State Ex Rel. Gc

2008 UT App 270, 191 P.3d 55, 2008 WL 2761312
CourtCourt of Appeals of Utah
DecidedJuly 17, 2008
Docket20070815-CA
StatusPublished

This text of 2008 UT App 270 (State Ex Rel. Gc) 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
State Ex Rel. Gc, 2008 UT App 270, 191 P.3d 55, 2008 WL 2761312 (Utah Ct. App. 2008).

Opinion

191 P.3d 55 (2008)
2008 UT App 270

STATE of Utah, in the interest of G.C., a person under eighteen years of age.
J.C., Appellant,
v.
State of Utah, Appellee.

No. 20070815-CA.

Court of Appeals of Utah.

July 17, 2008.

*56 Colleen K. Coebergh, Salt Lake City, for Appellant.

Mark L. Shurtleff, atty. gen., and John M. Peterson, asst. atty. gen., Salt Lake City, for Appellee.

Martha Pierce, Salt Lake City, Guardian Ad Litem.

Before GREENWOOD, P.J., McHUGH and ORME, JJ.

OPINION

GREENWOOD, Presiding Judge:

¶ 1 J.C. (Father) appeals from the juvenile court's order terminating his parental rights in his biological child, G.C. Father argues that the trial court erred in admitting evidence of his criminal history related to sex offenses. In addition, Father challenges several of the trial court's factual findings and legal conclusions regarding Father's overall fitness to parent. Finally, Father claims that the improperly admitted evidence of criminal history and sexual assault resulted in cumulative error. The State, on the other hand, argues that the trial court did not err in admitting evidence of Father's sexually violent and criminal past. Furthermore, the State asserts that Father failed to marshal the evidence necessary to effectively challenge the trial court's factual findings and, accordingly, that this court should presume there was no cumulative error. We affirm.

BACKGROUND

¶ 2 G.C. was born to Father and K.C. (Mother) on November 2, 2004. G.C. was first placed with the Division of Child and Family Services (DCFS) when he was approximately eight-months-old, after law enforcement officials went to his home and discovered Mother too intoxicated to properly care for him. DCFS took temporary custody and guardianship of G.C. following this incident. Shortly thereafter, a temporary custody hearing was held, at which G.C. was found to be dependent as to Father,[1] and the court, without full knowledge of Father's history, awarded supervised custody of G.C. to Father.

¶ 3 Subsequently, and despite having recently secured a protective order against Father, Mother again resided with Father and assisted him in caring for G.C. Father and Mother participated in both couples and individual counseling at that time and were also working with peer parents to attempt to improve their parenting abilities. About six months later, Father was taken into custody by the Immigration and Naturalization Services *57 (INS) because of a 1999 conviction for forcible sex abuse. Just ten days after Father was taken into INS custody, Mother overdosed on drugs while caring for G.C. and was arrested. Consequently, G.C. was placed in the care of family friends. Mother was sentenced to five years in the Utah State Prison based on her outstanding DUI warrants.[2] At the time Mother was incarcerated, Father remained in INS custody in Arizona awaiting deportation to Mexico. In light of the anticipated lengthy incarceration of both Mother and Father and the "substantial likelihood that [neither parent] w[ould]. . . be capable of exercising proper and effective parental care [for G.C.] in the near future," the State filed a Verified Petition for Termination of Parental Rights.

Father's Criminal History and INS Detention

¶ 4 Father, a native of Mexico, entered the United States as an illegal immigrant in 1985. In 1987, Father obtained status as a temporary resident and, by 1997, had secured permanent resident status. Father testified during the termination proceedings that he had since applied for citizenship.

¶ 5 In 1996, Father allegedly molested two different fifteen-year-old girls on two separate occasions. While both incidents were investigated by the police, Father was prosecuted for only one. Although Father was charged with second degree felony sexual assault, he pleaded guilty to a third degree felony and served his related sentence. Years later—in early February 2006—Father was taken into INS custody to await deportation to Mexico because of this conviction. As noted above, while Father was incarcerated the State petitioned the court to terminate Mother and Father's parental rights. Father remained incarcerated when the termination trial began. However, while still in INS custody, Father's aforementioned sexual abuse conviction was vacated due to ineffective assistance of counsel.[3] As a result, Father was released from INS custody and the deportation proceedings were terminated in March 2007.

Parental Rights Termination Proceedings

¶ 6 The State initially filed a Verified Petition for Termination of Parental Rights of Mother and Father, based largely on the incarceration of both. When the INS halted Father's deportation proceedings and released him as a result of the reversal of his conviction, the State filed an Amended Verified Petition (Amended Petition) to focus more precisely on other grounds supporting the termination of Father's parental rights. This Amended Petition included, for the first time, a detailed description of Father's history of domestic violence against both Mother and Father's former wife,[4] as well as Father's alleged assault of the two fifteen-year-old girls and conviction with respect to one.

¶ 7 Proceedings to terminate Mother and Father's parental rights continued for seven days over a ten-month period. Mother voluntarily relinquished her parental rights in G.C. after the first day of trial. Thus, the following six trial days focused solely on Father's parental fitness. Much of the evidence produced at trial was testimonial. Mother testified that she sought a protective order against Father—one of two she sought against him—after Father had repeatedly had intercourse with her while she slept. Mother further testified that Father had pushed her into a laundry room and ripped off her necklace during a fight about sex. In addition, both of Father's alleged molestation victims testified in detail about Father's sexually inappropriate behavior toward them. Although Father's testimony contradicted some of the alleged victims' testimony, the trial court specifically found the testimony of each girl to be credible and also noted that "[Father] was not a credible witness."

*58 ¶ 8 Upon conclusion of the proceedings, the trial court made extensive findings of fact related generally to witness credibility and Father's parenting of G.C. Based upon these findings, the trial court concluded that Father is an unfit or incompetent parent and that he has (1) neglected or abused G.C.; (2) "substantially neglected, willfully refused, or. . . been unable or unwilling to remedy the circumstances that caused [G.C.] to be in an out-of-home placement;" (3) failed to make parental adjustment; (4) "made only token efforts to eliminate the risk of serious physical, mental or emotional abuse to [G.C.];" and (5) "substantially and continuously or repeatedly refused or failed to give [G.C.] proper parental care and protection" even after G.C. was temporarily returned to Father's supervised custody. In light of these conclusions, the trial court ordered Father's parental rights in G.C. permanently terminated. Father now appeals.

ISSUE AND STANDARD OF REVIEW

¶ 9 Father argues that the trial court erred in admitting evidence related to Father's alleged sexual impropriety with two fifteen-year-old girls nearly ten years earlier because that evidence was not relevant to his present ability to parent and was unduly prejudicial. Because "[a] trial court's rulings on the admission of evidence . . .

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Cite This Page — Counsel Stack

Bluebook (online)
2008 UT App 270, 191 P.3d 55, 2008 WL 2761312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-gc-utahctapp-2008.