M.H. v. State (In re B.H.)

M.H. v. State (In re B.H.)

IN THE UTAH COURT OF APPEALS
 

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State of Utah, in the interest of B.H.,
a person under eighteen years of age.

______________________________

M.H.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040513-CA
 

F I L E D
(August 12, 2004)
 

2004 UT App 272

 

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Third District Juvenile, Salt Lake Department

The Honorable Sharon P. McCully

Attorneys: Tupakk A.G. Renteria, 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 Billings, Jackson, and Thorne.

PER CURIAM:

This case is before the court on Appellant's Petition for Appeal from a Juvenile Court Child Welfare Proceeding, pursuant to rule 55 of the Utah Rules of Appellate Procedure. Appellant, the natural father, contends that the juvenile court erred in finding that he, while not a direct participant in the neglect of B.H., left the child in the care of the natural mother, resulting in the neglect. Specifically, the juvenile court found that the natural father's voluntary choice to remain in a relationship with the natural mother placed B.H. is a situation in which he could potentially be neglected. The natural father argues that this is tantamount to requiring him to divorce the mother in order to secure a dependency finding. Moreover, the natural father argues that a finding under Utah Code Annotated section 78-3a-103(1)(s)(I) cannot be substantiated based on the fact that he is married to the mother and is the presumptive father of B.H.

However, the jurisdiction of the juvenile court is strictly a function of the child's "status or condition." In re K.T.S., 925 P.2d 603, 605 (Utah Ct. App. 1996). "The role of the parents in contributing to the children's status or condition is relevant to deciding the case on its merits, but it is of no consequence in deciding whether the juvenile court has jurisdiction." Id.

The juvenile court considered the father's limited role in the neglect when the judge determined that the father would be the primary caregiver and that the paternal grandmother must be present in the home when the father is unavailable so that the mother is not the sole care provider.

We summarily affirm the juvenile court adjudication finding that B.H. is neglected.

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Judith M. Billings,

Presiding Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge