In re D.V.

2017 UT App 79THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF D.V. AND A.V.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
E.V.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Opinion
No. 20170196‐CA
Filed May 11, 2017
Third District Juvenile Court, Salt Lake Department
The Honorable Charles D. Behrens
No. 1094724
Jordan Putnam, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES STEPHEN L. ROTH, KATE A. TOOMEY, and DAVID N.
MORTENSEN.
PER CURIAM:
¶1 E.V. (Mother) appeals the termination of her parental
rights to D.V. and A.V. We affirm.
¶2 “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
degree of deference.” Id. “Thus, in order to overturn the juvenile
court’s decision ‘[t]he result must be against the clear weight of
In re D.V.
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.¶3 The juvenile court found that several grounds supported
termination of Mother’s parental rights. The juvenile court
concluded that Mother neglected or abused the children, see
Utah Code Ann. § 78A‐6‐507(1)(b) (LexisNexis 2012), and was an
unfit or incompetent parent, see id. § 78A‐6‐507(1)(c). The court
also found that Mother experienced a failure of parental
adjustment because the Division of Child and Family Services
(DCFS) made reasonable and appropriate efforts to return the
children to her and Mother had been “unable or unwilling,
within a reasonable time, to substantially correct the
circumstances, conduct, or conditions that led to placement of
[the children] outside [her] home.” See id. § 78A‐6‐507(1)(e). The
court further concluded that the children had been in an out‐of‐
home placement under the supervision of DCFS, see id. § 78A‐6‐
507(1)(d)(i); that Mother had “substantially neglected, willfully
refused, or has been unable or unwilling to remedy the
circumstances that caused the child to be in an out‐of‐home
placement,” see id. § 78A‐6‐507(1)(d)(ii); and that “there is a
substantial likelihood that [Mother] will not be capable of
exercising proper and effective parental care in the near future,”
see id. § 78A‐6‐507(1)(d)(iii). The juvenile court concluded that
the children had suffered or were substantially likely to suffer
serious detriment due to parental unfitness, see id. § 78A‐6‐503(7)
(LexisNexis Supp. 2016), and that it was strictly necessary to
terminate parental rights. After finding grounds for termination,
the court concluded it was in the children’s best interest that
Mother’s parental rights be terminated. See id. § 78A‐6‐503(12).
¶4 “Utah law requires a court to make two distinct findings
before terminating a parent‐child relationship.” In re R.A.J., 1999
20170196‐CA 2 2017 UT App 79In re D.V.
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” in section 78A‐6‐507. Id. (citation
and internal quotation marks omitted). “Second, the court must
find that the best interests and welfare of the child are served by
terminating . . . parental rights.” Id. Mother challenges the
sufficiency of the evidence to support each ground for
termination. Under Utah Code section 78A‐6‐507, the finding of
a single ground will support termination of parental rights. See
Utah Code Ann. § 78A‐6‐507(1). The evidence supports the
juvenile court’s findings that Mother was an unfit or
incompetent parent and that she failed in her parental
adjustment.
¶5 In January 2014, Mother gave birth to D.V., who tested
positive for exposure to methamphetamine, marijuana, and
amphetamine. Mother’s older child, A.V., also tested positive for
exposure to methamphetamine. DCFS took custody of both
children, who were adjudicated as neglected by Mother. The
juvenile court ordered reunification services for Mother. The
child and family plan required Mother to complete a substance
abuse evaluation and follow the recommendations, submit to
random drug testing, complete parenting education, and obtain
stable housing and income. Mother participated in family
dependency drug court and completed inpatient substance
abuse treatment and parenting training at House of Hope. In
May 2014, the juvenile court returned the children to Mother’s
custody with protective supervision. The children were removed
from Mother again in November of 2014 after she relapsed.
Mother continued to receive services until December 2015, when
the court returned the children to her custody and closed the
case.
¶6 However, Mother fell back into her previous lifestyle in
January 2016 and again began using methamphetamine. Mother
placed her children with their maternal grandmother. Mother
20170196‐CA 3 2017 UT App 79In re D.V.
had not resided with D.V. and A.V. since January 2016. Mother
had not been employed since December 2015. Mother had not
had a home of her own since December 2015 and was living with
various friends and attempting to avoid arrest on outstanding
warrants. On July 25, 2016, Mother was arrested after a car in
which she and her children were passengers was stopped by
police. Mother testified that the driver threw something into her
lap, which she placed in her pocket. That substance was
methamphetamine. There also were firearms in the car. After the
July incident, Mother signed a notarized letter giving the
maternal grandmother custody of her children. The
grandmother also had a history of drug use and a child in State
custody. In August 2016, the State obtained a warrant to remove
the children for a third time. Mother was incarcerated in October
2016, while awaiting trial on charges from the July incident. In
December 2016, Mother pleaded guilty to one count of
possession with the intent to distribute, a second degree felony.
She was sentenced to a prison term of zero to fifteen years,
which was suspended. Mother was placed on thirty‐six months
of probation and began serving 180 days in jail on December 15,
2016. Mother may be eligible for early release due to her
participation in the “CATS” treatment program at the jail and
hopes to obtain transitional housing.
¶7 Evidence of Mother’s substance abuse, history with DCFS,
and drug‐related incarceration was sufficient to support the
juvenile court’s determination that she was an unfit or
incompetent parent. The evidence was also sufficient to support
the juvenile court’s determination that Mother had failed in her
parental adjustment. Mother repeatedly failed to address her
substance abuse problem despite receiving over a year of
services, causing her children to be removed three times from
her custody, and resulting in her incarceration. Although Mother
now claims that DCFS failed to provide services to address the
depression and anxiety contributing to her substance abuse
problems, this claim was based upon speculation about the
contents of her inpatient treatment.
20170196‐CA 4 2017 UT App 79In re D.V.
¶8 Mother’s additional claim that the evidence was
insufficient to demonstrate that the children suffered or were
substantially likely to suffer serious detriment due to Mother’s
unfitness lacks merit. In summary, the children were removed
three times from her custody and were deprived of her care due
to her incarceration. The children showed indications of
separation anxiety, had trouble sleeping, and were enrolled in a
therapeutic preschool. The juvenile court found that the children
were in need of stability and protection from abuse and neglect.
¶9 Mother also challenges the juvenile court’s determination
that it was in the children’s best interest to terminate parental
rights to allow them to be adopted. Mother acknowledged that
she was not in a position to regain custody of her children and
advocated for an order placing the children with a maternal
relative in a permanent guardianship or authorizing adoption by
a relative. Like the determination of unfitness, the best interest
determination “should be afforded a high degree of deference.”
In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. The juvenile court
found that the children were bonded to the foster parents, who
were willing to adopt them and provide them with safety and
protection from neglect.1 The juvenile court’s best interest
determination is supported by sufficient evidence.
¶10 Because “a foundation for the court’s decision exists in the
evidence,” see id., we affirm.
1. At the time of the termination trial, DCFS had conducted a
preliminary investigation of a potential kinship placement that
was also willing to adopt the children. That preliminary
investigation raised issues about the kinship placement that had
not been resolved at the time of the termination trial.
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