C.G. v. State

C.G. v. State

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of A.M., R.N., and R.N., persons under eighteen years of age.

______________________________

C.G.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20020153-CA

F I L E D

(February 6, 2003)
 

2003 UT App 22

 

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Third District Juvenile, Salt Lake Department

The Honorable Olof A. Johansson

Attorneys: Jeffrey J. Noland, Salt Lake City, for Appellant

Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee

Martha Pierce and Elizabeth M. Knight, Salt Lake City, Guardians Ad Litem

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Before Judges Bench, Davis, and Orme.

ORME, Judge:

On appeal, we will not disturb the juvenile court's decision to terminate parental rights unless the court has abused its discretion. See In re M.L., 965 P.2d 551, 559 (Utah Ct. App. 1998). In other words, we will not reverse a juvenile court's decision as long as "it is consistent with the standards set by appellate courts and supported by adequate findings of fact and conclusions of law." In re J.M.V., 958 P.2d 943, 947 (Utah Ct. App. 1998) (citations and quotations omitted). See also Crookston v. Fire Ins. Exch., 860 P.2d 937, 938 (Utah 1993) (holding a trial court abuses its discretion where there is "no reasonable basis for [its] decision"). "[W]e defer to the juvenile court because of its advantaged position with respect to the parties and the witnesses in assessing credibility and personalities." In re J.N., 960 P.2d 403, 407 (Utah Ct. App. 1998) (citations and quotations omitted).

In this case, the unchallenged findings of fact(1) show: (1) Appellant lost parental rights over two older children on October 6, 1995, because of her history of criminal behavior and substance abuse; (2) on December 3, 1999, Appellant pleaded guilty to purchasing or possessing a dangerous weapon, a third degree felony, and received 36 months probation; (3) on July 29, 2000, Appellant was arrested, and her children were taken into custody, after police raided her home and discovered methamphetamine, scales, packaging materials, residue, and firearms; (4) a man arrested following the July 29, 2000, raid admitted he used Appellant's residence to coordinate drug sales and gave Appellant drugs in exchange for her cooperation; (5) on November 17, 2000, Appellant pleaded guilty to theft by receiving stolen property, a class B misdemeanor, and was sentenced to 75 days in jail; and (6) at the time of the hearing, the children had been residing in prospective adoptive homes for over one year and had adapted well to their new environments. Based on these findings of fact, the trial court did not abuse its discretion in determining that Appellant's parental rights should be terminated for unfitness.

Affirmed.

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Gregory K. Orme, Judge

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I CONCUR:

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Russell W. Bench, Judge

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DAVIS, Judge (concurring):

I concur, but write separately because I feel it is appropriate to more fully explain the reasoning behind our decision.

In this case, the juvenile court determined, among other things, that Appellant was unfit or incompetent.(2) Under Utah Code Ann. § 78-3a-407, a juvenile court may terminate the parental rights of a parent if it finds the parent is unfit or incompetent. See Utah Code Ann. § 78-3a-407(3) (2002).

Factors for determining a parent is unfit are listed in Utah Code Ann. § 78-3a-408 (2002). "[C]onviction of a crime, if the facts surrounding the crime are of such a nature as to indicate the unfitness of the parent to provide adequate care to the extent necessary for the child's physical, mental, or emotional health and development[,]" is prima facie evidence of unfitness. Utah Code Ann. § 78-3a-408(4)(b). Similarly, "repeated criminal activity and incarceration occurring after a parent has been the subject of [Division of Child and Family Services] referrals and treatment plans and after a child has been removed from the parent's custody" may be sufficient to support a claim of unfitness. In re M.L., 965 P.2d 551, 558 (Utah Ct. App. 1998).

Further, when determining the fitness of a parent, the juvenile court must consider, among other things, whether: (1) "habitual or excessive use of intoxicating liquors, controlled substances, or dangerous drugs" renders the parent unable to care for the child; and (2) the parent has shown "repeated or continuous failure to provide the child with adequate food, clothing, shelter, education, or other care necessary for his [or her] physical, mental, and emotional health and development." Utah Code Ann. § 78-3a-408(2)(a)-(d).

Finally, "although the court has a duty to look forward--i.e., to look at the parent's present ability and the likelihood that the parent will be able to resume parenting within a reasonable time--the court must consider such evidence in light of the parent's past conduct and its debilitating effect on the parent-child relationship." M.L., 965 P.2d at 561-62.

Based on the unchallenged findings of fact listed in the majority decision, the trial court did not abuse its discretion by terminating Appellant's parental rights for unfitness. In addition to the findings, unchallenged evidence from the hearing showed that: (1) on October 22, 2001, at the time of the termination hearing, Appellant was involuntarily residing in a drug treatment facility and awaiting sentencing for a federal weapons conviction; and (2) in April 2001, prior to the hearing, Appellant was briefly released from the drug treatment facility only to be returned after she tested positive for controlled substances.

Furthermore, the juvenile court did not abuse its discretion by terminating Appellant's parental rights even though Appellant offered evidence in support of her fitness.(3) Even if we agreed that Appellant's evidence could show fitness in spite of the findings of fact, we would not set aside the juvenile court's decision unless there was no reasonable basis for its decision. See In re E.R., 2001 UT App 66,¶11, 21 P.3d 680 ("[T]he juvenile court in particular is given a 'wide latitude of discretion as to the judgments arrived at' based upon not only the court's opportunity to judge credibility firsthand, but also based on the juvenile court judges' 'special training, experience, and interest in this field, and . . . devot[ed] . . . attention to such matters . . . .'" (citation omitted) (second alteration and ellipses in original)); In re S.T., 928 P.2d 393, 401 (Utah Ct. App. 1996) (holding that "[t]he mere fact that we could reach a different result than the juvenile court on the same evidence does not justify setting aside the juvenile court's findings"); cf. Crookston v. Fire Ins. Exch., 860 P.2d 937, 938 (Utah 1993). Here, the findings of fact provide ample basis for the juvenile court's decision.

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James Z. Davis, Judge

1. Appellant claims that she is challenging the juvenile court's findings of fact. However, appellant does not actually challenge the juvenile court's findings of fact. Instead, she challenges the juvenile court's decision to terminate her parental rights based on the findings of fact.

2. Appellant also challenges the juvenile court's determination that: (1) the children were being cared for in an out-of-home placement and Appellant substantially neglected, wilfully refused, or was unable or unwilling to remedy the circumstances that caused the children to be in an out-of-home placement, and there was a substantial likelihood that Appellant would not be capable of exercising proper and effective parental care in the near future; (2) failure of parental adjustment; and (3) Appellant had only made token efforts. See Utah Code Ann. § 78-3a-407(4)-(6) (2002). Because we hold the juvenile court did not abuse its discretion by determining that Appellant was unfit, we need not address these arguments. See Utah Code Ann. § 78-3a-407 ("The court may terminate all parental rights with respect to one or both parents if it finds any one" of a number of grounds. (Emphasis added.)); In re D.B., 2002 UT App 314,¶13 n.4, 57 P.3d 1102 (declining to consider abandonment because the court resolved the case on the basis of unfitness).

3. Appellant offered evidence to show that she, while housed at the drug treatment facility, visited the children, paid child support, obtained her GED, attended school, pursued certification as a forklift operator, attended Alcoholics Anonymous, and completed parenting classes.