D.D.B. v. J. L.C. (In re Interest of G.J.C.)

379 P.3d 58

2016 UT App 147

In the Interest of G.J.C., a person under eighteen years of age.

D.D.B., Appellant,

v.J.L.C., Appellee.

No. 20150432–CA

Court of Appeals of Utah.

Filed July 14, 2016

Paul W. Mortensen, Salt Lake City, Attorney for Appellant

J.L.C., Appellee Pro Se

Martha Pierce, Salt Lake City, Guardian ad Litem

Judge Kate A. Toomey authored this Opinion, in which Judges J. Frederic Voros Jr. and Stephen L. Roth concurred.

Opinion

TOOMEY, Judge:

¶1 The primary issue in this appeal is whether the juvenile court improperly denied D.D.B.'s (Mother) petition to terminate J.L.C.'s (Father) parental rights to their son, G.J.C. (Child). Because we conclude the court's decision regarding Child's best interest was against the clear weight of the evidence, we reverse its order and remand for the juvenile court to enter an order terminating Father's parental rights.

BACKGROUND

¶2 Child was born in March 2008 while the parties were married. But they separated in June 2009, and Mother filed for divorce one month later. Stipulated orders from the divorce court granted Mother sole physical custody of Child and granted Father the minimum statutory parent-time. Since the parties' separation, Child and Mother have continuously lived with Mother's parents.

¶3 In November 2009, Mother obtained a permanent protective order against Father based on threats he made against Mother and her parents. This protective order allowed Father to maintain his parent-time schedule with Child but required him to arrange for third parties to assist with exchanging Child. The order also limited Father's communications with Mother to only those regarding Child.

¶4 Upset with the parent-time arrangements, between November 2009 and October 2010, Father repeatedly violated the provisions of the court's orders by threatening Mother and refusing to return Child to her for days or weeks. In particular, in July 2010, Father refused to return Child to Mother following a visit, and Mother's attorney reminded Father of the court-ordered parent-time schedule.¹ Father responded to Mother's attorney via text message, “This approach may cost your family and hers more than your willing to wager its not a smart move to try and corner a resourceful man.” Mother and her attorney reported Father's threats to law enforcement officials.

¶5 On August 10, 2010, Father again refused to return Child to Mother, but nevertheless he appeared at a hearing regarding the parties' divorce on August 18. At the hearing, the court commissioner declared that Father's messages to Mother's attorney could only be construed as a threat against the attorney and his family and ordered Father to “immediately cease all threatening communications.” The court also certified to the district court issues of contempt of court against Father for, among other things, his refusal to pay child support. Finally, the commissioner ordered Father to inform the court of Child's whereabouts. Father stated that Child was with Father's mother. The court then ordered Father to wait at the court while law enforcement officers accompanied Mother to Father's mother's home to retrieve Child. Father was later convicted of criminal custodial interference for his actions related to this incident.

¶6 In September 2010, Father again refused to return Child to Mother, demanding to speak personally with Mother. Although Mother pleaded for Child's return, by October 2, Father still had not returned Child to Mother. Instead, he left her a menacing voicemail in which she could hear him telling Child, who was crying in the background, “Tell your mommy to come get you.” Mother then applied for a writ of assistance to receive law enforcement's help to get Child. But the next day, October 6, before the writ of assistance had been delivered to law enforcement, Father called Mother's parents to tell them he would return Child at an arranged location.

¶7 But instead of returning Child, Father left him with Father's sister and drove alone to the agreed-upon location. Mother's parents left Mother at a nearby store, and, when they arrived at the location, Father jumped in their car and demanded they take him to Mother. According to Mother's parents, Father threatened them with a handgun and threatened to shoot them if they did not comply. They refused. At a stop sign, Mother's mother jumped out of the car. Father also exited the car and threatened to shoot her if she did not return to the car. She ran away. Father got back into the car and had Mother's father return them to the prior location, where he fled the scene. Father was later apprehended in Wendover, Nevada, and charged with two counts of kidnapping. Law enforcement officers found Child with Father's sister, and he was returned to Mother.

¶8 In addition to his previous protective order violations, by June 2011, while he was out of jail on bail, Father was arrested and charged with several new criminal offenses, including criminal custodial interference, driving with a measurable controlled substance, and reckless driving. Father also failed to follow through with Adult Probation and Parole (AP&P) reporting requirements and tested positive for methamphetamines.

¶9 In December 2011, Father pleaded guilty to reduced charges of attempted kidnapping. After pleading guilty, Father failed to report to AP&P for his presentence interview and failed to appear for his sentencing. Law enforcement officers later arrested him and held him in jail until March 2012, at which time Father was committed to the Utah State Prison for two concurrent zero-to-five-year sentences for the attempted kidnapping convictions.

¶10 In May 2014, Mother filed a petition to terminate Father's parental rights to Child on the grounds that Father was unfit and that termination would be in Child's best interest.² At the termination trial in January 2015, the juvenile court heard testimony from Mother, Father, Mother's parents, Father's mother, Mother's mental health counselor, Mother's prior attorney, and a probation officer. In particular, Mother testified that early in their marriage Father became violent and had outbursts of anger, and that she divorced him because of his drug abuse. Although she did not contact the Division of Child and Family Services to perform a welfare check, she testified that she often had concerns for Child's welfare when he was with Father because she believed Father was neglectful when he was using drugs. Importantly, she expressed that she was especially worried about Child's safety once Father is released from prison, and stated, “I don't think that that is very safe for my child.” But she also testified that she felt that all Father's anger was directed at her. Mother further testified that although Father sent Child cards from prison, she has kept them from Child because she believed he is better off without Father.

¶11 Father, representing himself, cross-examined each witness and testified on his own behalf. He conceded that until the fall of 2010, he had paid only approximately $1,000 of the nearly $20,000 he owed in child support. Father also testified that he had been expelled from the prison drug treatment programs three times and had no intention of going back because he did not go to prison for drug issues and didn't feel that the treatment was “beneficial.” He further conceded that he had an extensive criminal history and since being incarcerated had been found in violation of a number of prison rules. With regard to his violations of the parent-time order, Father testified that he believed he was being “railroaded” by the court and that he had not violated the terms of his parent-time because he was allowed to keep Child for longer visits for statutorily allowed summer vacation. With regard to the kidnapping and other threats, when asked questions, Father either invoked his right not to incriminate himself further³ or minimized his conduct, reasoning that his threats were “simply words,” “there's no physical abuse,” and “[he's] never put hands on any of them.”

¶12 Mother's parents testified about their relationship with Child and about the October 2010 kidnapping. Specifically, Mother's father testified he had often facilitated the exchange of Child between Mother and Father, but had to stop because it was too hard to watch Child “scream and cry” when he had to visit Father. He also testified that he paid for Mother and Child to have private security to protect them from Father. Finally, Mother's father testified he believed that since the parties' separation he has acted as Child's father because Child lives with him and that he took care of Child's emotional and financial needs. Mother's parents each testified that they had the financial ability to continue to help care for Mother and Child, that Child is a happy and well-adjusted child, and that they believed permanency would be best for Child. Mother's mother also testified about her experience during the attempted kidnapping. She recalled that Father was upset, took their cellphones, and wanted them to take him to see Mother, but they refused because it was in violation of a protective order. She further testified that, when she jumped out of the car, Father pointed a gun inches from her face and stated, “ ‘Get back in the car or, I swear to God, I'll blow your ... brains all over the sidewalk.’ ”

¶13 Mother's mental health counselor testified that, based on Father's criminal behavior and Mother's descriptions of his conduct, Father likely met the criteria for antisocial personality disorder, which could negatively affect Child. Father's supervising probation officer at AP&P testified that after supervising Father between August 2011 and March 2012 he believed Father lacked accountability and did not appreciate the severity of his crimes.

¶14 Finally, Father's mother testified about her relationship with Child and her son. She testified that, despite many attempts to contact Mother after the kidnapping, Mother refused to...