J.A. v. M.M. (In re J.A.)

J.A. v. M.M. (In re J.A.)

IN THE UTAH COURT OF APPEALS

----ooOoo----

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

______________________________

J.A.,

Appellant,

v.

M.M.,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030443-CA
 

F I L E D
(February 12, 2004)
 

2004 UT App 29

 

-----

Third District Juvenile, Salt Lake Department

The Honorable Kimberly K. Hornak

Attorneys: John E. Laherty, Salt Lake City, for Appellant

Stephen D. Spencer, Murray, for Appellee

Martha Pierce, Salt Lake City, Guardian Ad Litem

-----

Before Judges Billings, Jackson, and Thorne.

JACKSON, Judge:

J.A. (Father) appeals the juvenile court's order terminating his parental rights to his daughter, J.A. We affirm.

At trial, Appellee M.M. (Mother) alleged three grounds for termination of Father's rights: abandonment of the child, unfitness as a parent, and only token efforts to communicate with the child. See Utah Code Ann. § 78-3a-407(1)(a), (c), (f) (2002 Supp.). The juvenile court may terminate the rights of a parent based on any one of these grounds. See id. § 78-3a-407.

Father argues that the juvenile court abused its discretion in determining that the findings of fact were legally sufficient to establish grounds for termination. See In re G.V., 916 P.2d 918, 920 (Utah Ct. App. 1996) (applying abuse of discretion standard to juvenile court's determination of sufficient grounds for termination).

Notwithstanding Father's attempts to reargue the weight of the evidence,(1) we determine that the juvenile court had ample evidence to establish all the alleged grounds for termination. Father threatened Mother and J.A. with extreme physical harm on a number of occasions. In one incident, Father held a gun to J.A.'s head. Father failed to pay child support. He has been convicted of a number of violent crimes, including assault against Mother. Father is currently incarcerated for pleading guilty to two counts of extortion perpetrated against a seventy-five-year-old man. This evidence is adequate under Utah law to support the juvenile court's findings and conclusions. See, e.g., Utah Code Ann. § 78-3a-408(2)(f) (2001) (requiring juvenile court to consider parent's "history of violent behavior"); In re R.A.F., 863 P.2d 1331, 1334 (Utah Ct. App. 1993) (stating two-part test for determining abandonment is "(1) whether the parent's conduct evidenced a conscious disregard for his parental obligations; and (2) whether that disregard led to the destruction of the parent-child relationship").

Although Father argues that he was prevented from making more than token efforts to communicate with his daughter by Mother's evasion, the juvenile court specifically determined that Father's testimony was not credible. We will not disturb a juvenile court's credibility determinations on appeal. See State v. Hansen, 2002 UT 125,¶48, 63 P.3d 650 ("Since a [juvenile] court is in a unique position to assess the credibility of witnesses and weigh the evidence, the court of appeals may not substitute its judgment as to a factual question unless the district court's finding is clearly erroneous.").

Thus, we cannot say the juvenile court abused its discretion because its findings are well-supported by the record and by Utah law. Father "has neither demonstrated that the [findings were] 'against the clear weight of the evidence,' nor has he convinced us that 'a mistake has been made.' Accordingly, we conclude that there was sufficient evidence to support" the juvenile court's findings. In re J.W., 2001 UT App 208,¶10, 30 P.3d 1232 (quoting In re V.T., 2000 UT App 189,¶8, 5 P.3d 1234).

We further conclude that the court acted properly in ruling that the statutory grounds for termination had been established.

Affirmed.

______________________________

Norman H. Jackson, Judge

-----

WE CONCUR:

______________________________

Judith M. Billings,

Presiding Judge

______________________________

William A. Thorne Jr., Judge

1. Reargument of the weight of the evidence on appeal is inappropriate appellate practice and is unavailing. Father "'may not reargue the weight of that evidence, relying upon testimony favoring [his position] and ignoring the conflicting testimony against him. The fact that [Father's] evidence contradicts the [juvenile] court's determination does not require reversal on appeal.'" In re J.W., 2001 UT App 208,¶10, 30 P.3d 1232 (quoting State v. Bingham, 732 P.2d 132, 133 (Utah 1987)).