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In re C.C.W.

Court of Appeals of Utah

March 7, 2019

In the interest of C.C.W. and Z.C.W., persons under eighteen years of age.
v.
C.L.W., Appellee. R.D.T. and Guardian ad Litem, Appellants,

          Third District Juvenile Court, West Jordan Department The Honorable Renee M. Jimenez No. 1135445

          Troy L. Booher, Julie J. Nelson, Erin B. Hull, and Shane A. Marx, Attorneys for Appellant R.D.T.

          Martha Pierce, Attorney for Appellant Guardian ad Litem

          David Pedrazas, Attorney for Appellee

          Judges Ryan M. Harris and Michele M. Christiansen Forster jointly authored this Opinion. Judge Gregory K. Orme concurred in the result.

          HARRIS and CHRISTIANSEN FORSTER, Judges:

         ¶1 R.D.T. (Mother) petitioned the juvenile court to terminate the parental rights of her ex-husband, C.L.W. (Father), as to their children, C.C.W. and Z.C.W. (collectively, the Children). After Mother presented her case-in-chief, Father asked the court to dismiss Mother's petition. The court granted the motion on the ground that-although Father had abandoned the Children and had twice been incarcerated for violently attacking Mother and, later, another woman-it was not in the Children's best interest to terminate Father's parental rights. Mother and the Guardian ad Litem (the GAL) appeal, contending that the court misapplied the law to the facts. In one significant respect, we agree, and therefore vacate the juvenile court's determination and remand for further proceedings consistent with this opinion.

         BACKGROUND

         ¶2 Mother and Father married in September 2005. Z.C.W. was born in August 2006 and C.C.W. in January 2009. Shortly after C.C.W. was born, and when Z.C.W. was three years old, Father brutally attacked Mother and threatened to kill her at gunpoint after the two had an argument about Father's infidelity. Father was charged with aggravated kidnapping and two counts of aggravated assault, and ultimately pled guilty to kidnapping and aggravated assault. The court presiding over his criminal case sentenced him to prison, where he was incarcerated from April 2010 to March 2013.

         ¶3 While Father was incarcerated, Mother filed for divorce, and a divorce decree was entered in 2010 that awarded Mother sole physical custody of the Children. Mother and Father have each remarried thereafter.

         ¶4 In 2014, one year after his release from prison, Father violated his parole by leaving the state, attacked another woman in Missouri, and later pled guilty to domestic assault. For this crime, he was incarcerated in Missouri from May 2014 to December 2016.

         ¶5 In October 2016, just before Father was released from prison for the second time, Mother petitioned the juvenile court to terminate Father's parental rights. Mother filed the petition because she believed, among other things, that Father had abandoned the Children, and because she believed that reintroducing Father into the Children's lives would be disruptive and potentially violent. The case proceeded to trial.

         ¶6 After Mother presented her case-in-chief, but before he put on any evidence of his own, Father asked the court to dismiss Mother's petition. The juvenile court granted Father's motion and entered findings of fact and conclusions of law, wherein it found that Father had abandoned the Children but that Mother had not shown that it was in the Children's best interest to terminate Father's parental rights.

         ¶7 The juvenile court first found that there were grounds for termination because Father did not attempt to communicate at all with the Children beginning in 2012, during his first incarceration, and through 2016 when Mother filed her termination petition. Significantly, Father did not attempt to communicate with the Children during the year between his two terms of incarceration, even though an order of therapeutic reintroduction had been entered to reestablish Father's relationship with the Children. The court found that, rather than take advantage of this opportunity, Father left the state, violated his parole, and committed another assault. As a result of ...


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