M.H. v. State (In re T.H. & S.H.)
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IN THE UTAH COURT OF APPEALS ----ooOoo---State of Utah, in the interest of T.H. and B.H., persons under eighteen years of age. ______________________________ M.H., Appellant, v. State of Utah, Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) ) MEMORANDUM DECISION (Not For Official Publication) Case No. 20090884-CA F I L E D (February 19, 2010) 2010 UT App 39 ----Third District Juvenile, Tooele Department, 1012964 The Honorable Mark W. May Attorneys: David J. Angerhofer, Sandy, for Appellant Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee Martha Pierce, Salt Lake City, Guardian Ad Litem ----- Before Judges Davis, McHugh, and Bench.1 PER CURIAM: M.H. (Mother) appeals the termination of her parental rights to T.H. and B.H. Mother contends on appeal that (1) the juvenile court erred in considering Mother's stipulation that she would not receive reunification services and (2) the evidence was insufficient to support termination. We will overturn the juvenile court's decision "only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence." In re B.R., 2007 UT 82, ΒΆ 12, 171 P.3d 435. "When a foundation for the court's decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence." Id. Applying the foregoing standard, we affirm the decision of the juvenile court. 1 The Honorable Russell W. Bench, Senior Judge, sat by special assignment pursuant to Utah Code section 78A-3-102 (2008) and rule 11-201(6) of the Utah Rules of Judicial Administration. In February 2009, a Division of Child and Family Services (DCFS) caseworker accompanied law enforcement officers to Mother's home when she was arrested and incarcerated. Mother stipulated that removal of the children was appropriate. In March 2009, the juvenile court adjudicated T.H. and B.H., along with their siblings, as neglected by Mother, and also adjudicated a sibling, L.W., as medically neglected. Following the termination trial, the juvenile court found that Mother was an unfit parent. The court stated that the "deplorable condition of [Mother's] home at the time of the February 2009 removal" was "not the determining factor of [Mother's] unfitness." Instead, the court found that there was a "pervasive pattern of neglect," which demonstrated Mother's "indifference to the welfare of her children." The court continued, This is shown through her persistent failure to supervise her children, not only exposing them to dangerous situations but actually having the children harmed. It is shown through her failure to provide needed medical care for her children even after being pestered by school officials and medical personnel. [Mother] also failed to provide her children with basic hygiene requirements. [Mother] allowed drug dealers to live in her home and allowed drug deals to occur in her home. [Mother] allowed her children to live in a home [where] human feces, broken glass, garbage and general filth were pervasive. The juvenile court further found that after the 2009 removal, Mother "engaged in further criminal activity with her husband, half heartedly attended therapy and stipulated that no reunification services be provided." The juvenile court also found that Mother had "no stable employment sufficient to support herself and her children and no stable housing sufficient for herself and her children." In addition to finding Mother unfit, the juvenile court found that the children had been in an out-ofhome placement and Mother had not addressed the causes for removal and would not be capable of exercising effective parental care in the near future. In this context, the juvenile court found that Mother stipulated to receiving no reunification services. The juvenile court also found that Mother had made only token efforts to avoid being an unfit parent, again noting the stipulation. Mother now claims that her stipulation that she would receive no reunification services was contingent upon an alleged agreement that DCFS would not seek to terminate her parental rights. There is no record support that such an agreement 20090884-CA 2 existed. Nevertheless, Mother claims on appeal that the juvenile court erred by relying upon her stipulation in its analysis of the grounds for termination. The stipulation was clearly relevant. While Mother was not obligated to seek or accept DCFS services, her decision to decline reunification services was properly considered by the juvenile court as some evidence of her lack of effort to remedy the circumstances that led to out-of-home placement of the children or her only token efforts to accomplish reunification. The juvenile court did not err in considering Mother's stipulation that she would not receive reunification services, along with the other evidence before it, and we "may not engage in a reweighing of the evidence." See id. Mother also claims that there was insufficient evidence to support the grounds for termination but does not dispute any specific finding of fact. Mother argued that she is progressing in therapy and has stable housing and employment. At trial, she introduced letters from her therapists attesting that she was showing improvement. Mother also claimed to have skills and licenses that would allow her to support the children in the future. The juvenile court determined that this was not sufficient evidence that she had secured stable employment and also found that Mother did not demonstrate that she had stable housing. Indeed, at the time of trial, Mother was living with a friend and Mother produced no evidence that she was employed. Mother also claims that she was only found to have medically neglected L.W., and not either B.H. or T.H. If her claim is that medical neglect of a sibling should not be considered as some evidence of the pervasive pattern of neglect found by the juvenile court, it is without merit. We affirm the decision of the juvenile court terminating Mother's parental rights to T.H. and B.H. _______________________________ James Z. Davis, Presiding Judge _______________________________ Carolyn B. McHugh, Associate Presiding Judge _______________________________ Russell W. Bench, Senior Judge 20090884-CA 3
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