State of Utah, in the interest of A.B.

----ooOoo----

State of Utah, in the interest of A.B.,
a person under eighteen years of age.
______________________________

S.B.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000743-CA

F I L E D
February 14, 2002 2002 UT App 38 -----

Third District Juvenile, Sandy Department
The Honorable Kimberly K. Hornak

Attorneys:
Candace S. Bridgess, Ogden, for Appellant
Mark L. Shurtleff and John Peterson, Salt Lake City, for Appellee
Martha Pierce and Karen Flynn, Salt Lake City, Guardians Ad Litem -----

Before Judges Bench, Orme, and Thorne.

BENCH, Judge:

To support its conclusion that Appellant (Mother) is an unfit parent who neglected A.B., the juvenile court relied upon its prior finding that Mother's boyfriend sexually abused A.B. and that Mother knew of the abuse but did not stop it or otherwise try to protect A.B. by removing her from the home. Mother has consistently denied that the abuse occurred, and challenges the sufficiency of the evidence supporting the juvenile court's finding.

Findings of fact in a parental rights termination proceeding are overturned only if they are clearly erroneous. In order to establish clear error . . . an appellant must marshall the evidence in support of the findings and then demonstrate that despite this evidence, the [juvenile] court's findings are so lacking in support as to be against the clear weight of the evidence.

In re E.D., 876 P.2d 397, 402 (Utah Ct. App. 1994) (quotations and citations omitted) (second alteration in original); see alsoWest Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991) (explaining the "arduous and painstaking marshaling process"). Rather than marshaling the evidence, Mother has "merely argued selected portions of the evidence which [she] believes supports [her] own position." State v. Decorso, 1999 UT 57,¶41, 993 P.2d 837. Therefore, we must assume that the record supports the challenged finding. See Saunders v. Sharp, 806 P.2d 198, 199 (Utah 1991).

In any event, the juvenile court's finding is not against the clear weight of the evidence. In an interview with a youth mentor, A.B. pointed to her chest and genitals and stated that Mother's boyfriend "hurt her there." A.B. also stated that Mother knew about the abuse and "tells [the boyfriend] to stop but he doesn't." In a conversation with her great-grandmother, A.B. complained that she hated it when the boyfriend kissed her because he slobbered in her mouth. During that same conversation, A.B. pointed between her legs and stated that the boyfriend took A.B.'s hand and made her touch him there. A.B. also reported sexual abuse to a DCFS caseworker. When explaining a collage of pictures that she put together during therapy, A.B. pointed to a picture of a person in underwear and stated that it was the boyfriend "touching her private parts over her underpants." She also pointed to a picture of a woman with red lips and stated that it was Mother smiling when A.B. informed her that the boyfriend had touched A.B.'s private parts. Expert testimony also supports the juvenile court's finding.

In opposing the juvenile court's finding, Mother primarily relies on testimony that DCFS changed sexual abuse allegations against the boyfriend and another male roommate from substantiated to unsubstantiated. This evidence, from a separate administrative proceeding in which no evidence was received, does not outweigh the substantial evidence of abuse presented at trial. While we acknowledge Mother's frustration with the State proceeding against her but not against the perpetrator boyfriend, this case involves Mother's independent responsibility to protect A.B. from abuse that the evidence shows did occur.

Furthermore, the juvenile court found the following additional grounds for terminating Mother's parental rights, which Mother does not directly challenge on appeal: (1) failure to remedy the circumstances that caused A.B. to be placed outside the home; (2) failure of parental adjustment; and (3) only token efforts made by Mother to eliminate the risk of serious abuse of A.B. See Utah Code Ann. § 78-3a-407(4) to (6) (1996). Any one of these grounds is sufficient to support termination of Mother's parental rights. See Utah Code Ann. § 78-3a-407; In re S.L., 1999 UT App 390,¶32, 995 P.2d 17.

Mother also challenges the trial court's conclusion that termination of Mother's parental rights is in A.B.'s best interest. Even after the adjudication trial, Mother continued to foster a relationship with the boyfriend and tried to keep him involved in A.B.'s life. A.B. is terrified of the boyfriend and desires no contact with him. In fact, A.B. wants to live with her grandparents and is fearful of being taken away by Mother and her boyfriend. Finally, the psychologist who examined Mother testified that Mother's psychological makeup and her allegiance to the boyfriend present "a high risk that further abuse could occur." Given this evidence, the juvenile court properly concluded that termination of Mother's parental rights is in A.B.'s best interest.

Finally, we conclude that Mother's arguments regarding bad faith prosecution and the juvenile court's lack of objectivity are without merit. See State v. Allen, 839 P.2d 291, 303 (Utah 1992) (permitting appellate courts to summarily consider and rule on issues).

Accordingly, we affirm.
 
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 
 

______________________________
Gregory K. Orme, Judge
 
 
 

______________________________
William A. Thorne, Jr., Judge