| (Cite
as: 57 P.3d 1130, 2002 UT App 340)
Court
of Appeals of Utah.
STATE
of Utah, in the interest of F.M., S.M., D.M., and
C.M., persons under
eighteen
years of age.
S.S.,
Appellant,
v.
State
of Utah, Appellee.
No.
20010128-CA.
Oct. 18, 2002.
*1131 Sharon
L. Preston, Salt Lake City, for Appellant.
Mark L. Shurtleff, Attorney
General, and John M. Peterson, Assistant Attorney General, Salt Lake City,
for Appellee.
Martha Pierce, Salt Lake
City, and Craig M. Bunnell, Sandy, Guardians Ad Litem.
Before Judges BILLINGS,
GREENWOOD, and ORME.
MEMORANDUM DECISION
GREENWOOD, Judge:
I. Termination of Parental
Rights
**1
S.S. (Mother) appeals the juvenile court's order terminating her parental
rights. Mother argues there was insufficient evidence to support certain
factual findings made by the juvenile court, the legal conclusions were
unsupported
by factual findings, and there was insufficient evidence to support *1132
beyond a reasonable doubt the finding that Mother's continued custody
of the children would likely result in serious emotional or physical damage
to them.
**2
First, Mother argues that there was insufficient evidence to support some
of the juvenile court's factual findings. "Findings of fact in a
parental rights termination proceeding are overturned only if they are
clearly erroneous." In
re G.B., 2002
UT App 270, ¶ 9, 53 P.3d 963 (quotations and citation omitted). Mother
challenges portions of a finding regarding the best interests of the children;
namely, that Mother is still co-dependent on the children's father (Father)
and unable to protect the children from Father. We conclude that in addition
to the findings incorporated by the juvenile court from previous hearings,
sufficient evidence was presented at the termination trial to support
the court's findings.
**3
The evidence presented included testimony from Mother's therapist regarding
Mother's continued co-dependency issues. Mother's therapist testified
that Mother would need over a year of further therapy to treat her co-dependency
issues, but even then, it was far from certain she could overcome them.
In addition, Mother's case worker testified that on numerous occasions
Mother had talked to her about leaving Father, regaining custody of her
children, and then getting back with Father. Further, Mother admitted
to having contact with Father just two weeks before the trial when she
accepted a ride home from him. Mother also admitted that although Father
had recently moved out of the family's trailer home, Father was still
living in the same trailer park as Mother. Finally, the court heard evidence
that Father was recently substantiated
[FN1] for physical abuse while Mother was living in the same household
and Mother did nothing to stop the abuse. Therefore, the evidence supports
the court's findings of Mother's co-dependency and inability to protect
the children.
[FN2]
FN1.
See
Utah Code Ann. §§ 78-3a-104(8), - 320(1) (Supp.2002) (stating
that juvenile court is to make findings of "substantiated, unsubstantiated,
or without merit" regarding allegations of severe child abuse or
neglect).
FN2.
Mother also argues that one of the court's findings was based on a report
not offered into evidence; therefore, Mother did not have an opportunity
to rebut the allegation. However, the State requested that the court take
judicial notice of all the conclusions, findings, orders, and official
documents previously presented and accepted by the juvenile court in Mother's
case. The court took judicial notice without objection from Mother's counsel.
Courts may "take judicial notice of the records and
prior proceedings in the same case." Riche
v. Riche, 784
P.2d 465, 468 (Utah Ct.App.1989) (citation omitted); see
Utah R. Evid. 201. Therefore, the court did not err in considering the
report.
**4
Mother also challenges the court's conclusions that she neglected the
children, is unfit or incompetent, that there has been a failure of parental
adjustment, and that she is unwilling or unable to remedy the circumstances
that led to the children's placement with the Division of Child and Family
Services (DCFS). "Conclusions of law are reviewed by this court for
correctness, giving no deference to the trial court. However, we do afford
the juvenile court some discretion in applying the law to the facts."
In re J.B.,
2002 UT App 267, ¶ 15, 53 P.3d 958 (citations omitted). Mother argues,
inter alia, that the court erred in focusing on Mother's past and not
considering her abilities at the time of the termination proceeding. Evidence
was presented that although it appeared Mother made substantial progress
in completing her service plan, she failed to internalize the skills she
had learned and was unable to offer the structured environment that her
special needs children require. See
In re C.Y.,
765 P.2d 251, 255 (Utah Ct.App.1988) (noting effort to improve one's parenting
skills is not determinative if "no significant improvement in [the
parent's] parenting skills has been noted despite [the parent's] efforts");
see also In
re S.L., 1999
UT
App 390, ¶ 28 n. 5, 995 P.2d 17 (noting Mother's progress on second
treatment plan and desire to regain custody of her son, alone, is not
persuasive in determining whether juvenile court's findings are clearly
erroneous). We have carefully reviewed both the evidence in this case
and the juvenile court's findings of fact and conclude that there is no
error in the juvenile court's conclusions of law.
*1133
¶ 5 Finally, Mother argues that neither the findings nor expert testimony
presented were sufficient to terminate her parental rights under the Indian
Child Welfare Act (ICWA). See
25 U.S.C. §§ 1901-1963 (1994). Under ICWA, the juvenile court
"must make a determination that 'continued custody of the children
by the parent ... is likely to result in serious emotional or physical
damage to the child.' That determination must be supported by evidence
beyond a reasonable doubt, including testimony of qualified expert witnesses."
In re S.A.E.,
912 P.2d 1002, 1004 (Utah Ct.App.1996) (quoting 25 U.S.C. § 1912(f)
(1994)).
**6
Mother takes issue with the testimony of Ms. Watson, the expert witness
called specifically to address compliance with ICWA. Mother argues that
Ms. Watson had no personal knowledge of the case and that she based her
testimony only on her review of the case file. However, Ms. Watson testified
that her opinion was based not only on her review of the file, but also
on case staffing done with the family's ongoing case manager for the Navajo
Nation who had prepared
an extensive file noting the "parent's abusive history, ... and the
seriousness of the children's behavior." In addition, Ms. Watson's
opinion was formed after talking with the family's DCFS social worker.
" 'The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made known
to the expert at or before the hearing.' " State
v. Kelley,
2000 UT 41, ¶ 23, 1 P.3d 546 (quoting Utah R. Evid. 703).
**7
Based on Ms. Watson's testimony and the extensive files of the Navajo
Children and Family Service program (NCFS), along with the testimony from
the children's social workers regarding the children's severe behavioral
disorders and their need for a competent custodian who can offer a very
structured environment, the juvenile court concluded that returning the
children to their Mother would likely result in serious emotional and
physical damage to the children. Because the evidence supports that Mother
is not in a position to offer the structured environment these children
require, and because the children's extreme behaviors are due to the past
parenting they received while in Mother's home, the court had ample evidence
to support its findings beyond a reasonable doubt, as required by ICWA.
**8
Based on the foregoing, we affirm.
II. Briefing
**9
We wish to comment upon the Attorney General office's failure to file
a brief on behalf of DCFS. Instead of providing independent case law and
analysis supporting the juvenile court's decision to terminate Mother's
parental rights, the Attorney General merely concurred with the Guardians
Ad Litem's (the Guardian) brief. We believe that the Attorney General's
concurrence is wholly inappropriate in this case because of the different
parties and interests represented by the State and the Guardian. See
Utah Code Ann. § 78-3a-909(1) (1996) ("The attorney general
shall represent the [S]tate in all appeals under this chapter.");
Utah Code Ann. § 78-3a-912(2) (1996) (stating a guardian ad litem
"shall represent the best interest of each minor ..."); see
also In re T.J.,
945 P.2d 158, 163 (Utah Ct.App.1997) (stating DCFS and Attorney General's
office protect the interests of the State, while the Guardian Ad Litem's
office represents the interests of the children and these interests "are
distinct and can differ").
**10
Given the absence of briefing for DCFS, the briefs in this case were inadequate
to provide a full picture for this court regarding the appropriateness
of the termination of Mother's parental rights. This necessitated that
we meticulously comb the record to determine whether there was sufficient
evidence to support the juvenile court's decision. In this case, Mother
had attempted to rehabilitate herself and had complied to some extent
with the service plans. Therefore, DCFS was required to carefully and
thoroughly demonstrate that the juvenile court acted appropriately in
terminating
Mother's parental rights. Additionally, in light of the higher standard
of proof required in Mother's case under ICWA, and the fact that there
are very few published decisions regarding the termination of parental
rights of Indian children, it was that much more incumbent upon the Attorney
General's office to have filed a brief. Court-ordered termination of parental
rights must *1134
be conducted with appropriate seriousness and thoroughness by all involved.
The potential effects of child welfare proceedings on families, children,
and society are too important to treat them in a perfunctory or casual
manner. We therefore urge the Attorney General's office to submit briefs
in the future, on behalf of its client, the State.
**11
WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and GREGORY
K. ORME, Judge.
57 P.3d 1130, 458 Utah
Adv. Rep. 26, 2002 UT App 340
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