C.F. v. State (In re A.M.)

C.F. v. State (In re A.M.)

IN THE UTAH COURT OF APPEALS
 

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

_____________________________

C.F.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20050231-CA
 

F I L E D
(May 19, 2005)
 

2005 UT App 230

 

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Seventh District Juvenile, Price Department, 436158

The Honorable Scott N. Johansen

Attorneys: Samuel P. Chiara, Price, for Appellant

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

Martha Pierce and Connie Mower, Salt Lake City, Guardians Ad Litem

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Before Judges Davis, Orme, and Thorne.

PER CURIAM:

    C.F., the mother of A.M., appeals the juvenile court's termination of her parental rights. She asserts three errors by the juvenile court: First, that it was error to make findings of fact with regard to C.F. based on the evidence presented by the State; second, that it was error to make conclusions of law based on the evidence presented by the State; and third, that the court made incorrect findings under Utah Code sections 78-3a-407 through 411. See Utah Code Ann. § 78-3a-407 to-411 (2002).

    The court's findings with respect to C.F. include her extensive criminal history, both before and after the Division of Child and Family Services (DCFS) became involved. C.F. was offered two service plans. During the time of the plans, C.F. had positive or "diluted" drug test results on at least eighteen occasions, according to the evidence presented and the court's findings. One of the positive test results came when the court requested a drug test when C.F. displayed odd behavior at the shelter hearing. C.F. also failed to test on at least twelve occasions. Sometimes she called in with an excuse, and sometimes she did not call at all.

    Besides the drug testing, the service plans also required domestic violence assessment and treatment, substance abuse assessment and treatment, parenting classes, and maintaining a stable home. While C.F. completed the assessments, she failed to follow through with treatment.

    C.F. entered Four Corners intensive outpatient treatment, but was dismissed for drinking, associating with known drug users, and attempting to sell methamphetamine to other therapy participants. Despite this, the court exercised patience with C.F. by not terminating services at that time. The court allowed C.F. to enter drug court. She was, however, eventually terminated from drug court as well, based on continued use of drugs, repeated suspensions from treatment, and failure to abide by the rules of drug court. It was only at that point that the court terminated services for C.F.

    At the trial on the petition for termination of parental rights, the court indicated that the only trial issue would be the best interest of A.M. This was because C.F. had failed to respond to requests for admissions by the State. Therefore, they were deemed admitted by the court. The State then moved for partial summary disposition on the grounds for termination. C.F. did not oppose the motion and it was granted.

    When C.F. arrived at trial she was immediately hostile and appeared to be having an extreme emotional or mental breakdown, according to the court's findings and the trial transcript. The court delayed the trial and had an expert examine C.F. to determine whether she was competent to proceed with trial. The expert indicated that she was competent, although distressed. The court then requested that C.F. immediately take a drug test. She tested positive for methamphetamine at the time of the trial on the petition to terminate her parental rights.

    "When reviewing a termination petition, 'we will disturb the findings and conclusions of the juvenile court only if the evidence clearly preponderates against the findings made or the court has abused its discretion.'" In re W.A., 2002 UT 127,¶8, 63 P.3d 607 (citations omitted). Further, this court applies the "clearly erroneous standard when reviewing the factual findings in connection with juvenile court proceedings to terminate parental rights." In re P.H., 783 P.2d 565, 566 (Utah Ct. App. 1989). Clear error will only be found if the findings are "against the clear weight of the evidence." In re M.E.C., 942 P.2d 955, 960 (Utah Ct. App. 1997).

    The first two of C.F.'s issues challenge the findings and conclusions of the juvenile court. The Guardians ad Litem argue that the issues are framed in such a vague manner that it is impossible to know what findings and conclusions C.F. challenges. The Guardians ad Litem also argue that these two issues have been waived by C.F.'s stipulation to the adjudication order. However, they have not attached the order and it is not clear that stipulating to an adjudication order, entered over eight months prior to the filing of the petition to terminate parental rights, would waive the opportunity to challenge the juvenile court's findings and conclusions at the termination trial. At trial on the petition to terminate parental rights, the court considers what progress has, or has not, been made since the adjudication. The State also takes the position that the issues are not waived. The Guardians ad Litem have failed to show that these issues have been waived.

    The State argues that there was ample evidence presented to support termination of C.F.'s parental rights based on unfitness. C.F. does not argue on appeal that the juvenile court erred in granting partial summary judgment. The unanswered Request for Admissions, which the court deemed admissions, alone support parental unfitness, abuse and/or neglect of the child, abandonment, failure of parental adjustment, and only token efforts to remedy the situation that caused A.M. to be placed outside the home as grounds for termination. Any one of the statutory grounds, if proven, is sufficient to terminate parental rights. See Utah Code Ann. § 78-3a-407(1) (2002). Despite the admissions and granting of partial summary judgment, additional evidence was presented at trial that supported termination. We conclude, after reviewing the record, that ample evidence was presented to support the juvenile court's findings and, in turn, the findings clearly support the court's conclusions.

    C.F.'s third and final issue is that the court failed to make "correct" findings as established by Utah Code section 78-3a-407 to-411. See Utah Code Ann. § 78-3a-407 to-411 (2002). The State argues, relying on 438 Main St. v. Easy Heat Inc., that this issue has been waived because C.F. failed to object to the adequacy of the findings in the juvenile court. See 438 Main St. v. Easy Heat Inc., 2004 UT 72,¶50, 99 P.3d 801. This court has determined, although reluctantly, that the failure to object to the adequacy of the findings will result in waiver of the issue on appeal in an appeal of an order terminating parental rights. See In re K.H., 2004 UT App 483,¶¶10-11, 105 P.3d 967. Therefore, we conclude that C.F. has waived the issue of the adequacy of the juvenile court's findings by failing to object to the findings in the juvenile court.

    The order terminating C.F.'s parental rights is affirmed.

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James Z. Davis, Judge

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge