B.A. v. State (In re N.A.)

B.A. v. State (In re N.A.)

IN THE UTAH COURT OF APPEALS
 

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State of Utah, in the interest of N.A. and D.A., persons under eighteen years of age.

______________________________

B.A.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040899-CA
 

F I L E D
(December 16, 2004)
 

2004 UT App 475

 

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Third District Juvenile, Salt Lake Department

The Honorable Sharon P. McCully

Attorneys: Jeffrey J. Noland, Salt Lake City, for Appellant

Mark L. Shurtleff and Carol L.C. Verdoia, Salt Lake City, for Appellee

Martha Pierce and Suchada Bazzelle, Salt Lake City, Guardians Ad Litem

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Before Judges Greenwood, Jackson, and Thorne.

PER CURIAM:

    B.A. appeals from a final order of the juvenile court terminating his parental rights. B.A. argues that there was insufficient evidence upon which to base the termination of parental rights. To the extent B.A. challenges the sufficiency of the evidence supporting findings of fact, we review such challenges under the clearly erroneous standard. See In re E.R., 2001 UT App 66,¶11, 21 P.3d 680; see also Utah R. Civ. P. 52(a). Moreover, "we defer to the juvenile court because of its advantaged position with respect to the parties and the witnesses in assessing credibility and personalities." In re S.L., 1999 UT App 390,¶20, 995 P.2d 17 (quotations and citations omitted). To the extent B.A. challenges the juvenile court's termination of his parental rights in light of the findings, we review the juvenile court's decision to terminate parental rights for correctness. See In re C.K., 2000 UT App 11,¶17, 996 P.2d 1059.

    After reviewing the record, we determine sufficient evidence exists to support the juvenile court's material findings and its decision to terminate B.A.'s parental rights. B.A. has a history of substance abuse and domestic violence. B.A. has no stable residence. During the course of the underlying proceedings, B.A. violated a no-contact order, failed to participate in required programs and drug tests, and was found to be in contempt of court. When B.A. was given a second chance by the juvenile court and allowed a trial home placement with the children, B.A. failed to participate in services, and within six weeks, police responded to a call regarding domestic violence at B.A.'s home in the presence of the children. As a direct result of the domestic violence, the children were removed for a second time.

    Accordingly, we hold that sufficient evidence existed to support the juvenile court's findings. Further, the juvenile court's factual findings support each of its conclusions that termination of B.A.'s parental rights was appropriate, including: neglect; unfitness and incompetence; unwillingness or inability to remedy such circumstances; token efforts; and repeated refusal or failure to provide proper care. See Utah Code Ann. §§ 78-3a-407(1)(b)-(f), (h) (2002).

    B.A. also argues that the juvenile court improperly terminated his parental rights because "the court erred in the finding that the Division made reasonable efforts to assist the family[.]" The juvenile court's conclusion was supported by the findings and by the record. In any event, this conclusion was not required to terminate B.A.'s parental rights under Utah Code section 78-3a-407(3). This section specifically provides that a court is not required to find that "reasonable efforts" were made when "abuse or neglect [is] found by the court to have occurred subsequent to adjudication." Utah Code Ann. § 78-3a-407(3) (2002). The juvenile court found that post-adjudication abuse or neglect occurred in this case.

    Finally, B.A. argues that the juvenile court erred in terminating his parental rights where there was no finding of severe abuse or neglect. The juvenile court ruled that B.A. made only token efforts "to support or communicate with the children; prevent neglect of the children; and/or avoid being an unfit parent[.]" Utah Code section 78-3a-407(1)(f) states, "[t]he court may terminate all parental rights with respect to a parent if it finds . . . that only token efforts have been made by the parent: (i) to support or communicate with the child; (ii) to prevent neglect of the child; (iii) to eliminate the risk of serious physical, mental, or emotional abuse of the child; or (iv) to avoid being an unfit parent." Utah Code Ann. 78-3a-407(1)(f). This provision is clearly in the disjunctive. Given the juvenile court's ruling under section 78-3a-407(1)(f), and given the numerous other grounds supporting termination of B.A.'s parental rights under Utah Code sections 78-3a-407(1)(b), (c), (d), (e), and (h), there was no requirement for the court to make a separate finding of severe abuse or neglect. See, e.g., In re D.B., 2002 UT App 314,¶13 n.4, 57 P.3d 1102.

    The order of the juvenile court is affirmed.

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Pamela T. Greenwood, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge