In re M.J. and T.J. (J.J. v. State) , 2013 UT App 122 ( 2013 )

2013 UT App 122_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF M.J. AND T.J., PERSONS UNDER
EIGHTEEN YEARS OF AGE.
J.J.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20120560‐CA
Filed May 16, 2013
Fourth District Juvenile, Spanish Fork Department
The Honorable Sterling B. Sainsbury
No. 1040653
Neil D. Skousen, Attorney for Appellant
John E. Swallow and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
JUDGE CAROLYN B. MCHUGH authored this Opinion, in which
JUDGES JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN
concurred.
McHUGH, Judge:
¶1 J.J. (Mother) appeals the juvenile court’s order terminating
her parental rights in M.J. and T.J. (collectively, the Children),
claiming that there was insufficient evidence to demonstrate that
termination was in the Children’s best interests. We affirm.
In re M.J. and T.J.
BACKGROUND
¶2 Mother’s history with the juvenile court and the Division of
Child and Family Services (DCFS) dates back to 2003. By 2005,
DCFS had removed Mother’s and A.J.’s (Father) three older
children due to repeated incidents of domestic violence in their
presence. Eventually, both Mother and Father voluntarily
relinquished their parental rights to those three children, who were
later adopted by Adoptive Mother and Adoptive Father
(collectively, the Adoptive Parents).
¶3 Mother and Father subsequently had two additional
children who are the subject of these proceedings: M.J., born in
2009, and T.J., born in 2010. In August 2010, the State successfully
filed a motion and petition seeking expedited custody for the
removal of the Children, based primarily on domestic violence in
the home. After the Children were removed, DCFS contacted the
Adoptive Parents to inquire whether they wished to be foster
parents to the Children. The Adoptive Parents declined because
Adoptive Father had recently lost his job and they were not in a
financial position to take the Children.
¶4 On September 13, 2010, the juvenile court allowed the
Children to return to Mother because Father was incarcerated and
a protective order was in place. However, Father was released from
jail the following day. Father repeatedly violated the protective
order, and he and Mother resumed their pattern of engaging in
multiple incidents of domestic violence in the presence of the
Children. As a result, the juvenile court issued a warrant to take the
Children into DCFS custody on November 2, 2010.
¶5 After a permanency hearing on December 2, 2010, the
juvenile court adopted a reunification plan that required Mother to
participate in a mental health evaluation and domestic violence
counseling, and to secure employment and housing. The original
foster placement proved unsuccessful and, in July 2011, DCFS
sought a new foster arrangement for the Children. The DCFS
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caseworker (the Caseworker) again considered placing the
Children with the Adoptive Parents. However, they were not
licensed as foster parents at that time. Therefore, the Children were
placed with their current Foster Mother and Foster Father
(collectively, the Foster Parents). During the following year, the
juvenile court had numerous hearings to monitor Mother’s
progress toward reunification. At no point during these hearings
did Mother object to the Children’s placement with the Foster
Parents, or suggest that they should be placed with the Adoptive
Parents.
¶6 At a permanency hearing on December 15, 2011, the
Caseworker informed the juvenile court that Mother had been
lying about participating in domestic violence treatment. Based
upon Mother’s failure to begin domestic violence treatment and her
continued lack of stable housing, the juvenile court found that
Mother was no longer in substantial compliance with her treatment
plan and terminated reunification services. The juvenile court then
granted Mother’s counsel’s request for an assessment of Mother’s
relationship with the Children (Assessment) and instructed the
parties to agree upon a therapist.
¶7 The State filed a petition for termination of Mother’s
parental rights on January 9, 2012. At the pretrial hearing, the
parties agreed that Dr. Darin Featherstone would complete the
ordered Assessment. The matter was then continued, pending its
completion.
¶8 Dr. Featherstone completed the Assessment in March 2012.
Dr. Featherstone interviewed Mother, the Foster Parents, the
Caseworker, and the Children’s Guardian ad Litem. He also
compared the interactions between the Children and the Foster
Parents to the interactions between the Children and Mother. In
addition, Dr. Featherstone reviewed the DCFS files and other
relevant documents. Based on that information, Dr. Featherstone
concluded that (1) Mother failed in her efforts to assume a
“primary ‘parenting role’” and the Foster Parents had assumed that
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role; (2) Mother neglected the Children and failed to protect them
from harm, whereas the Foster Parents had never neglected the
Children’s needs; (3) the Children rely upon their Foster Parents for
their physical, emotional, and psychological well‐being and have
formed “critical attachments” to them; (4) separating the Children
from their Foster Parents would be psychologically and
emotionally damaging, whereas separation from Mother would
cause little, if any, psychological damage to the Children; (5)
Mother failed to provide for the Children’s basic needs, while the
Foster Parents have done so; and (6) Mother failed to substantially
or consistently contribute to the Children’s “emotional needs,
personal well‐being and financial requirements.”
¶9 At the termination trial on April 13, 2012, Father voluntarily
relinquished his parental rights in the Children. Thereafter, the
Caseworker testified extensively regarding Mother’s efforts to
comply with her service plan. He explained that she was homeless,
that she continued to struggle with attending individual therapy,
that she had lied about attending domestic violence classes, and
that she had failed to complete her domestic violence assessment
until January 2012. The Caseworker further stated that the Children
were “doing really well with [Foster Parents]” and the Foster
Parents had “consistently provided for [the Children’s] . . .
[therapeutic] needs.” Concerning the potential placement of the
Children with the Adoptive Parents, the Caseworker indicated that
they were not in a position to take the Children when they were
originally removed and that they were not a licensed placement
when the Children were moved to a new foster arrangement in July
2011.
¶10 Dr. Featherstone also testified at the termination trial. He
indicated that the Foster Parents were the Children’s primary
attachment figures, that a permanent custody and guardianship
arrangement or long‐term foster care arrangement would not be
appropriate, and that the additional disruption of placing the
Children with the Adoptive Parents would be a “risk” to their well‐
being. Additionally, Dr. Featherstone indicated that the Children
20120560‐CA 4 2013 UT App 122In re M.J. and T.J.
had no existing bond with their older siblings, who had been
adopted before the Children were born. According to Dr.
Featherstone, visitation with their older siblings could be
problematic for the Children.
¶11 Foster Mother also testified, indicating that she and Foster
Father wished to adopt the Children. Foster Mother opined that
although the Children enjoyed Mother’s visits, the Children tended
to regress in their development after visits with Mother. She
believed the Children would be fine if they lost contact with
Mother but also indicated that she would be willing to allow the
Children to have contact with their older siblings.
¶12 Next, Adoptive Mother testified, indicating that she would
like the Children to be placed in her care because it is “really
important that [the Children and the older children] know each
other and that they . . . have that opportunity to . . . grow up
together in the same home.” However, Adoptive Mother admitted
that neither she nor any of Mother’s older children had any
relationship with the Children. Adoptive Mother also indicated
that she first contacted DCFS regarding placing the Children in her
care in March 2012, and that she had not contacted DCFS
previously because she believed the Children would be reunited
with Mother.
¶13 During Adoptive Mother’s testimony, Mother’s counsel
argued for the first time that federal law mandated that DCFS
make reasonable efforts to place the Children with their biological
siblings and, if not, to document why such a placement did not
take place. The juvenile court explained that the question of the
Children’s ultimate placement was one that could be addressed
post‐termination, but Mother’s counsel disagreed. After Mother’s
counsel asked for and was granted leave to brief this issue, the
juvenile court continued the termination trial.
¶14 On April 24, 2012, Mother filed a motion to place the
Children with the Adoptive Parents, arguing that DCFS had a duty
20120560‐CA 5 2013 UT App 122In re M.J. and T.J.
to place the Children with their older siblings under DCFS
guidelines, Utah Code section 78A‐6‐312, and 42 U.S.C. § 671. The
State and the Guardian ad Litem opposed the motion, arguing that
placement is not relevant to a termination proceeding and that it
would not be in the best interests of the Children to be separated
from the Foster Parents.
¶15 When the termination trial resumed on May 3, 2012, the
juvenile court dismissed Mother’s motion for placement with the
Adoptive Parents. In its ruling, the juvenile court emphasized that
it considered the question of whether the Children should remain
in their current placement or be transferred to the Adoptive Parents
irrelevant to whether Mother’s parental rights should be
terminated. The juvenile court also expressed concern that the
motion to transfer custody was not made by anyone representing
the Adoptive Parents. The juvenile court again explained that it
could consider any competing adoption petitions at a post‐
termination review or at a pre‐adoption hearing. The juvenile court
stated,
It would be my intent in this case that if, in fact—and
that’s not a sure thing—that Mother’s parental rights
were terminated, that I take a careful look, whether
it’s in an adoption proceeding or in another
proceeding, at . . . what is in the best interest of these
[C]hildren with regard to their future.
¶16 However, in response to Mother’s request that it issue a
ruling to establish a record for appeal, the juvenile court
determined that it would not be in the Children’s best interests to
separate them from the Foster Parents because it would be
psychologically and emotionally damaging. It further found that it
was essential to maintain the nurturing relationship between the
Children and the Foster Parents. The juvenile court also noted that
there was no evidence to suggest a sibling bond existed between
the Children and their older siblings. Thus, the juvenile court
concluded that it was in the Children’s best interests for them to
20120560‐CA 6 2013 UT App 122In re M.J. and T.J.
remain in the Foster Parents’ home, even if such a placement
prevented contact with Mother in the future.
¶17 The termination trial then continued with Mother’s
testimony. Mother indicated that it was important to her that the
Children have a relationship with their older siblings and that she
felt that the Adoptive Parents, unlike the Foster Parents, would
allow her to continue to have a relationship with the Children. She
noted, however, that while the Adoptive Parents had given her
photos and information about the older children, she has had no
actual contact with them since the voluntary relinquishment of her
parental rights on September 19, 2006.
¶18 Mother’s therapist also testified, indicating that Mother had
made some progress in managing her depression and improving
her organizational skills and that termination of her parental rights
would be a “loss” for the Children. He also stated that the best
option for the Children would be to put them in an adoptive
placement where they could still have contact with Mother.
¶19 At the conclusion of evidence and arguments, the juvenile
court announced its decision to order termination based, in part, on
Dr. Featherstone’s testimony and his Assessment. In its written
termination order, the juvenile court explained that Mother
continued to expose the Children to domestic violence, despite the
loss of her older children due to similar issues, which had resulted
in DCFS twice removing the Children from the home. The juvenile
court further explained that although Mother was provided an
opportunity to demonstrate that she was able to provide a safe and
stable home, she had failed to solve her problems with
homelessness and had lied about attending her domestic violence
classes. As a result, the juvenile court terminated Mother’s parental
rights. Additionally, the juvenile court found that the Children had
“become integrated into the [Foster Parents’] family to the extent
that their familial identity is with that family” and that the Foster
Parents are “able and willing permanently to treat the [C]hildren
as members of the family.” The juvenile court concluded that, “[i]n
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consideration of the best interests of the [C]hildren,” they should
be “placed in the permanent care, custody, and control of DCFS for
placement for adoption.” Mother now appeals.
ISSUES AND STANDARDS OF REVIEW
¶20 First, Mother argues that the juvenile court’s decision not to
place the children with the Adoptive Parents violated Mother’s
constitutional right to “due process regarding her residual parental
rights.” “Constitutional issues, including questions regarding due
process, are questions of law that we review for correctness.” In re
Adoption of I.K., 2009 UT 70, ¶ 7, 220 P.3d 464 (citation and internal
quotation marks omitted).
¶21 Mother also challenges the sufficiency of the evidence
supporting the juvenile court’s conclusion that termination would
be in the Children’s best interests. “Whether a parent’s rights
should be terminated presents a mixed question of law and fact.”
In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. “[W]e will review the
juvenile court’s determination for clear error, reversing only if the
result 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., 2012 UT App 232, ¶ 14, 285 P.3d 772(second alteration in original) (quoting In re B.R., 2007 UT 82, ¶ 12);
see also Utah R. Civ. P. 52(a). In reviewing a juvenile court’s order,
this court “will not disturb the juvenile court’s findings and
conclusions unless the evidence clearly preponderates against the
findings as made or the court has abused its discretion.” In re
R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d 1118 (citation and internal
quotation marks omitted). “Additionally, we give the juvenile court
a ‘wide latitude of discretion as to the judgments arrived at based
upon not only the court’s opportunity to judge credibility
firsthand, but also based on the juvenile court [judges’] special
training, experience and interest in this field.’” In re J.D., 2011 UT
App 184, ¶ 9, 257 P.3d 1062 (quoting In re E.R., 2001 UT App 66,
¶ 11, 21 P.3d 680).
20120560‐CA 8 2013 UT App 122In re M.J. and T.J.
ANALYSIS
I. Mother’s Due Process Claims Are Unpreserved.
¶22 Mother first argues that the juvenile court’s decision not to
place the Children with the Adoptive Parents denied her “due
process regarding her residual parental rights.” The State argues
that this claim is unpreserved because Mother failed to raise any
issues implicating due process before the juvenile court. We agree.
¶23 “As a general rule, claims not raised before the trial court
may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10
P.3d 346. Furthermore, “[t]he issue must be raised to a level of
consciousness that allows the trial court an adequate opportunity
to address it.” State v. Worwood, 2007 UT 47, ¶ 16, 164 P.3d 397(citation and internal quotation marks omitted). “[T]he
preservation rule applies to every claim, including constitutional
questions . . . .” Holgate, 2000 UT 74, ¶ 11. “When a party raises an
issue on appeal without having properly preserved the issue
below, we require that the party articulate an appropriate
justification for appellate review; specifically, the party must argue
either plain error or exceptional circumstance[s].” State v. Winfield,
2006 UT 4, ¶ 14, 128 P.3d 1171 (citation and internal quotation
marks omitted). Because Mother did not raise her constitutional
claims in the juvenile court or argue plain error or exceptional
circumstances in her opening brief on appeal, we decline to reach
the merits of her due process claim. See OʹDea v. Olea, 2009 UT 46,
¶¶ 18–19, 217 P.3d 704 (“The presence of a constitutional issue does
not excuse [Mother] from complying with the preservation rules set
by this court and the Utah Rules of Appellate Procedure.”);
Coleman ex rel. Schefski v. Stevens, 2000 UT 98, ¶ 9, 17 P.3d 1122(declining to address plain error arguments raised for the first time
in the reply brief).
20120560‐CA 9 2013 UT App 122In re M.J. and T.J.
II. Termination Is in the Best Interests of the Children.
¶24 Mother next argues that the juvenile court’s best interest
analysis was based on insufficient evidence. “In order to terminate
parental rights, the juvenile court must make two separate
findings. First, it must find grounds for termination under Utah
Code section 78A‐6‐507. . . . Second, the juvenile court must find
that termination of the parent’s rights is in the best interests of the
child.” In re A.C.M., 2009 UT 30, ¶ 23, 221 P.3d 185 (citation
omitted); see also Utah Code Ann. §§ 78A‐6‐503(12), ‐506(3)
(LexisNexis 2012); In re J.D., 2011 UT App 184, ¶ 10. Here, the
juvenile court determined that both prongs of the termination
analysis had been proved by the evidence introduced at the
termination trial. Mother does not dispute the juvenile court’s
finding that there are grounds for termination of her parental rights
under Utah Code section 78A‐6‐507. See generally Utah Code Ann.
§ 78A‐6‐507 (LexisNexis 2012). Instead, Mother argues that the
evidence was insufficient to support the juvenile court’s ruling that
termination is in the best interests of the Children. In particular,
Mother claims that Dr. Featherstone’s testimony and Assessment
were insufficient to support termination and that DCFS and the
juvenile court failed to consider preferential sibling placement
under Utah Code sections 78A‐6‐312(19) and 78A‐6‐510.
¶25 Before we proceed with our analysis, we note that whether
Foster Parents or Adoptive Parents should be permitted to adopt
the Children is not at issue here. The question before us is whether
the juvenile court clearly erred or exceeded its discretion in
determining that it was in the Children’s best interests to terminate
Mother’s parental rights.
¶26 In determining whether termination of a parent’s
rights is in the best interest of a child, the juvenile
court must, at a minimum, consider “the physical,
mental, or emotional condition and needs of the child
. . . ,” as well as “the effort the parent or parents have
made to adjust their circumstances, conduct, or
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conditions to make it in the child’s best interest to
return him to his home after a reasonable length of
time.”
In re D.R.A., 2011 UT App 397, ¶ 10, 266 P.3d 844 (quoting Utah
Code Ann. § 78A‐6‐509(1) (2008) (current version at id. (LexisNexis
2012))). Although Utah Code section 78A‐6‐509 sets forth certain
factors that the juvenile court must consider, it “is not limited to”
those factors in determining whether the parental rights of a parent
who is not in physical custody of a child should be terminated. See
Utah Code Ann. § 78A‐6‐509(1). Furthermore, while “evidence of
unfitness may be probative of both factors of the termination
analysis,” “the best interest analysis includes consideration of the
impact of termination on the child, rather than simply on
evaluating whether the statutory grounds for termination have
been met.” In re J.D., 2011 UT App 184, ¶ 12, 257 P.3d 1062.
¶27 Section 78A‐6‐510 sets forth specific considerations for the
juvenile court “[i]f a child is in the custody of [DCFS] and has been
placed and resides in a foster home and [DCFS] institutes
proceedings . . . regarding the child, with an ultimate goal of
having the child’s foster . . . parents adopt him . . . .” Utah Code
Ann. § 78A‐6‐510 (LexisNexis 2012). These factors include
“whether the child has become integrated into the foster family to
the extent that his familial identity is with that family, and whether
the foster family is able and willing permanently to treat the child
as a member of the family.” Id. Section 78A‐6‐510 also requires the
juvenile court to consider additional factors, which include, but are
not limited to,
(1) the love, affection, and other emotional ties
existing between the child and the parents, and the
child’s ties with the foster family;
(2) the capacity and disposition of the child’s parents
from whom the child was removed as compared with
that of the foster family to give the child love,
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affection, and guidance and to continue the
education of the child;
(3) the length of time the child has lived in a stable,
satisfactory foster home and the desirability of his
continuing to live in that environment;
(4) the permanence as a family unit of the foster family;
and
(5) any other factor considered by the court to be
relevant to a particular placement of a child.
Id. (emphases added).
¶28 Mother argues that the evidence was insufficient on these
factors. In particular, she claims that “[Dr.] Featherstone’s
testimony did not give a full, clear picture of the situation” because
he observed Mother for only two‐and‐a‐half hours. However, Dr.
Featherstone did not rely solely on his observations of Mother. He
also interviewed the Caseworker and the Foster Parents, reviewed
Mother’s extensive DCFS file, and observed the Children with the
Foster Parents. The juvenile court also considered Mother’s
involved history with DCFS, her failure to remedy the issues that
caused the Children to be removed from her custody, and the
testimony of Mother, the Caseworker, Foster Mother, and Adoptive
Mother during the termination trial. Based on all of the evidence,
the juvenile court determined that separating the Children from the
Foster Parents would be psychologically and emotionally
damaging, while separating the Children from Mother would
create little, if any, psychological damage. The juvenile court also
found that the Children had become integrated into the foster
family “to the extent that their familial identity is with that family”
and that the Foster Parents were “able and willing permanently to
treat the children as members of the family.” After considering the
factors outlined in sections 78A‐6‐509 and 78A‐6‐510, the juvenile
court concluded that the Children did not have a significant bond
20120560‐CA 12 2013 UT App 122In re M.J. and T.J.
with Mother, but that they did have a significant bond with the
Foster Parents. Because of the juvenile court’s unique expertise in
this area and its advantaged position to weigh the evidence, we
defer to the juvenile court absent clear error or an abuse of
discretion. See T.C. v. Department of Human Servs., 2008 UT App
324U, para. 6 (mem.); In re R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d
1118. Mother has failed to convince us that either is present. See In
re J.D., 2011 UT App 184, ¶ 29 (“Where [t]he [juvenile] judge has
applied his best judgment to the matter, and [i]t falls exclusively on
the judge to decide whether or not the evidence presented rises to
the level of clear and convincing proof, we cannot conclude that
[the juvenile court’s] finding that termination of Mother’s parental
rights is in the best interest of the Children is clearly erroneous.”
(first, second, and third alteration in original) (citation and internal
quotation marks omitted)).
¶29 Nevertheless, Mother argues that the best interests
determination is erroneous because DCFS and the juvenile court
failed to investigate placing the Children with their older siblings
as required by Utah Code section 78A‐6‐312(19). See Utah Code
Ann. § 78A‐6‐312(19) (LexisNexis 2012) (“When a court conducts
a permanency hearing for a minor . . . , the court shall attempt to
keep the minor’s sibling group together if keeping the sibling
group together is: (a) practicable; and (b) in accordance with the
best interest of the minor.”). Mother also contends that the best
interests analysis is erroneous because the juvenile court failed to
apply the permanency considerations of section 78A‐6‐312(19)
when it considered the bond between the Children and the Foster
Parents for purposes of the 78A‐6‐510 factors. See id. § 78A‐6‐510
(describing specific factors the juvenile court should consider
during a termination proceeding where a child has been placed in
a foster home). Mother claims that the two statutes must be read
harmoniously and that the preferences must first be determined at
permanency hearings prior to a consideration of best interests at
termination.
20120560‐CA 13 2013 UT App 122In re M.J. and T.J.
¶30 As previously indicated, the question of whether Foster
Parents or Adoptive Parents should be permitted to adopt the
Children is not at issue in this appeal. Furthermore, at the
permanency hearing that occurred four months before the
termination trial, Mother raised no concerns about the placement
with Foster Parents rather than Adoptive Parents. At this phase of
the proceedings, the narrow issue before the juvenile court was
whether Mother’s rights should be terminated, not who should be
permitted to adopt the Children.
¶31 To the extent the sibling placement issue has any relevance
to these proceedings, it is limited to the weight the juvenile court
should give the strength of the bond between Foster Parents and
the Children. While section 78A‐6‐510(2) instructs the juvenile
court to consider the capacity of Mother to “give the child love,
affection, and guidance,” “as compared with” the Foster Parents’
capacity, an assessment that the Foster Parents are better able to do
so may be less probative of best interest if the placement with
Foster Parents must be terminated for legal reasons. See id. § 78A‐6‐
510(2). Therefore, we address whether it was reasonable for the
juvenile court to consider whether the risk that the Children would
be required to be placed with Adoptive Parents was significant. See
id. § 78A‐6‐510(4)–(5) (requiring the juvenile court to consider “the
permanence as a family unit of the foster family” or “any other
factor considered . . . relevant to a particular placement of [the
Children]” in a decision to terminate Mother’s parental rights). We
are convinced that the juvenile court did not exceed its discretion
in considering the Children’s bond with Foster Parents in its best
interests determination.
¶32 First, the Adoptive Parents have not filed any motion
seeking custody of the Children.1 Additionally, DCFS made two
1. The State and the Guardian ad Litem challenge Mother’s
standing to seek custody on behalf of a third party. We need not
(continued...)
20120560‐CA 14 2013 UT App 122In re M.J. and T.J.
attempts to place the Children with the Adoptive Parents, but they
were either unwilling or unlicensed. As a result, DCFS had to make
other arrangements. The Foster Parents have now assumed the
primary parenting role, and the Children have formed critical
attachments with them. Indeed, by Adoptive Mother’s own
account, she did not contact DCFS about the Children until March
2012, after the Children had been with the Foster Parents for nine
months.
¶33 We also reject Mother’s assertion that the juvenile
court should not have considered the bond between the Children
and the Foster Parents because sibling placement in section 78A‐6‐
312(19) requires the Children to be placed with their older siblings.
See id. § 78A‐6‐312(19). When interpreting statutory provisions,
“we first look to the plain language of the statute.” State v.
Germonto, 2003 UT App 217, ¶ 7, 73 P.3d 978. Additionally, “[w]hen
interpreting a statute, we assume, absent a contrary indication,
that the legislature used each term advisedly according to its
ordinary and usually accepted meaning.” Hutter v. Dig‐It, Inc.,
2009 UT 69, ¶ 32, 219 P.3d 918. When the plain language is clear,
no other interpretive tools are needed because our inquiry
is complete. See C.T. ex rel. Taylor v. Johnson, 1999 UT 35, ¶ 13, 977
P.2d 479 (“[I]t is elementary that we do not seek guidance
from legislative history and relevant policy considerations when
the statute is clear and unambiguous.”). Although the Utah
Code does not define what constitutes a “sibling group,” the use of
the term “group,” rather than just “sibling,” suggests an
affiliation based on more than genetics. See Merriam‐Webster,
http://www.merriam‐webster.com/dictionary/group (last visited
May 10, 2013) (defining “group” as “two or more figures forming
a complete unit in a composition” and “a number of individuals
1. (...continued)
reach this issue, however, because the question of whether Foster
Parents or Adoptive Parents should be permitted to adopt the
Children is not at issue in this appeal.
20120560‐CA 15 2013 UT App 122In re M.J. and T.J.
assembled together or having some unifying relationship”); cf. In
re Adoption of B.C.S., 793 N.E.2d 1054, 1062 (Ind. Ct. App. 2003)
(refusing to reverse trial court’s decision denying a grandaunt and
granduncle’s petition to adopt, even though the grandaunt and
granduncle had custody of the child’s sibling, where the siblings
were not considered “a typical ‘sibling group’” under the state’s
sibling placement preference statute because “[t]hey interacted
once before the death of their mother . . . [and] they are not children
who grew up in the same household for a number of years”); In re
C.L.H., No. 244877, 2003 WL 21278916, at *2–4 (Mich. Ct. App. June
3, 2003) (per curiam) (reversing a trial court’s denial of consent for
the foster parents to adopt a child where the decision was based
upon the child’s blood relationship with another prospective
adoptive parent who had earlier adopted the child’s half siblings,
noting that “the child had no emotional connection to her siblings;
thus, there [was] no sibling relationship or shared family history to
weigh against the benefit of maintaining continuity of her
placement with [the foster parents]”); In re Meridian H., 798 N.W.2d
96, 99, 107 (Neb. 2011) (holding that no constitutionally protected
sibling relationship exists between children whose parent’s
parental rights were terminated and their later‐born sibling); In re
Wesley R., 2002 N.Y. Slip Op. 40506(v), 2002 WL 31890764, at *6
(N.Y. Fam. Ct. Dec. 13, 2002) (holding that the rule implying that
siblings should be kept together is “predicated not upon biological
relationships, but upon familial relationships”).
¶34 Furthermore, section 78A‐6‐312(19) permits a placement by
its plain terms that separates a “sibling group” when it is not
“practicable” or it is not “in accordance with the best interest of the
minor.” See Utah Code Ann. § 78A‐6‐312(19). Here, on the two
occasions when DCFS had to find a foster placement for the
Children, it was impracticable to place them with Adoptive Parents
because they first declined the Children and on the second occasion
they were not licensed to receive them. Furthermore, the Children
have no bond with their older siblings because before the Children
were born, DCFS removed the older siblings, Mother voluntarily
relinquished her parental rights to them, and they were adopted by
20120560‐CA 16 2013 UT App 122In re M.J. and T.J.
the Adoptive Parents. Indeed, the record is unclear whether the
Children have ever met their older siblings. And Dr. Featherstone
opined that it may be problematic for the Children to visit with
their older siblings. Accordingly, the juvenile court could properly
conclude that it was in the Children’s best interests to place them
with the Foster Parents rather than with the Adoptive Parents and
the older children.
CONCLUSION
¶35 For all of these reasons, we conclude that the juvenile court
did not exceed its discretion in considering the bond between the
Children and the Foster Parents in assessing the best interests of
the Children. Likewise, the juvenile court’s ruling that it is in the
Children’s best interests to terminate Mother’s parental rights is
supported by the evidence and within the juvenile court’s
discretion.
¶36 Affirmed.
20120560‐CA 17 2013 UT App 122