STATE OF UTAH, IN THE INTEREST OF K.K., J.R.K., AND M.K., PERSONS UNDER EIGHTEEN YEARS OF AGE.
State of Utah, Appellee. L.K., Appellant,
Juvenile District Court, St. George Department The Honorable
Paul E. Dame No. 1066694
Benjamin D. Gordon, Attorney for Appellant
D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys
Pierce, Guardian ad Litem
Judges Michele M. Christiansen, Kate A. Toomey, and David N.
PER CURIAM DECISION
L.K. (Father) appeals the juvenile court's order
terminating his parental rights. We affirm.
"[I]n order to overturn the juvenile court's
decision [to terminate a person's parental rights, ]
'the result must be against the clear weight of the
evidence or leave the appellate court with a firm and
definite conviction that a mistake has been made.'"
In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435
(citation omitted). 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. A finding of fact is clearly erroneous only
when, in light of the evidence supporting the finding, it is
against the clear weight of the evidence. See id.
Further, we give the juvenile court 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 court judges' special
training, experience and interest in this field."
Id. (citations and internal quotation marks
omitted). Finally, "[w]hen a foundation for the
court's decision exists in the evidence, an appellate
court may not engage in a reweighing of the evidence."
In re B.R., 2007 UT 82, ¶ 12.
Father first argues that there was insufficient evidence to
demonstrate grounds supporting termination of his parental
rights. The juvenile court based its termination decision on
several grounds, including unfitness. See Utah Code
Ann. § 78A-6-507(1)(c) (LexisNexis 2012). The evidence
in the record supports the juvenile court's findings and
determination that Father was unfit to care for his
children. For example, the juvenile
court found that Father had an extensive history of both drug
use and domestic violence. While Father completed one drug
treatment program during the course of this case, shortly
after completing the program he overdosed on prescription
medication in a suicide attempt. A few months later he tested
positive for marijuana and methamphetamine, thereafter
expressing a desire to get help for his substance abuse
problems. Thus, it is clear that Father's drug habits
were not resolved by the completion of the initial drug
rehabilitation program. Similarly, the juvenile court found
that Father had not adequately addressed his domestic
violence issues. Father began classes for domestic violence,
but at the time of trial he was still months away from
completion of the course.
Father's failure to adequately address his domestic
violence issues is all the more important due to his ongoing
relationship with the mother of the children, who had
previously relinquished her parental rights to the children.
The juvenile court found that the two have a volatile history
with each committing violent acts against the other. However,
both have expressed their desire to maintain their
relationship with the other. In fact, based on the evidence
presented, the juvenile court determined that Father's
relationship with the mother is likely to continue
indefinitely, which causes difficulty due not only to her
unresolved domestic violence issues, but also due to her
unresolved mental health and drug issues. The mother's
unresolved issues make it unsafe for the children to be
around her. However, Father does not or cannot recognize
these problems, believing that mother is a good mom, that the
children are safe around her, and that the children would not
be detrimentally affected being around her. Accordingly, due
to Father's failure to address several internal issues
and to put the children's interests ahead of the interest
of the mother, the juvenile court found that the children
would not be safe if it returned the children to Father's
custody. Thus, evidence in the record supports the juvenile
court's decision that Father was unfit. See In re B.R., 2007 UT 82,
Father next asserts that the juvenile court erred in
determining that the Division of Child and Family Services
(DCFS) made reasonable efforts to reunify him with his
children. "Reasonable efforts" has been defined as
"a fair and serious attempt to reunify a parent with a
child prior to seeking to terminate parental rights."
In re A.C., 2004 UT App 255, ¶ 14, 97 P.3d 706.
However, the process of reunification is "a two way
street which 'requires commitment on the part of the
parents, as well as the availability of services from the
State.'" In re P.H., 783 P.2d 565, 572
(Utah Ct. App. 1989) (quoting In re J.C.O., 734 P.2d
458, 463 (Utah 1987)). Ultimately, reasonableness is an
objective standard that "depends upon a careful
consideration of the facts of each individual case."
In re K.F., 2009 UT 4, ¶ 51, 201 P.3d 985.
Thus, the juvenile court has broad discretion in determining
whether DCFS made reasonable efforts to reunify a child with
her parent. In re A.C., 2004 UT App 255, ¶ 20.
Here, in examining DCFS's efforts to reunify the children
with Father, the juvenile court noted that "[t]his is
not a typical case, rather, it has been a very
high-maintenance, chaotic case" due to the significant
needs of every family member. When the case was initiated the
parents did not trust DCFS, thereby requiring more time to
establish a rapport between the caseworker and the parents.
Despite this high-maintenance case, DCFS provided extensive
help to Father. The caseworker coordinated appointments to
obtain Father's psychological and domestic violence
evaluations, provided referrals for other services,
facilitated payments for services, and provided Father with
financial support, including money for a down payment on an
apartment. Father also failed to take advantage of some
services and internalize the lessons of others. For example,
Father's caseworker was able to place Father and the
mother into a shelter that was one of DCFS's primary
resource hubs. However, Father left the facility within a
week because he believed someone was exhibiting too much
interest in the mother. Moreover, despite completing drug
counseling Father tested positive for methamphetamine and
marijuana. In sum, the evidence in the record supports the
juvenile court's determination that DCFS provided
reasonable services to Father.
Finally, Father alleges that the juvenile court erred in
denying the mother's attempt to invoke spousal privilege
to prevent her from testifying at the trial. Father alleges
that the juvenile court improperly allowed a blanket
application of Rule 502(e)(4) of the Utah Rules of Evidence
to the mother's entire testimony. See Utah R.
Evid. 502(e)(4) (stating that an exception to spousal
privilege applies "[i]f the interest of a minor child of
either spouse may be adversely affected, the Court may refuse
to allow invocation of the privilege"). Father alleges
that the juvenile court should have more thoroughly
investigated the totality of the State's anticipated
questioning to determine if it would allow the privilege to
be asserted at least partially in regard to some lines of
questioning. However, this argument was not adequately
preserved. "[I]n order to preserve an issue for appeal
the issue must be presented to the trial court in such a way
that the trial court has an opportunity to rule on that
issue." Brookside Mobile Home Park, Ltd. v.
Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968. Prior to
her testimony, the mother raised the argument of spousal
privilege, not Father. The court eventually decided that the
privilege did not apply under rule 502(e)(4). The mother was
then questioned by all parties. Father never objected to any
part of her testimony in regard to privilege. If Father
believed that certain testimony should not have been included
within the scope of the juvenile court's previous ruling,
it was incumbent upon him to ...