In re D.M.

2020 UT App 59
THE UTAH COURT OF APPEALS
S TATE OF U TAH , IN THE INTEREST OF D.M.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
D.M.,
Appellant,
v.
S TATE OF U TAH ,
Appellee.
Opinion
No. 20190470-CA
Filed April 9, 2020
Third District Juvenile Court, Salt Lake Department
The Honorable Kimberly K. Hornak
No. 1150140
Julie George, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES K ATE A PPLEBY and DIANA H AGEN concurred.
ORME, Judge:
¶1 	Appellant D.M. (Father) challenges the juvenile court’s
decision to terminate his parental rights to his child, D.M.
(Child), arguing that there was insufficient evidence to support
the court’s decision. Because there was sufficient evidence to
support at least one of the grounds for termination upon which
the court relied, we affirm.

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BACKGROUND
¶2 	In 	October 	2017, 	the 	State 	removed 	Child 	from 	his
mother’s (Mother) custody following an incident where Mother,
while arguing with her boyfriend in a car in which Child was
present, “got out . . . and attempted to run in front of a semi as a
suicide attempt.” Mother was taken to a hospital, and Child
“was taken into protective custody by Law Enforcement.” Father
was unable to take custody of Child at that time because he had
“just got out of jail” for violation of a protective order entered as
a result of Father being “physically violent with Mother in front
of Child.”
¶3 	The Utah Division of Child and Family Services (DCFS)
took custody and guardianship of Child and placed him with a
foster family. The juvenile court then ordered both Mother and
Father to comply with service plans DCFS created for them. The
court also ordered Father to attend domestic violence classes, to
complete a domestic violence assessment, and to take drug tests
“more than once a month and at random.” The court then set
“[t]he primary goal for” Child as reunification with Mother and
Father “with a concurrent goal of adoption.”
¶4 	In May 2018, because Father “was in compliance with”
DCFS’s plan and because his drug tests were coming back
negative, the juvenile court authorized a trial home placement of
Child with Father. During the beginning of this placement,
Father held a full-time job and was able to provide financial
support for Child. Mother, however, again attempted suicide,
and following multiple failures to comply with her service plan,
the court changed the permanency goal for Child to reunification
with only Father.
¶5 	In October 2018, approximately two months into Child’s
trial home placement, Father was arrested for driving under the

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20190470-CA 	3 	2020 UT App 59
influence 	(DUI).1 	At 	that 	time, 	Father 	was 	on 	parole 	for
aggravated assault resulting in serious bodily injury, a crime he
committed against Mother in 2016. In November 2018, as a result
of the DUI, Father’s parole was terminated and he was returned
to prison for “an indefinite term of not less than one year, nor
more than fifteen years.” The juvenile court then terminated
Father’s reunification services and designated adoption as the
sole permanency goal for Child.
¶6 	In April 2019, the court held a parental termination trial
for both Father and Mother.2 By the time of trial, Father had
spent approximately four months in prison and his actual release
date was unclear, although it could potentially be as long as
fifteen years. Father testified that the “matrix guidelines” for his
case suggested that he serve 32 months and that he had served
about 22 months total at the time of trial, meaning he expected to
be released from prison in approximately another ten months.
¶7 	Following the termination trial, the juvenile court made
the following findings of fact:
[DCFS] and other agencies have made active efforts
to 	provide 	remedial 	Services 	and 	rehabilitative
programs designed to prevent the breakup of the
family. . . . Father did complete drug and alcohol
treatment. However, Father received a DUI which
was the basis for the revocation of his [parole]
during 	the 	time 	when 	he 	had 	a 	trial 	home
placement 	with 	Child. 	Father 	was 	provided
1. At the time of the arrest, Child was at Father’s home with a
babysitter.
2. Following the trial, the court terminated Mother’s parental
rights to Child. Mother does not appeal that termination, and
from this point we therefore recite the juvenile court’s findings
of fact and rulings only as relevant to Father’s termination.

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services 	regarding 	domestic 	violence 	treatment,
but he did not complete that program.
. . . .
It would be in [Child’s] best interests to be adopted
where [Child] will be secure, stable, and protected
from further abuse and neglect and where [Child’s]
physical and emotional needs are being met.
Father 	had 	the 	opportunity 	and 	in 	fact 	did
complete drug and alcohol treatment, but the fact
that he recently received a DUI in October 2018,
while 	Child 	had 	only 	been 	on 	a 	trial 	home
placement with him for two months, is evidence
that the court must consider that he still has a
substance abuse problem and has not addressed
that problem. Father currently is incarcerated at the
State 	Prison. 	There 	is no 	clear 	and 	convincing
evidence when he will be released. Therefore, the
Court must find that he cannot currently care for
his child at this time.
Furthermore, 	under 	Utah 	Code 	Ann.
§ 78A-6-508(2)(e) the Court shall consider, and it is
required not discretionary, the fact that a parent is
incarcerated for a greater term of more than one
year. The court is required to consider the fact that
Father is incarcerated and cannot care for his child.
. . . .
There 	is 	no 	proof 	that 	Father 	has 	completed
domestic 	violence 	treatment. 	Domestic 	violence
was a concern and finding at the origination of this
case. Therefore, the Court cannot find that Father
has addressed that concern such that Child is not at
risk if he were with Father.

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The court also found that Child had spent “[a]lmost half his life”
with his foster family and that “[t]hey want to adopt him, are
bonded with him, [and Child] is bonded with his foster family.”
¶8 	The court then ruled that it was “strictly necessary to
terminate” Father’s parental rights under Utah Code section
78A-6-507(1)(b)–(e), because it found that (1) Father “neglected”
Child; (2) Father is “an unfit or incompetent parent”; (3) Father
“substantially neglected, willfully refused, or has been unable or
unwilling to remedy the circumstances that caused Child to be in
an out of home placement, and there is a substantial likelihood”
that Father would “not be capable of exercising proper and
effective parental care in the near future”; and (4) “there has
been a failure of parental adjustment.” The court also found that
Child “has suffered, or is substantially likely to suffer, serious
detriment should Child be returned to the custody of [Father]”
and, because Father has “not availed [himself]” of the offered
reunification services, “[i]t is in the best interest of [Child] to
terminate [Father’s] parental rights . . . so that Child can be
adopted by a loving family and achieve security, stability and a
sense of permanency.”
¶9 	Father appeals.
ISSUE AND STANDARDS OF REVIEW
¶10 	Father 	argues 	that 	“there 	is 	insufficient 	evidence 	to
support the . . . grounds upon which the Court found [his] rights
could be terminated.” The decision “whether to terminate a
parent’s rights presents a mixed question of law and fact.” In re
B.T.B., 2018 UT App 157, ¶ 8, 436 P.3d 206 (quotation simplified),
cert. granted, 440 P.3d 692 (Utah 2019). “In such situations, we
review a trial court’s findings for clear error and its conclusions
of law for correctness, affording the court some discretion in
applying 	the 	law 	to 	the 	facts.” 	Id. 	(quotation 	simplified).
Ultimately, due to the “factually intense nature” of the analysis,
a juvenile court’s final decision regarding the termination of

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parental rights “should be afforded a high degree of deference,”
and we will not overturn such a decision unless it is “against the
clear weight of the evidence” or leaves us “with a firm and
definite conviction that a mistake has been made.” In re B.R.,
2007 UT 82, ¶ 12, 171 P.3d 435 (quotations simplified). Of
significance in this case, when a juvenile court relies on multiple
grounds in terminating parental rights, we will affirm when we
are able to sustain one of the grounds and need not consider the
other grounds relied on by the court. See Utah Code Ann.
§ 78A-6-507(1) (LexisNexis 2018) (stating that “the court may
terminate all parental rights with respect to a parent if the court
finds 	any 	one” 	of 	the 	enumerated 	grounds 	for 	termination)
(emphasis added); In re F.C. III, 2003 UT App 397, ¶ 6, 81 P.3d
790 (holding that “the juvenile court entered findings supporting
four separate grounds for termination of . . . parental rights” and
that “[a]ny one of these grounds was sufficient, by itself, to
justify termination of . . . parental rights”).
ANALYSIS
¶11 	Before a court may terminate parental rights, the State
must establish the facts warranting termination “by clear and
convincing 	evidence.”3 	Utah 	Code 	Ann. 	§ 	78A-6-506(3)
(LexisNexis 2018). If the State meets this burden, the juvenile
court is required to employ a two-part test before terminating
3. Our briefing order directed the parties to “specifically address
who bears the burden of any uncertainty regarding Father’s
[prison] release date.” Both parties agree that the State bears the
burden 	to 	establish 	by 	clear 	and 	convincing 	evidence 	any
statutory basis used by the juvenile court for termination of
parental rights. See Utah Code Ann. § 78A-6-506(3) (LexisNexis
2018) (stating that the petitioner is required “to establish the facts
by clear and convincing evidence” warranting termination of a
parent’s rights). Accord In re K.J., 2013 UT App 237, ¶ 26, 327 P.3d
1203. We agree and need not discuss this issue further.

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those rights. In re H.F., 2019 UT App 204, ¶ 13, 455 P.3d 1098.
First, the “court must find that one or more of the statutory
grounds for termination are present, and second,” it “must find
that termination of the parent’s rights is in the best interests of
the child.” Id. (quotation simplified). “As part of the best interest
analysis, 	Utah 	law 	requires 	courts 	to 	analyze 	whether
termination of a . . . parent’s rights is strictly necessary.” Id. ¶ 14
(quotation simplified).4
¶12 	Three statutory provisions are germane to our analysis
in 	this 	case. 	Utah 	Code 	section 	78A-6-507 	provides 	the
“[g]rounds for termination of parental rights” and directs that
parental rights are to be terminated only when the court finds
it 	“strictly 	necessary” 	due 	to 	“any 	one” 	of 	a 	long 	list 	of
enumerated grounds. The grounds for termination relevant to
this appeal are:
(b) that the parent has neglected or abused the
child;
(c) that the parent is unfit or incompetent;
(d) 	(i) 	that 	the 	child 	is 	being 	cared 	for 	in 	an
out-of-home 	placement 	under 	the
supervision of the court or [DCFS];
(ii) that the parent has substantially neglected,
willfully 	refused, 	or 	has 	been 	unable 	or
unwilling to remedy the circumstances that
4. On appeal, Father challenges only the sufficiency of the
evidence to support the juvenile court’s findings establishing
grounds for termination of his parental rights. Father does not
challenge 	the 	court’s 	“best 	interest” 	or 	“strictly 	necessary”
determinations, and thus we have no occasion to consider those
aspects of the court’s analysis.

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cause the child to be in an out-of-home
placement; and
(iii) that there is a substantial likelihood that the
parent 	will 	not 	be 	capable 	of 	exercising
proper and effective parental care in the
near future;
(e) failure of parental adjustment, as defined in this
chapter.
Utah 	Code 	Ann. 	§ 	78A-6-507(1)(b)–(e) 	(LexisNexis 	2018).
“Failure of parental adjustment” is defined as a parent being
“unable or unwilling within a reasonable time to substantially
correct the circumstances, conduct, or conditions that led to
placement of their child outside of their home, notwithstanding
reasonable and appropriate efforts made by [DCFS] to return the
child to that home.” Id. § 78A-6-502(2). Finally, when considering
“whether a parent . . . [is] unfit or ha[s] neglected a child,”
id. § 78A-6-508(2)—the grounds for terminating parental rights
found in sections 507(1)(b) and 507(1)(c)—the juvenile court is
required to consider, among other things, the following:
(a) 	emotional 	illness, 	mental 	illness, 	or 	mental
deficiency of the parent that renders the parent
unable to care for the immediate and continuing
physical 	or 	emotional 	needs 	of 	the 	child 	for
extended periods of time;
. . .
(c) habitual or excessive use of intoxicating liquors,
controlled 	substances, 	or 	dangerous 	drugs 	that
render the parent unable to care for the child;
(d) repeated or continuous failure to provide the
child 	with 	adequate 	food, 	clothing, 	shelter,
education, or other care necessary for the child’s

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physical, 	mental, 	and 	emotional 	health 	and
development 	by 	a 	parent 	or 	parents 	who 	are
capable of providing that care;
(e) whether the parent is incarcerated as a result of
conviction of a felony, and the sentence is of such
length that the child will be deprived of a normal
home for more than one year;
(f) a history of violent behavior;
. . . .
Id. § 78A-6-508(2)(a), (c)–(f).
¶13 	This case turns on Father’s argument that the evidence the
State presented was insufficient to support the juvenile court’s
conclusion that he failed to remedy the circumstances of Child’s
removal under Utah Code section 78A-6-507(1)(d).5 To terminate
5. Father also challenges the juvenile court’s termination on the
grounds that he was unfit and that he neglected Child—the
grounds that implicate the one-year incarceration provision of
Utah Code section 78A-6-508(2)(e). The juvenile court found that
there was “no clear and convincing evidence” of Father’s release
date, and thus Father could not “care for his child at this time.”
The court then explained that under section 508(2)(e), it was
required to consider “the fact that a parent is incarcerated for a
. . . term of more than one year” and “cannot care for his child.”
Father argues that this finding was in error because the court
had 	concluded 	that 	there 	was 	“no 	clear 	and 	convincing
evidence” as to the length of his imprisonment. To the extent
that 	the 	juvenile 	court 	relied 	on 	the 	length 	of 	Father’s
incarceration to terminate Father’s rights on the grounds that he
was unfit or had neglected Child, it likely erred because there
was no clear and convincing evidence that Father’s incarceration
would deprive Child of a normal home life for more than a year.
(continued…)

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a parent’s rights under section 507(1)(d), a court must find that
(1) the child is in an out-of-home placement,6 (2) the parent has
failed 	to 	remedy 	the 	circumstances 	that 	resulted 	in 	that
placement, and (3) “there is a substantial likelihood that the
parent will not be capable of exercising proper and effective
parental care in the near future.” Id. § 78A-6-507(1)(d).
¶14 	Father specifically assails the juvenile court’s finding that
“there is a substantial likelihood that [Father] will not be capable
of exercising proper and effective parental care in the near
future.” Father argues that this finding “directly implicates the
issue 	of 	how 	long 	Father 	will 	be 	unavailable 	due 	to 	his
incarceration,” and because “the Court specifically found that
there is no clear and convincing evidence as to duration,” this
evidence cannot be used to support the court’s termination on
this ground. We are not persuaded.
¶15 	When a juvenile 	court is considering termination 	for
neglect, under section 507(1)(b), or for unfitness, under section
507(1)(c), 	it 	must 	consider 	whether 	the 	parent 	will 	be
incarcerated for more than a year. Id. § 78A-6-508(2)(e). But
nothing in section 507(1)(d), or elsewhere in the Utah Code,
prohibits a juvenile court from considering a parent’s current
incarceration, regardless of length, when determining whether
the parent has failed to remedy the circumstances that led to the
(…continued)
But as previously stated, the court was required to find only one
statutory ground for termination, and by finding that Father
failed to remedy the circumstances of Child’s removal under
section 507(1)(d)—a separate ground that does not require the
court to find any particular length of incarceration—we can
readily 	uphold 	the 	court’s 	termination 	on 	that 	ground
notwithstanding any error with respect to these other grounds.
6. It is undisputed that Child was living with a foster family in
an out-of-home placement.

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child’s removal and whether the parent will be able to provide
effective parental care in the near future. See in re A.H., 2009 UT
App 232, ¶ 26, 217 P.3d 278 (“The juvenile court properly
considered Mother’s incarcerations . . . as one aspect of her
inability to parent the Children.”). And while there was no clear
and 	convincing 	evidence 	that 	Father’s 	incarceration 	would
extend for more than one year for purposes of Utah Code section
78A-6-508(2)(e), there was clear and convincing evidence that
Father was incarcerated and that he would remain incarcerated
for a significant period—at least ten more months, as Father
himself conceded. Father’s incarceration therefore was a proper
consideration for the court in determining that Father failed to
remedy the circumstances that led to Child’s removal and that
Father would be unable to care for Child in the near future.
¶16 	Father’s 	incarceration 	for 	violating 	his 	parole 	was
evidence of Father being “unable or unwilling to remedy the
circumstances 	that 	cause[d 	Child] 	to 	be 	in 	an 	out-of-home
placement,” 	see 	Utah 	Code 	Ann. 	§ 	78A-6-507(d), 	which
placement partially came about because Father, who had “just
got out of jail,” could not take custody of Child when the State
removed Child from Mother’s custody following her suicide
attempt. And by the time of trial, he was once again incarcerated
and could not care for Child. The evidence of his significant
incarceration—22 	months in 	the 	recent 	past 	with 	some 	ten
months yet to be served—was a significant basis on which the
court could find that “there [was] a substantial likelihood that
[Father would] not be capable of exercising proper and effective
parental care in the near future.” See id. (emphasis added).
¶17 	Father’s 	DUI 	arrest 	further 	supports 	the 	court’s
termination decision on this ground. The court found that while
Father “did complete drug and alcohol treatment,” the DUI was
“evidence 	that 	the 	court 	must 	consider 	that 	he 	still 	has 	a
substance abuse problem and has not addressed that problem.”
Again, this evidence shows that Father was unable or unwilling
to remedy the problems that resulted in Child being removed
from his care.

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20190470-CA 	12 	2020 UT App 59
¶18 	Nor is Father’s incarceration and DUI the only evidence
that supports the court’s termination decision under section
507(1)(d). The court also found that “[d]omestic violence was a
concern . . . at the origination of this case,” and “[t]here is no
proof that Father has completed domestic violence treatment,”
which he was ordered to do more than a year earlier. By failing
to complete the ordered treatment within that time, Father
demonstrated 	his 	inability 	or 	unwillingness 	to 	remedy 	the
circumstances that caused Child’s out-of-home placement, which
in part was the result of Father being “physically violent with
Mother in front of Child.” This failure further supports the
court’s finding that there was a “substantial likelihood” that he
would not complete the treatment “in the near future” and
would 	not 	“be 	capable 	of 	exercising 	proper 	and 	effective
parental care.” See id.
¶19 	Given the clear and convincing evidence presented to the
juvenile 	court 	establishing 	Father’s 	inability 	to 	remedy 	the
circumstances that led to Child’s removal and his inability to
care for Child in the near future, “the termination of [Father’s]
parental rights was consistent with the juvenile court’s findings,
and 	the 	findings were 	not 	against 	the 	clear 	weight 	of 	the
evidence.” See in re A.H., 2009 UT App 232, ¶ 25. Ultimately, we
are not left “with a firm and definite conviction that a mistake
has been made.” See in re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435
(quotation simplified).
CONCLUSION
¶20 	There was sufficient evidence before the juvenile court to
support its key findings and those findings support its decision
to terminate Father’s parental rights on the ground that he was
unable or unwilling to remedy the circumstances that caused
Child’s removal and that he would not be capable of remedying
these circumstances in the near future.
¶21 	Affirmed.