J.M. v. State (In re A.M.)

J.M. 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.

_____________________________

J.M.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20050263-CA
 

F I L E D
(May 19, 2005)
 

2005 UT App 229

 

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Seventh District Juvenile, Price Department, 436158

The Honorable Scott N. Johansen

Attorneys: McKette H. Allred, Castle Dale, for Appellant

Mark L. Shurtleff 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:

    Appellant J.M., the father of A.M., appeals the juvenile court's order terminating his parental rights. The juvenile court terminated J.M.'s parental rights on the following grounds: (1) J.M. had abandoned the child in that he demonstrated a conscious disregard of the obligation owed by a parent to a child, leading to the destruction of the parent-child relationship (see Utah Code Ann. § 78-3a-407(1)(a) (2002)); (2) the child was abused and/or neglected (see Utah Code Ann. § 78-3a-407(1)(b) (2002)); (3) J.M. is an unfit or incompetent parent (see Utah Code Ann. § 78-3a-407(1)(c)); (4) the child has been cared for in out-of-home placement under the supervision of the court and the Division of Child and Family Services (DCFS) and J.M. has substantially neglected, willfully refused, or been unable or unwilling to remedy the circumstances that caused the out-of-home placement and it is unlikely that J.M. will be capable of exercising proper parental care in the near future (see Utah Code Ann. § 78-3a-407(1)(d)); (5) there has been a failure of parental adjustment (see Utah Code Ann. § 78-3a-407(1)(e)); and (6) J.M. has made only token efforts to communicate with A.M., prevent neglect, eliminate the risk of physical, mental, or emotional abuse of the child, and to avoid being an unfit parent (see Utah Code Ann. § 78-3a-407(1)(f)).

    "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 (citation 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 be found only 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).

    J.M. raises five issues on appeal. First, he argues that the juvenile court erred in its findings regarding J.M., based on the evidence presented by the State. J.M.'s claim appears to be that the evidence presented by the State was insufficient to support the court's findings. As the Guardians ad Litem (Guardians) point out, this issue is very broad and, because of its breadth, it duplicates several of the other issues presented. J.M. does not identify what findings he believes are unsupported. As a result we will address the other, more specific issues raised by J.M. and, in doing so, this issue will be addressed.

    J.M.'s second claim is that the court erred in its conclusion that he had abandoned A.M. based on his involuntary incarceration. The State correctly concedes that termination of parental rights on the basis of abandonment cannot be based solely on incarceration. See In re M.L., 965 P.2d 551, 558 (Utah Ct. App. 1998). Nonetheless, J.M.'s repeated criminal activity and incarceration after DCFS's involvement and after service plans are in place can be considered, particularly along with other supporting evidence, in support of a finding of abandonment. See In re M.W.H., 794 P.2d 27, 29 (Utah Ct. App. 1990). Such evidence can also support a finding of parental unfitness. See In re M.L., 965 P.2d at 558.

    Besides the extended incarceration and repeated criminal activity, the court cited the complete failure of J.M. to fulfill the obligations of the service plan, failure to obtain counseling, consistently visit A.M. even when not in jail, and failure to pay any child support. The juvenile court found that these deficiencies contributed to the destruction of the parent-child relationship, which is the ultimate consideration in determining whether the child has been abandoned. See In re T.S., 560 P.2d 331, 334 (Utah 1977). The finding of abandonment was clearly supported by the evidence.

    J.M.'s third claim is that the court erred in concluding that the State made every reasonable attempt to provide for reunification. As the State points out, rehabilitation is a two way street. See In re P.H., 783 P.2d 565, 572 (Utah Ct. App. 1989). It requires effort by the parent as well as availability of services by the State. See id. While the State concedes that J.M. completed a domestic violence intake session, he met none of the other requirements of the plan. The court's finding that J.M. failed to make even minimal progress on the reunification objectives contained in two service plans created for him by DCFS is supported by the evidence.

    J.M.'s fourth claim is that the court erred in concluding that his parental rights should be terminated based on Utah Code section 78-3a-407(1)(e) and (f). See Utah Code Ann. § 78-3a-407(1)(e)-(f). These provisions refer to the failure of parental adjustment and the making of only token efforts to correct the situation that led to the child's removal from the home. Both the State and the Guardians claim this issue has been waived, but neither indicates the basis for this position.

    Even assuming the issue has not been waived, the juvenile court determined, based on the evidence, that J.M. had failed to comply with the terms of the plan within six months of when the plan commenced. This is, by statute, evidence of failure of parental adjustment. See Utah Code Ann. § 78-3a-408(3) (2002). In addition to the evidence that J.M. was a habitual criminal, which did not change upon the removal of A.M., the court also relies on what it characterizes as J.M.'s habitual criminal activity, lack of a stable residence, and his past performance in concluding that J.M. has not corrected his situation and that he is unlikely to do so in the near future. For example, the court cited J.M.'s desire to get his GED. J.M. made some effort while in jail to complete the requirements, but ultimately did not get his GED. The evidence supports these findings and these findings support the court's conclusion of failure of parental adjustment and token efforts. See Utah Code Ann. § 78-3a-407(1)(e)-(f) (2002).

    J.M.'s last issue is whether the juvenile court erred in determining that J.M. failed to demonstrate the interest of a normal parent without just cause. See Utah Code Ann. § 78-3a-408(1)(b)-(c) (2002). Neither the Guardian nor the State address whether this issue has been preserved, but the State argues that this issue is duplicative of J.M.'s other issues. The issue does appear to be duplicative because the failure to demonstrate the interest of a normal parent without just cause is prima facie evidence of abandonment. Having determined that the court properly concluded A.M. was abandoned, we need not address this issue.

    The juvenile court's order terminating J.M.'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