State of Utah, in the interest of S.H., S.H., and S.H.

Annotate this Case
State of Utah, in the interest of S.H., S.H., and S.H., persons under eighteen years of age, Case No. 20000755-CA, Filed July 27, 2001 IN THE UTAH COURT OF APPEALS

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

M.H.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000755-CA

F I L E D
July 27, 2001 2001 UT App 229 -----

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

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

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Before Judges Greenwood, Billings, and Davis.

GREENWOOD, Presiding Judge:

M.H. (Mother) appeals the juvenile court's order terminating her parental rights. We affirm.

Mother first challenges the juvenile court's findings, which state, in part: 5. On February 19, 1999, the day after the children were returned home, [Mother] was engaged in an altercation with [B.R.] during which [Mother] stabbed [B.R.] in the shoulder with a knife in the presence of [the oldest child] while the remainder of her children and a neighbor child . . . were in an adjacent bedroom watching television. As a result of this incident[,] [Mother] was convicted of aggravated assault, a felony, and the children were once more removed from her care and custody. (Emphasis added.) Mother contends this finding is insufficient to support the juvenile court's finding of unfitness because the children were actually returned on October 30, 1998 and not on February 19, 1999. The record indicates that Mother received physical custody on October 30, 1998 and that she received legal custody on February 18, 1999. The juvenile court's finding does not distinguish between physical and legal custody, but even if it had, that would not have changed the outcome in this case. Thus, the juvenile court's failure to delineate between physical and legal custody was harmless and does not constitute reversible error.

Next, Mother challenges the juvenile court's conclusion of unfitness. In determining parental competency and fitness, a juvenile court takes a broad look at the parent's habits and history and does not look at events in isolation. See In re M.L., 965 P.2d 551, 558-61 (Utah Ct. App. 1998). The juvenile court's findings set forth five occasions where the children were removed from the home. The court's findings also detail Mother's turbulent relationship with B.R., Mother's drug use, criminal history, and stabbing of B.R. in front of the oldest child. It is proper for a juvenile court to consider a parent's drug use, history of violent behavior, and criminal record when determining whether that parent is fit. See Utah Code Ann. §§ 78-3a-408(2)(c), (f), -408(4)(b) (Supp. 2000). Thus, the juvenile court's numerous findings adequately support the conclusion of unfitness.

Finally, Mother challenges the juvenile court's conclusion of abandonment. The juvenile court concluded, [Mother's] complete disregard of any responsibility to support the children while they have been in the State's care, her minimal effort to visit them, and her sparing efforts to communicate with them[,] including on holidays and birthdays, demonstrates that she has, without just cause or explanation, failed to show the normal interest of a natural parent, which is evidence that she has abandoned them according to [Utah Code Ann. §] 78-3a-408(1)(6), [and] which is a basis for terminating her parental right[s] pursuant to [Utah Code Ann. §] 78-3a-407(1). Mother argues the juvenile court's conclusion is erroneous because she was incarcerated from September 1999 to January 13, 2000, and therefore could not provide for her children during this period. Section 78-3a-408 of the Utah Code provides that "In determining whether a parent . . . ha[s] abandoned a child, it is prima facie evidence of abandonment that the parent . . . failed to have shown the normal interest of a natural parent, without just cause." Utah Code Ann. § 78-3a-408(1)(c) (Supp. 2000) (emphasis added). When a parent fails to rebut prima facie evidence of abandonment, this court will "conclude that the evidence supports the trial court's finding of abandonment." In re E.R., 918 P.2d 162, 167 (Utah Ct. App. 1996). While incarceration alone does not justify a finding of abandonment, "even an incarcerated parent can take [actions] to establish some bond or connection with a child." Michael J. v. Arizona Dep't of Econ. Sec., 995 P.2d 682, 687 (Ariz. 2000). He or she can send cards, gifts, and letters; he or she can make telephone calls to his or her child; he or she can also request pictures or provide pictures of his or her own. See id. Additionally, he or she can attempt to learn whether his or her child is "thriving or languishing." Id. In short, a parent's "conduct[, even while incarcerated,] speaks volumes." Id.

Mother does not contend she did anything to maintain a relationship with her children while she was incarcerated. Rather, she argues her incarceration excuses her inaction. Given the preceding analysis, such an argument is unpersuasive. Further, the juvenile court's conclusion of abandonment is supported by its findings, which state: 30. [Mother] paid no support for the care of her children while they were in the care of their [A]unt [L.C.] during 1998 or since their removal in February 1999.

31. [Mother] knows the telephone number of [L.C.] but has not called to talk to [the two younger children] for the past six months.

32. [Mother] has only sent one card to [the two younger children] while they have been in the care of [L.C.].

33. While [Mother] says that she attempted to provide gifts to her children through the Guardian ad Litem or the court bailiffs, her testimony in this regard is not supported by any other testimony and is incredible in view of the fact that she knew where the children, at least [the two younger children], were and could have provided the gifts directly to them. Accordingly, we affirm the juvenile court's order terminating Mother's parental rights.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 

______________________________
Judith M. Billings, Judge
 
 

______________________________
James Z. Davis, Judge