State of Utah v. M.D.

State v. M.D.

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of M.D. and C.D., persons under eighteen years of age.

______________________________

State of Utah,

Appellee,

v.

M.D.,

Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030447-CA
 

F I L E D
(January 15, 2004)
 

2004 UT App 5

 

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Third District Juvenile, Salt Lake Department

The Honorable Frederic M. Oddone

Attorneys: Jeffrey J. Noland, Salt Lake City, for Appellant

Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee

Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Greenwood, Jackson, and Thorne.

PER CURIAM:

M.D. (Father) appeals from the juvenile court's decision terminating his parental rights to M.D. and C.D., contending that the decision should be reversed because three of the juvenile court's forty-two findings are clearly erroneous. We affirm.

Father first contends that finding seven is clearly erroneous because the children were removed the second time on November 1, 2002, not on April 15, 2002. Father further contends that finding seven is prejudicial because it reflects that the children resided with Father only a short period of time before the second removal. However, findings twelve and twenty-eight refer to the November 2002 removal, indicating that the juvenile court was aware of when the second removal occurred. Moreover, the juvenile court also found that the Division of Child and Family Services (DCFS) began receiving reports of neglect in April 2002 and began providing voluntary services in August 2002. Based on the juvenile court's other findings, we are not convinced that the discrepancy in finding seven requires reversal.

Father next challenges finding thirty-nine--that he is "sufficiently disabled so as to be of little or no resource to the children and while in [his] care the children have suffered physically, socially, and intellectually." To successfully challenge a finding, an appellant is required to marshal "the evidence in support of the finding[] and then demonstrate that despite this evidence, the . . . finding[] [is] so lacking in support as to be against the clear weight of the evidence." In re S.T., 928 P.2d 393, 400 (Utah Ct. App. 1996) (quotations and citations omitted). Father marshals no evidence in support of finding thirty-nine, nor does he demonstrate that the finding is against the clear weight of the evidence. Instead, Father asserts that he "did avail himself of objectives of the Service Plan and did make the changes necessary to have the Children returned to his custody."

Where an appellant fails to discharge his duty to marshal, "we assume that the evidence supports the juvenile court's finding[]." In re L.M., 2001 UT App 314,¶16, 37 P.3d 1188. Moreover, although Father did avail himself of service plans and made progress sufficient that the juvenile court terminated jurisdiction in November 2001, Father does not challenge the juvenile court's findings that thereafter conditions dramatically deteriorated; between April and August 2002 DCFS received referrals from a physician and a school counselor regarding C.D.'s condition; Father did not seem to understand or appreciate C.D.'s condition; DCFS discovered Father's residence was again unsanitary and unsafe; M.D. was malnourished and was beginning to manifest some of the same conditions C.D. was exhibiting; DCFS provided voluntary services to see if Father with prompting could provide safe and appropriate care, but he could not; although DCFS provided appropriate services, Father was unable to benefit from the services; the children were removed the second time based on circumstances that were substantially the same as the circumstances underlying the original removal; and although the children were not progressing, thriving, or being adequately educated when they were with Father, the children's conditions improved once they were removed. These unchallenged findings supported by the record establish that although Father made progress such that the juvenile court terminated jurisdiction in November 2001, thereafter Father, even with additional services, was unable to adequately parent the children.

Finally, Father contends that finding ten is clearly erroneous because the evidence at trial was "somewhat that [he] was intellectually deficient" and Dr. Kair testified that he could demonstrate adequate parenting skills in the foreseeable future. Father again fails to meet his burden to marshal. In addition to testifying that Father was borderline intellectual functioning, Dr. Kair testified that Father needed live-in support by someone who "functioned adequately in all domains" and that he was concerned about the adequacy of support from "someone outside the home . . . touching base with [Father] every day." Moreover, because the unchallenged findings are sufficient to support termination of Father's parental rights, the fact that Dr. Kair did not expressly testify that Father needed

twenty-four-hour support does not require reversal.

Accordingly, we affirm the termination of Father's parental rights.

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Pamela T. Greenwood, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge