M.G. v. State (In re S.G.M.)

M.G. v. State (In re S.G.M.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of S.G.M., a person under eighteen years of age.

______________________________

M.G.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020507-CA
 

F I L E D
(April 24, 2003)
 

2003 UT App 126

 

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Third District Juvenile, Salt Lake Department

The Honorable Robert S. Yeates

Attorneys: John E. Laherty, 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 Bench, Davis, and Thorne.

THORNE, Judge:

M.G. appeals from an order terminating her parental rights. We affirm.

We will overturn the factual findings in a parental rights proceeding only if the findings are clearly erroneous. See In re D.G., 938 P.2d 298, 301 (Utah Ct. App. 1997). Furthermore,

[t]o successfully appeal a trial court's findings of fact, appellate counsel must play the devil's advocate. "[Attorneys] must extricate [themselves] from the client's shoes and fully assume the adversary's position. In order to properly discharge the [marshaling] duty . . . , the challenger must present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists."

Oneida/SLIC v. Oneida Cold Storage & Warehouse, 872 P.2d 1051, 1052-53 (Utah Ct. App. 1994) (alterations in original) (quoting West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991)).

M.G. fails in her marshaling obligation. M.G. admits that evidence was introduced to support the trial court's findings, but asks this court to substitute its judgment for that of the trial court and accept the evidence in support of her position as more believable.(1) However, the trial court is "'in the best position to assess the credibility of witnesses,'" and for this reason we defer to the trial court when conflicting evidence is presented. Lefavi v. Bertoch, 2000 UT App 5,¶20, 994 P.2d 817 (quoting State v. Pena, 869 P.2d 932, 936 (Utah 1994)).

M.G. also argues that the evidence presented at trial was insufficient to support the trial court's conclusions that she was an unfit parent and that termination of her parental rights was in the child's best interest. However, M.G. only challenges three of the twenty factual findings pertaining to parental fitness and competence, two of the five findings pertaining to the best interest of the child, and does not sufficiently marshal the evidence against the findings she does challenge.

After reviewing the unchallenged factual findings, we conclude that there is sufficient evidence to support the trial court's conclusions of unfitness and that termination was in S.G.M.'s best interest. For example, the trial court found that M.G. "has a long history of schizophrenia with multiple psychiatric hospitalizations" and that she has "a history of seeking prescription medication through various medical providers." The court also found that M.G. has "a history of suicide attempts and of medication overdose" and that on at least two occasions M.G. "refused to take her prescribed medication," even though her service plan required M.G. to "[m]anage her mental diagnosis in order to have the ability to function appropriately." The court also found that the child suffered from attention deficit disorder, needed a stable care giver and structured home-environment, and that M.G.'s mental illness "contributed to [the child's] anxieties and tend[ed] to escalate his problems." Standing alone, these findings are sufficient to support the trial court's conclusions that M.G. is "an unfit/or incompetent parent," that M.G. "has substantially neglected, willfully refused, or has been unable or unwilling to remedy the circumstances that caused [the child] to be in an out-of-home placement," and that termination of M.G.'s parental rights was in the child's best interest.

Accordingly, we affirm the trial court's order terminating M.G.'s parental rights.

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William A. Thorne Jr., Judge

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WE CONCUR:

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Russell W. Bench, Judge

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James Z. Davis, Judge

1. M.G. attacks the finding that she suffers from "chronic paranoid schizophrenia." M.G. asks that we disregard Dr. Bartel's testimony and accept testimony that M.G.'s delusions were caused by prescription drug abuse and not schizophrenia. M.G. also attacks the findings that she did not manage her mental health diagnosis, that the child was removed from the home because of "increased emotional trauma and disruption," and that M.G. was not an appropriate care giver. M.G. simply cites to conflicting evidence and asks us to accept this evidence in support of her position.