S.D. v. State (In re S.B.)

S.D. v. State (In re S.B.)

IN THE UTAH COURT OF APPEALS
 

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

_____________________________

S.D.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20050252-CA
 

F I L E D
(April 28, 2005)
 

2005 UT App 192

 

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Fourth District Juvenile, Provo Department

The Honorable Kay A. Lindsay

Attorneys: John A. Penrod, Provo, for Appellant

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

Martha Pierce and Kelly Frye Glasser, Salt Lake City, Guardians Ad Litem

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Before Judges Davis, Orme, and Thorne.

PER CURIAM:

    Appellant S.D. relinquished his parental rights on the day scheduled for trial on the State's Petition to Terminate Parental Rights. S.D. now claims on appeal that the relinquishment was not freely and voluntarily executed. He bases his claim on an affidavit executed while this matter was on appeal, which alleges that S.D. was under tremendous stress at the time he executed the agreement. He claims his father had recently passed away and he had been out of state, in Idaho, helping his family until days before the trial. He claims he was informed, as he arrived in court for trial, that several warrants were outstanding for his arrest. After he relinquished his rights, he indicated he visited with his child, S.B., who told him that she loved him and wanted to live with him.

    The State correctly points out in its response to S.D.'s petition on appeal, there is no indication that this affidavit was ever made part of the record to be considered on appeal. As a result, this court may not consider the affidavit in S.D.'s appeal. See State v. Law, 2003 UT App 228,¶2, 75 P.3d 923 (noting appellate court's review is limited to evidence contained in the record on appeal).

    S.D. makes two arguments on appeal. First, he contends that the juvenile court failed to make adequate factual findings that he understood and consented to the relinquishment of his parental rights and also failed to adequately determine if the relinquishment was voluntary, as required by Utah Code section 78-3a-414. See Utah Code Ann. § 78-3a-414(2) (2002). Specifically, S.D. claims that the court failed to correctly apply the facts to the law in certifying that S.D. understood what he was doing and did so freely and voluntarily.

    The court inquired into S.D.'s understanding of the effect of the relinquishment and his reasons for entering into the relinquishment. Moreover, the court asked several open ended questions that required S.D. to elaborate, which better enabled the court to judge S.D.'s demeanor. For example, he was asked to explain why he was relinquishing his parental rights. The court addressed, on the record, all of the requirements for certification of a voluntary relinquishment. See Utah Code Ann. § 78-3a-414(3). The court's findings of fact regarding certification of a relinquishment will be upheld by this court "unless they are 'clearly erroneous,' meaning that they are against the 'clear weight of the evidence.'" In re A.G., 2001 UT App 87,¶4, 27 P.3d 562 (citations omitted). The clear weight of the evidence demonstrates that S.D. understood the relinquishment.

    S.D.'s second claim is that the findings of fact and application of the law to the facts entered by the court were inadequate to determine that relinquishment was in S.B.'s best interest. Specifically, S.D. claims that the court failed to consider S.B.'s desires and the "love affection, and other emotional ties existing between a child and the parents." Utah Code Ann. §§ 78-3a-409, 410 (2002). This argument is without merit because, according to Utah Code section 78-3a-414(5), these factors "do not apply to voluntary relinquishment or consent for termination of parental rights." Utah Code Ann. § 78-3a-414(5). The court "need only find that the relinquishment or termination is in the child's best interest." Id. Further, the determination that termination of parental rights is in the child's best interest is a legal conclusion reviewed under an "abuse of discretion standard." In re A.G., 2001 UT App at ¶7.

    By the time the relinquishment was entered, the juvenile court had been involved with the situation for well over two years and through two service plans. Further, the court asked S.D., at the time he signed the relinquishment, if he was entering into the agreement because he wanted his child in a better place and because he could not take care of her. S.D. answered in the affirmative. The juvenile court did not abuse its discretion in determining that termination of S.D.'s parental rights was in S.B.'s best interest.

    We affirm the juvenile court's order terminating S.D.'s parental rights based on the relinquishment agreement executed by S.D.

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James Z. Davis, Judge

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge