2017 UT App 80
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF D.V. AND A.V.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
J.V.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Opinion
No. 20170194‐CA
Filed May 11, 2017
Third District Juvenile Court, Salt Lake Department
The Honorable Charles D. Behrens
No. 1094724
Sheleigh A. Harding, 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 J.V. (Father) appeals the termination of his 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
In re D.V.
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.’” 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 Father’s parental rights. The juvenile court
concluded that Father 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 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 Father 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 [Father] 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)
(Supp. 2016), and that it was strictly necessary to terminate
parental rights. After finding grounds for termination, the court
concluded it was in the child’s best interest that Father’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
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
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In re D.V.
find that the best interests and welfare of the child are served by
terminating . . . parental rights.” Id. 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) (LexisNexis 2012). Father challenges the sufficiency of the
evidence to support the grounds for termination and also
challenges the best interest determination.
¶5 Father was incarcerated in the Utah State Prison for the
entire length of the case, and he does not have a parole hearing
date until June of 2019. Father was able to participate in the care
of A.V. during the early months of her life, but he had never met
D.V. Father testified that he has been incarcerated for most of the
last twenty years. The juvenile court made a detailed finding on
Father’s extensive criminal history. The juvenile court also found
that, “[d]ue to the father’s felony conviction and ongoing
incarceration the children would be deprived of a normal home
life. A normal home life would be one where the father would be
present to be the father.”
¶6 Father argues that the sole basis for the findings of his
parental unfitness and parental neglect was his lengthy
incarceration. He asserts that the children were not deprived of a
normal home for over one year prior to the State’s seeking
termination and “were only outside of a normal home for a
period of 4.5 months.” This argument considers the children’s
placement in a foster home in September 2016 as the disruption
of their normal home. Father argues that a parent’s incarceration
only rises to the level of neglect or unfitness when the children
“have been deprived of a normal home for over one year.”1 Utah
1. Father also challenges the ground for termination under Utah
Code section 78A‐6‐507(1)(d) on the same basis, although Utah
Code section 78A‐6‐508(2)(e) makes no reference to that separate
ground.
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In re D.V.
Code section 78A‐6‐508(2), describing evidence to support the
grounds for termination, states, in part,
In determining whether a parent or parents are
unfit or have neglected a child the court shall
consider, but is not limited to, the following
circumstances, conduct, or conditions: . . .
(e) whether the parent is incarcerated as a result of
conviction or a felony and the sentence is of such
length that the children will be deprived of a
normal home for more than one year.
Utah Code Ann. § 78A‐6‐508(2)(e) (LexisNexis Supp. 2016).
¶7 We first note that the language of this section does not, as
Father suggests, require proof that the children were deprived of
their normal home for one year before termination is sought.
Indeed, the statute is written in the future tense, not the past
tense. Father argues that the sole basis for the finding of his
parental neglect or unfitness was his extended incarceration.
This argument ignores the totality of the juvenile court’s
findings. The juvenile court found that Father “has spent the last
twenty years of his life in and out of prison for drug offenses,”
that he participated in the care of A.V. for only the first few
months and has never met D.V., and that he had an extensive
criminal history, as listed in the findings. The court also found
that the evidence supported the ground for termination
described in section 78A‐6‐507(1)(d), pertaining to children who
are being cared for in an out‐of‐home placement. Thus, the
court’s decision rested on more than just the length of Father’s
prison term.
¶8 Citing a hypothetical situation discussed in footnote three
of In re D.B., 2002 UT App 314, 57 P.3d 1102, Father also argues
that the juvenile court erred in its finding that a normal home is
one in which Father would be present. Father contends there is
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In re D.V.
no requirement that the incarcerated parent be in the home in
order for a “normal home life” to exist. Footnote three states,
“Thus, a felon convicted and sent to prison for many years could
not have his parental right terminated under subsection (e) if his
child is not in DCFS custody, or possibly, even if in DCFS
custody, simply went on living in the case of other relatives.” Id.
¶ 11 n.3. However, this court need not determine whether the
juvenile court erred in finding that a normal home is one that
includes Father because this case does not present similar facts to
those discussed in the footnote.
¶9 Moreover, the father in In re D.B. did not dispute that the
child was in DCFS custody, that he had been convicted of a
felony, “and that due to his incarceration, the daughter would be
deprived of a normal home for more than one year.” Id. ¶ 9. The
father argued that “incarceration for a period of more than a
year, standing alone, is [insufficient] to justify termination of
parental rights.” Id. ¶ 10 (internal quotation marks omitted). But
this court explained that in making this argument, the father
misconstrued section 508(2)(e), which actually focuses on
whether the child will be “’deprived of a normal home for more
than one year’ as a result of her parent’s felony conviction.” Id.
(emphasis in original).
In other words, when the child of a convicted felon
remains in, or will soon return to, her “normal
home,” despite the parent’s incarceration, the fact
that the parent may be incarcerated for over a year
does not, by itself, justify termination of that
parent’s rights under subsection (e). Only in cases
akin to this one, where the other parent’s rights
have been terminated or restricted and the [child]
is in the custody of DCFS and placed other than in
her normal home, can a court rely on subsection (e)
to find that a parent’s incarceration renders him
unfit. And in reality, it is the child’s deprivation of
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In re D.V.
a normal home for a period of more than a year
that renders the incarcerated parent unfit, not the
incarceration itself.
Id. ¶ 11 (footnote omitted).
¶10 The facts of the present case cannot be distinguished from
the facts of In re D.B., and like In re D.B., this case does not
present the situation described in the footnote. The children
were removed from Mother’s custody for the third time in
August 2016, were placed in DCFS custody, and have been
residing in a foster home since September 2016. The State has
successfully petitioned to terminate Mother’s parental rights.
After removal, the children did not simply continue to reside
with relatives in their normal home, and they will not return to
the home from which they were removed. The children will be
deprived of their normal home under circumstances similar to
those that supported the findings of parental unfitness and
neglect in In re D.B.
¶11 Father also challenges the best interest determination.
Father supports the position of Mother that an award of
permanent custody and guardianship to a maternal relative
would preserve the bond to Mother and keep the children safe.
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. The juvenile court’s best interest
determination is supported by sufficient evidence.
¶12 Because “a foundation for the court’s decision exists in the
evidence,” see id., we affirm.
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