B.R. v. State (In re A.R.)

B.R. v. State (In re A.R.)

IN THE UTAH COURT OF APPEALS
 

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

______________________________

B.R.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20050148-CA
 

F I L E D
(April 21, 2005)
 

2005 UT App 182

 

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Third District Juvenile, Salt Lake Department

The Honorable Andrew A. Valdez

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

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

Sharon Kishner, Salt Lake City, Guardian Ad Litem

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Before Judges Davis, Orme, and Thorne.

PER CURIAM:

    B.R. appeals the termination of his parental rights, alleging there was insufficient evidence to support the juvenile court's ruling that there was a failure of parental adjustment. See Utah Code Ann. § 78-3a-407(1)(e) (2002). To the extent B.R. challenges the sufficiency of the evidence supporting findings of fact, we review such challenges under the clearly erroneous standard. See In re E.R., 2001 UT App 66,¶11, 21 P.3d 680; see also Utah R. Civ. P. 52(a). Moreover, "we defer to the juvenile court because of its advantaged position with respect to the parties and the witnesses in assessing credibility and personalities." In re S.L., 1999 UT App 390,¶20, 995 P.2d 17 (quotations and citations omitted). To the extent B.R. challenges the termination in light of the findings, we review the juvenile court's decision for correctness. See In re C.K., 2000 UT App 11,¶17, 996 P.2d 1059.

    "Failure of parental adjustment" means that a parent is "unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of their child outside of their home, notwithstanding reasonable and appropriate efforts made by the Division of Child and Family Services to return the child to that home." Utah Code Ann. § 78-3a-403(2) (2002).

    The juvenile court made a number of findings regarding B.R.'s failure of parental adjustment. The juvenile court previously ruled that A.R. and J.R. were neglected by their mother (K.R.) and dependent as to B.R. B.R. was incarcerated at the time. Once custody was transferred to the Division of Child and Family Services (Division), the Division initiated at least five service plans with B.R., including domestic violence referrals. The children were subsequently placed with B.R. and K.R. for a trial home placement. However, an alleged incident of domestic violence between B.R. and K.R. took place shortly thereafter, and B.R. was incarcerated as a result. The juvenile court found that B.R. had a failure of parental adjustment, in that he "continues to engage in domestic violence incidents and criminal behavior resulting in his incarceration. [The Division] has provided domestic violence referrals, however those were terminated due to father's noncompliance." The juvenile court also found that B.R. would not be likely to exercise proper parental care in the near future, as he "failed to show that he is able to provide a stable and proper home environment for the children or otherwise be able to care for the children."

    These findings are supported by the record. B.R. had been in prison four times in the last eight years, and, as the juvenile court noted, was incarcerated four and one-half months out of the ten months prior to the termination hearing. In addition, although the Division attempted to work with B.R. concerning anger management and domestic violence issues, allegations concerning domestic violence and violations of no-contact orders arose nevertheless. Further, as of the date of the termination trial, B.R. was still on parole, had no residence of his own, and failed to prove that he was able to provide any lasting stability for the children.

    Thus, the juvenile court's findings were not clearly erroneous. Moreover, the findings support the ground for termination. See Utah Code Ann. § 78-3a-403(2); see also In re M.L., 965 P.2d 551, 558 (Utah Ct. App. 1998) (rejecting argument that "repeated criminal activity and incarceration occurring after a parent has been the subject of [Division] referrals and treatment plans and after a child has been removed from the parent's custody" is insufficient to support a claim of parental unfitness). Therefore, B.R. has failed to show that the juvenile court erred when it ruled that there was a failure of parental adjustment.

    B.R. also argues that the juvenile court "failed to address the ability of the father to parent the children." This argument is without merit and ignores the factual findings of the court, which specifically reference B.R.'s past and present parenting abilities. B.R. also ignores the court's specific ruling that B.R. was unfit pursuant to Utah Code section 78-3a-407(3). See Utah Code Ann. § 78-3a-407(3) (2002).

    Accordingly, the order terminating B.R.'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