T.V. v. State (In re C.V.)

T.V. v. State (In re C.V.)

IN THE UTAH COURT OF APPEALS
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State of Utah, in the interest of C.V., a person under eighteen years of age.
______________________________

T.V.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020547-CA

F I L E D
(April 3, 2003)

2003 UT App 93

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Third District Juvenile, Salt Lake Department

The Honorable Olof A. Johansson

Attorneys: Jeffrey J. Noland, Salt Lake City, for Appellant

Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee

Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Jackson, Billings, and Thorne.

JACKSON, Presiding Judge:

T.V. appeals from a final order terminating his parental rights to C.V., pursuant to Utah Code Ann. § 78-3a-407 (Supp. 2001), on grounds of abandonment, neglect, and unfitness. We affirm.

T.V. challenges the sufficiency of the evidence supporting two findings of fact. We review challenges to the sufficiency of evidence under the clearly erroneous standard. See In re E.R., 2001 UT App 66,¶11, 21 P.3d 680. T.V. also challenges the juvenile court's termination of his parental rights in light of the findings. We review the juvenile court's decision to terminate parental rights for clear error. See In re C.K., 2000 UT App 11,¶17, 996 P.2d 1059; see also Utah R. Civ. P. 52(a).

After reviewing the record, we conclude there was clear and convincing evidence to support the juvenile court's findings. T.V.'s first evidentiary challenge is simply incorrect. T.V. challenges the juvenile court's finding that no parole date had been set at the time of trial. T.V. claims his parole hearing was cancelled due to the pending proceeding. Regardless of when or why T.V.'s parole hearing was cancelled, T.V. did not have a parole date at the time of trial. Thus, the juvenile court's finding was not clearly erroneous.

T.V.'s second evidentiary challenge highlights a harmless, rather than reversible, error. T.V. calls attention to the juvenile court's finding that he had been incarcerated since September 2001 when in fact he had been incarcerated since November 2000. While T.V. is factually correct, we cannot reverse on this error because this fact does not aid his argument. See In re C.Y., 765 P.2d 251, 254 (Utah Ct. App. 1988) (refusing to reverse trial court's termination of parental rights for harmless error and stating error is reversible "'only if a review of the record persuades the [appellate] court that without the error there was "a reasonable likelihood of a more favorable result for the defendant"'" (citation and emphasis omitted)). The court's misstatement of an immaterial fact does not create a likelihood of a more favorable result for T.V. Accordingly, T.V.'s challenge to the juvenile court's finding fails.(1)

T.V. next argues the juvenile court improperly terminated his parental rights based on the findings. The juvenile court did not err in terminating T.V.'s parental rights because clear and convincing evidence supports the juvenile court's findings of unfitness and neglect. During the past fifteen years, T.V. has spent only twenty-five months out of prison. T.V. has never seen his child, even though C.V. was not in DCFS custody until he was five months old. Before C.V. was taken into custody, T.V. did not make any arrangements for his care. At that time, he knew C.V.'s mother had a history of drug abuse and had recently had her parental rights to two other children terminated on the grounds of neglect and drug abuse. While in prison, T.V. wrote

only one letter to his caseworker regarding C.V.,(2) and he provided no financial support to his child other than allowing a portion of his wages to be garnished.(3) At the time of his termination proceeding, T.V. did not have a parole date set, and he has not provided any alternate arrangements for C.V.'s care while he completes his prison term. Accordingly, the juvenile court did not clearly err in terminating T.V.'s parental rights on grounds of unfitness and neglect. See In re M.L., 965 P.2d 551, 558 (Utah Ct. App. 1998) (stating juvenile court may consider parent's "history of incarceration" in termination of parental rights proceeding); In re M.W.H., 794 P.2d 27, 29 (Utah Ct. App. 1990) (affirming juvenile court's termination of parental rights where father sent no letters or cards, made no telephone calls, and made no attempt to contact his child while incarcerated). Affirmed.

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Norman H. Jackson,

Presiding Judge

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WE CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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William A. Thorne Jr., Judge

1. T.V. also argues that the juvenile court improperly relied upon a finding that his sentences were consecutive rather than concurrent to conclude T.V. had abandoned C.V. We decline to address this issue, however, because independent grounds exist to terminate T.V.'s parental rights. See Utah Code Ann. § 78-3a-407(1) (2002) (stating "[t]he court may terminate all parental rights . . . if it finds any one" of a number of grounds for termination); see also In re D.B., 2002 UT App 314,¶13, n.4, 57 P.3d 1102 (declining to address the issue of abandonment where the court resolved the case on the issue of unfitness).

2. Based on his letter, it appears T.V. loves C.V. and desires to care for him. However, good intentions expressed in a single letter are not enough to demonstrate parental fitness. See In re M.W.H., 794 P.2d 27, 29 (Utah Ct. App. 1990) (affirming termination of parental rights where parent expressed good intentions but did nothing more to fulfil his parental obligations).

3. T.V. claims he sent other letters and hand-knit booties for C.V. and that his caseworker at the prison attempted to contact DCFS on his behalf on approximately five different occasions. T.V.'s DCFS caseworker testified, however, that she did not receive any follow-up letters or booties. The juvenile court found the testimony of the DCFS caseworker more credible than T.V.'s testimony. We defer to the juvenile court's credibility determination because of its "'"advantaged position with respect to the parties and the witnesses."'" In re J.N., 960 P.2d 403, 407 (Utah Ct. App. 1998) (citations omitted).