State v. D.

• Decision Date: 09 June 2011
• Docket Number: No. 20100406–CA.,20100406–CA.
• Citation: 2011 UT App 184,684 Utah Adv. Rep. 13,257 P.3d 1062
• Parties: STATE of Utah, in the interest of J.D. and E.D., persons under eighteen years of age.V.D., Appellant,v.State of Utah, Appellee.
• Court: Utah Court of Appeals

257 P.3d 1062

684 Utah Adv. Rep. 13

2011 UT App 184

STATE of Utah, in the interest of J.D. and E.D., persons under eighteen years of age.

v.

D., Appellant,

v.State of Utah, Appellee.

No. 20100406–CA.

Court of Appeals of Utah.

June 9, 2011.

David J. Angerhofer, Mt. Pleasant, for Appellant.Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee.Martha Pierce, Salt Lake City, Guardian Ad Litem.Before Judges McHUGH, ORME, and CHRISTIANSEN.

OPINION

McHUGH, Associate Presiding Judge:

¶ 1 V.D. (Mother) appeals the juvenile court's order terminating her parental rights with respect to her children, J.D. and E.D. (the Children). Mother asserts that there was insufficient evidence to demonstrate that termination was in the Children's best interest. We affirm.

BACKGROUND

¶ 2 Mother and A.D. (Father) are the natural parents of the Children. At the time of trial, J.D. was nine years old and E.D. was seven years old.

¶ 3 In April of 2008, J.D. reported to the Division of Child and Family Services (DCFS) that Father had intentionally burned her, and the Children were temporarily placed in the custody of their aunt (Aunt). On August 21, 2008, after finding that Father had non-accidentally burned J.D.'s wrist with a cigarette, the juvenile court found J.D. to be an abused child and E.D. to be a neglected child as to Father. The juvenile court also found that the Children were dependent as to Mother.¹ This court affirmed the juvenile court's decision of Father's appeal. See In re J.D., 2008 UT App 411U, 2008 WL 4899199 (per curiam).

¶ 4 After the 2008 adjudication, DCFS prepared a Child and Family Plan for Mother and Father, which required Mother to obtain a mental health assessment and to participate in individual counseling. The plan also required Father to obtain a psychological evaluation, complete a drug and alcohol assessment, participate in individual counseling, and provide adequate food, shelter, and clothing for the Children. Because Father failed to participate in the majority of court-ordered programs, DCFS cancelled Father's reunification services in October 2009. DCFS indicated, however, that Mother could regain custody of the Children if Father left the home. Several months passed before Father vacated the home and the Children were returned to Mother.

¶ 5 Initially, Mother and the Children did well enough that DCFS recommended closing the case with regard to Mother. Instead, the juvenile court left Mother's case open so that she could complete the Child and Family Plan. Rather than completing the plan as anticipated, Mother made a series of choices that were detrimental to the Children's welfare and that resulted in DCFS eventually filing the termination petition at issue.

¶ 6 After discovering that Father was having an extramarital affair with C.S., Mother became involved with C.S.'s husband, J.S. Shortly thereafter, and without DCFS approval, Mother and the Children moved in with J.S. and his children. Subsequently, J.S. was named as the alleged perpetrator in a referral to DCFS based on allegations of domestic violence and physical abuse. Then, while the Children were in his home, J.S. locked himself in his bedroom and overdosed on drugs. J.S. was transported to the hospital where he tested positive for opiates, PCP, and benzodiazepine. As a result of these events, J.S. was arrested and placed on a seventy-two hour hold. During J.S.'s absence, Mother and the Children continued to reside in J.S.'s trailer. A DCFS caseworker contacted Mother and made arrangements to check on the Children. Despite prior notice of the visit, the caseworker found J.S.'s trailer in such an unsanitary and unsafe condition that Mother was asked to have the Children stay elsewhere until the trailer could be cleaned. Thereafter, Mother took the Children to see J.S. in jail, despite the juvenile court's order that there be no contact between J.S. and the Children.

¶ 7 Based on this series of events, the Guardian Ad Litem (GAL) filed a Motion for Change of Custody. After an evidentiary hearing, the juvenile court found that the Children were neglected as to Mother and they were again placed in the custody of DCFS. For the second time, DCFS placed the Children with Aunt. In addition, Mother was ordered to complete a service plan that included a psychological evaluation and peer parenting classes. Mother's psychological assessment indicated that Mother suffered from several mood and personality disorders. Furthermore, Mother did not follow through with all of the service plan requirements. For example, Mother's peer parenting class was cancelled due to her failure to attend. Mother did, however, regularly attend visitation with the Children and she completed an eight-week parenting class in February 2010.

¶ 8 In March 2010, after having custody of the Children since August 2009, DCFS filed a petition to terminate the parental rights of both Mother and Father. The juvenile court held hearings on the petition and entered an order terminating Mother's and Father's parental rights on May 4, 2010. The juvenile court found that Mother and Father were unfit parents, were unable or unwilling to remedy the circumstances that caused the Children to be in out-of-home placements, and had each experienced a failure of parental adjustment, and that Father had made only token efforts to avoid being an unfit parent. The juvenile court also determined that it was in the best interest of the Children to terminate both Mother's and Father's parental rights. Each parent separately appealed the juvenile court's order, and this court has previously affirmed the termination of Father's parental rights. See In re J.D., 2010 UT App 212U, 2010 WL 3047014 (per curiam). In this appeal, we consider the termination of Mother's parental rights.

ISSUE AND STANDARD OF REVIEW

¶ 9 Mother argues that the State and GAL did not establish by clear and convincing evidence that it was in the Children's best interest to terminate her parental rights under Utah Code section 78A–6–503 because they did not provide sufficient evidence relevant to the best interest inquiry under that section. See Utah Code Ann. § 78A–6–503 (2008). We “review the juvenile court's factual findings based upon the clearly erroneous standard.” In re E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680; see also Utah R. Civ. P. 52(a) (“Findings of fact ... shall not be set aside unless clearly erroneous....”). A finding of fact is clearly erroneous when it is against the clear weight of the evidence. See In re E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680. Additionally, we give the juvenile court a “ ‘wide latitude of discretion as to the judgments arrived at based upon not only the court's opportunity to judge credibility firsthand, but also based on the juvenile court judge's' ‘special training, experience and interest in this field.’ ” Id. (quoting In re F.D., 14 Utah 2d 47, 376 P.2d 948, 951 (1962)).

ANALYSIS

¶ 10 The Utah Legislature has adopted a “judicial process for voluntary and involuntary severance of the parent-child relationship, designed to safeguard the rights and interests of all parties concerned and promote their welfare and that of the state.” Utah Code Ann. § 78A–6–503(1). That process involves a two-part analysis under which, “if a parent is found ... to be unfit ..., the court shall then consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered.” Id. § 78A–6–503(2). Interpreting this legislation, the Utah Supreme Court has explained that “to terminate parental rights, the juvenile court must make two separate findings. First, it must find grounds for termination under Utah Code section 78A–6–507.... Second, the juvenile court must find that termination of the parent's rights is in the best interest of the child.” In re A.C.M., 2009 UT 30, ¶ 23, 221 P.3d 185 (citations omitted). The juvenile court here determined that both prongs of the termination analysis had been proved by clear and convincing evidence. Mother does not dispute the court's finding that there are grounds for termination of her parental rights under Utah Code section 78A–6–507. See Utah Code Ann. § 78A–6–507. Rather, she contends that the evidence was insufficient to support the juvenile court's finding that termination of her parental rights is in the best interest of the Children.² Before we begin our analysis of that issue, we first address the GAL's suggestion that because we affirmed the termination of Father's parental rights, we must also affirm the termination of Mother's rights.

I. It Is Appropriate To Consider the Termination of Mother's Parental Rights Separately from the Termination of Father's Parental Rights.

¶ 11 Mother and Father are two separate individuals who each have a constitutional right to parent their children. See Jensen v. Cunningham, 2011 UT 17, ¶ 72, 250 P.3d 465 (“In a long line of precedent, this court has recognized parental rights as a fundamental component of liberty protected by article I, section 7 [of the Utah Constitution].”); In re K.S., 737 P.2d 170, 172 (Utah 1987) (“The parent-child relationship is constitutionally protected, and termination of that relationship is a drastic measure to be used only when the evidence is clear and convincing that the parent is unable or unwilling to perform the duties and responsibilities of a parent.”). Before either parent's parental rights can be terminated, the juvenile court must find by clear and convincing evidence that both the particular parent is unfit based on one of the grounds enumerated in Utah Code section 78A–6–507, see Utah Code Ann. § 78A–6–507, and that it is in the best interest of the child that the parent's rights be terminated, see Utah Code Ann. § 78A–6–503(2).

¶ 12 Evidence of Father's conduct is relevant to the grounds for terminating Mother's parental rights, in part, because Mother has a parental duty to protect the...