State of Utah, in the interest of K.P., S.P., K.P., and I.P.

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State of Utah, in the interest of K.P., S.P., K.P., and I.P., persons under eighteen years of age, Case No. 981486-CA Filed April 29, 1999 IN THE UTAH COURT OF APPEALS


State of Utah, in the interest of K.P., S.P.,
K.P., and I.P., persons under eighteen years of age.



State of Utah,

(Not For Official Publication)

Case No. 981486-CA

April 29, 1999

1999 UT App 135 -----

Third District Juvenile, Salt Lake Department
The Honorable Joseph W. Anderson

John E. Laherty, Salt Lake City, for Appellant
Jan Graham and John Peterson, Salt Lake City, for Appellee
Martha Pierce, Christine S. Decker, and Martin N. Olsen, Salt Lake City, Guardians Ad Litem


Before Judges Wilkins, Greenwood, and Davis.

DAVIS, Judge:

A.M.P. appeals from a final order of the Third District Juvenile Court terminating her parental rights to her children, K.P., S.P., K.P., and I.P., pursuant to section 78-3a-407 of the Utah Code.

A.M.P. does not dispute the juvenile court's factual findings. Instead, she asserts that "the trial court's findings of fact support a conclusion that at the time her rights were terminated, [she] was a fit parent." Therefore, the issue presented to this court is whether the trial court's findings of fact are sufficient to support its ruling that A.M.P.'s parental rights should be terminated. "This ruling involves a question of law, which we review for correctness with no deference to the lower court's determination." State in re R.R., 797 P.2d 459, 462 (Utah Ct. App. 1990).

The Parental Termination Rights Act states that "if a parent is found, by reason of his conduct or condition, to be unfit . . . based upon any of the grounds for termination . . . , the court shall then consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered." Utah Code Ann. § 78-3a-406(3) (1996). Section 78-3a-407 permits the juvenile court to terminate all parental rights if it finds any one of the following: (2) that the parent . . . neglected or abused the child;
(3) that the parent . . . [is] unfit;
(4) that the child is being cared for in an out-of-home placement under the supervision of the court or the division, . . . and the parent has substantially neglected . . . or been unable . . . to remedy the circumstances that cause the child to be in an out-of-home placement, and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care in the near future;
(5) failure of parental adjustment;
. . .
(8) the parent . . . after a period of trial during which the child was returned to live in his own home, substantially and continuously or repeatedly refused or failed to give the child proper parental care and protection. Utah Code Ann. § 78-3a-407 (1996). The juvenile court's Conclusions of Law state separate grounds for termination under subsections (2), (3), (4), (5), and (8) of section 78-3a-407.

A.M.P.'s sole argument is that, in order for the juvenile court to terminate her parental rights, it must find that she is unfit based on her present abilities only, rather than considering her prior behavior, upon which the juvenile court's legal conclusions were based.(1) A.M.P. cites no statutory language (other than her own interpretation of section 78-3a-406) nor case law in support of her argument. This court addressed the issue of whether past conduct should be given weight in termination proceedings when we held that the weight which a juvenile court must give any present ability evidence is necessarily dependent on the amount of time during which the parent displayed an unwillingness or inability to improve his or her conduct and on any destructive effect the parent's past conduct or the parent's delay in rectifying the conduct has had on the parent's ability to resume a parent-child relationship with the child. State in re M.L., 965 P.2d 551, 561 (Utah Ct. App. 1998). Based upon the facts of this case, it is clear that A.M.P.'s past conduct could be found to outweigh any possible "present ability" evidence.

Even if A.M.P. cited support for her present ability argument, her claim refers to parental unfitness, only one ground for termination under section 78-3a-407(3). She completely ignores the four other grounds for termination relied upon by the juvenile court. The record clearly indicates that the juvenile court properly considered a number of statutory factors before concluding A.M.P.'s parental rights should be terminated. Based upon the record before us, the findings support the juvenile court's conclusion that five separate grounds for termination of parental rights existed.

Because the juvenile court properly applied its unchallenged findings of fact to the appropriate legal standard, we affirm its determination that A.M.P.'s parental rights should be terminated.

James Z. Davis, Judge

----- WE CONCUR:

Michael J. Wilkins,
Presiding Judge

Pamela T. Greenwood,
Associate Presiding Judge

1. The findings relied upon by A.M.P. do not directly stand for the proposition that she was fit at the time of trial. Rather, they allude to testimony and suggest the possibility of fitness.