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

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

IN THE UTAH COURT OF APPEALS

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In the matter of J.A.J. and D.L.J., minors.

______________________________

L.J.,

Appellant,

v.

M.P.L.,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030538-CA
 

F I L E D
(April 29, 2004)
 

2004 UT App 130

 

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Fourth District, Provo Department

The Honorable Gary D. Stott

Attorneys: David A. McPhie, Salt Lake City, for Appellant

Richard S. Nemelka, Salt Lake City, for Appellee

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Before Judges Bench, Greenwood, and Orme.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3). Moreover, the issues presented are readily resolved under applicable law.

Under the Termination of Parental Rights Act, Utah Code Ann. §§ 78-3a-401 to -415 (2002 & Supp. 2003), "[t]he court may terminate all parental rights with respect to a parent if it finds," among other things, "that the parent has abandoned the child," id. § 78-3a-407(1)(a) (2002), or "that only token efforts have been made by the parent . . . to support or communicate with the child." Id. § 78-3a-407(1)(f)(i). "When reviewing a termination petition, 'we will disturb the findings and conclusions of the [trial] court only if the evidence clearly preponderates against the findings as made or the court has abused its discretion.'" In re W.A., 2002 UT 127,¶8, 63 P.3d 607 (citation omitted), cert. denied, 538 U.S. 1035, 123 S. Ct. 2092 (2003). Accordingly, "[t]o successfully challenge the trial court's determination [regarding] token efforts under section 78-3a-407, appellant must show that the trial court abused its discretion." In re B.O., 927 P.2d 202, 206 (Utah Ct. App. 1996).

Appellant's primary argument is that the evidence does not support the trial court's finding that Appellant "failed to communicate with the children by mail, telephone, or otherwise," for a period of some years. Appellant acknowledges that "[i]t was undisputed at trial that [he] did not visit with his children in-person" during most of that time, but maintains that the trial court's determination is not supported by the evidence given that he occasionally spoke to his children on the telephone and saw his children several times during those years.

As indicated, "[t]he court may terminate all parental rights with respect to a parent if it finds . . . that only token efforts have been made by the parent . . . to support or communicate with the child." Utah Code Ann. § 78-3a-407(1)(f)(i) (2002). Given Appellant's sporadic visitation, communication, and support over the course of several years, the trial court was well within its broad range of discretion in determining that Appellant's efforts did not go beyond mere token efforts.(1)

Affirmed.

______________________________

Gregory K. Orme, Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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Pamela T. Greenwood, Judge

1. While one method of establishing abandonment is through the evidentiary device set forth in Utah Code Ann. § 78-3a-408(1)(c) (2002), which is qualified by a "without just cause" requirement, id., the "token efforts" ground set forth in section 407 is not similarly qualified. See id. § 78-3a-407(1)(f). In so observing, we do not mean to imply that Appellant had "just cause" to give his children such short shrift.