S.B. v. State (In re M.J.S.)

S.B. v. State (In re M.J.S.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of M.S. and S.W., children under eighteen years of age.

______________________________

S.B.,

Appellant,

v.

State of Utah,

Appellee.

 

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030355-CA
 

F I L E D
(December 4, 2003)
 

2003 UT App 424

 

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Third District Juvenile, Salt Lake Department

The Honorable Andrew A. Valdez

Attorneys: Jay L. Kessler, 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 Davis, Greenwood, and Thorne.

PER CURIAM:

S.B., maternal grandmother of the children, appeals an order dismissing her amended petition seeking custody and adoption.

S.B. contends the juvenile court's decision resulted from bias against her by the Division of Child and Family Services (DCFS) and from failure to consider the best interests of the children. Following an evidentiary hearing, the court made detailed findings of fact supporting its conclusion that S.B. had not established that she qualified as an adoptive placement. S.B. does not challenge any specific finding of fact. Instead, she argues that DCFS demonstrated bias and failed to perform a home study on S.B. because they had promised to allow adoption by a family who had adopted the children's siblings.

"Whether the juvenile court correctly denied Appellant's petition to adopt is a mixed question of fact and law." In re J.H., 2003 UT App 265,¶5, 76 P.3d 202. Accordingly, "we review the juvenile court's findings for clear error and its conclusions of law for correctness, affording the court 'some discretion in applying the law to the facts.'" Id. (citations omitted). "[A] party challenging the juvenile court's findings must marshal the evidence in support of those findings, and then show that the marshaled evidence is insufficient, as a matter of law, to support the findings." In re S.L., 1999 UT App 390,¶20, 995 P.2d 17. S.B. has failed to marshal the evidence and demonstrate that the juvenile court's findings are clearly erroneous. The undisputed findings include findings that S.B. had previously failed a kinship study, in part because she was substantiated three times for abuse or neglect of other children, and that six grandchildren, including M.S. and S.W., have been removed from her home. In addition, the juvenile court found that the evidence presented at the evidentiary hearing did not establish bias by DCFS against S.B.

S.B. claims that DCFS planned all along to adopt the children to an out-of-state family without giving fair consideration to her petition, that "the lure of a large payoff to adopt to strangers outweighed the natural grandmother's love and bond with her grandchildren," and that DCFS made biased statements to the court that failed to consider the best interests of the children, in anticipation of "a large payday of their department." There was no evidence presented that supported this claim. Because the arguments are both speculative and not based upon the evidence before the court, we disregard them. See Utah R. App. P. 24(j) (allowing court to disregard or strike "burdensome, irrelevant, immaterial, or scandalous matters"). Similarly, S.B. has not demonstrated that DCFS was biased in failing to perform a home study after S.B. was not approved by the Adoption Committee as a prospective adoptive placement.

It is implicit in S.B.'s argument that, as the children's biological grandmother, she is entitled to a preference in their adoption. In Utah, "the best interest of the child should govern and be of foremost concern in the court's determination" in an adoption proceeding. In re Adoption of A.B., 1999 UT App 315, ¶16, 991 P.2d 70. Accordingly, "there is no preference in adoption cases for next-of-kin." In re J.H., 2003 UT App 265,¶8, 76 P.3d 202; see also In re Adoption of A.B., 1999 UT App 265 at ¶16 (rejecting grandparent's claim of preference over adoptive parents). The record before us reflects that the juvenile court held an evidentiary hearing on S.B.'s petition and carefully weighed the evidence before concluding that it was not in the best interest of the children to be placed with S.B.

S.B. failed to sustain her burden to demonstrate that she was a qualified adoptive placement. On appeal, she has not demonstrated that the juvenile court's findings of fact were clearly erroneous or that the court erred in dismissing her petition. Accordingly, we affirm the judgment.

WE CONCUR:

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

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I CONCUR IN THE RESULT:

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William A. Thorne Jr., Judge