In re T.O... (E.O. State) , 2013 UT App 36 ( 2013 )

2013 UT App 36_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF T.O., C.O. ,A.O., AND H.O.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
_____________
E.O.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20120964‐CA
Filed February 14, 2013
Third District Juvenile, Salt Lake Department
The Honorable Andrew A. Valdez
No. 1034953
Brent Salazar‐Hall, Attorney for Appellant
John E. Swallow and John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian Ad Litem
Before JUDGES DAVIS, MCHUGH, and VOROS.
PER CURIAM:
¶1 E.O. (Mother) appeals the termination of her parental rights.
Mother challenges the sufficiency of the evidence to support the
juvenile court’s decision on the grounds for termination and the
best interests of the children. Mother also challenges the juvenile
court’s finding that Mother’s testimony at the termination trial was
not credible. We affirm.
In re T.O., C.O., A.O., and H.O.
¶2 “[I]n order to overturn the juvenile court’s decision [to
terminate parental rights], the 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 evidence. See id. Therefore, “[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.
¶3 The juvenile court found that Mother was not a credible
witness. We afford the juvenile court’s decisions deference “based
upon not only the court’s opportunity to judge credibility first‐
hand, but also based on the juvenile court judges’ special training,
experience and interest in this field.” In re E.R., 2001 UT App 66,
¶ 11 (citations and internal quotation marks omitted); see also In re
Z.D., 2006 UT 54, ¶ 52, 147 P.3d 401 (Wilkins, J., concurring) (“It is
usually enough to say, in findings, that the trial judge does not find
the witness or the evidence presented to be believable, and to
append a few words indicating the most obvious reason.”). In
support of its credibility determination, the juvenile court found
that Mother “blamed everyone but herself for the problems in her
home,” specifically finding that Mother’s claim that she was not
aware of the sexual abuse of S.O. until April 2011 was not credible.
The juvenile court also noted other specific aspects of Mother’s
testimony that the court found were not credible. Furthermore, the
juvenile court assessed the testimony of S.O. to be more credible
than Mother’s testimony. We defer to the advantaged position of
the juvenile court to assess and weigh credibility and conclude that
the juvenile court’s credibility determination is adequately
supported.
20120964‐CA 2 2013 UT App 36In re T.O., C.O., A.O., and H.O.
¶4 In challenging the sufficiency of the evidence to support the
grounds for termination, Mother claims that the juvenile court did
not give appropriate weight to her recent efforts to improve her
ability to parent.
[T]he weight which a juvenile court must give any
present ability evidence is necessarily dependent on
the amount of time during which the parent dis‐
played an unwillingness or inability to improve his
or her conduct and on any destructive effect the
parent’s past conduct or the parent’s delay in rectify‐
ing the conduct has had on the parent’s ability to
resume a parent‐child relationship with the child.
Thus, although the court has a duty to look for‐
ward—i.e., to look at the parent’s present ability and
the likelihood that the parent will be able to resume
parenting within a reasonable time—the court must
consider such evidence in light of the parent’s past
conduct and its debilitating effect on the parent‐child
relationship. That is, if a parent has demonstrated
some improvement in parenting ability but not a
strong likelihood that the parent can provide a
proper home for the child in the very near future,
after a long period of separation, a history of prob‐
lems and failure to remedy, and deterioration of the
relationship between the child and parent, this court
should not overturn a court’s order terminating
parental rights.
In re B.R., 2007 UT 82, ¶ 13 (citation and internal quotation marks
omitted).
¶5 The record demonstrates that the juvenile court gave
appropriate weight to Mother’s present parenting ability, including
the evidence that Mother conceded she was not in a position to
regain custody at the time of the termination trial, although the
children had been in state custody for over two years and Mother
20120964‐CA 3 2013 UT App 36In re T.O., C.O., A.O., and H.O.
had been provided numerous services. The juvenile court found
that Mother was “very articulate in reciting good parenting
practices, however she has been unable to implement good
parenting practices for a decade.” She had recently completed an
educational program and become employed, but she did not have
adequate income to support herself and her children. She lived in
an apartment with two other persons, which she conceded was not
appropriate housing for the children. She estimated that she would
not be in a position to regain custody for up to an additional two
years.
¶6 In order to find grounds for termination of parental rights,
a juvenile court must conclude that one of the grounds enumerated
in Utah Code section 78A‐6‐507 exists. See Utah Code Ann. § 78A‐6‐
507 (LexisNexis 2012) (stating that the court may terminate parental
rights if the court finds any one of the enumerated grounds).
Mother contends that the juvenile court erred in light of evidence
that Mother claimed to lack knowledge of the sexual abuse of S.O.;
she divorced the father, who was the alleged abuser; she made
progress on the child and family plan; and she was in therapy,
obtained employment, and completed some schooling. We
conclude that the evidence was sufficient to support more than one
of the grounds for termination.
¶7 The evidence demonstrated that despite the diligent efforts
of the Division of Child and Family Services to provide services to
Mother, she “substantially neglected, willfully refused, or [had]
been unable or unwilling to remedy the circumstances that
cause[d] the children to be in an out‐of‐home placement,” had
“been unable or unwilling to remedy the circumstances that cause
the child to be in an out‐of‐home placement,” and “there is a
substantial likelihood that [she] will not be capable of exercising
proper and effective parental care in the near future.” Id.
§ 78A‐6‐507(1)(d). Mother testified that she believed that she would
not be in a position to regain custody for up to an additional two
years. Similarly, the evidence amply supports the juvenile court’s
finding that Mother had experienced a failure of parental
20120964‐CA 4 2013 UT App 36In re T.O., C.O., A.O., and H.O.
adjustment because she had been unable within a reasonable time
to substantially correct the conduct or conditions which led to her
children’s placement outside of the home. See id. § 78A‐6‐507(1)(e);
see also id. § 78A‐6‐509(1) (b) (requiring the juvenile court to
consider the efforts the parent had made to adjust his or her
circumstances, conduct, or conditions to make it in the children’s
best interest to return home after a reasonable length of time).
¶8 Mother’s challenge to the best interests determination is
without merit. Mother claims that the juvenile court erred “in light
of the evidence presented regarding the mother’s love for her
children, the children’s enjoyment with visitation, [her] continued
support of gifts to the children, and the evidence regarding [her]
progress towards an increased earning potential.” This argument
does not focus on the interests of the children in achieving stability.
The evidence demonstrated that the children’s needs, including
their special educational and therapeutic needs, were being met by
the grandparents, who wish to adopt them. Mother does not
challenge any factual finding regarding the appropriateness of the
grandparents’ home as an adoptive placement. Instead, Mother
argued that her parental rights should not be terminated and that
the children should remain in a permanent guardianship with the
grandparents until an unspecified future date when she will have
completed further education and have become employed with a
sufficient income. The juvenile court’s determination that it was in
the children’s best interest to allow them to be adopted into a home
where they have stability and structure and where their needs will
be met is amply supported.
¶9 Because “a foundation for the court’s decision exists in the
evidence,” we affirm the juvenile court’s decision terminating
parental rights.
20120964‐CA 5 2013 UT App 36