In re O.H. (C.H. v. State)

2013 UT App 293
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF O.H., A PERSON UNDER
EIGHTEEN YEARS OF AGE.
____________
C.H.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20130914-CA
Filed December 12, 2013
Third District Juvenile Court, Salt Lake Department
The Honorable Julie V. Lund
No. 1075299
Julie George, Attorney for Appellant
Brian L. Tarbet and Carol L.C. Verdoia, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES GREGORY K. ORME, CAROLYN B. MCHUGH, and
STEPHEN L. ROTH.
PER CURIAM:
¶1 C.H. (Father) appeals the termination of his parental rights.
Father challenges the sufficiency of the evidence to support the
grounds for termination and the best interests determination,
arguing that the juvenile court did not adequately consider the fact
that O.H. was not in an adoptive placement at the time of the
termination trial. We affirm.

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¶2 “[I]n order to overturn the juvenile court’s decision [to
terminate parental rights], the 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 (citation and internal quotation marks
omitted). 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 when, in
light of the evidence supporting the finding, it is against the clear
weight of the evidence. See id. Therefore, “[w]hen 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 In order to find grounds for termination of parental rights,
a juvenile court must conclude that at least one of the grounds
enumerated in Utah Code section 78A-6-507 exists. See Utah Code
Ann. § 78A-6-507 (LexisNexis 2012). The evidence amply supports
the juvenile court’s conclusions that Father neglected O.H. and was
an unfit parent because “he has demonstrated a habitual use of
intoxicating substances that have rendered him unable to
effectively parent his child in that it has led to his repeated
incarceration and an inability to meet the special needs of his
child.” See id. § 78A-6-508(2)(c) (stating that in determining
unfitness or neglect, a court shall consider habitual use of
controlled substances and drugs that render a parent unable to care
for the child). The evidence also supports the juvenile court’s
conclusion that O.H. was being cared for in an out-of-home
placement, that Father has substantially neglected, willfully refused
or has been unwilling or unable to remedy the circumstances that
caused O.H. to be in an out-of-home placement, and that there is a
substantial likelihood that Father will not be able to exercise proper
and effective parental care in the near future. See id. § 78A-6-
507(1)(d). In addition, the evidence supports the juvenile court’s
conclusion that it was in O.H.’s best interests to terminate Father’s
parental rights so O.H. “can be legally free and adopted by a family
where his medical, emotional, and physical needs will be met and

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where he will be secure, stable, loved and protected from abuse
and neglect.”
¶4 Father has abused drugs since roughly the age of nineteen,
using marijuana, alcohol, methamphetamine, heroin, and ecstasy.
Father testified that prior to his incarceration, he used
methamphetamine and marijuana daily while caring for O.H. He
did not believe that his drug use impacted his ability to parent O.H.
In a parenting assessment conducted early in the case, the
evaluator noted that Father reported he never had a significant
period of abstinence from the use of illegal substances and that
Father downplayed the severity of his addictive behavior. The
evaluator concluded that without “aggressive rehabilitation” and
“a sustained display of non-addictive behavior,” Father would not
be able to provide for his son’s basic, ongoing care. The evaluation
also noted Father’s lack of stability. While in jail, Father graduated
from CATS (Correctional Addiction Treatment Services), which
included ninety-three days of treatment. However, Father had not
engaged in treatment since his release, and the only evidence of
sobriety was his own self-serving testimony. Father had housing
with three roommates he had recently met. He testified that he was
starting a full-time job on the following Monday, but he could not
remember the name of the company. He did not have support from
his own family members, from whom he was estranged, but he
testified that he would have support from O.H.’s maternal
grandparents, who were previously found by the juvenile court to
abuse alcohol and to be inappropriate caretakers for O.H. Based
upon the foregoing, the juvenile court’s conclusions regarding the
grounds for termination of parental neglect are amply supported.
¶5 The best interests determination was also adequately
supported. O.H. has severe cerebral palsy and requires structured
supervision and therapeutic interventions by his caregivers. Father
testified that he was the primary caregiver for O.H. up to the week
before O.H. came into the custody of the Division of Child and
Family Services (DCFS). When O.H. came into foster care, he had
trouble swallowing foods with any texture. His muscles were rigid,

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he had no muscle strength, and he tired easily. He had difficulty
rolling over, did not talk or babble, and rarely made eye contact.
Father did not dispute O.H.’s condition when he came into foster
care, but he implausibly testified that O.H.’s condition deteriorated
in the week between his incarceration and O.H. coming into DCFS
custody. Since being in foster care, O.H. has received physical,
occupational, and speech therapy. He uses a wheelchair and a
walker, eats table food, attends preschool, and interacts with
others. The foster mother testified about the care and adaptive
devices that O.H. will require, including one to two hours per day
for exercises in addition to his appointments. The juvenile court
found that O.H. will require a caregiver who is patient, consistent,
stable, and able to provide a structured environment. The juvenile
court found that despite Father’s love for and bond with O.H.,
Father could not provide the necessary consistency, stability, and
structure for O.H. at the time of trial and it was “unlikely, based
upon his recent history, that he would be in a position to do so in
the near future.” Although the juvenile court specifically found that
O.H. was not in a prospective adoptive placement, the court found
that he was an adoptable child and that DCFS was making efforts
to locate an adoptive home where his special needs could continue
to be met.
¶6 Father claims that the juvenile court failed to adequately
consider the fact that O.H. was not in a prospective adoptive
placement. The record demonstrates otherwise. The foster mother
testified that she had concluded that she was unable to adopt O.H.,
and the availability of a prospective adoptive home is a relevant
factor in determining whether termination would be in a child’s
best interests. See In re J.D., 2011 UT App 184, ¶ 23, 257 P.3d 1062
(stating that lack of an adoptive placement “was not controlling
with regard to the Children’s best interest,” but it was a factor to be
considered). Father argued to the court that he should be allowed
additional time and reunification services while O.H. remained in
foster care and was on an adoption exchange, after which the court
could reevaluate the case. The State argued that Father’s proposal
would impede the State in locating a prospective foster home and

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seeking funding for the services that would be needed to care for
O.H. The record reflects that the juvenile court considered the
positions of both the State and Father in reaching its decision.
Father’s contention that the juvenile court did not adequately
consider the factor that O.H. was not in a prospective adoptive
home is without merit. Father simply disagrees with the weight
that the juvenile court gave to this factor in arriving at the ultimate
decision.
¶7 The record amply supports the juvenile court’s findings of
grounds for termination and the best interests determination.
Father presented no evidence of his sobriety other than his own
self-serving testimony. In sum, he testified in conclusory terms that
he would do all that was necessary to care for O.H. without an
adequate demonstration of his ability to do so. The totality of the
evidence supports the juvenile court’s conclusion that Father has
not demonstrated that he will be able to provide appropriate,
stable, and consistent care for O.H. in the near future. Because “a
foundation for the court’s decision exists in the evidence,” we
affirm the juvenile court’s decision terminating parental rights. See
In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.