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

----ooOoo----

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

M.S.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20001066-CA

F I L E D
January 17, 2002 2002 UT App 13 -----

Second District Juvenile, Ogden Department
The Honorable Kathleen M. Nelson

Attorneys:
John T. Caine, Ogden, for Appellant
Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Bench, Orme, and Thorne.

PER CURIAM:

We overturn findings of fact in a parental rights termination proceeding only if they are clearly erroneous. See In re D.G., 938 P.2d 298, 301 (Utah Ct. App. 1997). To meet this burden, an appellant must marshal all the evidence supporting a challenged finding, then "demonstrate that, despite this evidence, the finding is so lacking in support as to be against the clear weight of the evidence." In re R.A.F., 863 P.2d 1331, 1333 (Utah Ct. App. 1993). M.S. failed to marshal the evidence supporting the challenged findings by omitting significant and relevant evidence, including medical testimony, that supports the findings. M.S. thus waived her right to challenge the findings.

E.S. suffered a transected pancreas which, absent a medical cause, could only have occurred by recent and substantial blunt force trauma. The injury occurred between twelve and twenty-four hours prior to the onset of vomiting. E.S. was in the sole care and custody of M.S. for at least 72 hours before vomiting started. M.S. testified that E.S. suffered no episode of accidental blunt force trauma. "In determining whether a minor is an abused child or neglected child it may be presumed that the person having the minor under his direct and exclusive care and control at the time of the abuse is responsible for the abuse or neglect." Utah Code Ann. § 78-3a-305.1 (Supp. 2001). The evidence supported a presumption that M.S. inflicted the trauma resulting in E.S.'s transected pancreas. M.S. did not present any evidence directly contradicting the presumption other than her denial. The finding that the injury was likely caused by a punch or kick to the abdomen inflicted by M.S., which was also supported by E.S.'s statements, was not clearly erroneous.

Although conceding that a single act of abuse resulting in a life-threatening or disfiguring injury is sufficient to establish prima facie evidence of unfitness under Utah Code Ann. § 78-3a-408(4) (Supp. 2001), M.S. argues that the single act in this case is insufficient. The argument is without merit. As a result of the injury, E.S. lost a portion of her pancreas, had a lengthy recovery, and may suffer lifelong complications. The court also considered other evidence of unfitness, including the report and testimony of Dr. Kevin Gully. The court adopted Gully's conclusion that M.S. had a severe psychopathology that rendered her an unfit parent with little likelihood of rehabilitation. The court further found that although M.S. was aware of the serious nature of E.S.'s injuries and that she needed to be brought to the hospital as soon as possible, M.S. failed to timely bring her to the hospital and did not have a reasonable excuse for the delay. The evidence also demonstrated that M.S. had substantiated referrals for abuse of her two older children and some history of violent crime. Under the circumstances, the evidence was sufficient to support the trial court's factual findings and its conclusion that M.S. was an unfit parent. Finally, the conclusion that it was in E.S.'s best interest to terminate M.S.'s parental rights is adequately supported in the findings and record.

We affirm the judgment of the juvenile court terminating parental rights.
 
 

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Russell W. Bench, Judge
 
 

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Gregory K. Orme, Judge
 
 

______________________________
William A. Thorne, Jr., Judge