2013 UT App 252

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S TATE OF U TAH

, IN THE INTEREST OF K.M., I.R., N.M., G.C., AND

D.M., persons under eighteen years of age.

K.M.,

Appellant,

v.

S TATE OF U TAH

, Appellee.

Per Curiam Decision

No. 20130549

‐ CA

Filed October 18, 2013

Third District Juvenile Court, West Jordan Department

The Honorable Elizabeth A. Lindsley

No. 1056912

Richard K. Clark, Attorney for Appellant

John E. Swallow and John M. Peterson, Attorneys

for Appellee

Martha Pierce, Guardian ad Litem

Before J UDGES J AMES Z. D AVIS

, C AROLYN B. M C H UGH

, AND

J. F REDERIC V OROS J R

.

PER CURIAM:

¶1 K.M. (Mother) appeals the juvenile court’s June 5, 2013 order

terminating her parental rights. We affirm.

¶2 Mother asserts that there was insufficient evidence to

support the juvenile court’s determination that she is an unfit

parent. Mother also asserts that there was insufficient evidence to

support the juvenile court’s determination that the Division madeIn re K.M.

reasonable efforts to provide her with reunification services. In

order to overturn the juvenile court’s decision as to the sufficiency

of the evidence, “[t]he result must be against the clear weight of the

evidence or leave the appellate court with a firm and definite

conviction that a mistake has been made.” In re B.R.

, 2007 UT 82,

¶ 12, 171 P.3d 435. The juvenile court is in the best position to

weigh conflicting testimony, to assess credibility, and from such

determinations, render findings of fact. See In re L.M.

, 2001 UT App

314, ¶¶ 10

‐ 12, 37 P.3d 1188. We “review the juvenile court’s factual

findings based upon the clearly erroneous standard.” In re E.R.

,

2001 UT App 66, ¶ 11, 21 P.3d 680. A finding of fact is clearly

erroneous only when, in light of the evidence supporting the

finding, it is against the clear weight of the evidence. See id.

Furthermore, we give the juvenile court a “‘wide latitude of

discretion as to the judgments arrived at’ based upon not only the

court’s opportunity to judge credibility firsthand, but also based on

the juvenile court judges’ ‘special training, experience and interest

in this field.’” Id. Finally, “[w]hen a foundation for the court’s

decision exists in the evidence, an appellate court may not engage

in a reweighing of the evidence.” In re B.R.

, 2007 UT 82, ¶ 12.

¶3 The juvenile court determined that Mother is an unfit or

incompetent parent pursuant to Utah Code section 78A

‐ 6

‐ 507(1)(c),

and that it is strictly necessary to terminate Mother’s parental

rights. See Utah Code Ann. § 78A

‐ 6

‐ 507(1)(c) (LexisNexis 2013).

Utah Code section 78A

‐ 6

‐ 508(2)(a) provides that in determining

whether a parent is unfit, the juvenile court shall consider whether

a mental deficiency renders the parent unable to care for the

immediate and continuing physical or emotional needs of a child

for extended periods of time. See id. § 78A

‐ 6

‐ 508(2)(a). Section 78A

‐

6

‐ 508(2)(c) provides that the juvenile court’s determination that a

parent is unfit may also be supported by a parent’s habitual use of

intoxicating liquors or controlled substances. See id. § 78A

‐ 6

‐ 508(2)(c).

¶4 The record supports the juvenile court’s determination that

Mother is an unfit parent due to her significant cognitive

limitations, which render her unable to care for her children’s

20130549

‐ CA 2013 UT App 252 2In re K.M.

physical and emotional needs for extended periods of time. In

addition to Mother’s cognitive limitations, the record demonstrates

that Mother has a history of methamphetamine use and that she

continues to struggle with substance abuse. Mother fails to

demonstrate that the juvenile court erred by determining that she

is an unfit parent.

¶5 The record also supports the juvenile court’s determination

that the Division made reasonable efforts to provide reunification

services in accordance with Utah Code section 78A

‐ 6

‐ 507(3)(a).

Mother received services including, but not limited to,

psychological assessments, substance abuse assessments, child and

family team meetings, peer parenting, supervised visitation, and

therapeutic assistance for her visits with her children. The record

indicates that Mother failed to comply with all of her services and

that she failed to comply with the recommendations from all of her

assessments. The juvenile court determined that it would take

years of intensive services for Mother to be capable of properly

parenting her children, but that even with years of further services,

there were no assurances of success given Mother’s substantial

cognitive limitations. Mother fails to demonstrate that the juvenile

court erred by determining that she was provided with reasonable

services.

¶6 Mother next asserts that there was insufficient evidence to

support the juvenile court’s determination that it was in the

children’s best interest to terminate Mother’s parental rights. If the

juvenile court determines that there are sufficient grounds to

terminate parental rights, in order to actually do so, the court must

next find that the best interests and welfare of the child are served

by terminating the parent’s parental rights. See In re R.A.J.

, 1999 UT

App 329, ¶ 7, 991 P.2d 1118. Furthermore, “when a foundation for

the [juvenile] court’s decision exists in the evidence, an appellate

court may not engage in a reweighing of the evidence.” In re B.R.

,

2007 UT 82, ¶ 12.

¶7 In conducting the best interest analysis, the juvenile court

first determined that Mother was an unfit parent due to a mental

20130549

‐ CA 2013 UT App 252 3In re K.M.

deficiency that rendered her unable to care for her children for

extended periods of time. Additionally, the juvenile court found

that Mother has a history of substance abuse, which renders her

unfit as a parent. The juvenile court also determined that although

Mother loves her children, the factors that render her unfit prevent

her from giving the children the special structure and supervision

the children require.

¶8 Conversely, the children are receiving the special care and

structure that they require in their current placements. The juvenile

court determined that in order for these children to succeed, they

must have a caregiver that can provide a safe and highly structured

environment with very firm boundaries. This level of care in being

met in the children’s current placements. D.M. and G.C. are in legal

risk home where their needs are being met, they are loved, and

their foster parents wish to adopt them. N.M. has been placed in a

loving home where the parents have extensive skills to meet her

special needs.

¶9 I.R. and K.A. have also been placed with loving foster

parents that are also meeting their special needs. K.A.’s foster

parents indicated that they are currently leaving the option of

adoption open, but that they would rather have K.A. stay in their

home than go anywhere else. I.R. has also made tremendous

progress in his foster home where he has learned to show affection

and he has made vast improvements at school. Mother fails to

demonstrate that the juvenile court’s determination that it is in the

children’s best interests to terminate Mother’s parental rights is

against the clear weight of the evidence.

¶10 Accordingly, the juvenile court’s order is affirmed.

20130549

‐ CA 2013 UT App 252 4