State of Utah, in the interest of M.E.

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State of Utah, in the interest of M.E., Case No. 20001013-CA, Filed November 8, 2001 IN THE UTAH COURT OF APPEALS


State of Utah, in the interest of M.E.,
a person under eighteen years of age,



State of Utah,

(Not For Official Publication)

Case No. 20001013-CA

November 8, 2001 2001 UT App 339 -----

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

John E. Laherty, Salt Lake City, for Appellant
Mark Shurtleff and John M. Peterson, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, Guardian Ad Litem -----

Before Judges Billings, Davis, and Thorne.


This is an appeal from a district court's termination of D.E.'s parental rights. M.E. was taken from D.E. at birth and placed in foster care because both tested positive for amphetamine. In September of 1999, when M.E. was approximately seven months old, she was returned to D.E. However, in January of 2000, D.E. was arrested twice within approximately two weeks for felony drug related charges. D.E. pleaded guilty to first degree possession of methamphetamine with intent to distribute within 1000 feet of a school. M.E. was again taken from her mother by the Division of Child and Family Services (DCFS) and placed in the same foster home. The State filed a petition for termination upon D.E.'s arrest.

While the criminal charges were pending, D.E. was admitted into the Odyssey House drug treatment program. D.E. subsequently left the program twice, once for less than a day, and once for approximately thirty days. D.E. was readmitted both times and, as of the time of trial, had been in good standing with the program for almost four months.

The trial court terminated D.E.'s parental rights on four grounds: (1) parental neglect; (2) parental unfitness; (3) unwillingness or inability to remedy the circumstances that caused the child to be placed in foster care; (4) failure of parental adjustment, pursuant to Utah Code Ann. § 78-3a-407(2), (3), (4) and (5)(Supp. 2001). The court further determined that it was in the best interest of the child to be with the family with which M.E. had twice been placed, and who intended to adopt her. D.E. disputes two of the trial court's factual findings. First, that D.E. failed to remedy her parenting deficits and was not capable of taking care of the child. Second that no bond existed between D.E. and M.E.. D.E. claims that, absent these findings, the court had insufficient evidence to terminate D.E.'s parental rights. We disagree.

In determining to terminate parental rights, the juvenile court must find at least one of the grounds set forth in Utah Code Ann. § 78-3a-407 (Supp.2001) by clear and convincing evidence. However, once the decision to terminate has been made, the findings of fact made by the trial court are only overturned if clearly erroneous. See Utah R. Civ. P. 52; In re D.G., 938 P.2d 298, 301 (Utah Ct. App. 1997); In re G.V., 916 P.2d 918 (Utah Ct. App. 1996). The court's finding that D.E. failed to remedy the situation which placed the child in jeopardy was supported by the stipulated evidence that, after having the child returned to her once, the mother was arrested twice in a short period of time for drug related felonies. The arrests and resulting conviction were related to the same issues that caused the child to be removed the first time. The court also found that the baby's crib was in close proximity to drug related articles and D.E. had left M.E. in the care of an individual with a prior drug related conviction. Moreover, D.E.'s dedication to solving her drug problem was placed in question by her twice leaving the treatment program without permission. The repeated problems also indicate an unlikelihood that D.E. will be able to correct her circumstances successfully in the near future. Habitual and excessive use of drugs that render the mother unable to care for her child is a statutory condition indicating neglect and unfitness. See Utah Code Ann. § 78-3a-407(2)(c) (Supp.2001).

The factual finding that M.E. and D.E. had not formed a bond related more to the court's determination of what was in the best interest of the child, after grounds for termination had been decided. This finding was not clearly erroneous in light of the amount of time M.E. spent with the foster family as opposed to that spent with D.E.. The trial court also found that the foster family was interested in adopting M.E., considered her part of their family and could offer a stable home.

Accordingly, we affirm the trial court's termination of D.E.'s parental rights to M.E.

Judith M. Billings, Judge

James Z. Davis, Judge

William A. Thorne, Jr., Judge