In re B.J.V.

2017 UT App 57
THE UTAH COURT OF APPEALS
S TATE OF U TAH , IN THE INTEREST OF B.J.V.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
B.A.V.,
Appellant,
v.
S TATE OF U TAH AND B.J.,
Appellees.
Per Curiam Decision
No. 20170094-CA
Filed March 30, 2017
Third District Juvenile Court, Salt Lake Department
The Honorable Julie V. Lund
No. 1133541
Sheleigh A. Harding, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee State of Utah
Julie George, Attorney for Appellee B.J.
Martha Pierce, Guardian ad Litem
Before JUDGES S TEPHEN L. R OTH , M ICHELE M. C HRISTIANSEN , and
DAVID N. M ORTENSEN .
PER CURIAM:
¶1 	B.A.V. 	(Mother) 	appeals 	from 	an 	order 	awarding
permanent custody and guardianship of B.J.V. to his biological
and legal father B.J. (Father) and terminating juvenile court
jurisdiction. We affirm.
¶2 	“[T]o overturn the juvenile court’s decision[,] [t]he result
must be against the clear weight of the evidence or leave the

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20170094-CA 	2 	2017 UT App 57
appellate court with a firm and definite conviction that a mistake
has been made.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (third
alteration in original) (citation and internal quotation marks
omitted). We “review the juvenile court’s factual findings based
upon the clearly erroneous standard.” In re E.R., 2001 UT App 66,
¶ 11, 21 P.3d 680. A finding of fact is clearly erroneous when the
court “failed to consider all of the facts or considered all of the
facts and its decision was nonetheless against the clear weight of
the evidence.” In re B.R., 2007 UT 82, ¶ 12. Therefore, “[w]hen a
foundation for the court’s decision exists in the evidence, an
appellate court may not engage in a reweighing of the evidence.”
Id.
¶3 	At 	the 	adjudication 	hearing 	held 	in 	September 	2016,
Mother 	entered 	admissions to 	the 	State’s amended 	petition
pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure.
The juvenile court adjudicated B.J.V. to be a neglected child as to
Mother because he lacked proper parental care by reason of the
faults or habits of Mother. The court adjudicated B.J.V. to be a
dependent child as to Father because he was “without proper
care through no fault of” Father. The juvenile court set a primary
permanency goal for B.J.V. of reunification with Mother and a
concurrent permanency goal of guardianship with Father. The
court placed B.J.V. in the temporary custody of Father with
protective supervision services and took Father’s motion for
permanent custody under advisement. The written adjudication
order “set the matter for review on December 8, 2016 to measure
mother’s progress and again address the motion for an order to
place [B.J.V.] in the Permanent Custody and Guardianship of
[Father].”
¶4 	At 	the 	adjudication 	hearing, 	Mother 	stipulated 	to 	a
service plan requiring her to comply with random drug testing,
to 	complete 	substance 	abuse, 	mental 	health, 	and 	domestic
violence 	evaluations, 	and 	to 	complete 	any 	recommended
treatment. Mother also stipulated that she could be ordered to

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observe drug court. At the December 8, 2016 review hearing, it
was undisputed that Mother left her residential substance abuse
treatment program and did not participate in drug court, that
she had not visited B.J.V. since August 2016, and that she still
had outstanding warrants. Mother argued that she was working
to return to residential treatment and requested another hearing
in one month to review her progress. The State and the Guardian
ad 	Litem 	(GAL) 	joined 	in 	Father’s 	renewed 	motion 	for
permanent 	custody 	and 	guardianship. 	During 	the 	hearing,
Father’s counsel made statements regarding B.J.V.’s condition
when 	he 	came 	into 	Father’s 	temporary 	custody. 	Mother’s
counsel argued that an evidentiary hearing should be set as a
result of this new information. The juvenile court denied the
request for an evidentiary hearing.
¶5 	The juvenile court granted Father’s motion for permanent
custody and guardianship and terminated protective supervision
services and juvenile court jurisdiction over B.J.V. After reciting
that Father’s renewed motion for permanent custody had been
taken under advisement at the September 29, 2016 adjudication
hearing, 	the 	juvenile 	court 	made 	findings 	based 	upon
“[u]ndisputed 	facts 	detailed 	in 	the 	court 	report/progress
summary, provided to all counsel prior to the hearing.” The
court 	found 	those 	undisputed 	facts 	were 	that 	Mother 	left
residential substance abuse treatment on November 1, 2016, and
that she denied she had a substance abuse problem, wanted to
opt out of Family Dependency Drug court, took a month to meet
with the evaluator after being ordered to do so, missed a drug
test, and “had not visited with the child for months having just
recently made two scheduled visits prior to court.” The report
provided to the juvenile court stated
that since being placed with his father, [B.J.V.] was
enrolled 	in 	an 	after-school 	program, 	[and] 	the
father ha[d] hired a tutor to help his son as he is so
far behind in school. He is catching up on grade

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20170094-CA 	4 	2017 UT App 57
level work, he is playing sports in extra-curricular
activities, the home is clean, meets safety standards
and the case worker had no concerns about the
parent child relationship or the care [B.J.V.] was
receiving from his father.
The court found that Father and B.J.V. were bonded, the child
was cared for appropriately, and Father was obtaining services
to meet the child’s needs.
¶6 	Mother claims that the juvenile court erred in denying her
request for an evidentiary hearing. This argument relies upon a
superseded rule and case law interpreting it. See In re P.D., 2013
UT App 162, ¶ 6, 306 P.3d 817 (discussing a previous version of
Utah Rule of Juvenile Procedure 47 requiring the juvenile court
to 	schedule 	an 	evidentiary 	hearing 	“if 	the 	modification 	is
objected to by any party prior to or in the review hearing”). At
all times relevant to this case, current rule 47(b)(3) of the Utah
Rules of Juvenile Procedure has stated,
The court shall not modify a prior order in a
review 	hearing 	that 	would 	further 	restrict 	the
rights of the parent, guardian, custodian or minor
if 	any 	party 	objects to 	the 	modification. 	Upon
objection, the court shall schedule the matter for a
motion hearing and require that a motion be filed
with notice to all parties. A party requesting an
evidentiary hearing shall state the request in the
motion to modify the prior order or the response to
the motion.
Utah R. Juv. P. 47(b)(3).
¶7 	In this case, the juvenile court took Father’s motion for
permanent custody and guardianship under advisement at the
adjudication 	hearing 	after 	Mother 	objected 	to 	the 	relief
requested. The court specifically set a review hearing to consider

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Father’s motion and review Mother’s progress. Mother did not
request an evidentiary hearing at any time before the review
hearing scheduled for December 8, 2016, as current rule 47(b)(3)
would 	require. 	Mother 	claimed 	that 	new 	information 	from
Father’s counsel’s arguments at the review hearing entitled her
to an evidentiary hearing. However, the juvenile court’s ruling
focused narrowly on the undisputed facts related to Mother’s
lack of any significant progress since the adjudication hearing.
Thus, even if the evidentiary hearing requirement discussed in
In re P.D. had applied, so would its requirement that Mother
demonstrate 	prejudice 	from 	the 	failure 	to 	provide 	such 	a
hearing. And here Mother has not demonstrated that she was
prejudiced by the lack of an evidentiary hearing on the narrow
issues raised by Father’s counsel’s arguments. See In re P.D., 2013
UT App 162, ¶ 12 (requiring a demonstration that “had an
evidentiary hearing been granted, the likelihood of a different
outcome [would have been] sufficiently high as to undermine
our 	confidence 	in 	the 	[judgment]” 	(alterations 	in 	original)
(citations and internal quotation marks omitted)).
¶8 	Mother 	also 	claims 	that 	the 	juvenile 	court 	erred 	in
granting permanent custody and guardianship to Father because
the evidence was insufficient to demonstrate that the permanent
custody award was in B.J.V.’s best interest. Mother does not state
any disagreement with the juvenile court’s findings regarding
the suitability of Father’s home or the efforts Father has made to
address B.J.V.’s needs. Although couched in terms of B.J.V.’s best
interest, Mother’s argument is that she is entitled to more time to
reunify with B.J.V. despite making no significant progress since
his removal. Reunification services can be terminated at any
time. See Utah Code Ann. § 78A-6-312(14)(a) (LexisNexis Supp.
2016) (“If reunification services are ordered, the court may
terminate those services at any time.”). In addition, Mother’s
parental 	rights 	to 	B.J.V. 	have 	not 	been 	terminated 	so 	any
argument regarding severance of the parent–child relationship is
premature. At best, her argument is simply that she should have

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20170094-CA 	6 	2017 UT App 57
more time to seek reunification, but she has failed to demonstrate
any level of progress that would support her claims.
¶9 	Given the undisputed facts regarding Mother’s lack of
progress up to the time of the review hearing and the lack of any
dispute regarding the suitability of Father’s care, this court
concludes that “a foundation for the court’s decision existed in
the evidence” and it will not be disturbed. See In re B.R., 2007 UT
82, ¶ 12, 171 P.3d 435. Accordingly, we affirm.