S.K. v. State

2013 UT App 288, 317 P.3d 964, 2013 WL 6328560
CourtCourt of Appeals of Utah
DecidedDecember 5, 2013
DocketNo. 20130242-CA
StatusPublished

This text of 2013 UT App 288 (S.K. v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
S.K. v. State, 2013 UT App 288, 317 P.3d 964, 2013 WL 6328560 (Utah Ct. App. 2013).

Opinion

Memorandum Decision

DAVIS, Judge:

T1 S.K. (Mother) appeals the juvenile court's termination of her parental rights to J.F., AF., and AF. (the Children). We affirm.

T2 Mother raises two issues on appeal. First, she argues that the juvenile court's determination that termination of her parental rights was in the Children's best interests was not supported by sufficient evidence.2 Second, Mother contends that the juvenile court's denial of her motion for new counsel constituted prejudicial error. We address each argument in turn.

I. Best Interests Determination

T3 Mother argues that the juvenile court "implicit[ly]" and exclusively relied on its finding of grounds for termination to support its best interests determination and failed to consider "unrefuted evidence of the loving and beneficial developed relationship between [her] and the [Children]."3 We review Mother's challenge to the juvenile court's best interests determination for an abuse of discretion. See In re Adoption of T.H., 2007 UT App 841, 19, 171 P.3d 480.

T4 Mother is correct that her parental rights cannot be terminated solely upon the juvenile court's finding of grounds for termination and that a finding of grounds does not necessarily diminish the import of "a positive and strong parent-child bond." Cf. In re D.R.A., 2011 UT App 897, ¶¶ 18, 21, 266 P.3d 844 (holding that though the mother admitted that there were grounds to support termination of her parental rights, "the benefits of allowing" the mother's relationship with her teenage daughter "to continue [were] too palpable, and the benefits of severing it too speculative for us to agree that the State [had] shown by clear and convine-ing evidence that termination [was] in the best interest of [the] child"). However, we conclude that, on its own, this loving relationship does not mean termination is not in the [966]*966best interests of the Children. We disagree that the juvenile court failed to consider or place sufficient weight on the evidence of the loving relationship shared by Mother and the Children or any other factors it had not already considered in its findings of grounds for termination.

¶ 5 Where, as here, the children are not in the parent's physical custody, the juvenile court must consider, at a minimum, the following factors in reaching its best interests determination:

(a) the physical, mental, or emotional condition and needs of the child and his desires regarding the termination, if the court determines he is of sufficient capacity to express his desires; and
(b) the effort the parent or parents have made to adjust their cireumstances, conduct, or conditions to make it in the child's best interest to return him to his home after a reasonable length of time, including but not limited to:
(i) payment of a reasonable portion of substitute physical care and maintenance, if financially able;
(ii) maintenance of regular parent-time or other contact with the child that was designed and carried out in a plan to reunite the child with the parent or parents; and
(iii) maintenance of regular contact and communication with the custodian of the child.

Utah Code Ann. § 78A-6-509(1) (LexisNexis 2012).

16 In consideration of this test, the juvenile court noted that since the court became involved in the case in April 2008, the Children have been exposed to multiple incidents of domestic violence between Mother and the Children's father (Father). At least one of the Children has been in therapy, and her therapist expressed great concern about the child's ongoing exposure to verbal or physical fighting between Mother and Father.

T7 The juvenile court indicated that the initial "problems of domestic violence" and later-discovered problems of substance abuse "have continued" through the years and resulted in multiple neglect findings despite the Division of Child and Family Services's (DCFS) reunification efforts and the juvenile court's repeated orders for services, domestic violence counseling, and drug and alcohol treatment. Mother repeatedly failed to respond to services; did not complete counseling; skipped at least three drug tests; and regularly violated the court's no-contact order as to Father, exposing the Children to additional incidents of domestic violence.

T8 On the other hand, the juvenile court described Mother's relationship with the Children as affectionate, tender, and responsive, stating that it "does not go unnoticed" that "there is a connection between these kids and their mom." However, the juvenile court also described the Children's placement with their paternal grandparents as a safe, loving, and structured environment where "their needs are being met." The court found that the grandparents are willing to adopt the Children, are willing to consider allowing Mother and Father contact with the Children based on "the mantra of what's best for the kids," and would not give their son, Father, special treatment. See generally In re D.R.A., 2011 UT App 397, ¶¶ 11, 15, 21, 266 P.3d 844 (considering both the mother's loving relationship with her daughter and the daughter's limited adoption prospects before concluding that termination of the mother's parental rights was not in the best interests of her daughter).

T 9 The juvenile court concluded that "[rle-turning the [CJhildren [to Mother] would ere-ate a substantial risk of detriment to the [Clhildren's physical and emotional well-being" based on Mother's repeated violations of its no-contact order as to Father as well as "her failure to respond to services, her failure to complete domestic violence counseling and drug and alcohol counseling, and her repeated failure to provide her children with what they needed." The court noted that it did not make its ruling "lightly" but that years of efforts to break Mother's patterns of destructive behavior had not worked, ultimately making termination "in the long-term best interest of [the Children]."

{10 Accordingly, "[wlhile the juvenile court did not expressly refer to the statute [967]*967when considering [the best interests] factors, the court's findings are replete with detailed discussion of the offered services, the [CJhil-dren's conditions and needs, and [Mother's] efforts." See In re S.T., 928 P.2d 393, 400 (Utah Ct.App.1996). That there is some overlap between the juvenile court's findings supporting grounds for termination and its findings supporting the best interests analysis is of little import. See id. at 399-400 (explaining that the bifurcated analysis involved in parental termination cases "does not require courts to separately hear and consider evidence pertaining to unfitness and best interests" nor does it require "two different sets of findings and conclusions")4 Accordingly, the juvenile court did not abuse its discretion when it determined that termination of Mother's parental rights was in the best interests of the Children.

IL Denial of Mother's Motion for Substitute Counsel

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Related

State v. Scales
946 P.2d 377 (Court of Appeals of Utah, 1997)
State v. Wulffenstein
733 P.2d 120 (Utah Supreme Court, 1986)
Gardner v. Holden
888 P.2d 608 (Utah Supreme Court, 1994)
State v. Lovell
1999 UT 40 (Utah Supreme Court, 1999)
State v. Pando
2005 UT App 384 (Court of Appeals of Utah, 2005)
In Re Adoption of T.H.
2007 UT App 341 (Court of Appeals of Utah, 2007)
A.A. v. State
2011 UT App 397 (Court of Appeals of Utah, 2011)
N.T. v. State
928 P.2d 393 (Court of Appeals of Utah, 1996)

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Bluebook (online)
2013 UT App 288, 317 P.3d 964, 2013 WL 6328560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sk-v-state-utahctapp-2013.