State in Interest of T.E. v. S.E., 870454-CA

• Decision Date: 28 September 1988
• Docket Number: No. 870454-CA,870454-CA
• Citation: 761 P.2d 956
• Parties: STATE of Utah, in the Interest of T.E. and B.E., Plaintiff and Respondent, v. S.E., Defendant and Appellant.
• Court: Utah Court of Appeals

Page 956

761 P.2d 956

STATE of Utah, in the Interest of T.E. and B.E., Plaintiff and Respondent, v. S.E., Defendant and Appellant.

No. 870454-CA.

Court of Appeals of Utah.

Sept. 28, 1988.

James L. Shumate (argued), Cedar City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Sandra L. Sjogren (argued), Asst. Atty. Gen., for plaintiff and respondent.

Before BENCH, BILLINGS and ORME, JJ.

OPINION

BENCH, Judge:

Defendant father appeals from a juvenile court decree permanently depriving him of parental rights on grounds he had abandoned two of his children. We reverse and remand.

Appellant is the father of three minor children, M.E., T.E., and B.E. M.E. and T.E. are mentally retarded while B.E. is extremely bright. In late 1982, appellant and the children's mother separated. Appellant moved to Elko, Nevada, while mother and children moved to Cedar City, Utah. In 1984, pursuant to a divorce decree, appellant was awarded custody of M.E., and mother was awarded custody of T.E. and B.E.

The Division of Family Services (DFS) removed T.E. and B.E. from their mother's home on several occasions on grounds of neglect. The two children were in foster care during most of the school years 1985-86 and 1986-87. After a six-week visitation with T.E. and B.E. during the summer of 1986, appellant requested custody of them. The juvenile court denied the request after a hearing on September 6, 1986. T.E. and B.E. remained in separate foster homes and DFS prepared a treatment plan for the natural parents designed to reunite T.E. and B.E. with either parent. Appellant never signed the treatment plan and did not communicate with the children for a period of eight months. ¹ The children's mother did sign the plan and she was given weekly visitation with the children.

In February 1987, after a regularly scheduled visit with the mother, allegations were made that the children's stepfather had sexually abused T.E. Thereafter, in April 1987, DFS filed a petition to terminate parental rights to T.E. and B.E. of not only the mother, but also the appellant. A hearing on the petition was conducted on July 6, 1987. At the hearing, the following individuals testified: T.E.'s foster mother, B.E.'s foster mother, a DFS social worker, the children's mother, and the children's stepfather. The court terminated the mother's parental rights based on physical abuse and neglect. That portion of the juvenile court's decision is not appealed.

Appellant was not present at the hearing of July 6, 1987, apparently because of a work conflict. Appellant's attorney moved to continue the hearing as it pertained to appellant. Without expressly ruling on the motion for continuance, the court permanently terminated appellant's parental rights to T.E. and B.E. ² Later, after a hearing on appellant's petition for a rehearing, the court specifically found abandonment as the basis for its decision. On appeal, appellant argues the evidence does not support a finding of abandonment.

The decision of a trial court to terminate parental rights will be disturbed on appeal only if the findings are clearly erroneous under Utah R.Civ.P. 52(a). "[T]he content of Rule 52(a)'s 'clearly erroneous' standard ... requires that if the findings ... are against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made, the findings ... will be set aside." State v. Walker, 743 P.2d 191, 193 (Utah 1987). On the evidence presented in this case, the finding of abandonment must be set aside.

Utah Code Ann. § 78-3a-48(1) (1987) allows a court to terminate a parent's rights to a child if the court finds any one of the following:

(a) that the parent or parents are unfit or incompetent by reason of conduct or condition which is seriously detrimental to the child;

(b) that the parent or parents have abandoned the child. 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;

(c) that after a period of trial, during which the child was left in his own home under protective supervision or probation, or during which the child was returned to live in his own home, the parent or parents substantially and continuously or repeatedly refused or failed to give the child proper parental care and protection; or

(d) has failed to communicate via mail, telephone, or otherwise for one year with the child or shown the normal interest of a natural parent, without just cause.

The trial court based its decision on abandonment under subsection (b) of the statute. ³ Under that subsection, the trial court may permanently terminate a parent's rights to a child where the court finds, on clear and convincing evidence, the parent has abandoned the child. In re J.P., 648 P.2d 1364 (Utah 1982). For a custodial parent, a "prima facie" case for abandonment may be established as indicated by the statute. State, in Interest of J.R.T., 750 P.2d 1234, 1236-37 (Utah App.1988). Abandonment by either a custodial or noncustodial parent may also be found where conduct on the part of the parent "implies a conscious disregard of the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship." In re J. Children, 664 P.2d 1158, 1159 (Utah 1983) (quoting Summers Children v. Wulffenstein 560 P.2d 331,...