In re B.C...

2018 UT App 125
THE UTAH COURT OF APPEALS
S TATE OF U TAH , IN THE INTEREST OF B.C. AND A.C.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
B.C. AND T.C.,
Appellants,
v.
S TATE OF U TAH ,
Appellee.
Per Curiam Opinion
No. 20180252-CA
Filed June 21, 2018
Fourth District Juvenile Court, American Fork Department
The Honorable Suchada P. Bazzelle
No. 1133697
No. 1133698
Ryan L. Holdaway and Diane Pitcher, Attorneys
for Appellants
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES GREGORY K. O RME, M ICHELE M. C HRISTIANSEN , and
R YAN M. HARRIS.
PER CURIAM:
¶1 	T.C. (Mother) and B.C. (Father) (collectively, Parents)
appeal 	the 	juvenile 	court’s 	order 	terminating 	their 	parental
rights.
¶2 	“In 	order 	to 	overturn 	a 	juvenile 	court’s 	decision 	[to
terminate parental rights,] the result must be against the clear

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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 (quotation simplified). 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. In re B.R., 2007 UT 82, ¶ 12. Further,
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.’” In re E.R. 2007 UT 82, ¶ 12 (quotation simplified).
Finally, “when 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 	Parents 	contend 	that 	the 	juvenile 	court 	erred 	in
concluding 	that 	Mother’s 	drug 	use 	alone 	was 	sufficient 	to
support grounds for terminating her parental rights. Parents’
argument centers on Utah Code section 78A-6-508(2)(c), which
states that “habitual or excessive use of intoxicating liquors,
controlled substances, or dangerous drugs that render the parent
unable to care for the child” is evidence of unfitness or neglect.
Utah Code Ann. § 78A-6-508(2)(c) (LexisNexis Supp. 2017). They
argue that use of controlled substances is not sufficient in and of
itself to support termination of parental rights but that the use of
those drugs must render the parent unable to care for the child.
They argue that to hold otherwise would render the part of the
statute concerning the ability to care for a child meaningless. We
need not resolve this issue because Parents are incorrect that the
juvenile court based its decision on Mother’s drug use alone.
Instead, the juvenile court’s decision was based upon the totality
of the circumstances.
¶4 	The juvenile court made findings of fact that included its
agreement with prior case law “that the use of drugs is not
consistent with responsible parenting as a matter of law.” See In

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20180252-CA 	3 	2018 UT App 125
re S.Y., 2003 UT App 66, ¶ 20, 66 P.3d 601 (holding that
methamphetamine 	use 	is 	inconsistent 	with 	responsible
parenting). However, contrary to Parents’ assertions, the juvenile
court’s reasoning did not end there. The juvenile court found
numerous other factors that affected Mother’s ability to parent
the 	children, 	including 	A.C.’s 	positive 	drug 	test 	at 	birth;
Mother’s numerous positive drug tests; Mother’s attempts to
tamper with her drug test results; Mother’s lack of substantial
compliance with the service plan; and Mother’s past history, as
well as her current behavior, including her interactions with
Division of Child and Family Services (DCFS) employees and the
children’s foster parents. Thus, a myriad of factors supported the
juvenile court’s decision making process. Accordingly, because
Parents are incorrect that the juvenile court relied solely on
Mother’s drug use to support terminating Parents’ parental
rights, we need not address Parents’ argument that the juvenile
court erred in its alleged finding that drug use was alone
sufficient to support grounds for terminating Mother’s parental
rights.
¶5 	Parents next argue that the juvenile court violated Utah
law by requiring Mother to sign a Division of Occupational and
Professional Licensing (DOPL) release so that the State could
determine what medications she was taking and if any of those
medications affected her drug tests. See Utah Code Ann. § 58-37f-
302(2) (LexisNexis 2016). However, Parents did not object to the
juvenile court’s order. Accordingly, Parents failed to preserve
the issue for appeal, and we do not address it. See In re S.Y., 2003
UT App 66,¶ 10 (“Where a party fails to bring an issue to the
juvenile court’s attention, that party is barred from asserting it
on appeal absent a showing of exceptional circumstances or
plain error.” (quotation simplified).
¶6 	Parents next contend that the juvenile court clearly erred
in finding that Father failed to comply with the court’s order by
not obtaining a substance abuse evaluation. Father is correct that
the juvenile court never ordered him to obtain a substance abuse
evaluation. As a result, the juvenile court erred in finding that he

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20180252-CA 	4 	2018 UT App 125
violated 	its 	order 	by 	failing 	to 	submit 	to 	the 	evaluation.
However, Parents have not alleged, much less demonstrated,
that they were harmed in any way by the error. “[H]armless
error is an error that is sufficiently inconsequential that there is
no reasonable likelihood that it affected the outcome of the
proceedings. Put differently, an error is harmful only if the
likelihood of a different outcome is sufficiently high that it
undermines our confidence in the verdict.” State v. Evans, 2001
UT 22, ¶ 20, 20 P.3d 888. Here, while the findings do contain the
error indicated by Father, the findings of fact later go on to
specify that with the exception of drug testing, all services
offered 	to 	Father 	were 	voluntary. 	Thus, 	despite 	the 	error
appearing in one portion of the findings of fact, it is clear that the
juvenile court was keenly aware of the nature of its prior orders
and their voluntary nature. Further, it does not appear that the
juvenile court relied on that statement in making its ultimate
conclusions of law. Under the circumstances, it is not reasonably
likely that the improper inclusion of the statement that Father
had violated the court’s order by not obtaining a substance
abuse evaluation affected the outcome of the proceedings.
¶7 	Parents also assert that the juvenile court erred in making
certain findings concerning Mother’s interaction with a doctor
and 	his 	staff. 	The 	transcript 	of 	the 	doctor’s 	testimony
demonstrates 	that 	Mother 	did 	have 	a 	loud, 	extended
confrontation with the doctor’s staff, and as a result of that
confrontation, the doctor determined that he could not meet
with Mother during business hours. Further, the doctor had
sufficient concerns about his interaction with Mother that he
wrote a letter to DCFS regarding Mother’s behavior toward his
staff. While the finding that Mother was so threatening to his
staff 	that 	the 	doctor 	refused 	to 	meet 	with 	Mother 	during
business hours as a means to protect his staff and patients may
have been inartfully drafted, it is supported by the record.
Mother’s behavior was erratic, and the doctor was worried
enough 	about 	Mother’s 	potential 	behavior 	as 	to 	not 	want
patients or staff around when he met with her. Thus, Mother has
failed to demonstrate that the finding was clearly erroneous.

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20180252-CA 	5 	2018 UT App 125
¶8 	Finally, Parents argue that the juvenile court erred in
admitting evidence of their criminal history over their objections
based 	on 	rule 	404(b) 	of 	the 	Utah 	Rules of 	Evidence. 	Rule
404(b)(1) states, “Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on
a particular occasion the person acted in conformity with the
character.” But, the “evidence may be admissible for another
purpose, 	such 	as 	proving 	motive, 	opportunity, 	intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Id. R. 404(b)(2). Here, the prior convictions
were not admitted to demonstrate that on a particular occasion
Parents “acted in conformity” with their prior bad acts. Instead,
the evidence was relevant to their parental competency and their
ability to provide stable and appropriate care for their children.
Such 	criminal 	histories are 	relevant 	to 	parental 	termination
proceedings. See In re A.C.M., 2009 UT 30, ¶ 25, 221 P.3d 185
(stating 	that 	the 	juvenile 	court 	could 	consider 	a 	parent’s
“extensive criminal history and pervasive fraudulent behavior as
grounds for termination”). The juvenile court therefore did not
err in admitting evidence of Parents’ criminal histories.
¶9 	Affirmed.