In re L.M...(M.V-L. v. State) , 2013 UT App 190 ( 2013 )


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    2013 UT App 190
    _________________________________________________________
    THE UTAH COURT OF APPEALS
    STATE OF UTAH, IN THE INTEREST OF L.M. AND L.M., PERSONS
    UNDER EIGHTEEN YEARS OF AGE.
    M.V‐L.,
    Appellant,
    v.
    STATE OF UTAH,
    Appellee.
    Opinion
    No. 20120556‐CA
    Filed August 1, 2013
    Third District Juvenile, Salt Lake Department
    The Honorable Charles D. Behrens
    No. 1027720
    Colleen K. Coebergh, Attorney for Appellant
    John E. Swallow and John M. Peterson, Attorneys
    for Appellee
    Martha Pierce, Guardian ad Litem
    JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGES
    GREGORY K. ORME and CAROLYN B. MCHUGH concurred.
    DAVIS, Judge:
    ¶1      M.V‐L. (Father) appeals the juvenile court’s ruling
    terminating his parental rights to his two daughters, L.M. (Older
    Sister) and L.M. (Younger Sister). We affirm the juvenile court’s
    ruling.
    In re L.M...
    BACKGROUND
    ¶2     Father, the non‐custodial parent of the two girls, maintained
    a friendly co‐parenting relationship with the girls’ custodial parent
    (Mother).1 The incidents leading up to the termination of Father’s
    parental rights began in 2009, after Mother and her paramour,
    M.A., were arrested on outstanding warrants. The Division of
    Child and Family Services (DCFS) and the juvenile court became
    involved at that time, and the court ordered Protective Supervision
    Services over Older Sister, Younger Sister, and Mother’s two other
    children.2
    ¶3     In April 2010, Father moved in with Mother and the children
    and stayed with them for eight or nine months, during which time
    he watched the children and participated in the peer parenting
    classes that Mother was required to take.3 Father was aware that
    Mother’s relationship with M.A. was part of the reason DCFS and
    the courts were involved and was also aware that M.A. abused
    Mother. Mother was eventually deemed to be in substantial
    1. “We recite the facts in a light most favorable to the juvenile court
    findings.” In re L.M., 
    2001 UT App 314
    , ¶ 2, 
    37 P.3d 1188
    .
    2. Mother gave birth to a son (Son), fathered by M.A. in 2010. M.A.
    voluntarily relinquished his parental rights to Son. Mother has
    another daughter, Half Sister, who has a different father than Son,
    Older Sister, and Younger Sister. In addition, prior to the 2009
    proceedings, Mother had relinquished her parental rights to four
    other children.
    3. Older Sister and Younger Sister were found to be dependent as
    to Father, and no reunification services were ordered as to him. See
    generally Utah Code Ann. § 78A‐6‐105(11) (LexisNexis 2012)
    (“‘Dependent child’ includes a child who is homeless or without
    proper care through no fault of the child’s parent, guardian, or
    custodian.”).
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    In re L.M...
    compliance with her reunification plan, and the DCFS case was
    closed in December 2010.
    ¶4     The State became involved again in October 2011 after two
    particularly severe incidents of domestic violence in which M.A.
    held a knife to Mother’s throat, threatened to kill her with a
    baseball bat, dragged her by her hair, kicked and punched her, and
    attempted to strangle her. One of these incidents was witnessed by
    Son and a cousin, and the other by all four of Mother’s children.
    ¶5      This time, the State elected to proceed directly to the
    termination of parental rights as to both Mother and Father,
    without offering further reunification services in light of the
    services offered to Mother in 2009. The four children were placed
    in the same foster care home, and a five‐day termination trial was
    held in March 2012.
    ¶6     At the termination trial, Mother testified that she kept Father
    apprised of “everything” going on with the girls, including her
    2009 involvement with DCFS and her abusive relationship with
    M.A. Mother assured Father that his children were not aware of the
    domestic violence going on in the home, explaining that she made
    sure her interactions with M.A. occurred in the garage, where they
    supposedly could not be heard when the children were in the
    home.
    ¶7     Father testified that he was aware that M.A., a violent gang
    member, had essentially been “stalking” Mother and would beat
    her and steal and damage her property, but that the children were
    not harmed by M.A.’s actions because they did not directly witness
    them. Father testified that he encouraged Mother to report the
    domestic violence to the police or DCFS, but that he did not do so
    himself, considering it a futile endeavor because M.A. could not be
    caught in the act.
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    In re L.M...
    ¶8      Both Mother and Father also testified that the children were
    not being properly cared for in their foster placement. Of primary
    concern were the “sexually reactive behaviors” that Half Sister and
    Older Sister began exhibiting in the foster home. These behaviors
    included inappropriately exposing themselves and touching the
    other children in the foster home.4 The children had disclosed to
    the foster mother and a therapist that M.A. had molested Older
    Sister and Half Sister and was physically abusive to Son, an infant
    at the time. Mother was not aware that M.A. had abused her
    children. When the sexually reactive behavior began, the foster
    mother contacted DCFS and attempted to work out a plan to keep
    all of the children safe while also keeping Mother’s children
    together. Ultimately, Half Sister had to be removed from the home
    until her sexually reactive behavior could be addressed.
    ¶9      The juvenile court ultimately terminated Father’s parental
    rights, concluding that Father was an unfit parent and neglected his
    children. Specifically, the juvenile court found that he was
    neglectful based on his failure to take any steps to protect his
    children from the domestic violence that he knew was occurring in
    their home. Father appeals.5
    ISSUES AND STANDARD OF REVIEW
    ¶10 Father challenges the sufficiency of the evidence supporting
    the juvenile court’s determinations that he is an unfit parent, that
    he neglected his children, and that it is in the children’s best
    4. In addition to Mother’s four children, there were four other
    children in the foster home ranging from five years old to eighteen
    years old.
    5. Mother appeals separately. In re L.M., 
    2013 UT App 191
    , 
    308 P.3d 553
    .
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    In re L.M...
    interests for his parental rights to be terminated.6 “[O]n appeal
    [f]indings of fact in a parental rights termination proceeding are
    overturned only if they are clearly erroneous.” In re D.G., 
    938 P.2d 298
    , 301 (Utah Ct. App. 1997) (second alteration in original)
    (citation and internal quotation marks omitted); accord In re B.R.,
    
    2007 UT 82
    , ¶ 12, 
    171 P.3d 435
    .
    ANALYSIS
    ¶11 Father argues that the juvenile court’s finding that he failed
    to take any action to protect his children from M.A.—i.e., that he
    failed to call the police, file for a protective order, or contact
    DCFS—is insufficient to support the termination of his parental
    rights. Father contends that the actions enumerated by the juvenile
    court “would [not] have ensured the protection and safety of his
    children from the risks and harms of being exposed to domestic
    violence presented to them,” particularly because the police were
    already aware of the situation, Mother had assured him that the
    6. Father did not request that the State be ordered to provide him
    with reunification services, and to the extent he challenges on
    appeal the propriety of having his parental rights terminated
    without having received such services, he did not raise the issue
    until oral argument before this court. We accordingly do not
    address this issue. See State v. Dunn, 
    850 P.2d 1201
    , 1220 n.17 (Utah
    1993) (explaining that a claim made at oral argument, but not
    raised in the party’s appellate briefing, is deemed waived); see also
    Utah Code Ann. § 78A‐6‐312 (LexisNexis 2012) (listing guidelines
    to be considered by a court deciding whether reunification services
    are appropriate); id. § 78A‐6‐312(20) (noting that “a parent’s
    interest in receiving reunification services is limited”); In re S.O.,
    
    2005 UT App 393
    , ¶ 11, 
    122 P.3d 686
     (mem.) (per curiam)
    (“Reunification services are a gratuity provided to parents by the
    Legislature, and appellants thus have no constitutional right to
    receive these services.” (citation and internal quotation marks
    omitted)).
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    In re L.M...
    children could not hear the violence being perpetrated through the
    garage walls, and the children had not disclosed to Father that they
    knew of the domestic violence. Therefore, he contends, he “violated
    no legal duties” by opting against pursuing such futile protective
    measures. Father also asserts that he and the children shared a
    loving and bonded relationship and that the children were “subject
    to gross neglect in the foster home due to obvious risks of ongoing
    sexually reactive behaviors being ignored and perpetuated.”7
    I. Grounds
    ¶12 The Utah Code authorizes the juvenile court to “terminate
    all parental rights with respect to a parent if the court finds any one
    of the following: . . . (b) that the parent has neglected or abused the
    child; (c) that the parent is unfit or incompetent . . . .” Utah Code
    Ann. § 78A‐6‐507(1)(b), (c) (LexisNexis 2012). The juvenile court
    may also terminate parental rights if “only token efforts have been
    made by the parent: . . . (ii) to prevent neglect of the child; (iii) to
    eliminate the risk of serious harm to the child; or (iv) to avoid
    being an unfit parent.” Id. § 78A‐6‐507(1)(f)(ii)–(iv). “Neglect”
    includes “action or inaction causing . . . failure or refusal of
    a parent, guardian, or custodian to provide proper or necessary
    subsistence, education, or medical care, or any other care necessary
    for the child’s health, safety, morals, or well‐being.” Id. § 78A‐6‐
    105(27)(a)(iii). The juvenile court must also “consider the welfare
    and best interest of the child . . . in determining whether
    termination of parental rights shall be ordered.” Id. § 78A‐6‐503(12).
    7. Father also asserts that his rights to “a fundamentally fair
    process” were violated because his first language is Spanish and
    DCFS never provided him with a Spanish interpreter. Because this
    argument is not adequately briefed, we do not address it. See Utah
    R. App. P. 24(a)(9) (outlining the appellate briefing requirements
    for an argument); Jacob v. Cross, 
    2012 UT App 190
    , ¶ 2, 
    283 P.3d 539
    (per curiam) (“If an appellant fails to adequately brief an issue on
    appeal, the appellate court may decline to consider the
    argument.”).
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    In re L.M...
    ¶13 Here, the juvenile court based its decision to terminate
    Father’s parental rights on evidence that Father was aware that
    M.A. was abusing Mother in the children’s home and that this
    “domestic violence was a significant factor in the [2012] removal of
    his children” and in DCFS’s involvement in 2009. Contrary to
    Father’s assertions, the juvenile court found that Father “was aware
    that [his children] had been exposed to domestic violence” and did
    not take any steps to protect the children, such as calling the police
    or DCFS, or filing for an adult or child protective order. The
    juvenile court declined to make any “findings regarding the sexual
    abuse” allegations, determining that Father’s “unwillingness or
    inability to provide for the children is based upon his prior” and
    ongoing “unwillingness to protect or prevent the children from the
    domestic violence.”
    ¶14 We agree with the juvenile court. Father’s arguments as to
    the futility of the protective actions suggested by the juvenile court
    do not exonerate him from his duty to protect his children from the
    violence occurring in their home. Likewise, even if the children
    could not hear the abuse through the garage walls, that does not
    necessarily prove that they were otherwise unaware that it was
    occurring. Indeed, according to Mother’s testimony, all of the
    children had witnessed at least one of M.A.’s attacks, and
    according to Father’s testimony, Mother was often visibly bruised.
    However, the children do not need to have witnessed the violence
    firsthand to be aware that it was taking place and to be
    psychologically harmed by it. See generally Brooke Kintner, Note,
    The “Other” Victims: Can We Hold Parents Liable for Failing to Protect
    Their Children from Harms of Domestic Violence?, 31 New Eng. J. on
    Crim. & Civ. Confinement 271, 272 (2005) (describing studies that
    indicate “that despite victims’ attempts to conceal domestic
    violence in the home, children actually witness or are at least aware
    of nearly all battering episodes,” and that “[w]itnessing domestic
    violence affects children in a similar manner as direct abuse”
    (citations and internal quotation marks omitted)). Further, that the
    children did not tell Father about the domestic violence could
    indicate that they were not close to Father or had other reasons not
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    In re L.M...
    to share this information with him, just as easily as it could
    indicate, as Father argues, that they did not know it was occurring.
    Ultimately, the very fact that Mother was unable to keep M.A. out
    of her home to protect herself should have been enough to prompt
    Father to take action to protect his children, regardless of the
    children’s knowledge of the abuse. Cf. In re V.L., 
    2008 UT App 88
    ,
    ¶ 23, 
    182 P.3d 395
     (listing as one factor supporting the termination
    of the father’s parental rights his “fail[ure] to take any steps to
    prevent the children from remaining in” a home in which he knew
    there was domestic violence).
    ¶15 Father attempts to undermine the import of his inaction by
    focusing on other measures of his parenting ability, i.e., by pointing
    out that his “parenting was not found to fall below any cognizable
    legal standard in 2009” and that he pays child support, buys the
    children clothes, spends time with his children, talks to them
    regularly on the telephone, and otherwise has positive, loving
    relationships with his children, as well as with Son and Half Sister.
    Father also notes that he had made one offer to take the children
    and conducted a brief and fruitless search for more suitable
    housing to facilitate their moving in with him. Father’s positive
    relationship and other strengths as a parent, as well as his fleeting
    efforts to have the children move in with him, however, do not
    outweigh the severity of his overall failure to act. The knowledge
    that a violent gang member with a lengthy criminal record, whom
    Father described as adept at eluding authorities, was regularly
    breaking into the home in which his children lived and assaulting
    their mother should have prompted any reasonable parent to take
    actions that would ensure the safety and best interests of his or her
    children. Father was also aware that during at least one of these
    incidents, M.A. threatened Mother with a knife. Allowing children
    to continue living under these conditions based primarily on the
    belief that they will remain blind to and unharmed by reality if
    they “hear no evil” and “see no evil” decidedly does not ensure the
    children’s safety. Accordingly, the juvenile court had sufficient
    evidence to determine that Father neglected his children. Cf. In re
    T.M., 
    2006 UT App 435
    , ¶ 21, 
    147 P.3d 529
     (noting that the appellate
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    In re L.M...
    courts “must forebear disturbing the ‘close call’” because “the
    juvenile court, with its training, expertise, and superior ability to
    assess the credibility of parties and witnesses, . . . is in the best
    position to make such a difficult determination” (citations and
    internal quotation marks omitted)).8
    II. Best Interests
    ¶16 Next, in determining the best interests of Older Sister and
    Younger Sister, the juvenile court noted that “[t]he children are in
    need of stability and protection from abuse and neglect” and that
    Older Sister and Younger Sister “have been residing in a legal risk
    placement where their needs have been met,” and in the same
    foster home as Son, their half brother. The foster family has been
    providing the children with the necessary medical, dental,
    emotional, and psychological care, whereas when the children
    were first placed in State custody, Father indicated that were he not
    living with his cousin at the time, he would be willing to take
    custody of Half Sister and Older Sister, but not, in the State’s
    words, “the medically fragile [Younger Sister], his biological
    8. We recognize that this was a close case because, as the State put
    it, Father is “an atypical father compared to most facing
    termination. He did not use drugs, he was consistently employed
    throughout the proceedings, never abused his children, and
    consistently maintained contact with them,” as well as with Son
    and Half Sister. Cf. In re T.M., 
    2006 UT App 435
    , ¶ 21, 
    147 P.3d 529
    (affirming the termination of a father’s parental rights where “the
    [juvenile] court weighed evidence of Father’s history of poor
    choices that negatively impacted the Children’s lives, the stability
    and love the Children’s foster home provided, and the Children’s
    close bond with their foster family, against evidence of Father’s
    efforts to complete his treatment plan, his commitment to provide
    for the Children, his employed and drug‐free status, and the
    mutual love and bond between Father and the Children”).
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    In re L.M...
    daughter.” Further, the foster parents are willing to adopt the
    children and “have been approved by DCFS as an adoptive home.”
    ¶17 Father attempts to turn on its head the context of the
    sexually reactive behavior exhibited by Half Sister and Older Sister
    in the foster home, describing the foster placement as “rampant”
    with “sexual acting out” that the foster parents knew about and
    ignored. Father ignores the evidence supporting the allegation that
    Older Sister had been sexually abused by M.A. and that the
    sexually reactive behavior she exhibited in the foster placement
    was possibly a manifestation of the psychological trauma caused
    by the alleged abuse. We agree with the State that, if anything, “the
    children’s physical and emotional condition when they came in to
    foster care is actually further evidence of parental neglect” and, we
    would add, further evidence that termination of Father’s parental
    rights is in the children’s best interests. Accordingly, sufficient
    evidence supported the juvenile court’s determination that it is in
    the children’s best interests to terminate Father’s parental rights
    and allow the children “to be adopted by [the foster] parents into
    a home where they will be secure, stable, loved, and protected from
    neglect and abuse.”
    CONCLUSION
    ¶18 Sufficient evidence supports the juvenile court’s findings
    that Father was neglectful and that termination of his parental
    rights was in the children’s best interests. Accordingly, we affirm
    the juvenile court’s termination of Father’s parental rights.
    20120556‐CA                      10               
    2013 UT App 190
                                

Document Info

Docket Number: 20120556-CA

Citation Numbers: 2013 UT App 190

Filed Date: 8/1/2013

Precedential Status: Precedential

Modified Date: 12/21/2021