J.S. v. State of Utah

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

J.S.,
Appellant,

v.

State of Utah,

Appellee.MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981650-CA

F I L E D
May 27, 1999
  1999 UT App 178 -----

Third District, Sandy Department
The Honorable Charles D. Behrens

Attorneys:
John E. Laherty, Salt Lake City, for Appellant
Jan Graham and John Peterson, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, Guardian Ad Litem

-----

Before Judges Wilkins, Davis, and Jackson.

PER CURIAM:

Appellant J.S. appeals the termination of her parental rights to the child A.S. Appellant does not challenge the termination of parental rights to the siblings of A.S., nor does she challenge the sufficiency of the evidence to support the juvenile court's findings of fact.

Appellant contends the juvenile court's findings of fact do not support the court's conclusions she was an unfit or incompetent parent to A.S., pursuant to Utah Code Ann. § 78-3a-407(4)(1996), and she made only token efforts to prevent the neglect of her children and avoid being an unfit parent, pursuant to Utah Code Ann. § 78-3a-407(6)(1996).

Appellant's claim that the findings are not specific to A.S. is without merit. Although some findings refer only to the siblings of A.S., there are both findings specific to A.S. and findings regarding appellant's substance abuse and the resulting effect on parenting ability, which apply to all three children. The finding appellant failed to obtain a mental health evaluation for A.S., as required by the service plans, establishes her neglect of A.S. and lack of effort to comply with requirements imposed by the Division of Child and Family Services (DCFS). The court further found that appellant's mental health problems and substance abuse made her unable to effectively parent her children and had resulted in the children, particularly A.S., becoming "parentified." In addition, the State correctly notes the neglect of a sibling is relevant to the determination to terminate rights to another sibling. See State ex rel. D.G., 938 P.2d 298, 302 (Utah Ct. App. 1997). The findings provided sufficient support for the court's conclusions of law.(1)

Appellant also contends allowing A.S. to remain with appellant for two years following removal of the younger siblings is evidence of her fitness as a parent. However, the court noted this decision was a "close call" influenced by the child's own capability and the child's reluctance to communicate with DCFS. The court found appellant voluntarily relinquished A.S. to State custody prior to her arrest, but acknowledged her need for in- patient treatment for substance abuse at that time. The court noted appellant's lucid assessment of her situation was short-lived. Based upon the unchallenged factual findings, the decision to allow A.S. to remain with appellant is not evidence of her fitness as a parent.

Whether under the more stringent correctness standard or the more deferential abuse of discretion standard, the juvenile court's conclusions are adequately supported. Based upon findings pertaining to all three children, as well as findings pertaining to A.S. alone, the court concluded appellant was an unfit or incompetent parent. Despite the diligent efforts of DCFS, including preparation of three service plans, appellant made only token efforts to prevent the neglect of her children and to avoid being an unfit parent. Finally, the court correctly concluded it was in the best interest of A.S. that appellant's parental rights be terminated. Accordingly, we affirm the judgment of the juvenile court.
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

______________________________
Norman H. Jackson, Judge

1. The State's responsive brief notes some confusion in the case law regarding the standard of review for the juvenile court's conclusions of law in termination cases. Some termination cases apply an abuse of discretion standard, see In re: B.O., 927 P.2d 202, 206 (Utah Ct. App. 1996), while other child custody cases apply a less deferential standard of correctness, see State exrel. C.M., 965 P.2d 590 (Utah Ct. App. 1998). Because we determine that the result would not affected by resolution of this issue in this case, we decline to consider the matter at this time.