S.Z. v. State

S.Z. v. State

IN THE UTAH COURT OF APPEALS

----ooOoo----

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

______________________________

S.Z.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030684-CA
 

F I L E D
(May 20, 2004)
 

2004 UT App 168

 

-----

Third District Juvenile, Salt Lake Department

The Honorable Kimberly K. Hornak

Attorneys: Suzanne Marelius, Salt Lake City, for Appellant

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

Martha Pierce and James Michie, Salt Lake City, Guardians Ad Litem

-----

Before Judges Bench, Davis, and Jackson.

PER CURIAM:

S.Z., the biological aunt of A.Z., appeals the denial of her petition for adoption. We affirm.

A.Z. was the subject of competing petitions for adoption, one filed by S.Z. and the other filed by A.Z.'s foster family. Although both adoptive placements were suitable for A.Z., the juvenile court concluded that it was in his best interest to be adopted by the foster family with whom he had bonded.

S.Z. first argues that the evidence was insufficient to support the findings of fact. An appellant challenging findings of fact must first marshal the evidence supporting the findings, 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. See In re E.R., 2001 UT App 66,¶5, 21 P.3d 680. S.Z. has not marshaled the substantial evidence supporting the juvenile court's findings and seeks to reargue her position by selective presentation of evidence favoring her petition. Accordingly, she has failed to demonstrate that any finding is clearly erroneous. S.Z. also contends the juvenile court failed to give sufficient weight to testimony of her expert. The court received testimony from two expert witnesses and a court-ordered custody evaluation. The court's ruling reflects careful consideration of that evidence, including reference to the specific criteria used by S.Z.'s expert.

S.Z. next argues that the court erred in failing to apply a kinship preference in the adoption proceeding. Utah Code section 78-3a-307(5) (2002), which specifically pertains to temporary placement of a child after a shelter hearing, does not support this contention. In fact, the juvenile court was required by Utah Code section 78-30-1.6 (2002) to give "special consideration to the relationship of the child with his foster parents, if the child has been in that home for a period of six months or longer." S.Z.'s reliance upon In re H.J., 1999 UT App 238, 986 P.2d 115, is also misplaced. In H.J., we concluded that persons with a special relationship to a child, including grandparents, have the right to a hearing on adoption or custody matters. See id. at ¶32. Accordingly, their "inchoate right or interest in the custody" of children "should be seriously considered by the juvenile court 'at least to the extent of according . . . a hearing and determination on the merits' of an adoption petition." Id. (citation omitted). The record reflects that S.Z. received the special consideration mandated by H.J. The court required completion of a custody evaluation to assess the competing placements, held an evidentiary hearing, and announced its decision in a detailed ruling at the hearing's conclusion. H.J. requires no more than the hearing and careful consideration given to the petition by the juvenile court. The custody evaluator, expert witnesses, and court each considered the impact of the biological relationship in this case. Ultimately, the juvenile court found that "[p]lacement and stability . . . in a home which is high functioning and nurturing is more important than placement in a biological relative's home versus a nonbiological person's home."

Finally, S.Z. asserts that the only basis for the custody evaluation's recommendation for adoption by the foster family is that A.Z. was already in the home and may have an adverse reaction if he was removed. S.Z. selectively extracts statements from the report, disregarding the careful analysis of the evaluation as a whole and discounting serious concerns about removal. Both potential placements were suitable and could meet A.Z.'s needs. However, the unfortunate history of multiple placements, the child's attachment to the foster family, and his progress in their care were clearly significant considerations. The court, informed by expert testimony and the custody evaluation, determined that the most significant consideration was not length of time with the foster family, but A.Z.'s bond to that family. S.Z. fails to acknowledge the evaluator's concerns that removal would result in a sense of loss in A.Z. and pose an unacceptable risk that he could develop an attachment disorder.

We affirm the decision of the juvenile court.

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

James Z. Davis, Judge

______________________________

Norman H. Jackson, Judge