State, ex rel. D.M., 040920 UTCA, 20190470-CA

Docket Nº:20190470-CA
Opinion Judge:ORME, JUDGE
Party Name:State of Utah, In The Interest of D.M., A Person Under Eighteen Years of Age. v. State of Utah, Appellee. D.M., Appellant,
Attorney:Julie George, Attorney for Appellant Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee Martha Pierce, Guardian ad Litem
Judge Panel:Judge Gregory K. Orme authored this Opinion, in which Judges Kate Appleby and Diana Hagen concurred.
Case Date:April 09, 2020
Court:Court of Appeals of Utah
 
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2020 UT App 59

State of Utah, In The Interest of D.M., A Person Under Eighteen Years of Age.

D.M., Appellant,

v.

State of Utah, Appellee.

No. 20190470-CA

Court of Appeals of Utah

April 9, 2020

Third District Juvenile Court, Salt Lake Department The Honorable Kimberly K. Hornak No. 1150140

Julie George, Attorney for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Judge Gregory K. Orme authored this Opinion, in which Judges Kate Appleby and Diana Hagen concurred.

OPINION

ORME, JUDGE

¶1 Appellant D.M. (Father) challenges the juvenile court's decision to terminate his parental rights to his child, D.M. (Child), arguing that there was insufficient evidence to support the court's decision. Because there was sufficient evidence to support at least one of the grounds for termination upon which the court relied, we affirm.

BACKGROUND

¶2 In October 2017, the State removed Child from his mother's (Mother) custody following an incident where Mother, while arguing with her boyfriend in a car in which Child was present, "got out . . . and attempted to run in front of a semi as a suicide attempt." Mother was taken to a hospital, and Child "was taken into protective custody by Law Enforcement." Father was unable to take custody of Child at that time because he had "just got out of jail" for violation of a protective order entered as a result of Father being "physically violent with Mother in front of Child."

¶3 The Utah Division of Child and Family Services (DCFS) took custody and guardianship of Child and placed him with a foster family. The juvenile court then ordered both Mother and Father to comply with service plans DCFS created for them. The court also ordered Father to attend domestic violence classes, to complete a domestic violence assessment, and to take drug tests "more than once a month and at random." The court then set "[t]he primary goal for" Child as reunification with Mother and Father "with a concurrent goal of adoption."

¶4 In May 2018, because Father "was in compliance with" DCFS's plan and because his drug tests were coming back negative, the juvenile court authorized a trial home placement of Child with Father. During the beginning of this placement, Father held a full-time job and was able to provide financial support for Child. Mother, however, again attempted suicide, and following multiple failures to comply with her service plan, the court changed the permanency goal for Child to reunification with only Father.

¶5 In October 2018, approximately two months into Child's trial home placement, Father was arrested for driving under the influence (DUI).1 At that time, Father was on parole for aggravated assault resulting in serious bodily injury, a crime he committed against Mother in 2016. In November 2018, as a result of the DUI, Father's parole was terminated and he was returned to prison for "an indefinite term of not less than one year, nor more than fifteen years." The juvenile court then terminated Father's reunification services and designated adoption as the sole permanency goal for Child.

¶6 In April 2019, the court held a parental termination trial for both Father and Mother.2 By the time of trial, Father had spent approximately four months in prison and his actual release date was unclear, although it could potentially be as long as fifteen years. Father testified that the "matrix guidelines" for his case suggested that he serve 32 months and that he had served about 22 months total at the time of trial, meaning he expected to be released from prison in approximately another ten months.

¶7 Following the termination trial, the juvenile court made the following findings of fact: [DCFS] and other agencies have made active efforts to provide remedial Services and rehabilitative programs designed to prevent the breakup of the family. . . . Father did complete drug and alcohol treatment. However, Father received a DUI which was the basis for the revocation of his [parole] during the time when he had a trial home placement with Child. Father was provided services regarding domestic violence treatment, but he did not complete that program.

. . . .

It would be in [Child's] best interests to be adopted where [Child] will be secure, stable, and protected from further abuse and neglect and where [Child's] physical and emotional needs are being met.

Father had the opportunity and in fact did complete drug and alcohol treatment, but the fact that he recently received a DUI in October 2018, while Child had only been on a trial home placement with him for two months, is evidence that the court must consider that he still has a substance abuse problem and has not addressed that problem. Father currently is incarcerated at the State Prison. There is no clear and convincing evidence when he will be released. Therefore, the Court must find that he cannot currently care for his child at this time.

Furthermore, under Utah Code Ann. § 78A-6-508(2)(e) the Court shall consider, and it is required not discretionary, the fact that a parent is incarcerated for a greater term of more than one...

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