A.H. v. State (In re E.V.)

A.H. v. State (In re E.V.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of E.V. and I.R., persons under eighteen years of age.

______________________________

A.H.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20050314-CA

F I L E D

(June 3, 2005)

2005 UT App 250

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Third District Juvenile, Salt Lake Department, 132196

The Honorable Frederic M. Oddone

Attorneys: Lisa B. Lokken, Salt Lake City, for Appellant

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

Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Davis, Greenwood, and Thorne.

PER CURIAM:

A.H. appeals the termination of her parental rights on the grounds that she neglected the children, see Utah Code Ann. § 78-3a-407(1)(b) (2002); was an unfit or incompetent parent, see id. § 78-3a-407(1)(c); and failed to remedy the circumstances that caused the out-of-home placement, see id. § 78-3a-407(1)(d).

A.H. claims that the evidence was insufficient to support the grounds for termination because she had corrected the circumstances that led to the removal of her children at the time of the termination trial. We "review the juvenile court's factual findings based upon the clearly erroneous standard." In re E.R., 2001 UT App 66,¶11, 21 P.3d 680. "The juvenile court in particular is given 'wide latitude of discretion as to the judgments arrived at' based upon not only the court's opportunity to judge credibility firsthand, but also based on the juvenile court judges' 'special training, experience and interest in

this field, and . . . devot[ed] . . . attention to such

matters. . . .'" Id. (citations omitted).

A.H.'s central contention is that she corrected the circumstances that led to removal of her children by maintaining employment and housing and by participating in drug counseling.

At the time of the termination trial, A.H. was participating in drug counseling through Adult Probation & Parole (AP&P) as a condition of probation. The juvenile court found that although the Division of Child and Family Services (DCFS) twice offered A.H. services to remediate the circumstances that caused the removal, she refused services other than supervised visitation. Although she later participated in drug counseling through AP&P, the court found that she was motivated to participate by the threat of prison if she violated her probation. The court found that she had taken no initiative during the six or seven months prior to the continued trial to contact DCFS regarding the children. Finally, the court found that A.H.'s conduct led to a breakdown of the parent/child relationship, allowing the children to bond to their foster families. The court found that E.V. developed reactive attachment disorder as a result of A.H.'s actions, and that her lack of insight and knowledge of the children's needs had not changed.

"[I]f a parent has demonstrated some improvement in parenting ability but not a strong likelihood that the parent can provide a proper home for the child in the near future, after a long separation, a history of problems and failure to remedy, and deterioration of the relationship between the child and parent, this court should not overturn a court's order terminating parental rights." In re M.L., 965 P.2d 551, 562 (Utah Ct. App. 1998). Accordingly, the weight given to any present ability evidence "is necessarily dependent on the amount of time during which the parent displayed an unwillingness or inability to improve . . . her conduct" and the effect of that delay or conduct on the ability to resume a parent-child relationship. Id. at 561. The juvenile court's findings demonstrate that the court gave appropriate weight to any evidence that A.H. had improved her ability to parent by the time of trial. The court found that her participation in drug counseling and her stable employment were motivated by her probation and did not demonstrate a "substantial or enduring change." The court found that DCFS had made reasonable efforts to provide services, but A.H. declined services to address the issues that led to removal of the children. The court found A.H failed to communicate with DCFS about her children and also failed to communicate with counsel. The court found that A.H. still lacked adequate parenting skills to meet the special needs of the children, particularly E.V.'s continuing need for therapy for reactive attachment disorder. Finally, the court found that the best interests of both children would be served by termination of A.H.'s parental rights to allow their adoption by the families with whom they were placed. The evidence was sufficient to support the juvenile court's findings of fact and its conclusion that the grounds for termination of parental rights had been established by clear and convincing evidence.

We affirm the decision of the juvenile court to terminate A.H.'s parental rights.

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge