In re D.L. (M.L. v. State)

2014 UT App 297_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF D.L., J.L., AND L.L.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
_______________
M.L.
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20140864-CA
Filed December 26, 2014
Third District Juvenile Court, Salt Lake Department
The Honorable Julie V. Lund
No. 1024039
Sheleigh A. Harding, Attorney for Appellant
Sean D. Reyes and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES GREGORY K. ORME, JAMES Z. DAVIS,
and MICHELE M. CHRISTIANSEN.
PER CURIAM:
¶1 M.L. (Father) appeals the termination of his parental rights.
We affirm.
¶2 “[I]n order to overturn the juvenile court’s decision, 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
In re D.L.
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. 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 Pursuant to Utah Code section 78A-6-507, the finding of a
single enumerated ground will support the termination of parental
rights. See Utah Code Ann. § 78A-6-507 (LexisNexis 2012).
Therefore, it is sufficient if the evidence supports any of the
grounds for termination found by the juvenile court. The court
found that Father was an unfit or incompetent parent. See id.
§ 78A-6-507(1)(c). The court further found that Father had
substantially neglected, had willfully refused, or had been unable
to remedy the circumstances that caused his children to be placed
in an out-of-home placement and that there is a substantial
likelihood that he will not be capable of exercising proper and
effective parental care in the near future. See id. § 78A-6-507(1)(d).
The juvenile court also found that it was strictly necessary to
terminate Father’s parental rights. See id. § 78A-6-507(1). Finally,
the court found that it was in the children’s best interest that
parental rights be terminated. See id. § 78A-6-506(3).
¶4 The evidence supports the juvenile court’s finding that
Father was unable to remedy the circumstances that caused the
children to be in an out-of-home placement and that there was a
substantial likelihood Father would not be capable of exercising
proper and effective parental care in the near future. The State
stipulated that Father completed the requirements of the service
plan. Father argues that because the service plan was designed to
accomplish reunification, his completion of the plan should result
in reunification with his children. However, although Father made
progress in improving his parenting skills during the twelve
20140864-CA 2 2014 UT App 297In re D.L.
sessions of Parent Child Intensive Therapy (PCIT), the therapist
testified that Father would require ten to twelve months of PCIT
twice a week to make significant changes in his parenting ability.
The therapist testified that the additional PCIT would increase the
probability of success but would not guarantee that at the
conclusion of that therapy, it would be safe to return the children
to Father’s full-time care. Although Father could continue to make
improvement, the therapist was not confident that he could make
improvements that would be sufficient to meet the children’s
needs. D.L. has an autism spectrum disorder, and all three children
have special needs that require high structure, predictable
schedules, highly nurturing care, and aggressive and assertive
parenting. In sum, the therapist opined that it would be in the
children’s best interest to remain with the foster family “in a
permanent arrangement and . . . also maintain a relationship with
their birth parents.” Similarly, the caseworker testified that
although Father had been in compliance with services, the
caseworker did not believe that Father could sustain an
appropriate living environment given the children’s special needs
and the birth parents’ deficits. The caseworker agreed that an ideal
situation would be for the children to be adopted by the foster
family but have contact with their birth parents.
¶5 Father characterizes the juvenile court’s findings as based
solely upon speculation about the future. However, the evidence
sufficiently supports the juvenile court’s finding that although
Father made improvements, he was not yet in a position to regain
custody of the children at the time of the termination trial and
would not be in a position to do so in the near future. At best,
Father would require an additional ten months of PCIT. The
juvenile court found that the parents received nineteen months of
services in 2009 to 2011 for the same concerns that led to the 2012
removal. Despite those services and another nineteen months of
services in 2012 to 2014, Father was not in a position to safely take
custody of the children. The court found,
20140864-CA 3 2014 UT App 297In re D.L.
While the court recognizes that there is a possibility
that with another 10 [to] 12 months of services
[Father] might improve [his] parenting skills, the
court finds it is unlikely that [he] would be in a
position at that time to meet the special needs of [his]
children. [The two younger children] have been
under the jurisdiction of the juvenile court for over
half of their short lives and the services provided to
their parents over those 36 plus months have not
resulted in permanent change in their parenting
abilities which would ensure their home
environment to be safe and appropriate.
The evidence was sufficient to support the ground for termination
of parental rights under section 78A-6-507(1)(d).
¶6 The best interest finding is also supported by the evidence.
The foster family provided the structure, care, and nurturing
necessary to address the children’s special needs. Although the
caseworker stated at trial that the determination to pursue
termination and adoption rather than permanent custody and
guardianship in the foster parents took into account the differing
financial considerations, Father incorrectly asserts that this was the
sole basis for the determination. The evidence as a whole
demonstrated that the foster family provided the parenting that
would be required to address the special needs of these children,
who had resided in the foster home for over a year-and-a-half.
Similarly, the juvenile court’s conclusion that it was strictly
necessary to terminate parental rights is adequately supported
because it is in the children’s best interests to be adopted by the
foster family.
¶7 Father claims for the first time on appeal that the Division of
Child and Family Services failed to make reasonable efforts toward
reunification by not offering PCIT earlier in the case. This claim was
not preserved for appeal. Furthermore, as the juvenile court found,
the parents received in excess of thirty-six months of services in
20140864-CA 4 2014 UT App 297In re D.L.
multiple cases. The claim that the Division failed to make
reasonable efforts clearly lacks merit.
¶8 Because “a foundation for the court’s decision exists in the
evidence,” we affirm the juvenile court’s order terminating Father’s
parental rights. See In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.
20140864-CA 5 2014 UT App 297