T.R. v. State (In re S.B.)

Utah State Courts - Opinions - T.R. v. State (In re S.B.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of S.B., C.R., J.R., and J.F., persons under eighteen years of age.

______________________________

T.R.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20030005-CA

F I L E D
(September 5, 2003)

2003 UT App 303

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Third District Juvenile, Salt Lake Department

The Honorable Olof A. Johansson

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 Davis, Greenwood, and Thorne.

DAVIS, Judge:

T.R. (Mother) challenges the juvenile court's findings that led to an order terminating her parental rights to S.B., C.R., J.R., and J.F. (Children). The juvenile court terminated Mother's parental rights on grounds of unfitness, failure of parental adjustment, token efforts, neglect, and a failed trial home placement. We affirm.

"The facts supporting termination of parental rights must be proved by clear and convincing evidence." In re S.L., 1999 UT App 390,¶19, 995 P.2d 17 (citing Utah Code Ann. § 78-3-406(3) (1996)) (other citation omitted). "Findings of fact in a parental rights termination proceeding are overturned only if they are clearly erroneous." In re G.B., 2002 UT App 270,¶9, 53 P.3d 963 (quotations and citations omitted). "The clearly erroneous standard requires that if the findings . . . are against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made, the findings . . . will be set aside." In re S.L., 1999 UT App 390 at ¶20 (quotations and citations omitted). "'Moreover, we defer to the juvenile court because of its advantageous position with respect to the parties and the witnesses in assessing credibility and personalities.'" In re G.B., 2002 UT App 270 at ¶9 (citation omitted). "In addition, 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 at ¶20.

"Although [Mother] did not marshal 'every scrap of competent evidence' supporting the juvenile court's findings, she substantially complied with the marshaling requirement." Id. at ¶23 (citation omitted). However, "[i]n reviewing the entire record in this case, we conclude that there was clear and convincing evidence to support the challenged findings." In re G.B., 2002 UT App 270 at ¶12.

Findings of Fact 10 and 11

The juvenile court, in Findings of Fact 10 and 11, found that Mother's choice of daycare provider for her child, S.B., did not conform to the terms of the safety plan that required "appropriate daycare arrangements" for S.B. during S.B.'s trial home placement. Mother argues that no evidence was presented at trial to establish that P.V. was not an "appropriate daycare" provider for S.B. Mother also argues that she need not obtain prior Division of Child and Family Services (DCFS) approval of her daycare arrangements. The State presented evidence at Mother's parental rights termination trial that a DCFS worker informed Mother that an "appropriate daycare" provider needed to be a licensed daycare provider and approved by DCFS. With Mother's history of choosing to associate herself and Children with abusive men, the requirement of DCFS pre-approval of daycare arrangements for S.B. was warranted. P.V. was neither a licensed daycare provider, nor approved by DCFS. Mother's challenge to Findings of Fact 10 and 11 fails because the juvenile court's findings that P.V. was not an "appropriate daycare" provider are not "against the clear weight of the evidence." In re S.L., 1999 UT App 390 at ¶20 (quotations and citations omitted).

Finding of Fact 13

Finding of Fact 13 was based upon the testimony of therapists and counselors which indicated that Mother exhibited behaviors consistent with personality disorders, and that Mother was failing to internalize the lessons taught in her therapy and counseling sessions.

Mother challenges this finding because evidence adduced at trial shows that Mother was not diagnosed with a personality disorder, and that Mother had a high level of participation in therapy and was beginning to exhibit positive change. The testimony of both Dr. Beall and Dr. Kair support the juvenile court's findings. The juvenile court expressed a concern for the welfare of Children because the testimony of Dr. Beall and Dr. Kair suggested that Mother could not provide for Children's needs over her own needs. Mother's challenge to Finding of Fact 13 fails because the juvenile court's finding regarding Mother's characteristics and counseling history is not "against the clear weight of the evidence." Id. (quotations and citations omitted).

Finding of Fact 20

The court, in Finding of Fact 20, found that Mother failed to substantially comply with the service plans required of her to regain custody of Children. The court made subsidiary findings that Mother failed to provide an appropriate home for Children; failed to maintain self-sufficiency through employment; maintained a relationship, in violation of a no-contact order, with G.F., who was abusive to her and Children; failed to complete parenting classes; and failed to successfully complete counseling and therapy sessions.

The juvenile court erred when it found that Mother did not complete parenting classes. The record is clear that Mother did complete parenting classes. Although this particular finding is plain error, this error is harmless. See State v. Evans, 2001 UT 22,¶20, 20 P.3d 888 ("[H]armless error is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings."). Because the termination of Mother's parental rights did not rest solely upon Mother's successful completion of parenting classes, the juvenile court's error was "sufficiently inconsequential." Id.

The record supports the remainder of Finding of Fact 20. Although Mother provided a physical home for Children, the home was not necessarily an "appropriate home." Mother compromised the safety of her child, S.B., by leaving her in the care of an individual, P.V., who had not been approved by DCFS. Mother had a history of associating with abusive men and had exposed S.B. to abuse by at least one of these abusive men. Although no evidence was presented at trial to indicate that P.V. had abused S.B., the juvenile court was warranted in making this finding to prevent any further abuse from the men that Mother chose to bring into the home.

The trial record supports a finding that Mother failed to maintain self-sufficiency. The juvenile court heard testimony that Mother was not self-sufficient because, although she was employed at the time of trial, Workforce Services had terminated its relationship with Mother because Mother had failed to effectively utilize employment training and career counseling services.

The record supports a finding that Mother had violated the no-contact order barring any association with G.F. by her and Children. Mother stipulated to the removal of her newborn daughter, J.F., because of Mother's continuing relationship with G.F.

Finally, while Mother attended some counseling sessions aimed at helping her regain custody of Children, the juvenile court considered evidence from counselors, therapists, and mental health assessments indicating that, although Mother participated in a number of therapy and counseling sessions, she was likely to revert to behaviors that would once again endanger the welfare of Children.

Notwithstanding the juvenile court's erroneous conclusion that Mother failed to complete parenting classes, the subsidiary findings supporting Finding of Fact 20 are not "against the clear weight of the evidence," In re S.L., 1999 UT App 390 at ¶20 (quotations and citations omitted), and therefore Finding of Fact 20 is affirmed.

CONCLUSION

Based on the foregoing, Mother's challenge to the sufficiency of the evidence supporting Findings of Fact 10, 11, 13, and 20 fails because these findings are not clearly erroneous. See In re G.B., 2002 UT App 270,¶9, 53 P.3d 963 ("Findings of fact in a parental rights termination proceeding are overturned only if they are clearly erroneous." (quotations and citations omitted)). These findings, along with the remainder of the unchallenged findings, show that the welfare and safety of Children was at risk if Mother continued to care for them. Also, the findings of the juvenile court support the termination of Mother's parental rights on grounds of failure
of parental adjustment, token efforts, neglect, and a failed trial home placement.

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James Z. Davis, Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge