In re G.J.C.

2016 UT App 147THE UTAH COURT OF APPEALS
IN THE INTEREST OF G.J.C.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
D.D.B.,
Appellant,
v.
J.L.C.,
Appellee.
Opinion
No. 20150432-CA
Filed July 14, 2016
First District Juvenile Court, Brigham Department
The Honorable Angela Fonnesbeck
No. 1083532
Paul W. Mortensen, Attorney for Appellant
J.L.C., Appellee Pro Se
Martha Pierce, Guardian ad Litem
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.
TOOMEY, Judge:
¶1 The primary issue in this appeal is whether the juvenile
court improperly denied D.D.B.’s (Mother) petition to terminate
J.L.C.’s (Father) parental rights to their son, G.J.C. (Child).
Because we conclude the court’s decision regarding Child’s best
interest was against the clear weight of the evidence, we reverse
its order and remand for the juvenile court to enter an order
terminating Father’s parental rights.
In re G.J.C.
BACKGROUND
¶2 Child was born in March 2008 while the parties were
married. But they separated in June 2009, and Mother filed for
divorce one month later. Stipulated orders from the divorce
court granted Mother sole physical custody of Child and granted
Father the minimum statutory parent-time. Since the parties’
separation, Child and Mother have continuously lived with
Mother’s parents.
¶3 In November 2009, Mother obtained a permanent
protective order against Father based on threats he made against
Mother and her parents. This protective order allowed Father to
maintain his parent-time schedule with Child but required him
to arrange for third parties to assist with exchanging Child. The
order also limited Father’s communications with Mother to only
those regarding Child.
¶4 Upset with the parent-time arrangements, between
November 2009 and October 2010, Father repeatedly violated the
provisions of the court’s orders by threatening Mother and
refusing to return Child to her for days or weeks. In particular,
in July 2010, Father refused to return Child to Mother following
a visit, and Mother’s attorney reminded Father of the court-
ordered parent-time schedule. 1 Father responded to Mother’s
attorney via text message, “This approach may cost your family
and hers more than your willing to wager its not a smart move
to try and corner a resourceful man.” Mother and her attorney
reported Father’s threats to law enforcement officials.
¶5 On August 10, 2010, Father again refused to return Child
to Mother, but nevertheless he appeared at a hearing regarding
the parties’ divorce on August 18. At the hearing, the court
commissioner declared that Father’s messages to Mother’s
1. Father was unrepresented by counsel at the time.
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attorney could only be construed as a threat against the attorney
and his family and ordered Father to “immediately cease all
threatening communications.” The court also certified to the
district court issues of contempt of court against Father for,
among other things, his refusal to pay child support. Finally, the
commissioner ordered Father to inform the court of Child’s
whereabouts. Father stated that Child was with Father’s mother.
The court then ordered Father to wait at the court while law
enforcement officers accompanied Mother to Father’s mother’s
home to retrieve Child. Father was later convicted of criminal
custodial interference for his actions related to this incident.
¶6 In September 2010, Father again refused to return Child to
Mother, demanding to speak personally with Mother. Although
Mother pleaded for Child’s return, by October 2, Father still had
not returned Child to Mother. Instead, he left her a menacing
voicemail in which she could hear him telling Child, who was
crying in the background, “Tell your mommy to come get you.”
Mother then applied for a writ of assistance to receive law
enforcement’s help to get Child. But the next day, October 6,
before the writ of assistance had been delivered to law
enforcement, Father called Mother’s parents to tell them he
would return Child at an arranged location.
¶7 But instead of returning Child, Father left him with
Father’s sister and drove alone to the agreed-upon location.
Mother’s parents left Mother at a nearby store, and, when they
arrived at the location, Father jumped in their car and demanded
they take him to Mother. According to Mother’s parents, Father
threatened them with a handgun and threatened to shoot them if
they did not comply. They refused. At a stop sign, Mother’s
mother jumped out of the car. Father also exited the car and
threatened to shoot her if she did not return to the car. She ran
away. Father got back into the car and had Mother’s father
return them to the prior location, where he fled the scene. Father
was later apprehended in Wendover, Nevada, and charged with
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two counts of kidnapping. Law enforcement officers found
Child with Father’s sister, and he was returned to Mother.
¶8 In addition to his previous protective order violations,
by June 2011, while he was out of jail on bail, Father was
arrested and charged with several new criminal offenses,
including criminal custodial interference, driving with a
measurable controlled substance, and reckless driving. Father
also failed to follow through with Adult Probation and Parole
(AP&P) reporting requirements and tested positive for
methamphetamines.
¶9 In December 2011, Father pleaded guilty to reduced
charges of attempted kidnapping. After pleading guilty, Father
failed to report to AP&P for his presentence interview and failed
to appear for his sentencing. Law enforcement officers later
arrested him and held him in jail until March 2012, at which time
Father was committed to the Utah State Prison for two
concurrent zero-to-five-year sentences for the attempted
kidnapping convictions.
¶10 In May 2014, Mother filed a petition to terminate Father’s
parental rights to Child on the grounds that Father was unfit and
that termination would be in Child’s best interest. 2 At the
termination trial in January 2015, the juvenile court heard
testimony from Mother, Father, Mother’s parents, Father’s
mother, Mother’s mental health counselor, Mother’s prior
attorney, and a probation officer. In particular, Mother testified
that early in their marriage Father became violent and had
outbursts of anger, and that she divorced him because of his
drug abuse. Although she did not contact the Division of Child
and Family Services to perform a welfare check, she testified that
2. This was Mother’s second petition to terminate Father’s
parental rights. She filed a similar petition in April 2013, but that
petition was voluntarily dismissed.
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she often had concerns for Child’s welfare when he was with
Father because she believed Father was neglectful when he was
using drugs. Importantly, she expressed that she was especially
worried about Child’s safety once Father is released from prison,
and stated, “I don’t think that that is very safe for my child.” But
she also testified that she felt that all Father’s anger was directed
at her. Mother further testified that although Father sent Child
cards from prison, she has kept them from Child because she
believed he is better off without Father.
¶11 Father, representing himself, cross-examined each witness
and testified on his own behalf. He conceded that until the fall of
2010, he had paid only approximately $1,000 of the nearly
$20,000 he owed in child support. Father also testified that he
had been expelled from the prison drug treatment programs
three times and had no intention of going back because he did
not go to prison for drug issues and didn’t feel that the treatment
was “beneficial.” He further conceded that he had an extensive
criminal history and since being incarcerated had been found in
violation of a number of prison rules. With regard to his
violations of the parent-time order, Father testified that he
believed he was being “railroaded” by the court and that he had
not violated the terms of his parent-time because he was allowed
to keep Child for longer visits for statutorily allowed summer
vacation. With regard to the kidnapping and other threats, when
asked questions, Father either invoked his right not to
incriminate himself further 3 or minimized his conduct, reasoning
that his threats were “simply words,” “there’s no physical
abuse,” and “[he’s] never put hands on any of them.”
¶12 Mother’s parents testified about their relationship with
Child and about the October 2010 kidnapping. Specifically,
3. It is not clear whether Father was entitled to invoke a Fifth
Amendment right, but it is not disputed on appeal and we do
not address it.
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Mother’s father testified he had often facilitated the exchange of
Child between Mother and Father, but had to stop because it
was too hard to watch Child “scream and cry” when he had to
visit Father. He also testified that he paid for Mother and Child
to have private security to protect them from Father. Finally,
Mother’s father testified he believed that since the parties’
separation he has acted as Child’s father because Child lives
with him and that he took care of Child’s emotional and
financial needs. Mother’s parents each testified that they had the
financial ability to continue to help care for Mother and Child,
that Child is a happy and well-adjusted child, and that they
believed permanency would be best for Child. Mother’s mother
also testified about her experience during the attempted
kidnapping. She recalled that Father was upset, took their
cellphones, and wanted them to take him to see Mother, but they
refused because it was in violation of a protective order. She
further testified that, when she jumped out of the car, Father
pointed a gun inches from her face and stated, “‘Get back in the
car or, I swear to God, I’ll blow your . . . brains all over the
sidewalk.’”
¶13 Mother’s mental health counselor testified that, based on
Father’s criminal behavior and Mother’s descriptions of his
conduct, Father likely met the criteria for antisocial personality
disorder, which could negatively affect Child. Father’s
supervising probation officer at AP&P testified that after
supervising Father between August 2011 and March 2012 he
believed Father lacked accountability and did not appreciate the
severity of his crimes.
¶14 Finally, Father’s mother testified about her relationship
with Child and her son. She testified that, despite many attempts
to contact Mother after the kidnapping, Mother refused to
communicate with her or let her visit Child. She explained she
thought there was “no logical explanation” for not letting Child
visit with her, because she was unaware of and had nothing to
do with her son’s criminal activity. Father’s mother also testified
20150432-CA 6 2016 UT App 147In re G.J.C.
that Child idolized Father and would “light up” when Father
was around. She testified she tried to petition for grandparent
visitation rights, but the attorney she hired did not help her very
well. Mostly, she recalled the activities she used to do with Child
and testified about how she loved Child and wanted to spend
time with him.
¶15 Although the juvenile court found five grounds for
termination, it ultimately determined that termination of
Father’s parental rights was not in Child’s best interest. Mother
appeals.
ANALYSIS
¶16 On appeal, Mother raises several issues, challenging the
juvenile court’s determination that not terminating Father’s
parental rights is in Child’s best interest. In particular, she
argues that the court’s decision was clearly erroneous and
against the clear weight of the evidence. Child’s guardian ad
litem similarly argues that the juvenile court’s oral and written
findings are correct, but that “as they stand, [the findings] can
support only a best-interest determination” that termination is
appropriate. According to the guardian ad litem, the juvenile
court “erred in its choice of findings to rely on” by relying solely
on “inappropriate factors” in its best interest analysis, including
“Mother’s single status, Mother having once relied on state
assistance, [Child’s] lack of detriment or damage, grandparent
visitation, and actions taken earlier by the divorce court.”
Because we agree and determine that these issues are
dispositive, we do not address Mother’s other arguments
further.
¶17 “Whether a parent’s rights should be terminated presents
a mixed question of law and fact.” In re B.R., 2007 UT 82, ¶ 12,
171 P.3d 435. “Because of the factually intense nature of such an
inquiry, the juvenile court’s decision should be afforded a high
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degree of deference.” Id. “Thus, 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.’” Id. (alteration in
original) (quoting In re Z.D., 2006 UT 54, ¶¶ 33, 40, 147 P.3d 401).
Further, “[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.” Id.¶18 “Utah law requires a court to make two distinct findings
before terminating a parent–child relationship.” In re R.A.J., 1999
UT App 329, ¶ 7, 991 P.2d 1118. “First, the court must find that
the parent is below some minimum threshold of fitness, such as
a finding that a parent is unfit or incompetent based on any of
the grounds for termination under [Utah Code section 78A-6-
507].” Id. (citation and internal quotation marks omitted); accord
Utah Code Ann. § 78A-6-507 (LexisNexis 2012) (providing the
juvenile court the authority to “terminate all parental rights with
respect to a parent if the court finds any one” of the statute’s
enumerated grounds, including a finding that the parent “has
abandoned the child,” “has neglected or abused the child,” or
has only made “token efforts . . . to support or communicate
with the child”). “Second, the court must find that the best
interests and welfare of the child are served by terminating the
parents’ parental rights.” In re R.A.J., 1999 UT App 329, ¶ 7; see
also Utah Code Ann. § 78A-6-503(12) (LexisNexis 2012)
(providing that if the court finds a parent, “by reason of his
conduct or condition, to be unfit or incompetent based upon any
of the grounds for termination . . . , the court shall then consider
the welfare and best interest of the child of paramount
importance in determining whether termination of parental
rights shall be ordered”); id. § 78A-6-506(3) (same). “A petitioner
has the burden of establishing both of these elements by clear
and convincing evidence.” In re R.A.J., 1999 UT App 329, ¶ 7;
accord Utah Code Ann. § 78A-6-506(3).
20150432-CA 8 2016 UT App 147In re G.J.C.
¶19 Here, the juvenile court properly bifurcated the issues of
parental unfitness and best interest of the child. Expressly
applying section 78A-6-507, the court carefully and thoroughly
explained its reasoning for determining that five separate
grounds existed for finding Father unfit. In its oral ruling, the
court expressed a number of findings in favor of Father.
Specifically, the court explained that it believed Father “did have
a fairly close father–son relationship” before he kidnapped
Mother’s parents, which “contributed in some way to the
emotional health and support of [Child].” The court also
acknowledged that Father paid for a parent-time supervisor and
sent some cards to Child from prison. It also weighed heavily
that there was no evidence presented that Child had been
physically abused, witnessed any violence, or suffered from any
psychological effects, concluding “[Father] has never physically
injured the child.”
¶20 But the court weighed the bulk of its determinations
against Father. Specifically, it found that Father “made less than
token efforts in support or communication in that his lack of
involvement in [Child’s] life over the past few years [is] a result
of his actions.” At the termination proceedings the court stated,
“[O]bviously, [Father’s] financial support was extraordinarily
lacking.” It also concluded, “[Father] has abandoned [Child] in
that he has failed to communicate with [him] by telephone or
otherwise in over 6 months.”
¶21 The court further found that Father “is unfit in that the
crime that he committed [against Mother’s parents] is of such a
nature to prove his unfitness in caring for this child’s emotional
health and development.” It also expressed concern about
“[Father’s] custodial interference charges and his recent criminal
history,” stating that his “behavior is absolutely deplorable.” The
court did not believe Father was remorseful for his actions
against Mother’s parents, explaining, “I’m not convinced those
are genuine feelings on his part.” The court also determined that
Father “has neglected the child” because “the length [of his
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prison sentences] would deprive the child of a normal home for
one year and that there is a history of violent behavior.”
“[E]qually deplorable,” the court specified, is the “kind of
threat[s]” made via text message to Mother and her attorney; the
court opined, “No attorney doing their job should ever have to
receive a text message like that threatening himself or his
family” and “even in a . . . nasty divorce situation, that might be
taking things one step too far.”
¶22 Further, although the court discounted the credibility of
Mother’s counselor’s testimony regarding Father’s psychological
evaluation, it gave Father’s probation officer’s testimony
“considerable weight.” Particularly, the court expressed concern
about Father’s drug dependency and mental health issues and
his failure to rectify them. It stated, “I’m . . . troubled that there
are no verifiable attempts by [Father] to improve his current
situation.” It further stated, “[T]here is a severe lack of follow-
through there to get himself in a situation where his mental
health is such as to be stable and healthy and happy and
productive.” Thus, the court concluded that Father “has only
made token efforts to avoid being an unfit parent.”
¶23 Despite the lengthy and careful examination of the
evidence supporting its finding that Father is an unfit parent, the
court made few findings with regard to Child’s best interest. The
court concluded that Mother failed to meet her burden that
termination was in Child’s best interest because (1) there was a
lack of another person to step in to the role of Father; (2) Child
“could benefit from a positive, loving, nurturing relationship
with [Father and Father’s] extended family”; (3) “[t]he lack of
evidence that a relationship with [Father’s] extended family is or
would be a detriment to the child”; (4) there was “no evidence of
psychological or emotional damage from child’s previous
relationship with [Father]”; and (5) “[t]he District Court in the
divorce action did not find it necessary to cutoff contact between
[Child] and [Father] after becoming aware of the October 2010
incidents.” In making these findings the court explained only
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that it gave “little consideration” to the fact that Child’s
grandfather (Mother’s father) has stepped in as a role model and
caregiver, concluding that “it is a matter of policy in the state
that a child have two parents.” It then explained,
I do, however, believe that this child could benefit
from a positive, loving, nurturing relationship with
his extended family. I think he has a second family
in his life, and having that second family in his life
would be in his best interest. And if I were to
terminate [Father’s] parental rights today, I would
be going against what I think is best for this child
in that regard.
We have an extended family here who has
not proven to be any direct detriment to this child.
The court further explained it was not sure that Father would be
able to have a positive, loving, nurturing relationship with
Child, but believed that, with Father’s family’s support, that
kind of relationship could be possible. The court restated that it
“was so surprised to find that there was no evidence presented
that this child was actually suffering any psychological damage
or effect from his previous relationship with [Father].” Finally,
the court found it “compelling that the divorce court, even when
becoming aware of these inciden[ts] in October of 2010, did not
feel that it was necessary to prohibit [Father’s] contact with this
child,” then asked rhetorically, “[W]hy would I”? Thus, it
concluded there was not “any compelling reason to terminate
[Father’s] rights if [Child] is not suffering that detriment.”
¶24 Determining a child’s best interest in termination of
parental rights proceedings is a subjective assessment based on
the totality of the circumstances. “To determine whether
termination of parental rights is in the best interest of the child,
the juvenile court must consider ‘the physical, mental, or
emotional condition and needs of the child.’” In re T.E., 2011 UT
20150432-CA 11 2016 UT App 147In re G.J.C.
51, ¶ 18, 266 P.3d 739 (quoting Utah Code Ann. § 78A-6-509(1)(a)
(LexisNexis Supp. 2011)). When the child is not in the parent’s
custody, Utah Code section 78A-6-509(b) also requires the court
to consider the effort the parent has “made to adjust their
circumstances, conduct, or conditions to make [restoring the
parent–child relationship] in the child’s best interest.” But “the
court may also consider any other evidence that is probative of
what is in the child’s best interest.” In re T.E., 2011 UT 51, ¶ 18;
see also Utah Code Ann. § 78A-6-509 (2012). Accordingly, it is
proper, in the context of a best-interest determination, for the
court to consider the child’s bond with caregivers, their need for
permanency and stability, and the potential risk of harm if
returned to the parents’ care. See In re A.M., 2009 UT App 118,
¶¶ 30–33, 208 P.3d 1058 (affirming the grant of a mother’s
petition to terminate the father’s parental rights and relying on
evidence that the children’s medical and emotional needs were
met by the mother and that the children were “doing well” in
their new schools).
¶25 Furthermore, “while evidence of unfitness may be
probative of both factors of the termination analysis, the best
interest analysis includes consideration of the impact of
termination on the child, rather than simply on evaluating
whether the statutory grounds for termination have been met.”
In re M.J., 2013 UT App 122, ¶ 26, 302 P.3d 485 (citation and
internal quotation marks omitted). In other words, evidence that
proves one or more statutory grounds for termination of
parental rights may also constitute evidence demonstrating that
termination is in the child’s best interest, but the court’s focus
should be on the impact of termination on the child. In re J.D.,
2011 UT App 184, ¶ 34, 257 P.3d 1062 (Orme, J., concurring)
(“Procedurally, [b]ifurcating the [parental termination] analysis
does not require courts to separately hear and consider evidence
pertaining to unfitness and best interest.” (alterations in original)
(citation and internal quotation marks omitted)). “And legally,
[i]f the parent–child relationship has been destroyed by the
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parent’s conduct, or lack of conduct, it is usually in the best
interest of the child to terminate that relationship.” Id. (alteration
in original) (citation and internal quotation marks omitted). It is
an unusual case where grounds for termination are found but
termination is held not to be in the child’s best interest. Id. ¶ 35
(explaining that these types of cases “are rare”). “Indeed,
although the requirement of bifurcated analysis is clearly
established by statute and jurisprudence as a practical matter,
where grounds for termination are established, the conclusion
that termination will be in [a child’s] best interest follows almost
automatically.” Id. ¶ 34 (citations omitted). Accordingly, “the
two requirements, while theoretically distinct, usually are
satisfied hand-in-glove.” Id. ¶ 36. Thus, although the court must
consider the enumerated factors in Utah Code sections 78A-6-
507 and 78A-6-509 in finding the grounds for termination when
the child is not in the custody of the parent, the court should also
consider these factors in deciding whether termination of the
parent’s rights is in the child’s best interest.
¶26 Here, the juvenile court did not consider its findings
under section 78A-6-507 in making its best-interest
determination; there are no references to those findings in the
court’s oral or written rulings. Rather, the court’s determination
focused on ideals and speculative possibilities in the future. But
in view of its factual determinations, the court’s decision not to
terminate is against the clear weight of the evidence and leaves
us with a firm conviction that a mistake has been made. See In re
B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.
¶27 The court improperly discounted Father’s criminal
conduct, neglectfulness, and nominal efforts to adjust simply
because there was a possibility he could improve in the future
with help from his family. But
the weight which a juvenile court must give any
present ability evidence is necessarily dependent
on the amount of time during which the parent
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displayed 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
rectifying 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 forward—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 problems
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.
See in re M.L., 965 P.2d 551, 561–62 (Utah Ct. App. 1998)
(footnotes omitted). Here, the court had just determined that
Father was unlikely to improve in the future and had “only
made token efforts” to avoid being unfit. Specifically, in finding
that Father was unfit, the court expressed concern that Father
had a complete lack of accountability, he felt no remorse for his
conduct toward Mother’s parents, he refused to seek treatment
for his mental health and drug issues, and his financial support
had been nominal. The court went so far as to say, “I’m just not
convinced that [Father] ever will provide support for this child. I
do think he sees it as a burden and an obligation that he’s not
obligated to follow through with unless he’s getting what he
wants.” Furthermore, although the court determined that
Father’s mother “was not involved or an accomplice to [Father’s]
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attempts to extend his parent-time,” the record is clear that even
when he was violating the parent-time order and failing to
properly support Child, Father received assistance from his
family, including his mother and sister. Yet, in explaining its
hope for Father to have a positive relationship with Child in the
future, the court indicated a positive relationship could only
exist “with his extended family on [his] side.”
¶28 The court concluded the evidence did not demonstrate
that Father’s family would be any detriment to Child. It
determined that Child needed a person to “legally” step into a
role as parent and that he “could benefit from a positive, loving,
nurturing relationship with his extended family.” Although
ideally children are raised by two nurturing parents and have
the benefit of a positive relationship with an extended family,
such is not the case in many children’s lives today. See, e.g., In re
B.O., 2011 UT App 215, ¶ 14, 262 P.3d 46 (affirming termination
of parental rights where the child was placed in a single-parent
home); In re C.A., 2006 UT App 159U, para. 3 (per curiam)
(affirming termination of parental rights where adoptive home
had not yet been found). Indeed, the children who are the
subject of these types of termination proceedings often have
fractured and disjointed lives, and frequently rely on a single
parent or adults other than their parents to provide for their
most basic needs. Although we may consider the fact that
Mother is single and that Child may benefit from having two
parents and a relationship with extended family, those factors
alone are not determinative and do not outweigh the realities of
his circumstances—Child is currently in a stable and permanent
home with a parent who is capable of supporting him and Father
has done almost nothing to provide for him. So, though the court
determined that both Mother and Father were often self-serving,
the court also determined that it was Father’s conduct that
destroyed the parent–child relationship in this case. Mother
complied with the court’s parent-time orders and gave Father
every opportunity to have a relationship with Child.
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¶29 It is common to affirm termination of parental rights
where children have bonded with their caregivers or are
thriving. See, e.g., In re J.D., 2011 UT App 184, ¶ 21 (considering
that, although they were not yet in an adoptive home,
termination was appropriate and the children at issue were
adoptable because they were “mentally, physically, and
emotionally well” and “capable of bonding in a stable home
despite their connection with” their unfit mother); In re T.H.,
2009 UT App 340U, para. 5 (per curiam) (considering that child
was thriving in foster home); In re C.B., 2009 UT App 290U, para.
7 (per curiam) (explaining that children had stability and had
bonded with foster family). Based on the court’s undisputed
findings of fact, Child has lived with Mother and her parents for
seven of the eight years he has been alive, and he was happy and
well-adjusted. The court also found that Mother and her parents
“have provided for the child financially during that time” and
“intend to continue to support” him. Although no evidence was
presented that Child has been psychologically or physically
harmed by Father’s unfitness, the evidence does show that
between June 2009 and October 2010, Child’s life was
significantly disrupted. As the court found, during that time,
Child “had involvement with law enforcement as a result of the
troublesome relationship between [Mother] and [Father].” And,
though Child was not present when Father kidnapped his
grandparents at gunpoint in an attempt to reach Mother, police
had trouble locating him; and Child, Mother, and Mother’s
parents had to stay the night in a hotel out of fear of Father.
¶30 Father last saw Child over four years ago (more than half
of Child’s life) in March 2012, but aside from a few cards and
letters he has not communicated with Child, and has repeatedly
failed to adjust his condition and circumstances, such as by
completing drug treatment or mental health counseling, to make
himself fit to parent. Even when Father’s parent-time rights were
limited to supervised visitation once per week, between October
2010 and March 2012, Child’s and Father’s relationship was not
20150432-CA 16 2016 UT App 147In re G.J.C.
consistent. Father did not support Child, and his criminal
conduct continued: in May 2011, Father pleaded guilty to
violating a protective order and was sentenced to thirty days in
jail, and in November 2011, he was found guilty of two counts of
criminal interference with custodial rights and sentenced to
serve 180 days in jail.
¶31 In determining Child’s best interest, the speculative
possibility of Father experiencing a dramatic transformation and
providing Child with a “positive, loving, nurturing relationship
with his extended family” must be weighed against Father’s
real-world actions as found by the court—his escalating and
repeated criminal conduct, his lack of remorse and
accountability for his crimes, his lack of support for Child, his
unaddressed drug addiction and mental health issues, and his
failure to make more than token efforts to adjust. Based on the
juvenile court’s own findings of fact, we must conclude that this
balance tips decisively in favor of termination of Father’s
parental rights. 4
4. Another concern that touches—not insubstantially—on
Child’s best interest is Father’s pattern of violence and threats
toward Mother, her parents, and her attorney, a pattern that is
coupled with Father’s troubling sense of victimization and a
failure to take responsibility. While, as the court noted, Father
might improve, it seems at least as likely that the pattern he has
already established would continue or even escalate. It is
difficult to see how Father’s prior obsessive focus on Mother and
those connected with her in defiance of court admonishments,
orders, and criminal charges does not substantially implicate
Child’s best interest in a very negative way. A decision that this
father, with the potential for any physical or parental proximity
to the child and those closes to him, seems to hold much more
threat than promise.
20150432-CA 17 2016 UT App 147In re G.J.C.
¶32 We recognize that the decision to terminate parental
rights is among the most difficult of decisions, and we will not
substitute our judgment for that of the juvenile court or reweigh
the evidence. But we agree with Child’s guardian ad litem on
appeal that “[t]he juvenile court’s oral and written findings as
they stand can support only a best-interest determination” that
termination is appropriate. We also recognize that termination
leaves Father’s family without remedy and less of a chance to be
involved in Child’s life. But Mother and her parents each
testified that they want what is best for Child, and the evidence
supports a termination of Father’s parental rights.
CONCLUSION
¶33 We will not engage in a reweighing of the evidence. But
even viewing the evidence and the court’s findings with
deference to the court’s more advantageous position, we
conclude that its conclusion that termination is not in Child’s
best interest is against the clear weight of the evidence, and
leaves this court with a firm conviction that a mistake has been
made. We therefore reverse the juvenile court’s decision not to
terminate Father’s parental rights and remand with the directive
to enter an order consistent with this opinion.
20150432-CA 18 2016 UT App 147