M.L.B. v. State

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of F.W.,
a person under eighteen years of age.

______________________________

M.L.B.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020767-CA
 

F I L E D
(July 3, 2003)
 

2003 UT App 227

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Third District Juvenile, Salt Lake Department

The Honorable Robert S. Yeates

Attorneys: Jeffrey J. Noland, Salt Lake City, 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 Jackson, Bench, and Orme.

BENCH, Judge:

Appellant takes issue with the trial court's determination that transfer of custody and guardianship are in the child's best interest based on "the extensive history of domestic violence, the recent incident of domestic violence, and the current turmoil in the home." Appellant admits, however, to an extensive history of domestic violence between her and her husband as well as to the incident of physical violence that occurred in the home in November of 2001. Despite her candor in reciting the couple's history of domestic violence, Appellant fails to marshal other evidence that supports the trial court's decision. The record reflects that Appellant has an extensive and ongoing pattern of dishonesty and lack of forthrightness with DCFS; she remains married to her husband, who is the primary cause of the domestic violence and who refuses to undergo counseling for that problem; she is not in treatment herself with a therapist specifically trained or certified in domestic violence issues; her son, who also has a history of perpetrating violence, is named on her housing voucher; and she and her husband have been disapproved as an adoptive placement for the child.(1) We conclude that, given the evidence, the juvenile court did not abuse its discretion in determining that a transfer of custody is in the child's best interest. See State ex rel. Summers v. Wulffenstein, 616 P.2d 608, 611 (Utah 1980).

The juvenile court's purported reliance in its written findings on Utah Code Ann. § 78-3a-106 (2002) is of no concern because its determination regarding the child's best interest meets the requirement of Utah Code Ann. § 78-3a-307(6)(b)(I) (2002). See Boud v. SDNCO, Inc., 2002 UT 83,¶10, 54 P.3d 1131 ("[A]n appellate court may affirm a judgment, order, or decree appealed from if it is sustainable on any legal ground or theory apparent on the record, even though that ground or theory was not identified by the lower court as the basis of its ruling." (Internal quotations and citation omitted.))

Affirmed.

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Russell W. Bench, Judge

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WE CONCUR:

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Norman H. Jackson,

Presiding Judge

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Gregory K. Orme, Judge

1. As pointed out by the guardian ad litem, "[a]ll adoptable children shall be placed for adoption." Utah Code Ann. § 78-3a-411(2) (2002).