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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

Utah Court of Appeals2016-07-14No. No. 20150614-CA
376 P.3d 10932016 UT App 145

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Opinion

majority opinion

GREENWOOD, Senior Judge:

1 A.M. (Father) appeals the juvenile courts termination of his parental rights in E.M.J. We affirm.

12 E.M.J. was removed from Fathers 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 mother 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 Fathers visitation be therapeutically supervised at the discretion of the therapist. The juvenile court expressed confusion at Fathers 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. 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 therapists discretion. A few days later, the State filed a petition to terminate Fathers parental rights, in which it raised several grounds in support of termination. *

T4 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. 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 Fathers 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.

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 Ann. § 78A-6-508(1)(b) (LexisNexis Supp. 2015) 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 Fathers 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 Fathers parental rights. Father now appeals.

16 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 parents conduct led to the destruction of the parent-child relationship. Id. A parents 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. T 21 (quoting Utah Code Ann. § T8A-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 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 parents] parental rights has not established abandonment by clear and convincing evidence. Id. T 28. 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.

18 Father asserts that the juvenile court improperly required him to disprove abandonment by clear and convincing evidence because it evaluated Fathers evidence in a manner that required him to show that either he did in fact communicate with E.M.J. or that he had & legitimate reason for his lack of successfull ] 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 therapists and foster mothers 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 EM.J ., because such a belief would belie any conscious disregard of his parental obligations.

19 We disagree with Fathers assessment of the juvenile courts analysis. Although the court did find that it was unreasonable for Father to rely on the representatlons of the therapist and foster mother in establishing his belief that he was barred from visiting E.M.J., the courts decision relied primarily on its determination that Fathers actions even in light of that belief-were inconsistent with those of a dedicated parent. 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 1770, paras. 4-5, 2007 WL 1501842 (per curiam); In re B.H., 2008 UT App 1600, para. 2 n, 1, 2008 WL 21297250.

10 Here, the juvenile court explained that Fathers 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 Fathers 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 Fathers 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 EM.J., making only "a half-hearted ef-

fort to contact his son, which he quickly abandoned. Thus, even assuming that Father legitimately believed that he was restricted from visiting EM.J., the court made it clear that it considered Fathers actions to have displayed a conscious disregard for his parental obligations. Weighing Fathers evidence in its totality, the court concluded that the evidence was insufficient to overcome the prima facile showing of abandonment. Nothing in the juvenile courts order con-vinees us that it placéd an undue burden on Father or misapplied the framework outlined by our supreme court. Sée In re T.E., 2011 UT 51, 11 20-28, 266°P.8d 739.

[6, 71 11 Father asserts that even if the court employed the correct framework, the evidence was insufficient to support the courts determination that he abandoned E.M.J. and that termination of his parental rights was in E.M.J.s best interests. [Wle give the juvenile court a wide latitude of discretion as to the judgments arrived at based upon not only the courts opportunity to judge credibility firsthand, but also based .on the juvenile court judges special training, experiencel,] 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 courts decision [tlhe 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, T 12, 171 P.8d 485 (alteration in original) (citation and internal quotation marks omitted)..

[8] - 112 Father first argues that the State failed to make a prima facie showing of abandonment-i.e., that Father had failed to com-runicate 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 Fathers parents contact with E.M.J. was undertaken on Fathers behalf, Fathers 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 789, the supreme court held that a grandmother delivering a birthday card from a childs father constituted communication. Id. I 28 n. 86, But the In re TE. 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-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 F.M.J.) in picking out a gift for E.M.J. constituted commumcatlon But monitoring a childs life via a third party is not the same as commumcatmg with the child, and since Fathers contact with E.M.J. was, 1nd1rect 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

[9] 918 Father next contends that the evidence was insufficient to support the juvenile courts determination that the totality of the evidence did not overcome the [States] prima facie showing of abandonment. We are sympathetic to Fathers 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 H discussed above, see supra T 10, we are not - convinced that the juvenile courts 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 BR., 2007 UT 82, 1 12, 262 P.3d 46.

[10] (14 Finally, Father argues that the evidence was insufficient to support the juvenile courts determination that it was in E.M.J.s best interests that Fathers 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 cireumstances, the juvenile court determined that it was in E.M.J.s best interests to have [Fathers] parental rights terminated so that [E.M.J.] ean remain in his current placement, be adopted by his foster mother, and have the stability that he 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, Fathers argument relies primarily on his assertion that the courts best interests finding was based solely on testimony from the foster mother and that the foster mothers credibility is of concern. But credibility is a question for the juvenile court, In re A.B., 2007 UT App 286, T 10, 168 P.3d 820, and Father has failed to show that the juvenile courts reliance on the foster mothers testimony was an abuse of its discretion. Likewise, Fathers 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 mothers actions, goes to the juvenile courts weighing of the evidence and exercise of its discretion. Thus, Father has failed to establish that the evidence was insufficient to support the juvenile courts finding that termination of his parental rights was in E.M.J.s best interests.

115 In examining the juvenile courts decision to terminate Fathers 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 courts 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.

. EM.J.s mother voluntarily relinquished her parental rights in December 2014 and has no involvement in this appeal.

. 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 Fathers testimony to be credible.

. 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 caseworkers testimony more credible than Fathers 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 contimied to call the worker until the issue was resolved.

. We cite the most current version of the Utah Code for the readers convenience.