L.M. v. M.K. v. M.K. and M.K.

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In the matter of the adoption of B.B.M., a minor.
______________________________

L.M.
Appellant,

v.

M.K. and M.K.,
Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971599-CA

F I L E D
January 21, 2000
  2000 UT App 008 -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
Jeffrey C. Howe, Salt Lake City, for Appellant
Frederick N. Green, Salt Lake City, for Appellees

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Before Judges Wilkins, Greenwood, and Jackson.

GREENWOOD, Associate Presiding Judge:

L.M. appeals from an order terminating her parental rights under Utah Code Ann. § 78-30-5 (1992) (repealed May 1, 1995) based on the trial court's determination that she had abandoned her child. We affirm.

L.M. first argues she is entitled to a transcript of the proceedings below at State expense because she is impecunious. However, L.M. has not stated nor explained how a transcript of the proceedings below would assist her in this appeal. In order to fairly assess L.M.'s argument, we have examined her proposed statement of the case, prepared pursuant to Utah Rules of Appellate Procedure 11(f). Accepting, for the purpose of argument, the accuracy of the statement, it nevertheless does not change our view of the merits of L.M.'s appeal. Assuming the trial court erred in failing to order the State to pay transcript costs, we conclude L.M. has not demonstrated that the error prejudiced her case on appeal, and consequently, we do not further consider the issue.

L.M. also argues that the trial court's findings of fact do not support the conclusion she abandoned her child, B.B.M. In considering this argument, "'[w]e 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) (quoting In re M.S., 815 P.2d 1325, 1328 (Utah Ct. App. 1991)). We review the trial court's legal conclusions for correctness. State v. Pena, 869 P.2d 932, 936 (Utah 1994).

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." In re Summers Children, 560 P.2d 331, 334 (Utah 1977).(1) "Abandonment may be proven by either the parent's objective conduct or the parent's expressed subjective intent." In re J.R.T., 750 P.2d 1234, 1236 (Utah Ct. App. 1988) (citation omitted). Applying section 78-30-5(1) in conjunction with the Summers two-part test, the trial court concluded that L.M. abandoned B.B.M. on January 10, 1995, when she voluntarily relinquished physical custody of B.B.M. in anticipation of his adoption.

L.M. objects to several of the trial court's factual findings, arguing her conduct prior to B.B.M.'s birth is not relevant to an abandonment determination. L.M. asserts the trial court should have considered only her actions after relinquishing physical custody of B.B.M. Specifically, L.M. claims the trial court erred in considering her relationship with her other children, her consideration of an abortion upon learning she was pregnant with B.B.M., and her alleged drug use during pregnancy in concluding that she abandoned B.B.M.

L.M., however, fails to challenge many of the court's other findings. We have examined the findings to which she does not object and find them sufficient to support the trial court's conclusion that L.M. abandoned B.B.M. Although the physical abandonment was for a relatively short period of time, the findings indicate that there was a destruction of the parent-child relationship that predated the physical separation. Specifically, the trial court found that L.M. frequently left B.B.M. in the care of others and that he was in poor physical and emotional condition at the time of physical separation. Further, L.M. does not refute that she relinquished physical custody of B.B.M. for adoption. Nor does she refute the trial court's findings that she failed to visit B.B.M., failed to inquire about his well-being, and failed to provide any financial support(2) during the period of physical separation. These findings support the trial court's conclusion of abandonment, and are not undermined by L.M.'s statement of the case.

Accordingly, we affirm the trial court's order terminating L.M.'s parental rights.
 
 
 
 

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

WE CONCUR:
 
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 
 

______________________________
Norman H. Jackson, Judge

1. Although the trial court terminated L.M.'s parental rights under section 78-30-5 of the Utah Code, much of the case law cited by the trial court, as well as by the parties, interprets the termination statute in the juvenile code. However, in In re J. Children, 664 P.2d 1158, 1159 (Utah 1983) the Utah Supreme Court explained, "[w]hether the question arises in a termination proceeding such as this, or in an adoption proceeding under § 78-30-5, the meaning of 'abandonment' and the burden of proof and persuasion are the same."

2. L.M. argues she was unable to provide financial support, relying on the financial information provided in her affidavit of impecuniosity she filed with the trial court July 22, 1997, over two years after the period of physical separation. However, L.M. does not dispute that she was employed with a net income of $1600 a month during part of the relevant time period.