L.P. v. State (In re C.P.)

L.P. v. State (In re C.P.)

IN THE UTAH COURT OF APPEALS
 

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State of Utah, in the interest of C.P.,
a person under eighteen years of age.

______________________________

L.P.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20050345-CA
 

F I L E D
(June 30, 2005)
 

2005 UT App 298

 

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Second District Juvenile, Farmington Department, 436151

The Honorable Kathleen M. Nelson

Attorneys: Don S. Redd, Layton, for Appellant

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

Martha Pierce and Robert N. Parrish, Salt Lake City, Guardians Ad Litem

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Before Judges Bench, Greenwood, and Thorne.

PER CURIAM:

    L.P. appeals the termination of her parental rights. She contends that the juvenile court erred by (1) accepting the State's evidence that she has a personality disorder; (2) terminating parental rights where no services were provided to specifically address that diagnosis; and (3) refusing to award permanent custody to the foster parents without termination of her parental rights.

    We "review the juvenile court's factual findings based upon the clearly erroneous standard." In re E.R., 2001 UT App 66,¶11, 21 P.3d 680. "[W]e 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. Finally, a challenge to the termination based upon the findings is reviewed for correctness. See In re C.K., 2000 UT App 11,¶17, 996 P.2d 1059.

    The juvenile court found the State's evidence to be "credible and consistent" in supporting a diagnosis of serious psychological and personality disorders that "severely and negatively impact [L.P.'s] ability to provide safe and competent parenting." The court rejected the testimony of Marcia Parker, L.P.'s counselor, challenging the diagnosis. The court found that the State's experts each based their opinions on both observation of L.P. and a full battery of psychological testing. Parker conceded that she did not conduct any psychological testing and was not qualified to perform the testing. The court further found that Parker had seen L.P. in only ten counseling sessions, which were interrupted by significant periods of time. We conclude that the court's findings accepting the State's evidence as more credible are not clearly erroneous.

    C.P.'s removal was necessitated by repeated incidents of domestic violence between his parents. Accordingly, the juvenile court ordered services to address domestic violence, anger management, and parenting issues. The court found that the services provided by the Division of Child and Family Services (DCFS) constituted "reasonable efforts." Utah Code Ann. § 78-3a-311(2)(c)(ii) (Supp. 2004). The court found that, despite participating in services, L.P. "had not been willing or able to incorporate the services into her life in any meaningful way that would allow her to properly care for a child." The court further found that her cognitive and psychological deficiencies would prevent her from remedying the circumstances that necessitated removal and providing a safe home for C.P. within a reasonable time. L.P. conceded at the termination trial, held roughly ten months after removal, that she was still not capable of regaining custody and providing appropriate care for C.P. and that it was not in C.P.'s best interests to be returned. L.P. argues on appeal that DCFS should have provided additional services to address her diagnosis of Borderline Personality Disorder and this omission precludes termination of her parental rights. The State correctly asserts that there is no right to reunification services. See In re N.R., 967 P.2d 951, 955-56 (Utah Ct. App. 1998) ("Reunification services are a gratuity provided to parents by the Legislature, and appellants thus have no constitutional right to receive these services."); see also Utah Code Ann. § 78-3a-311(3)(a) ("[A] parent's interest in receiving reunification services is limited."); id. at § 78-3a-311(3)(b)(vii) (stating there is a presumption against providing reunification services where parent's rights have been terminated as to any other child). Even assuming that this claim was preserved, we conclude that the court did not err in finding that the services provided by DCFS to address the grounds for removal constituted reasonable efforts.

    L.P. unsuccessfully sought an order awarding permanent custody to C.P.'s foster parents, without termination of her parental rights. The juvenile court correctly rejected this claim. The legislature has determined that the permanency goal for a child three years of age or younger who cannot return home shall be adoption. See Utah Code Ann. § 62A-4a-205(8) (Supp. 2004); see also In re J.P., 921 P.2d 1012, 1020 (Utah Ct. App. 1996) (disapproving permanent guardianship as inconsistent with Utah policy where mother was found incapable of parenting children). "[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 near future, . . . this court should not overturn a court's order terminating parental rights." In re M.L., 965 P.2d 551, 562 (Utah Ct. App. 1998). The testimony demonstrated that it would require three to five years of focused therapy for L.P. to address her mental health issues, separate from any services directed to her parenting skills. This evidence, coupled with L.P.'s concession, amply supports both the juvenile court's conclusion that L.P. will be unable to remedy the circumstances requiring removal within a reasonable time and the termination of her parental rights.

    We affirm the decision of the juvenile court to terminate 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