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Tag: Utah Code section 78A-6-507

In re C.R.C. – 2019 UT App 153 – termination of parental rights

In re C.R.C. – 2019 UT App 153 – THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF C.R.C., A PERSON UNDER EIGHTEEN YEARS OF AGE. S.C. AND D.C.,
Appellants,
v.
STATE OF UTAH,
Appellee.

Opinion
Nos. 20190233-CA and 20190234-CA
Filed September 19, 2019
Eighth District Juvenile Court, Vernal Department
The Honorable Ryan B. Evershed
No. 1142757

Emily Adams and Jeffry K. Ross, Attorneys for Appellant S.C.
Erin Bradley, Attorney for Appellant D.C.
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

JUDGE KATE APPLEBY authored this Opinion, in which JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

APPLEBY, Judge:

¶1        S.C. (Mother) and D.C. (Father) (collectively, Parents) appeal the juvenile court’s termination of their parental rights as to C.R.C. (Child).[1] Mother argues that insufficient evidence supported the juvenile court’s determination that grounds existed to terminate her rights. Parents also argue that terminating their rights is not in Child’s best interest. We affirm.

BACKGROUND

¶2 In early 2017, police discovered that Father had downloaded hundreds of photographs and videos of child pornography. Many of the images involved children as young as newborns and toddlers. Father admitted to downloading the images and was arrested. He has been incarcerated since. Police informed Mother of the allegations against Father and warned her that Child, who was born shortly after Father’s arrest, was not safe around him. Mother was advised to seek a protective order for Child against Father, but she never sought one. Police eventually obtained an ex parte protective order on Child’s behalf. The protective order prohibited Father from having contact with Child unless the visit was supervised by the Division of Child and Family Services (DCFS). Despite this court order, Mother took Child to the prison to see Father. This incident was reported to DCFS and Mother was reminded not to allow contact between Child and Father.

¶3        In March 2017, Father was temporarily released from jail to obtain a psychosexual evaluation. Mother asked if Father could see Child during his release, but DCFS again instructed her not to allow contact between them. Mother ignored these instructions and allowed Father to spend “unfettered and unsupervised” time with Child. Mother told DCFS she permitted the contact because Father was not a risk to Child. After this incident came to light, DCFS removed Child from Mother’s custody and Child was placed in foster care.

¶4        While Child was in foster care, Mother was required to complete a reunification plan (Plan), which included, among other things, (1) establishing safe and stable housing for herself and Child, (2) maintaining contact with her caseworker so she could have parent time with Child, (3) completing a parental fitness evaluation, (4) completing a parenting class and working with a “peer parent,” and (5) complying with the no-contact order by preventing Father from contacting Child.

¶5        In accordance with the Plan, Mother sought a parental fitness evaluation. But the juvenile court concluded that she was unable to complete it because she “could not understand many of the questions, even when they were read to her” and that the “evaluation raised many concerns regarding Mother’s ability to adequately parent” Child. The evaluation report concluded that Mother has an intelligence quotient “in the extremely low range of intellectual classification” and that Mother has an overall intellectual capacity of a ten- or eleven-year-old child. But the court noted that Mother improved her housework and parenting skills after attending behavioral therapy. Overall, the court concluded that Mother could not be a successful parent without “maintaining firm boundaries and obtaining a support system.”

¶6        Mother attempted to obtain an adequate support system. First, she identified her own mother (Grandmother) as a potential supervisor. Grandmother participated in a parental fitness evaluation, but this demonstrated that she, too, suffered from serious intellectual deficiencies. The court found that Grandmother and Mother frequently undermined each other and that Grandmother had a boyfriend who could not pass a background check. The court concluded that Grandmother was an inappropriate supervisor for Mother and Child. Next, Mother identified her father (Grandfather) as a potential supervisor. Grandfather resided in Colorado and therefore was not an option as a long-term supervisor. Finally, Mother identified a friend (Friend) as a potential supervisor. Friend agreed to supervise Mother’s parent-time with Child and Friend was found to be an adequate supervisor. Friend testified that the get-togethers went well. Friend began attending family team meetings with Mother and provided her support “in many ways.”

¶7        But in early 2018, Friend discovered that Mother had been dishonest with DCFS regarding her contact with Father and became concerned about Child’s safety. At trial, Friend’s daughter testified that she was driving with Mother one day and asked Mother whether she had any overnights planned with Child. Mother responded, “[N]o, I think [DCFS personnel] know if I had overnights then I would call [Grandfather] to come get us and I would leave with them.” Mother added that she “couldn’t wait until she had her family back together” and she wanted to have “more kids” with Father. After this, Friend stopped providing support to Mother. The court concluded that Mother was never able to establish the long-term support system she needed to be reunited with Child.

¶8        Mother’s parental fitness evaluation report also noted Mother struggled to maintain firm boundaries and observed that this made her “an easy target to be taken advantage of due to her [intellectual] difficulties.” Friend reported to DCFS that Mother had “significant secret contact with Father in prison.” DCFS asked Mother about this and Mother “adamantly denied any contact” and expressed her desire to divorce Father because any contact would be harmful to Child. Nevertheless, Mother continued to contact Father. In September 2017, a caseworker again asked Mother if she had spoken with Father, and Mother said she had not. But in the two months following this conversation, Mother spoke with Father on the telephone for 443 minutes and deposited $632 in his prison account. After this, Mother met with a caseworker and again denied having any contact with Father. That same day, Mother had a 27-minute phone call with him. At a family team meeting several months later, Mother stated she had no contact with Father even though she made four separate phone calls to Father that day for a total of 58 minutes. From the first time Mother told her caseworker she had no contact with Father until the family team meeting, Mother had 428 phone calls with Father and deposited $2,358 in his prison account. At another family team meeting, Mother was again warned not to have any contact with Father. Between that time and the permanency placement hearing one month later, Mother spoke to Father on the telephone 32 times for a total of 307 minutes. Over the next several months, Mother had 16 in-person prison visits with Father, had approximately 650 phone conversations with him, and deposited $1,135 in his prison account.

¶9        The court found Mother’s continual contact with Father “very concerning” on many levels because “Father [was] a danger to [Child] and Mother was made aware of this.” It stated, “Mother has demonstrated that she is committed to Father and does not believe he is a risk to [Child]” and has “demonstrated that she will be deceitful with DCFS and the Court in an attempt to continue the relationship.” Mother and Father were also “aware that ongoing contact between the two of them undermined Mother’s potential for success.” Based on the court’s many concerns, it concluded that Mother would not be able to protect Child from Father or other potential abusers. It also found that Mother was “an easy target to be taken advantage of” and that Child was an “easy target[] for abuse and neglect if Mother is the sole caretaker.” The parental fitness evaluation report also described Mother as “unwilling” to stay away from Father and stated that she “made the conscious decision to continue contact with [him] knowing it would be detrimental to her success.”

¶10 At the termination trial, the court concluded that Mother made significant progress on the Plan by keeping in contact with her caseworker and seeing Child on a regular basis, obtaining a parental fitness evaluation, completing the parenting class, complying with the peer-parenting program, and establishing housing. But it concluded that she “was never able to complete the goals of the Plan by providing an appropriate home for [Child] where [Child] would be safe from abuse and neglect.” In point of fact, the court was concerned with Mother’s continual contact with Father, her belief that he was not a threat to Child, and her lack of a support system.

¶11      The juvenile court found that several grounds supported terminating Parents’ parental rights. First, it concluded that they were “unwilling or unable to avoid their parental incompetence” and neglect. It found that Father was incarcerated as a result of multiple felony convictions and that the sentence was long enough that Child would be deprived of a normal home for more than one year. Further, the fact that Father was convicted for possessing child pornography indicated his unfitness to provide adequate care to Child. It also found that Mother suffered “from an emotional illness, mental illness, or mental deficiency” that rendered “her unable to care for the immediate and continuing physical or emotional needs of [Child] for extended periods of time.” While Mother “may be able to complete up to ninety percent of the parenting required to take care of [Child],” “[Child] is not safe with [Mother] on a long­term basis without ongoing support from a third party” and “[n]o ongoing third party support was ever established.” Finally, the court found that Mother had failed to make parental adjustment[2] and was unwilling or unable to remedy the circumstances that led to Child being placed in foster care.

¶12 Next, the court determined that terminating Parents’ rights was in Child’s best interest. It found that Child was placed in foster care before she was two months old and was never returned to Mother’s care.[3] Also, Mother never reached the point where she was allowed overnight parent time during the reunification period. When Child was placed in foster care she was “very dirty,” looked “extremely sick and underweight,” and was diagnosed with failure to thrive.

¶13 Conversely, the court found that Child’s foster parents “have provided the care and stability that she never received while under the care of [Mother].” Child was “part of a permanent foster family where the parents have been married for almost 16 years, have successfully raised other children,” have “lived in the same area for years,” and have expressed a willingness to adopt Child. Further, Child and her foster parents “developed bonds of love and affection for one another.” Child has “thrived in the foster parents’ home” and “has made remarkable strides . . . both emotionally and physically.” The court stated that there “is no comparison [between] the two homes as far as parenting ability.” Child’s foster parents “significantly altered their lives to care for [Child]” and “have taken multiple steps to improve [Child’s] life and ability to function in society.” The court compared these efforts to those of Parents, who were “unwilling or unable to do the same.” Ultimately, the court concluded that Child is “settled” in the foster parents’ home, she has stronger emotional ties with them than she does with Parents, and moving her from that home would be detrimental to Child’s well-being. The court noted Mother’s “respectable effort to adjust her circumstances,” but found it was not enough to consider it in Child’s best interest to return Child to her. Ultimately, the court concluded that it was strictly necessary to terminate Parents’ rights and that adoption was in Child’s best interest because it would satisfy her need for safety, stability, and permanency.

¶14      Parents appeal.

ISSUES AND STANDARDS OF REVIEW

¶15 Parents raise two main issues on appeal. First, Mother contends insufficient evidence supports the juvenile court’s finding that statutory grounds existed to terminate her parental rights.[4] “We apply a clearly erroneous standard in determining whether the juvenile court’s findings are based upon sufficient evidence.” In re A.W., 2018 UT App 217, ¶ 23, 437 P.3d 640 (quotation simplified). Under this standard, we will not overturn the court’s determination unless the result is “against the clear weight of the evidence” or leaves us “with a firm and definite conviction that a mistake has been made.” In re B.T.B., 2018 UT App 157, ¶ 8, 436 P.3d 206 (quotation simplified), cert. granted, 440 P.3d 692 (Utah 2019).

¶16 Second, Parents argue that insufficient evidence supports the juvenile court’s determination that it was in Child’s best interest to terminate their parental rights. “Due to the factually intense nature of the analysis, a [juvenile] court’s final decision regarding termination of parental rights should be afforded a high degree of deference,” and this court will overturn a termination decision only when the result is “against the clear weight of the evidence” or leaves us “with a firm and definite conviction that a mistake has been made.” Id. (quotation simplified).

ANALYSIS

¶17      “To terminate parental rights, a juvenile court must make two separate findings.” In re C.T., 2018 UT App 233, ¶ 12, 438 P.3d 100 (quotation simplified). First, the court must find “that there is at least one statutory ground for termination.” Id. (quotation simplified); see also Utah Code Ann. § 78A-6-507 (LexisNexis 2018). “Second, a court must find that termination of the parent’s rights is in the best interests of the child.” In re C.T., 2018 UT App 233, ¶ 12 (quotation simplified).

¶18      Mother argues that the juvenile court erred in terminating her parental rights because there was insufficient evidence to support a finding that there are statutory grounds for termination. Parents also argue that termination was not in Child’s best interest. We address each issue in turn.

I. Grounds for Termination

¶19      Mother argues that the evidence presented at trial did not support the grounds the juvenile court found for terminating her rights. We disagree. A court may terminate parental rights on any one of the grounds articulated in Utah Code section 78A-6-507. “Among other things, a juvenile court may terminate parental rights if the court finds that a parent has either abandoned a child, neglected a child, or is an unfit or incompetent parent.” In re A.W., 2018 UT App 217, ¶ 35, 437 P.3d 640 (quotation simplified). Further, “when a foundation for such findings exists in the evidence, we do not engage in” reweighing the evidence on appeal. Id. (quotation simplified).

¶20      The juvenile court terminated Mother’s parental rights on several grounds. First, it found Mother was unwilling or unable to remedy her parental incompetence and neglect. See Utah Code Ann. § 78A-6-507(1)(b)–(c) (LexisNexis 2018). Second, it found that Child was being cared for in an “out-of-home placement under the supervision of the court” and Mother had “substantially neglected, willfully refused, or ha[d] been unable or unwilling to remedy the circumstances that cause[d] [Child] to be in an out-of-home placement; and . . . there is a substantial likelihood that [Mother] will not be capable of exercising proper and effective parental care in the near future.” See id. § 78A-6-507(1)(d). Finally, the court found Mother failed to make her parental adjustment. See id. § 78A-6-507(e).

¶21      We conclude that a sufficient foundation exists for each of the grounds the court relied on to terminate Mother’s parental rights. With respect to neglect and incompetence, the court found that Mother suffers from “emotional illness, mental illness, or mental deficiency . . . that renders [her] unable to care for the immediate and continuing physical or emotional needs of [Child] for extended periods of time.” See id. § 78A-6-508(2)(a) (Supp. 2019). Specifically, the court found that although Mother may be able to complete a majority of the tasks necessary to care for Child, Child “is not safe with [Mother] on a long-term basis without ongoing support from a third party” and a third-party caregiver was never established. Here, the court relied on the evidence that, without a support system, Mother’s mental deficiencies rendered her unable to adequately care for Child and protect her from Father. The court also found that Mother demonstrated that she valued her relationship with Father above caring for and protecting Child. The court and the parental evaluation report concluded that Mother had the ability to refrain from contacting Father and to focus on reuniting with Child, but she continued to express her desire to reunite with Father and contacted him almost daily. We conclude that this evidence provides sufficient support for the court’s finding that Mother was unwilling or unable to remedy her parental incompetence and neglect.

¶22 The court also found that Mother refused to remedy the circumstances that caused Child to be in an out-of-home placement and failed to meet the Plan’s goals. The court noted that this case was initiated because “Father has a perverse and unhealthy sexual attraction to young children and Mother was unwilling to protect [Child] from Father.” However, Mother maintained throughout the juvenile court proceedings, and on appeal, that Father is not a threat to Child and attempts to downplay her contact with Father. Mother continues to argue that she was never told, nor was it part of the Plan, that she could not be in contact with Father. The court found this argument unpersuasive and concluded, “[T]he issue of contact with Father was both implicitly and explicitly prohibited. But more importantly, Mother should know better, she should not have to be told that contact with Father, making plans to get back with Father, and reconstruct[ing] the family after he gets out of prison is a terrible and dangerous idea for [Child].” It found Mother was aware that she should not have contact with Father through her numerous discussions with DCFS, her family team, and the court. A DCFS caseworker testified that Mother “was aware from the beginning that her ongoing contact with Father would interfere with successful reunification.” Mother also demonstrated she was aware of the restriction by repeatedly lying to DCFS and others about her contact with Father.

¶23 Ultimately, the court found sufficient evidence supporting the grounds for termination. Mother failed to appreciate the risk Father posed to Child, routinely expressed her interest in reuniting with him after he got out of prison, and consistently lied about her contact with him. The extent of Mother’s contact with Father demonstrated to the court that she valued her relationship with him over establishing a support system to regain custody of Child. The court found that Mother was unable or unwilling to remedy the situation that caused Child to be placed in foster care and was unable or unwilling to remedy her parental incompetence and neglect. We conclude that ample evidence supports these findings.

II. Best Interest of Child

¶24      Parents argue that terminating their parental rights is not in Child’s best interest. We disagree. When considering terminating parental rights, a court must consider whether “termination is strictly necessary to the best interest of the child.” In re C.T., 2018 UT App 233, ¶ 12, 438 P.3d 100 (quotation simplified); see also Utah Code Ann. § 78A-6-507(1) (LexisNexis Supp. 2019). For termination to be “strictly necessary,” the court must find it “absolutely essential” after examining “all of the relevant facts and circumstances surrounding the child’s situation” and “whether other feasible options exist that could address the specific problems or issues facing the family.” In re C.T., 2018 UT App 233, ¶ 14 (quoting In re B.T.B., 2018 UT App 157, ¶¶ 52–55, 436 P.3d 206, cert. granted, 440 P.3d 692 (Utah 2019)). But “a trial court’s final decision regarding termination of parental rights should be afforded a high degree of deference,” and this court will overturn a termination decision only when the result is “against the clear weight of the evidence” or leaves us “with a firm and definite conviction that a mistake has been made.” In re B.T.B., 2018 UT App 157, ¶ 8 (quotation simplified).

¶25      Father argues that terminating his parental rights is not in Child’s best interest because his child pornography possession does not make him a danger to her. But possessing child pornography is prima facie evidence of unfitness.[5] Utah Code Ann. § 78A-6-508(7)(a) (LexisNexis Supp. 2019). Father failed to demonstrate to the court why he should be considered a fit parent and why it was not in Child’s best interest to terminate his rights.[6] We conclude that the juvenile court did not err in concluding that it was in Child’s best interest to terminate Father’s rights.

¶26      Mother also argues that it was not in Child’s best interest to terminate her parental rights. Again, the court did not err in concluding this was in Child’s best interest. The court found that it was strictly necessary to terminate Mother’s rights after it weighed the safety, stability, and permanency that Child received from her foster parents, who planned on adopting her, against Mother’s unwillingness and inability to remedy her situation preventing her from taking care of Child. The court found that Child had bonded with her foster family and did not have a “great connection” with Mother. It also found that although “Mother ha[d] made a respectable effort to adjust her circumstances, conduct[,] and condition, she ha[d] not done so to a degree sufficient to make it in Child’s best interest to return her to her care.” As a result, the court found it “strictly necessary” to terminate Mother’s parental rights.

¶27 The court also considered other placement options for Child, “including placement with a family member, guardianship with foster parents[,] and returning [Child] to Mother,” but “no option satisfie[d] [Child’s] need for safety, stability and permanency more than adoption” by her foster parents. The court found that DCFS made “reasonable efforts to provide reunification services” to Mother. Specifically, the court found that DCFS complied with the Americans with Disabilities Act and accommodated Mother’s intellectual disability, helped her obtain disability insurance, gave her travel assistance for exercising parent time with Child, helped her with the peer-parenting program, and directly supervised and assisted her with parent time. The court ruled that Mother “was able to avail herself” of these services and that her “failure in this case” was not for lack of services “but a result of her dishonesty, her unwillingness to maintain boundaries for the benefit of [Child], her unwillingness to separate herself from Father, and her inability to obtain an ongoing support [system] for herself and [Child].” We conclude the court did not err in finding that it was in Child’s best interest to terminate Mother’s parental rights.

CONCLUSION

¶28 The evidence was sufficient to support a finding that grounds existed to terminate Mother’s parental rights. Further, the juvenile court did not err in finding that terminating Parents’ parental rights was in Child’s best interest. Affirmed.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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[1] Father filed a separate appeal but did not file an opening brief and instead joined in Mother’s brief. We therefore resolve both cases together in this opinion.

[2] “‘Failure of parental adjustment’ means that a parent or parents are unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of their child outside of their home, notwithstanding reasonable and appropriate efforts made by the Division of Child and Family Services to return the child to that home.” See Utah Code Ann. § 78A-6-502(2) (LexisNexis 2018).

[3] Child has never lived with Father; he has been incarcerated since before her birth.

[4] Father concedes statutory grounds existed to terminate his rights under Utah Code section 78A-6-508(2)(e) because he is “incarcerated as a result of conviction of a felony, and the sentence is of such length that [Child] will be deprived of a normal home for more than one year.” See Utah Code Ann. § 78A-6-508(2)(e) (LexisNexis Supp. 2019).

[5] Utah Code section 78A-6-508(7)(a) articulates that sexual abuse or exploitation is prima facie evidence of unfitness. “Sexual exploitation” is defined as, among other things, “engaging in any conduct that would constitute an offense under Section 76-5b-201, sexual exploitation of a minor, regardless of whether the individual who engages in the conduct is actually charged with, or convicted of, the offense.” Utah Code Ann. § 78A-6-105(52)(c) (LexisNexis Supp. 2019). Sexual exploitation of a minor includes knowingly possessing child pornography. Id. § 76-5b-201(1). Father was charged with ten counts of sexual exploitation of a minor in 2017.

[6] Reunification was never set as a goal for Father because he “pled guilty to several felony charges of sexual exploitation of a minor.” Father does not challenge this finding on appeal.

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In re K.W. – 2018 UT App 44 – termination of parental rights

2018 UT App 44

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.W. AND A.W.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.

A.W.,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion

No. 20170229-CA
Filed March 22, 2018

Third District Juvenile Court, Salt Lake Department
The Honorable Mark W. May
No. 1127816

Joshua Fawson, Attorney for Appellant

Sean D. Reyes, John M. Peterson, and Carol L.C.
Verdoia, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

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

CHRISTIANSEN, Judge:

¶1 A.W. (Father) appeals the juvenile court’s order terminating his parental rights to his children, K.W. and A.W. Father contends (1) that the Division of Child and Family Services (DCFS) failed to sufficiently modify the reunification-services plan to accommodate his disabilities as required by the Americans with Disabilities Act (the ADA), (2) that the evidence was insufficient to support the juvenile court’s finding that termination of his parental rights was in the children’s best interests, and (3) that said termination was not “strictly,” as required by Utah Code section 78A-6-507. We conclude that Father’s ADA claim fails because Father has not carried his burden of demonstrating clear error in the juvenile court’s finding that DCFS provided him reasonable accommodations. We further conclude that Father has not shown that the juvenile court’s best-interests finding was clearly erroneous. And we conclude that Father’s argument regarding the necessity of termination is inadequately briefed. We therefore affirm the juvenile court’s order.

BACKGROUND

¶2 Father suffered, and continues to suffer from, from bipolar disorder with psychotic tendencies, memory loss from injuries sustained in a car accident,[1] and cognitive impairments from brain surgery to treat a colloidal cyst. Father also had seven drug-related convictions stretching across four states from 1989 to 2012. At the time his parental rights were terminated in March 2017, Father had recently used both marijuana and methamphetamine and was homeless.

[1.] The mother of the children died in this accident.

¶3 In March 2016, Father contacted law enforcement officers seeking transport to a shelter for himself and his two children, K.W. and A.W. After arriving at the shelter, Father was taken to another facility to receive psychiatric treatment. DCFS was initially unable to locate Father, and the children were placed in the State’s custody. In April 2016, the court ordered DCFS to provide Father with reunification services, noting that Father “desires help from DCFS and is willing to participate in services.” In May 2016, the court held a disposition hearing. Although it appears from the record that the court and DCFS were aware that Father suffered from disabilities, Father did not reference the ADA at the hearing or ask for specific accommodations other than for help with transportation. The reunification-services plan required Father to undergo a mental health evaluation, comply with the resulting treatment recommendations, undergo drug testing, and meet with Assessment and Referral Services (ARS). The court also ordered modifications to the plan to accommodate Father’s needs, including offering Father transportation for any assessments.

¶4 Father did not attend the initial child and family team meeting. And when he did eventually meet his DCFS caseworker to discuss the resulting service plan, it was a “difficult conversation” because he was “so upset just with the fact that the [children] were removed in the first place.” After seeing a police car nearby, Father became worried that he would be arrested. Father also became “very emotional concerning the removal of his children” and “could not carry on a conversation.”

¶5 The caseworker arranged to pick Father up to take him to a mental health facility for an evaluation. But when they arrived, the facility was unable to see Father that day and instead scheduled a future appointment. The caseworker also scheduled an appointment for Father at ARS for a drug and alcohol assessment. However, Father did not appear at or reschedule either of these appointments.

¶6 Father’s contact with DCFS was limited throughout the reunification period. Father was homeless but was often at or near a certain park. When Father had not contacted the caseworker for a while, she would go to the park and look for him to discuss his case. On four or five occasions, the caseworker was able to find Father there and meet with him. But when she tried to speak with him about treatment services, he would become emotional, angry, or paranoid.

¶7 In Father’s view, he had not done anything wrong and there was therefore no reason for him to use the services; accordingly, Father refused to participate in them. As a result, Father did not receive the mental health or drug and alcohol treatment from DCFS required by the service plan. And despite the caseworker’s urging, Father refused to visit his previous treatment provider. Father also refused to submit to random drug testing. Eventually, Father stopped cooperating with DCFS at all.

¶8 At first, the caseworker arranged for Father to meet with the children at DCFS’s office on a weekly basis. Father would get rides to the office from friends or a relative. According to the caseworker, Father would get angry at those visits, claiming that the children had been kidnapped, and he would attempt to find out from the children where they were living. Father was not consistent in attending these scheduled visits.

¶9 The caseworker then sought to accommodate Father’s needs by organizing visits with the children at the park where Father was living. At first, the visits were consistent. But later, Father would often become angry and suggested that he would go to the children’s school to take them away. After one visit at the park during which Father was “unhappy and yelling,” the caseworker determined that it was no longer safe to have visits there and decided that future visits would be at the DCFS office. However, Father did not attend any more visits or contact DCFS thereafter.

¶10 Transportation was a recurring problem for Father throughout the reunification period. Although the caseworker had initially driven him to appointments, Father’s repeated use of “aggressive and angry tones” caused the caseworker’s supervisor to advise her not to transport Father for safety reasons. The caseworker then got bus passes for Father, but he refused to use them, claiming that he was unable to bring his bicycle and cart on the bus.[2]

[2] In its final order, the court noted that Father “is homeless and all of his possessions are contained in a cart that he pulls with his bicycle.” It is unclear what Father had previously done with the bicycle and cart on those occasions that the caseworker drove him to his appointments.

¶11 Housing was also an issue for Father. Father refused to go to a homeless shelter despite his caseworker’s encouragement. According to the caseworker, Father did not want to go to a shelter due to his anxiety about large groups of people. Father knew that suitable housing was necessary for him to regain custody of his children but did not take any action toward that end.

¶12 There were also significant communication barriers between DCFS and Father. For example, Father had no consistent phone number that DCFS could use to contact him. Between January 2017 and the beginning of March 2017, Father used five different phone numbers. And when Father would call DCFS, he would usually refuse to answer questions about his progress in obtaining housing and employment. Instead, he would fixate on what he perceived as DCFS kidnapping his children.

¶13 The juvenile court eventually changed the goal for the children from reunification to adoption. At the termination-of­parental-rights trial, Father appeared and testified. His testimony is discussed below, to the extent that it is relevant to his claims on appeal. After trial, the court ruled that the services had been unsuccessful at addressing the reasons the children had been placed in an out-of-home placement. The court found that several grounds for termination of Father’s parental rights had been proven by clear and convincing evidence and consequentlyterminated Father’s parental rights. Father appeals.

STANDARD OF REVIEW

¶14 “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. “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 B.A., 2017 UT App 202, ¶ 2, 407 P.3d 1053.

ANALYSIS

I. Americans with Disabilities Act

¶15 Utah law requires DCFS to make reasonable efforts to provide court-ordered reunification services to a parent before the court may terminate that parent’s rights to his or her child. Utah Code Ann. § 78A-6-507(3) (LexisNexis 2012). The ADA applies to the provision of such services and requires that “reasonable modifications” be made to a reunification-services plan to accommodate a parent who has a qualifying disability. See In re K.C., 2015 UT 92, ¶¶ 1, 23, 362 P.3d 1248. “Juvenile courts have broad discretion in determining whether reasonable reunification efforts were made. Accordingly, absent a demonstration that the determination was clearly in error, we will not disturb the determination.” In re K.F., 2009 UT 4, ¶ 52, 201 P.3d 985 (quotation simplified).[3]

[3.] The court’s internal style guide has adopted the parenthetical “quotation simplified” in the spirit of the nascent “cleaned up” parenthetical. See, e.g., State v. Cady, 2018 UT App 8, ¶ 9 n.2.

 

¶16 Here, the ADA was not explicitly mentioned until Father’s closing argument at the termination trial. However, it appears that Father’s disabilities were known to the parties and the juvenile court—in promulgating the service plan, the juvenile court ordered that certain “modifications to the Service Plan” be made “to accommodate [Father],” including that DCFS offer transportation to any assessments and that all requirements be reflected in writing.

¶17 On appeal, Father contends that DCFS “failed to make reasonable modifications to services as mandated under [the ADA].” In its order terminating Father’s parental rights, the juvenile court determined that DCFS had “made reasonable efforts to provide services to [Father].” Therefore, Father now bears the burden of proving that this determination was clearly erroneous. See In re K.F., 2009 UT 4, ¶¶ 44, 52. He identifies several areas in which he believes DCFS failed to make reasonable modifications or efforts, including transportation and communication.

¶18 Father concedes that DCFS made some efforts to provide reunification services to him. On appeal, he identifies additional things that DCFS could have done to help better support his efforts to comply with the court-ordered service plan. But Father does not provide any authority regarding the line between reasonable and unreasonable efforts; i.e., what level of support and services DCFS is required to extend to a disabled parent pursuant to the ADA to aid the parent–child reunification efforts. Cf. In re P.H., 783 P.2d 565, 572 (Utah Ct. App. 1989) (“[R]ehabilitation is a two-way street which requires commitment on the part of the parents, as well as the availability of services from the State.” (citation and internal quotation marks omitted)). The fact that DCFS could have made further efforts to help Father resolve the issues that required removal of his children does not necessarily mean that the efforts that were made were unreasonable. Moreover, Father’s contention is undermined by his lack of cooperation with DCFS and his failure to notify the court or DCFS that he intended to access the services but needed additional modifications to do so.

¶19 At the disposition hearing held on May 10, 2016, Father’s counsel agreed to a service plan that had several modifications to accommodate Father’s needs. But Father failed to take advantage of those services and now claims that these modifications, made to assist him in light of his disabilities, were insufficient. During the time that the service plan was in effect, Father never informed the court that he was unable to access the provided services and never asked the court to make additional modifications to enable him to do so. Instead, DCFS and the court were left to guess whether Father’s failure to participate in the services was due to an inability to do so or an unwillingness to do so.

¶20 There was certainly good reason for DCFS to believe the latter. The juvenile court noted that, throughout the case, Father did not believe he had done anything wrong and had therefore refused to discuss or participate in the mental-health and substance-abuse treatment programs that were required by the service plan. The court also noted that Father’s contact with DCFS was limited. And when DCFS was able to communicate with Father, he would become aggressive, emotional, angry, and/or paranoid. Father did not want to talk about the services he was supposed to engage in; instead, he focused on the removal of the children, his kidnapping claims, and his efforts to discover where they lived and went to school. It appears that, as a result, DCFS was never made aware of Father’s claim that the reason for his non-participation in the services was the inadequacy of the modifications to accommodate his disabilities.

¶21 For example, with regard to transportation, Father complains that “no transportation was offered” for his rescheduled mental-health assessment and substance-abuse evaluation. But in actuality, transportation was offered; Father was given bus passes for this purpose.[4] Father next asserts that he was unable to use the bus system due to his confusion and because the bus drivers would not allow him to take his possessions aboard the buses.[5] But Father does not demonstrate that he ever informed DCFS of his bus-related struggles or that he asked for modifications to the service plan to address those struggles.

[4.] Father claims that it is disputed whether he was given bus passes until much later in the case, highlighting his own testimony. But the court heard testimony from the caseworker and from Father and nevertheless found that he had been given bus passes. Father does not explain why that finding was clearly erroneous, and we therefore accept it as true.

[5.] As noted above, Father apparently transported all of his possessions using a bicycle and cart. He claims that the bus drivers would not allow him to take his bicycle and cart on the buses, and therefore that the bus system was not a viable option for him. Even assuming that the ADA’s “reasonable modifications” requirement extends beyond the triggering disability to attenuated or unrelated obstacles, such as homelessness, Father’s argument in this regard is unavailing. First, Father concedes that he was initially given rides by the caseworker and that he rode the bus to attend the termination trial. And the court found that Father was occasionally given rides by his friends and relatives. There is no record of what Father did with his bicycle and cart on those occasions, and therefore no indication that the solution, whatever it was, would not have worked when Father tried to use the bus system. Second, there is no evidence in the record that Father informed DCFS or the court of the bicycle-and-cart problem, much less that he asked for assistance or an accommodation on that basis.

¶22 Similarly, Father argues that “DCFS never referred Father to the relevant agencies to receive help to get a phone,” which caused communication obstacles. But Father does not assert that he ever asked for such help. And Father concedes that he was able to communicate with DCFS on some occasions, using five different phone numbers during the time the service plan was in effect. While it is true that the caseworker testified that the biggest obstacle in the case was that it was “hard to get ahold of [Father],” she was also clear that she was able to do so, at least sometimes. In her view, much of the obstacle was that it was “hard to help him understand anything that was going on with the case.” She noted, “Some days, he would just refuse to talk to me; some days, he would refuse to do anything because he would say he didn’t do anything wrong; [and] [s]ome days, he would consider it, but there was no follow-through.” In other words, although DCFS did not assist Father in getting a phone, Father never asked for such assistance and Father was still able to make and receive phone calls.

¶23 The service plan contained several modifications to accommodate Father’s disabilities, and DCFS made significant efforts to assist Father in completing the requirements of the plan. Father has not demonstrated clear error in the juvenile court’s finding that the efforts made by DCFS were reasonable. Father cannot carry his burden of persuasion on appeal by simply noting that the efforts made were ultimately unsuccessful and identifying additional steps DCFS could have taken, especially when the record reflects that Father was generally uncooperative and failed to inform DCFS of further modifications he needed to successfully complete the service plan.

II. Best Interests

¶24 Father also contends that “[t]he evidence was insufficient to support the court’s finding that it was in the children’s best interest that Father’s parental rights be terminated.” Specifically, Father argues that the children should have been placed in a “family-supported parenting plan” as an “appropriate accommodation” under the ADA. He notes that his brother and his brother’s wife (Uncle and Aunt) had cared for the children and suggests that DCFS should have considered some sort of plan that allowed him, with the help of Uncle and Aunt, to retain his parental rights.

¶25 Father highlights the successes the children had achieved while being cared for by Uncle and Aunt. But he does not outline the exact contours of a proposed family-supported parenting plan. For example, Father does not explain where the children would live, since Uncle and Aunt have now moved to Oregon while Father remains in Utah. Similarly, while Father acknowledges that placement with Uncle and Aunt would violate a DCFS policy,[6] his response is only to assert—without citation to authority—that the ADA requires DCFS to modify its policies in this circumstance.

[6] DCFS has a policy preventing placement of a child with individuals who have been convicted of manslaughter or certain other crimes. Uncle’s criminal record shows a manslaughter conviction from approximately thirty years ago.

¶26 In any event, Father did not present a proposed family-supported parenting plan at any time before the termination trial. This failure undermines his position insofar as it relies on the ADA. See In re K.C., 2015 UT 92, ¶¶ 20, 27, 362 P.3d 1248 (explaining that there is no bright-line bar to raising an ADA claim for the first time at a termination trial but noting that “[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” given that a child’s interest in permanency and stability favors “[t]he expeditious resolution of a termination proceeding”). And Father did not present such a plan at the termination trial.

¶27 Father also suggests that termination is not in the children’s best interests because “[t]erminating Father’s parental rights [will] terminate contact between the children and Father, severing what has been a very important relationship in the children’s lives.” But the foster parents, who wanted to adopt the children, testified that they would facilitate visits between Father and the children: “We’re not trying to exclude anybody . . . . [W]e understand they have family, even besides their dad [and] we’re not ever going to try to take that away from them . . . [a]s long as it’s good for them and it’s what they want.”

¶28 Given the grounds for termination presented to the court and the evidence presented that Father was unable to rectify the circumstances that led to his children originally being removed from his custody, Father has not demonstrated that the juvenile court’s finding that termination of his parental rights was in the children’s best interests was clearly erroneous.

III. “Strictly Necessary”

¶29 Father’s final contention, limited to four sentences, is that terminating his parental rights was not “strictly necessary.” See Utah Code Ann. § 78A-6-507(1) (LexisNexis 2012). He asserts that the juvenile court’s finding that terminating his parental rights was strictly necessary was erroneous because Uncle and Aunt could have been granted permanent custody and guardianship of the children.

¶30 This argument is inadequately briefed and therefore fails to carry Father’s burden of persuasion. As noted above, DCFS’s policy precluded placement with Uncle, and Father has not established that the ADA required modification of that policy. Moreover, the juvenile court expressed concern that Uncle and Aunt, if granted guardianship, would not allow the children to continue living with the foster parents.[7] Father’s brief contention in this regard does not address either of these concerns.

[7.] We note the children’s expressed desires to continue living with the foster parents and be adopted by them, but we ascribe no legal significance to those desires on appeal.

Consequently, Father has not carried his burden of persuasion to show error in the court’s conclusion that termination was strictly necessary.

¶31 While we are sympathetic to Father’s plight, we are unable to see any abuse of discretion in the juvenile’s court’s decision to terminate Father’s parental rights. Because Father was not able to remedy the problems that led to K.W.’s and A.W.’s removal from his custody and did not demonstrate that the services offered to him were insufficient, the juvenile court appropriately focused on finding permanency and stability for these two young children.

¶32 Affirmed.


Utah Family Law, LC | divorceutah.com | 801-466-9277

 

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