per Curiam Decision
No. 20170094-CA
Filed March 30, 2017
Third District Juvenile Court, Salt Lake Department
The Honorable Julie V. Lund
No. 1133541
Sheleigh A. Harding, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee State of Utah
Julie George, Attorney for Appellee B.J.
Martha Pierce, Guardian ad Litem
Before JUDGES STEPHEN L. ROTH, MICHELE M. CHRISTIANSEN, and
DAVID N. MORTENSEN.
PER CURIAM:
¶1 B.A.V. (Mother) appeals from an order awarding
permanent custody and guardianship of B.J.V. to his biological
and legal father B.J. (Father) and terminating juvenile court
jurisdiction. We affirm.
¶2 “[T]o overturn the juvenile court’s decision[,] [t]he result
must be against the clear weight of the evidence or leave the
In re B.J.V.
appellate court with a firm and definite conviction that a mistake
has been made.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (third
alteration in original) (citation and internal quotation marks
omitted). We “review the juvenile court’s factual findings based
upon the clearly erroneous standard.” In re E.R., 2001 UT App 66,
¶ 11, 21 P.3d 680. A finding of fact is clearly erroneous when the
court “failed to consider all of the facts or considered all of the
facts and its decision was nonetheless against the clear weight of
the evidence.” In re B.R., 2007 UT 82, ¶ 12. Therefore, “[w]hen a
foundation for the court’s decision exists in the evidence, an
appellate court may not engage in a reweighing of the evidence.”
Id.
¶3 At the adjudication hearing held in September 2016,
Mother entered admissions to the State’s amended petition
pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure.
The juvenile court adjudicated B.J.V. to be a neglected child as to
Mother because he lacked proper parental care by reason of the
faults or habits of Mother. The court adjudicated B.J.V. to be a
dependent child as to Father because he was “without proper
care through no fault of” Father. The juvenile court set a primary
permanency goal for B.J.V. of reunification with Mother and a
concurrent permanency goal of guardianship with Father. The
court placed B.J.V. in the temporary custody of Father with
protective supervision services and took Father’s motion for
permanent custody under advisement. The written adjudication
order “set the matter for review on December 8, 2016 to measure
mother’s progress and again address the motion for an order to
place [B.J.V.] in the Permanent Custody and Guardianship of
[Father].”
¶4 At the adjudication hearing, Mother stipulated to a
service plan requiring her to comply with random drug testing,
to complete substance abuse, mental health, and domestic
violence evaluations, and to complete any recommended
treatment. Mother also stipulated that she could be ordered to
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In re B.J.V.
observe drug court. At the December 8, 2016 review hearing, it
was undisputed that Mother left her residential substance abuse
treatment program and did not participate in drug court, that
she had not visited B.J.V. since August 2016, and that she still
had outstanding warrants. Mother argued that she was working
to return to residential treatment and requested another hearing
in one month to review her progress. The State and the Guardian
ad Litem (GAL) joined in Father’s renewed motion for
permanent custody and guardianship. During the hearing,
Father’s counsel made statements regarding B.J.V.’s condition
when he came into Father’s temporary custody. Mother’s
counsel argued that an evidentiary hearing should be set as a
result of this new information. The juvenile court denied the
request for an evidentiary hearing.
¶5 The juvenile court granted Father’s motion for permanent
custody and guardianship and terminated protective supervision
services and juvenile court jurisdiction over B.J.V. After reciting
that Father’s renewed motion for permanent custody had been
taken under advisement at the September 29, 2016 adjudication
hearing, the juvenile court made findings based upon
“[u]ndisputed facts detailed in the court report/progress
summary, provided to all counsel prior to the hearing.” The
court found those undisputed facts were that Mother left
residential substance abuse treatment on November 1, 2016, and
that she denied she had a substance abuse problem, wanted to
opt out of Family Dependency Drug court, took a month to meet
with the evaluator after being ordered to do so, missed a drug
test, and “had not visited with the child for months having just
recently made two scheduled visits prior to court.” The report
provided to the juvenile court stated
that since being placed with his father, [B.J.V.] was
enrolled in an after-school program, [and] the
father ha[d] hired a tutor to help his son as he is so
far behind in school. He is catching up on grade
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In re B.J.V.
level work, he is playing sports in extra-curricular
activities, the home is clean, meets safety standards
and the case worker had no concerns about the
parent child relationship or the care [B.J.V.] was
receiving from his father.
The court found that Father and B.J.V. were bonded, the child
was cared for appropriately, and Father was obtaining services
to meet the child’s needs.
¶6 Mother claims that the juvenile court erred in denying her
request for an evidentiary hearing. This argument relies upon a
superseded rule and case law interpreting it. See In re P.D., 2013
UT App 162, ¶ 6, 306 P.3d 817 (discussing a previous version of
Utah Rule of Juvenile Procedure 47 requiring the juvenile court
to schedule an evidentiary hearing “if the modification is
objected to by any party prior to or in the review hearing”). At
all times relevant to this case, current rule 47(b)(3) of the Utah
Rules of Juvenile Procedure has stated,
The court shall not modify a prior order in a
review hearing that would further restrict the
rights of the parent, guardian, custodian or minor
if any party objects to the modification. Upon
objection, the court shall schedule the matter for a
motion hearing and require that a motion be filed
with notice to all parties. A party requesting an
evidentiary hearing shall state the request in the
motion to modify the prior order or the response to
the motion.
Utah R. Juv. P. 47(b)(3).
¶7 In this case, the juvenile court took Father’s motion for
permanent custody and guardianship under advisement at the
adjudication hearing after Mother objected to the relief
requested. The court specifically set a review hearing to consider
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In re B.J.V.
Father’s motion and review Mother’s progress. Mother did not
request an evidentiary hearing at any time before the review
hearing scheduled for December 8, 2016, as current rule 47(b)(3)
would require. Mother claimed that new information from
Father’s counsel’s arguments at the review hearing entitled her
to an evidentiary hearing. However, the juvenile court’s ruling
focused narrowly on the undisputed facts related to Mother’s
lack of any significant progress since the adjudication hearing.
Thus, even if the evidentiary hearing requirement discussed in
In re P.D. had applied, so would its requirement that Mother
demonstrate prejudice from the failure to provide such a
hearing. And here Mother has not demonstrated that she was
prejudiced by the lack of an evidentiary hearing on the narrow
issues raised by Father’s counsel’s arguments. See In re P.D., 2013
UT App 162, ¶ 12 (requiring a demonstration that “had an
evidentiary hearing been granted, the likelihood of a different
outcome [would have been] sufficiently high as to undermine
our confidence in the [judgment]” (alterations in original)
(citations and internal quotation marks omitted)).
¶8 Mother also claims that the juvenile court erred in
granting permanent custody and guardianship to Father because
the evidence was insufficient to demonstrate that the permanent
custody award was in B.J.V.’s best interest. Mother does not state
any disagreement with the juvenile court’s findings regarding
the suitability of Father’s home or the efforts Father has made to
address B.J.V.’s needs. Although couched in terms of B.J.V.’s best
interest, Mother’s argument is that she is entitled to more time to
reunify with B.J.V. despite making no significant progress since
his removal. Reunification services can be terminated at any
time. See Utah Code Ann. § 78A-6-312(14)(a) (LexisNexis Supp.
2016) (“If reunification services are ordered, the court may
terminate those services at any time.”). In addition, Mother’s
parental rights to B.J.V. have not been terminated so any
argument regarding severance of the parent–child relationship is
premature. At best, her argument is simply that she should have
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In re B.J.V.
more time to seek reunification, but she has failed to demonstrate
any level of progress that would support her claims.
¶9 Given the undisputed facts regarding Mother’s lack of
progress up to the time of the review hearing and the lack of any
dispute regarding the suitability of Father’s care, this court
concludes that “a foundation for the court’s decision existed in
the evidence” and it will not be disturbed. See In re B.R., 2007 UT
82, ¶ 12, 171 P.3d 435. Accordingly, we affirm.
20170094-CA 6 2017 UT App 57