Woodward v. Fazzio

• Decision Date: 09 December 1991
• Docket Number: No. 900626-CA,900626-CA
• Citation: Woodward v. Fazzio, 823 P.2d 474 (Utah App. 1991)
• Parties: Kim (Fazzio) WOODWARD, Plaintiff and Appellee, v. Richard Cameron FAZZIO, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 474

823 P.2d 474

Kim (Fazzio) WOODWARD, Plaintiff and Appellee, v.Richard Cameron FAZZIO, Defendant and Appellant.

No. 900626-CA.

Court of Appeals of Utah.

Dec. 9, 1991.

John Walsh, Salt Lake City, for appellant.

Larry R. Keller, Salt Lake City, for appellee.

Before JACKSON, ORME, and RUSSON, JJ.

OPINION

ORME, Judge:

Appellant appeals the juvenile court's order terminating his parental rights in his son.Appellant challenges the juvenile court's findings of fact insofar as they purportedly support a determination of abandonment.We reverse and remand for more detailed findings.

FACTS

AppelleeKim Woodward and appellantRichard Cameron Fazzio met in 1985 and began living together in August of that year.In September of 1986, Woodward gave birth to the parties' son.Three months later, Woodward and Fazzio participated in a marriage ceremony.However, at the time of the ceremony Woodward was already married to another man.As a result, when the union between Woodward and Fazzio was terminated, annulment was the method employed.The decree of annulment gave Woodward custody of the child, subject to reasonable visitation by Fazzio "as the parties can agree."¹After approximately two years under this arrangement, during which time Fazzio claims Woodward repeatedly attempted to prevent him from contacting the child, Fazzio petitioned the district court to amend the decree to provide for specific visitation.Woodward responded with a petition to terminate Fazzio's parental rights and a motion to transfer the same to juvenile court.The transfer was granted, and the petition was heard by the juvenile court in August of 1990.The court granted Woodward's petition, ruling Fazzio's conduct constituted abandonment of the child.This determination was accepted by the district court.

On appeal, Fazzio challenges the correctness of four of the juvenile court's findings of fact.²Those findings, in pertinent part, provide:

(# 7)Petitioner and Respondent separated for the last time on September 10, 1987, and Respondent has failed to make a serious effort to see the minor child, since that time.

....

It is evident to the court that the natural father has abdicated his responsibility as a parent to said child.He has absented himself, for various and sundry reasons, from the Child's life.

....

His contacts with the child have been inconsistent, sporadic and token....[T]he father's contact with the child has been minimal and only when his parents, Mr. and Mrs. Richard Fazzio, the paternal grandparents, had the child.

....

The father testified to frequent contacts and visits with the child, usually when in the care of the paternal grandparents, but, on more than one occasion, the father's testimony was directly impeached rendering his testimony less reliable and trustworthy.Indeed, there is credible and believable testimony that the child does not know Richard Cameron Fazzio as his father.

....

The court is convinced that the father's conduct has led to the destruction of the parent/child relationship.

(# 8)During the period of the parties' separation, and since the date of the Decree of Annulment (November 19, 1987)Respondent has paid no child support to Petitioner or anyone else on behalf of the minor child.

....

(# 10)Subsequent to the birth of the said child, Respondent had the opportunity to legally declare his paternity for the minor child, but he failed to do so in order to prevent the State of Utah or other persons or agencies from requiring him to meet his financial obligations as a parent.

(# 11)[Respondent] ... was emotionally abusive to the minor child, who is the subject of this action.

LAW GOVERNING TERMINATION OF PARENTAL RIGHTS

Utah Code Ann. § 78-3a-48(1987) provides the mechanism by which termination of parental rights may be effected.Since, in the instant case, the termination is based solely on abandonment, we begin our analysis by identifying the elements necessary to establish that condition.³The statutory abandonment provision reads as follows:

(1)The court may decree a termination of all parental rights with respect to one or both parents if the court finds either (a), (b), (c), or (d) as follows:

....

(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;

....

Utah Code Ann. § 78-3a-48(1987).

Only for a custodial parent may a "prima facie" showing of abandonment be established as set forth in subsection (b).State ex rel. T.E. v. S.E., 761 P.2d 956, 958(Utah App.1988).But abandonment by a non-custodial parent like Fazzio, as well as a custodial 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.' "Id.(quotingState ex rel Summers Children v. Wulffenstein, 560 P.2d 331, 334(Utah1977)).SeeState ex rel. J.R.T. v. Timperly, 750 P.2d 1234, 1236(Utah App.1988).The Wulffenstein test for determining abandonment in termination proceedings requires proof of two elements.First, the party seeking termination must prove that "the parent's conduct evidenced a conscious disregard for his or her parental obligations" to the child.Timperly, 750 P.2d at 1236.Second, the party must demonstrate that the "disregard led to the destruction of the parent-child relationship."⁴Id.;Wulffenstein, 560 P.2d at 334.Both of these elements must be proven by clear and convincing evidence.SeeSantosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599(1982);In re J. Children, 664 P.2d 1158, 1159(Utah1983).

FINDINGS GENERALLY

Rule 52(a), Utah R.Civ.P., provides that "[i]n all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon...."⁵Utah appellate courts"consistently stress" the importance of adequate "findings of fact."State v. Vigil, 815 P.2d 1296, 1300(Utah App.1991).To succeed in challenging the findings, appellant must prove they are clearly erroneous, i.e., against the clear weight of the evidence.State ex rel. J.R.T. v. Timperly, 750 P.2d 1234, 1236(Utah App.1988).Therefore, if we are to determine whether the evidence adduced at trial supports the trial court's findings, the findings must embody sufficient detail and include enough subsidiary facts to clearly show the evidence upon which they are grounded.SeeActon v. Deliran, 737 P.2d 996, 999(Utah1987);Bastian v. King, 661 P.2d 953, 957(Utah1983);Rucker v. Dalton, 598 P.2d 1336, 1338(Utah1979).Absent adequate findings of fact, meaningful review of a decision's evidentiary basis is virtually impossible.SeeState v. Lovegren, 798 P.2d 767, 771(Utah App.1990).

Fazzio, in his brief and at oral argument, characterized his appeal as a challenge to the trial court's factual findings.Accordingly, he attempted to marshal the evidence, as is required for such a challenge.SeeIn re Estate of Bartell, 776 P.2d 885, 886(Utah1989)(quotingState v. Walker, 743 P.2d 191, 193(Utah1987)).However, the marshaling effort was largely ineffectual by reason of the conclusory nature of the trial court's findings of fact.

"The process of marshaling the evidence serves the important function of reminding litigants and appellate courts of the broad deference owed to the fact finder at trial."State v. Moore, 802 P.2d 732, 739(Utah App.1990).However, we will only grant this deference when the findings of fact are sufficiently detailed to disclose the evidentiary basis for the court's decision.SeeLovegren, 798 P.2d at 771(trial court decision afforded no deference when findings inadequate).See alsoAllred v. Allred, 797 P.2d 1108, 1111(Utah App.1990)(failure to enter detailed findings concerning child support determination constitutes abuse of trial court's discretion).There is, in effect, no need for an appellant to marshal the evidence when the findings are so inadequate that they cannot be meaningfully challenged as factual determinations.In other words, the way to attack findings which appear to be complete and which are sufficiently detailed is to marshal the supporting evidence and then demonstrate the evidence is inadequate to sustain such findings.But where the findings are not of that caliber, appellant need not go through a futile marshaling exercise.Rather, appellant can simply argue the legal insufficiency of the court's findings as framed.As explained in the next section, whatever may be said of the extent to which the trial court's intended findings lack evidentiary support, the more immediate problem in this case is the inadequacy of the findings.

INADEQUACY OF TRIAL COURT'S FINDINGS OF FACT

Although the trial court's findings of fact constitute a full three pages of text, they nonetheless provide an inadequate account of the actual facts supporting the court's ultimate decision.Most of the "findings" are conclusory, and reflect an intention to merge the trial court's ultimate factual determinations with the requirements of the Wulffenstein test, and as such are more akin to conclusions of law.SeeVigil, 815 P.2d at 1299-1301.Finding of Fact # 7, for instance, states that "[appellant's] contacts with the child have been inconsistent, sporadic and token," that "it is evident to the court that the natural Father has abdicated his responsibility as a parent," and that "the court is convinced that the father's conduct has led to the destruction of the parent/child relationship."These conclusory...