S.B. v. State

2012 UT App 37, 271 P.3d 827, 2012 WL 400162
Court of Appeals of Utah·Decided February 9, 2012·No. No. 20110626-CA·Published·Cited by 4 cases

Opinion

MEMORANDUM DECISION

DAVIS, Judge:

T1 S.B. (Mother) appeals the juvenile court's termination of her parental rights in R.B. and J.B. (collectively, Children), arguing that the evidence was insufficient to support termination. We affirm.

1 2 The juvenile court found three separate grounds for termination: (1) that Mother is "unfit or incompetent," see Utah Code Ann. § T8A-6-507(1)(c) (2008); (2) that Mother "substantially neglected, wilfully refused, or has been unable or unwilling to remedy the circumstances that cause[d Children] 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)Gi)-(ii); and (@) that Mother failed to make "parental adjustment,"1 see id. § T8A-6-507(1)(e).

3 Mother contends that the evidence presented by the State was insufficient to support the juvenile court's findings. "In determining whether to terminate the relationship between a parent and a child, a juvenile court must find the grounds for termination ... by clear and convincing evidence." In re D.G., 938 P.2d 298, 301 (Utah Ct.App.1997). Such findings will be overturned on appeal "only if they are clearly erroneous." Id. (internal quotation marks omitted).

14 Unfitness may be based on a variety of cireumstances, including a parent's habitual substance abuse and "repeated or continuous failure" to appropriately care for and provide for the needs of her children. See Utah Code Ann. § 78A-6-508(2)(c)-(d) (Supp.2011). Evidence at trial indicated that Mother had a long history of substance abuse; that she had no steady source of income and relied on her paramour for financial support; and that she had been "incarcerated at least three times in the past five years," in total approximately two and a half years or more than half of J.B.'s life, during which time she had been unable to care for Children and had left them in the care of their abusive father and other relatives. The juvenile court found that Mother was an unfit parent, explaining that her actions "indicate[d] a disregard for the welfare of [Children]," that Children "were subjected to several moves and a great deal of instability as a result of the[ir] parents' conduct," that Mother's "repeated incarcerations during the lives of [Children] have had a debilitating effect on their parent child relationship," and that Mother's recent attempts at improvement did not outweigh her history of unfitness. In light of the evidence, these findings were not clearly erroneous.

T5 Although unfitness alone is sufficient to support termination, see Utah Code Ann. § 78A-6-507(1) ("The court may terminate all parental rights with respect to a parent if the court finds any one of the [grounds for termination]."), the evidence was also sufficient to support the juvenile court's finding that Mother had failed to remedy the circumstances leading to removal and was unlikely to do so in the future. Specifically, the fact that Mother had re[830] peatedly been incarcerated during Children's lives, on at least one occasion due to her willful violation of probation, indicates an unwillingness to remedy the cireumstances that led to Children's removal. Furthermore, Mother's "long history of unfitness" with respect to Children, coupled with the fact that she had previously relinquished her parental rights to two older children and had her rights terminated as to four others, suggests that it is unlikely she will be able to remedy those cireumstances in the future. Despite her recent efforts to receive drug treatment and build a relationship with Children, we cannot say that it was clearly erroneous for the juvenile court to find that Mother had "displayed an unwillingness or inability to remedy the situations that led to [Children] being removed from her custody."

T6 Apart from her general argument that the State failed to make out a prima facie case for termination, which we reject, Mother makes two additional arguments against the juvenile court's findings. First, Mother argues that the juvenile court erred by weighing her past conduct with respect to her older children against her present conduct toward Children. Our supreme court has previously held that "[in termination cases, the juvenile court must weigh a parent's past conduct with her present abilities." In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435. However, Mother argues that this analysis should be limited to the history of Children and that the juvenile court should not have considered Mother's conduct with respect to her older children.

T7 Generally, an analysis of a parent's actions with respect to other children not the subject of the petition will relate to neglect allegations based on "another minor in the same home" having been abused or neglected. See, eg., In re J.B., 2002 UT App 267, ¶¶ 17-18, 53 P.3d 958 (internal quotation marks omitted); In re D.G., 938 P.2d at 302. However, we are not convineed that it would necessarily be inappropriate for the juvenile court to have weighed Mother's entire parenting history, including her long history of unfitness with respect to her older children, against her present abilities, particularly in analyzing whether there was "a substantial likelihood that [she would] not be capable of exercising proper and effective parental care in the near future," see Utah Code Ann. § (2008). See In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435 (explaining that in weighing a parent's past conduct against her present abilities, "the juvenile court [is required] to consider the totality of the evidence regarding [the parent]'s parenting"); In re M.L., 965 P.2d 551, 561-62 (Utah Ct.App.1998) (explaining, without explicit restriction to any particular time period, that the parent's present abilities should be weighed against "the amount of time during which the parent displayed an unwillingness or inability to improve his or her conduct" and the parent's "history of problems and failure to remedy").

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S.B. v. State, 2012 UT App 37, 271 P.3d 827, 2012 WL 400162 (Utah Ct. App. 2012).

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