Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State ex rel. B.A.

Court of Appeals of Utah

November 9, 2017

State of Utah, in the interest of B.A., a person under eighteen years of age.
v.
State of Utah, Appellee. R.A., Appellant,

         Third District Juvenile Court, West Jordan Department The Honorable Renee M. Jimenez No. 1109173

          Joseph Lee Nemelka, Attorney for Appellant.

          Sean D. Reyes, John M. Peterson, and Emily I. Iwasaki, Attorneys for Appellee.

          Martha Pierce, Guardian ad Litem.

          Judge Michele M. Christiansen authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.

          CHRISTIANSEN, JUDGE.

         ¶1 R.A. (Father) appeals the juvenile court's order terminating his parental rights to B.A. (Child). Father contends that the evidence was insufficient to support the juvenile court's findings regarding Father's fitness to parent and Child's best interests. Father also contends that the juvenile court improperly terminated his parental rights based upon his failure to comply with the child and family service plan (the Service Plan). Finally, Father contends that the juvenile court erred by allowing a lay witness to give expert witness testimony despite not being designated as an expert. We conclude that the evidence presented at trial was sufficient to support the juvenile court's findings, that the court did not terminate Father's parental rights solely due to his failure to comply with the Service Plan, and that Father failed to adequately brief his witness contention; consequently, we affirm.

         ¶2 We recognize that juvenile court judges have special training, experience, and interest in their field, as well as the opportunity to judge credibility firsthand; consequently, we review a juvenile court's decision to terminate parental rights deferentially and will not disturb the juvenile court's findings and conclusions unless the preponderance of the evidence clearly militates against the findings made or the court has otherwise abused its discretion. In re A.B., 2007 UT App 286, ¶ 10, 168 P.3d 820; In re R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d 1118.

         ¶3 "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. "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" enumerated in Utah Code section 78A-6-507. Id. (citation and internal quotation marks omitted). See generally Utah Code Ann. § 78A-6-507(1) (LexisNexis 2012) (listing the grounds for termination of parental rights). "Second, the court must find that the best interests and welfare of the child are served by terminating the parents' parental rights." In re R.A.J., 1999 UT App 329, ¶ 7.

         I. Unfitness

         ¶4 Father first contends that the evidence was insufficient for the juvenile court to have properly found that he fell below the minimum threshold of parental fitness. Father challenges the juvenile court's findings that: (1) he neglected Child, (2) he was an unfit or incompetent parent, (3) he had willfully refused or was unable or unwilling to remedy the circumstances that caused Child to be in an out-of-home placement, and (4) there was a substantial likelihood that Father would not be capable of exercising proper and effective parental care in the near future.

         ¶5 We will uphold the termination of Father's parental rights so long as any one of the above-stated grounds was supported by sufficient evidence. See Utah Code Ann. § 78A-6-507(1). One of the grounds for termination set forth in the statute is whether the parent is unfit due to "habitual or excessive use of intoxicating liquors, controlled substances, or dangerous drugs that render the parent unable to care for the child." See id. § 78A-6-507(1)(c); id. § 78A-6-508(2)(c). Here, between the time the juvenile court first ordered Father to submit to random drug testing and the date of trial, Father was required to submit to drug testing over 100 times, but he only appeared for testing on 15 occasions. Of those 15 occasions, he tested positive for controlled substances on 4 occasions. Additionally, while this child-welfare case was pending, police investigated a domestic-violence incident involving Father, and Father admitted to them that he had "been using Spice."

         ¶6 After this evidence was presented at trial, the juvenile court found that "[Father] has missed a majority of the required drug tests" and that "[Father] has been inconsistent in his drug testing, having only tested on a few occasions." The court also noted Father's positive tests for controlled substances and his admission to drug use. The court concluded that, for these and other reasons, Father was "unfit or incompetent, thereby justifying the termination of [his] parental rights."

         ¶7 On appeal, Father challenges neither the admissibility nor the accuracy of the drug test evidence. In fact, Father mentions drug testing only to describe the procedural history of the case and does not refer to drugs or drug testing anywhere in his arguments. Given the uncontested evidence of Father's drug use, we must conclude that a foundation existed for the juvenile court's determination that Father was an unfit parent due to his continuing use of controlled substances. And "[w]hen a foundation for the court's decision ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.