State of Utah, in the interest of J.B.

----ooOoo----

State of Utah, in the interest of J.B.,
a person under eighteen years of age.
______________________________

J.W.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010024-CA

F I L E D
February 7, 2002 2002 UT App 30 -----

Fourth District Juvenile, Provo Department
The Honorable Sterling B. Sainsbury

Attorneys:
Margaret P. Lindsay, Provo, for Appellant
Mark L. Shurtleff and John Peterson, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, Guardian Ad Litem -----

Before Judges Billings, Davis, and Thorne.
DAVIS, Judge:

J.W. appeals the trial court's order terminating his parental rights on the ground that the State failed to establish a prima facie case of either neglect or unfitness. J.W. does not challenge the trial court's ruling that it would be in the child's best interest that his parental rights be terminated. The trial court based its ruling on a determination of neglect and unfitness or incompetence. See Utah Code Ann. § 78-3a-407 (2),(3) (Supp. 2001). We affirm on the basis of unfitness. Cf.In re C.Y., 765 P.2d 251, 255 (Utah Ct. App. 1988).

J.W.'s parental unfitness must ultimately be shown by clear and convincing evidence. See Utah Code Ann. § 78-3a-406(3) (1996); In re J.R.T., 750 P.2d 1234, 1236 (Utah Ct. App. 1988). In addition, "[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 C.Y., 765 P.2d at 255.

A prima facie case of parental unfitness is established by "conviction of a crime, if the facts surrounding the crime are of such a nature as to indicate the unfitness of the parent to provide adequate care to the extent necessary for the child's physical, mental, or emotional health and development." Utah Code Ann. § 78-3a-408(4)(b) (Supp. 2001).(1) Additionally, In determining whether a parent or parents are unfit . . . the court shall consider, but is not limited to, the following conditions:
. . . . (e) . . . the parent is incarcerated as a result of conviction of a felony, and the sentence is of such length that the child will be deprived of a normal home for more than one year . . . . Id. § 78-3a-408(2)(e).

Uncontroverted and admitted by J.W. is his 12 month incarceration for convictions of distribution of a controlled substance and possession of drug paraphernalia.(2) Furthermore, J.W. was on probation for a 1997 conviction of possession of a controlled substance with intent to distribute. Additionally, at the time of the termination trial, J.W., who was still incarcerated, had pleaded guilty to possession of drug paraphernalia and had been found guilty of one count possession of drug paraphernalia, and two counts of possession of a controlled substance. However, J.W., at the time of the termination trial, had not been sentenced on these cases. Finally, the evidence at trial showed that J.W. had other felony controlled substance and forgery charges pending in Fourth District Court.

Even if the foregoing findings were insufficient to support a determination of unfitness because of incarceration for more than one year, the court also determined J.W. unfit because of his drug involvement and criminal behavior and made numerous unchallenged findings with respect thereto. Accordingly, not only did the State establish a prima facie case of unfitness, but there was clear and convincing evidence supporting the trial court's ultimate determination thereof.

Therefore, the trial court's order terminating defendant's parental rights to J.B. is affirmed.
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
William A. Thorne, Jr., Judge

1. The 1998 amendment to this section substituted "crime" for "felony" in subsection (4)(b) and thereby broadened its scope and applicability.

2. J.B. was born on December 24, 1999. On December 28, 1999, defendant was booked into the Utah County Jail to serve a twelve month sentence for these convictions and had an approximate release date of January, 2001.