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State ex rel. J.S. v. State

Court of Appeals of Utah

July 13, 2017

State of Utah, in the interest of J.S., a person under eighteen years of age.
v.
State of Utah, Appellee. J.S., Appellant,

         Seventh District Juvenile Court, Price Department The Honorable Craig M. Bunnell No. 1117628

          Travis H. Blackburn, Attorney for Appellant.

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

          Martha Pierce, Guardian ad Litem.

          Before Judges Gregory K. Orme, J. Frederic Voros Jr., and David N. Mortensen.

          OPINION

          PER CURIAM.

         ¶1 J.S. (Father) appeals the termination of his parental rights to his child. 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 Father raises a single issue on appeal. He claims that the juvenile court erred by "ending reunification with [Father] after [ten] weeks and by not making reasonable efforts to provide services to" Father. In support of his claim, Father argues that he had difficulty drug testing and attending required counseling due to his employment. He also argues that it was not in the child's best interest "to prematurely terminate his reunification services" and that the Division of Child and Family Services (DCFS) "should have made additional efforts to facilitate his drug testing and counseling requirements." Father contends that DCFS did not make reasonable efforts to provide services to him and that DCFS should have offered him alternatives that would have allowed him to "continue to keep working full time at his job and complete the child and family plan at the same time."

         ¶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 finding that a parent is unfit or incompetent based on any of the grounds for termination" in Utah Code section 78A-6-507. Id. (citation and internal quotations marks omitted). "Second, the court must find that the best interests and welfare of the child are served by terminating . . . parental rights." Id. Under 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 does not challenge any ground for termination found by the juvenile court. Instead, he characterizes his claim on appeal as a challenge to the best interest determination. The following facts are relevant to the issue on appeal.

         ¶5 DCFS first became involved with the child and his parents in February 2015 as a result of concerns with domestic violence and drug use by both parents. DCFS offered the parents voluntary services in March 2015, including drug testing, mental health and substance abuse assessments, and treatment for both parents. The child came into DCFS custody on July 8, 2015, as a result of both parents' failure to respond to voluntary services and treatment and their ongoing drug use. On August 13, 2015, the juvenile court entered its "stipulated findings of fact, conclusions of law, and adjudication/disposition order, " which established jurisdiction over the child as abused and neglected by the parents. The juvenile court set a primary goal of reunification with the parents and incorporated the Child and Family Plan as a court order.

         ¶6 In July 2015, Father completed a substance abuse and mental health assessment. In August 2015, Father completed a Parental Fitness Evaluation. That evaluation did not recommend that reunification be pursued with Father because he was not ready to pursue reunification based on his attitudes toward DCFS and his attitude and perspective with respect to drug use. Father was "unapologetic for his behaviors and continued to claim he had done virtually nothing wrong." The evaluation stated that in order for reunification to be recommended, Father would have to remain clean for at least three months and significantly change his attitude and perspective with respect to using drugs. However, in the event that reunification with Father was pursued, the evaluation also recommended the services that would be necessary. The Child and Family Plan included reunification services for Father.

         ¶7 In August 2015, DCFS filed an order to show cause based on Father's failure to comply with his mandated services. Father admitted the allegations of the order to show cause. On September 2, 2015, the juvenile court found Father to be in contempt of its order and sentenced Father to thirty days in jail with twenty-eight days suspended contingent on future compliance with the court's order. At an October 7, 2015 review hearing, the juvenile court found that Father had five positive drug tests in September 2015. Father disputed the results and requested an evidentiary hearing. Father had not consistently attended treatment, and he told the court he attended only when he was not working. The juvenile court requested DCFS to file a new order to show cause to address Father's continued noncompliance with the Child and Family Plan and set an evidentiary permanency hearing regarding Father only.

         ¶8 Father was present and represented by counsel at the November 18, 2015 evidentiary permanency hearing. Father had submitted ten negative drug tests to DCFS in October 2015. He submitted eight drug tests in November 2015 prior to the hearing, all but one of which was negative. However, he tested positive for methamphetamine and THC on November 16, 2015. Father also had not been attending therapy as required. His therapist testified that Father was attending roughly half of the recommended group treatment and had made little progress on his issues. At the hearing, Father stipulated to the termination of reunification services for him. As a result, DCFS requested dismissal of the pending order to show cause. The juvenile court entered a permanency order as to Father, finding that he had not substantially complied with his reunification service requirements or met the goals of the Child and Family Plan, that the child could not be safely returned to ...


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