In re K.K.

2017 UT App 58THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF K.K., J.R.K., AND M.K.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
L.K.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20161023-CA
Filed March 30, 2017
Fifth Juvenile District Court, St. George Department
The Honorable Paul E. Dame
No. 1066694
Benjamin D. Gordon, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES MICHELE M. CHRISTIANSEN, KATE A. TOOMEY, and
DAVID N. MORTENSEN.
PER CURIAM:
¶1 L.K. (Father) appeals the juvenile court’s order
terminating his parental rights. We affirm.
¶2 “[I]n order to overturn the juvenile court’s decision [to
terminate a person’s 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 omitted). We
“review the juvenile court’s factual findings based upon the
In re K.K.
clearly erroneous standard.” 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 the evidence. See id. Further, we give the juvenile
court a “wide latitude of discretion as to the judgments arrived
at based upon not only the court’s opportunity to judge
credibility firsthand, but also based on the juvenile court judges’
special training, experience and interest in this field.” Id.(citations and internal quotation marks omitted). Finally,
“[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 Father first argues that there was insufficient evidence to
demonstrate grounds supporting termination of his parental
rights. The juvenile court based its termination decision on
several grounds, including unfitness. See Utah Code Ann. § 78A-
6-507(1)(c) (LexisNexis 2012). The evidence in the record
supports the juvenile court’s findings and determination that
Father was unfit to care for his children. 1 For example, the
juvenile court found that Father had an extensive history of both
drug use and domestic violence. While Father completed one
drug treatment program during the course of this case, shortly
after completing the program he overdosed on prescription
medication in a suicide attempt. A few months later he tested
positive for marijuana and methamphetamine, thereafter
1. Pursuant to Utah Code section 78A-6-507, the finding of any
single ground for termination is sufficient to warrant
termination of parental rights. See 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 ground is sufficient to terminate
parental rights). As a result, if there is sufficient evidence to
support any of the grounds for termination found by the juvenile
court, the termination of Father’s rights is appropriate.
20161023-CA 2 2017 UT App 58In re K.K.
expressing a desire to get help for his substance abuse problems.
Thus, it is clear that Father’s drug habits were not resolved by
the completion of the initial drug rehabilitation program.
Similarly, the juvenile court found that Father had not
adequately addressed his domestic violence issues. Father began
classes for domestic violence, but at the time of trial he was still
months away from completion of the course.
¶4 Father’s failure to adequately address his domestic
violence issues is all the more important due to his ongoing
relationship with the mother of the children, who had previously
relinquished her parental rights to the children. The juvenile
court found that the two have a volatile history with each
committing violent acts against the other. However, both have
expressed their desire to maintain their relationship with the
other. In fact, based on the evidence presented, the juvenile court
determined that Father’s relationship with the mother is likely to
continue indefinitely, which causes difficulty due not only to her
unresolved domestic violence issues, but also due to her
unresolved mental health and drug issues. The mother’s
unresolved issues make it unsafe for the children to be around
her. However, Father does not or cannot recognize these
problems, believing that mother is a good mom, that the children
are safe around her, and that the children would not be
detrimentally affected being around her. Accordingly, due to
Father’s failure to address several internal issues and to put the
children’s interests ahead of the interest of the mother, the
juvenile court found that the children would not be safe if it
returned the children to Father’s custody. Thus, evidence in the
record supports the juvenile court’s decision that Father was
unfit. 2 See In re B.R., 2007 UT 82, ¶ 12.
2. A court may not terminate a person’s parental rights unless it
is in the best interests of the children. See Utah Code Ann. § 78A-
6-503 (LexisNexis Supp. 2016). Father does not challenge the
(continued…)
20161023-CA 3 2017 UT App 58In re K.K.
¶5 Father next asserts that the juvenile court erred in
determining that the Division of Child and Family Services
(DCFS) made reasonable efforts to reunify him with his children.
“Reasonable efforts” has been defined as “a fair and serious
attempt to reunify a parent with a child prior to seeking to
terminate parental rights.” In re A.C., 2004 UT App 255, ¶ 14, 97
P.3d 706. However, the process of reunification is “a two way
street which ‘requires commitment on the part of the parents, as
well as the availability of services from the State.’” In re P.H., 783
P.2d 565, 572 (Utah Ct. App. 1989) (quoting In re J.C.O., 734 P.2d
458, 463 (Utah 1987)). Ultimately, reasonableness is an objective
standard that “depends upon a careful consideration of the facts
of each individual case.” In re K.F., 2009 UT 4, ¶ 51, 201 P.3d 985.
Thus, the juvenile court has broad discretion in determining
whether DCFS made reasonable efforts to reunify a child with
her parent. In re A.C., 2004 UT App 255, ¶ 20.
¶6 Here, in examining DCFS’s efforts to reunify the children
with Father, the juvenile court noted that “[t]his is not a typical
case, rather, it has been a very high-maintenance, chaotic case”
due to the significant needs of every family member. When the
case was initiated the parents did not trust DCFS, thereby
requiring more time to establish a rapport between the
caseworker and the parents. Despite this high-maintenance case,
DCFS provided extensive help to Father. The caseworker
coordinated appointments to obtain Father’s psychological and
domestic violence evaluations, provided referrals for other
services, facilitated payments for services, and provided Father
with financial support, including money for a down payment on
an apartment. Father also failed to take advantage of some
services and internalize the lessons of others. For example,
(…continued)
juvenile court’s decision concerning the best interests of the
children; accordingly, we do not address the issue.
20161023-CA 4 2017 UT App 58In re K.K.
Father’s caseworker was able to place Father and the mother into
a shelter that was one of DCFS’s primary resource hubs.
However, Father left the facility within a week because he
believed someone was exhibiting too much interest in the
mother. Moreover, despite completing drug counseling Father
tested positive for methamphetamine and marijuana. In sum, the
evidence in the record supports the juvenile court’s
determination that DCFS provided reasonable services to Father.
¶7 Finally, Father alleges that the juvenile court erred in
denying the mother’s attempt to invoke spousal privilege to
prevent her from testifying at the trial. Father alleges that the
juvenile court improperly allowed a blanket application of Rule
502(e)(4) of the Utah Rules of Evidence to the mother’s entire
testimony. See Utah R. Evid. 502(e)(4) (stating that an exception
to spousal privilege applies “[i]f the interest of a minor child of
either spouse may be adversely affected, the Court may refuse to
allow invocation of the privilege”). Father alleges that the
juvenile court should have more thoroughly investigated the
totality of the State’s anticipated questioning to determine if it
would allow the privilege to be asserted at least partially in
regard to some lines of questioning. However, this argument
was not adequately preserved. “[I]n order to preserve an issue
for appeal the issue must be presented to the trial court in such a
way that the trial court has an opportunity to rule on that issue.”
Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48
P.3d 968. Prior to her testimony, the mother raised the argument
of spousal privilege, not Father. The court eventually decided
that the privilege did not apply under rule 502(e)(4). The mother
was then questioned by all parties. Father never objected to any
part of her testimony in regard to privilege. If Father believed
that certain testimony should not have been included within the
scope of the juvenile court’s previous ruling, it was incumbent
upon him to object to that testimony and provide the court with
reasoned arguments as to why that particular testimony should
have been privileged. Contrary to Father’s, argument it was not
20161023-CA 5 2017 UT App 58In re K.K.
the responsibility of the juvenile court to explore every potential
line of questioning prior to issuing its initial ruling. Accordingly,
because the issue was not adequately preserved, we decline to
address it.
¶8 Affirmed.
20161023-CA 6 2017 UT App 58