State ex rel. M.H. v. State

Associate Chief Justice NEHRING,

concurring:

T141 I cannot agree with the majority's analysis that the statutory deadline contained in Utah Code section T8A-6-809(2) was waived; and thus I respectfully dissent and concur only in the result. I do not say that the statutory deadline can never 'be waived, but I would hold that waiver is only possible if the parties and the court strictly comply with the relevant Utah Rules of Juvenile Procedure. I would hold that no waiver of the mandatory statutory deadline occurred because the juvenile court did not follow rule 54 of the Utah Rules of Juvenile Procedure, which describes the procedure for granting a continuance in a child welfare case. Moreover, the court did not actually accept any such waiver where it imposed the statutory deadline on D.H. before the sixty days were up.1

4 42 I believe that Utah Code section 78A-6-309(2)'s sixty-day deadline was in effect when the juvenile court imposed it upon D.H. The statute was not "off the table"2 both because it was not properly waived and because in any event the court did not actually accept the purported waiver. This was made clear by the court's invocation of the sixty-day deadline at the hearing on January 5, 2012-after the purported waiver but before the deadline had yet passed.3 Most importantly, I dissent because the majority's approach undermines both the Juvenile Court Act and the Utah Rules of Juvenile Procedure.

43 At a hearing on December 15, 2011, the juvenile court purported to allow D.H. to "waive" the statutory deadline contained in Utah Code section 78A-6-309(2). The following exchange took place:

The Court: The statute says I have to-we should have the trial within 60 days. The person that would be prejudiced would, like most-most prejudiced, would be your client ... and I take it that you're willing to waive the 60-day time frame? f
[D.H.'s Counsel): I am, under Rule 54(c) as well, And we would ask that we have at least four months before we have trial
[[Image here]]
The Court: I'm not sure I'm willing to go that far. |

The court then decided that "[dJue to the holiday, I'm going to give some leniency here," and made discovery due on January 5, 2012. Later, the court set the pretrial hearing for January 5 as well, in order to allow time for discovery and, apparently, the Christmas holiday. The court then offhandedly remarked, sua sponte,

*376It should be noted in the order that the father is waiving his right to have a trial within 60 days. Okay. Is there any objection to that? With the 60 days?

The attorney for the State and the Guardian ad Litem both responded, "[nlo objection."

1 44 The purpose of the Juvenile Court Act and the juvenile courts themselves has long been to protect children's welfare and act in the interest of children'4 Juvenile courts work in two primary areas: juvenile delinquency and child protection.5 In 1966, this court stated that the purpose of the "newly enacted Juvenile Court Act" was to "act in the interest of Children in various kinds of troubled circumstances ... because of the public interest in their welfare."6 By 1988, the Act had been reworded to state that the purpose of the juvenile courts was to "strive to act in the best interests of the children in all cases."7 The "best interests of the children" remains the guiding principle in juvenile court proceedings today.8 Our case law, court rules, and statutes in this area are generally organized to achieve this worthy goal. The Juvenile Court Act and the Utah Rules of Juvenile Procedure are also designed to ensure that proceedings involving children are done expeditiously so that children do not languish in "legal limbo."9 The legislature has "determined that the best interests of children and families in abuse, neglect, and dependency cases are served when judges follow strict time limits." 10 Indeed, the policy "underlying" the Child Welfare Reform Act is "one of swift permanency."11 And "[the only way to accomplish this goal is for courts to adhere to the time restrictions imposed by law."12

45 Part three of the Juvenile Court Act governs abuse, neglect, and dependency proceedings, and thus governs this child abuse proceeding.13 It contains various deadlines that apply in these proceedings.14 One of those deadlines is contained in Utah Code section 78A-6-809, which provides a time limit for the final adjudication in a child abuse proceeding. The statute states simply that "the final adjudication hearing shall be held no later than 60 calendar days from the later of: (a) the date of the shelter hearing; or (b) the filing of the petition."15 The language of this statutory deadline is *377mandatory,. This is because the word "shall" is generally "presumed mandatory."16 When interpreting a statute, we assume that terms are "used advisedly" and give them the "interpretation and application which is in accord with their usually accepted meanings."17 We do this because "[olnly by this construction is legislative intent followed to carry out the purposes of the statutes in a manner which is consistent with their language."18 [Slince 'shall, a word with a usually accepted mandatory connotation," is used in Utah Code section 78A-6-809(2), it "must be interpreted strict, ly as [it is] plainly written."19 The majority ignores the plain language of Utah Code section 78A-6-809 by concluding that where the parties merely agree to disregard the statutory deadline, it is "off the table."20

¶ 46 The Utah Rules of Juvenile Procedure govern all procedures in the juvenile court and are "intended to provide a just, speedy, and efficient determination" of those cases.21 Rule 54 of the Utah Rules of Juvenile Procedure governs continuances in all child welfare proceedings. It states that in no event may a court grant a continuance "absent unavoidable cirenmstances ... in any child protection case" if that continuance will "adversely affect the interest of the child or cause a hearing to be held later than child welfare timelines established by statute."22

{47 Under this rule, Utah Code section 78A-6-809's sixty-day deadline can only be sidestepped if (1) there is a showing that the noncompliant continuance is required by "unavoidable cireumstances," (2) there is a showing that the continuance will not "adversely affect the interest of the child," and (8) in a sexual abuse case, if the court makes a written finding or written minute entry that "include[s] the reason(s) for the continuance."23

148 In sum, when read together, Utah Code section 78A-6-809(2) and Utah Rule of Juvenile Procedure 54(c) and (d) mandate that the sixty-day time limitation for the final adjudication hearing in an abuse proceeding can be waived in a sexual abuse case only when the court makes a written finding containing a consideration of the best interests of the child and the existence of "unavoidable cireamstances" that justify the continuance.24 Yet the majority characterizes: the court's failure to follow the dictates of the Rules of Juvenile Procedure as a "technical deficiency" and a "harmless" error.25 Because the Rules of Juvenile Procedure are designed to protect the best interests of the children, "harmless error" is not the appropriate standard to use. Even more strangely, the majority writes that the parties' oral agreement to ignore the statutory deadline "could easily qualify as the practical equivalent of a 'written finding by the court.'"26 I fail to see how an oral agreement is "equivalent" to a written finding, as it lacks the most important element of a written finding-that of being written. Moreover, the rule does not allow for a written finding or its "practical equivalent." It requires a written finding and a consideration of the best interests of the child. Neither happened here.

€{49 The majority does away with rule 54(c)'s requirement that a continuance in a child welfare proceeding may only be granted only if the court considers the best interests of the children. According to the majority, if the Guardian ad Litem simply agrees to ignore mandatory statutory deadlines, this *378"easily establishes that the continuance would not 'adversely affect'" the children's interest.27

150 While the "role of the guardian ad litem is to represent the interests of the child,"28 we have never said that the Guardian ad Litem's imprimatur is the final word on the child's best interests.29 If that were so, the court would never be required to make a finding concerning a child's best interests-it would merely need to consult the Guardian ad Litem. This is of course not true.30 The juvenile court's primary task is to ensure the best interests of the child, which is why the court is regularly asked to make findings on that point. The Guardian ad Litem's judgment cannot stand in for the court's judgment. The juvenile court's very reason for being is to "act in the best interests of the minor in all cases."31

I 51 The majority's approach does a great disservice to the plain language of the statute and our Rules of Juvenile Procedure. Indeed, the majority's new rule renders meaningless Utah Rule of Juvenile Procedure 54's clear directives for granting continuances in child welfare cases-specifically, in situations where the attorney for the State, the Guardian ad Litem, and the attorney for the parent merely agree, without more, that they would like to ignore the sixty-day deadline that is set out in mandatory terms in Utah Code section 78A-6-809(2). This is not allowed under the rule or the statute. The majority is apparently motivated by a desire to avoid reaching the constitutional question presented by D.H. This is not a persuasive justification for ignoring both the mandatory language of the statute and the clear procedures outlined in rule 54.32

52 The statute and the Rules of Juvenile Procedure were enacted to serve the best interests of children and ensure that child welfare proceedings do not linger. I believe the majority's approach has troubling implications for future child welfare cases because it ignores the plain language of both the statute and the rules and creates an unacceptably loose standard for the waiver of mandatory child welfare deadlines. Again, these deadlines were created to protect children. They were not created to yield to the convenience of the State, the court, or the Guardian ad Litem's office. In the rare case, like this one, where waiver of the strict time deadlines would be justified, the court must undertake the proper analysis under rule 54, which includes the requirement that the court consider the children's best interest before granting the continuance. Our clear, strict statutory and procedural rules cannot be so easily disregarded, particularly where a child's interest in expedited legal proceedings is implicated.

[ 53 Though I do not agree that the sixty-day deadline was properly waived here, I would hold that waiver of the deadline is possible when the court follows the procedure dictated by rule 54.33 This procedure is *379particularly important given the unequivocal, mandatory language of the statute.

154 The majority simultaneously claims that its decision to reverse "stems from a straightforward assessment of the procedural history of the case," but the relevant procedural rule is "not properly before us" and "not properly implicated."34 This is inconsistent. It matters not if an assessment of procedural history is "straightforward" if that assessment ignores a clear rule of procedure. Moreover, I was not aware of any "straightforward assessment" exception to our preservation rule; certainly not one that allows us to conjure new law out of thin air.35 We have never held that mandatory child welfare deadlines can be informally waived by a joint agreement of the parties, and especially not without any finding on the record concerning the best interest of the children.

155 The significance of the purported waiver was an issue that was raised for the first time on appeal. That explains why "no party ... ever challenged" the "viability" of the waiver.36 As the majority points out, "[al matter unpreserved is a matter not properly presented."37 "Preservation rules are an essential part of our adversary system," in part because they "assure[ ] fairness by exempting a party from the inequity of having to defend on appeal on a ground that it had no opportunity to address at trial."38 At no point below did any party make any argument concerning the significance of the purported waiver. Nor is any argument concerning waiver found in the State's brief on appeal. The Guardian ad Litem was the only party to raise the "waiver" theory that the majority adopts, and she did so for the first time on appeal. Moreover, her briefing on that point was barely adequate and consisted of a few bare, conclusory sentences. D.H. responded to this argument in an equally curt fashion in his reply brief.39

156 Because the majority has decided to reverse on an unpreserved ground, it finds itself in a no-man's land and eannot claim that a directly relevant rule may be ignored.40 And even if the waiver theory had been preserved or were a ground for reversal as part of an "assessment of the procedural history,"41 rule 54 unquestionably applies to all child welfare continuances, and is thus squarely implicated.42 The majority cannot arbitrarily choose which procedures are relevant to its sua sponte "assessment of the procedural history" as a ground for reversal. To the extent that the waiver theory was raised by the parties on appeal-which is to say, barely-so too was rule 54 raised.43 *380And neither of these arguments was preserved below.44 Accordingly, I respectfully disapprove of the majority's lopsided deployment of the preservation rule and concurrent failure to acknowledge the importance and relevance of rule 54.

157 The majority ignores the plain language of Utah Code section 78A-6-809(2) and our directly relevant, duly adopted Rules of Juvenile Procedure. The deadlines contained in the Juvenile Court Act and the procedures contained in the Utah Rules of Juvenile Procedure are designed to protect children and to ensure that child welfare proceedings do not linger. I cannot agree with the majority that the parents, the State, and the Guardian ad Litem's offhand agreement to waive the deadlines is sufficient to justify the disregard of those deadlines. I thus respectfully dissent from the majority's analysis and concur in the result only.

. Though the juvenile court purported to accept a "waiver" of the statutory deadline on December 15, 2011, when the parties returned on January 5, the juvenile court denied D.H.'s request for more time, reasoning that "the statute doesn't give [D.H.] more time, the statute says we have to try these cases within 60 days." Based on the date the petition was filed, the sixty days had not yet passed-that would happen over a week later, on Friday, January 13, 2012.

. Supra % 33.

. The fact that the court fook up and addressed D.H.'s constitutional challenge to its ruling imposing the sixty-day deadline shows that the court itself recognized that the deadline had not in fact been waived. The court's imposition of the deadline on January 5 led directly to the court's decision to rule on D.H.'s constitutional challenge to the statute. Thus, I do not agree that the court merely "assessed a hypothetical question" and gave an "improperly advisory" opinion. Supra 1934, 35. Instead, it is clear from the court's actions that there was, in fact," no waiver.

. See 1905 Utah Laws 182 (codified at Uran Rev. Stat. § 16-9-720x to 720x22 (1907)); Urax Copzr § 55-10-1 (1953); id. § 78-3a-1 (1977) id. § 78-3a-1 (1992); id. § 78A-6-102(5)(c), (g) (2013).

. In the early versions of the Act the purpose was twofold: to serve both the "[child's] welfare" and "the best interests of the state." 1965 Utah Laws 595 (codified at Cope § 55-10-63 (Supp. 1965)); Ura Cope § 78-3a-1 (1977).

. Anderson v. Anderson, 18 Utah 2d 89, 416 P.2d 308, 309-10 (1966).

. 1988 Utah Laws 322 (emphasis added) (codified at Uran Cope § 78-3a-1 (Supp.1988)).

. Ura Cope § 78A-6-102(5) (2013) ("The purpose of the court under this chapter is to: ... (g) consistent with the ends of justice, act in the best interests of the minor in all cases and preserve and strengthen family ties.").

. Office of the Guardian ad Litem ex rel. S.M. (Office of the Guardian ad Litem v. H.M.), 2007 UT 21, ¶ 50, 154 P.3d 835 (quoting C.H. v. State (State ex rel. J.H.), 2006 UT App 205, ¶ 7, 138 P.3d 70); C.M.F v. State (State ex rel. A.F.), 2007 UT 69, ¶ 5, 167 P.3d 1070; see also State ex rel. J.H., 2006 UT App 205, 19 n. 2, 138 P.3d 70 ("[Rlequirements of [the child welfare statutes] . are designed to end a child's legal limbo.... Further, there are mandatory dictates within the [child welfare] statute as to what actions the court may take ... and strict compliance with these requirements is necessary." (internal quotation marks omitted)).

. Office of the Guardian Ad Litem ex rel. S.C. v. Anderson, 1999 UT App 251, ¶ 15, 987 P.2d 611.

. Id. 113 (internal quotation marks omitted).

. Id.

. See generally Uran Cope §§ 78A-6-301 to 78A, 6-324.

. See, eg., id. § ("[TJhe final adjudication hearing shall be held no later than 60 calendar days from the later of: (a) the date of the shelter hearing; or (b) the filing of the petition."); id. § 78A-6-311(2) ("The dispositional hearing may be held on the same date as the adjudication hearing, but shall be held no later than 30 calendar days after the date of the adjudication hearing."); id. § 78A-6-313 ("If reunification efforts have been ordered by the court, a hearing shall be held no more than six months after initial removal of a minor from the minor's home. ...").

. Id. § 78A-6-309(2).

. Bd. of Educ. v. Salt Lake Cnty., 659 P.2d 1030, 1035 (Utah 1983); accord S.C. v. Anderson, 1999 UT App 251, ¶ 10, 987 P.2d 611; A.B. v. Christean, 938 P.2d 811, 815 (Utah Ct.App.1997) super seded by statute on other grounds, Uta Cope § 78-3a-312(6)(c) (2002), as recognized in F.C. Jr. v. State (State ex rel. F.C. III), 2003 UT App 397, ¶ 2 n. 1, 81 P.3d 790.

. Bd. of Educ., 659 P.2d at 1035.

. Id.

. Id.

. Supra 133.

. Urag R. Juv. P. 1(a)-(b).

. Id. 54(c).

. Id. 54(c)-(d); see also S.C. v. Anderson, 1999 UT App 251, ¶ 16, 987 P.2d 611.

. Uran R. Juv. P. 54(c); see also S.C. v. Anderson, 1999 UT App 251, ¶ 16, 987 P.2d 611.

. Supra 131 & n. 6.

. Supra 131.

. Supra 131 n. 6.

. M.W. v. A.N. (State ex rel. A.C.M.), 2009 UT 30, ¶ 20, 221 P.3d 185.

. See generally Office of the Guardian ad Litem ex rel. S.M., 2007 UT 21, 154 P.3d 835 (upholding the juvenile court's decision to return mother's eleven children to her custody despite Guardian ad Litem's appeal of that order).

. See, eg., V.D. v. State (State ex rel. J.D.), 2011 UT App 184, 124, 257 P.3d 1062 (emphasizing juvenile court's duty to make a finding concerning the children's best interest before terminating parental rights because "the legislature has deemed that 'the welfare and the best interest of the child [are] of paramount importance' ... and has mandated that the juvenile court ... mak{[e] that determination." (first alteration in original) (citation omitted)); Office of the Guardian ad Litem ex rel. S.M., 2007 UT 21, 154 P.3d 835.

. Urax § 78A-6-102(5)(g).

. Though it is true that we have "a duty to construe statutes to avoid constitutional conflicts," State v. Mooney, 2004 UT 49, ¶ 12, 98 P.3d 420 (internal quotation marks omitted), this canon of constitutional avoidance "is not a method of adjudicating constitutional questions by other means." Clark v. Martinez, 543 U.S. 371, 381, 125 S.Ct. 716, 160 LEd.2d 734 (2005). Constitutional avoidance "is a tool for choosing between competing plausible interpretations of a [rule or] statutory text." Id. It is not a justification for avoiding a constitutional challenge by any means necessary simply because we would prefer not to tackle difficult constitutional questions.

. See, eg., S.C. v. Anderson, 1999 UT App 251, ¶ 16, 987 P.2d 611.

. Supra %27 n. 4.

. Patterson v. Patterson, 2011 UT 68, ¶¶ 13, 16, 20, 266 P.3d 828 (discussing the limited exceptions to the general preservation rule, which include "exceptional circumstances" and "plain error" and explaining that it "generally would be unfair to reverse a district court for a reason presented first on appeal" but holding that nevertheless the court has a duty to consider all controlling authority that is "necessary to a proper decision").

. Supra T1 30-31.

. Supra 130.

. In re Baby Girl T, 2012 UT 78, ¶ 42, 298 P.3d 1251 (Lee, J., dissenting); accord Patterson, 2011 UT 68, ¶ 16, 266 P.3d 828 ("Notions of faimess therefore dictate that a party should be given an opportunity to address the alleged error....").

. In his reply, D.H. asserted that the district court in fact "refused to accept" any purported waiver when it applied the sixty-day deadline on January 5, 2012.

. See supra 129 n. 4 (describing the purported waiver as an "element of the context in which we review the decision{ ]," but failing to explain why rule 54 is not similarly an "element of the context").

. Id.

. Patterson, 2011 UT 68, 120, 266 P.3d 828 (noting that the court must consider controlling law when it is "necessary to a proper decision").

. In her brief on appeal, the Guardian ad Litem argued that D.H. "invited error," when he "declined to invoke or comply with Utah R. Juv. P. 54, which governs child welfare continuances." D.H. responded to the Guardian ad Litem's rule 54 argument by stating that he "did specifically invoke and comply with" rule 54, but emphasized that because he believed the rule strictly prohibited a court from granting a continuance that would cause a hearing to be held "later than child welfare timelines established by statute," Utag R. Juv. P. 54(c), he had focused on his challenge to the statute itself.

. Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828 (explaining that the preservation rule is designed to ensure "judicial economy and fairness").