State in Interest of J.R.T. v. Timperly

• Decision Date: 19 May 1981
• Citation: 750 P.2d 1234
• Parties: STATE of Utah, in the Interest of J.R.T., (
• Court: Utah Court of Appeals

Page 1234

750 P.2d 1234

STATE of Utah, in the Interest of J.R.T., (5-19-81) Plaintiff and Respondent, v. Terry TIMPERLY, Appellant.

No. 860254-CA.

Court of Appeals of Utah.

Feb. 22, 1988.

Bruce J. Udall, A. Paul Schwenke (argued), Schwenke & Udall, Murray, for appellant.

David L. Wilkinson, Atty. Gen., Diane Wilkins, Asst. Atty. Gen., Sandra Sjogren (argued), Asst. Atty. Gen., for the State.

Ann Wasserman, Salt Lake City, guardian ad litem.

Before BENCH, BILLINGS and ORME, JJ.

OPINION

BENCH, Judge:

Appellant father appeals from a Second District Juvenile Court decree permanently depriving him of parental rights in and to his son. We affirm.

J.R.T. was born in Colorado on May 19, 1981. When J.R.T. was several months old, his mother left him and his father, the appellant in the instant case. Approximately one year later, appellant and J.R.T. moved to Utah to live with appellant's brother and his wife.

In 1984, appellant enrolled J.R.T. in the Social Integration Project, an outreach program for underdeveloped preschoolers. At age three and one-half, J.R.T.'s development was severely delayed academically, physically, emotionally, and socially.

In March 1985, appellant's brother and his wife decided to move to California. Appellant chose to return to Colorado for employment and to be near his parents and other family. A social worker with the Division of Family Services (DFS) suggested appellant leave J.R.T. in Utah in foster care so he could continue his specialized education. Once appellant established himself in Colorado, J.R.T. would rejoin him. Appellant agreed, and, on March 29, 1985 his sister-in-law dropped the child off at the family support center. Appellant returned to Colorado. J.R.T. was placed in a foster home on April 2, 1985.

After a hearing on June 5, 1985, a court-ordered treatment plan, proposed by DFS, was prepared and sent to appellant. Under the plan, appellant was required to: 1) establish economic sufficiency and provide a suitable place to live; 2) maintain steady employment; 3) attend parenting classes; 4) comply with a reasonable visitation schedule; 5) submit to psychological evaluations; 6) contact Recovery Services to establish child support payments; and 7) furnish releases of information to DFS.

Between March 1985 and July 1986, a period of fifteen months, appellant did not visit or communicate with J.R.T. in any manner. Furthermore, appellant failed to comply with any of the terms and conditions of the treatment plan. Appellant also failed to respond to numerous attempts by DFS to contact him regarding his compliance with the plan. Consequently, on November 25, 1985, DFS filed a petition in the Second District Juvenile Court to terminate appellant's parental rights for abandonment, pursuant to Utah Code Ann. § 78-3a-48(1)(b) (1987). After a trial on August 11, 1986, the court entered its findings, conclusions, and decree permanently depriving appellant of his parental rights in and to J.R.T.

Utah Code Ann. § 78-3a-48(1)(a-d) (1987) allows a court to permanently terminate all parental rights under one of four showings: 1) parental unfitness, 2) abandonment, 3) substantial neglect, or 4) failure to communicate with the child for one year without just cause. The relationship between parent and child is a fundamental right and a liberty protected by the United States and Utah Constitutions. In re J.P., 648 P.2d 1364 (Utah 1982). Hence, a parent may not be permanently deprived of his or her parental rights absent a clear and convincing showing of unfitness, abandonment, or substantial neglect. Id; Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

Abandonment

On appeal, appellant first argues the evidence failed to meet the legal standard of "abandonment." The decision of a trial court to terminate parental rights will be disturbed on review only if the findings are clearly erroneous, i.e., if the findings are against the clear weight of the evidence. Utah R.Civ.P. 52(a); State v. Walker, 743 P.2d 191 (Utah 1987). See also State, In Interest of E. v. J.T., 578 P.2d 831 (Utah 1978) (termination order disturbed only if evidence clearly preponderates against findings or if court abused discretion).

The Utah Supreme Court has defined abandonment as "conduct on the part of the parent which implies a conscious disregard of the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship." State In Interest Of Summers Children v. Wulffenstein, 560 P.2d 331, 334 (Utah 1977). The Summers Children Court established a two-pronged test for determining abandonment: first, whether the parent's conduct evidenced a conscious disregard for his or her parental obligations, and second, whether that disregard led to the destruction of the parent-child relationship. Abandonment may be proven by either the parent's objective conduct or the parent's expressed subjective intent. In re J. Children, 664 P.2d 1158 (Utah 1983). Section 78-3a-48(1)(b) supplements the Utah Supreme Court's definition of abandonment by outlining a prima facie case:

It is prima facie evidence of abandonment that the parent or parents, although having legal custody of the child, have surrendered physical custody of the child, and for a period of six months following the surrender have not manifested to the child or to the person having the physical custody of the child a firm intention to resume physical custody or to make arrangements for the care of the child[.]

The evidence is uncontroverted that between March 1985 and July 1986 appellant failed to contact J.R.T. in any manner. Furthermore, between May 1985 and March 1986, but for one phone call initiated by DFS, appellant also failed to contact DFS in any manner. These facts, under the statute, constitute prima facie evidence of abandonment. In order to rebut the presumption of abandonment, the duty was upon appellant to manifest a firm intention to resume physical custody of, or make arrangements for the care of, J.R.T. within the six month period. State In Interest of A., 30 Utah 2d 131, 514 P.2d 797 (1973). Appellant offered no evidence of contact nor any reasonable excuse for his extended lack of contact with the child. Therefore, the evidence clearly supports the trial court's finding of abandonment. ¹

The State's Duty To Assist

Appellant next argues the state failed in its duty to provide him assistance to comply with the terms and conditions of the treatment plan. In State v. Lance, 23 Utah 2d 407, 464 P.2d 395 (1970), a mother was permanently deprived of all parental rights to her son on the ground she was "unfit or incompetent by reason of conduct or condition which is seriously detrimental to the child." Utah Code Ann. § 55-10-109(a) (1965) (now section 78-3a-48(1)(a)). On appeal, the Utah Supreme Court established a state duty of notice and assistance in certain cases of parental unfitness:

Since the species of her neglect involved rather subtle psychological factors--interference with the adequate social, educational, and psychological adjustment of her children--justice requires that she be informed of the condition and be advised of appropriate remedial action.

In subsequent termination for unfitness cases, the Court apparently broadened the state's duty beyond the factual limitation specified in Lance. In Interest of Walter B., 577 P.2d 119 (Utah 1978), the Court stated "it is a condition precedent to termination that the conduct or condition alleged to be seriously detrimental to the child cannot be corrected, after notice and opportunity implemented, by reasonable efforts of assistance." Id. at 124. In State, In Interest of E. v. J.T., 578 P.2d 831 (Utah 1978), the Court, noting Lance, held "a parent must be advised of alleged inadequacies and advised of appropriate remedial action so that she might have an opportunity to improve those conditions before those inadequacies may be made a basis for termination of parental rights." Id. at 836. Recently, in In Interest of S.R., 735 P.2d 53 (Utah 1987), the Court, noting Walter B., again held "the parent's conduct or condition must be such that it cannot be corrected, after notice and opportunity, with reasonable efforts of assistance." Id. at 56.

In contrast, in cases involving circumstances over which the parent has control, such as abandonment or physical abuse, the state does not have a comparable duty to assist. In J.C.O. v. Anderson, 734 P.2d 458 (Utah 1987), the trial court terminated a mother's and father's parental rights in their two children on the grounds of abandonment and unfitness. Referring to the duty established in Lance, the Court stated, "The foregoing comment in Lance was dicta and does not, by its own terms, apply when children are physically endangered by abuse or neglect. Furthermore, any notification of deficiencies, if and when required, need not be formal." Id. at 463. ²

This Court has followed the reasoning of the Utah Supreme Court as expressed in J.C.O. In State in Interest of M.A.V. v. Vargas, 736 P.2d 1031 (Utah App.1987), we held:

It is clear that the Lance requirement of particularized notice and efforts at "remedial action" prior to commencement of termination proceedings applies only to more exotic forms of abuse or neglect and...