H.R. v. V.L. (In re D.L.)

H.R. v. V.L. (In re D.L.)

IN THE UTAH COURT OF APPEALS
 

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State of Utah, in the interest of D.L. and K.L.,
persons under eighteen years of age.

______________________________

H.R. and S.R.,

Appellees,

v.

V.L. and D.L.,

Appellants.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040618-CA
 

F I L E D
(November 18, 2004)
 

2004 UT App 426

 

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Third District Juvenile, Salt Lake Department

The Honorable Robert S. Yeates

Attorneys: Cheri M. Stringham, Salt Lake City, for Appellants

James B. Hanks, Salt Lake City, for Appellees

Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Billings, Greenwood and Thorne.

PER CURIAM:

    V.L. and D.L. appeal a juvenile court order terminating their parental rights. We affirm.

    V.L. and D.L. argue that when the juvenile court terminated their parental rights, it failed to consider the desires of the children as required by Utah Code section 78-3a-409(1)(a). See Utah Code Ann. § 78-3a-409(1)(a) (2002). "Application of the statutory law to the facts presents a mixed question of fact and law. We review the juvenile court's findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts." In re G.B., 2002 UT App 270,¶11, 53 P.3d 963 (quotations and citation omitted).

    Utah Code section 78-3a-409(1)(a) states that the juvenile court, in determining whether parental rights should be terminated, shall consider, but is not limited to: "the physical, mental, or emotional condition and needs of the child and his desires regarding the termination, if the court determines he is of sufficient capacity to express his desires." Utah Code Ann. §78-3a-409(1)(a). This section does not require a juvenile court to make separate findings specifically addressing each element therein, but requires only that such matters be considered by the court when making its final determination. See id.; In re S.T., 928 P.2d 393, 400 (Utah Ct. App. 1996).

    The juvenile court conducted a three-day hearing, during which it received evidence on various issues including the desires of the children. The evidence presented included reports and testimony prepared by various social workers and the detailed testimony of H.R. and S.R. and other family members. The court also heard the argument of counsel for the parties and the guardian ad litem. The record shows that each of these sources provided the juvenile court with information concerning the purported desires of the children.

    The juvenile court subsequently made findings of fact relevant to the children's desires, including: (1) repeated findings that, although the children have flourished with H.R. and S.R., they often regress after visiting with V.L. and D.L. (citing specific examples such as anger and bed wetting); and (2) findings that the children enjoy their new family, have bonded and adapted with the members of that family, and consider H.R. and S.R. as their parents. These findings are in addition to the court's findings regarding: (1) facts relating to a previously adjudicated neglect proceeding; (2) V.L.'s drug use and transiency, and the effect on her ability to provide any appropriate care for the children; (3) D.L.'s admitted anger and transiency, and the effect on the children; (4) V.L. and D.L.'s interference with H.R. and S.R.'s parental authority; and (5) the children's need for continued parental care, security, stability, and protection from abuse and neglect.

    Clearly, the juvenile court's findings demonstrate that it "consider[ed] the requirements set forth in [section 78-3a-409(1)(a)] when making its final determination," including the desires of the children. In re G.B., 2002 UT App 270 at ¶22 (quotations and citations omitted). This is all that is required under the statute. See also State v. Pecht, 2002 UT 41,¶22, 48 P.3d 931 (noting that appellate courts generally uphold "the trial court even if it failed to make findings on the record whenever it would be reasonable to assume that the court actually made such findings" (quotations and citations omitted)). Therefore, we conclude that prior to terminating V.L. and D.L.'s parental rights, the juvenile court complied with the requirements of section 78-3a-409(1)(a) and properly considered the desires of the children.

    Finally, to the extent V.L. and D.L.'s assignment of error concerns the sufficiency of the evidence supporting the juvenile court's findings and ultimate decision to terminate their parental rights, V.L. and D.L. have failed to make a sufficient showing. Findings of fact in a parental rights termination proceeding are overturned only if they are clearly erroneous. In re S.T., 928 P.2d at 400. To establish clear error, "an appellant must marshal the evidence in support of the findings and then demonstrate that despite this evidence, the juvenile court's findings are so lacking in support as to be against the clear weight of the evidence." Id. (quotations and citations omitted). V.L. and D.L. have made no attempt to marshal the evidence, and have not established clear error in the juvenile court's findings. "If the marshaling requirement is not met, the appellate court has grounds to affirm the court's findings on that basis alone. . . . If appellants have failed to properly marshal the evidence, we assume that the evidence supports the trial court's findings." Chen v. Stewart, 2004 UT 82,¶80, 510 Utah Adv. Rep. 9 (citations omitted).

    We therefore affirm the juvenile court's order terminating appellants' 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