C.B. v. J.U. (In re S.N.B.)

C.B. v. J.U. (In re S.N.B.)

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

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

______________________________

C.B.,

Appellant,

v.

J.U. and B.U.,

Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20050082-CA
 

F I L E D
(April 14, 2005)
 

2005 UT App 174

 

-----

Fifth District Juvenile, St. George Department

The Honorable Thomas M. Higbee

Attorneys: Brian L. Olson, St. George, for Appellant

LaMar J. Winward, St. George, for Appellees

-----

Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

    This case is before the court on Appellant's (father) petition on appeal. Father seeks to appeal the juvenile court's order terminating his parental rights to S.N.B.(1) Appellees J.U. and B.U., S.N.B.'s maternal grandparents, petitioned the juvenile court for termination of the father's parental rights on the basis of emotional and physical abuse, neglect, abandonment, and that the father is unfit or incompetent.

    At the end of trial, the juvenile court made findings that S.N.B. had been abused by the father. The court found that physical abuse occurred on more than one occasion. The court found that on one occasion the father pushed S.N.B. down, causing a lump on her head. On another occasion, the father and mother engaged in a tug-of-war with S.N.B. literally in the middle, being pulled by the parties. The court also found that the father spanked S.N.B. hard enough to leave a hand print on her buttocks.

    The court found that S.N.B. had been emotionally abused by the father on almost a daily basis. She was subjected to her parents' constant arguments, often resulting in her observing the father abuse the mother. The father regularly addressed S.N.B. by names that were abusive. The court also found that the father generally treated S.N.B. in a demeaning and aggressive manner. S.N.B. was subjected to pornography on the computer. While it is not certain whether S.N.B. actually saw the pornography, it was left on the screen with S.N.B. present and apparently with no effort to ensure that she did not see them. The parents abuse of drugs also resulted in neglect of S.N.B.

    With respect to the issue of neglect, the court found that the father placed his need to relieve his stress above the needs of S.N.B. For example, he would refuse to care for the child when he returned from work because he needed to unwind from his military duties.

    The court found that S.N.B.'s life only began to take on some normalcy when she went to live with J.U. and B.U. J.U. and B.U. eventually filed the petition to terminate both the father and mother's parental rights, which is the subject of this appeal.

    Based on these findings of fact, the juvenile court concluded that S.N.B. was abused and neglected pursuant to Utah Code section 78-3a-407. See Utah Code Ann. § 78-3a-407(b) (2002). The court further found that the father is an incompetent or unfit parent and not likely to change in the near future. See Utah Code Ann. § 78-3a-407(c) (2002). The court, however, declined to conclude that the father had abandoned S.N.B. See Utah Code Ann. § 78-3a-407(a) (2002). The court went on to consider the best interest of S.N.B. and concluded that, while S.N.B. had some relationship with her father, it had deteriorated to the point where it was no longer in S.N.B.'s continued interest for the father to retain parental rights. The court also found that S.N.B.'s young age cut in favor of providing a more stable home, and that, as a result of the father's treatment, S.N.B. is in need of special care that can better be provided by J.U. and B.U.

    The father argues three issues on appeal. First, he claims that the juvenile court's findings of physical and mental abuse, as well as emotional neglect, are not sufficient to support a finding of abuse or neglect. Second, he claims that the court's finding that it was in S.N.B.'s best interest to terminate the father's parental rights was not supported by the evidence. Third, father claims that the court erred in basing its best interest ruling on the voluntary relinquishment by the mother after the close of evidence.

    When applying the facts to the law, we afford the court "some discretion in applying the law to the facts." In re G.B., 2002 UT App 270,¶11, 53 P.3d 963 (quotations and citations omitted). We review the court's findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the facts to the law. See id. Further, juvenile courts are given a "'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 judge's 'special training, experience and interest in this field, and . . . devot[ed] . . . attention to such matters.'" In re E.R., 2001 UT App 66,¶11, 21 P.3d 680 (quoting In re D.G., 376 P.2d 948, 951 (Utah 1962)).

    We first address the father's contention that the court's finding of mental abuse, physical abuse, and emotional neglect are not sufficient to support a finding of abuse and neglect. The evidence contained in the record, along with specific credibility determinations made by the court, support the conclusion that S.N.B. is an abused and neglected child.

    An abused child is defined as a minor that "has suffered or been threatened with nonaccidental physical or mental harm, negligent treatment, or sexual exploitation." Utah Code Ann. § 78-3a-103(1)(a)(I) (2002); see also Utah Code Ann. § 78-3a-408(2) (2002). The court found that S.N.B. had been physically abused on at least three occasions by the father. Further, S.N.B. had witnessed abuse of her mother at the hands of her father. The court also found that S.N.B. had been subjected to negligent treatment. Specifically, the father had placed his concerns and drug use over the needs of S.N.B. Lastly, the court found that S.N.B. had been emotionally mistreated by her father, who called her demeaning names and treated her in an aggressive demeaning manner. In making these factual findings, the court specifically found that, in areas where the testimony of the mother and the father differed, the mother's testimony was deemed the more credible. This credibility determination, along with the facts that are supported by the evidence in the record, support the conclusion that S.N.B. was abused.

    We next address the father's argument that the finding that it was in S.N.B.'s best interest for the father's parental rights to be terminated was not supported by the evidence. If the child is not in the physical custody of the parent, but not in the custody of the Division of Child and Family Services, the court is directed to consider "the physical, mental, or emotional conditions and needs of the child regarding termination." Utah Code Ann. § 78-3a-409(1)(a) (2002). The court is further directed to consider what "effort the parents have made to adjust their circumstances, conduct, or conditions to make it in the child's best interest to return him to his home." Utah Code Ann. § 78-3a-409(1)(b) (2002).

    The court concluded that S.N.B.'s age of four years favored termination because she was still young enough to form a strong bond with the J.U. and B.U. The court also determined that any relationship with the father had deteriorated to a point where it was no longer in S.N.B.'s interest to retain the relationship. The court saw little likelihood that the situation and the father's parenting problems would improve in the near future. The court cited from the evidence, as an example, that even when the father made improvement with the drug problem, he abused alcohol. The court also relied on its conclusion that S.N.B. would require special care based on her chaotic early upbringing and that J.U. and B.U. were more capable of addressing those needs. These findings are also based on the evidence from trial and support the court's conclusion of S.N.B.'s best interest.

    We address father's last issue that the court erred in "basing" its best interest ruling on the voluntary relinquishment by the mother after the close of evidence. The voluntary relinquishment by the mother is not cited in the findings, order, or any of the portions of transcript provided by the father as the basis for the court's determination of S.N.B.'s best interest. For this reason, the argument is not supported in any way by the record, including the court's findings, conclusions, or order, and is, therefore, without merit.

    Accordingly, the order terminating the father's parental rights is affirmed.

______________________________

James Z. Davis, Judge

______________________________

Norman H. Jackson, Judge

______________________________

William A. Thorne Jr., Judge

1. A petition was also apparently filed against the mother, but she relinquished her parental rights at the end of the trial regarding termination of the father's parental rights.