B.E. v. R.E.

MEMORANDUM DECISION BENCH, Judge: T1 RE. (Father) appeals the termination of his parental rights in T.RE. (Child), claiming that the juvenile court abused its discretion by finding (1) that Father had not rebutted the prima facie evidence of abandonment and (2) that termination was in Child's best interests. When reviewing the decision to terminate parental rights, "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, experiencel,] and interest in this field." In re A.B., 2007 UT App 286, ¶ 10, 168 P.3d 820 (alteration in original) (internal quotation marks omitted). Thus, "[wle will not disturb the juvenile court's findings and conclusions unless the evidence clearly preponderates [878] against the findings as made or the court has abused its discretion." In re R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d 1118 (alteration in original) (internal quotation marks omitted). 12 "The court may terminate all parental rights with respect to a parent if the court finds ... that the parent has abandoned the child...." Utah Code Ann. § 78A-6-507(1)(a) (2008). "[Ilt is prima fa-cie evidence of abandonment that the parent . ha[ls] failed to communicate with the child by mail, telephone, or otherwise for six months...." Id. § 78A-6-508(1)(b). "[Olncee a prima facie case of abandonment is shown, the burden shifts to the parent to rebut abandonment." In re M.S., 815 P.2d 1325, 1329 (Utah Ct.App.1991). If the parent fails to rebut the prima facie evidence of abandonment, "the court shall then consider the welfare and best interest of the child ... [to] determin{e] whether termination of parental rights shall be ordered." Utah Code Ann. § 78A-6-508(2) (2008). 3 After hearing the evidence, the juvenile court found two prima facie cases of abandonment based on two periods of time during which Father failed to communicate with Child for more than six months: (1) February 2004 to January 2006 1 and (2) April 2007 to December 2007. The juvenile court also found that "there [was] no reasonable justification in any of the evidence presented to the [clourt for [Father] having no contact with [Child] from April 2007 to December 2007." With respect to Father's claims that Mother had interfered with his attempts to communicate with Child, the juvenile court found that Father had shown that "Mother desired that Father not be a part of [Child]'s life, but Father did not prove that Mother took action to bring her desires to pass." The court acknowledged that Father's mother (Grandmother) had attempted to telephone Mother to arrange for Father to visit Child. The court concluded, however, that these attempts were insufficient to rebut the abandonment presumption for two reasons: (1) the efforts were made by Grandmother instead of Father and (2) even if Father requested that Grandmother make the calls, that request would constitute only a "token effort[ ]." In other words, Father "did virtually nothing himself" to arrange visitation with Child. {4 The evidence does not clearly preponderate against the juvenile court's findings and conclusion that Father did not rebut the presumption of abandonment. In only one instance did Mother wrongly refuse Father's demand for visitation, which occurred in December 2007-nine months after Father had stopped communicating with Child. On his part, Father initially visited Child consistently after Father and Mother separated in 2001. However, after the divoree in 2008 and again starting in February 2006, Father began missing visits, visiting only sporadically, and eventually not visiting Child at all. Although Mother was genuinely interested in having Father be a part of Child's life after the parties divorced, she became content with letting Father remove himself from Child's life. In October 2007, seven months after Father ceased communication, Mother demonstrated her desire that Father no longer be a part of Child's life by reacting angrily to school officials who had permitted Grandmother to visit Child when Grandmother had not first asked permission or notified Mother of the visit. Mother testified as to legitimate reasons for changing Child's school enrollment and for moving to a new home in early 2008, which move was after the relevant period of abandonment.2 T5 The juvenile court also found that Child's best interests were served by terminating Father's parental rights because negative influence and repeated inconsistent influence were detrimental to Child and because "[t]o do anything other than terminate would do nothing but prolong turmoil in [879] [Child]'s life." The evidence at trial showed that Father's inconsistency had a negative effect on Child, especially given Child's ADHD and Asperger's disorder. The evidence also showed that some of the inconsistency and the majority of the lack of communication came about because of Father's animosity toward Mother. Father testified under oath that he refused to talk to Mother because of their past, and he affirmed his continuing refusal to do so by also stating under oath, "There is nothing that anyone can do to change my mind.3 In light of this evidence, the juvenile court did not abuse its discretion in finding that Father's "sustained animosity jeopardized the welfare and best interest of [Child]" and that attempting to order Father to cooperate and put his feelings aside would be futile.4 16 We disagree with the dissent's interpretation and application of the statute permitting termination of parental rights based on abandonment. See infra TU 15-16 (discussing Utah Code section 78¥A-6-508(1)). While we interpret a statute by looking at its plain language, "we [also] try to read the plain language of a statute as a whole, with due consideration of the other provisions and in an effort to interpret them in harmony with each other and with other statutes under the same and related chapters." Dale T. Smith & Sons v. Utah Labor Comm'n, 2009 UT 19, ¶ 7, 627 Utah Adv. Rep. 3, 208 P.3d 5338 (emphasis added) (internal quotation marks omitted). Although there is no "token efforts" exception to the six-month rule enun-clated in Utah Code section 78A-6-508(1)(b), the code section allowing termination of parental rights for abandonment explicitly states that "[the court may terminate all parental rights with respect to a parent if the court finds ... that only token efforts have been made by the parent ... to ... communicate with the child." Utah Code Ann. § T78A-6-507(1)(F)(i) (emphasis added). The dissent's stilted construction of Utah Code section T8A-6-508(1)(b) would permit even the most minimal and superficial attempts to contact a child to qualify as "communication" sufficient to prevent a finding of abandonment. T7 Furthermore, even assuming the correctness of the dissent's construction of Utah Code section 78A-6-508(1)(b), this case can easily be affirmed on the alternative ground that Father made only token efforts to communicate with Child. See Advanced Restoration, LLC v. Priskos, 2005 UT App 505, 1 29 n. 6, 126 P.3d 786 ("[I]t is well established that we may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action, and this is true even though such ground or theory is not urged or argued on appeal by appellee, was not raised in the lower court, and was not considered or passed on by the lower court." (internal quotation marks omitted)). This court has upheld a finding of token efforts where a father maintained an "infrequent visitation schedule[ ] ... [and] placed but one phone call or mailed one card to [his child] every four to six months." In re Adoption of B.O., 927 P.2d 202, 203 (Utah Ct.App.1996). Father's actions in this case clearly fall within this definition of "token efforts," and the record certainly supports termination of Father's [880] parental rights on this alternative ground.5 8 We conclude that the evidence presented does not clearly preponderate against the juvenile court's finding that Father had abandoned Child and that Father failed to rebut the presumption of abandonment. The entirety of Father's evidence that Mother interfered with his attempts to communicate with Child was that Mother did not answer or return a handful of phone calls made by Grandmother over a several-month period. Mother's less-than-perfect behavior in this regard does not negate the fact that Father failed to communicate with Child on his own-such as by telephoning Child himself or attempting to visit Child in person-nor does it negate Father's unwillingness to "change his approach to parenting" in order to find more effective avenues for such communication. Given that there was no evidence that Father would adjust his behavior to become a more consistent parent to Child, the juvenile court did not abuse its discretion in determining that it was in Child's best interests to terminate Father's parental rights. 9 Accordingly, we affirm. {10 I CONCUR: CAROLYN B. McHUGH, Judge. Footnotes [1] The juvenile court found that Father did not visit Child during this first period of abandonment due to the protective order Mother obtained after smelling marijuana smoke in Father's residence following Child's visit there. The juvenile court did not further focus on this period, having found that Father's resumption of communication with Child in 2006 mooted the prior lack of contact. [2] Our conclusion that Father, in this case, has failed to prove that Mother interfered with his visitation is not intended to justify uncooperative behavior on the part of custodial parents. [3] The fact that Father's outburst at a subsequent hearing influenced the juvenile court's ultimate decision does not present any impropriety given that trial courts are permitted, even at times expected, to "observe[] 'facts' such as the witness's appearance and demeanor[] relevant to the application of the law." See Department of Human Servs. ex rel. Parker v. Irizarry, 945 P.2d 676, 681 (Utah 1997); State v. Abel, 600 P.2d 994, 997 (Utah 1979) ("[DJemeanor evidence has long been considered of great value to a trier of fact...."); Hardcastle v. Hardcastle, 118 Utah 192, 221 P.2d 883, 887 (1950) (stating for purposes of determining the best interests of a child in a custody dispute, the trial court "had the benefit of seeing the litigants, observing their demeanor, and noting their hostility towards each other"). Furthermore, the belligerent outburst merely confirmed testimonial evidence already in the record: Father refused to talk to Mother. [4] The juvenile court specifically noted that this was the second time that Father had responded to a petition to terminate his parental rights, and it concluded that the previous proceeding had not served as a "wake up call" as would be expected. [5] The dissent also ignores the fact that the trial court explicitly found that, in his pattern of sporadic and inconsistent visitation, "'Father has not shown the normal interest of a Father in relation to the child." Failure to show "the normal interest of a natural parent, without just cause" also constitutes "prima facie evidence of abandonment." Utah Code Ann. § 78A-6-508(1)(c) (2008).