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

State of Utah, in the interest of M.S., a person under eighteen years of age, Case No. 20000604-CA, Filed June 21, 2001 IN THE UTAH COURT OF APPEALS

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

M.S.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000604-CA

F I L E D
June 21, 2001 2001 UT App 195 -----

Third District Juvenile, Salt Lake Department
The Honorable Charles D. Behrens

Attorneys:
Justin Gary Jensen, 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 Billings, Orme, and Thorne.

THORNE, Judge:

M.S. appeals from the trial court's order terminating his parental rights pursuant to Utah Code Ann. § 78-3a-407(3) (1996). M.S. challenges the sufficiency of the evidence in support of the trial court's factual finding that termination was in the best interest of the child.(1)

Normally, we review such a challenge to determine whether the finding is "'against the clear weight of the evidence.'" In re S.L., 1999 UT App 390,¶20, 995 P.2d 17 (quoting In re R.J., 960 P.2d 403, 407 (Utah Ct. App. 1998)). However, "[t]o successfully appeal a trial court's findings of fact, appellate counsel must [marshal the evidence, i.e.,] play the devil's advocate, [and] 'present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists.'" Oneida/SLIC v. Oneida Cold Storage, 872 P.2d 1051, 1052-53 (Utah Ct. App. 1994) (first emphasis added) (citation omitted).

Here, while appellant challenges only one of the trial court's findings, he fails to marshal "every scrap of competent evidence," supporting that finding. Id. Further, appellant's argument is focused on disputing the trial court's interpretation of the testimony of the child's Division of Child and Family Services case worker.(2) Even accepting appellant's interpretation of the case worker's testimony, he has failed to put forth evidence that "'clearly preponderates against the findings as made or [to demonstrate that] the court has abused its discretion.'" In re M.L., 965 P.2d 551, 559 (Utah Ct. App. 1998) (citation omitted).

Finally, because appellant failed to satisfy his duty to marshal the evidence, "we refuse to consider the merits of [his] challenge[] to the findings and accept [them] as valid.'" Oneida, 872 P.2d at 1053 (citation omitted).

Accordingly, we affirm the trial court's order terminating M.S.'s parental rights.
 
 

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William A. Thorne, Jr., Judge -----

WE CONCUR:
 

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Judith M. Billings, Judge
 
 

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Gregory K. Orme, Judge

1. Interestingly, M.S. does not challenge the trial court's finding that he is unfit or incompetent pursuant to Utah Code Ann. § 78-3a-407(3) (1996). Nor does he challenge four of the five findings upon which the trial court relied to determine that termination was in the best interest of the child.

2. In making his argument, M.S. ignores the bulk of the testimony upon which the court could have based its finding that termination was in the best interest of the child. Among this evidence is testimony from Jamie Hayden, the social worker mentioned in the judge's findings, regarding the child's bond with the potential adoptive parents, the medical fragility of the child requiring at least one parent to have specialized medical training, and the fact that M.S. had made no effort to contact DCFS concerning the child's welfare since the child's birth. M.S. also fails to mention the testimony of the child's adoption social worker, testimony which can clearly be read to indicate that termination of M.S.'s parental rights was in the child's best interest.