Opinion
Case No. 20100144-CA.
Filed April 15, 2010. Not For Official Publication
Appeal from the Third District Juvenile, Salt Lake Department, 533088 The Honorable Andrew A. Valdez.
Sheleigh A. Harding, Salt Lake City, for Appellant Mark L. Shurtleff, Carol L.C. Verdoia, and John M. Peterson, Salt Lake City, for Appellee.
Martha Pierce, Salt Lake City, Guardian Ad Litem.
Before Judges Davis, Thorne, and Roth.
MEMORANDUM DECISION
J.J.R. (Father) appeals the termination of his parental rights to K.N. Father challenges the sufficiency of the evidence to support both grounds for termination — abandonment and neglect — and the best interests determination. "Because of the factually intense nature of [a parental fitness] inquiry, the juvenile court's decision should be afforded a high degree of deference." In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. We overturn the juvenile court's decision "only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence." Id. "When a foundation for the court's decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence."Id.
The juvenile court found that Father was deported from the United States in 2001 and again in either 2003 or 2004. At the time of the termination trial, Father had had no contact with K.N. for over ten years. He was being held for illegal reentry into the United States and was facing a possible third deportation. He had provided no financial, emotional, or moral support for K.N. Father had no relationship with K.N. He had been precluded from communication with K.N. by Mother. Nevertheless, the juvenile court found that Father's conduct showed "a conscious disregard for his obligations as a parent."
It is prima facie evidence of abandonment that a parent has failed to communicate with the child by mail, telephone or otherwise for six months. See Utah Code Ann. § 78A-6-508(1)(b) (2008). If "a prima facie case of abandonment is shown, the burden shifts to the parent to rebut abandonment." In re M.S., 815 P.2d 1325, 1329 (Utah Ct. App. 1991). If the parent fails to rebut the prima facie case, the court then considers the child's best interests in determining whether to terminate parental rights.See Utah Code Ann. § 78A-6-503(2). The juvenile court's undisputed finding that Father had not communicated with K.N. for over ten years establishes a prima facie case of abandonment. Father's claim that his attempts at contact were frustrated by Mother is also undisputed. However, the juvenile court in the present case found that Father's conduct demonstrated "a conscious disregard for his parental obligations to this child and that conduct . . . has been his incarceration [and] his reentry into this country illegally, which has resulted in his deportation two times and possibly three times." The juvenile court found that Father had no relationship with K.N. as a result of his conduct. The juvenile court's determination that Father abandoned K.N. is amply supported by the evidence.
Father contends that there was insufficient evidence that he abandoned K.N. because Mother prevented him from contact with K.N. Father relies upon the dissenting opinion in In re T.R.E., 2009 UT App 168, 213 P.3d 877, as support for this claim.See id. ¶ 21 (Thorne, J., dissenting). However, Judge Thorne's dissent specifically noted that the juvenile court inT.R.E. "relied solely on [Utah Code] section 78A-6-508(1)(b), which identifies as prima facie evidence of abandonment a parent's fail[ure] to communicate with a child by mail, telephone, or otherwise for six months." Id. ¶ 13. Thus, the juvenile court in T.R.E. did not apply the definition of abandonment as "conduct on the part of the parent which implies a conscious disregard of the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship." Id. In contrast, the juvenile court here also found that Father had demonstrated "conscious disregard" of his parental obligations to K.N. As noted in Judge Thorne's dissent in T.R.E., the dissent's interpretation "place[d] no barriers to a finding of abandonment" based upon "the general `conscious disregard' test."Id. ¶ 18.
Father next claims that there was insufficient evidence to support a finding that Father neglected K.N. because Father has not had the opportunity to function as a parent. It is not necessary to consider the ground of neglect because abandonment is sufficient as a ground for termination. See Utah Code Ann. § 78A-6-507(1) (stating that the court may terminate parental rights upon a finding of any one of the enumerated grounds). Nevertheless, it is undisputed that Father has failed to communicate or provide any financial, emotional, or other support to K.N. He was thus unavailable to care for her based upon his conduct that caused him to be deported on two previous occasions and he faced a possible third deportation. The evidence was therefore sufficient to support the additional ground of neglect.
Father's challenge to the best interests determination relies upon a claim that K.N. wants a relationship with him and that her best interests would be served by placing her in a permanent guardianship with the foster mother without terminating Father's residual rights. K.N. has flourished in the foster home where she is loved and has benefitted from structure, discipline, and protection from neglect and abuse. Father has not challenged any specific factual findings regarding K.N.'s progress in the foster home or the ultimate finding that the foster parents of K.N. and her siblings "have provided for their daily care, support, nurturing, stability, medical care, and emotional care that the children need." Father's challenge to the prospective adoptive home as unsuitable because the foster mother is single was appropriately weighed by the juvenile court. Finally, Father's claim that the State's evidence of best interests was insufficient because K.N. was not placed on the stand to testify that she would consent to an adoption is without merit. Although K.N.'s consent may be required in a later adoption proceeding, the juvenile court correctly determined that her consent was not required in the termination proceeding.
We affirm the decision terminating Father's parental rights.
James Z. Davis, Presiding Judge, William A. Thorne Jr., Judge, Stephen L. Roth, Judge.