J.E.P. v. State (In re A.F.)

J.E.P. v. State (In re A.F.)

IN THE UTAH COURT OF APPEALS

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

______________________________

J.E.P.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030525-CA
 

F I L E D
(May 6, 2004)
 

2004 UT App 148

 

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Third District Juvenile, Salt Lake Department

The Honorable Robert S. Yeates

Attorneys: Taniela Fiefia, Salt Lake City, for Appellant

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

Martha Pierce and Tracy S. Mills, Salt Lake City, Guardians Ad Litem

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Before Judges Billings, Bench, and Thorne.

THORNE, Judge:

Appellant J.E.P. (Father) appeals from the juvenile court's order terminating his parental rights to A.F. We affirm.

Father argues that the evidence presented to the juvenile court was insufficient to support eight of sixteen factual findings entered by the court and, therefore, the court's order terminating his parental rights is without support. Specifically, Father challenges the evidentiary support underlying the trial court's findings concerning his history of financial support for A.F.; the nature and length of his current prison sentence; his expected release date; and his involvement with A.F. over the course of A.F.'s life, including the date of his last contact with A.F. "When reviewing a termination petition, 'we will disturb the findings and conclusions of the juvenile court only if the evidence clearly preponderates against the findings as made or the court has abused its discretion.'" In re W.A., 2002 UT 127,¶8, 63 P.3d 607 (quoting In re S.R., 735 P.2d 53, 56 (1987)), cert. denied, 538 U.S. 1035, 123 S. Ct. 2092 (2003).

At the termination trial, the juvenile court was presented with evidence that Father never voluntarily provided any financial support for A.F. Moreover, Father's only actual financial contribution occurred as a result of garnishment orders issued many years after A.F.'s birth. The court also was presented with substantial evidence, supported by Father's own testimony, that Father has spent most of A.F.'s life in jail or prison, and that his most recent incarceration resulted from a parole violation that occurred just a few months after his previous release.(1) Moreover, Father testified that during his incarcerations he had made almost no effort to write to A.F.-- sending her only two cards; that he had made limited efforts to call her when the jail or prison allowed him phone privileges, but when disallowed he failed to attempt to find alternative contact methods; and that when he was not imprisoned he saw A.F. no more than once a month. In total, Father's efforts to maintain contact with A.F. amounted to sparse phone contact, two cards, and infrequent visits on the rare occasions he was out of jail. He provided A.F. with no gifts, no money, no letters, no audiotapes, and virtually no contact. This evidence, which was clearly before the trial court, is sufficient to support findings 4, 8, 10, 11, and 15, each of which concentrate on Father's involvement and presence in A.F.'s life.(2)

The juvenile court also heard testimony concerning Father's present incarceration. A.F.'s guardian testified that A.F.'s last contact with Father was a month or two before Father's most recent incarceration, which began in November 2002 or more than seven months before the termination hearing. Although Father testified that his last contact with A.F. was closer to the date of his reincarceration, this testimony is insufficient to overcome the juvenile court's finding. See In re S.Y., 2003 UT App 66,¶11, 66 P.3d 601 (stating "we defer to the juvenile court because of its advantageous position with respect to the parties and the witnesses in assessing credibility and personalities" (quotations and citation omitted)); see also In re J.W., 2001 UT App 208,¶10, 30 P.3d 1232. Therefore, the evidence supports the juvenile court's finding 12 concerning Father's last contact with A.F.

The evidence also supports findings 6 and 16, concerning Father's release date and ability to assume responsibility for A.F. In fact, these findings stem directly from Father's own testimony. Father's testimony established that his sentence was scheduled to terminate in September 2004. And, although Father intimated that he might be released on an earlier date, he introduced no evidence suggesting that he had a scheduled parole date or that he would be released prior to the expiration of his sentence.(3) Because nothing in the record contradicts Father's statement, the court had no choice but to find Father's release date to be September 2004. Thus, the evidence fully supports finding 6. Moreover, Father's known release date meant that he was unavailable to assume responsibility for A.F. for at least fifteen months following the termination trial. Consequently, the juvenile court did not err in entering finding 16, which stated that Father was "not in a position to care for A.F. . . . nor will he be in a position to do so in the foreseeable future."

Based on his arguments concerning the findings, Father next argues that the juvenile court abused its discretion in terminating his parental rights to A.F. The trial court terminated Father's rights, in part, because Father "made only token efforts to support or communicate with A.F."(4) Pursuant to Utah Code Annotated section 78-3a-407(1)(f) (2002), the juvenile court is empowered to terminate a person's parental rights if it finds that the parent has made "only token efforts . . . to support or communicate with the child." The juvenile court found that Father has been incarcerated for virtually all of A.F.'s life, has contributed virtually no financial resources to her care, and has made little to no effort to maintain any contact with her. Accepting the correctness of these factual findings, as we have, we cannot say that the juvenile court abused its discretion in terminating Father's parental rights to A.F. Accordingly, we affirm the juvenile court's termination order.

Affirmed.

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William A. Thorne Jr., Judge

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WE CONCUR:

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Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

1. Contrary to Father's argument on appeal, concerning the nature of his conviction, the trial court's finding that Father was incarcerated on a felony conviction was founded on Father's own testimony. Thus, we do not disturb this finding.

2. Specifically, the juvenile court found that Father had been incarcerated most of A.F.'s life (finding 4); that Father "never directly contributed to [A.F.'s] financial support" (finding 8); that Father had little or no involvement with A.F. during his incarceration (finding 10); and that Father took no "significant actions to establish or maintain a relationship with [A.F.] over the nearly eight years of her life" (finding 15). Contrary to Father's arguments on appeal, and his futile attempt to reargue the weight of the evidence, see In re J.W., 2001 UT App 208,¶10, 30 P.3d 1232 (stating "[t]he fact that [the] defendant's evidence contradicts the court's determination does not require reversal on appeal" (quotations, citation, and alteration omitted)), each of these findings is fully supported by the record.

3. Furthermore, Father's concentration on the juvenile court's use of the word "parole" in finding 6 is unavailing. Although the court used the word "parole" when describing Father's scheduled release date, the misstatement is immaterial to the fundamental nature of the finding. The finding, in substance, established Father's likely release date, whether through expiration of sentence or through parole, and at the time, the only competent evidence before the court established that date to be September 2004. Consequently, we see no reason to disturb finding 6.

4. The juvenile court concluded that Father had made only token efforts to communicate with and support A.F., and that Father had abandoned A.F. See Utah Code Ann. § 78-3a-407(1)(f) (2002); Id. § 78-3a-407(1)(a) (2002). If we determine that just one of these conclusions is supported by the findings and the evidence, we need not address the alternative grounds. See, e.g., In re S.Y., 2003 UT App 66,¶¶15-20, 66 P.3d 601 (addressing just one of several termination grounds found by the juvenile court); In re Adoption of B.O., 927 P.2d 202, 207 n.7 (Utah Ct. App. 1996) ("Because we find that the trial court had sufficient evidence to terminate under the token efforts prong of section 78-3a-407, we need not address [the] alternative grounds.").