In re C.R.C.

2019 UT App 153THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF C.R.C.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
S.C. AND D.C.,
Appellants,
v.
STATE OF UTAH,
Appellee.
Opinion
Nos. 20190233-CA and 20190234-CA
Filed September 19, 2019
Eighth District Juvenile Court, Vernal Department
The Honorable Ryan B. Evershed
No. 1142757
Emily Adams and Jeffry K. Ross, Attorneys
for Appellant S.C.
A. Erin Bradley, Attorney for Appellant D.C.
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.
APPLEBY, Judge:
¶1 S.C. (Mother) and D.C. (Father) (collectively, Parents)
appeal the juvenile court’s termination of their parental rights as
In re C.R.C.
to C.R.C. (Child). 1 Mother argues that insufficient evidence
supported the juvenile court’s determination that grounds
existed to terminate her rights. Parents also argue that
terminating their rights is not in Child’s best interest. We affirm.
BACKGROUND
¶2 In early 2017, police discovered that Father had
downloaded hundreds of photographs and videos of child
pornography. Many of the images involved children as young as
newborns and toddlers. Father admitted to downloading the
images and was arrested. He has been incarcerated since. Police
informed Mother of the allegations against Father and warned
her that Child, who was born shortly after Father’s arrest, was
not safe around him. Mother was advised to seek a protective
order for Child against Father, but she never sought one. Police
eventually obtained an ex parte protective order on Child’s
behalf. The protective order prohibited Father from having
contact with Child unless the visit was supervised by the
Division of Child and Family Services (DCFS). Despite this court
order, Mother took Child to the prison to see Father. This
incident was reported to DCFS and Mother was reminded not to
allow contact between Child and Father.
¶3 In March 2017, Father was temporarily released from jail
to obtain a psychosexual evaluation. Mother asked if Father
could see Child during his release, but DCFS again instructed
her not to allow contact between them. Mother ignored these
instructions and allowed Father to spend “unfettered and
1. Father filed a separate appeal but did not file an opening brief
and instead joined in Mother’s brief. We therefore resolve both
cases together in this opinion.
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unsupervised” time with Child. Mother told DCFS she permitted
the contact because Father was not a risk to Child. After this
incident came to light, DCFS removed Child from Mother’s
custody and Child was placed in foster care.
¶4 While Child was in foster care, Mother was required to
complete a reunification plan (Plan), which included, among
other things, (1) establishing safe and stable housing for herself
and Child, (2) maintaining contact with her caseworker so she
could have parent time with Child, (3) completing a parental
fitness evaluation, (4) completing a parenting class and working
with a “peer parent,” and (5) complying with the no-contact
order by preventing Father from contacting Child.
¶5 In accordance with the Plan, Mother sought a parental
fitness evaluation. But the juvenile court concluded that she was
unable to complete it because she “could not understand many
of the questions, even when they were read to her” and that the
“evaluation raised many concerns regarding Mother’s ability to
adequately parent” Child. The evaluation report concluded that
Mother has an intelligence quotient “in the extremely low range
of intellectual classification” and that Mother has an overall
intellectual capacity of a ten- or eleven-year-old child. But the
court noted that Mother improved her housework and parenting
skills after attending behavioral therapy. Overall, the court
concluded that Mother could not be a successful parent without
“maintaining firm boundaries and obtaining a support system.”
¶6 Mother attempted to obtain an adequate support system.
First, she identified her own mother (Grandmother) as a
potential supervisor. Grandmother participated in a parental
fitness evaluation, but this demonstrated that she, too, suffered
from serious intellectual deficiencies. The court found that
Grandmother and Mother frequently undermined each other
and that Grandmother had a boyfriend who could not pass a
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background check. The court concluded that Grandmother was
an inappropriate supervisor for Mother and Child. Next, Mother
identified her father (Grandfather) as a potential supervisor.
Grandfather resided in Colorado and therefore was not an
option as a long-term supervisor. Finally, Mother identified a
friend (Friend) as a potential supervisor. Friend agreed to
supervise Mother’s parent-time with Child and Friend was
found to be an adequate supervisor. Friend testified that the
get-togethers went well. Friend began attending family team
meetings with Mother and provided her support “in many
ways.”
¶7 But in early 2018, Friend discovered that Mother had been
dishonest with DCFS regarding her contact with Father and
became concerned about Child’s safety. At trial, Friend’s
daughter testified that she was driving with Mother one day and
asked Mother whether she had any overnights planned with
Child. Mother responded, “[N]o, I think [DCFS personnel] know
if I had overnights then I would call [Grandfather] to come get
us and I would leave with them.” Mother added that she
“couldn’t wait until she had her family back together” and she
wanted to have “more kids” with Father. After this, Friend
stopped providing support to Mother. The court concluded that
Mother was never able to establish the long-term support system
she needed to be reunited with Child.
¶8 Mother’s parental fitness evaluation report also noted
Mother struggled to maintain firm boundaries and observed that
this made her “an easy target to be taken advantage of due to her
[intellectual] difficulties.” Friend reported to DCFS that Mother
had “significant secret contact with Father in prison.” DCFS
asked Mother about this and Mother “adamantly denied any
contact” and expressed her desire to divorce Father because any
contact would be harmful to Child. Nevertheless, Mother
continued to contact Father. In September 2017, a caseworker
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again asked Mother if she had spoken with Father, and Mother
said she had not. But in the two months following this
conversation, Mother spoke with Father on the telephone for 443
minutes and deposited $632 in his prison account. After this,
Mother met with a caseworker and again denied having any
contact with Father. That same day, Mother had a 27-minute
phone call with him. At a family team meeting several months
later, Mother stated she had no contact with Father even though
she made four separate phone calls to Father that day for a total
of 58 minutes. From the first time Mother told her caseworker
she had no contact with Father until the family team meeting,
Mother had 428 phone calls with Father and deposited $2,358 in
his prison account. At another family team meeting, Mother was
again warned not to have any contact with Father. Between that
time and the permanency placement hearing one month later,
Mother spoke to Father on the telephone 32 times for a total of
307 minutes. Over the next several months, Mother had 16
in-person prison visits with Father, had approximately 650
phone conversations with him, and deposited $1,135 in his
prison account.
¶9 The court found Mother’s continual contact with Father
“very concerning” on many levels because “Father [was] a
danger to [Child] and Mother was made aware of this.” It stated,
“Mother has demonstrated that she is committed to Father and
does not believe he is a risk to [Child]” and has “demonstrated
that she will be deceitful with DCFS and the Court in an attempt
to continue the relationship.” Mother and Father were also
“aware that ongoing contact between the two of them
undermined Mother’s potential for success.” Based on the
court’s many concerns, it concluded that Mother would not be
able to protect Child from Father or other potential abusers. It
also found that Mother was “an easy target to be taken
advantage of” and that Child was an “easy target[] for abuse and
neglect if Mother is the sole caretaker.” The parental fitness
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evaluation report also described Mother as “unwilling” to stay
away from Father and stated that she “made the conscious
decision to continue contact with [him] knowing it would be
detrimental to her success.”
¶10 At the termination trial, the court concluded that Mother
made significant progress on the Plan by keeping in contact with
her caseworker and seeing Child on a regular basis, obtaining a
parental fitness evaluation, completing the parenting class,
complying with the peer-parenting program, and establishing
housing. But it concluded that she “was never able to complete
the goals of the Plan by providing an appropriate home for
[Child] where [Child] would be safe from abuse and neglect.” In
point of fact, the court was concerned with Mother’s continual
contact with Father, her belief that he was not a threat to Child,
and her lack of a support system.
¶11 The juvenile court found that several grounds supported
terminating Parents’ parental rights. First, it concluded that they
were “unwilling or unable to avoid their parental incompetence”
and neglect. It found that Father was incarcerated as a result of
multiple felony convictions and that the sentence was long
enough that Child would be deprived of a normal home for
more than one year. Further, the fact that Father was convicted
for possessing child pornography indicated his unfitness to
provide adequate care to Child. It also found that Mother
suffered “from an emotional illness, mental illness, or mental
deficiency” that rendered “her unable to care for the immediate
and continuing physical or emotional needs of [Child] for
extended periods of time.” While Mother “may be able to
complete up to ninety percent of the parenting required to take
care of [Child],” “[Child] is not safe with [Mother] on a long-
term basis without ongoing support from a third party” and
“[n]o ongoing third party support was ever established.” Finally,
the court found that Mother had failed to make parental
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adjustment 2 and was unwilling or unable to remedy the
circumstances that led to Child being placed in foster care.
¶12 Next, the court determined that terminating Parents’
rights was in Child’s best interest. It found that Child was placed
in foster care before she was two months old and was never
returned to Mother’s care. 3 Also, Mother never reached the point
where she was allowed overnight parent time during the
reunification period. When Child was placed in foster care she
was “very dirty,” looked “extremely sick and underweight,” and
was diagnosed with failure to thrive.
¶13 Conversely, the court found that Child’s foster parents
“have provided the care and stability that she never received
while under the care of [Mother].” Child was “part of a
permanent foster family where the parents have been married
for almost 16 years, have successfully raised other children,”
have “lived in the same area for years,” and have expressed a
willingness to adopt Child. Further, Child and her foster parents
“developed bonds of love and affection for one another.” Child
has “thrived in the foster parents’ home” and “has made
remarkable strides . . . both emotionally and physically.” The
court stated that there “is no comparison [between] the two
2. “‘Failure of parental adjustment’ means that a parent or
parents are unable or unwilling within a reasonable time to
substantially correct the circumstances, conduct, or conditions
that led to placement of their child outside of their home,
notwithstanding reasonable and appropriate efforts made by the
Division of Child and Family Services to return the child to that
home.” See Utah Code Ann. § 78A-6-502(2) (LexisNexis 2018).
3. Child has never lived with Father; he has been incarcerated
since before her birth.
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homes as far as parenting ability.” Child’s foster parents
“significantly altered their lives to care for [Child]” and “have
taken multiple steps to improve [Child’s] life and ability to
function in society.” The court compared these efforts to those of
Parents, who were “unwilling or unable to do the same.”
Ultimately, the court concluded that Child is “settled” in the
foster parents’ home, she has stronger emotional ties with them
than she does with Parents, and moving her from that home
would be detrimental to Child’s well-being. The court noted
Mother’s “respectable effort to adjust her circumstances,” but
found it was not enough to consider it in Child’s best interest to
return Child to her. Ultimately, the court concluded that it was
strictly necessary to terminate Parents’ rights and that adoption
was in Child’s best interest because it would satisfy her need for
safety, stability, and permanency.
¶14 Parents appeal.
ISSUES AND STANDARDS OF REVIEW
¶15 Parents raise two main issues on appeal. First, Mother
contends insufficient evidence supports the juvenile court’s
finding that statutory grounds existed to terminate her parental
rights. 4 “We apply a clearly erroneous standard in determining
whether the juvenile court’s findings are based upon sufficient
evidence.” In re A.W., 2018 UT App 217, ¶ 23, 437 P.3d 6404. Father concedes statutory grounds existed to terminate his
rights under Utah Code section 78A-6-508(2)(e) because he is
“incarcerated as a result of conviction of a felony, and the
sentence is of such length that [Child] will be deprived of a
normal home for more than one year.” See Utah Code Ann.
§ 78A-6-508(2)(e) (LexisNexis Supp. 2019).
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(quotation simplified). Under this standard, we will not overturn
the court’s determination unless the result is “against the clear
weight of the evidence” or leaves us “with a firm and definite
conviction that a mistake has been made.” In re B.T.B., 2018 UT
App 157, ¶ 8, 436 P.3d 206 (quotation simplified), cert. granted,
440 P.3d 692 (Utah 2019).
¶16 Second, Parents argue that insufficient evidence supports
the juvenile court’s determination that it was in Child’s best
interest to terminate their parental rights. “Due to the factually
intense nature of the analysis, a [juvenile] court’s final decision
regarding termination of parental rights should be afforded a
high degree of deference,” and this court will overturn a
termination decision only when the result is “against the clear
weight of the evidence” or leaves us “with a firm and definite
conviction that a mistake has been made.” Id. (quotation
simplified).
ANALYSIS
¶17 “To terminate parental rights, a juvenile court must make
two separate findings.” In re C.T., 2018 UT App 233, ¶ 12, 438
P.3d 100 (quotation simplified). First, the court must find “that
there is at least one statutory ground for termination.” Id.(quotation simplified); see also Utah Code Ann. § 78A-6-507
(LexisNexis 2018). “Second, a court must find that termination of
the parent’s rights is in the best interests of the child.” In re C.T.,
2018 UT App 233, ¶ 12 (quotation simplified).
¶18 Mother argues that the juvenile court erred in terminating
her parental rights because there was insufficient evidence to
support a finding that there are statutory grounds for
termination. Parents also argue that termination was not in
Child’s best interest. We address each issue in turn.
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I. Grounds for Termination
¶19 Mother argues that the evidence presented at trial did not
support the grounds the juvenile court found for terminating her
rights. We disagree. A court may terminate parental rights on
any one of the grounds articulated in Utah Code section
78A-6-507. “Among other things, a juvenile court may terminate
parental rights if the court finds that a parent has either
abandoned a child, neglected a child, or is an unfit or
incompetent parent.” In re A.W., 2018 UT App 217, ¶ 35, 437 P.3d
640 (quotation simplified). Further, “when a foundation for such
findings exists in the evidence, we do not engage in” reweighing
the evidence on appeal. Id. (quotation simplified).
¶20 The juvenile court terminated Mother’s parental rights on
several grounds. First, it found Mother was unwilling or unable
to remedy her parental incompetence and neglect. See Utah Code
Ann. § 78A-6-507(1)(b)–(c) (LexisNexis 2018). Second, it found
that Child was being cared for in an “out-of-home placement
under the supervision of the court” and Mother had
“substantially neglected, willfully refused, or ha[d] been unable
or unwilling to remedy the circumstances that cause[d] [Child]
to be in an out-of-home placement; and . . . 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). Finally, the court found Mother failed to make
her parental adjustment. See id. § 78A-6-507(e).
¶21 We conclude that a sufficient foundation exists for each of
the grounds the court relied on to terminate Mother’s parental
rights. With respect to neglect and incompetence, the court
found that Mother suffers from “emotional illness, mental
illness, or mental deficiency . . . that renders [her] unable to care
for the immediate and continuing physical or emotional needs of
[Child] for extended periods of time.” See id. § 78A-6-508(2)(a)
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(Supp. 2019). Specifically, the court found that although Mother
may be able to complete a majority of the tasks necessary to care
for Child, Child “is not safe with [Mother] on a long-term basis
without ongoing support from a third party” and a third-party
caregiver was never established. Here, the court relied on the
evidence that, without a support system, Mother’s mental
deficiencies rendered her unable to adequately care for Child
and protect her from Father. The court also found that Mother
demonstrated that she valued her relationship with Father above
caring for and protecting Child. The court and the parental
evaluation report concluded that Mother had the ability to
refrain from contacting Father and to focus on reuniting with
Child, but she continued to express her desire to reunite with
Father and contacted him almost daily. We conclude that this
evidence provides sufficient support for the court’s finding that
Mother was unwilling or unable to remedy her parental
incompetence and neglect.
¶22 The court also found that Mother refused to remedy the
circumstances that caused Child to be in an out-of-home
placement and failed to meet the Plan’s goals. The court noted
that this case was initiated because “Father has a perverse and
unhealthy sexual attraction to young children and Mother was
unwilling to protect [Child] from Father.” However, Mother
maintained throughout the juvenile court proceedings, and on
appeal, that Father is not a threat to Child and attempts to
downplay her contact with Father. Mother continues to argue
that she was never told, nor was it part of the Plan, that she
could not be in contact with Father. The court found this
argument unpersuasive and concluded, “[T]he issue of contact
with Father was both implicitly and explicitly prohibited. But
more importantly, Mother should know better, she should not
have to be told that contact with Father, making plans to get
back with Father, and reconstruct[ing] the family after he gets
out of prison is a terrible and dangerous idea for [Child].” It
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found Mother was aware that she should not have contact with
Father through her numerous discussions with DCFS, her family
team, and the court. A DCFS caseworker testified that Mother
“was aware from the beginning that her ongoing contact with
Father would interfere with successful reunification.” Mother
also demonstrated she was aware of the restriction by repeatedly
lying to DCFS and others about her contact with Father.
¶23 Ultimately, the court found sufficient evidence
supporting the grounds for termination. Mother failed to
appreciate the risk Father posed to Child, routinely expressed
her interest in reuniting with him after he got out of prison, and
consistently lied about her contact with him. The extent of
Mother’s contact with Father demonstrated to the court that she
valued her relationship with him over establishing a support
system to regain custody of Child. The court found that Mother
was unable or unwilling to remedy the situation that caused
Child to be placed in foster care and was unable or unwilling to
remedy her parental incompetence and neglect. We conclude
that ample evidence supports these findings.
II. Best Interest of Child
¶24 Parents argue that terminating their parental rights is not
in Child’s best interest. We disagree. When considering
terminating parental rights, a court must consider whether
“termination is strictly necessary to the best interest of the
child.” In re C.T., 2018 UT App 233, ¶ 12, 438 P.3d 100 (quotation
simplified); see also Utah Code Ann. § 78A-6-507(1) (LexisNexis
Supp. 2019). For termination to be “strictly necessary,” the court
must find it “absolutely essential” after examining “all of the
relevant facts and circumstances surrounding the child’s
situation” and “whether other feasible options exist that could
address the specific problems or issues facing the family.” In re
C.T., 2018 UT App 233, ¶ 14 (quoting In re B.T.B., 2018 UT App
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157, ¶¶ 52–55, 436 P.3d 206, cert. granted, 440 P.3d 692 (Utah
2019)). But “a trial court’s final decision regarding termination of
parental rights should be afforded a high degree of deference,”
and this court will overturn a termination decision only when
the result is “against the clear weight of the evidence” or leaves
us “with a firm and definite conviction that a mistake has been
made.” In re B.T.B., 2018 UT App 157, ¶ 8 (quotation simplified).
¶25 Father argues that terminating his parental rights is not in
Child’s best interest because his child pornography possession
does not make him a danger to her. But possessing child
pornography is prima facie evidence of unfitness. 5 Utah Code
Ann. § 78A-6-508(7)(a) (LexisNexis Supp. 2019). Father failed to
demonstrate to the court why he should be considered a fit
parent and why it was not in Child’s best interest to terminate
his rights. 6 We conclude that the juvenile court did not err in
concluding that it was in Child’s best interest to terminate
Father’s rights.
5. Utah Code section 78A-6-508(7)(a) articulates that sexual
abuse or exploitation is prima facie evidence of unfitness.
“Sexual exploitation” is defined as, among other things,
“engaging in any conduct that would constitute an offense
under Section 76-5b-201, sexual exploitation of a minor,
regardless of whether the individual who engages in the conduct
is actually charged with, or convicted of, the offense.” Utah Code
Ann. § 78A-6-105(52)(c) (LexisNexis Supp. 2019). Sexual
exploitation of a minor includes knowingly possessing child
pornography. Id. § 76-5b-201(1). Father was charged with ten
counts of sexual exploitation of a minor in 2017.
6. Reunification was never set as a goal for Father because he
“pled guilty to several felony charges of sexual exploitation of a
minor.” Father does not challenge this finding on appeal.
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¶26 Mother also argues that it was not in Child’s best interest
to terminate her parental rights. Again, the court did not err in
concluding this was in Child’s best interest. The court found that
it was strictly necessary to terminate Mother’s rights after it
weighed the safety, stability, and permanency that Child
received from her foster parents, who planned on adopting her,
against Mother’s unwillingness and inability to remedy her
situation preventing her from taking care of Child. The court
found that Child had bonded with her foster family and did not
have a “great connection” with Mother. It also found that
although “Mother ha[d] made a respectable effort to adjust her
circumstances, conduct[,] and condition, she ha[d] not done so to
a degree sufficient to make it in Child’s best interest to return her
to her care.” As a result, the court found it “strictly necessary” to
terminate Mother’s parental rights.
¶27 The court also considered other placement options for
Child, “including placement with a family member,
guardianship with foster parents[,] and returning [Child] to
Mother,” but “no option satisfie[d] [Child’s] need for safety,
stability and permanency more than adoption” by her foster
parents. The court found that DCFS made “reasonable efforts to
provide reunification services” to Mother. Specifically, the court
found that DCFS complied with the Americans with Disabilities
Act and accommodated Mother’s intellectual disability, helped
her obtain disability insurance, gave her travel assistance for
exercising parent time with Child, helped her with the
peer-parenting program, and directly supervised and assisted
her with parent time. The court ruled that Mother “was able to
avail herself” of these services and that her “failure in this case”
was not for lack of services “but a result of her dishonesty, her
unwillingness to maintain boundaries for the benefit of [Child],
her unwillingness to separate herself from Father, and her
inability to obtain an ongoing support [system] for herself and
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[Child].” We conclude the court did not err in finding that it was
in Child’s best interest to terminate Mother’s parental rights.
CONCLUSION
¶28 The evidence was sufficient to support a finding that
grounds existed to terminate Mother’s parental rights. Further,
the juvenile court did not err in finding that terminating Parents’
parental rights was in Child’s best interest. Affirmed.
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