State of Utah, in the interest of G.R.Annotate this Case
State of Utah, in the interest
a person under eighteen years of age.
State of Utah,
(Not For Official Publication)
Case No. 20000859-CA
F I L E D
September 7, 2001 2001 UT App 258 -----
Third District Juvenile,
Salt Lake Department
The Honorable Sharon P. McCully
John E. Laherty, Salt Lake City, for Appellant
Mark L. Shurtleff and John Peterson, Salt Lake City, for Appellee
Martha Pierce and Tracy S. Mills, Salt Lake City, Guardians Ad Litem
Before Judges Jackson, Billings, and Davis.
S.R. (Mother) appeals from an order terminating her parental rights under Utah Code Ann. § 78-3a-407(3) and -407(4) (1996). Mother challenges the sufficiency of the evidence supporting the juvenile court's finding that the Division of Child and Family Services (DCFS) provided adequate reunification services.(1)
However, the juvenile court
terminated Mother's parental rights on the grounds of "unfitness or incompetence,"
under § 78-3a-407(3), and inability to remedy the circumstances which
caused G.R.'s (Child) placement, although DCFS provided appropriate services,
under § 78-3a-407(4). Mother does not challenge the juvenile court's
written or oral findings regarding incompetence. In its written findings,
the juvenile court found that she is "incompetent" and unable to take care
of Child's needs, to recognize risks to and protect Child from harm, and
has never been able to demonstrate that she can act in Child's best interest
in an unsupervised setting. Therefore, we affirm the juvenile court's termination
of Mother's parental rights on the ground of "unfitness or incompetence."
See In re R.J., 589 P.2d 244, 245 (Utah 1978) (affirming
termination because substantial evidence supported juvenile court's finding
that "parents [were] socially and emotionally retarded and unable or unwilling
to psychologically, emotionally and/or socially stimulate" children's development);
In re M.E.C., 942 P.2d 955, 960 (Utah Ct. App. 1997) (concluding
juvenile court's finding of unfitness independently supported termination
of parental rights although DCFS failed to make diligent efforts to provide
appropriate services); cf. In re S.L., 1999 UT App 390,¶¶31-32,
995 P.2d 17 (noting "DCFS 'need only prove one ground for . . .
parental rights to be terminated,'" where juvenile court had terminated
rights on the grounds of unfitness and failure of parental adjustment (quoting
In re J.N., 960 P.2d 403, 411 (Utah Ct. App. 1998))); In re adoption
of B.O., 927 P.2d 202, 207 n.7 (Utah Ct. App. 1996) (refusing to consider
challenge to termination for unfitness, because evidence supported termination
for token efforts); In re C.Y., 765 P.2d 251, 255 (Utah Ct. App.
1988) (refusing to consider challenge to termination for abandonment because
evidence supported termination for unfitness).(2)
Judith M. Billings, Judge -----
Norman H. Jackson,
Associate Presiding Judge
James Z. Davis, Judge
1. To successfully challenge the sufficiency of the evidence, Mother must "marshal the evidence supporting the findings and then show that the findings are so lacking in support that they are against the clear weight of the evidence." In re M.E.C., 942 P.2d 955, 960 (Utah Ct. App. 1997). Mother baldly asserts that Division of Services for People with Disabilities (DSPD) and Avatar services were the only services specifically geared towards Mother's intellectual and mental limitations and marshaled evidence only in regard to those services. However, the juvenile court's finding that DCFS provided adequate services was based on all services provided to Mother. By presenting evidence only in regard to DSPD and Avatar services, Mother has failed to meet her burden to marshal.
Mother also argues the State is estopped from terminating her parental rights because DCFS promised to provide her with DSPD and Avatar services, but failed to do so, causing her harm. This argument was not raised before the juvenile court. Therefore, we decline to consider it. See In re E.R., 2001 UT App 66,¶9, 21 P.3d 680.
2. We decline to consider Mother's argument that the failure to provide DSPD or Avatar services violates due process as this argument was raised in Mother's reply brief and "'[t]he rule is well settled that [this court] will not consider issues raised for the first time in a reply brief.'" In re adoption of S.L.F., 2001 UT App 183,¶15 n.1, 423 Utah Adv. Rep. 13 (second alteration in original) (citation omitted).
Further, in its brief, the State argued a juvenile court may terminate parental rights if it finds any one ground--in the present case, "unfitness or incompetence"--in § 78-3a-407. In her reply brief, Mother responded that, under the circumstances, terminating her rights on the ground of "unfitness or incompetence" violates due process. Mother's argument is unsupported by "reasoned analysis based upon relevant legal authority." State v. Smith, 1999 UT App 370,¶8, 995 P.2d 14 (citing Utah R. App. P. 24(a)(9)). Therefore, we decline to consider it. See id. at ¶17.