State of Utah, in the interest of A.R., V.G., and I.R.

----ooOoo----

State of Utah, in the interest of A.R., V.G., and I.R.,
persons under eighteen years of age.
______________________________

E.I.R.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990352-CA

F I L E D
August 10, 2000
  2000 UT App 243 -----

Third District Juvenile, Salt Lake Department
The Honorable Kimberly K. Hornack

Attorneys:
John E. Laherty, Salt Lake City, for Appellant
Jan Graham and Jeffrey S. Buckner, Salt Lake City, for Appellee
Martha Pierce and Karen Flynn, Salt Lake City, Guardians Ad Litem

-----

Before Judges Greenwood, Jackson, and Orme.

GREENWOOD, Presiding Judge:

E.I.R. appeals the juvenile court's termination of her parental rights. We affirm.

E.I.R. challenges three of the juvenile court's findings of fact, asserting that they are not supported by the evidence. "'We overturn findings of fact in a parental termination proceeding only if they are clearly erroneous . . . .'" In re adoption of B.O., 927 P.2d 202, 205 (Utah Ct. App. 1996) (citation omitted).

First, E.I.R. contends that the juvenile court's finding that she lacked interest in her children is not supported by the evidence. We disagree. Although the juvenile court's finding is not entirely correct regarding the number of hearings she attended, E.I.R.'s attendance prior to her incarceration was, at best, sporadic. Many of E.I.R.'s attendance problems were due to her own actions, including missing hearings when future court dates were set, failing to provide an address or phone number to either the court or her attorney, and failing to keep in contact with her attorney or the Division of Child and Family Services (DCFS). Furthermore, the record indicates that even when E.I.R. attended hearings, she failed to follow the orders of the court. The court directed E.I.R. to obtain a drug evaluation, find stable housing, and keep in contact with her attorney. E.I.R. failed to accomplish any of these directives. Thus, we conclude that the juvenile court's finding that E.I.R. lacked interest in her children is supported by her inconsistent attendance and failure to follow court orders.

Next, E.I.R. challenges the juvenile court's finding that she missed visits with her children. The court granted E.I.R. visitation on October 22, 1997. DCFS offered to transport the children and provided E.I.R. with a bus pass to facilitate visitation. The record indicates that she only visited the children twice between October 22, 1997 and her incarceration in January or February of 1998. During the first visit, E.I.R. behaved inappropriately. The second visit was just prior to E.I.R.'s incarceration. E.I.R. does not dispute that she missed the scheduled Christmas visit. As such, the trial court's finding that E.I.R. missed visits with her children is supported by the evidence.

Finally, E.I.R. challenges the juvenile court's finding that she continued to use drugs after a service plan was in place, asserting that the court was not presented with any evidence supporting this finding. Contrary to E.I.R.'s assertions, she offered testimony at trial that she was "into drugs" before going to prison. However, because neither the caseworker's nor E.I.R.'s testimony at trial directly stated that E.I.R. used drugs while the service plan was in place, this finding is somewhat problematic. Nonetheless, given the validity of the juvenile court's other findings, the result is the same even without the finding regarding drug use.

E.I.R. next challenges the sufficiency of the evidence supporting the juvenile court's termination of her parental rights. The juvenile court terminated E.I.R.'s parental rights on three different grounds, concluding that the children were neglected, that E.I.R. was unfit, and that there was a failure of parental adjustment. "In reviewing a termination decision, '[w]e will not disturb the juvenile court's findings and conclusions unless the evidence clearly preponderates against the findings as made or the court has abused its discretion.'" In re M.L., 965 P.2d 551, 559 (Utah Ct. App. 1998) (citation omitted). The juvenile court may terminate parental rights based on any one ground; therefore, in order to prevail on appeal, E.I.R. must prove that the juvenile court's conclusions are erroneous as they relate to each ground for termination. See Utah Code Ann. § 78-3a-407 (1996); In re C.K., 2000 UT App 11,¶20, 387 Utah Adv. Rep. 51.

After an initial finding that E.I.R.'s children were neglected, the juvenile court determined that the appropriate goal in the case was reunification of the family. To effectuate this goal, the court directed E.I.R. to obtain housing, employment, and drug treatment, and granted E.I.R. visitation; however, E.I.R. failed to meet any of these directives. E.I.R. contends that she was deprived of a meaningful opportunity to comply because she was incarcerated shortly after the service plan went into effect. We disagree.

At the time of trial, E.I.R.'s children had been in DCFS's custody for fifteen months. E.I.R. was incarcerated approximately three months after DCFS assumed custody of her children and remained incarcerated at the time of trial. The juvenile court was presented with ample evidence that E.I.R. habitually and excessively used controlled substances, and that her drug use stopped only due to her incarceration. Further, E.I.R. did not make any attempt to comply with the juvenile court's directives, or any of the provisions of her service plan. While incarceration alone is an inadequate basis for termination of parental rights, E.I.R.'s past conduct as well as the voluntary behavior that led to her incarceration support the juvenile court's conclusions.

We decline to address E.I.R.'s claim that section 78-3a-408(2)(e) of the Utah Code is unconstitutionally vague because E.I.R. failed raise this challenge below. See State v. Alvarez, 872 P.2d 450, 460 (Utah 1994) (refusing to consider defendant's vagueness challenge not properly preserved below); State v. Hubbard, 861 P.2d 1053, 1054 n.4 (Utah Ct. App. 1993) (holding defendant waived vagueness claim by not presenting it to trial court).

Accordingly, we affirm the juvenile court's termination of E.I.R.'s parental rights.
 
 
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge