In re D.T. & H.T. (R.T. v. State) , 2013 UT App 169 ( 2013 )

2013 UT App 169_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF D.T. AND H.T.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
_________________
R.T.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20130374‐CA
Filed July 11, 2013
Seventh District Juvenile, Monticello Department
The Honorable Mary L. Manley
No. 1045676
Happy Morgan, Attorney for Appellant
John E. Swallow and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES THORNE, ROTH, and CHRISTIANSEN.
PER CURIAM:
¶1 R.T. (Mother) appeals the juvenile court’s March 25, 2013
Findings of Fact, Conclusions of Law and Order (the adjudication
order) concluding that she neglected her minor children. In her
petition on appeal, Mother also states for the first time that she
appeals the March 19, 2013 Minutes, Findings, and Order (the
disposition order) and the February 19, 2013 Minutes, Findings and
Order on an Order to Show Cause for adult contempt (the
contempt order).
In re. D.T. and H.T.
¶2 We lack jurisdiction to consider an appeal from the
contempt order. The juvenile court found Mother to be in contempt
after an order to show cause hearing held on February 14, 2013. See
Utah Code Ann. § 78A‐6‐1101(1) (LexisNexis 2012) (stating that a
person who willfully violates or refuses to obey a juvenile court
order may be proceeded against for contempt). The juvenile court
found that the adult contempt proceedings were criminal contempt
proceedings and required proof beyond a reasonable doubt. A
criminal contempt order is separate from the ongoing proceedings
and is appealable as a matter of right. See Boggs v. Boggs, 824 P.2d
478, 480–81 (Utah Ct. App. 1991) (“A judgment of criminal
contempt is generally considered to be a final order separate from
ongoing proceedings and appealable as a matter of right.”).
Accordingly, the juvenile court advised Mother and her counsel at
the hearing that any appeal must be filed within thirty days of the
entry of the contempt order. The written order, entered on
February 19, 2013, again advised Mother that she must appeal
within thirty days from the date of that order. See Utah Code Ann.
§ 78A‐6‐1109(7) (LexisNexis 2012) (stating that an appeal of right
from orders other than those entered in a child welfare proceeding
shall be taken within thirty days after entry of the order). Mother
did not file a timely notice of appeal from the contempt order. The
notice of appeal filed on April 9, 2013, included the case number for
the adult contempt case, but it was both untimely and stated only
that it was taken from the adjudication order entered in the child
welfare case on March 25, 2013. We lack jurisdiction over Mother’s
appeal from the contempt order.
¶3 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.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (citation
and internal quotation marks omitted). We “review the juvenile
court’s factual findings based upon the clearly erroneous
standard.” In re E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680. A finding
of fact is clearly erroneous when, in light of the evidence
supporting the finding, it is against the clear weight of the
20130374‐CA 2 2013 UT App 169In re. D.T. and H.T.
evidence. Id. Furthermore, the juvenile court is in the best position
to weigh conflicting testimony, to assess credibility, and to make
findings of fact based upon those determinations. In re L.M., 2001
UT App 314, ¶¶ 11–12, 37 P.3d 1188. Finally, “[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.” In re B.R., 2007
UT 82, ¶ 12.
¶4 Although Mother claims that she is also appealing the
disposition order, she did not identify that order in her notice of
appeal and her petition on appeal contains no issue or argument
directed to that order. Furthermore, the transcript of the disposition
hearing reflects that Mother did not personally appear and her
counsel stated that Mother did not oppose the juvenile court’s
decision to grant permanent custody to the children’s natural
father. Accordingly, we do not consider any issues related to the
disposition order.
¶5 Mother contends that the juvenile court erred by basing its
neglect adjudication solely upon two positive drug tests and by
inappropriately applying In re. S.Y., 2003 UT App 66, 66 P.3d 601,
to supplant the State’s requirement to present evidence of neglect.
Utah Code section 78A‐6‐105(27) defines neglect to include lack of
proper parental care by reason of the parent’s faults or habits. See
Utah Code Ann. § 78A‐6‐105(27)(a)(ii) (LexisNexis 2012). Mother
claims that the juvenile court based its neglect findings solely upon
methamphetamine use and rendered the statutory definition of
neglect meaningless by failing to consider evidence of her
otherwise adequate parental care. We consider Mother’s claim as
a challenge to the sufficiency of the evidence to support the
findings of fact. The juvenile court’s findings, both oral and
written, demonstrate a progression in reasoning that was not based
solely upon Mother’s positive drug tests and was instead based
upon the totality of the circumstances, including the positive drug
tests, Mother’s past history, and her current behavior. The
transcript reflects that the juvenile court correctly described the
holding in In re S.Y. as affirming the finding of a juvenile court that
20130374‐CA 3 2013 UT App 169In re. D.T. and H.T.
methamphetamine use was inconsistent with responsible
parenting. See id. ¶ 20.The juvenile court in this case made findings
of fact that included its agreement “that the use of
methamphetamine by a parent is totally and completely
inconsistent with responsible parenting.” However, the juvenile
court’s reasoning did not end there and the court also found that
Mother’s admitted relapse, her frequent absences, inconsistent
housing, lack of stability, and other behaviors were a part of the
totality of the circumstances demonstrating neglect. Mother does
not demonstrate clear error in those findings. Because there is a
basis for the neglect findings in the record, we do not disturb the
findings of fact on appeal.
¶6 Mother also claims that the removal and the subsequent
neglect adjudication was based upon daughter D.T.’s anxiety rather
than on a demonstration of actual parental neglect. The juvenile
court found that where there was conflict between the testimony of
Mother and that of D.T., D.T. was more credible, and also found
that D.T. did not have a motive to fabricate.
[T]he juvenile court in particular is given a wide
latitude of discretion as to the judgments arrived at
based upon not only the court’s opportunity to judge
credibility firsthand, but also based on the juvenile
court judges’ special training, experience and interest
in this field, and . . . devoted. . . attention to such
matters. . . .
In re E.R., 2001 UT App 66, ¶ 11(citations and internal quotation
marks omitted). Accordingly, we defer to the juvenile court’s
credibility determination.
¶7 Mother claims that inaccuracies in the warrant application
and affidavit resulted in the issuance of a warrant for removal that
was not supported by probable cause. She contends that the
juvenile court erred by ruling that any challenge must have been
made at the shelter hearing. However, the record reflects that the
20130374‐CA 4 2013 UT App 169In re. D.T. and H.T.
juvenile court allowed Mother to present evidence of the alleged
errors, considered the arguments, and ultimately found that
probable cause was demonstrated by a preponderance of the
evidence based upon Mother’s prior history of drug use, the
current suspicions of drug use, and D.T.’s reports regarding
housing, food, and the other persons staying with the family.
Mother does not demonstrate that the juvenile court’s findings
were clearly erroneous. The issue as stated in her petition is
whether the juvenile court “mistakenly ruled that it could not
revisit the removal, thus failing to provide the Mother with a fair
process.” However, the juvenile court did consider Mother’s
arguments and rejected them on the merits. Mother has not
demonstrated error in the juvenile court’s ruling.
¶8 Accordingly, we affirm.
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