2017 UT App 118
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF Z.J. AND Z.J.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
C.J.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Opinion
No. 20170424-CA
Filed July 20, 2017
Third District Juvenile Court, Salt Lake Department
The Honorable Kimberly K. Hornak
No. 1132272
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and
JILL M. POHLMAN.
PER CURIAM:
¶1 C.J. (Father) appeals the termination of his parental rights
to Z.J. and Z.J. 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 the result must be against the clear weight of the
In re Z.J.
evidence or leave the appellate court with a firm and definite
conviction that a mistake has been made.” Id. (citation and
internal quotation marks omitted). 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 “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
finding that a parent is unfit or incompetent based on any of the
grounds for termination” in Utah Code section 78A-6-507. Id.
(citation and internal quotations marks omitted). “Second, the
court must find that the best interests and welfare of the child
are served by terminating . . . parental rights.” Id.
¶4 Father does not challenge any of the grounds for
termination of his parental rights found by the juvenile court.
Father instead challenges only the juvenile court’s best interest
finding. Specifically, Father claims that “his lapse in involvement
in the case” was not a substitute for proof that he cannot parent
and that the juvenile court “failed to adequately consider the
importance of his biological relationship” with the children and
“the right to familial association.”
¶5 “If appellant intends to urge on appeal that a finding or
conclusion is unsupported by or is contrary to the evidence, the
appellant must include in the record a transcript of all evidence
relevant to such finding or conclusion.” Utah R. App. P. 54(b).
Father has not provided a transcript of the termination trial.
Absent an adequate record on appeal, this court cannot address
the adequacy of the evidentiary support for the juvenile court’s
findings and must “assume the regularity of the proceedings
below.” In re K.L.S., 2015 UT App 51, ¶ 5, 345 P.3d 1281 (per
curiam) (citation and internal quotation marks omitted). Because
Father did not provide a transcript, we assume that the court’s
factual findings are supported by sufficient evidence. Thus, we
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In re Z.J.
consider only whether the court’s findings are legally sufficient
to support its best interest determination. The following findings
are relevant to that issue.
¶6 On July 5, 2016, the Division of Child and Family Services
(DCFS) received a referral of child endangerment against the
children’s mother (Mother) regarding twins Z.J. and Z.J. Within
a few days, Mother gave birth to a younger sibling, who tested
positive for methamphetamine and amphetamine at birth.
Mother also tested positive for methamphetamine,
amphetamine, and THC. On July 12, 2016, DCFS obtained a
warrant for removal of all three children, although child
protection workers initially were unable to locate the twins.
DCFS also was unsuccessful in its efforts to locate Father.
¶7 During the child welfare case and the resulting
termination of parental rights case, Father resided in Ohio and
did not enter Utah. Father participated in several hearings and
the termination trial by telephone and through his counsel. On
August 29, 2016, the juvenile court adjudicated the State’s
petition for custody, finding that the children were neglected by
Mother and dependent as to Father and therefore within juvenile
court jurisdiction. Father had a lengthy criminal history dating
from 2009. Father also had several active warrants and pending
charges in Utah. The juvenile court ordered reunification
services for Mother in Utah and ordered an Interstate Compact
on the Placement of Children (ICPC) investigation on Father in
Ohio. At a six-month review hearing on January 5, 2017, the
juvenile court was informed that Ohio had not approved an
ICPC to allow the children to be placed with him due to his
criminal history and outstanding warrants. At the time of the
permanency hearing held on February 2, 2017, Father had not
returned to Utah to resolve the outstanding warrants so as to
pave the way for the children to be placed with him. The
juvenile court terminated Mother’s reunification services and
changed the permanency goal to adoption.
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In re Z.J.
¶8 Following the termination trial, the juvenile court found
that Father left the children in Utah in 2015 and moved to Ohio.
The court found that Father testified that he sent some money to
Mother for support but that it was not consistent. Since August
2016—when the adjudication order was entered—Father “ha[d]
not come to Utah, ha[d] not visited the children and did not pass
an ICPC check of his situation [or] pass a home study.” The
court also noted that Father testified that he would still need a
couple of months to get his life in order before he could provide
care for the children. The juvenile court found,
It would be in the children’s best interests to be
adopted where they will be secure, stable, and
protected from further abuse and neglect and
where their physical and emotional needs are
being met. They are in a legal risk home where
they are bonded, doing well and the family wants
to adopt them.
The juvenile court concluded that it was in the best interest of
the children to terminate parental rights, and it was “strictly
necessary” to do so in order to allow the children to be adopted.
¶9 “Determining a child’s best interest in termination of
parental rights proceedings is a subjective assessment based on
the totality of the circumstances.” In re G.J.C., 2016 UT App 147,
¶ 24, 379 P.3d 58. Therefore, “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.” Id. ¶ 25. “And legally, [i]f
the parent-child relationship has been destroyed by the 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). Thus, “although
the requirement of bifurcated analysis is clearly established by
statute and jurisprudence as a practical matter, where grounds
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In re Z.J.
for termination are established, the conclusion that termination
will be in [a child’s] best interest follows almost automatically.”
Id. (alteration in original) (citation and internal quotation marks
omitted).
¶10 Father concedes that he has not seen the children since
2015, that he provided only inconsistent financial support, that
an ICPC placement was not approved, and that he was not in a
position to provide care for the children at the time of the
termination trial. Father refers to his inaction as merely a “lapse
in involvement in this case that is not an adequate substitute for
proof that he cannot parent.” That claim lacks merit, especially
given the undisputed ground for termination that he abandoned
the children. Whether he might conceivably be able to parent a
child is a hypothetical question that this court is not required to
reach. Similarly, Father’s argument that the juvenile court “failed
to adequately consider the biological relationship” between
Father and his children lacks merit.
¶11 Father has not demonstrated that the best interest
determination was not amply supported. In addition, Father’s
claim that “the right to familial association” was not properly
considered lacks merit. Given the complete absence of any
evidence of a viable parent-child relationship, “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 id. ¶ 24. Here, the juvenile
court’s findings and conclusions demonstrate its consideration of
these relevant factors and the propriety of its decision.
¶12 Affirmed.
20170424-CA 5 2017 UT App 118