In re D.M.

2020 UT App 59

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF D.M.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.

D.M.,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20190470-CA
Filed April 9, 2020

Third District Juvenile Court, Salt Lake Department
The Honorable Kimberly K. Hornak
No. 1150140

Julie George, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES KATE APPLEBY and DIANA HAGEN concurred.

ORME, Judge:

¶1 Appellant D.M. (Father) challenges the juvenile court’s
decision to terminate his parental rights to his child, D.M.
(Child), arguing that there was insufficient evidence to support
the court’s decision. Because there was sufficient evidence to
support at least one of the grounds for termination upon which
the court relied, we affirm.
 In re D.M.

BACKGROUND

¶2 In October 2017, the State removed Child from his
mother’s (Mother) custody following an incident where Mother,
while arguing with her boyfriend in a car in which Child was
present, “got out . . . and attempted to run in front of a semi as a
suicide attempt.” Mother was taken to a hospital, and Child
“was taken into protective custody by Law Enforcement.” Father
was unable to take custody of Child at that time because he had
“just got out of jail” for violation of a protective order entered as
a result of Father being “physically violent with Mother in front
of Child.”

¶3 The Utah Division of Child and Family Services (DCFS)
took custody and guardianship of Child and placed him with a
foster family. The juvenile court then ordered both Mother and
Father to comply with service plans DCFS created for them. The
court also ordered Father to attend domestic violence classes, to
complete a domestic violence assessment, and to take drug tests
“more than once a month and at random.” The court then set
“[t]he primary goal for” Child as reunification with Mother and
Father “with a concurrent goal of adoption.”

¶4 In May 2018, because Father “was in compliance with”
DCFS’s plan and because his drug tests were coming back
negative, the juvenile court authorized a trial home placement of
Child with Father. During the beginning of this placement,
Father held a full-time job and was able to provide financial
support for Child. Mother, however, again attempted suicide,
and following multiple failures to comply with her service plan,
the court changed the permanency goal for Child to reunification
with only Father.

¶5 In October 2018, approximately two months into Child’s
trial home placement, Father was arrested for driving under the

20190470-CA 2 2020 UT App 59
 In re D.M.

influence (DUI). 1 At that time, Father was on parole for
aggravated assault resulting in serious bodily injury, a crime he
committed against Mother in 2016. In November 2018, as a result
of the DUI, Father’s parole was terminated and he was returned
to prison for “an indefinite term of not less than one year, nor
more than fifteen years.” The juvenile court then terminated
Father’s reunification services and designated adoption as the
sole permanency goal for Child.

¶6 In April 2019, the court held a parental termination trial
for both Father and Mother. 2 By the time of trial, Father had
spent approximately four months in prison and his actual release
date was unclear, although it could potentially be as long as
fifteen years. Father testified that the “matrix guidelines” for his
case suggested that he serve 32 months and that he had served
about 22 months total at the time of trial, meaning he expected to
be released from prison in approximately another ten months.

¶7 Following the termination trial, the juvenile court made
the following findings of fact:

[DCFS] and other agencies have made active efforts
to provide remedial Services and rehabilitative
programs designed to prevent the breakup of the
family. . . . Father did complete drug and alcohol
treatment. However, Father received a DUI which
was the basis for the revocation of his [parole]
during the time when he had a trial home
placement with Child. Father was provided

1. At the time of the arrest, Child was at Father’s home with a
babysitter.

2. Following the trial, the court terminated Mother’s parental
rights to Child. Mother does not appeal that termination, and
from this point we therefore recite the juvenile court’s findings
of fact and rulings only as relevant to Father’s termination.

20190470-CA 3 2020 UT App 59
 In re D.M.

services regarding domestic violence treatment,
but he did not complete that program.

....

It would be in [Child’s] best interests to be adopted
where [Child] will be secure, stable, and protected
from further abuse and neglect and where [Child’s]
physical and emotional needs are being met.

Father had the opportunity and in fact did
complete drug and alcohol treatment, but the fact
that he recently received a DUI in October 2018,
while Child had only been on a trial home
placement with him for two months, is evidence
that the court must consider that he still has a
substance abuse problem and has not addressed
that problem. Father currently is incarcerated at the
State Prison. There is no clear and convincing
evidence when he will be released. Therefore, the
Court must find that he cannot currently care for
his child at this time.

Furthermore, under Utah Code Ann.
§ 78A-6-508(2)(e) the Court shall consider, and it is
required not discretionary, the fact that a parent is
incarcerated for a greater term of more than one
year. The court is required to consider the fact that
Father is incarcerated and cannot care for his child.

....

There is no proof that Father has completed
domestic violence treatment. Domestic violence
was a concern and finding at the origination of this
case. Therefore, the Court cannot find that Father
has addressed that concern such that Child is not at
risk if he were with Father.

20190470-CA 4 2020 UT App 59
 In re D.M.

The court also found that Child had spent “[a]lmost half his life”
with his foster family and that “[t]hey want to adopt him, are
bonded with him, [and Child] is bonded with his foster family.”

¶8 The court then ruled that it was “strictly necessary to
terminate” Father’s parental rights under Utah Code section
78A-6-507(1)(b)–(e), because it found that (1) Father “neglected”
Child; (2) Father is “an unfit or incompetent parent”; (3) Father
“substantially neglected, willfully refused, or has been unable or
unwilling to remedy the circumstances that caused Child to be in
an out of home placement, and there is a substantial likelihood”
that Father would “not be capable of exercising proper and
effective parental care in the near future”; and (4) “there has
been a failure of parental adjustment.” The court also found that
Child “has suffered, or is substantially likely to suffer, serious
detriment should Child be returned to the custody of [Father]”
and, because Father has “not availed [himself]” of the offered
reunification services, “[i]t is in the best interest of [Child] to
terminate [Father’s] parental rights . . . so that Child can be
adopted by a loving family and achieve security, stability and a
sense of permanency.”

¶9 Father appeals.

ISSUE AND STANDARDS OF REVIEW

¶10 Father argues that “there is insufficient evidence to
support the . . . grounds upon which the Court found [his] rights
could be terminated.” The decision “whether to terminate a
parent’s rights presents a mixed question of law and fact.” In re
B.T.B., 2018 UT App 157, ¶ 8, 436 P.3d 206 (quotation simplified),
cert. granted, 440 P.3d 692 (Utah 2019). “In such situations, we
review a trial court’s findings for clear error and its conclusions
of law for correctness, affording the court some discretion in
applying the law to the facts.” Id. (quotation simplified).
Ultimately, due to the “factually intense nature” of the analysis,
a juvenile court’s final decision regarding the termination of

20190470-CA 5 2020 UT App 59
 In re D.M.

parental rights “should be afforded a high degree of deference,”
and we will not overturn such a decision unless it 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.R.,
2007 UT 82, ¶ 12, 171 P.3d 435 (quotations simplified). Of
significance in this case, when a juvenile court relies on multiple
grounds in terminating parental rights, we will affirm when we
are able to sustain one of the grounds and need not consider the
other grounds relied on by the court. See Utah Code Ann.
§ 78A-6-507(1) (LexisNexis 2018) (stating that “the court may
terminate all parental rights with respect to a parent if the court
finds any one” of the enumerated grounds for termination)
(emphasis added); In re F.C. III, 2003 UT App 397, ¶ 6, 81 P.3d
790 (holding that “the juvenile court entered findings supporting
four separate grounds for termination of . . . parental rights” and
that “[a]ny one of these grounds was sufficient, by itself, to
justify termination of . . . parental rights”).

ANALYSIS

¶11 Before a court may terminate parental rights, the State
must establish the facts warranting termination “by clear and
convincing evidence.” 3 Utah Code Ann. § 78A-6-506(3)
(LexisNexis 2018). If the State meets this burden, the juvenile
court is required to employ a two-part test before terminating

3. Our briefing order directed the parties to “specifically address
who bears the burden of any uncertainty regarding Father’s
[prison] release date.” Both parties agree that the State bears the
burden to establish by clear and convincing evidence any
statutory basis used by the juvenile court for termination of
parental rights. See Utah Code Ann. § 78A-6-506(3) (LexisNexis
2018) (stating that the petitioner is required “to establish the facts
by clear and convincing evidence” warranting termination of a
parent’s rights). Accord In re K.J., 2013 UT App 237, ¶ 26, 327 P.3d
1203. We agree and need not discuss this issue further.

20190470-CA 6 2020 UT App 59
 In re D.M.

those rights. In re H.F., 2019 UT App 204, ¶ 13, 455 P.3d 1098.
First, the “court must find that one or more of the statutory
grounds for termination are present, and second,” it “must find
that termination of the parent’s rights is in the best interests of
the child.” Id. (quotation simplified). “As part of the best interest
analysis, Utah law requires courts to analyze whether
termination of a . . . parent’s rights is strictly necessary.” Id. ¶ 14
(quotation simplified). 4

¶12 Three statutory provisions are germane to our analysis
in this case. Utah Code section 78A-6-507 provides the
“[g]rounds for termination of parental rights” and directs that
parental rights are to be terminated only when the court finds
it “strictly necessary” due to “any one” of a long list of
enumerated grounds. The grounds for termination relevant to
this appeal are:

(b) that the parent has neglected or abused the
child;

(c) that the parent is unfit or incompetent;

(d) (i) that the child is being cared for in an
out-of­home placement under the
supervision of the court or [DCFS];

(ii) that the parent has substantially neglected,
willfully refused, or has been unable or
unwilling to remedy the circumstances that

4. On appeal, Father challenges only the sufficiency of the
evidence to support the juvenile court’s findings establishing
grounds for termination of his parental rights. Father does not
challenge the court’s “best interest” or “strictly necessary”
determinations, and thus we have no occasion to consider those
aspects of the court’s analysis.

20190470-CA 7 2020 UT App 59
 In re D.M.

cause the child to be in an out-of-home
placement; and

(iii) that there is a substantial likelihood that the
parent will not be capable of exercising
proper and effective parental care in the
near future;

(e) failure of parental adjustment, as defined in this
chapter.

Utah Code Ann. § 78A-6-507(1)(b)–(e) (LexisNexis 2018).
“Failure of parental adjustment” is defined as a parent being
“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 [DCFS] to return the
child to that home.” Id. § 78A-6-502(2). Finally, when considering
“whether a parent . . . [is] unfit or ha[s] neglected a child,”
id. § 78A-6-508(2)—the grounds for terminating parental rights
found in sections 507(1)(b) and 507(1)(c)—the juvenile court is
required to consider, among other things, the following:

(a) emotional illness, mental illness, or mental
deficiency of the parent that renders the parent
unable to care for the immediate and continuing
physical or emotional needs of the child for
extended periods of time;

...

(c) habitual or excessive use of intoxicating liquors,
controlled substances, or dangerous drugs that
render the parent unable to care for the child;

(d) repeated or continuous failure to provide the
child with adequate food, clothing, shelter,
education, or other care necessary for the child’s

20190470-CA 8 2020 UT App 59
 In re D.M.

physical, mental, and emotional health and
development by a parent or parents who are
capable of providing that care;

(e) whether the parent is incarcerated as a result of
conviction of a felony, and the sentence is of such
length that the child will be deprived of a normal
home for more than one year;

(f) a history of violent behavior;

....

Id. § 78A-6-508(2)(a), (c)–(f).

¶13 This case turns on Father’s argument that the evidence the
State presented was insufficient to support the juvenile court’s
conclusion that he failed to remedy the circumstances of Child’s
removal under Utah Code section 78A-6-507(1)(d). 5 To terminate

5. Father also challenges the juvenile court’s termination on the
grounds that he was unfit and that he neglected Child—the
grounds that implicate the one-year incarceration provision of
Utah Code section 78A-6-508(2)(e). The juvenile court found that
there was “no clear and convincing evidence” of Father’s release
date, and thus Father could not “care for his child at this time.”
The court then explained that under section 508(2)(e), it was
required to consider “the fact that a parent is incarcerated for a
. . . term of more than one year” and “cannot care for his child.”
Father argues that this finding was in error because the court
had concluded that there was “no clear and convincing
evidence” as to the length of his imprisonment. To the extent
that the juvenile court relied on the length of Father’s
incarceration to terminate Father’s rights on the grounds that he
was unfit or had neglected Child, it likely erred because there
was no clear and convincing evidence that Father’s incarceration
would deprive Child of a normal home life for more than a year.
(continued…)

20190470-CA 9 2020 UT App 59
 In re D.M.

a parent’s rights under section 507(1)(d), a court must find that
(1) the child is in an out-of-home placement, 6 (2) the parent has
failed to remedy the circumstances that resulted in that
placement, and (3) “there is a substantial likelihood that the
parent will not be capable of exercising proper and effective
parental care in the near future.” Id. § 78A-6-507(1)(d).

¶14 Father specifically assails the juvenile court’s finding that
“there is a substantial likelihood that [Father] will not be capable
of exercising proper and effective parental care in the near
future.” Father argues that this finding “directly implicates the
issue of how long Father will be unavailable due to his
incarceration,” and because “the Court specifically found that
there is no clear and convincing evidence as to duration,” this
evidence cannot be used to support the court’s termination on
this ground. We are not persuaded.

¶15 When a juvenile court is considering termination for
neglect, under section 507(1)(b), or for unfitness, under section
507(1)(c), it must consider whether the parent will be
incarcerated for more than a year. Id. § 78A-6-508(2)(e). But
nothing in section 507(1)(d), or elsewhere in the Utah Code,
prohibits a juvenile court from considering a parent’s current
incarceration, regardless of length, when determining whether
the parent has failed to remedy the circumstances that led to the

(…continued)
But as previously stated, the court was required to find only one
statutory ground for termination, and by finding that Father
failed to remedy the circumstances of Child’s removal under
section 507(1)(d)—a separate ground that does not require the
court to find any particular length of incarceration—we can
readily uphold the court’s termination on that ground
notwithstanding any error with respect to these other grounds.

6. It is undisputed that Child was living with a foster family in
an out-of-home placement.

20190470-CA 10 2020 UT App 59
 In re D.M.

child’s removal and whether the parent will be able to provide
effective parental care in the near future. See in re A.H., 2009 UT
App 232, ¶ 26, 217 P.3d 278 (“The juvenile court properly
considered Mother’s incarcerations . . . as one aspect of her
inability to parent the Children.”). And while there was no clear
and convincing evidence that Father’s incarceration would
extend for more than one year for purposes of Utah Code section
78A-6-508(2)(e), there was clear and convincing evidence that
Father was incarcerated and that he would remain incarcerated
for a significant period—at least ten more months, as Father
himself conceded. Father’s incarceration therefore was a proper
consideration for the court in determining that Father failed to
remedy the circumstances that led to Child’s removal and that
Father would be unable to care for Child in the near future.

¶16 Father’s incarceration for violating his parole was
evidence of Father being “unable or unwilling to remedy the
circumstances that cause[d Child] to be in an out-of-home
placement,” see Utah Code Ann. § 78A-6-507(d), which
placement partially came about because Father, who had “just
got out of jail,” could not take custody of Child when the State
removed Child from Mother’s custody following her suicide
attempt. And by the time of trial, he was once again incarcerated
and could not care for Child. The evidence of his significant
incarceration—22 months in the recent past with some ten
months yet to be served—was a significant basis on which the
court could find that “there [was] a substantial likelihood that
[Father would] not be capable of exercising proper and effective
parental care in the near future.” See id. (emphasis added).

¶17 Father’s DUI arrest further supports the court’s
termination decision on this ground. The court found that while
Father “did complete drug and alcohol treatment,” the DUI was
“evidence that the court must consider that he still has a
substance abuse problem and has not addressed that problem.”
Again, this evidence shows that Father was unable or unwilling
to remedy the problems that resulted in Child being removed
from his care.

20190470-CA 11 2020 UT App 59
 In re D.M.

¶18 Nor is Father’s incarceration and DUI the only evidence
that supports the court’s termination decision under section
507(1)(d). The court also found that “[d]omestic violence was a
concern . . . at the origination of this case,” and “[t]here is no
proof that Father has completed domestic violence treatment,”
which he was ordered to do more than a year earlier. By failing
to complete the ordered treatment within that time, Father
demonstrated his inability or unwillingness to remedy the
circumstances that caused Child’s out-of-home placement, which
in part was the result of Father being “physically violent with
Mother in front of Child.” This failure further supports the
court’s finding that there was a “substantial likelihood” that he
would not complete the treatment “in the near future” and
would not “be capable of exercising proper and effective
parental care.” See id.

¶19 Given the clear and convincing evidence presented to the
juvenile court establishing Father’s inability to remedy the
circumstances that led to Child’s removal and his inability to
care for Child in the near future, “the termination of [Father’s]
parental rights was consistent with the juvenile court’s findings,
and the findings were not against the clear weight of the
evidence.” See in re A.H., 2009 UT App 232, ¶ 25. Ultimately, we
are not left “with a firm and definite conviction that a mistake
has been made.” See in re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435
(quotation simplified).

CONCLUSION

¶20 There was sufficient evidence before the juvenile court to
support its key findings and those findings support its decision
to terminate Father’s parental rights on the ground that he was
unable or unwilling to remedy the circumstances that caused
Child’s removal and that he would not be capable of remedying
these circumstances in the near future.

¶21 Affirmed.

20190470-CA 12 2020 UT App 59