In re P.J.R. , 2023 UT App 27 ( 2023 )

2023 UT App 27THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF P.J.R.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
C.S.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20220264-CA
Filed March 23, 2023
Sixth District Juvenile Court, Manti Department
The Honorable Brody L. Keisel
No. 1097003
Emily Adams, Freyja Johnson, and Caleb Proulx,
Attorneys for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.
HARRIS, Judge:
¶1 C.S. (Mother) appeals an order terminating her parental
rights regarding P.J.R. (Child). But Mother does not contest the
juvenile court’s findings that there were grounds for termination
and that termination was in Child’s best interest. Instead, Mother
limits her appellate challenge to the court’s determination that the
Division of Child and Family Services (DCFS) made reasonable
efforts, during the course of the case, toward reunification of
In re P.J.R.
Mother and Child. Specifically, she claims that the court applied
an incorrect evidentiary standard in arriving at its reasonable
efforts determination and—alternatively—challenges the merits
of that ultimate determination. We find Mother’s arguments
unpersuasive, and therefore affirm.
BACKGROUND
¶2 In 2019, DCFS filed a petition seeking protective
supervision of Mother’s five children, including Child. In the
petition, DCFS alleged that Mother had abused and neglected
Child, and specifically alleged (among other things) that, during
an incident in the waiting room of a family counseling center,
Mother “grabbed [Child] by the back-collar area of his shirt in
such a manner that it restricted his ability to breathe and caused
him to choke,” and then “shoved his face into the corner with
force.” Even after Child “told Mother he was having difficulty
breathing and that Mother was hurting him,” Mother “did not let
up on his shirt or the forcing of his face into the corner.” At an
ensuing shelter hearing, the juvenile court placed all five children
in the temporary custody of DCFS.
¶3 Mother responded to the petition by admitting some of the
State’s allegations and, with respect to the rest, neither admitting
nor denying them; this response resulted in the court deeming the
State’s allegations true. See Utah R. Juv. P. 34(e) (“A respondent
may answer by admitting or denying the specific allegations of
the petition, or by declining to admit or deny the allegations.
Allegations not specifically denied by a respondent shall be
deemed true.”). On the basis of Mother’s responses, the court
adjudicated Child as abused and neglected by Mother. Mother
appealed that adjudication order, and this court affirmed it but
remanded for additional proceedings on issues not material to
this appeal. See In re C.M.R., 2020 UT App 114, ¶ 33, 473 P.3d 184.
¶4 Following adjudication, the court issued a disposition
order in September 2019, setting the primary permanency goal as
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reunification and the concurrent permanency goal as adoption. In
connection with setting reunification as the primary permanency
goal, the court adopted a service plan—prepared with Mother’s
input and cooperation—and found, “by clear and convincing
evidence,” that fulfillment of the plan’s terms would “constitute
reasonable efforts on the part of . . . DCFS to finalize the
permanency goals,” including reunification. Among other things,
the plan required DCFS to “follow up with [Child]’s therapist to
monitor his progress in therapy,” to follow up with Mother’s
therapist regarding her treatment, to promptly communicate with
Mother, to “assess [Mother]’s increase in parenting skills during
supervised parent-time,” and to ensure that Child’s living,
academic, and health needs were being addressed.
¶5 As the case progressed, friction arose between Mother and
the DCFS caseworker. As Mother showed at trial, the conflict
became apparent at one supervised visit between Mother and her
daughters; in a “heated interaction,” the caseworker cut the visit
short after observing Mother say certain things to her daughters
that the caseworker deemed inappropriate. On a later occasion,
the caseworker sent a text message to the guardian ad litem
lamenting the fact that Mother received visitation with one of her
daughters at all, noting that “[t]hese kids have been the victims of
severe physical and emotional abuse for years.” Eventually,
Mother refused to communicate with the caseworker (other than
by text message) without her attorney present. Even the State’s
attorney noticed that the caseworker was having a hard time
keeping her “emotions out of this case,” and admonished the
caseworker to be more circumspect in her communication.
¶6 Mother also came to believe that the caseworker was
interfering with family therapy during the course of the case.
Under the service plan, family therapy involving Mother and
Child was to begin when Mother’s and Child’s therapists both
recommended it, and the caseworker was supposed to follow up
with both therapists. In December 2019, the caseworker
apparently told Mother that Child’s therapist did not recommend
face-to-face visits when, in fact, the caseworker had not yet
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communicated with Child’s therapist. The first documented
communication between the caseworker and Child’s therapist
about family therapy was in June 2020, about nine months after
the service plan was put in place. However, some evidence shows
that the caseworker had “reached out to [Child]’s therapist
regularly throughout the case,” and that as of May 2020, Child’s
therapist did not “recommend family therapy with [Mother] at
this time.” But when the caseworker was asked at trial whether
she communicated with Child’s therapist prior to June 2020, she
stated that she did not recall. When the caseworker did reach out
to Child’s therapist inquiring about family therapy, the therapist
responded that before family therapy would be recommended,
Mother would need to take a parenting course, continue her own
therapy, and “take[] accountability for her actions and . . . learn[]
. . . to regulate her own emotions.”
¶7 Shortly thereafter, Mother complained that the caseworker
might be attempting to influence the therapists away from
holding family therapy, and the caseworker then told the
therapists that the court had instructed her to tell them that they
were to communicate with each other (rather than through the
caseworker as an intermediary) about “whether family therapy
with [Mother] and [Child] would be in [Child’s] best interest.” By
this point, Child’s therapist had come to believe that family
therapy was now appropriate, and expressed interest in
beginning the process. The caseworker said she would follow up
to see whether Mother and Child were making progress from the
therapy, but—apparently in response to Mother’s request that
DCFS “back off”—she stated that she would “not be a part of the
scheduling process.”
¶8 In August 2020, the caseworker learned that criminal
charges had been filed against Mother, and informed the
therapists of this fact. Mother believes that the caseworker
implied that the conduct in question had occurred recently, when
it had actually occurred prior to removal of the children from
Mother’s care. After the therapists learned of the charges,
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communication between them seemed to halt, and family therapy
between Mother and Child never did take place.
¶9 During the reunification period, the court held periodic
review hearings to assess Mother’s progress under the service
plan; at some of these hearings, Mother voiced concerns about the
fact that family therapy was not occurring, and on other occasions
she expressed concerns about certain statements the caseworker
was alleged to have made. But for the most part Mother was non-
specific about what else DCFS could have done to improve its
efforts; indeed, on at least one occasion, the court expressly asked
Mother’s attorney if “there’s anything else . . . as far as services go
. . . that could be provided by [DCFS],” or if there was “anything
else that you think [DCFS] should be providing to help [Mother]
complete the service plan,” and counsel responded that he did not
“have any specific request of [the court] right now.” The most
specific complaint Mother raised was in August 2020 when she
filed a “motion to take evidence and make findings regarding
reasonable efforts” in which she accused DCFS of “hostility” and
“actively work[ing] against the reunification goal.”
¶10 But by the time this motion was filed, the court had already
made—on several different occasions during the reunification
period—specific findings that DCFS was making reasonable
efforts toward accomplishing the stated permanency goals,
including reunification. For instance, in November 2019, the court
after a hearing found that “DCFS has provided and is providing
reasonable efforts to finalize the permanency goals.” Several
months later, the court made a similar finding, noting along the
way that Mother’s attorney “could not articulate other efforts that
DCFS should be making to further the permanency goals.” In
August 2020, the court found that “DCFS has and continues to
provide reasonable efforts to finalize the child/children’s
permanency goals and to comply with its court ordered
responsibilities.” And a few weeks after that, the court did so
again, noting that “[n]o party suggested efforts/services that
could be provided by DCFS which are not already being
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provided.” There is no record of Mother making any objection to
any of these interim findings regarding reasonable efforts.
¶11 In November 2020, after fourteen months of reunification
services and with a permanency hearing looming, the
parties engaged in settlement negotiations and entered into a
stipulation that resolved many of the issues in the case. The
parties and counsel then appeared before the court to put the
terms of their stipulation on the record. Following the hearing,
counsel for the State prepared an order memorializing the
events of that hearing, and circulated it to Mother’s counsel
for review. Mother’s counsel did not object or otherwise comment
on the proposed form of the order, and therefore the State
submitted it to the court “as being stipulated to,” and the court
entered it as an order of the court. That order recites that the
parties stipulated that “DCFS or other agency/ies continue to
make reasonable efforts to assist the family finalize the service
plan and its permanency goals.” The order recites that the parties
also stipulated that the court would “terminate reunification
services” as to Child, and that “termination of those services” was
in Child’s best interest. Based on this stipulation, the court
changed Child’s primary permanency goal from reunification to
adoption. Mother did not object to the terms of this order, either
before or after its entry, and did not object to the change in
permanency goal.
¶12 Thereafter, the State filed a petition seeking the termination
of Mother’s parental rights regarding Child. Some months
later, the parties again entered into negotiations and agreed to
resolve some of the issues surrounding the State’s termination
petition. In particular, Mother stipulated “to the Court
finding that it is in Child’s best interests and strictly necessary for
the Court to terminate her parental rights should the Court
also find legal grounds for terminating her parental rights.” After
entry of this stipulation, the court scheduled a two-day
termination trial to consider whether grounds for termination
existed and whether DCFS had made reasonable efforts
toward reunification.
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¶13 The trial took place in November 2021. When the parties
and their attorneys appeared for the first day of trial, the State
informed the court that it did not intend to call any witnesses in
its case-in-chief and, instead, asked the court to “take judicial
notice of all the filings in the . . . case.” Mother objected to the court
taking judicial notice of such a large quantity of material, arguing
that she would never be able to respond to everything in the
docket and the court would not have time to review so many
documents. Eventually, the State narrowed its request to all the
“findings and orders specific to [Child],” and Mother did not
object. The court then agreed to take judicial notice of all its
interim findings and orders regarding Child. The State then asked
the court to take judicial notice of the court-ordered child and
family plan pertaining to Child, psychological evaluations of
Mother and Child, and court reports pertaining to Child; Mother
did not object to the court taking judicial notice of the plan, but
did object to the court taking judicial notice of the evaluations and
court reports. The court initially took the matter under
advisement, but later decided to take judicial notice of the service
plan as well as the court reports, reasoning that they had been
explicitly incorporated into the court’s previous orders and
findings. The reports showed efforts the caseworker made, such
as visiting all involved parties, providing transportation for
Child, inspecting foster parents’ and Mother’s living situations,
communicating with therapists, gauging Mother’s progress,
promptly communicating with Mother, and ensuring Child had
proper educational, medical, and mental health care.
¶14 The State then made its opening statement, pointing out
that the only two issues for trial were grounds for termination and
reasonable efforts, and arguing that grounds had already been
established through the juvenile court’s previous adjudication
that this court affirmed. Regarding reasonable efforts, the State
argued that, throughout the entire proceeding, the juvenile court
had periodically and continuously found that DCFS had made
reasonable efforts toward reunification. The State also asserted
that, at the end of the reunification period, Mother had
stipulated—as part of the November 2020 stipulation prior to the
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permanency hearing—that DCFS had made reasonable efforts.
The State asserted that it had sufficiently proven its case regarding
grounds and reasonable efforts through the judicially noticed
documents, and it rested its case without calling any witnesses.
¶15 After the State rested, Mother made a “motion for
judgment as a matter of law,” arguing that the court’s previous
orders “cannot as a matter of law be relied upon for a finding of
reasonable efforts in the context . . . of a termination of parental
rights trial” and that these orders were only “interim orders” and
“can be revisited.” Mother also suggested that she never actually
stipulated to a finding of reasonable efforts, even though the
court’s order—to which she had not objected—stated otherwise.
The court took Mother’s motion under advisement, and did not
ever make an explicit ruling on it, but implicitly denied it by
eventually making a ruling on the merits in the State’s favor.
¶16 Mother then proceeded with her case-in-chief, in which she
called the caseworker and her therapist in addition to presenting
her own sworn testimony. The caseworker testified about the
events described above, outlining the actions she took to facilitate
reunification and discussing her disagreements with Mother.
Mother’s therapist testified about her sessions with Mother and
the progress Mother made through therapy. Mother testified
about the events, described above, that caused her to believe that
DCFS was not making reasonable efforts toward reunification.
¶17 At the conclusion of trial, the court took the matter under
advisement. About three months later, the court issued an oral
ruling,1 concluding that there were grounds to terminate Mother’s
parental rights, and that the State had demonstrated that DCFS
had indeed made reasonable efforts to facilitate reunification.
After announcing its ruling, the court instructed the State to
prepare an order reflecting the court’s ruling. The State did so,
and circulated the proposed order to Mother; within her time to
1. A transcript of the court’s oral ruling was not included in the
record submitted to us.
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object, Mother filed an objection taking issue with one small part
of the order, but did not make any objection to the order’s
treatment of the proper evidentiary standard.
¶18 Eventually, the court signed a version of the written order
prepared by the State, finding “by clear and convincing evidence”
that grounds for termination existed because “Child was
previously adjudicated to be abused and neglected” in an order
that had been affirmed on appeal.
¶19 The court also found—based on “the review hearings,
court reports, and other evidence”—that DCFS had provided
reasonable efforts toward reunification, although the court did
not specify which standard of proof (e.g., clear and convincing
evidence or preponderance of the evidence) it was applying with
regard to this determination. Among other things, the court found
that DCFS had taken action to (i) ensure that Child’s medical,
dental, and mental health needs were met, (ii) visit Child at
placements, (iii) supervise visits, (iv) review education records,
(v) transport Child, (vi) communicate with Child’s therapist, (vii)
“coordinate[] virtual parent-time,” (viii) communicate with
Mother, and (ix) answer questions and arrange visits. The court
also noted that it had, throughout the pendency of the case,
“consistently found reasonable efforts on the part of DCFS” in its
previous orders and findings. However, the court did not treat
these orders and findings as dispositive, and went on to examine
the rebuttal evidence offered by Mother, directly addressing her
two main arguments: “personal friction between the Mother and
[the caseworker], and the delay in starting family therapy with all
of the children.” Regarding the friction, the court noted that
“DCFS cases are almost always high stress situations and there
are bound to be disagreements between DCFS and the parent
whose rights are at risk.” And in this case, the court determined
that “[t]he disagreements here were based on the DCFS
caseworker’s frustration/stress at the lack of progress made by
[Mother], which in some sense suggests the DCFS caseworker’s
desire for [Mother] to progress and move forward toward
reunification.” Regarding the delay in family therapy, the court
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noted that “DCFS regularly reported that they were following up
with the therapist and that the strategy taken by the therapist was
determined by the therapist, not DCFS,” and concluded that,
“while there may not have been perfection in the case, . . . DCFS
has acted reasonably in their efforts.”
¶20 Accordingly, the court entered an order terminating
Mother’s rights as to Child.
ISSUES AND STANDARDS OF REVIEW
¶21 Mother now appeals from the court’s termination order,
but her appeal is narrowly targeted. As noted, Mother did not
contest best interest at trial, after stipulating that termination of
her parental rights to Child would be in Child’s best interest. And
here on appeal, Mother does not contest the court’s determination
that grounds for termination existed. She does, however,
challenge—in three different ways—the court’s determination
that DCFS made reasonable efforts toward reunification.
¶22 Her first challenge concerns the evidentiary standard the
juvenile court applied in making its reasonable efforts
determination. She contends that the court should have, but
did not, apply a “clear and convincing evidence” standard in
making its reasonable efforts determination. “The applicable
burden of proof for termination proceedings is a question of law
we review for correctness.” In re G.D., 2021 UT 19, ¶ 36, 491 P.3d
867.
¶23 Next, she challenges the merits of the court’s reasonable
efforts determination, and this challenge has two parts. First, she
contends that the court erred in denying her motion, made at the
conclusion of the State’s case-in-chief, for “judgment as a matter
of law.” In a bench trial, a motion for judgment as a matter of law’s
“procedural counterpart,” Grossen v. DeWitt, 1999 UT App 167,
¶ 8, 982 P.2d 581, is a motion for involuntary dismissal, In re J.A.,
2018 UT App 29, ¶ 26, 424 P.3d 913, cert. denied, 420 P.3d 704 (Utah
2018). Such a motion “should be granted when the trial judge
20220264-CA 10 2023 UT App 27In re P.J.R.
finds that the claimant has failed to make out a prima facie case or
when the trial judge is not persuaded by the evidence presented.”
Accesslex Inst. v. Philpot, 2023 UT App 21, ¶ 33 (quotation
simplified). “Whether a party has established a prima facie case is
a question of law which we review for correctness.” In re M.L., 965
P.2d 551, 558 (Utah Ct. App. 1998).
¶24 Next, Mother challenges the court’s ultimate finding that
DCFS made reasonable efforts toward reunification. “A court’s
determination that DCFS made reasonable efforts to provide
reunification services involves an application of statutory law to
the facts that presents a mixed question of fact and law, requiring
review of the juvenile court’s factual findings for clear error and
its conclusions of law for correctness, affording the court some
discretion in applying the law to the facts.” In re N.K., 2020 UT
App 26, ¶ 15, 461 P.3d 1116 (quotation simplified). “Because
reasonableness determinations are fact-intensive, we afford the
juvenile court broad discretion in determining whether
reasonable reunification efforts were made.” In re S.T., 2022 UT
App 130, ¶ 17, 521 P.3d 887 (quotation simplified). “Absent a
demonstration that the [reasonable efforts] determination was
clearly in error, we will not disturb the determination.” In re K.F.,
2009 UT 4, ¶ 52, 201 P.3d 985 (quotation simplified). “A finding of
fact is clearly erroneous only when, in light of the evidence
supporting the finding, it is against the clear weight of the
evidence.” In re A.W., 2018 UT App 217, ¶ 23, 437 P.3d 640(quotation simplified).
ANALYSIS
¶25 We first address Mother’s contention that the juvenile
court applied an incorrect evidentiary standard in making its
reasonable efforts determination. After that, we address Mother’s
challenges to the merits of the court’s determination. For the
reasons that follow, we are unpersuaded by Mother’s arguments.
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I. Evidentiary Standard
¶26 Mother’s first assertion is that the juvenile court needed to
make its reasonable efforts determination by clear and convincing
evidence—rather than by the lower preponderance of the
evidence standard—and that it did not do so. The first part of
Mother’s assertion is correct, but the second part is unsupported
by the record in this case.
¶27 With regard to what the proper legal standard is, Mother’s
position is correct: the juvenile court needed to apply the clear and
convincing evidence standard in making its reasonable efforts
determination. Neither the State nor the guardian ad litem takes
issue, in this case, with Mother’s position regarding the proper
legal standard. And this position is clearly supported by statutory
mandate. In all cases in which reunification services are offered,
the reasonable efforts determination is a necessary part of the
termination inquiry—it is mandated by the statutes governing
termination proceedings, see Utah Code § 80-4-301(3)(a) (stating
that, “in any case in which the juvenile court has directed the
division to provide reunification services to a parent, the juvenile
court must find that the division made reasonable efforts to
provide those services before” terminating parental rights)—and
all facts in termination cases must be established by clear and
convincing evidence, see id. § 80-4-103(2)(a) (commanding
juvenile courts, in all termination cases, to “require the petitioner
to establish the facts by clear and convincing evidence”); see also
In re Castillo, 632 P.2d 855, 857 (Utah 1981) (stating that the
presumption of parental rights “should be overcome only by clear
and convincing evidence”); Utah R. Juv. P. 41(b) (discussing “[t]he
burden of proof in matters brought before the juvenile court,” and
stating that “cases involving the permanent deprivation of
parental rights must be proved by clear and convincing evidence
unless otherwise provided by law”).
¶28 But the other half of Mother’s contention—that the juvenile
court applied a different standard to its reasonable efforts
inquiry—is simply not borne out by the record. As an initial
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matter, examination of the court’s order indicates that it was
generally applying the clear and convincing evidence standard in
this termination case. With regard to its determination about
grounds for termination, the court specified that it was using the
higher evidentiary standard, stating that it “finds that DCFS has
proven, by clear and convincing evidence,” that grounds for
termination are present. And later in its order, it specified that it
was making its legal conclusions regarding termination “by clear
and convincing evidence.” Significantly, nowhere in its order did
the court reference, even obliquely, any other evidentiary
standard. Moreover, earlier in the case, in the court’s September
2019 order approving the service plan, the court had indicated its
awareness of the correct evidentiary standard, finding at that
point, “by clear and convincing evidence,” that fulfillment of the
service plan would “constitute reasonable efforts on the part of
[DCFS] to finalize the permanency goals.”
¶29 Mother points out, however, that—while the court, in its
final order, specified that its grounds determination and its legal
conclusions were being made by clear and convincing evidence—
the court did not specifically indicate that it was making its
reasonable efforts determination by clear and convincing
evidence. As noted, it did not indicate the application of a different
evidentiary standard; rather, the reasonable efforts section of the
court’s final order was simply silent regarding which evidentiary
standard was being applied. As Mother sees it, any uncertainty
about which standard the court was applying should be held
against the court; in particular, she asks us to infer from this
uncertainty that the court was applying an evidentiary standard
to that section of its analysis that was different from what it
specifically applied to the other sections.
¶30 But this is not the way such inferences work. Uncertainty
in the record “is not a basis for reversal.” State v. Hummel, 2017 UT
19, ¶ 82, 393 P.3d 314. Indeed, “[u]ncertainty counts against the
appellant, who bears the burden of proof on appeal, and must
overcome a presumption of regularity as to the record and
decision in the trial court.” Id. “Thus, a lack of certainty in the
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record does not lead to a reversal and new trial; it leads to an
affirmance on the ground that the appellant cannot carry [the]
burden of proof.” Id.¶31 We encountered a similar situation in Gerwe v. Gerwe, 2018
UT App 75, 424 P.3d 1113. In that case, a district court determined,
after an evidentiary hearing, that a man had fraudulently induced
his ex-wife into signing a postnuptial agreement. Id. ¶ 3. But in so
doing, the court was silent regarding which evidentiary standard
it was applying; it “did not expressly state that [the ex-wife]
presented clear and convincing evidence of fraudulent
inducement,” but “it never suggested that a lower standard of
proof applied.” Id. ¶ 13. On that record, we rejected the
appellant’s assertion of error, stating that a “reviewing court will
not presume from a silent record that the court applied an
incorrect legal standard but must presume the regularity and
validity of the district court’s proceedings, and that it applied the
correct legal standard, in the absence of evidence to the contrary.”
Id. (quotation simplified). We concluded our analysis by stating
that “[b]ecause nothing in the record suggests that the court
applied something less than the clear and convincing standard,
[the appellant] cannot establish error.” Id. (quotation simplified).
¶32 So too here. Mother offers no evidence—aside from the
uncertainty engendered by silence—that the juvenile court
applied an evidentiary standard other than clear and convincing
to its reasonable efforts determination. And as in Gerwe, this is not
enough to satisfy Mother’s appellate burden, especially where the
court—in two other places in the order—indicated that it was
applying the clear and convincing standard.2 On this basis, we
2. Moreover, Mother had an opportunity to bring this issue to the
court’s attention prior to entry of the order. Recall that the court
issued an oral ruling, which was then memorialized by the State
into a written order and circulated to Mother for her input.
Mother filed a limited, targeted objection to one point in the draft
order, but—notably—did not raise any objection to the court’s
(continued…)
20220264-CA 14 2023 UT App 27In re P.J.R.
reject Mother’s contention that the juvenile court applied an
incorrect evidentiary standard.
II. Reasonable Efforts
¶33 Next, Mother challenges the merits of the juvenile court’s
reasonable efforts determination, and this challenge has two
parts. First, Mother asserts that the court erred in failing to grant
the motion she made at the conclusion of the State’s case-in-chief.
Second, she asserts that the court’s ultimate reasonable efforts
determination was against the clear weight of the evidence. We
address, and reject, each of these arguments, in turn.
A
¶34 At the end of the State’s witness-less case-in-chief, Mother
made an oral motion for “judgment as a matter of law.” The court
took the motion under advisement, but never issued an express
ruling on it; the court implicitly denied the motion when it ruled
in the State’s favor on the merits of the reasonable efforts question.
Mother challenges the court’s implicit denial of that motion.
discussion of the evidentiary standard it was applying to its
determinations. Any lack of clarity about the standard being
applied could easily have been remedied at that stage. See Jensen
v. Skypark Landowners Ass’n, 2013 UT App 48, ¶ 6 n.4, 299 P.3d 609(per curiam) (stating that a party who made “no objection to the
form of the order” could not complain, for the first time on appeal,
that the order was “vague and ambiguous”), cert. denied, 308 P.3d
536 (Utah 2013); cf. In re K.F., 2009 UT 4, ¶ 63, 201 P.3d 985 (stating
that “[j]udicial economy would be disserved” by permitting an
appellant to bring, “for the first time on appeal,” a challenge
regarding the adequacy of the court’s findings, because such
errors are “easy for a trial judge to correct” and are “best corrected
when the judge’s findings are fresh in the judge’s mind,” and
because “the only likely remedy is merely a remand to the trial
court for more detailed findings”).
20220264-CA 15 2023 UT App 27In re P.J.R.
¶35 Although Mother referred to her motion as either a motion
for summary judgment or a motion for judgment as a matter of
law, in bench trials the proper reference is a motion for
involuntary dismissal. See In re Trujillo, 2001 UT 38, ¶ 21 n.13, 24
P.3d 972 (stating that “a motion for a directed verdict
contemplates only jury trials,” and “[i]n the context of a bench
trial, the directed verdict’s procedural counterpart is a motion for
involuntary dismissal”); accord Accesslex Inst. v. Philpot, 2023 UT
App 21, ¶ 33. As already noted, the relevant question raised by
such a motion—at least where the nonmovant bears the burden of
proof on the issue at hand—is whether the nonmovant has,
during its case-in-chief, made at least a prima facie case in support
of its claim. See Accesslex Inst., 2023 UT App 21, ¶ 33 (stating that,
where “the party making [the motion] is the party that does not
bear the burden of proof,” the motion “should be granted when
the trial judge finds that the claimant has failed to make out a
prima facie case” (quotation simplified)). “A prima facie case has
been made when evidence has been received at trial that, in the
absence of contrary evidence, would entitle the party having the
burden of proof to judgment as a matter of law.” In re J.A., 2018
UT App 29, ¶ 27, 424 P.3d 913 (quotation simplified), cert. denied,
420 P.3d 704 (Utah 2018). Thus, we must consider whether the
State—the nonmovant who bore the burden of proof—made out
at least a prima facie case in support of its reasonable efforts claim
during its case-in-chief.
¶36 Our supreme court has defined “reasonable efforts” as a
“fair and serious attempt to reunify a parent with a child prior to
seeking to terminate parental rights.” In re K.F., 2009 UT 4, ¶ 51,
201 P.3d 985 (quotation simplified). Thus, in order to make a
prima facie showing with regard to reasonable efforts, the State
had to produce evidence that would—at least before
consideration of any contrary evidence—show that DCFS had
made a fair and serious effort to reunify Mother with Child during
the reunification period. As noted, the State called no witnesses in
its case-in-chief, choosing instead to rely entirely on documentary
evidence that included the juvenile court’s previous interim
orders and the court reports incorporated into those orders. But
20220264-CA 16 2023 UT App 27In re P.J.R.
despite this unorthodox approach,3 in our view the State did
enough—on the facts of this particular case—to make at least a
prima facie showing in support of its reasonable efforts claim.
¶37 The State’s evidence, such as it was, included the juvenile
court’s interim orders, and those orders indicated that the court,
in its ongoing supervisory role over the proceedings during the
reunification period, had made multiple and repeated findings
that DCFS had engaged in reasonable efforts to further the
permanency goals, the primary one of which was reunification.
The court never made a contrary finding, despite Mother having
registered some dissatisfaction on this point at various stages of
the case. Moreover, those interim orders incorporated the court
reports, which included detailed accounts of the measures DCFS
took to fulfill the requirements of the service plan, including
visiting Child, providing transportation for Child, inspecting
foster parents’ and Mother’s living situations, communicating
with the therapists, gauging Mother’s progress on the service
plan, communicating with Mother, and ensuring Child had
proper educational, medical, and mental health care. Finally, at
the end of the reunification period in November 2020, with a
permanency hearing looming, Mother apparently stipulated that
“DCFS or other agency/ies continue to make reasonable efforts to
assist the family finalize the service plan and its permanency
goals.” The use of the word “continue” in the stipulation could
reasonably be taken to mean that Mother was acknowledging
3. It would not have been difficult for the State to call at least one
critical live witness—the DCFS caseworker—in support of its
reasonable efforts claim. The caseworker was available that day
to testify, and indeed did testify when she was called to do so by
Mother. We do not go very far out onto the proverbial limb by
stating that, in most cases, it would be preferable (and, indeed,
advisable) for the State, in reasonable efforts cases, to do more
than simply rely on previous interim court orders, and we hope
that our decision to affirm the juvenile court in this case does not
encourage the State to present similarly truncated cases-in-chief
in future reasonable efforts cases.
20220264-CA 17 2023 UT App 27In re P.J.R.
that, throughout the entirety of the reunification period up until
the date of the stipulation, DCFS had made reasonable efforts to
accomplish the permanency goals, including reunification. Thus,
in this particular case, the State’s evidentiary presentation, despite
its truncated and unorthodox nature, was sufficient to indicate—
at least in the absence of Mother’s contrary evidence, which had
yet to be presented—that DCFS had made a fair and serious effort
to reunify Mother with Child.
¶38 We recognize that Mother was eventually able to point to
at least some contrary evidence. For instance, Mother put on
evidence about the ongoing friction between herself and the DCFS
caseworker, and about the issues that came up regarding
initiation of family therapy. In addition, Mother had some
colorable arguments to make about the November 2020
stipulation, asserting that the parties’ actual agreement had not in
fact included any stipulation about reasonable efforts and that, if
any such stipulation had been reached, its scope was limited. But
at the time the court was considering Mother’s motion for
involuntary dismissal—at the close of the State’s case-in-chief—
none of that evidence had been presented. And in assessing
whether the State had made out a prima facie case regarding
reasonable efforts, the court was not supposed to consider
whatever contrary evidence Mother might eventually produce.
The prima facie case inquiry is simply whether the State produced
sufficient evidence, standing on its own and without considering
any rebuttal, to support its claim. And on the facts of this unique
case, we conclude that it did.
¶39 For these reasons, we discern no error in the juvenile
court’s implicit denial of Mother’s motion for involuntary
dismissal made at the conclusion of the State’s case-in-chief.
B
¶40 Finally, Mother challenges the juvenile court’s ultimate
determination, made as factfinder after trial, that DCFS had made
reasonable efforts to facilitate reunification. As noted already, we
20220264-CA 18 2023 UT App 27In re P.J.R.
review this determination deferentially, giving “broad discretion”
to the juvenile court “in determining whether reasonable
reunification efforts were made.” See In re K.F., 2009 UT 4, ¶ 52,
201 P.3d 985; see also In re A.C., 2004 UT App 255, ¶ 12, 97 P.3d 706(stating that a juvenile court “is in the best position to evaluate the
credibility and competence of those who testify regarding the
services that were provided” and to assess the reasonable efforts
question). See generally supra ¶ 24.
¶41 Here, the juvenile court listened to the testimony of
Mother, the caseworker, and Mother’s therapist, and examined
the dozens of exhibits submitted by the parties. This same court
had previously been involved in all of the interim review hearings
during the reunification period, during which the court assessed
DCFS’s reasonable efforts throughout the case. In issuing its
ultimate determination, the court took its previous orders into
account, but correctly did not treat them as completely dispositive
of the question; instead, it considered those orders as potentially
persuasive evidence supporting the State’s position, but
evaluated that evidence in the context of the rebuttal evidence
Mother offered.4
4. Considering such orders, as well as Mother’s failure to formally
object to them, as potentially persuasive but nondispositive
evidence appears consistent with previous decisions by this court
in reasonable efforts cases. See In re A.W., 2018 UT App 217, ¶ 31,
437 P.3d 640 (“Father also ignores the several times in the record
in which the juvenile court made an unchallenged periodic
finding—before its termination order—that DCFS had made
reasonable efforts to provide him with reunification services.”);
see also In re S.T., 2022 UT App 130, ¶ 21, 521 P.3d 887 (noting that,
“[a]t no point did Mother object to the court’s findings or indicate
that she needed additional or different services.”); In re A.C., 2004
UT App 255, ¶ 17, 97 P.3d 706 (“It is the parent’s responsibility to
demand services if they are not offered prior to the termination
hearing.” (quotation simplified)).
20220264-CA 19 2023 UT App 27In re P.J.R.
¶42 Indeed, the court directly addressed both of Mother’s
specific arguments: that the “personal friction” between Mother
and the caseworker indicated that the caseworker did not make
reasonable efforts, and that the caseworker caused delay in the
start of family therapy. With regard to the friction, the court rather
astutely noted that child welfare cases “are almost always high
stress situations and there are bound to be disagreements between
DCFS and the parent whose rights are at risk.” But the court, after
reviewing the friction in the context of the entire case, concluded
that the disagreements between Mother and the caseworker,
while regrettable, did not rise to the level of indicating that the
caseworker had failed to provide reasonable efforts. On this
record, we cannot say that such a determination is “against the
clear weight of the evidence.” See In re A.W., 2018 UT App 217,
¶ 23, 437 P.3d 640.
¶43 With regard to the delay in family therapy, the court noted
that, under the service plan, family therapy was not to begin until
both Mother’s and Child’s therapists recommended it, and the
court was aware that responsibility for scheduling the therapy
sessions, once both therapists were on board, was to be up to the
therapists themselves. The court, after reviewing this issue in
context, concluded that most of the blame for any delay in family
therapy should not be laid at the feet of the caseworker, observing
that “DCFS cannot, nor should they be required to hold the hand
of every party involved to ensure that those parties are also
making some efforts,” and ultimately determined that, “while
there may not have been perfection in the case, . . . DCFS has acted
reasonably in their efforts.” On this record, we cannot say that this
determination is against the clear weight of the evidence either.
¶44 Accordingly, we discern no abuse of the juvenile court’s
discretion in its ultimate determination, made as factfinder after
trial, that DCFS provided reasonable efforts toward reunification.
20220264-CA 20 2023 UT App 27In re P.J.R.
CONCLUSION
¶45 Mother has not carried her appellate burden of
demonstrating that the juvenile court applied an incorrect
evidentiary standard to its reasonable efforts determination. And
we reject Mother’s challenges to the merits of the court’s ultimate
determination that DCFS provided reasonable efforts toward
reunifying Mother with Child during the reunification period.
¶46 Affirmed.
20220264-CA 21 2023 UT App 27