M.W. v. State (In re D.W.)

M.W. v. State (In re D.W.)

IN THE UTAH COURT OF APPEALS

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

______________________________

M.W.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030630-CA
 

F I L E D
(July 1, 2004)
 

2004 UT App 221

 

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Third District Juvenile, Salt Lake Department

The Honorable Sharon P. McCully

Attorneys: April Freedman, Salt Lake City, for Appellant

Mark L. Shurtleff and Carol L.C. Verdoia, Salt Lake City, for Appellee

Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Bench, Greenwood, and Jackson.

BENCH, Associate Presiding Judge:

    M.W. (Father) appeals the juvenile court's order terminating his parental rights, arguing that the State presented insufficient evidence to prove his parental rights should be terminated. "Findings of fact in a parental rights termination proceeding are overturned only if they are clearly erroneous." In re G.B., 2002 UT App 270,¶9, 53 P.3d 963 (quotations and citations omitted). "We review conclusions of law for correctness, giving no deference. However, the trial court is afforded some discretion in applying the law to the facts." In re C.B., 1999 UT App 293,¶5, 989 P.2d 76 (citation omitted).

    "Utah law requires a court to make two distinct findings before terminating a parent-child relationship." In re R.A.J., 1999 UT App 329,¶7, 991 P.2d 1118. First, it must find that "'the parent is below some minimum threshold of fitness.'" Id. (citation omitted). "Second, the court must find that the best interests and welfare of the child are served" by termination. Id.

    The juvenile court found that: 1) the children had been abused and/or neglected; 2) Father was unfit or incompetent; 3) Father had made only token efforts; 4) Father failed to remedy the circumstances leading to removal; and 5) there was a failure of parental adjustment. A finding of any one of these grounds independently supports the juvenile court's order to terminate Father's parental rights. See Utah Code Ann. § 78-3a-407 (2002) ("The court may terminate all parental rights with respect to a parent if it finds any one of the [enumerated grounds]." (Emphasis added.)); see also In re F.C., 2003 UT App 397,¶6, 81 P.3d 790.

    Even if we disregard the portion of finding 33 that two of the children were previously "adjudicated to be neglected children by the Nevada Courts," the evidence is sufficient to uphold the termination order. Father concedes that he had two past DUI convictions, for which he spent time in prison; that on New Year's Eve, he drank alcohol and was exposed to cocaine;(1) that on March 23, 2003, he consumed beer, was arrested, and spent a number of hours in jail; that he has not had a valid driver license for seven years; that he believes he is a better driver for not having a license; that he believes he is a better driver after drinking a few beers; that he does not recognize his alcohol use as a problem, and does not acknowledge that it presents a risk to the children. We need not determine whether the other findings of fact, disputed by Father, are clearly erroneous because, even without considering the disputed findings, there is sufficient evidence to support the court's conclusion that Father falls below a "minimum threshold of fitness." In re R.A.J., 1999 UT App 329 at ¶7.

    As for the "best interests and welfare," id., of the children, the juvenile court did not exceed its discretion in concluding that, "all of the children are very adoptable, that they deserve to know that they have safe, permanent homes . . . . That it is in the best interests of the children not to continue to reside in homes where the parents are substance abusers and unable to appropriately care for them . . . . And that the children can and should have permanent, safe homes, that they can be adopted by relatives who love them and have committed to adopt them. And it would be in their best interest to do so."

We therefore affirm.

______________________________

Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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Norman H. Jackson, Judge

1. Father did participate in a court-ordered alcohol and drug evaluation, and his hair tested positive for cocaine. The toxicologist testified that Father's hair showed "high values" for cocaine, typical of a weekend, recreational user.