2016 UT App 145

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF E.M.J.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

A.M.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Memorandum Decision

No. 20150614-CA

Filed July 14, 2016

Third District Juvenile Court, Salt Lake Department

The Honorable Mark W. May

No. 1091549

Liza M. Jones, Attorney for Appellant

Sean D. Reyes, John M. Peterson, and Carol L.C. 

Verdoia, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

SENIOR JUDGE PAMELA T. GREENWOOD authored this

Memorandum Decision, in which JUDGES J. FREDERIC VOROS JR.

and MICHELE M. CHRISTIANSEN concurred.

1

GREENWOOD, Senior Judge:

¶1 A.M. (Father) appeals the juvenile court’s termination of 

his parental rights in E.M.J. We affirm.

 

1. Senior Judge Pamela T. Greenwood sat by special assignment 

as authorized by law. See generally Utah R. Jud. Admin. 11-

201(6).
In re E.M.J.

20150614-CA 2 2016 UT App 145

¶2 E.M.J. was removed from Father’s custody in October 

2013 after Father ‚had a medical incident involving psychiatric 

medicine that involved physical restraint by the police.‛ 

Following a hearing, the juvenile court adjudicated E.M.J. 

neglected by his mother2 and dependent as to Father. The 

juvenile court set a permanency goal for E.M.J. of reunification 

with Father and ordered Father to complete mental health 

therapy and follow all recommendations of his therapist. In 

connection with his treatment, Father was required to undergo 

periodic drug testing. After making positive progress for several 

months, Father began skipping drug tests and missing visits 

with E.M.J. He then failed to appear at a review hearing in 

August 2014, at which point the juvenile court ordered that 

Father’s visitation be therapeutically supervised at the discretion 

of the therapist. The juvenile court expressed confusion at 

Father’s behavior, observing that Father ‚was very close to 

having [E.M.J.] returned but had begun to ‘shoot himself in the 

foot’ by failing to take drug tests and missing visits.‛

¶3 In October 2014, the juvenile court held a permanency 

hearing. Father again failed to appear. At the permanency 

hearing, it was reported that Father had completed his 

individual treatment but had not taken any drug tests since July 

2014 and had only two visits with E.M.J. since the August review 

hearing, neither of which had gone well. The therapist expressed

his opinion that visits between Father and E.M.J. should be 

terminated. Based on this information, the juvenile court 

terminated reunification services and changed E.M.J.’s 

permanency goal to adoption. However, the court reaffirmed its 

prior order regarding visitation, which permitted Father to have 

therapeutically supervised visitation with E.M.J. at the 

therapist’s discretion. A few days later, the State filed a petition 

 

2. E.M.J.’s mother voluntarily relinquished her parental rights in 

December 2014 and has no involvement in this appeal.
In re E.M.J.

20150614-CA 3 2016 UT App 145

to terminate Father’s parental rights, in which it raised several 

grounds in support of termination.

¶4 Following the permanency hearing, E.M.J.’s therapist and 

E.M.J.’s foster mother informed Father that his visitation rights 

had been discontinued.

3 Relying on this information, Father 

moved to California in November to live with his parents and 

made no attempt to contact E.M.J. for several months, although 

Father’s parents had consistent phone contact with E.M.J. and 

sent letters and gifts. When Father finally learned that there was 

no court order terminating visitation, he made a single phone 

call to E.M.J.’s caseworker in April 2015 to arrange visitation but

then failed to follow up.4

¶5 In January 2015, the State amended its petition to include 

the ground of abandonment and ultimately restricted its 

arguments at the termination trial to that ground. The

termination trial was held in June 2015. At the trial, the State 

asserted that Father had abandoned E.M.J. by failing to 

communicate with him for more than six months. See Utah Code 

 

3. Father also testified that his attorney informed him that 

visitation had been terminated, but as the attorney did not testify 

at the termination trial, the juvenile court did not find Father’s 

testimony to be credible.

4. There was a factual dispute as to whether the caseworker was 

supposed to call Father back after contacting the therapist or 

whether Father was supposed to call the caseworker. The 

juvenile court found the caseworker’s testimony more credible 

than Father’s on this point but observed that it was ultimately 

irrelevant who was supposed to make the follow-up call because 

a ‚‘dedicated’ parent would have continued to call the worker 

until the issue was resolved.‛
In re E.M.J.

20150614-CA 4 2016 UT App 145

Ann. § 78A-6-508(1)(b) (LexisNexis Supp. 2015).5 Father 

responded that he stopped contacting E.M.J. only because he 

was misinformed as to his visitation rights. The juvenile court 

determined that the State had made a prima facie showing of 

abandonment and that Father’s evidence had failed to overcome 

that showing. The court further determined that termination was 

in E.M.J.’s best interests. Accordingly, the juvenile court 

terminated Father’s parental rights. Father now appeals.

¶6 Father first asserts that the juvenile court employed the 

wrong procedural framework and standard of proof in 

evaluating whether he abandoned E.M.J. Whether the juvenile 

court applied the correct standard of proof is a question of law, 

which we review for correctness. See In re S.H., 2005 UT App 324, 

¶ 10, 119 P.3d 309.

¶7 ‚[A] showing of abandonment requires satisfaction of a 

two-part test.‛ In re T.E., 2011 UT 51, ¶ 20, 266 P.3d 739. The 

petitioner must demonstrate, first, ‚that the respondent parent 

has engaged in conduct that implies a conscious disregard for 

his or her parental obligations‛ and, second, ‚that the 

respondent parent’s conduct led to the destruction of the parent–

child relationship.‛ Id. A parent’s failure ‚‘to communicate with 

the child by mail, telephone, or otherwise for six months’‛ 

constitutes prima facie evidence of abandonment, creating ‚a 

presumption that the respondent parent has abandoned the 

child.‛ Id. ¶ 21 (quoting Utah Code Ann. § 78A-6-508(1)(b)). The 

burden then shifts to the respondent parent to rebut the 

presumption by presenting ‚evidence indicating that [the 

parent] did not consciously disregard [his or her] parental 

obligations or that [his or her] conduct did not lead to the 

destruction of the parent–child relationship.‛ Id. ¶ 22. In doing 

 

5. We cite the most current version of the Utah Code for the 

reader’s convenience.
In re E.M.J.

20150614-CA 5 2016 UT App 145

so, ‚respondent parents are not required to demonstrate by clear 

and convincing evidence that they did not abandon the child‛ 

but ‚need produce only enough evidence to persuade the 

juvenile court that the petitioner seeking to terminate [the 

respondent parent’s] parental rights has not established 

abandonment by clear and convincing evidence.‛ Id. ¶ 23. The 

court is required to ‚consider the totality of the evidence‛ to 

determine whether there is ‚clear and convincing evidence to 

support a finding of abandonment.‛ Id.

¶8 Father asserts that the juvenile court improperly required 

him to disprove abandonment by clear and convincing evidence 

because it ‚evaluated Father’s evidence in a manner that 

required him to show that either he did in fact communicate 

with E.M.J. or that he had a legitimate reason for his lack of 

successful[] communication.‛ Instead, Father asserts, the juvenile 

court should have considered only whether Father consciously

disregarded his parental obligations toward E.M.J. Father argues 

that the court inappropriately rejected his explanation for failing 

to contact E.M.J.—that he believed his visitation rights had been 

terminated—based on its conclusion that a reasonable person 

would not have relied on the therapist’s and foster mother’s 

representations to that effect when there was no corresponding 

court order. At oral argument, Father explained that the court 

should have instead considered only whether he personally 

believed he could not have contact with E.M.J., because such a 

belief would belie any conscious disregard of his parental 

obligations.

¶9 We disagree with Father’s assessment of the juvenile 

court’s analysis. Although the court did find that it was 

unreasonable for Father to rely on the representations of the 

therapist and foster mother in establishing his belief that he was 

barred from visiting E.M.J., the court’s decision relied primarily 

on its determination that Father’s actions—even in light of that 

belief—were inconsistent with those of a ‚dedicated‛ parent. 
In re E.M.J.

20150614-CA 6 2016 UT App 145

Indeed, we have previously indicated that even when a parent is 

barred from contact with his children by means of a protective 

order, his lack of effort toward restoring his visitation rights, his 

failure to provide support for the children in the interim, and his 

failure to take advantage of opportunities to visit the children 

demonstrate a conscious disregard for parental obligations. See 

In re I.B., 2007 UT App 177U, paras. 4–5 (per curiam); In re B.H., 

2003 UT App 160U, para. 2 n.1.

¶10 Here, the juvenile court explained that Father’s single 

phone call to the caseworker once he learned that visitation had 

not terminated ‚belied‛ his ‚excuses for not keeping in contact 

with [E.M.J.]‛ because a ‚‘dedicated’ parent would have 

continued to call the worker until the issue was resolved.‛ The 

juvenile court observed that Father’s failure to pay child support 

and his failure to provide ‚gifts, telephone calls, cards or letters 

for Christmas, [E.M.J.’s] birthday, special occasions or other 

holidays‛ further demonstrated Father’s apathy toward E.M.J. 

Although Father testified that ‚he was told not to provide such 

items,‛ the court did not find this testimony to be credible. The 

court found that Father had previously been ‚on track to 

successfully complete his service plan and have [E.M.J.] returned 

to his custody‛ but that Father had ‚abandoned his progress‛ by 

ceasing to participate in drug testing; missing visits with E.M.J.; 

abandoning contact with the caseworker, his attorney, and the 

court; moving to California and ‚completely dropp[ing] out of 

[E.M.J.’s] life‛; and, upon learning that he could have contact 

with E.M.J., making only ‚a half-hearted effort to contact his son, 

which he quickly abandoned.‛ Thus, even assuming that Father 

legitimately believed that he was restricted from visiting E.M.J., 

the court made it clear that it considered Father’s actions to have 

displayed a conscious disregard for his parental obligations.

Weighing Father’s evidence in its totality, the court concluded 

that the evidence was insufficient ‚to overcome the prima facie 

showing of abandonment.‛ Nothing in the juvenile court’s order 

convinces us that it placed an undue burden on Father or 
In re E.M.J.

20150614-CA 7 2016 UT App 145

misapplied the framework outlined by our supreme court. See In 

re T.E., 2011 UT 51, ¶¶ 20–23.

¶11 Father asserts that even if the court employed the correct 

framework, the evidence was insufficient to support the court’s 

determination that he abandoned E.M.J. and that termination of 

his parental rights was in E.M.J.’s best interests. ‚[W]e 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.‛ In re 

A.B., 2007 UT App 286, ¶ 10, 168 P.3d 820 (second alteration in 

original) (citation and internal quotation marks omitted). ‚Thus,

in order to overturn the juvenile court’s decision [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 

(alteration in original) (citation and internal quotation marks 

omitted).

¶12 Father first argues that the State failed to make a prima 

facie showing of abandonment—i.e., that Father had failed to 

communicate with E.M.J. ‚by mail, telephone, or otherwise for 

six months,‛ see Utah Code Ann. § 78A-6-508(1)(b) (LexisNexis 

Supp. 2015)—because Father’s parents’ contact with E.M.J. was 

undertaken on Father’s behalf. Father’s argument depends on

his assertion that his parents acted as his agents in making 

phone calls, sending letters, and giving gifts to E.M.J. In In re 

T.E., 2011 UT 51, 266 P.3d 739, the supreme court held that a 

grandmother delivering a birthday card from a child’s father 

constituted communication. Id. ¶ 28 n.36. But the In re T.E. court

did not hold that vicarious communication is sufficient to 

demonstrate that a parent has communicated with his or her 

child; rather, it acknowledged that a birthday card from the 

father and hand-delivered by a third party constituted 

communication ‚‘by mail.’‛ Id. (quoting Utah Code Ann. § 78A-
In re E.M.J.

20150614-CA 8 2016 UT App 145

6-508(1)(b)). Here, Father does not claim that he had any direct 

communication with E.M.J.; rather, he asserts that his parents’ 

phone calls to E.M.J. and his participation (unbeknownst to 

E.M.J.) in picking out a gift for E.M.J. constituted 

communication. But monitoring a child’s life via a third party is 

not the same as communicating with the child, and since Father’s 

contact with E.M.J. was indirect, it is distinguishable from the 

contact that occurred in In re T.E. Thus, we conclude that the 

State presented prima facie evidence that Father had failed to 

communicate with E.M.J. for six months.

¶13 Father next contends that the evidence was insufficient to 

support the juvenile court’s determination that the totality of the 

evidence did not ‚overcome the [State’s] prima facie showing of 

abandonment.‛ We are sympathetic to Father’s position that he 

misunderstood his visitation rights and that the discretion 

granted to the therapist to schedule visitation may have barred 

him from seeing E.M.J. even in the absence of a court order. 

However, in light of the evidence discussed above, see supra ¶ 10, 

we are not convinced that the juvenile court’s determination that 

Father consciously disregarded his parental obligations to the 

destruction of the parent–child relationship was ‚against the 

clear weight of the evidence.‛ See In re B.R., 2007 UT 82, ¶ 12.

¶14 Finally, Father argues that the evidence was insufficient to 

support the juvenile court’s determination that it was in E.M.J.’s 

best interests that Father’s parental rights be terminated. The 

court found that E.M.J. has made ‚remarkable‛ developmental, 

educational, and behavioral progress since placement with the 

foster mother; that he ‚views the foster mother as his parent‛; 

and that he is afraid of Father, is upset by the prospect of future 

visits with Father, and has expressed no desire to see Father. In 

light of these circumstances, the juvenile court determined that it 

was in E.M.J.’s best interests ‚to have [Father’s] parental rights 

terminated so that [E.M.J.] can remain in his current placement, 

be adopted by his foster mother, and have the stability that he 
In re E.M.J.

20150614-CA 9 2016 UT App 145

needs.‛ In contesting these findings, Father merely reargues the 

evidence and has failed to establish that there was insufficient 

evidence to support the findings. Indeed, Father’s argument 

relies primarily on his assertion that the court’s best interests 

finding was based ‚solely on testimony from‛ the foster mother 

and that the foster mother’s ‚credibility is of concern.‛ But 

credibility is a question for the juvenile court, In re A.B., 2007 UT 

App 286, ¶ 10, and Father has failed to show that the juvenile 

court’s reliance on the foster mother’s testimony was an abuse of 

its discretion. Likewise, Father’s assertion that the juvenile court 

should have attributed E.M.J.’s progress ‚to proper mental 

health diagnosis and medication,‛ rather than to the foster 

mother’s actions, goes to the juvenile court’s weighing of the 

evidence and exercise of its discretion. Thus, Father has failed to 

establish that the evidence was insufficient to support the 

juvenile court’s finding that termination of his parental rights 

was in E.M.J.’s best interests.

¶15 In examining the juvenile court’s decision to terminate

Father’s parental rights, we are convinced that the court 

employed the correct procedural framework and burdens of 

proof in determining whether Father abandoned E.M.J. Further, 

the evidence was sufficient to support the juvenile court’s 

determination that the State presented prima facie evidence of 

abandonment, that Father failed to overcome that prima facie 

showing, and that termination was in E.M.J.’s best interests. 

Accordingly, we affirm.