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In re B.A. – 2017 UT App 201 and 2017 UT App 202 – termination of parental rights

2017 UT App 201

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF B.A.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

R.A.,

Appellant,

STATE OF UTAH, Appellee.

Opinion

No. 20160703-CA

Filed November 9, 2017

Third District Juvenile Court, West Jordan Department

The Honorable Renee M. Jimenez No. 1109173

Joseph Lee Nemelka, Attorney for Appellant

Sean D. Reyes, John M. Peterson, and Emily I.

Iwasaki, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

CHRISTIANSEN, Judge:

¶1 R.A. (Father) appeals the juvenile court’s order terminating his parental rights to B.A. (Child). Father contends that the evidence was insufficient to support the juvenile court’s findings regarding Father’s fitness to parent and Child’s best interests. Father also contends that the juvenile court improperly terminated his parental rights based upon his failure to comply with the child and family service plan (the Service Plan). Finally, Father contends that the juvenile court erred by allowing a lay witness to give expert witness testimony despite not being designated as an expert. We conclude that the evidence presented at trial was sufficient to support the juvenile court’s findings, that the court did not terminate Father’s parental rights solely due to his failure to comply with the Service Plan, and that Father failed to adequately brief his witness contention; consequently, we affirm.

¶2 We recognize that juvenile court judges have special training, experience, and interest in their field, as well as the opportunity to judge credibility firsthand; consequently, we review a juvenile court’s decision to terminate parental rights deferentially and will not disturb the juvenile court’s findings and conclusions unless the preponderance of the evidence clearly militates against the findings made or the court has otherwise abused its discretion. In re A.B., 2007 UT App 286, ¶ 10, 168 P.3d 820; In re R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d 1118.

¶3 “Utah law requires a court to make two distinct findings before terminating a parent-child relationship.” In re R.A.J., 1999 UT App 329, ¶ 7. “First, the court must find that the parent is below some minimum threshold of fitness, such as finding that a parent is unfit or incompetent based on any of the grounds for termination” enumerated in Utah Code section 78A-6-507. Id. (citation and internal quotation marks omitted). See generally Utah Code Ann. § 78A-6-507(1) (LexisNexis 2012) (listing the grounds for termination of parental rights). “Second, the court must find that the best interests and welfare of the child are served by terminating the parents’ parental rights.” In re R.A.J., 1999 UT App 329, ¶ 7.

  1. Unfitness

¶4 Father first contends that the evidence was insufficient for the juvenile court to have properly found that he fell below the minimum threshold of parental fitness. Father challenges the juvenile court’s findings that: (1) he neglected Child, (2) he was an unfit or incompetent parent, (3) he had willfully refused or was unable or unwilling to remedy the circumstances that caused Child to be in an out-of-home placement, and (4) there was a substantial likelihood that Father would not be capable of exercising proper and effective parental care in the near future.

¶5 We will uphold the termination of Father’s parental rights so long as any one of the above-stated grounds was supported by sufficient evidence. See Utah Code Ann. § 78A-6-507(1). One of the grounds for termination set forth in the statute is whether the parent is unfit due to “habitual or excessive use of intoxicating liquors, controlled substances, or dangerous drugs that render the parent unable to care for the child.” See id. § 78A6-507(1)(c); id. § 78A-6-508(2)(c). Here, between the time the juvenile court first ordered Father to submit to random drug testing and the date of trial, Father was required to submit to drug testing over 100 times, but he only appeared for testing on 15 occasions. Of those 15 occasions, he tested positive for controlled substances on 4 occasions. Additionally, while this child-welfare case was pending, police investigated a domesticviolence incident involving Father, and Father admitted to them that he had “been using Spice.”

¶6 After this evidence was presented at trial, the juvenile court found that “[Father] has missed a majority of the required drug tests” and that “[Father] has been inconsistent in his drug testing, having only tested on a few occasions.” The court also noted Father’s positive tests for controlled substances and his admission to drug use. The court concluded that, for these and other reasons, Father was “unfit or incompetent, thereby justifying the termination of [his] parental rights.”

¶7 On appeal, Father challenges neither the admissibility nor the accuracy of the drug test evidence. In fact, Father mentions drug testing only to describe the procedural history of the case and does not refer to drugs or drug testing anywhere in his arguments. Given the uncontested evidence of Father’s drug use, we must conclude that a foundation existed for the juvenile court’s determination that Father was an unfit parent due to his continuing use of controlled substances. And “[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, 171 P.3d 435.

¶8 Because the evidence does not “clearly preponderate[] against the findings” made by the juvenile court relating to Father’s drug use, we will not disturb the drug-use findings or the conclusions resting upon them. See In re A.B., 2007 UT App 286, ¶ 10, 168 P.3d 820. Because this was a sufficient basis for the juvenile court’s conclusion that Father fell below the minimum threshold of parental fitness, we need not and do not review Father’s challenges to the other factual bases articulated by the court in support of that conclusion.

  1. Best Interests

¶9 Father also contends that the evidence was insufficient for the juvenile court to have properly found that termination of Father’s parental rights was in Child’s best interests. See generally Utah Code Ann. § 78A-6-509(1) (LexisNexis 2012) (listing factors a juvenile court must consider before terminating a noncustodial parent’s rights); id. § 78A-6-510 (listing factors a juvenile court must consider before terminating parental rights to a child currently placed in a foster home). Specifically, Father asserts the juvenile court based its findings in this regard “substantially on testimony” given by the mother of the foster family (Foster Mother). Father attacks Foster Mother’s credibility on the ground that “Foster Mother’s overarching desire to adopt [Child] substantially weakens Foster Mother’s testimony and the weight that the court should afford [that testimony].” Father then asserts that, as a result of Foster Mother’s alleged lack of credibility, there was “limited evidence in favor” of termination and “ample evidence on the record to suggest otherwise.”

¶10 It is the province of the factfinder to consider the potential biases of a witness when determining what weight to assign to that witness’s testimony. Here, the factfinder—the juvenile court—was aware that Foster Mother wanted to adopt Child and thus that her testimony was potentially biased. The court nonetheless credited certain aspects of her testimony. On appeal, we will not substitute our judgment of evidentiary weight and credibility for that made by the juvenile court. In re A.K., 2015 UT App 39, ¶ 25, 344 P.3d 1153; In re J.P., 2003 UT App 297U, para. 4.

¶11 Because Foster Mother’s testimony, even in light of her possible bias, along with extensive other record evidence, provided a sufficient foundation for the juvenile court’s ultimate decision that termination of Father’s parental rights was in Child’s best interests, we cannot reweigh that evidence and thus do not disturb the juvenile court’s determination. See In re B.R., 2007 UT 82, ¶ 12.[1]

  • Service Plan

¶12 Father further contends that the juvenile court improperly terminated his parental rights “on the basis that [he] failed to complete the requirements” of the Service Plan.[2] “The court may not terminate the parental rights of a parent because the parent has failed to complete the requirements of a child and family plan.” Utah Code Ann. § 78A-6-507(2) (LexisNexis 2012).

¶13 Father argues that “the juvenile court made a specific finding that as a result of Father not complying with [the Service Plan], he ‘demonstrated a failure of parental adjustment, unfitness and/or neglect and failure to remedy out-of-home placement.’” Father asserts, “Thus, the juvenile court clearly associated Father’s failure to complete the requirements of the service plan with its grounds for termination of his parental rights.”

¶14 Father’s argument is misplaced. The statute does not prohibit a juvenile court from considering a parent’s failure to comply with a child and family plan as part of the calculus of parental unfitness; rather, the juvenile court may not terminate the parent’s rights solely because the parent did not comply with the plan or to punish the parent for noncompliance. See In re J.T., 2012 UT App 253, ¶ 3, 286 P.3d 960 (per curiam). Indeed, “fail[ure] to comply substantially with the terms and conditions of a plan . . . is evidence of failure of parental adjustment.” Utah Code Ann. § 78A-6-508(5). And the juvenile court’s ruling makes clear that it considered Father’s noncompliance only as evidence of Father’s nonadjustment, unfitness, and failure to remedy the circumstances leading to the out-of-home placement.

¶15 Because the court treated Father’s noncompliance merely as evidence pertinent to other issues, and did not terminate Father’s parental rights solely for his failure to comply with the Service Plan put in place by the court, we conclude that the court did not err in considering Father’s noncompliance.

  1. Witness

¶16 Finally, Father contends that “[t]he juvenile court erred by allowing a lay witness to testify as an expert.” More specifically, Father challenges the testimony of Child’s therapist (Therapist).

¶17 At trial, Therapist testified that she had conducted a mental health assessment of Child and diagnosed him with “other specified depressive disorder.” Therapist recounted Child’s behaviors and symptoms that had led to that diagnosis. Therapist also testified that Child had previously been diagnosed with ADHD by another medical professional and stated which behaviors would be consistent with the ADHD diagnosis. After the State asked Therapist to explain other specified depressive disorder, Father objected that Therapist was not an expert witness. The court eventually sustained the objection, specifically preventing Therapist from testifying as to “[w]hat constitutes other specified depressive disorder.”

¶18 During Father’s cross-examination, Therapist stated that “ADHD can affect executive function in kids.” Father asked if she could have made that statement without her training. After she responded, “No,” Father then asked the court to “discount, if not strike, any evidence from this witness.” (Emphasis added.) He stated that he was “objecting to all of her testimony where she made comments that a lay person would not know.” The juvenile court overruled this objection, noting that Therapist was a fact witness because she treated Child and that Therapist’s expertise was a result of the education she had received to become a therapist.

¶19 Father’s contention in this regard is inadequately briefed. Rule 24 of the Utah Rules of Appellate Procedure requires that an appellant’s brief include “[a]n argument” which “shall contain the contentions and reasons of the appellant with respect to the issues presented.” Utah R. App. P. 24(a)(9) (2016). Father’s brief is devoid of an argument. Instead, he quotes rule 701 and rule 702 of the Utah Rules of Evidence (governing lay witness testimony and expert witness testimony respectively), recounts the testimony elicited from Therapist and the two objections he made at trial, and concludes that the issue was preserved for appeal. Father does not explain why he believes the juvenile court’s determination (that the content of Therapist’s testimony was within the scope of lay witness testimony) was incorrect or an abuse of discretion. Similarly, while Father does quote the relevant rules of evidence, he does not address the rationale of the juvenile court’s ruling or analyze that ruling in light of the rules of evidence. Father’s failures improperly shift the burden of making an argument and of finding authorities to support that argument to this court. See State v. Davie, 2011 UT App 380, ¶ 16, 264 P.3d 770 (“An issue is inadequately briefed when the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court.” (citation and internal quotation marks omitted)).

¶20 Of course, our analysis must focus on whether Father has established a sufficient argument for ruling in his favor, not merely whether his brief suffers from a technical deficiency. See Bank of America v. Adamson, 2017 UT 2, ¶ 12, 391 P.3d 196. But see id. (“[A]n appellant who fails to adequately brief an issue will almost certainly fail to carry its burden of persuasion on appeal.” (citation and internal quotation marks omitted)).

¶21 It appears that Father is suggesting that Therapist’s testimony exceeded the scope of permissible lay witness testimony as defined by rule 701. As noted above, the juvenile court excluded Therapist’s explanation of what behaviors were generally associated with certain conditions. Therapist’s remaining testimony broadly fell into two categories: a recitation of Child’s behaviors and the diagnoses based on those behaviors.

¶22 Therapist’s description of Child’s behaviors was based on her own observations. It was therefore proper lay witness testimony because it was “rationally based on the witness’s perception,” was relevant, and was “not based on scientific, technical, or other specialized knowledge.” See Utah R. Evid. 701.

¶23 Therapist’s testimony regarding Child’s diagnoses of ADHD and other specified depressive disorder was arguably based on scientific or specialized knowledge. But even assuming that this was expert testimony, any error in admitting the testimony was harmless. The diagnoses were also memorialized in a written psychological evaluation of Child that had been admitted into evidence for consideration by the court via stipulation of the parties. Thus, if the diagnoses portion of Therapist’s testimony had been excluded, the juvenile court would have still had evidence before it that Child had been diagnosed with those conditions. Moreover, the focus of the court’s ultimate determination was not on what specific conditions Child suffered from, but what negative behaviors Child exhibited and whether those behaviors had been ameliorated after Child’s placement with the foster family.

¶24 Father’s brief provides no reasoned analysis or argument regarding the admissibility of Therapist’s testimony. But even if we assume that Therapist’s testimony exceeded the bounds of proper lay witness testimony, a question we do not answer, we are unable to see how any prejudice could have resulted.

Because Father’s inadequate briefing fails to address the possibility of prejudice, and because no prejudice is apparent, Father has failed to establish a sufficient argument for ruling in his favor. See Adamson, 2017 UT 2, ¶ 12.

¶25      Affirmed.

 

2017 UT App 202

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF B.A.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

M.T.,

Appellant,

STATE OF UTAH, Appellee.

Opinion

No. 20160708-CA

Filed November 9, 2017

Third District Juvenile Court, West Jordan Department

The Honorable Renee M. Jimenez No. 1109173

Harini Venkatesan, Attorney for Appellant

Sean D. Reyes, John M. Peterson, and Emily I.

Iwasaki, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

CHRISTIANSEN, Judge:

¶1 M.T. (Mother) appeals the juvenile court’s order terminating her parental rights to B.A. (Child). She contends (1) that the juvenile court erroneously ruled that the Americans with Disabilities Act (the ADA) was inapplicable, (2) that the evidence was insufficient to support a finding that she was an unfit parent, (3) that the evidence was insufficient to support a finding that termination of Mother’s parental rights was in Child’s best interests, and (4) that the evidence was insufficient to support a finding that the Division of Child and Family Services (DCFS) provided reasonable efforts to reunify Mother and Child. We conclude that Mother failed to establish her ADA status in a timely manner and that the evidence presented to the juvenile court was sufficient to support the juvenile court’s findings; accordingly, we affirm.

¶2 We recognize that juvenile court judges have special training, experience, and interest in their field, as well as the opportunity to judge credibility firsthand; consequently, we review a juvenile court’s decision to terminate parental rights deferentially and will not disturb the juvenile court’s findings and conclusions unless the preponderance of the evidence clearly militates against the findings made or the court has otherwise abused its discretion. In re A.B., 2007 UT App 286, ¶ 10, 168 P.3d 820; In re R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d 1118.

  1. Americans with Disabilities Act

¶3 Mother contends that “[t]he juvenile court erred in ruling that [the ADA] was inapplicable due to [Mother’s] failure to request an accommodation previously.”[3] Although Mother’s phrasing suggests that the juvenile court ruled that the ADA was inapplicable, the record shows that the court actually ruled that Mother simply had not established her ADA status. We therefore understand Mother’s contention as a challenge to the sufficiency of the evidence supporting the juvenile court’s finding that Mother had not established her ADA status. Such a challenge presents a mixed question of law and fact, see In re adoption of Baby B., 2012 UT 35, ¶¶ 40–47, 308 P.3d 382, because it involves both the factual question of what evidence had been presented to the court and the legal question of what quantum of evidence would satisfy the ADA disability standard.

Accordingly, the court’s ruling is a mixed finding that “merit[s] some deference on appeal.” Id. ¶ 46.

¶4 Mother first mentioned the ADA at the termination trial. The juvenile court found that Mother had not established that she suffered from a medical condition of the type necessitating accommodations under the ADA and that Mother never requested any accommodation:

[Mother] has not been diagnosed with a medical condition that prohibits her from engaging [in] or attending a drug treatment program, domestic violence treatment program or from obtaining employment. During the entire time of the reunification services time period,[[4]] [Mother] never claimed she was disabled or referenced the Americans with Disabilities Act. [Mother] never requested a change or an accommodation to the Child and Family Plan to address her medical issues.

¶5 On appeal, Mother claims that she “had repeatedly put DCFS on notice about her ongoing medical issues” but does not cite to any part of the record in support of this claim. Instead, she relies on her testimony at the termination hearing to the effect that, due to the lapse of her insurance, she had been forced to stop seeing a primary care physician and had been forced to cancel a scheduled surgical procedure. There is no record indication that, prior to the termination hearing, Mother notified DCFS that she had a disability, i.e., that she suffered from “a physical or mental impairment that substantially limits one or more major life activities.” See 42 U.S.C. § 12102(1)(A) (2012).[5]                                                                                                                  

¶6 There is no doubt that the ADA applies to the government’s provision of reunification services. See In re K.C., 2015 UT 92, ¶ 20, 362 P.3d 1248. And there is no bright-line bar to raising an ADA claim for the first time at the final termination proceeding or trial. See id. ¶ 24 (holding that Utah law does not preclude invocation of the ADA “at the eleventh hour of a termination proceeding”). But see id. ¶ 27 (noting that a child’s interest in permanency and stability favors “[t]he expeditious resolution of a termination proceeding” and, as a result, “[a] parent who waits until the eleventh hour to request a modification under the ADA may thoroughly undermine [his or her] ability to establish that such modification is reasonable”).

¶7 However, to succeed on the merits of an ADA claim in the context of reunification, the parent must establish that he or she is a “‘qualified individual with a disability.’” Id. ¶ 22 (quoting 42 U.S.C. § 12131(2)). Here, Mother first mentioned the ADA on the second day of a two-day trial during her closing arguments. While she claimed that her “condition clearly [was] a disability as defined by the ADA,” she did not further identify from what condition she suffers.[6] Nor did she provide the juvenile court with evidence that she had been diagnosed with a medical condition that qualified for ADA accommodations.[7]

                                                                                                                  

¶8 Aside from Mother’s vague claims of a disability, none of the evidence presented to the juvenile court suggested that Mother’s medical conditions amounted to a disability that should have been addressed in the service plan. Consequently, although Mother’s eleventh-hour invocation of the ADA was timely, see In re K.C., 2015 UT 92, ¶ 24, it was not supported by any substantial evidence, see id. ¶ 22. We conclude that Mother has not shown clear error in the juvenile court’s determination that Mother’s statement that she suffered from an ADA qualifying disability was insufficient to satisfy her burden of proof. See In re adoption of Baby B., 2012 UT 35, ¶ 46; see also In re K.C., 2015 UT 92, ¶ 22 (noting that the parent bears the burden of proof to establish an ADA-qualifying disability).[8]

  1. Unfitness

¶9 Mother next contends that the evidence was insufficient to support the juvenile court’s determination that she was an unfit parent. The termination of Mother’s parental rights was appropriate so long as sufficient evidence existed to support at least one of the unfitness grounds found by the court and to support the court’s finding that such termination was in Child’s best interests. See In re R.A.J., 1999 UT App 329, ¶ 7, 991 P.2d 1118.

                                                                                                                   

¶10 Here, the juvenile court found (1) that Mother was an unfit or incompetent parent; (2) that Mother had substantially neglected, willfully refused, or had been unable or unwilling to remedy the circumstances that caused Child to be in an out-of home placement; (3) that Mother had made only token efforts to support Child, to eliminate the risk of harm to Child, or to avoid being an unfit parent; and (4) that there was a substantial risk that Child would suffer serious detriment if returned to Mother’s custody. The court explained that Mother had “failed to comply with the child and family plan and with court orders and as a result, [Mother had] demonstrated a failure of parental adjustment, unfitness and/or neglect and failure to remedy out of-home placement.” The court detailed several grounds for finding Mother unfit, including that Mother was unfit due to “habitual or excessive use of intoxicating liquors, controlled substances, or dangerous drugs that render the parent unable to care for the child.” Utah Code Ann. § 78A-6-507(1)(c) (LexisNexis 2012); id. § 78A-6-508(2)(c). Because this single ground is sufficient to support the court’s decision to terminate Mother’s parental rights, we do not further address or express any opinion as to the other grounds found by the court.

¶11 The court highlighted Mother’s extensive use of painkilling drugs, finding that Mother did not complete a court ordered substance abuse evaluation for over 9 months; that Mother had not started, much less successfully completed, a substance abuse treatment program; that Mother had missed more ordered drug tests than she had completed; that Mother had tested positive for various drugs at least 16 times but “has not provided proof of prescription medications to account for all of the positive results”; that Mother visited hospital emergency rooms at least 23 times including nine visits in a single month; that those visits were spread across 5 different hospitals; that Mother ignored recommendations that she follow up these visits by making appointments with non-emergency specialists; that multiple emergency-room physicians reported that Mother left the hospital after being denied painkilling drugs but before their examinations were complete; and that multiple emergency-room physicians reported their concern regarding Mother’s “drug seeking behavior.” The court also found that Mother had not candidly reported her emergency room visits to her DCFS caseworker and had not disclosed to the caseworker that she had received controlled substances requiring prescriptions during those visits. The court then summarized these findings:

[Mother] is either unable or unwilling to participate in a drug treatment program. She has continued to engage in drug seeking behaviors as evidenced by her multiple visits to the emergency room, seeking narcotics and leaving the emergency room when she is not administered IV narcotics or a prescription for pain medication. Furthermore, [Mother] has failed to follow up with the recommended medical care[.]

¶12 On appeal, Mother primarily argues that she is not an unfit parent as a result of habitual or excessive use of controlled substances. She asserts, without citation to the record, that the juvenile court erroneously deemed her missed drug tests to be positive drug tests. Our review of the court’s findings does not support this assertion. Rather, the court appears to have considered separately the facts that Mother missed more drug tests than she completed and that, of the tests she did take, sixteen were positive for opiates, one was positive for benzodiazepines, and one was positive for oxycodone. We cannot see how these considerations support Mother’s assertion that the court treated her missed tests as positive tests.

¶13 Mother also argues that it was improper for the court to construe medical documents, which she had submitted, as evidence against her interests. Her single sentence argument in this regard is not supported by citation to any authority. Moreover, the interpretation of evidence is within the sole province of the factfinder. Cf. State v. Comer, 2002 UT App 219, ¶ 15, 51 P.3d 55 (“In a bench trial or other proceeding in which the judge serves as fact finder, the court has considerable discretion to assign relative weight to the evidence before it. This discretion includes the right to minimize or even disregard certain evidence before it.” (citation and internal quotation marks omitted)). Absent any stricture limiting the use of a particular piece of evidence, we see no impropriety in a factfinder interpreting a piece of evidence to support a different proposition than the one intended by the party who introduced the evidence.

¶14 Finally, Mother argues that she “substantially complied with the Court ordered service plan which was intended to remedy the circumstances that caused the child to be out of her home.” Mother claims that she “had housing and employment, previously completed domestic violence and substance abuse treatment, had subsequently completed two further assessments, was engaging in couples counseling with [Child’s father] to address the underlying cause of the domestic violence, and was actively engaged in her regular visitation of [Child].” However, Mother does not provide any citation to the record to support these claims, some of which directly contradict the juvenile court’s findings. For example, while Mother now claims she completed substance abuse treatment, the court actually found that “[Mother] has not started or successfully completed a substance abuse treatment program.”[9]

¶15 Mother’s conclusory claims in this regard fall short of establishing error in the juvenile court’s findings of fact. An appellant bears the burden of proving error in the juvenile court’s findings and cannot do so by simply claiming, without citing any record evidence, that the opposite finding should have been made.

¶16 Mother has not demonstrated that the evidence clearly militates against the findings made regarding her drug use and has not shown that the juvenile court otherwise abused its discretion in making them. See In re A.B., 2007 UT App 286, ¶ 10, 168 P.3d 820; In re R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d 1118. Because the court did not abuse its discretion in making those findings, we see no error in the juvenile court’s determination that Mother was an unfit parent.[10]

III. Best Interests

¶17 Mother next contends that the evidence was insufficient for the juvenile court to have properly found that termination of her parental rights was in Child’s best interests. See generally Utah Code Ann. § 78A-6-509(1) (LexisNexis 2012) (listing factors a juvenile court must consider before terminating a noncustodial parent’s rights); id. § 78A-6-510 (LexisNexis 2012) (listing factors a juvenile court must consider before terminating parental rights to a child currently placed in a foster home). In determining whether termination of parental rights is in a child’s best interests, courts are directed to consider the physical, mental, and emotional condition and needs of the child. See id. § 78A-6-509(1)(a). Although presented as a single issue, Mother’s arguments center on three areas: Child’s behavioral problems, Child’s emotional bonds, and DCFS’s alleged provision of services to the foster parents.

¶18 Mother first argues that Child’s behavioral problems were the result of being removed from Mother and that “[i]t is highly probable that the behaviors [Child] displayed when [Child] went to the current foster placement could be attributed to the trauma of being removed from [Mother] and coming into DCFS custody.” We note Mother presented this argument to the juvenile court, which considered and rejected it. In support of this argument on appeal, Mother points only to the testimony of Child’s therapist. However, this testimony was limited to the therapist’s opinion that it was possible that Child’s mood and isolation was due to the removal. The therapist did not suggest that Child’s significant cognitive and developmental deficits could also be attributed to the removal.[11] In the absence of

evidence suggesting that Child’s cognitive and developmental deficits were caused by the removal, we cannot conclude that the balance of the evidence weighed against the juvenile court’s finding. Simply making the same argument rejected by the trial court afresh is insufficient to show that the preponderance of the evidence clearly militated against the juvenile court’s findings. See In re A.B., 2007 UT App 286, ¶ 10, 168 P.3d 820; In re R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d 1118.

¶19 Turning to Child’s emotional needs, Mother describes testimony that Child had emotional bonds with Mother. But as the State notes, a loving relationship between Mother and Child does not necessarily mean termination is not in Child’s best interests. See In re J.F., 2013 UT App 288, ¶ 4, 317 P.3d 964. Rather, the existence of such a relationship is one of several factors to be considered by the juvenile court. See, e.g., id. ¶¶ 4–5; In re B.R., 2007 UT 82, ¶ 15, 171 P.3d 435. The juvenile court’s findings indicate that the court was aware of Child’s love for Mother and that it weighed evidence of that bond against other evidence showing Child’s love for the foster parents. The court concluded that despite Child loving both Mother and the foster parents, Child’s best interests would be served by terminating Mother’s parental rights because she had not “sufficiently addressed [her] own needs let alone . . . demonstrate[d] that [she] can make sure [Child’s] needs are also met.” Thus, the court considered the emotional bond Mother highlights on appeal and determined it was outweighed by other evidence. The preponderance of the evidence does not clearly militate against the court’s finding that termination was in Child’s best interests, and we will therefore not substitute our judgment for that of the juvenile court. See In re A.B., 2007 UT App 286, ¶ 10; In re R.A.J., 1999 UT App 329, ¶ 6.

¶20 Mother next argues that the foster parents had “financial means and adequate support from DCFS” and that if she had been provided those same services, Child would have thrived with her. In addition to the behavior and emotional issues discussed above, the juvenile court noted that Child suffered from physical health conditions when he was removed from Mother, including being underweight and having extensive dental problems.[12] The court found that the foster family had successfully addressed these issues. On appeal, Mother asserts that because DCFS did not provide her with the resources for Child’s therapy, preschool, and regular pediatric visits before Child’s removal, “it is impossible to determine that [Child] would not do well in [Mother’s] care” if DCFS had done so. This assertion could be compelling if the situation were as Mother alleged. However, Mother’s undeveloped argument in this regard is limited to four sentences and provides no record citations suggesting that DCFS was in fact paying for the services that were provided by the foster family. Moreover, DCFS was charged with acting in Child’s best interests to reverse the physical, emotional, and mental health issues Child had developed while in Mother’s custody, and it seems logical that the therapeutic regimen involved removing Child from the situation that created the problems.

¶21 The juvenile court made extensive findings regarding Child’s best interests before concluding that termination of Mother’s parental rights was “strictly necessary.” On appeal, Mother’s arguments are largely based on conclusory statements that contradict those findings, but which cite neither the record nor authority. Mother has therefore failed to carry her burden of showing that the preponderance of the evidence clearly militated against the court’s findings. We therefore have no occasion to substitute our judgment for that of the juvenile court. See In re A.B., 2007 UT App 286, ¶ 10; In re R.A.J., 1999 UT App 329, ¶ 6.

  1. Reasonable Reunification Efforts

¶22 Mother next contends that the evidence was insufficient to support the juvenile court’s finding that DCFS “provided reasonable efforts to reunify the family.” Specifically, Mother argues that DCFS “imputed to Mother an underlying substance abuse issue rather than accepting at face value all the overwhelming documentation which showed Mother in fact had recurring medical issues.” She asserts that the medical issues “prevented her from submitting to each and every [urinalysis] test.” Mother also claims that her caseworkers “advised Mother to engage in [urinalysis] testing and in treatment at child and family team meetings, [but] they failed to provide any alternate services despite Mother’s repeated requests.”

¶23 However, Mother fails to provide any citation to the record evidencing the alleged “overwhelming documentation” of her medical issues. As noted above, supra ¶¶ 5, 7, Mother did not provide the court with any evidence of a disability that would require some sort of accommodation to otherwise complete her drug-testing requirements. And nowhere in the record or in the briefing on appeal does Mother identify from which disability she claims to suffer. Instead, she relies on a “Substance Abuse and Mental Health Assessment” which documented her claim that she had been prescribed pain medication. But her statement to a counselor that she had been prescribed pain medication was not supported by a doctor’s prescription for such medication.[13] Similarly, Mother does not cite any part of the record to support her claim that she requested alternate services. Moreover, even if Mother had done so and been refused, she has not explained why the services she was offered fell below a reasonable standard.

¶24 Mother also argues that DCFS required her to engage in duplicative services. Specifically, she asserts that she had completed mental health therapy but was required by DCFS to participate in such therapy again. To support this assertion, she points to testimony by her caseworkers that she had completed mental health therapy. This argument is not persuasive. Both caseworkers were describing mental health therapy that Mother participated in before Child was removed from her care. Such therapy did not concern, let alone cure, the circumstances that led to Child’s removal. Thus, the services were not unnecessarily duplicative. And again, even if they were duplicative, Mother does not explain why the provision of duplicative services undermines the court’s finding that the services Mother received were reasonable.

¶25      Affirmed.

 

[1]. In his opening brief, Father claims that several positive changes in Child’s behavior cannot be attributed to the foster home because those changes flowed from proper mental health treatment. However, the record is clear that Child’s problematic behaviors, as well as the extensive tooth decay, sleep loss, and weight loss noted by the juvenile court, began when Child lived with Father and were finally treated only once Child began living in the foster home. Thus, regardless of whether the positive changes were the direct result of placement in the foster home, it is clear that removal from Father’s custody finally allowed someone—whether the foster family or medical professionals—to treat Child’s conditions.

[2]. This section of Father’s opening brief is titled as a challenge to the sufficiency of the evidence to support the juvenile court’s finding that the Department of Child and Family Services made reasonable efforts to achieve reunification. However, the argument presented is unconnected to that topic. We address the argument made on appeal rather than the one hinted at in the section title.

[3] . Utah Rule of Appellate Procedure 24(a)(5)(A) (2016) requires that an appellant’s brief contain “citation to the record showing that the issue was preserved in the trial court.” Mother’s brief states, “This issue was preserved by Appellant’s counsel during termination proceedings.” This cursory statement of preservation is insufficient because it merely asserts that the issue was preserved and does not show where in the record the issue was preserved. Despite this deficiency, we address the merits of the claim, in part because the State provides citations showing that the issue was brought to the juvenile court’s attention, albeit not until Mother’s closing argument.

[4] . Mother was offered reunification services from at least June 24, 2015, when the child and family services plan was read into the record, to August 16, 2016, when the court terminated Mother’s parental rights.

[5] . At oral argument before this court, Mother asserted for the first time that, because she informed DCFS of her medical conditions, DCFS or the court had a duty to investigate whether Mother’s medical conditions amounted to an ADA-qualifying disability. Mother analogized to a section of the Indian Child Welfare Act (ICWA) which provides that certain ICWA provisions apply “where the court knows or has reason to know that an Indian child is involved.” 25 U.S.C. § 1912(a) (2012) (emphasis added); see In re M.J., 2011 UT App 398, ¶ 31, 266 P.3d 850 (explaining that a mere hint or suggestion of Indian ancestry is insufficient to trigger ICWA unless it is sufficiently reliable and supports a “low but reasonable probability” that the child qualifies). According to Mother, the ADA should similarly be read to apply its protections whenever the court has “reason to know” that an individual has a disability.

 

Mother’s assertion suffers from factual and legal infirmities. First, as noted above, in her related claims, Mother did not provide record citations showing how and when she informed DCFS of her alleged medical conditions, let alone ADA-qualifying disabilities. Second, unlike ICWA, the ADA does not contain a “reason to know” provision. In any event, this argument was raised for the first time at oral argument, and this court “will not reverse based on an unbriefed argument raised for the first time at oral argument.” In re Gregory, 2011 UT App 170, ¶ 10, 257 P.3d 495.

[6] . On appeal, Mother’s briefing repeatedly refers to a medical condition but does not identify it.

[7] 5. On the second day of trial, Mother introduced several exhibits. These included records of a doctor examining and diagnosing Mother with a possible ovarian cyst, a condition that does not usually qualify as a disability. Additionally, Mother introduced a summary of her application for disability benefits; that  application was submitted on July 7, 2016 (roughly a week before trial) and did not identify Mother’s claimed disability.

[8] . We also note that, on appeal, Mother primarily frames this claim as an explanation for her failed urinalysis tests. However, even if Mother had valid prescriptions to justify any positive drug tests, the existence of such prescriptions would not necessarily nullify the juvenile court’s finding that “[Mother] has been inconsistent in her drug testing, missing more tests than she has completed.”

[9] . The State suggests that Mother may be referring to mental health treatment she received before Child was removed from her care. However, as the State correctly explains, the mental health treatment did not include a substance abuse treatment program and any treatment predating Child’s removal from Mother’s care could hardly have remedied the circumstances that led to such removal.

[10] . We note that although we only discuss unfitness due to substance abuse, the juvenile court also found that Mother was unfit as a result of her failure to complete mental health treatment, her failure to complete domestic-violence treatment, and her history of violent behavior. See Utah Code Ann. § 78A-6508(2) (LexisNexis 2012).

[11] . When Child was first placed with the foster family, Child “displayed some negative behaviors including swearing, anger, impulsiveness, violence[, and] had a difficult time socializing with other children.” For example, Child “would hurt someone else to get what [Child] wanted [and] would hit, kick or spit” to do so. Since being placed with the foster family, Child “made significant progress,” “no longer has temper tantrums,” and “can now verbalize when [Child] is unhappy or angry.” With regard to Child’s developmental delays, the juvenile court noted that despite being four and a half years old when placed with the foster family, Child “could not count past the number three,” “did not understand the concept of age,” and did not know the alphabet. Mother does not challenge the juvenile court’s findings that, after his placement with the foster family, Child’s behavioral problems had improved significantly and Child was on track in school in all areas except articulation.

[12] . Child’s dental problems included extensive tooth decay, requiring four crowns and “seven or eight” cavity fillings.

[13] . The assessment also noted that Mother’s DCFS caseworker “contradicted most of what [Mother] reported at the time of her assessment.”

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