C.H. v. State (In re W.M.W.)

C.H. v. State (In re W.M.W.)

IN THE UTAH COURT OF APPEALS
 

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

______________________________

C.H.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030743-CA
 

F I L E D
(July 9, 2004)
 

2004 UT App 233

 

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Third District Juvenile, Salt Lake Department

The Honorable Robert S. Yeates

Attorneys: Nathan N. Jardine, 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 Orme.

BENCH, Associate Presiding Judge:

C.H. (Mother) challenges the sufficiency of evidence supporting the juvenile court's termination of her parental rights to W.M.W. We overturn the juvenile court's findings of fact only if they are clearly erroneous. See In re S.L., 1999 UT App 390,¶19, 995 P.2d 17. "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." Id. at ¶20 (quotations and citations omitted).

Mother argues that termination of her parental rights based on the finding that W.M.W. is a neglected child is error since no evidence was presented that she injured, harmed, or neglected W.M.W. in any way. However, the Child Welfare Reform Act protects minors who are "at risk" because a sibling is neglected or abused. Utah Code Ann. § 78-3a-103(s)(i)(E) (Supp. 2003). "'Neglected child' means a minor . . . who is at risk of being a neglected or abused child as defined in this chapter because another minor in the same home is a neglected or abused child as defined in this chapter." Id. This definition is applicable even to children "conceived and born after another child in the home has been abused or neglected." In re E.K., 913 P.2d 771, 774 (Utah Ct. App. 1996).

The State may establish a prima facie case that a child is "at risk" by showing that a court has previously found a sibling neglected or abused. See id. at 775. The burden of production then shifts to the parent to present evidence to persuade the juvenile court that the State has not established by clear and convincing evidence that the child is "at risk." See id. Furthermore, "the weight which a juvenile court must give any present ability evidence is necessarily dependent on the amount of time during which the parent displayed an unwillingness or inability to improve his or her conduct and on any destructive effect the parent's past conduct or the parent's delay in rectifying the conduct has had on the parent's ability to resume a parent-child relationship with the child." In re M.L., 965 P.2d 551, 561 (Utah Ct. App. 1998).

Here, the State established that one of W.M.W.'s siblings had been abused and that three others had been neglected. The burden of production then shifted to Mother to show that W.M.W. was not "at risk." As evidence of her present parenting ability, Mother and her own mother testified of Mother's ability to successfully redirect the attention of a child. Mother also indicated that she enrolled in parenting and substance abuse classes while she was incarcerated. However, the efficacy of the substance abuse classes was limited by Mother's denial of her substance abuse problem. Furthermore, Mother displayed unwillingness or inability to improve her parenting skills for approximately twenty months between the adjudicative findings made in the fall of 2001 and her incarceration in July 2003. Mother's parole violation after W.M.W.'s birth also undermines her argument that her attitude and parenting ability have changed since termination of her parental rights in her other children. Moreover, Dennis Tucker described the results of his temperament analysis of Mother, performed while she was incarcerated, as "not encouraging." In fact, Tucker recommended that Mother not regain custody of W.M.W. until she could "demonstrate compliance with parenting requirements." Thus, Mother failed to meet her burden of production.

Mother, in attempting to augment her argument, claims she had no opportunity to demonstrate her parenting abilities with W.M.W. because she was denied reunification services. However, Mother has no entitlement to such services. See In re N.R., 967 P.2d 951, 955 (Utah Ct. App. 1998) ("Reunification services are a gratuity provided to parents by the Legislature"); Utah Code Ann. § 78-3a-311(3)(a) (2002) ("The Legislature finds that a parent's interest in receiving reunification services is limited."); Utah Code Ann. § 78-3a-312(6)(a) (2002) ("Nothing in this section may be construed to . . . entitle any parent to reunification services for any specified period of time."). The Legislature has granted the juvenile court discretion in determining whether reunification services should be provided. See In re N.R., 967 P.2d at 956. Moreover, "[t]here is a presumption that reunification services should not be provided to a parent if the court finds, by clear and convincing evidence, that . . . the parent's rights have been terminated with regard to any other child." Utah Code Ann. § 78-3a-311(3)(b)(vii). Here, Mother's parental rights to W.M.W.'s siblings had already been terminated. Thus, the juvenile court properly denied reunification services.

In sum, we hold that the juvenile court's finding that W.M.W. was a neglected child was not clearly erroneous and termination of Mother's parental rights to W.M.W. was proper.(1)

We therefore affirm.

______________________________

Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

______________________________

James Z. Davis, Judge

______________________________

Gregory K. Orme, Judge

1. We need not consider the sufficiency of the juvenile court's other bases for terminating Mother's parental rights to W.M.W. since termination may be based solely on the finding that W.M.W. was a neglected child. See Utah Code Ann. § 78-3a-407(1) (2002); see also In re F.C., 2003 UT App 397,¶6, 81 P.3d 790.