In re B.K. , 2015 UT App 141 ( 2015 )

2015 UT App 141THE UTAH COURT OF APPEALS
IN THE INTEREST OF B.K. AND A.K.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
J.K.,
Appellant,
v.
A.P.,
Appellee.
Per Curiam Decision
No. 20150306-CA
Filed June 4, 2015
Third District Juvenile Court, Salt Lake Department
The Honorable Kimberly K. Hornak
No. 1097252
Miesha Redmond and Kevin Mark Kemp, Attorneys
for Appellant
Russell W. Hartvigsen and Levi H. Cazier, Attorney
for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR.,
and JOHN A. PEARCE.
PER CURIAM:
¶1 J.K. (Father) appeals the juvenile court’s order terminating
his parental rights in B.K. and A.K. We affirm.
¶2 Father asserts that the evidence was insufficient to
support grounds for terminating his parental rights. A juvenile
court’s findings of fact will not be overturned unless they are
clearly erroneous. In re E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680.
A finding of fact is clearly erroneous only when, in light of the
evidence supporting the finding, it is against the clear weight of
In re B.K.
the evidence. Id. In reviewing a juvenile court’s order, this court
“will not disturb the juvenile court’s findings and conclusions
unless the evidence clearly preponderates against the findings as
made or the court has abused its discretion.” In re R.A.J., 1999 UT
App 329, ¶ 6, 991 P.2d 1118. “When a foundation for the
[juvenile] 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, 171 P.3d 435.
¶3 Pursuant to Utah Code section 78A-6-507, the finding of
any single ground listed is sufficient to warrant termination of
parental rights. Utah Code Ann. § 78A-6-507(1) (LexisNexis
2012); In re F.C. III, 2003 UT App 397, ¶ 6, 81 P.3d 790 (noting
that any single statutory ground is sufficient to terminate
parental rights). As a result, if there is sufficient evidence to
support any one of the grounds for termination found by the
juvenile court, the termination of Father’s rights is appropriate. 1
¶4 Under section 78A-6-507(1)(a), a juvenile court may
terminate a parent’s rights if the court finds that the parent
abandoned the child. “It is prima facie evidence of abandonment
that the parent . . . [has] failed to communicate with the child by
mail, telephone, or otherwise for six months, [or has] failed to
have shown the normal interest of a natural parent, without just
cause.” Utah Code Ann. § 78A-6-508(1)(b), (c) (LexisNexis 2012).
Here, the evidence established that Father failed to communicate
with the children for intervals of longer than six months at
multiple points over the course of the children’s lives. Even if the
1. Termination is appropriate if any single ground is supported
and the juvenile court also finds that termination is in the child’s
best interests. Utah Code Ann. § 78A-6-503(12) (LexisNexis
2012). In this case, the juvenile court found that termination was
in the children’s best interest. Father has not challenged the
juvenile court’s finding regarding best interests, instead limiting
his appeal to a challenge of the grounds for termination.
20150306-CA 2 2015 UT App 141In re B.K.
paternity action filed by Father in 2010 is considered to restart
the clock because he showed some interest at that time, Father
then failed to prosecute the action and again failed to
communicate with his children for more than two years.
Furthermore, the evidence showed that over the course of many
years, Father failed to provide anything more than token
support for the children. Accordingly, the evidence was
sufficient to establish that Father abandoned his children.
¶5 Father argues that his incarceration and the limitations of
a protective order prevented him from contacting his children.
Although incarceration is not itself a reason to terminate
parental rights, it “is also not a complete excuse for the parent’s
failure to communicate with his . . . children.” In re M.C., 940
P.2d 1229, 1234 (Utah Ct. App. 1997). Father was able to send
letters or make phone calls while in prison, but he did not
attempt to write to or call the children. Testimony at trial
showed that Father was not prohibited from contacting the
children under the protective order; the children’s mother was
the subject of the order. Moreover, the court considering the
paternity action ordered visitation with the children and ordered
the mother to cooperate with that contact. Father had exercised
visitation with the children before entering prison and while the
protective order was in place. Accordingly, it appears that Father
understood that contact with the children was permitted.
Finally, the juvenile court found Father’s testimony regarding
the protective order and his failure to contact the children not
credible. In sum, although Father’s incarceration may have made
contacting the children more difficult, Father’s failure to
maintain any contact with his children was his own
responsibility.
¶6 Because the evidence was sufficient to support the
juvenile court’s finding that Father abandoned the children, this
court need not address the remaining grounds for termination.
The juvenile court’s order terminating Father’s parental rights is
affirmed.
20150306-CA 3 2015 UT App 141