In April 2015 the State instituted a shelter proceeding in which the juvenile court found that it was necessary to remove N.M. from the parents because the parents were incarcerated. The Court later found that N.M. was a neglected child and placed the child in the temporary custody of DCFS (“Division of Child and Family Services”), with a primary permanency goal of reunification with the parents.

However, in November 2015 the court, based on the parents’ lack of progress, granted temporary custody anyone guardianship of this child to the Maternal grandparents, subject to DCFS supervision. The child remained in the grandparents custody thereafter.

In September 2016, the Court changed the primary permanency goal to adoption by the grandparents, with a concurrent goal of permanent custody and guardianship. The Court also directed the State to file a petition to terminate the parents’ parental rights (“TPR”) within 45 days. The petition was timely filed.

At a November 2016 pre-trial hearing the State, citing evidentiary issues making it difficult to meet their burden of proof, moved to dismiss the TPR and change the primary permanency goal to custody and guardianship for the maternal grandparents. The State, the Guardian ad Litem, and the parents agreed to change the permanency goal to custody and guardianship. The maternal grandmother stated her desire to adopt the child. The Court denied the motion and set a trial date in January 2017.

Before the trial the State filed a notice to withdraw the TPR and the father and mother filed a joint rule 60 (b) motion to set aside the Court’s November 2016 order. The Court denied the motion and struck the withdrawal.

At the January 2017 trial the court terminated father’s parental rights (mother ultimately agreed to relinquish her rights to her parents). Father appealed.

On appeal, father argued that the court erred in failing to accept the parties’ Stipulation to dismiss the TPR and change the permanency goal.

The Utah Court of Appeals noted that Utah’s appellate courts generally review a trial court’s denial of a rule 60(b) and refusal to accept parties’ Stipulation under an abuse of discretion standard. The Court did not find an abuse of discretion.

Father argued that the trial court did not have authority to compel the State to pursue their petition to terminate parental rights because to do so would compel the State’s attorneys to violate Rule 3.1 of the Rules of Professional Conduct which prohibits an attorney from pursuing a frivolous proceeding. The Court of Appeals rejected this argument, stating that father had not shown that Rule 3.1 usurped the juvenile court’s authority to continue with the termination proceeding, particularly in light of the juvenile court’s core function of protecting a child by making permanency orders in the child’s best interests.

Father also argued that the juvenile court’s actions violated the principle of separation of powers by compelling the State, representing the executive branch, from deciding which cases to prosecute.

The Court found that, even if some of father’s arguments were correct, that it was harmless error because father had not shown a reasonable likelihood that he would have prevailed in any event.

The juvenile court’s order was affirmed.

See In Re N.M. 2018 UT App 141.

Father raised some interesting arguments, in my opinion.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.