Can Utah courts consider pending criminal charges in parental rights termination cases? M.S. v. State Explained

In M.S. v. State, the Utah Court of Appeals addressed whether juvenile courts may consider a parent’s pending criminal charges and resulting incarceration when determining whether to terminate parental rights.

Background and Facts

Mother initially lost custody of her children due to neglect involving domestic violence exposure. After completing her service plan, she regained custody with DCFS supervision. However, five months later, Mother was arrested on felony robbery charges and repeatedly incarcerated. During a six-month period, Mother was jailed three times totaling 47 days, including violations of pretrial release conditions. At the termination hearing, Mother invoked her Fifth Amendment rights regarding certain questions but admitted her van was impounded and a gun was found in it.

Key Legal Issues

The central issue was whether the juvenile court improperly relied on unproven criminal charges in terminating Mother’s parental rights. Mother argued the court should have required the State to prove the criminal conduct by clear and convincing evidence before considering it as grounds for termination.

Court’s Analysis and Holding

The Court of Appeals affirmed, holding that while criminal activity and incarceration alone cannot support termination, “repeated criminal activity and incarceration occurring after a parent has been the subject of DCFS referrals” can be properly considered. The court emphasized that Mother’s history of incarceration reflected “a disregard by [a mother] for [her child’s] welfare that necessarily goes to [the mother’s] fitness as a parent.” Importantly, the court noted that if a juvenile court bases termination solely on criminal wrongdoing, the State must prove the criminal conduct actually occurred.

Practice Implications

This decision clarifies that courts may consider pending charges and incarceration as part of the totality of circumstances affecting a parent’s ability to provide care. However, practitioners should present direct evidence of criminal behavior through witnesses or documentation rather than relying solely on charges and Fifth Amendment invocations. The court suggested that “witnesses such as the arresting officer or a store clerk” could have better established the connection between the parent’s conduct and actual criminal activity.