K.J. v. State of Utah (In re R.N.)

Annotate this Case
K.J. v. State (In re R.N.)

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

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

______________________________

K.J.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030220-CA
 

F I L E D
(December 11, 2003)
 

2003 UT App 427

 

-----

Third District Juvenile, Salt Lake Department

The Honorable Sharon P. McCully

Attorneys: Scott L. Wiggins, Salt Lake City, for Appellant

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

Martha Pierce and Suchada P. Bazzelle, Salt Lake City, Guardians Ad Litem

-----

Before Judges Jackson, Billings, and Greenwood.

JACKSON, Presiding Judge:

Appellant K.J. (Mother) appeals the juvenile court's order terminating her parental rights to her six children. We affirm.

Mother challenges the sufficiency of the evidence supporting the juvenile court's findings of neglect, unfitness and incompetence as a parent, unwillingness to remedy the circumstances that caused the children to be in out-of-home placement, failure of parental adjustment, and token efforts. To challenge the sufficiency of juvenile court findings, an appellant must first marshal the evidence in support of those findings. See In re W.A., 2002 UT 127,¶43, 63 P.3d 607. Then, when all evidence supporting the findings has been presented, an appellant must "demonstrate that the evidence, when viewed in the light most favorable to the court's ruling, is insufficient." Id.

Although Mother has made some effort to marshal the evidence in support of the findings she resists, she has not "demonstrate[d] that the evidence, when viewed in the light most favorable to the court's ruling, is insufficient." Id. In other words, mother has not "ferret[ed] out a fatal flaw in the evidence." West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991). Mother argues that the evidence evinces a definite and firm conviction that a mistake has been made and that the findings resting on that evidence are clearly erroneous. However, to demonstrate clear error in the marshaled evidence, Mother does nothing more than reargue the evidence that supports her position, such as her efforts at rehabilitation and drug treatment.

Reargument of the weight of the evidence on appeal is inappropriate appellate practice and is unavailing. Mother "'may not reargue the weight of that evidence, relying upon testimony favoring [her position] and ignoring the conflicting testimony against [her]. The fact that [Mother's] evidence contradicts the [juvenile court's] determination does not require reversal on appeal.'" In re J.W., 2001 UT App 208,¶10, 30 P.3d 1232 (quoting State v. Bingham, 732 P.2d 132, 133 (Utah 1987)).

What Mother "has not done is to correlate particular items of evidence with the challenged findings and convince us of the court's missteps in application of the evidence to its findings. The findings, then, have not been shown to be clearly erroneous." Majestic Inv. Co., 818 P.2d at 1315. Evidence supporting the juvenile court's findings permeates the record. Contrary to Mother's protestations, the juvenile court was aware of the "progress" Mother was making, but also gave proper attention and emphasis to the progress that Mother was not making. The undisputed facts in the record show that while Mother began an intensive outpatient drug treatment class, she never finished it. The record also shows that while she began a domestic violence class, she did not finish it. Additionally, Mother did complete a parenting class, but she did not complete her individual therapy and mindfulness classes which are integral in helping to manage emotions and in learning the coping skills necessary to avoid further drug use. Further, while Mother completed the relapse prevention portion of her program, she also tested positive for drugs five times between October 2001 and June 2002. The juvenile court also heard testimony from Mother's counselor that if Mother were to relapse, which she ultimately did, she would need to take the anti-relapse section of the program again. While the juvenile court initially authorized unsupervised visits with an eventual trial home placement, the court did so before knowing that Mother had once again tested positive for drugs. Unsupervised visits never occurred because of the positive drug test results. Finally, and most convincingly, Mother neglected in her brief to confront evidence that, during the pendency of the proceedings below, she concealed a pregnancy from the juvenile court; that when she arrived at the emergency room in August 2002, she refused to take a drug screen and ultimately left against medical advice; and that when she returned the next day, she gave birth to a sixteen-week premature infant that weighed one pound, fifteen ounces, tested positive for methamphetamine, and suffered from methamphetamine withdrawals.

The record gives us a definite and firm conviction exactly opposite to the one Mother claims we should have. Mother "has neither demonstrated that the [findings were] 'against the clear weight of the evidence,' nor has [she] convinced us that 'a mistake has been made.' Accordingly, we conclude that there was sufficient evidence to support" the juvenile court's findings and the legal conclusions resting thereon. In re J.W., 2001 UT App 208 at ¶10 (quoting In re V.T., 2000 UT App 189,¶8, 5 P.3d 1234).

We affirm.

______________________________

Norman H. Jackson,

Presiding Judge

-----

WE CONCUR:

______________________________

Judith M. Billings,

Associate Presiding Judge

______________________________

Pamela T. Greenwood, Judge