Opinion
Case No. 20000858-CA.
Filed February 15, 2001. (Not For Official Publication)
Appeal from the Third District Juvenile, Salt Lake Department, The Honorable Joseph W. Anderson.
John E. Laherty, Salt Lake City, for Appellant.
Mark L. Shurtleff and Carol L.C. Verdoia, Salt Lake City, for Appellee.
Martha Pierce, Salt Lake City, Guardian Ad Litem.
Before Judges Jackson, Bench, and Davis.
MEMORANDUM DECISION
In determining whether a parent is unfit, the trial court shall consider "if the parent is incarcerated as a result of conviction of a felony, and the sentence is of such length that the child will be deprived of a normal home for more than one year." Utah Code Ann. § 78-3a-408(2)(e) (Supp. 2000). Unfitness is grounds for terminating parental rights. See Utah Code Ann. § 78-3a-407(3) (1996); see also In re E.H., 880 P.2d 11, 14 (Utah Ct.App. 1994) (concluding unavailability of parent due to incarceration is grounds for terminating parental rights). At the time of trial, E.B. had been incarcerated for approximately eight months. A deputy district attorney testified that E.B. would not be available to care for her children for one to two years because after she is paroled, the date of which had not been determined, she is required to live at an inpatient drug facility. E.B. agreed that she would not be able to care for her children for one to two years. Thus, the trial court did not abuse its discretion in determining that section 78-3a-408(2)(e) applies and is grounds to terminate E.B.'s parental rights.
The trial court also determined that it is in the children's best interests to have their mother's parental rights terminated. See Utah Code Ann. § 78-3a-402 (1996) (stating if a parent is found to be unfit, "the court shall then consider the welfare and best interest of the child"). The mother has a history of drug abuse and an inability to maintain a steady job or housing. Since the mother's incarceration, the children have lived with their paternal grandmother and aunt, who has taken primary responsibility for the children. The children's parents testified that if they could not care for their children, the aunt would be a good choice. Others testified that the aunt has a stable job and housing situation and that she and the children have bonded. Moreover, the aunt has expressed a willingness to adopt the children.
The children's father, who did not appeal, also had his parental rights terminated. He is incarcerated and is not expected to be paroled for ten years.
Accordingly, the trial court is affirmed.
Norman H. Jackson, Associate Presiding Judge, Russell W. Bench, Judge, James Z. Davis, Judge.