In re E.M.J., 2016 UT App 145, A.K.A., Talk to Your Child

We don’t really do termination of parental rights cases — primarily because we handle Utah divorces and child custody cases in district court, which is a completely different world from juvenile court, which is where you try termination cases.

That said, parental termination cases are very instructive in determining what you can focus on in divorce cases to show a parent has not acted well by their child.

They are also pretty useful in adoption cases, because in some adoption cases you have to terminate parental rights in order to adopt.

One pretty instructive case came down today from the Utah Court of Appeals: In re E.M.J. (In case you were wondering, the term in re means “in the legal case of” or “with regard to.”)

Facts

This case involves a father, A.M., and his child, E.M.J. E.M.J. had been neglected by his mother, and had been taken from A.M.’s care after a psychiatric incident in which A.M. was restrained by police. The juvenile court set a goal of permanently returning E.M.J. to her father’s care (E.M.J.’s mother had relinquished her parental rights), however, father didn’t follow the plan. A.M. didn’t drug test as required, and he missed parent-time visits. Eventually, the judge ordered A.M.’s visits supervised at the discretion of E.M.J.’s therapist.

In October 2014, A.M. missed a court review hearing. It was decided during that hearing that visitation would be terminated, and adoption would become the primary goal, although father was allowed supervised visits like he had always had them.

After this hearing, the State filed a petition to terminate A.M.’s parental rights. He was also informed by E.M.J.’s therapist that his visitations had been discontinued.

Upon learning this, A.M. left Utah, moved to California, and lived with his parents. A.M. did not call E.M.J. for months, although his parents called E.M.J. often, as well as sent letters and gifts.

When A.M. learned no court ordered existed terminating visitation, he made one call to E.M.J.’s DCFS caseworker to arrange a visitation. He never followed through on the visitation, however.

In January 2015, the State amended its petition to terminate parental rights to include abandonment as a grounds for termination. The judge agreed, and terminated A.M.’s parental rights because he abandoned E.M.J. by not communicating with him for more than six months.

A.M. responded by saying he only stopped communicating because the therapist told him his visitation was discontinued.

The Importance of Communicating with Your Child

Courts can only terminate parental rights for abandonment if it is proven by clear and convincing evidence (1) that a parent engages in conduct that demonstrates a conscious disregard for his or her parental obligations, and (2) that the parent’s conduct led to the destruction of the parent-child relationship.

Utah law states, among other things, a parent’s failure to communicate with a child for more than six months is ready evidence of abandonment.

A.M. did not contact E.M.J. for more than six months. To get around this, A.M. tried to argue that his parents contacted E.M.J., and they were acting as his “agents” in communicating with his child.

As you can imagine, that didn’t fly with the Court of Appeals. Instead, the Court of Appeals rightly concluded that third-party communication with a child is entirely different than a parent communicating with a child directly. Grandparents are great, but they aren’t parents.

A.M. also argued because he picked out a present for E.M.J. (E.M.J. had no idea he picked out the present) which A.M.’s parents gave E.M.J., that should count as communication. Again, this argument did not impress the Court of Appeals, which stated: “[M]onitoring a child’s life via a third party is not the same as communicating with the child.”

Nor was a phone call to E.M.J.’s caseworker sufficient to count as communication with E.M.J. This is especially true when that single phone call was followed by nothing. Not visit. No follow up. Nothing.

After dispatching with A.M.’s arguments regarding communication, the Court of Appeals affirmed the termination of parental rights.

Takeaways

Here is the big takeaway for me from this case: communicate with your child. If you want to have any chance to gain or even maintain parent-time, you have to talk with your child all the time.

As this case shows, you cannot rely on your parents, siblings, girlfriend, fiancée, cousins, or anyone else to do your communication for you. If you don’t do it yourself, then you will very likely lose out on visitation or parental rights.

One last lesson to learn: if someone tells you you cannot see your child, don’t take that person’s word for it. Unless there is a court order telling you you cannot visit your child, visit your child. Make every possible effort. If the person who told you you cannot see your kid is wrong, and you stop trying to visit your child, the Court of Appeals here is stating in no uncertain terms that failure to exercise visitation is on you.