B.C. v. State (In Re State Ex Rel. B.C.)

2018 UT App 125

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF B.C. AND A.C.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.

B.C. AND T.C.,
Appellants,
v.
STATE OF UTAH,
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. ORME, MICHELE M. CHRISTIANSEN, and
RYAN 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
In re B.C.

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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In re B.C.

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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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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In re B.C.

¶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.

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