K.L. v. State (In re Z.L., et al.)
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IN THE UTAH COURT OF APPEALS ----ooOoo---State of Utah, in the interest of Z.L., A.L., V.L., and P.L., persons under eighteen years of age. ______________________________ K.L., Appellant, v. State of Utah, Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) MEMORANDUM DECISION (Not For Official Publication) Case No. 20070420-CA F I L E D (February 28, 2008) 2008 UT App 59 ----Third District Juvenile, Salt Lake Department, 458259 The Honorable Charles D. Behrens Attorneys: Julie George, Salt Lake City, for Appellant Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee Martha Pierce, Salt Lake City, Guardian Ad Litem ----- Before Judges Billings, McHugh, and Orme. BILLINGS, Judge: Appellant K.L. (Mother) appeals the juvenile court's termination of her parental rights with respect to Z.L., A.L., V.L., and P.L. (the Children). Specifically, Mother asserts that the juvenile court erred in terminating her parental rights because the evidence was insufficient to support the court's findings that Mother is an unfit and incompetent parent and that it is in the Children's best interests to have Mother's parental rights terminated. We affirm. This court will only overturn a juvenile court's factual findings in a parental rights termination proceeding if the findings are clearly erroneous. See In re B.R., 2006 UT App 354, ¶ 23, 144 P.3d 231, vacated, 2007 UT 82, 171 P.3d 435. A court's findings are clearly erroneous "'if the findings are against the clear weight of the evidence, or if the appellate court is convinced that a mistake has been made.'" In re O.C., 2005 UT App 563, ¶ 16, 127 P.3d 1286 (quoting In re S.T., 928 P.2d 393, 398 (Utah Ct. App. 1996)). We grant juvenile courts a "wide latitude of discretion," In re E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680, because of their superior position to judge parties' and witnesses' "credibility and personalities," In re G.B., 2002 UT App 270, ¶ 9, 53 P.3d 963, and because of "'juvenile court judges' special training, experience and interest in [the] field, and . . . devoted . . . attention to such matters,'" In re O.C., 2005 UT App 563, ¶ 19 (omissions in original) (quoting In re E.R., 2001 UT App 66, ¶ 11). Relying on this court's opinion in In re B.R., 2006 UT App 354, 144 P.3d 231, Mother argues that there was insufficient evidence to support termination because the juvenile court did not properly weigh her ability to parent at the time of the termination proceeding. Mother asserts that at the time of trial she was no longer using illegal drugs, was in personal counseling, had substantially completed domestic violence counseling and drug addiction counseling, had adequate housing and employment, and was bonded with the Children. In In re B.R., this court was faced with a mother who, "despite her previous substantial shortcomings [as a parent], managed to accomplish substantial rehabilitation between the permanency hearing and the time of the termination trial." Id. ¶ 130. We held that "[i]n light of the continuing vitality of the parent-child relationship, . . . [the m]other's previous drug use and other prior failings [did] not outweigh the evidence of [her] present parenting ability." Id. However, this court's decision in In re B.R. was recently vacated and remanded by the Utah Supreme Court. See In re B.R., 2007 UT 82, ¶ 16. In its opinion, the supreme court acknowledged that "the juvenile court must weigh a parent's past conduct with her present abilities," id. ¶ 13, and noted that the juvenile court is required to consider the totality of the evidence, see id. The supreme court then noted that the juvenile court actually "did weigh all of the appropriate evidence." Id. In reversing our determination, the supreme court held that the court of appeals inappropriately substituted its "judgment for that of the juvenile court," id. ¶ 14, and the supreme court reinstated the juvenile court's findings and termination of the mother's parental rights, see id. ¶ 16. The supreme court's ruling emphasized that the juvenile court has considerable discretion to consider a parent's past conduct in assessing her current ability to parent. See id. ¶¶ 13, 15. Given the amount of discretion we afford the juvenile court in parental termination proceedings, and recognizing that "the juvenile court's decision could be overturned only if it either 20070420-CA 2 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," id. ¶ 12, we conclude in this case that there was sufficient evidence to terminate Mother's parental rights in the Children. The juvenile court's findings that Mother is an unfit or incompetent parent are clearly supported by the record. First, regarding Mother's drug use, the record indicates that Mother tested positive for methamphetamine shortly after P.L.'s birth and that P.L.'s meconium at birth tested positive for methamphetamine. Moreover, Mother did not comply with orders requiring her to participate in drug testing, was not honest with her therapist regarding the extent of her drug use, and failed to complete the drug and alcohol treatment portion of her service plan. Second, regarding Mother's domestic violence, the record supports the juvenile court's findings that Mother repeatedly exposed the Children to domestic violence and that acts of domestic violence in front of the Children continued even after the juvenile court assumed jurisdiction and ordered her to cease this behavior. Further, although Mother did enter a domestic violence treatment program, she did not complete the domestic violence portion of her service plan because her participation in the program was inconsistent. Third, regarding Mother's employment, the juvenile court found that while Mother testified she had been employed for over a year, "[t]he pay stubs she produced lacked any identifiable information to establish that she was the payee, that [the employer] issued the paycheck, or that she was actually employed there." Fourth, regarding Mother's behavior during the removal and termination proceeding, the juvenile court found that Mother and her husband hid from the Division of Child and Family Services for six weeks after the family had come into the court's jurisdiction, and that Mother attempted to establish the correct paternity of V.L. and P.L. only after her husband was faced with loss of custody of the Children. Finally, and most importantly, we note that the juvenile court found Mother's testimony refuting the evidence against her to be "incomplete, inconsistent, self-serving, and at times unbelievable." Therefore, we conclude that the juvenile court was within its discretion to assess the credibility of Mother's testimony and to determine that Mother was unfit or incompetent to parent the Children. Next, Mother claims that the juvenile court did not have sufficient evidence to find that it was in the Children's best interests to terminate Mother's parental rights. Mother argues that the court did not assess the Children's love for Mother or her love for them, or their bond to each other and to her. However, it is clear that the juvenile court was aware of the bond the Children had with Mother. In its findings of fact, the 20070420-CA 3 juvenile court noted that at least two of Mother's children are bonded to Mother. Unfortunately, this bond is not enough to overcome Mother's past harmful conduct. The supreme court noted that continued love between a parent and a child "will almost always exist when a child has formed a bond with a parent." In re B.R., 2007 UT 82, ¶ 15. However, it held that despite that love, "'[f]rom the child's perspective, at least, the earlier period of [neglect] is not necessarily wiped out by the later improvement. The harm may have been done.'" Id. (quoting In re M.L., 965 P.2d 551, 562 (Utah Ct. App. 1998)). After hearing all the evidence, the juvenile court determined that although the Children are bonded to Mother, they "are all bonding with their foster mother." The trial court found that the Children have all been in the foster home for over a year and "[t]heir foster mother has attended to their physical and emotional needs." The juvenile court further found that the foster mother is willing to adopt the Children and that "[i]t would be in the [C]hildren's best interests to be adopted where they will be secure, stable, and protected from further abuse and neglect and where their physical and emotional needs can be met." The record supports these findings. Accordingly, we affirm. ______________________________ Judith M. Billings, Judge ----WE CONCUR: ______________________________ Carolyn B. McHugh, Judge ______________________________ Gregory K. Orme, Judge 20070420-CA 4
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