2016 UT App 145
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF E.M.J.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
A.M.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Memorandum Decision
No. 20150614-CA
Filed July 14, 2016
Third District Juvenile Court, Salt Lake Department
The Honorable Mark W. May
No. 1091549
Liza M. Jones, Attorney for Appellant
Sean D. Reyes, John M. Peterson, and Carol L.C.
Verdoia, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
SENIOR JUDGE PAMELA T. GREENWOOD authored this
Memorandum Decision, in which JUDGES J. FREDERIC VOROS JR.
and MICHELE M. CHRISTIANSEN concurred.1
GREENWOOD, Senior Judge:
¶1 A.M. (Father) appeals the juvenile court’s termination of
his parental rights in E.M.J. We affirm.
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
In re E.M.J.
¶2 E.M.J. was removed from Father’s custody in October
2013 after Father ‚had a medical incident involving psychiatric
medicine that involved physical restraint by the police.‛
Following a hearing, the juvenile court adjudicated E.M.J.
neglected by his mother2 and dependent as to Father. The
juvenile court set a permanency goal for E.M.J. of reunification
with Father and ordered Father to complete mental health
therapy and follow all recommendations of his therapist. In
connection with his treatment, Father was required to undergo
periodic drug testing. After making positive progress for several
months, Father began skipping drug tests and missing visits
with E.M.J. He then failed to appear at a review hearing in
August 2014, at which point the juvenile court ordered that
Father’s visitation be therapeutically supervised at the discretion
of the therapist. The juvenile court expressed confusion at
Father’s behavior, observing that Father ‚was very close to
having [E.M.J.] returned but had begun to ‘shoot himself in the
foot’ by failing to take drug tests and missing visits.‛
¶3 In October 2014, the juvenile court held a permanency
hearing. Father again failed to appear. At the permanency
hearing, it was reported that Father had completed his
individual treatment but had not taken any drug tests since July
2014 and had only two visits with E.M.J. since the August review
hearing, neither of which had gone well. The therapist expressed
his opinion that visits between Father and E.M.J. should be
terminated. Based on this information, the juvenile court
terminated reunification services and changed E.M.J.’s
permanency goal to adoption. However, the court reaffirmed its
prior order regarding visitation, which permitted Father to have
therapeutically supervised visitation with E.M.J. at the
therapist’s discretion. A few days later, the State filed a petition
2. E.M.J.’s mother voluntarily relinquished her parental rights in
December 2014 and has no involvement in this appeal.
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In re E.M.J.
to terminate Father’s parental rights, in which it raised several
grounds in support of termination.
¶4 Following the permanency hearing, E.M.J.’s therapist and
E.M.J.’s foster mother informed Father that his visitation rights
had been discontinued.3 Relying on this information, Father
moved to California in November to live with his parents and
made no attempt to contact E.M.J. for several months, although
Father’s parents had consistent phone contact with E.M.J. and
sent letters and gifts. When Father finally learned that there was
no court order terminating visitation, he made a single phone
call to E.M.J.’s caseworker in April 2015 to arrange visitation but
then failed to follow up.4
¶5 In January 2015, the State amended its petition to include
the ground of abandonment and ultimately restricted its
arguments at the termination trial to that ground. The
termination trial was held in June 2015. At the trial, the State
asserted that Father had abandoned E.M.J. by failing to
communicate with him for more than six months. See Utah Code
3. Father also testified that his attorney informed him that
visitation had been terminated, but as the attorney did not testify
at the termination trial, the juvenile court did not find Father’s
testimony to be credible.
4. There was a factual dispute as to whether the caseworker was
supposed to call Father back after contacting the therapist or
whether Father was supposed to call the caseworker. The
juvenile court found the caseworker’s testimony more credible
than Father’s on this point but observed that it was ultimately
irrelevant who was supposed to make the follow-up call because
a ‚‘dedicated’ parent would have continued to call the worker
until the issue was resolved.‛
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In re E.M.J.
Ann. § 78A-6-508(1)(b) (LexisNexis Supp. 2015).5 Father
responded that he stopped contacting E.M.J. only because he
was misinformed as to his visitation rights. The juvenile court
determined that the State had made a prima facie showing of
abandonment and that Father’s evidence had failed to overcome
that showing. The court further determined that termination was
in E.M.J.’s best interests. Accordingly, the juvenile court
terminated Father’s parental rights. Father now appeals.
¶6 Father first asserts that the juvenile court employed the
wrong procedural framework and standard of proof in
evaluating whether he abandoned E.M.J. Whether the juvenile
court applied the correct standard of proof is a question of law,
which we review for correctness. See In re S.H., 2005 UT App 324,
¶ 10, 119 P.3d 309.
¶7 ‚[A] showing of abandonment requires satisfaction of a
two-part test.‛ In re T.E., 2011 UT 51, ¶ 20, 266 P.3d 739. The
petitioner must demonstrate, first, ‚that the respondent parent
has engaged in conduct that implies a conscious disregard for
his or her parental obligations‛ and, second, ‚that the
respondent parent’s conduct led to the destruction of the parent–
child relationship.‛ Id. A parent’s failure ‚‘to communicate with
the child by mail, telephone, or otherwise for six months’‛
constitutes prima facie evidence of abandonment, creating ‚a
presumption that the respondent parent has abandoned the
child.‛ Id. ¶ 21 (quoting Utah Code Ann. § 78A-6-508(1)(b)). The
burden then shifts to the respondent parent to rebut the
presumption by presenting ‚evidence indicating that [the
parent] did not consciously disregard [his or her] parental
obligations or that [his or her] conduct did not lead to the
destruction of the parent–child relationship.‛ Id. ¶ 22. In doing
5. We cite the most current version of the Utah Code for the
reader’s convenience.
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In re E.M.J.
so, ‚respondent parents are not required to demonstrate by clear
and convincing evidence that they did not abandon the child‛
but ‚need produce only enough evidence to persuade the
juvenile court that the petitioner seeking to terminate [the
respondent parent’s] parental rights has not established
abandonment by clear and convincing evidence.‛ Id. ¶ 23. The
court is required to ‚consider the totality of the evidence‛ to
determine whether there is ‚clear and convincing evidence to
support a finding of abandonment.‛ Id.
¶8 Father asserts that the juvenile court improperly required
him to disprove abandonment by clear and convincing evidence
because it ‚evaluated Father’s evidence in a manner that
required him to show that either he did in fact communicate
with E.M.J. or that he had a legitimate reason for his lack of
successful[] communication.‛ Instead, Father asserts, the juvenile
court should have considered only whether Father consciously
disregarded his parental obligations toward E.M.J. Father argues
that the court inappropriately rejected his explanation for failing
to contact E.M.J.—that he believed his visitation rights had been
terminated—based on its conclusion that a reasonable person
would not have relied on the therapist’s and foster mother’s
representations to that effect when there was no corresponding
court order. At oral argument, Father explained that the court
should have instead considered only whether he personally
believed he could not have contact with E.M.J., because such a
belief would belie any conscious disregard of his parental
obligations.
¶9 We disagree with Father’s assessment of the juvenile
court’s analysis. Although the court did find that it was
unreasonable for Father to rely on the representations of the
therapist and foster mother in establishing his belief that he was
barred from visiting E.M.J., the court’s decision relied primarily
on its determination that Father’s actions—even in light of that
belief—were inconsistent with those of a ‚dedicated‛ parent.
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In re E.M.J.
Indeed, we have previously indicated that even when a parent is
barred from contact with his children by means of a protective
order, his lack of effort toward restoring his visitation rights, his
failure to provide support for the children in the interim, and his
failure to take advantage of opportunities to visit the children
demonstrate a conscious disregard for parental obligations. See
In re I.B., 2007 UT App 177U, paras. 4–5 (per curiam); In re B.H.,
2003 UT App 160U, para. 2 n.1.
¶10 Here, the juvenile court explained that Father’s single
phone call to the caseworker once he learned that visitation had
not terminated ‚belied‛ his ‚excuses for not keeping in contact
with [E.M.J.]‛ because a ‚‘dedicated’ parent would have
continued to call the worker until the issue was resolved.‛ The
juvenile court observed that Father’s failure to pay child support
and his failure to provide ‚gifts, telephone calls, cards or letters
for Christmas, [E.M.J.’s] birthday, special occasions or other
holidays‛ further demonstrated Father’s apathy toward E.M.J.
Although Father testified that ‚he was told not to provide such
items,‛ the court did not find this testimony to be credible. The
court found that Father had previously been ‚on track to
successfully complete his service plan and have [E.M.J.] returned
to his custody‛ but that Father had ‚abandoned his progress‛ by
ceasing to participate in drug testing; missing visits with E.M.J.;
abandoning contact with the caseworker, his attorney, and the
court; moving to California and ‚completely dropp[ing] out of
[E.M.J.’s] life‛; and, upon learning that he could have contact
with E.M.J., making only ‚a half-hearted effort to contact his son,
which he quickly abandoned.‛ Thus, even assuming that Father
legitimately believed that he was restricted from visiting E.M.J.,
the court made it clear that it considered Father’s actions to have
displayed a conscious disregard for his parental obligations.
Weighing Father’s evidence in its totality, the court concluded
that the evidence was insufficient ‚to overcome the prima facie
showing of abandonment.‛ Nothing in the juvenile court’s order
convinces us that it placed an undue burden on Father or
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In re E.M.J.
misapplied the framework outlined by our supreme court. See In
re T.E., 2011 UT 51, ¶¶ 20–23.
¶11 Father asserts that even if the court employed the correct
framework, the evidence was insufficient to support the court’s
determination that he abandoned E.M.J. and that termination of
his parental rights was in E.M.J.’s best interests. ‚[W]e 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.‛ In re
A.B., 2007 UT App 286, ¶ 10, 168 P.3d 820 (second alteration in
original) (citation and internal quotation marks omitted). ‚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.‛ In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435
(alteration in original) (citation and internal quotation marks
omitted).
¶12 Father first argues that the State failed to make a prima
facie showing of abandonment—i.e., that Father had failed to
communicate with E.M.J. ‚by mail, telephone, or otherwise for
six months,‛ see Utah Code Ann. § 78A-6-508(1)(b) (LexisNexis
Supp. 2015)—because Father’s parents’ contact with E.M.J. was
undertaken on Father’s behalf. Father’s argument depends on
his assertion that his parents acted as his agents in making
phone calls, sending letters, and giving gifts to E.M.J. In In re
T.E., 2011 UT 51, 266 P.3d 739, the supreme court held that a
grandmother delivering a birthday card from a child’s father
constituted communication. Id. ¶ 28 n.36. But the In re T.E. court
did not hold that vicarious communication is sufficient to
demonstrate that a parent has communicated with his or her
child; rather, it acknowledged that a birthday card from the
father and hand-delivered by a third party constituted
communication ‚‘by mail.’‛ Id. (quoting Utah Code Ann. § 78A-
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In re E.M.J.
6-508(1)(b)). Here, Father does not claim that he had any direct
communication with E.M.J.; rather, he asserts that his parents’
phone calls to E.M.J. and his participation (unbeknownst to
E.M.J.) in picking out a gift for E.M.J. constituted
communication. But monitoring a child’s life via a third party is
not the same as communicating with the child, and since Father’s
contact with E.M.J. was indirect, it is distinguishable from the
contact that occurred in In re T.E. Thus, we conclude that the
State presented prima facie evidence that Father had failed to
communicate with E.M.J. for six months.
¶13 Father next contends that the evidence was insufficient to
support the juvenile court’s determination that the totality of the
evidence did not ‚overcome the [State’s] prima facie showing of
abandonment.‛ We are sympathetic to Father’s position that he
misunderstood his visitation rights and that the discretion
granted to the therapist to schedule visitation may have barred
him from seeing E.M.J. even in the absence of a court order.
However, in light of the evidence discussed above, see supra ¶ 10,
we are not convinced that the juvenile court’s determination that
Father consciously disregarded his parental obligations to the
destruction of the parent–child relationship was ‚against the
clear weight of the evidence.‛ See In re B.R., 2007 UT 82, ¶ 12.
¶14 Finally, Father argues that the evidence was insufficient to
support the juvenile court’s determination that it was in E.M.J.’s
best interests that Father’s parental rights be terminated. The
court found that E.M.J. has made ‚remarkable‛ developmental,
educational, and behavioral progress since placement with the
foster mother; that he ‚views the foster mother as his parent‛;
and that he is afraid of Father, is upset by the prospect of future
visits with Father, and has expressed no desire to see Father. In
light of these circumstances, the juvenile court determined that it
was in E.M.J.’s best interests ‚to have [Father’s] parental rights
terminated so that [E.M.J.] can remain in his current placement,
be adopted by his foster mother, and have the stability that he
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In re E.M.J.
needs.‛ In contesting these findings, Father merely reargues the
evidence and has failed to establish that there was insufficient
evidence to support the findings. Indeed, Father’s argument
relies primarily on his assertion that the court’s best interests
finding was based ‚solely on testimony from‛ the foster mother
and that the foster mother’s ‚credibility is of concern.‛ But
credibility is a question for the juvenile court, In re A.B., 2007 UT
App 286, ¶ 10, and Father has failed to show that the juvenile
court’s reliance on the foster mother’s testimony was an abuse of
its discretion. Likewise, Father’s assertion that the juvenile court
should have attributed E.M.J.’s progress ‚to proper mental
health diagnosis and medication,‛ rather than to the foster
mother’s actions, goes to the juvenile court’s weighing of the
evidence and exercise of its discretion. Thus, Father has failed to
establish that the evidence was insufficient to support the
juvenile court’s finding that termination of his parental rights
was in E.M.J.’s best interests.
¶15 In examining the juvenile court’s decision to terminate
Father’s parental rights, we are convinced that the court
employed the correct procedural framework and burdens of
proof in determining whether Father abandoned E.M.J. Further,
the evidence was sufficient to support the juvenile court’s
determination that the State presented prima facie evidence of
abandonment, that Father failed to overcome that prima facie
showing, and that termination was in E.M.J.’s best interests.
Accordingly, we affirm.
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