In re ACM

2009 UT 30
221 P.3d 185
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, in the interest 	No. 20070849
of A.C.M., a person under
eighteen years of age.
_______________________________
M.W., T.W., and R.S.,
Petitioners and Appellees,
v.
F I L E D
A.N.
Respondent and Appellant 	May 29, 2009
---
Third District Juvenile, Salt Lake
The Honorable Sharon P. McCully
No. 523731
Attorneys: 	Larry S. Jenkins, Lance D. Rich, Salt Lake City, for
appellees Matthew & Toni Lee Worthington
Sophia Moore, Salt Lake City, for appellee Rachel
Sullivan
David S. Dolowitz, Dena C. Sarandos, Joshua K.
Peterman, Salt Lake City, for appellant
Martha Pierce, Salt Lake City, for the Office of the
Guardian ad Litem
---
On Certification from the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1 	Arturo Nuosci appeals the juvenile court’s order
terminating his parental rights over A.C.M. 	We affirm.

No. 20070849 	2
FACTS
¶2 	A.C.M., a minor child, has lived with Matt and Toni
Worthington since October 2004, when he was three months old. 	He
began living with the Worthingtons after his biological father,
Mr. Nuosci, was arrested by federal agents on numerous charges.
Upon Mr. Nuosci’s arrest, A.C.M.’s biological mother, Rachel
Sullivan, took custody of A.C.M., even though she had previously
relinquished her parental rights pursuant to a surrogacy
agreement with Mr. Nuosci. 	Shortly thereafter, she placed A.C.M.
with the Worthingtons for the purposes of adoption and again
relinquished her rights.
¶3 	The Worthingtons filed an adoption petition in the
district court in November 2004, which was subsequently contested
by both Mr. Nuosci and Ms. Sullivan. 	The district court found
that neither of Ms. Sullivan’s relinquishments of parental rights
were valid, the first because it was improperly executed and an
extension of an illegal surrogacy contract and the second because
it was improperly executed. 	Though the district court found that
both Mr. Nuosci and Ms. Sullivan were proper interveners in the
adoption proceeding, and did not find either to be unfit, it
awarded permanent custody to the Worthingtons under a best
interests of the child analysis. 	In October 2006, this court
reversed the district court’s ruling, holding that although the
Worthingtons may be the appropriate party to have temporary
custody while A.C.M.’s permanent status is determined, the court
could not permanently award custody to them because they were
“legal strangers” to A.C.M., and neither biological parent had
been found unfit. 	A.N. v. M.I.W. (In re P.N.), 2006 UT 64, ¶ 15,
148 P.3d 927.
¶4 	Mr. Nuosci responded to this court’s ruling in November
2006 by filing a petition for permanent custody in the district
court where the failed adoption petition was heard. 	Before the
district court ruled on Mr. Nuosci’s petition, Ms. Sullivan and
the Worthingtons filed a joint petition in juvenile court to
terminate Mr. Nuosci’s parental rights. 	The district court then
stayed proceedings pending resolution of the juvenile court
action. 	Following a two-day trial, the juvenile court ruled that
Mr. Nuosci’s rights should be terminated. 	It found that Mr.
Nuosci’s history of deceptive criminal conduct, including the
numerous federal felonies to which Mr. Nuosci pleaded guilty in
2005 and several prior convictions in Canadian courts,
demonstrated his unfitness to parent A.C.M., particularly because
he had engaged in criminal conduct in the months just prior up to
A.C.M.’s birth and had used A.C.M. to legitimize his existence
under an assumed name. 	The criminal convictions deprived A.C.M.

3 	No. 20070849
of a normal home and relationship with Mr. Nuosci during his
nearly three-year prison sentence and, as a result, A.C.M. formed
no bond or emotional attachment to Mr. Nuosci. 	The juvenile
court further found that, as a result of his criminal
convictions, Mr. Nuosci had been permanently deported to Canada
and requiring A.C.M. to develop a relationship with his father
“would be severely disruptive to [A.C.M.’s] physical, mental, and
emotional condition.” 	As additional support for the decision to
terminate Mr. Nuosci’s parental rights, the district court
mentioned Mr. Nuosci’s abusive behavior toward his ex-domestic-
partner, Lonnie James, and toward Ms. Sullivan, finding that Mr.
Nuosci has a history of violent behavior. 	Mr. Nusoci filed this
appeal. 	We have jurisdiction under Utah Code section 78A-3-
102(3)(b).
¶5 	During the pendency of the petition to terminate Mr.
Nuosci’s parental rights, the Worthingtons and Ms. Sullivan
appeared to be working toward a permanent custody solution. 	By
August 2007, A.C.M. was occasionally spending the night at Ms.
Sullivan’s home. 	However, around Labor Day 2007, their
relationship disintegrated. 	After the juvenile court announced
its order terminating Mr. Nuosci’s rights, but before the written
order issued, Ms. Sullivan filed a petition for sole custody of
A.C.M., and the Worthingtons filed a petition to terminate Ms.
Sullivan’s parental rights. 	The juvenile court has not yet held
a hearing on either of these petitions.
ISSUES AND STANDARDS OF REVIEW
¶6 	Mr. Nuosci appeals on several grounds. 	First, he
argues that the juvenile court did not have jurisdiction to hear
a petition to terminate his parental rights because the district
court had previously considered a contested adoption petition
regarding A.C.M. 	Whether jurisdiction is proper is a legal
question that we review for correctness, giving no deference to
the lower court’s determination. 	See State v. Moreno, 2009 UT
15, ¶ 7, 203 P.3d 1000.
¶7 	Second, Mr. Nuosci argues that because the juvenile
court previously considered his fitness and did not terminate his
parental rights, the doctrine of res judicata bars relitigation
of his fitness. 	The application of res judicata is a legal
determination, and we review for correctness the juvenile court’s
decision not to apply it in this case. 	Grynberg v. Questar Gas
Pipeline Co., 2003 UT 8, ¶ 21, 70 P.3d 1.
¶8 	Finally, Mr. Nuosci alleges the following deficiencies
with the juvenile court’s order and proceedings: 	that the court

1 Cases from other jurisdictions emphasize that an exception
(continued...)
No. 20070849 	4
did not have sufficient grounds to terminate his rights, that it
did not consider A.C.M.’s best interests, and that it did not
consider his present ability and willingness to function as a
parent. 	“Whether a parent’s rights should be terminated presents
a mixed question of law and fact.” 	State ex rel. B.R. v. S.M.,
2007 UT 82, ¶ 12, 171 P.3d 435. 	We afford great deference to the
juvenile court’s findings of fact and overturn the result only if
the facts are against the clear weight of the evidence. 	Id. 	We
review the juvenile court’s interpretation of the Termination of
Parental Rights Act for correctness. 	State ex rel. V.H. v.
State, 2007 UT App 1, ¶ 10, 154 P.3d 867.
¶9 	Before we address these issues, we first address the
guardian ad litem’s argument that the order terminating Mr.
Nuosci’s rights was not a final and appealable order, thereby
depriving this court of jurisdiction to hear his appeal. 	We then
address each of Mr. Nuosci’s substantive contentions.
ANALYSIS
I. 	THE ORDER TERMINATING MR. NUOSCI’S PARENTAL RIGHTS IS FINAL
AND APPEALABLE
¶10 	The guardian ad litem’s office argues that Mr. Nuosci
cannot appeal the district court order terminating his parental
rights because the order is not final. 	We disagree. 	The order
terminating Mr. Nuosci’s parental rights permanently affects
A.C.M.’s rights vis-a-vis his father and is therefore final and
appealable. 	“[A]n appeal may be taken from the juvenile court
. . . from a final judgment, order, or decree.” 	Utah R. Juv. P.
52(a). 	However, absent certification by the adjudicating court,
“any order . . . that adjudicates fewer than all the claims or
rights and liabilities of fewer than all the parties” cannot be
appealed. 	Utah R. Civ. P. 54(b). 	Various procedural rules allow
appeals only from final judgments, and Utah Rule of Appellate
Procedure P. 3(a) specifies that this court’s jurisdiction
extends only over final judgments. 	However, “‘[i]n child welfare
proceedings, unlike traditional civil cases, appeals may be heard
from more than one final judgment.’” 	State ex rel. A.F. v.
State, 2006 UT App 200, ¶ 8, 138 P.3d 65 (quoting State ex rel.
S.A.K. v. State, 2003 UT App 87, ¶ 13, 67 P.3d 1037). 	This
difference does not stem from a different application of or
exception to the final judgment rule, but rather from the unique
nature of juvenile court jurisdiction, which often continues
after a final judgment is rendered. 1 	See In re Doe, 883 P.2d 30,

1 (...continued)
to the finality rule is appropriate because of the fundamental
liberty interest at stake when the state deprives parents of
their children. 	See, e.g., In re Doe, 883 P.2d 30, 35 (Haw.
1994); 	In re Murray, 556 N.E.2d 1169, 1172 (Ohio 1990). 	Rather
than creating an exception to the finality rule, we instead find
that the parent’s fundamental liberty interest offers further
support for construing narrowly the boundaries of what
constitutes an action brought in juvenile court.
2 If a proceeding to terminate the other parent’s rights
remains pending and there is significant overlap in the facts
underlying both termination petitions, any party to the action
may move to consolidate them.
5 	No. 20070849
35 (Haw. 1994) (“[A] final judgment or decree is not necessarily
the last decision of a case.” (internal quotation marks
omitted)); 	N.D. v. B.J.D., 857 S.W.2d 835, 842-43 (Mo. Ct. App.
1993) (holding that the court’s denial of custody to the mother
and the later termination of parental rights constituted separate
final orders of the juvenile court).
¶11 	In child welfare cases, we draw the definition of an
action narrowly because the best interests of the child outweigh
the interests of judicial economy. 	State ex rel. S.A.K., 2003 UT
App 87, ¶ 13. 	When the effect of an order is “to immediately
implement a change in the permanent status of the child[], and
. . . require[s] no further judicial action to be final,” the
action before the lower court has concluded and the order may be
appealed. 	C.M.F. v. State, 2007 UT 69, ¶ 6, 167 P.3d 1070.
¶12 	The guardian ad litem’s office argues that termination
of Mr. Nuosci’s parental rights is not a final appealable order
because Ms. Sullivan’s parental rights have not yet been
adjudicated and A.C.M. has not been permanently placed. 	We have
previously stated that “termination of parental rights is final
and appealable because it constitutes a change in the child’s
status in that it changes the child’s legal relationship with his
or her parents.” 	Id. ¶ 3. 	We therefore treat the termination of
each parent’s rights separately for purposes of finality and
appealability. 2
¶13 	The petition to terminate Mr. Nuosci’s rights was a
separate and discrete action brought and resolved prior to any
dispute between Ms. Sullivan and the Worthingtons concerning Ms.
Sullivan’s parental rights. 	The substance and effect of the
juvenile court’s order terminating Mr. Nuosci’s rights left no
further question for the court to resolve vis-a-vis Mr. Nuosci.

3 	For ease of reference, we have used the most recent
numbering scheme for the statutes at issue.
No. 20070849 	6
The court’s continuing jurisdiction over A.C.M.’s permanent
placement does not affect the finality of the court’s order
terminating Mr. Nuosci’s rights, nor does the fact that the
petition to terminate his rights shares a case number with the
currently pending petition to terminate Ms. Sullivan’s rights.
We therefore conclude that we have jurisdiction to review the
termination order.
II. 	THE JUVENILE COURT HAD JURISDICTION TO HEAR THE PETITION TO
TERMINATE MR. NUOSCI’S PARENTAL RIGHTS
¶14 	Mr. Nuosci argues that the juvenile court lacked
jurisdiction to terminate his parental rights because a petition
to adopt A.C.M. had previously been filed with the district
court. 	We disagree. 	Because the adoption proceeding in district
court had been dismissed, it was proper for the Worthingtons and
Ms. Sullivan to file their petition to terminate Mr. Nuosci’s
parental rights in juvenile court. 	“[T]he juvenile court has
exclusive, original jurisdiction in proceedings concerning . . .
the termination of the legal parent-child relationship . . . .”
Utah Code Ann. § 78A-6-103(1)(g) (2008). 3 	However, in cases
where the termination of parental rights takes place in the
context of a contested adoption, the district court has
jurisdiction to terminate parental rights. 	Id. § 78B-6-133(2)
(2008). 	In a contested adoption proceeding, the district court
does not have discretion to transfer the proceeding to juvenile
court to determine “whether the rights of the contesting party
. . . may be terminated.” 	K.B. v. D.P. (In re B.B.G.), 2007 UT
App 149, ¶ 11, 160 P.3d 9. 	Though a district court judge cannot
transfer an adoption proceeding to juvenile court because the
juvenile court does not have “concurrent jurisdiction over
parental termination questions that arise in the context of
contested adoption proceedings originating . . . in the district
court,” the current termination proceeding against Mr. Nuosci did
not arise in a contested adoption proceeding in the district
court. 	Id.
¶15 	The Worthingtons’ petition to adopt A.C.M. was
dismissed in June 2006 when the district court erroneously
awarded permanent custody to the Worthingtons. 	And our opinion
regarding that error did not affect the validity of the district
court’s dismissal of the adoption proceeding. 	In fact, our
opinion makes clear that the adoption petition “has been
dismissed, and the dismissal was not challenged on appeal.” 	A.N.
v. M.I.W. (In re P.N.), 2006 UT 64, ¶ 18, 148 P.3d 927. 	Because

7 	No. 20070849
the dismissal of the adoption proceeding ended any jurisdiction
the district court had over the termination of Mr. Nuosci’s
parental rights, the termination petition was properly filed in
the juvenile court.
III. 	RES JUDICATA DOES NOT PREVENT A SUBSEQUENT TERMINATION OF
PARENTAL RIGHTS HEARING UNLESS THERE HAS BEEN NO CHANGE IN
CIRCUMSTANCES
¶16 	Relying on the theory of res judicata, Mr. Nuosci next
argues that the district court’s refusal to terminate his
parental rights during the contested adoption proceeding bars
future petitions to terminate his rights. 	However, res judicata
does not apply to this petition to terminate Mr. Nuosci’s rights,
which was filed over two years after the district court’s
decision and which was based on newly discovered evidence and
facts occurring in the intervening years.
¶17 	Res judicata prevents both the relitigation of
previously litigated claims between two parties and the
“relitigation of issues that have been decided, though the causes
of action or claims for relief are not the same.” 	P.D.C. v.
D.J.C.R. (State ex rel. S.D.C.), 2001 UT App 353, ¶ 12, 36 P.3d
540 (internal quotation marks omitted). 	These two branches of
res judicata, claim preclusion and issue preclusion, limit the
parties to one fair trial of an issue or cause, allow for
reliance on previous litigation, prevent inconsistent decisions,
save parties the expense and hassle of multiple lawsuits, and
conserve judicial resources. 	State ex rel. J.J.T., 877 P.2d 161,
162 (Utah Ct. App. 1994). 	To invoke claim preclusion, a party
must satisfy three requirements.
First, both cases must involve the same
parties or their privies. 	Second, the
claim that is alleged to be barred must
have been presented in the first suit or
must be one that could and should have
been raised in the first action. 	Third,
the first suit must have resulted in a
final judgment on the merits.
State ex rel. S.D.C., 2001 UT App 353, ¶ 13 (internal quotation
marks omitted). 	For issue preclusion to apply, a party must
satisfy four requirements.
[First,] the party against whom issue
preclusion is asserted must have been a
party to or in privity with a party to

No. 20070849 	8
the prior adjudication; [second,] the
issue decided in the prior adjudication
must be identical to the one presented
in the instant action; [third,] the
issue in the first action must have been
completely, fully, and fairly litigated;
and [fourth,] the first suit must have
resulted in a final judgment on the
merits.
Culbertson v. Bd. of County Comm’rs, 2001 UT 108, ¶ 25, 44 P.3d
642 (internal quotation marks omitted).
¶18 	In the context of petitions to terminate parental
rights, we have applied a flexible res judicata analysis. 	“[T]o
effectively determine the best interests of a child, a court must
be free from the imposition of artificial constraints that serve
merely to advance the cause of judicial economy.” 	State ex rel.
J.J.T., 877 P.2d at 164. 	As a result, “the State may reinitiate
proceedings to terminate parental rights at any time and present
any newly discovered evidence in those proceedings.” 	Office of
the Guardian ad litem v. A.M.K. (State ex rel. C.L.), 2007 UT 51,
¶ 18, 166 P.3d 608. 	While the court of appeals has not held that
res judicata never applies to child welfare proceedings, it has
raised questions about the propriety of its application, and
neither the court of appeals nor this court has ever barred a
successive petition to terminate parental rights on the basis of
res judicata. 	See State ex rel. J.J.T., 877 P.2d at 163-64. 	We
accordingly adopt the rule, consistent with many other
jurisdictions, that in child welfare proceedings res judicata
does not bar courts from considering both newly discovered facts,
whether or not they were knowable at the time of the earlier
proceeding, and facts determined in previous termination
proceedings when considering a later termination petition. 	Id.
at 163 n.2. 	Though the court is not bound by previous findings
of fact if newly discovered evidence refutes them, in the absence
of new evidence, the court should adhere to previous findings.
R.B. v. State (State ex rel. J.B.), 2002 UT App 268, ¶ 10, 53
P.3d 968.
A. 	Newly Discovered Evidence and Events Occurring Subsequent to
the Previous Termination of Rights Determination Prevent the
Court from Applying Res Judicata to the Determination of Mr.
Nuosci’s Parental Fitness
¶19 	The petition to terminate Mr. Nuosci’s parental rights
is not barred by res judicata because it does not present the
same claim litigated during the 2005 contested adoption

9 	No. 20070849
proceeding. 	“Where . . . two causes of action rest on different
facts, and evidence of a different kind or character is necessary
to sustain them, the claims are not the same for purposes of res
judicata.” 	State ex rel. J.J.T., 877 P.2d at 165. 	Intervening
events may constitute new facts that form the basis of a
subsequent petition to terminate parental rights. 	Though the
district court determined that Mr. Nuosci was not unfit in the
2005 contested adoption proceeding, Mr. Nuosci has since pleaded
guilty to several federal charges, spent nearly three years in
jail, and been deported to Canada. 	Further, the juvenile court
learned that Mr. Nuosci was convicted of fraud-related charges on
three separate occasions in Canada during the nineties. 	Even if
information regarding these convictions was discoverable at the
time of the 2005 hearing--and it may not have been considering
Mr. Nuosci’s constant use of assumed names and the limited access
the district court had to information regarding the federal case
against him--the court was not barred from considering such
evidence in this subsequent petition to terminate Mr. Nuosci’s
parental rights. 	In addition to Mr. Nuosci’s criminal
convictions and deportation, the juvenile court also considered
his history of violent behavior and threats. 	Res judicata does
not prevent the court from considering both events that occurred
between the petitions and those discoverable, but not considered
by the district court in the first petition.
B. 	The Addition of the Guardian ad Litem as a Party Defeats the
Application of Res Judicata
¶20 	Furthermore, res judicata does not apply because the
guardian ad litem was not a party to the 2005 failed adoption
proceeding. 	In order to qualify for claim preclusion in juvenile
proceedings, “both cases must involve the same parties.” 	State
ex rel. S.D.C., 2001 UT App 353, ¶ 13. 	When an additional party,
such as the State, joins a subsequent petition to terminate
parental rights, claim preclusion cannot bar the petition.
B.J.H. v. State (State ex rel. T.J.), 945 P.2d 158, 162-63 (Utah
Ct. App. 1997). 	The role of the guardian ad litem is to
represent the interests of the child or children who are the
subject of litigation, interests that were not represented in the
prior termination proceeding. 	Id. at 163. 	In this case, only
the Worthingtons, Ms. Sullivan, and Mr. Nuosci were parties to
the original contested adoption proceeding. 	The guardian ad
litem’s office joined the 2007 petition to terminate Mr. Nuosci’s
parental rights in order to represent A.C.M.’s interests, which
were not represented by independent counsel in the 2005 contested
adoption proceeding. 	The addition of the guardian ad litem’s
office prevents the application of claim preclusion to bar the
2007 termination petition.

No. 20070849 	10
¶21 	In summary, res judicata does not bar a subsequent
termination petition from being brought against Mr. Nuosci. 	The
instant termination petition is based on events occurring after
the 2005 adoption proceeding and newly discovered evidence
supporting termination of Mr. Nuosci’s rights. 	Further, the
addition of a new interested party, the guardian ad litem,
further defeats Mr. Nuosci’s res judicata claim.
IV. 	THE JUVENILE COURT STATED LEGALLY SUFFICIENT GROUNDS TO
TERMINATE MR. NUOSCI’S PARENTAL RIGHTS AND PROPERLY FOUND THAT
SUCH TERMINATION WAS IN A.C.M.’S BEST INTERESTS
¶22 	Mr. Nuosci argues that the facts found by the juvenile
court do not provide a legally sufficient justification for
termination of his rights. 	He also argues that the findings of
fact do not support the juvenile court’s conclusion that
termination of his parental rights is in A.C.M.’s best interests.
¶23 	In order to terminate parental rights, the juvenile
court must make two separate findings. 	S.L. v. State, (State ex
rel. M.L.), 965 P.2d 551, 561, n.13 (Utah Ct. App. 1998); 	State
ex rel. G.D. v. L.D., 894 P.2d 1278, 1284 (Utah Ct. App. 1995).
First, it must find grounds for termination under Utah Code
section 78A-6-507. 	State ex rel. M.L., 965 P.2d at 561 n.13. 	We
will uphold the juvenile court’s determination as to the grounds
for termination so long as there is a factual basis for any one
of the grounds listed in section 78A-6-507(1). 	See Utah Code
Ann. § 78A-6-507(1)(2008); 	F.C. Jr. v. State (State ex rel. F.C.
III) 2003 UT App 397, ¶ 6, 81 P.3d 790; T.B. v. Utah (State ex
rel. D.B.), 2002 UT App 314, ¶ 13 n.4, 57 P.3d 1102. 	Second, the
juvenile court must find that termination of the parent’s rights
is in the best interests of the child. 	State ex rel. M.L., 965
P.2d at 561 n.13.
¶24 	The juvenile court justified its decision to terminate
Mr. Nuosci’s parental rights on four subsections of Utah Code
section 78A-6-507: 	neglect, unfitness, unwillingness or
inability to remedy unfitness, and unwillingness or inability to
remedy the circumstances that caused the child to be in a court-
supervised out-of-home placement. 	Utah Code Ann. § 78A-6-
507(1)(b)-(d),(f)(iv) (2008). 	The juvenile court then determined
that termination was in A.C.M.’s best interests.

11 	No. 20070849
A. 	The Juvenile Court Properly Found Mr. Nuosci to Be an Unfit
Parent
¶25 	The juvenile court could consider Mr. Nuosci’s
extensive criminal history and pervasive fraudulent behavior as
grounds for termination. 	Utah Code section 78A-6-508(6)(b)
provides that “conviction of a crime, if the facts surrounding
the crime are of such a nature as to indicate the unfitness of
the parent to provide adequate care to the extent necessary for
the child’s physical, mental, or emotional health and
development” is “prima facie evidence of unfitness.”
¶26 	In 2005, Mr. Nuosci was convicted of numerous federal
felonies, including mail fraud, identity theft, and bank fraud.
Prior to his convictions in the United States, Mr. Nuosci was
also convicted in Canada of fraud-related charges on at least
four separate occasions and of one charge of uttering threats.
In addition to these convictions, Mr. Nuosci repeatedly lied to
the court, to government officials, and to those with whom he had
personal relationships. 	Indeed, he lied to Ms. Sullivan in order
to induce her to enter into the surrogacy contract with him. 	The
juvenile court properly found that the facts surrounding his
repeated acts of dishonesty were sufficient to demonstrate Mr.
Nuosci’s unfitness to provide adequate care for A.C.M.’s mental
and emotional health and development, particularly in light of
Mr. Nuosci’s deportation. 	Not only does his pervasive fraud
constitute prima facie evidence of his unfitness, but the court
could also consider it by itself as an additional ground for
termination.
¶27 	The juvenile court also properly relied upon Mr.
Nuosci’s history of violent behavior as a ground to terminate his
rights. 	Utah Code section 78A-6-508(2)(f) allows the juvenile
court to consider a parent’s history of violent behavior as a
factor supporting the termination of a parent’s rights. 	The
juvenile court specifically found that uncontroverted evidence
showed that Mr. Nuosci was violent toward Ms. Sullivan and his
former domestic partner, Lonnie James. 	Further, it noted that
one of his Canadian convictions was for uttering threats. 	These
findings also support termination of Mr. Nuosci’s parental
rights.
¶28 	Because there are several proper grounds on which the
juvenile court based its decision to terminate Mr. Nuosci’s
parental rights, we need not reach Mr. Nuosci’s challenges to the
juvenile court’s other grounds for termination.

No. 20070849 	12
B. 	The Juvenile Court Considered Mr. Nuosci’s Present Ability to
Function as a Parent
¶29 	The juvenile court did not disregard Mr. Nuosci’s
present ability and willingness to function as a parent when it
terminated his rights. 	“[T]he juvenile court must consider a
parent’s ability at the time of the termination hearing in
determining whether termination is appropriate.” 	State ex rel.
M.L., 965 P.2d at 561. 	However, the court must consider a
parent’s present ability “in light of the parent’s past conduct
and its debilitating effect on the parent-child relationship.”
Id. at 562. 	In considering Mr. Nuosci’s present ability to
parent, the juvenile court noted the discrepancy between the
$5000 per month income he testified that he received and the fact
that he had applied for indigent status with the court just weeks
prior to his testimony. 	Based on this conflicting testimony and
Mr. Nuosci’s past history of dishonesty, the juvenile court
afforded no weight to Mr. Nuosci’s testimony. 	The juvenile court
properly considered Mr. Nuosci’s present ability to parent and
determined that it did not meet a minimum threshold of fitness.
C. 	Termination of Mr. Nuosci’s Parental Rights Was in A.C.M.’s
Best Interests
¶30 	The juvenile court correctly determined that
termination of Mr. Nuosci’s parental rights would be in A.C.M.’s
best interests. 	A court may only consider evidence of the
child’s best interests after finding that the parent does not
meet the minimum threshold of fitness. 	State ex rel. G.D., 894
P.2d 1278, 1284 (Utah Ct. App. 1995) (“[I]t is unconstitutional
to terminate a parent’s rights based upon a finding of the best
interests of the child without first finding that the parent is
below some minimum threshold of fitness.”). 	To determine the
best interests of the child, the court must consider “the
physical, mental, or emotional condition and needs of the child.”
Utah Code Ann. § 78A-6-509(1)(a). 	The court is not limited to
considering only the factors listed in the statute. 	Id. 	Though
a parent’s deportation alone may be insufficient to find that
termination of that parent’s rights is in the child’s best
interests, in cases like this, where the child has developed no
previous relationship with the parent, the fact of a parent’s
deportation is a sufficient basis to find that termination of the
parent’s rights is in the child’s best interests. 	Based on the
testimony at the hearing, the juvenile court found that requiring
A.C.M. to cross international borders to visit a father that he
has not seen since he was two months old would be severely
disruptive to A.C.M.’s mental health. 	We agree that this
disruption would not be in A.C.M.’s best interests.

13 	No. 20070849
¶31 	The juvenile court made sufficient findings to support
its determination that Mr. Nuosci does not meet the minimum
thresholds for fitness and that termination of his parental
rights is in A.C.M.’s best interests.
CONCLUSION
¶32 	The order terminating Mr. Nuosci’s parental rights was
final and appealable. 	Because we find that the juvenile court
had jurisdiction to hear the termination petition, was not barred
by res judicata from considering the petition, and found
sufficient facts to support its conclusion that Mr. Nuosci was an
unfit parent and that terminating his parental rights would be in
A.C.M.’s best interests, we affirm the juvenile court’s
termination order.
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¶33 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Nehring concur in Justice Parrish’s
opinion.