Utah Court of Appeals
Can extended parental incarceration alone support termination of parental rights? In re D.V. Explained
Summary
Father appealed the termination of his parental rights to D.V. and A.V. Father had been incarcerated for most of the last twenty years with no parole hearing until 2019, had never met D.V., and only briefly participated in A.V.’s early care. The children were removed from Mother’s custody and placed in DCFS custody and foster care.
Practice Areas & Topics
Analysis
The Utah Court of Appeals addressed whether extended parental incarceration can support termination of parental rights in In re D.V., 2017 UT App 80. The case clarifies that while incarceration alone may not justify termination, it can be a significant factor when combined with other circumstances.
Background and Facts
Father had been incarcerated in Utah State Prison for most of the preceding twenty years with no parole hearing scheduled until June 2019. He participated in caring for A.V. only during her early months and had never met D.V. The children were removed from Mother’s custody for the third time and placed in DCFS custody and foster care. The juvenile court found grounds for termination under multiple statutory provisions, including that Father was an unfit or incompetent parent and had neglected the children.
Key Legal Issues
The central issue was whether Father’s lengthy incarceration alone could support findings of parental unfitness and neglect under Utah Code section 78A-6-508(2)(e), which considers “whether the parent is incarcerated as a result of conviction of a felony and the sentence is of such length that the children will be deprived of a normal home for more than one year.”
Court’s Analysis and Holding
The court emphasized that the statute is written in future tense, focusing on whether children “will be” deprived of a normal home rather than requiring proof of past deprivation. The court rejected Father’s argument that incarceration was the sole basis for termination, noting the juvenile court’s findings included Father’s extensive criminal history, minimal participation in child care, and the children’s placement in state custody. Citing In re D.B., the court explained that termination is appropriate when children cannot return to their normal home and will be deprived of such for over a year.
Practice Implications
This decision demonstrates that incarceration combined with other factors can support termination findings. Practitioners should examine the totality of circumstances rather than focusing solely on sentence length, and consider whether children have alternative stable placements that constitute their “normal home.”
Case Details
Case Name
In re D.V.
Citation
2017 UT App 80
Court
Utah Court of Appeals
Case Number
No. 20170194-CA
Date Decided
May 11, 2017
Outcome
Affirmed
Holding
A parent’s extended incarceration combined with other factors including extensive criminal history, inability to participate in child care, and the child’s deprivation of a normal home for more than one year supports termination of parental rights under Utah Code section 78A-6-507.
Standard of Review
Mixed question of law and fact with high degree of deference; 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
Practice Tip
When challenging termination based on incarceration, focus on whether the child will actually be deprived of a normal home rather than just the length of the prison sentence, as Utah Code section 78A-6-508(2)(e) is written in future tense.
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