D.V. v. State (In re A.D.)

D.V. v. State (In re A.D.)

IN THE UTAH COURT OF APPEALS
 

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

______________________________

D.V.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20050273-CA
 

F I L E D
(June 23, 2005)
 

2005 UT App 291

 

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Third District Juvenile, Salt Lake Department, 429750

The Honorable Kimberly K. Hornak

Attorneys: Jacee E. Ballard, Salt Lake City, for Appellant

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

Martha Pierce and Kristin Fadel, Salt Lake City, Guardians Ad Litem

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Before Judges Bench, Greenwood, and Thorne.

PER CURIAM:

    Appellant D.V.'s appeals the juvenile court's termination of her parental rights. D.V. is the natural mother of A.D. and A.D. D.V. argues two issues on appeal. First, she argues that the juvenile court erred in terminating her parental rights, based on failure of parental adjustment, as a result of her failure to complete the requirements of the service plan. Her argument is based on Utah Code section 78-3a-407(2), which states that the court cannot terminate parental rights because the parent has failed to complete the requirements of a treatment plan. See Utah Code Ann. § 78-3a-407(2) (2002). Second, D.V. argues that the juvenile court abused its discretion by failing to consider the desires of the children to have a continued relationship with D.V., and that it is in the children's best interest to have continued contact with D.V. See Utah Code Ann. §§ 78-3a-402(2) (2002); 78-2a-409(1)(a) (2002).

    When the sufficiency of the juvenile court's findings and ultimate decision to terminate parental rights is questioned, we will only overturn the findings if they are "clearly erroneous." In re E.R., 2001 UT App 66,¶11, 21 P.3d 680; In re S.T., 928 P.2d 393, 400 (Utah Ct. App. 1996). "The juvenile court in particular is given a 'wide latitude of discretion as to the judgments arrived at' based upon not only the court's opportunity to judge credibility first hand, but also based on the juvenile court judges' 'special training, experience, and interest in this field, and . . . devot[ed] . . . attention to such matters . . . .'" In re E.R, 2001 UT App at ¶ 11 (citation omitted). Consistent with the discretion afforded a judge in terminating parental rights, we will overturn the decision of a juvenile court judge only when "'the evidence clearly preponderates against the findings . . . or [when] the court has abused its discretion.'" In re R.A.J., 1999 UT App 329,¶13, 991 P.2d 1118, (quoting In re M.L., 965 P.2d at 559 (Utah Ct. App. 1998)).

    The juvenile court terminated reunification services and terminated D.V.'s parental rights after a trial. The court concluded that D.V.'s slow start and initial lack of progress in treatment, including leaving inpatient treatment and wasting time in outpatient treatment, which was not in the treatment plan, caused her to be unable to meet the statutory deadline, despite her progress in Odyssey. The juvenile court concluded that her treatment in Odyssey would take at least six more months to complete and that the statute does not provide for further time to comply. See In re M.L., 965 P.2d 551, 559 (Utah Ct. App. 1998) (indicating that under Utah's statutory scheme a parent is given approximately twelve months from the removal to show progress). "The primary reason for the time frame is apparent: The State has an interest in removing the child from the legal limbo of State custody as soon as possible so as to provide the child with a permanent and stable home." Id. Further, termination is appropriate, "regardless of the parent's belated efforts, however promising, after that 'reasonable time' has expired." Id. at 561.

[I]f a parent has demonstrated some improvement in parenting ability but not a strong likelihood that the parent can provide a proper home for the child in the very near future, after a long period of separation, a history of problems and failure to remedy, and deterioration of the relationship between the child and parent, this court should not overturn a court's order terminating parental rights.

Id. at 562.

    There was ample evidence provided that D.V., while making strides, would not be in a stable position for a long time after a significant separation from the children. D.V. contends that she did make adequate parental adjustment. Even assuming this was true, the juvenile court did not include failure of parental adjustment among the grounds for termination. The court also listed several other grounds for termination not argued by D.V. Any ground is sufficient to support termination of parental rights. See Utah Code Ann. § 78-3a-407(1) (2002).

    With respect to D.V.'s claim that the court failed to consider the desires of the children and their best interest and, by doing so, abused its discretion, the court made numerous findings regarding the best interest of the children and their desires, as expressed to counselors. These findings clearly show that the court considered all the required aspects of the children's best interest and their desires. See In re S.T., 928 P.2d 393, 400 (Utah Ct. App. 1996) (determining that the court need not make specific findings on all aspects of best interest as long as it is apparent the court considered all aspects). In light of the detailed and carefully set forth findings, we cannot determine that the court abused its discretion.

    We affirm the juvenile court's order terminating D.V.'s parental rights.

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Russell W. Bench,

Associate Presiding Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge