S.H. v. R.D. (In re A.D.)

S.H. v. R.D. (In re A.D.)

IN THE UTAH COURT OF APPEALS
 

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In the interest of A.D., a person under eighteen years of age.

______________________________

S.H. and W.H.,

Appellees,

v.

R.D.,

Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040140-CA
 

F I L E D
(November 4, 2004)
 

2004 UT App 398

 

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Second District Juvenile, Ogden Department

The Honorable J. Mark Andrus

Attorneys: Dee W. Smith, Ogden, for Appellant

J. Paul Stockdale, Ogden, for Appellees

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Before Judges Billings, Greenwood, and Thorne.

PER CURIAM:

    R.D., the father of A.D., appeals the termination of his parental rights on a petition filed by S.H. and W.H., who are A.D.'s maternal aunt and uncle.

    "In reviewing a decision to grant or deny a termination petition, '[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 R.A.J., 1999 UT App 329,¶6, 991 P.2d 1118 (alteration in original) (quoting In re M.L., 965 P.2d 551, 559 (Utah Ct. App. 1998)). After finding that "the parent is below some minimum threshold of fitness," the court must then "find that the best interests and welfare of the child are served by terminating the parents' parental rights." Id. at ¶7. R.D. does not challenge the juvenile court's findings of fact or the conclusion that he was an unfit parent, but he contends that S.H. and W.H. "failed to prove by clear and convincing evidence that it was in the child's best interest to terminate the parental relationship." Accordingly, he argues that the juvenile court abused its discretion in finding that it was in A.D.'s best interest to terminate his parental rights. R.D. asserts that A.D. should remain in the custody of S.H. and W.H., without termination of his rights, until he can remedy his parental unfitness and provide a stable home.

    R.D.'s reliance upon R.A.J. is misplaced. In R.A.J., the child's foster parents, who had permanent custody, petitioned for termination of the biological parents' rights to allow them to adopt. See id. at ¶4. The juvenile court found grounds for termination as to both parents; however, it found "the evidence presented by the foster parents was insufficient to establish that termination was in [the child's] best interest." Id. Therefore, the juvenile court concluded that the petitioners "had failed to present evidence as to how terminating the relationship between the child and her mother would improve the state of affairs then enjoyed by the child in the permanent custody of the foster parents." Id. at ¶14. The juvenile court noted the "dearth of information" about the child's relationship with her mother. Id. at ¶5 n.3.

    R.D.'s argument wholly discounts A.D.'s need for stability. Indeed, this court noted in R.A.J. that the juvenile court's ruling was "at odds with some policy concerns of Utah's child welfare laws" favoring providing "a child, whose parent has been unable to reunify, with a stable, permanent environment." Id. at ¶23. We stated that the foster parents' "failure of proof left the trial court in a difficult position" in which the child "could not be returned to either parent, but could not be placed for adoption." Id. There is no comparable failure of proof in this case. The unchallenged findings of fact include findings that A.D. lived with R.D. and her mother for only the first year of her life; A.D. ingested Tylenol PM to the point of overdose at twelve months of age, while in R.D.'s care; R.D. failed to comply with a court-ordered service plan; R.D. engaged in domestic violence directed toward A.D.'s mother; R.D. has a history of alcohol abuse; R.D. consistently failed to pay child support; and R.D. failed to communicate with his child for periods of six months or more on at least three occasions. In contrast, the juvenile court found that A.D. has resided with S.H. and W.H. since the death of her mother in June 2003; they had demonstrated a commitment to act in her best interest even prior to that time; they (and not the parents) attended to the baby while her stomach was being pumped; they assisted the mother while A.D. was living with her; A.D. lived with them for periods when the parents were unable to provide care; they retrieved A.D. from Nevada after the mother's death; and A.D. is happy and has done well in their home. The court further found, in relevant part, that S.H. and W.H. have a stable home, have stable income and employment, have demonstrated a long-term commitment to A.D., and wish to adopt her. Given the evidence demonstrating that R.D. has taken no significant steps to establish or maintain a parental relationship with A.D., the juvenile court did not abuse its discretion in finding that termination of his rights is in A.D.'s best interests.

    Accordingly, we affirm the order terminating parental rights.

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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge