STATE OF UTAH, IN THE INTEREST OF D.V. AND A.V., PERSONS UNDER EIGHTEEN YEARS OF AGE.
State of Utah, Appellee. J.V., Appellant,
District Juvenile Court, Salt Lake Department The Honorable
Charles D. Behrens No. 1094724
Sheleigh A. Harding, Attorney for Appellant.
D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys
Pierce, Guardian ad Litem.
Judges Stephen L. Roth, Kate A. Toomey, and David N.
PER CURIAM OPINION
J.V. (Father) appeals the termination of his parental rights
to D.V. and A.V. We affirm.
"Whether a parent's rights should be terminated
presents a mixed question of law and fact." In re
B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. "Because
of the factually intense nature of such an inquiry, the
juvenile court's decision should be afforded a high
degree of deference." Id. "Thus, in order
to overturn the juvenile court's decision '[t]he
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.'" Id.
(alteration in original) (quoting In re Z.D., 2006
UT 54, ¶¶ 33, 40, 147 P.3d 401). Further,
"[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." Id.
The juvenile court found that several grounds supported
termination of Father's parental rights. The juvenile
court concluded that Father neglected or abused the children,
see Utah Code Ann. § 78A-6-507(1)(b)
(LexisNexis 2012), and was an unfit or incompetent parent,
see id. § 78A-6-507(1)(c). The court further
concluded that the children had been in an out-of-home
placement under the supervision of DCFS, see id.
§ 78A-6-507(1)(d)(i); that Father had
"substantially neglected, willfully refused, or has been
unable or unwilling to remedy the circumstances that caused
the child to be in an out-of-home placement, " see
id. § 78A-6-507(1)(d)(ii); and that "there is
a substantial likelihood that [Father] will not be capable of
exercising proper and effective parental care in the near
future, " see id. § 78A-6-507(1)(d)(iii).
The juvenile court concluded that the children had suffered
or were substantially likely to suffer serious detriment due
to parental unfitness, see id. § 78A-6-503(7)
(Supp. 2016), and that it was strictly necessary to terminate
parental rights. After finding grounds for termination, the
court concluded it was in the child's best interest that
Father's parental rights be terminated. See id.
"Utah law requires a court to make two distinct findings
before terminating a parent-child relationship." In
re R.A.J., 1999 UT App 329, ¶ 7, 991 P.2d 1118.
"First, the court must find that the parent is below
some minimum threshold of fitness, such as a finding that a
parent is unfit or incompetent based on any of the grounds
for termination" in section 78A-6-507. Id.
(citation and internal quotation marks omitted).
"Second, the court must find that the best interests and
welfare of the child are served by terminating . . . parental
rights." Id. Under Utah Code section 78A-6-507,
the finding of a single ground will support termination of
parental rights. See Utah Code Ann. §
78A-6-507(1) (LexisNexis 2012). Father challenges the
sufficiency of the evidence to support the grounds for
termination and also challenges the best interest
Father was incarcerated in the Utah State Prison for the
entire length of the case, and he does not have a parole
hearing date until June of 2019. Father was able to
participate in the care of A.V. during the early months of
her life, but he had never met D.V. Father testified that he
has been incarcerated for most of the last twenty years. The
juvenile court made a detailed finding on Father's
extensive criminal history. The juvenile court also found
that, "[d]ue to the father's felony conviction and
ongoing incarceration the children would be deprived of a
normal home life. A normal home life would be one where the
father would be present to be the father."
Father argues that the sole basis for the findings of his
parental unfitness and parental neglect was his lengthy
incarceration. He asserts that the children were not deprived
of a normal home for over one year prior to the State's
seeking termination and "were only outside of a normal
home for a period of 4.5 months." This argument
considers the children's placement in a foster home in
September 2016 as the disruption of their normal home. Father
argues that a parent's incarceration only rises to the
level of neglect or unfitness when the children "have
been deprived of a normal home for over one
year." Utah Code section
78A-6-508(2), describing evidence to support the grounds for
termination, states, in part,
In determining whether a parent or parents are unfit or have
neglected a child the court shall consider, but is not
limited to, the following circumstances, conduct, or
conditions: . . .
(e) whether the parent is incarcerated as a result of
conviction or a felony and the sentence is of such length
that the children will be deprived of a ...