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State ex rel. D.V.

Court of Appeals of Utah

May 11, 2017

STATE OF UTAH, IN THE INTEREST OF D.V. AND A.V., PERSONS UNDER EIGHTEEN YEARS OF AGE.
v.
State of Utah, Appellee. J.V., Appellant,

         Third District Juvenile Court, Salt Lake Department The Honorable Charles D. Behrens No. 1094724

          Sheleigh A. Harding, Attorney for Appellant.

          Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee.

          Martha Pierce, Guardian ad Litem.

          Before Judges Stephen L. Roth, Kate A. Toomey, and David N. Mortensen.

          PER CURIAM OPINION

          PER CURIAM.

         ¶1 J.V. (Father) appeals the termination of his parental rights to D.V. and A.V. We affirm.

         ¶2 "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.

         ¶3 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. § 78A-6-503(12).

         ¶4 "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 determination.

         ¶5 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."

         ¶6 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."[1] 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 ...

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