State Ex Rel. T.M.

2006 UT App 435, 147 P.3d 529, 563 Utah Adv. Rep. 3, 2006 Utah App. LEXIS 459
Court of Appeals of Utah·Decided October 19, 2006·No. No. 20060225-CA·Published·Cited by 21 cases

Opinion

OPINION

BILLINGS, Judge:

1 Appellant M.T.M. (Father) appeals the juvenile court's termination of his parental rights in T.M. and B.M. (collectively, the Children). On appeal, Father argues that the evidence was insufficient to support the juvenile court findings that Father is an unfit or incompetent parent and that it is in the Children's best interests that Father's parental rights are terminated. Father also contends the juvenile court erred in determining that the Division of Child and Family Services (DCFS) made reasonable reunification efforts. We affirm.

BACKGROUND

T2 Father and K.M. (Mother) are the natural parents of the Children. Father and Mother married in October 1999, and Mother gave birth to TM. in 2000 and B.M. in 2008.

T3 On August 14, 2004, police arrested Mother for domestic violence assault in the presence of a child. Although Mother informed DCFS that the assault was an isolated incident, Mother and Father have a history of domestic violence in which they both participated. In a 1996 psychological evaluation, Mother reported that Father often abuses her, and the psychologist described Mother and Father's relationship as dysfunctional. On August 3, 2004, Father attempted to hang himself in the garage when he learned that Mother was seeing another man.

T4 Both Mother and Father have used drugs. On August 18, 2004, Mother and Father submitted to drug tests in which they both tested positive for methamphetamine. As a result of Mother's and Father's drug use, the Children were exposed to methamphetamine and tests revealed that both TM. and B.M. retained the drug or its metabolite in their bodies.

5 Consequently, in late August 2004, the State filed a petition alleging neglect or abuse of TM. and B.M. and requesting custody of the Children. On September 30, 2004, the juvenile court found that Mother and Father had neglected and abused the Children. The court awarded Father temporary custody but required that DCFS provide protective supervision services, supervising all time Mother spends with the Children. Additionally, under the juvenile court order, the court required Mother and Father to complete a parenting course; undergo substance abuse and psychological evaluations and participate in any counseling recommended by those evaluations; remain drug and alcohol free; submit to random drug and aleohol tests; partake in domestic violence counseling; maintain stable housing and income; keep. their homes appropriately clean; and maintain contact with DCFS, signing any necessary release forms and notifying DCFS of any changes in address or employment. The court scheduled a review of the matter for February 17, 2005.

T6 On November 8, 2004, the State requested an early review because Mother and Father had violated the juvenile court's order that DCFS supervise all time that Mother [531] spends with the Children. Specifically, Father continued to regularly permit Mother to tend the Children while he was at work, despite warnings by DCFS that such exposure was prohibited. Mother admitted that during the time she cared for the Children she was using methamphetamine on a daily basis.

T7 At a November 10, 2004 hearing, the juvenile court removed the Children from Father's custody. The court placed the Children in DCFS custody for foster placement and ordered Mother and Father to pay child support for the period the Children were not in Mother's or Father's custody. After losing temporary custody of the Children, Father relapsed and began using drugs again. The Children remain in foster care.

18 On February 17, 2005, at the court-scheduled review, the juvenile court ordered that Mother and Father have no contact with one another because they had continued to engage in acts of domestic violence. Over the following months,1 the juvenile court periodically reviewed the matter and twice extended Father's reunification services because of his progress and adherence to the treatment plan. However, on October 20, 2005, the court terminated reunification services for both parents.

{ 9 Several months later, on March 1, 2006, the juvenile court terminated Mother's and Father's parental rights on grounds that they are unfit or incompetent parents and that termination of parental rights is in the Children's best interests. Specifically concerning Father, the court found that although Father completed most of the treatment plan-albeit "a significant portion ... only in the eleventh hour[,] ... during the last two or three months"-and remained sober, he has been unable to quit his self-described " 'addiction'" to Mother, and his "unwillingness to give up his ongoing relationship with [MJother prevents him from being an adequate father and endangers the [CJhildren." The court described Father's specific acts of endangerment as allowing Mother to regularly care for the Children in violation of a court order and despite knowing Mother was using methamphetamine on a daily basis; continuing to engage in domestic violence with Mother; temporarily returning to drug use because of his relationship with Mother; "openly and blatantly" violating court orders, including protective orders; and seeking Mother's help over, and in rejection of, other family members' offers of assistance. Although the juvenile court acknowledged Father's testimony that if it "came down to a choice" between Mother and the Children, he would choose the Children, the court found that Father's actions-taken despite knowing "those decisions could place the [Clhildren at risk of further neglect, cause him to lose custody of his children, prevent him from regaining custody, or ecause him to lose the[ Children] permanently"-demonstrated that Father had effectively prioritized his relationship with Mother over the protection of the Children.

10 Further, the juvenile court found the State had demonstrated sufficient grounds for termination of both Mother's and Father's rights because the parents had "neglected or abused the [CJhildren by engaging in domestic violence in the [CJhildren's presence [and] by exposing them to methamphetamine to the extent that the [CJhildren retained the drug or its metabolite in their bodies," see Utah Code Ann. § 78-82-407(1)(b) (Supp.2006); "the parents' habitual use of controlled substances rendered them unable to properly care for the {CJhildren," see id. § 78-3a-408@)(c) (Supp.2006), and "the [CJhildren were placed in custody of DCFS and the parents failed to substantially comply with the terms and conditions of the treatment plan within six months," see id. §§ 78-83a-407(1)(e),-408(5).

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State Ex Rel. T.M., 2006 UT App 435, 147 P.3d 529, 563 Utah Adv. Rep. 3, 2006 Utah App. LEXIS 459 (Utah Ct. App. 2006).

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