2014 UT App 297

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### T H E 

### U T A H 

### C O U RT O F 

### A P P E A L S

S TAT E OF U TA H

, I N TH E I N T E RE S T

OF D.L., J.L., AND L.L.,
P E RS O N SUND E R

E I G H T E E N

Y E ARSOF AG E

.

_______________ M.L. Appellant,

v

. S TAT EOF U TAH

, Appellee.

Per CuriamDeci si on No. 20140864-CA Filed D ecember 26, 2014

Thi rd Di stric t Juveni le Court, Salt Lak e Department

The Honorable Juli e V. Lund No. 1024039
Sheleigh A. Harding, Att or ney for Appellant Sean D. Reyes and John M. Peter son, Atto rneys

for Appellee
Mar tha Pi erce, Guardi an ad Li tem
Before J UD G E S G RE G OR Y K. O R M E, J AM E S Z. D AV I S

, and M I C H E L E M. C H RI S T I A N S E N

.

PER CURIAM :
¶1 M.L. (Father ) appeals the ter minati on of hi s parental rights. We affi rm.
¶2 “[I]n or der to ov ert urn the juve ni le court’s deci si on, the result mus t be again st the clear wei ght of the evidenc e or leave the appellate court wi th a fi rm and defin i te convic tion t hat a mistakeIn re D.L

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has been made.” In re B.R. , 2007 UT 82, ¶ 12, 171 P.3d 435 (ci tation and i nternal quotat i on marks omi tte d). We “rev i ew the juve ni le court’s factual findings ba se d upon the clearly err oneous standard.” In re E.R. , 2001 UT App 66, ¶ 11, 21 P.3d 680. A finding of fact i s clearly err oneous when, i n l ig ht o f the evidenc e supp or tin g the finding, i t i s again st the clear wei ght of the evidenc e. Id. Therefore , “[w] hen a founda tion for the court’s deci si on exis ts i n the evidenc e, an appellate court may not engage i n a rewei ghi ng of the ev i dence.” In re B.R. , 2007 UT 82, ¶ 12.

¶3 Pursu ant to Utah Code se ct ion 78A-6-507, the finding of a single enumerated gr ound wi ll supp or t the ter minati on of parental rights. See Utah Code Ann. § 78A-6-507 (Lexi sNexi s 2012). Therefor e, i t i s suffi ci ent i f the evidenc e supp or ts any of the gr ounds for ter min ation found by the juve ni le court. The court found that Father was an unfi t or i ncompetent parent. See id. § 78A-6-507(1) (c). The court further found that Father had sub stanti ally n eglected, had wi llful ly refus ed, or had been unabl e to remedy the ci rcums tances that cau sed hi s chi ldren to be placed i n an out-of-home placemen t and that there i s a subst anti al li k e l iho od that he wi ll not be capabl e of exer ci sing proper and effecti ve parental c are in the n ear fu ture. See id. § 78A-6-507(1) (d). The juve ni le court al so fo und that i t was stric tly necess ary to ter minate Father ’s parental rights. S e e id. § 78A-6-507(1)

. Fin ally, the court found that it was i n the chi ldren’s best intere st that parental r i ghts be ter minated. See id. § 78A-6-506(3)

. ¶4 The evid e nce supp or ts the juve ni le court’s finding that Father was un a bl e to remedy the ci rcums tances that caus ed the chi ldren to be i n a n o ut -of-home placemen t and that there was a substanti al li kelih ood Father would not be capabl e of exer cis ing p ro per and effecti ve parental care i n the near future. The St ate sti pulat ed that Father completed the requirements of the service plan. Father ar gues that becaus e the s erv i ce plan wasdesi gned to accompl i sh reuni fi cati on, hi s completi on of the plan should result i n reuni fi cati on wi th hi s chi ldren. However , although Father made prog ress i n i mprov i ng hi s parenting ski lls duri ng the twelve

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sess i ons of Parent Chi ld Intensi ve Therapy (PCIT) , the therapist testifi ed that Father would require ten to twelve months o f PC I T twi ce a week to make si gni fi cant changes i n his parenting ab ilit y
. The therapist testifi ed that the addi tional PCIT would i ncrease the probabi li ty of suc ces s but would not guarante e that at the conclu si on of that t herapy, it would be s afe to r eturn t he chi ldren to Father ’s full- tim e care. Although Father could conti nue to make i mprov ement, the therapi st was not confi dent that he could make i mprov ements that would be suffi ci ent to meet th e ch ildr en’s needs. D.L. has an auti sm spectrum di sorder , and all three chi ldren have speci al ne e ds that require hi gh structure, predic table sch edules, hi ghly nurturing care, and a g g ressi ve and asserti ve parenting. In sum, the therapist opin ed that i t would be in the ch i ldren’s best i ntere st to remain wi th the foster fami ly “in a permanent arrangement and

. . . also maintai n a relat i onshi p wi th their bi rt h pare nt s. ” Sim i larly, the casew or ker testifi ed that although Father had been in compli ance wi th services, the

casew or ker di d not beli e v e that Father could sus tain an appropr i ate li ving environment given the chi ldren’s speci al needs and the bi rt h parents’ defi ci ts. The casew or ker agr eed that an i deal si tuation would be for the chi ldren to be adopted by t he foster fami ly but have contact with thei r bi rt h parents.

¶5 Father characterizes the juve ni le court’s find ing s as based solely upon specu lation a bo ut the future. However , the evidenc e suffi ci ently supp or ts the juve ni le court’s finding that although Father made i mprov ements, he was not yet i n a posi tion to reg ain
cus tody of the chi ldre n a t the tim e of the ter minati on tr i al and would not be i n a posi tion t o d o so i n the near future. At best, Father wo ul d require an addi tional ten months of PCIT. The juve ni le court found that the parents received ni neteen months of services i n 2009 to 2011 for the same concerns t hat led to t he 2012

r e mo v a l. Despi te those services and another ni neteen months of services in 2012 to 2014, Father was not i n a posi tion to safely take

cus tody of the chi ldren. The court found,

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Whi le the court recog ni zes that ther e i s a poss ibi li ty that wi th another 10 [to] 1 2 mo nths of services [Fat he r ] mi ght i mprov e [hi s] parenting ski lls, the court finds i t i s unli kely that [he] wo ul d be i n a posi tion at that tim e to meet the speci al needs of [hi s] chi ldren. [The two younger chi ldren] have been under the jur isdi cti on of the juve ni le court for ov er half of thei r short li ves and the services prov i ded to t hei r parents ov er those 36 plus months have not resulted i n permanent change i n their parenting

a b i l i t i e s w h i c h w o u l d e n s u r e t h e i r h o m e environment to be safe and appropriate.

The evidenc e was suffi ci ent to supp or t the gr ound for ter minati on of parental r i ghts under secti on 78A-6-507(1)( d).

¶6 The best intere st finding i s also supp or ted by the ev i dence. The foster fami ly prov i ded the structure, car e , and nurturing

necess ary to address the chi ldren’s speci al needs. Although the

casew or ker stated at tr i al that the det ermin ation to pursue ter minati on and ad o p t io n rat her than permanent cus tody and guardians hi p i n t he foster paren t s t o o k i nto accoun t the di fferi ng financi al consi derat i ons, Father i ncorre ctly asserts that thi s was the sole basi s for the deter minati on. The evidence as a whole demonstrate d that the fo st e r fami ly prov i ded the parenting that would be required to address the speci al needs of these chi ldren, who ha d resi ded i n the foster home for ov er a year -and- a-half

. Sim i larly, the juve ni le court’s conclu si on that i t was stric tly

necess ary to ter minate p a r e ntal rights i s adequately supp or ted becau se i t i s i n the chi ldr e n’ s be st intere sts to be adopted by the foster fami ly.

¶7 Father clai ms for the fi rst tim e on appeal that the Di vis i on of Chi ld and Fami ly Ser vic es fai led to make reasonable efforts towar d reuni fi cati on by not offerin g PCIT earlier i n the case. Thi s clai m was not preserv ed for appeal. Furt hermor e, as the juve ni le court found, t he parents received i n excess of thi rt y-si x months of services in

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multi p l e ca ses. The clai m that the Di vis i on fai led to make reasonable effort s cl early lacks meri t.

¶8 Becaus e “a foundati on for the court’s deci si on exists in t he

e vi d e n c e , ” w e affi rm the juve ni le court’s or der ter minatin g Fa th e r’ s parental r i ghts. See In re B.R. , 2007 UT 82, ¶ 12, 171 P.3d 435.

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