In re M.D. , 2016 UT App 3 ( 2016 )

2016 UT App 3THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF M.D., J.D., AND A.D.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
A.D.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20150955-CA
Filed January 7, 2016
Third District Juvenile Court, Salt Lake Department
The Honorable Charles D. Behrens
No. 1094548
Sheleigh A. Harding, Attorney for Appellant
Sean D. Reyes and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES GREGORY K. ORME and J. FREDERIC VOROS JR., and
JUSTICE JOHN A. PEARCE.1
PER CURIAM:
¶1 A.D. (Father) appeals the order terminating his parental
rights to M.D., J.D., and A.D.2 We affirm.
1. Justice John A. Pearce sat by special designation, as authorized
by law. See generally Utah R. Jud. Admin. 3-108(3).
2. Another child born during this case, whose initials are also
J.D., is not involved in this appeal.
In re M.D.
¶2 ‚[T]o overturn the juvenile court’s decision [to terminate
parental rights], the result must be against the clear weight of the
evidence or leave the appellate court with a firm and definite
conviction that a mistake has been made.‛ In re B.R., 2007 UT 82,
¶ 12, 171 P.3d 435 (citation and internal quotation marks
omitted). We ‚review the juvenile court’s factual findings based
upon the clearly erroneous standard.‛ In re E.R., 2001 UT App
66, ¶ 11, 21 P.3d 680. A finding of fact is clearly erroneous when
the court ‚fail[s] to consider all of the facts or considered all of
the facts and its decision was nonetheless against the clear
weight of the evidence.‛ In re B.R., 2007 UT 82, ¶ 12. Therefore,
‚[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.‛ Id.¶3 The juvenile court concluded that several grounds
supported termination of Father’s parental rights. Under Utah
Code section 78A-6-507, the finding of a single enumerated
ground will support termination of parental rights. Utah Code
Ann. § 78A-6-507 (LexisNexis 2012). The juvenile court
concluded that Father was an unfit or incompetent parent. See id.
§ 78A-6-507(1)(c). The court further concluded that the children
had been in an out-of-home placement under the supervision of
the juvenile court and the Division of Child and Family Services
(DCFS), see id. § 78A-6-507(1)(d)(i); that Father had ‚substantially
neglected, willfully refused, or has been unable or unwilling to
remedy the circumstances that caused the children to be in an
out-of-home placement, see id. § 78A-6-507(1)(d)(ii); and that
‚there is a substantial likelihood that [Father] will not be capable
of exercising proper and effective parental care in the near
future,‛ see id. § 78A-6-507(1)(d)(iii). The court also concluded
that Father abandoned his children, see id. § 78A-6-507(1)(a), and
also failed to communicate with his children for more than six
months and to show the normal interest of a natural parent,
without just cause, see id. § 78A-6-508(1). The juvenile court also
concluded that Father had made only token efforts to support or
communicate with the children, to prevent neglect of the
20150955-CA 2 2016 UT App 3In re M.D.
children, to eliminate the risk of serious harm to the children, or
to avoid being an unfit parent. See id. § 78A-6-507(1)(f). The court
further concluded, as required by statute, that it was in the best
interests of the children to terminate Father’s parental rights. See
id. § 78A-6-503(12) (LexisNexis Supp. 2015).
¶4 Because these children were ‚Indian children‛ as defined
by the Indian Child Welfare Act (ICWA), see 25 U.S.C.A.
§ 1903(4) (West 2015), the juvenile court also found that the State
had shown beyond a reasonable doubt that continued custody of
the children by Father was likely to result in serious emotional or
physical damage to the children.3 The State gave appropriate
notice to the Navajo tribe. The tribe did not intervene and did
not ask to have the case removed to tribal court.
¶5 Father challenges the sufficiency of the evidence to
support any ground for termination of his parental rights and to
support the juvenile court’s decision on the best interests of the
children. However, Father concedes that he did not complete
any services and did not participate in the case from May 2014,
when he elected not to participate in services, until September
28, 2015, which was the date of the trial. Father also concedes
that he did not complete any services; he had no supervised
visits with the children; and he was incarcerated at the time of
3. Section 1912(f) of the ICWA requires,
No termination of parental rights may be ordered
in such proceeding in the absence of a
determination, supported by evidence beyond a
reasonable doubt, including testimony of qualified
expert witnesses, that the continued custody of the
child by the parent or Indian custodian is likely to
result in serious emotional or physical damage to
the child.
25 U.S.C.A. § 1912(f) (West 2015).
20150955-CA 3 2016 UT App 3In re M.D.
trial. Nevertheless, Father claims that the State failed to satisfy
the ‚active efforts‛ requirement under ICWA, which states,
Any party seeking to effect a foster care placement
of, or termination of parental rights to, an Indian
child under State law shall satisfy the court that
active efforts have been made to provide remedial
services and rehabilitative programs designed to
prevent the breakup of the Indian family and that
these efforts have proved unsuccessful.
Id. § 1912(d). Father argues that if active efforts ‚would have
occurred, he could have been successful in his case.‛ Father also
challenges the conclusion that continued custody of the children
by Father would be likely to result in serious emotional or
physical damage to the children, claiming that the State must
prove specific examples of the harm that would occur if the
children were returned.
¶6 The children’s removal and placement in DCFS custody
in October 2014 was a foster care placement that triggered the
active efforts requirement. See In re C.D., 2008 UT App 477, ¶ 20,
200 P.3d 194. Similarly, the State must satisfy the active efforts
requirement in seeking to terminate Father’s parental rights. See
25 U.S.C.A. § 1912(d). ‚The ICWA requires active efforts to avoid
the breakup of the Indian family or evidence that can support a
finding that such efforts would be futile.‛ In re C.D., 2008 UT
App 477, ¶ 27. Thus, ‚the State must demonstrate that active
efforts have been made with respect to the specific parent . . . or
provide evidence that such efforts would be futile.‛ Id. ¶ 30.
Accordingly, we review the juvenile court’s finding that further
efforts with Father would have been futile, ‚applying the
heightened active efforts requirement.‛ Id. ¶ 35. ‚Although the
state must make ‘active efforts’ under the ICWA, it need not
persist with futile efforts.‛ See id. ¶ 36 (citation and internal
quotation marks omitted).
20150955-CA 4 2016 UT App 3In re M.D.
¶7 The juvenile court found that on May 7, 2014, Father
‚voluntarily elected to not participate in services‛ and
‚effectively opted out of reunification.‛ This occurred roughly
five months before the children came into DCFS custody when
the case was a protective supervision case and over a year before
the State filed a termination petition. Father concedes that he did
not participate in the case from May 2014 to September 2015. At
the time of the termination trial, Father had not seen the children
for a least a year. The juvenile court had ordered supervised
visits for Father in May 2014; however, no supervised visits took
place, although Father may have had unsupervised visits in
violation of a no contact order. Father testified that he could not
remember the last time he had seen the children. The juvenile
court also found that DCFS had provided active efforts to the
family to prevent removal and to reunify the children with their
parents.4 The court further found, ‚[Father’s] whereabouts were
unknown to [DCFS] and any efforts on the part of [DCFS] would
have been futile.‛
¶8 Contrary to Father’s assertions, the testimony of the
ICWA expert witness from the Navajo tribe does not undermine
the juvenile court’s determination that further services directed
to Father would be futile. The ICWA expert witness testified that
she tried to contact Father toward the beginning of the case, but
that his number was out of service. She also testified that Father
was in need of services to address parenting, substance abuse,
and domestic violence issues, and that he was not ready to take
custody without those services. With regard to the active efforts
requirement, the expert testified that she ‚would like to see a
little more effort by‛ DCFS, but that Father ‚needed to stay in
contact with‛ DCFS. The expert testified that she ‚would have
4. The juvenile court continued reunification services to the
mother after removal in October 2014, until July 2015, when the
permanency goal changed to adoption. The mother relinquished
her parental rights to the three children involved in this case.
20150955-CA 5 2016 UT App 3In re M.D.
set home visits just to check on the father.‛ However, the expert
acknowledged that there could have been no visits if DCFS had
no contact information for Father. The expert expressed concern
that in most of her cases, the states involved in those cases
provided bus passes and that, in her experience, she knew of
only two caseworkers who had gone to a parent’s home to
provide transportation. She stated, ‚So I believe that more could
have been done if the father’s whereabouts were known.‛ She
believed that he should have been transported ‚if his
whereabouts were known.‛ She further testified,
I think overall any parent who would want to be
with their children, they would do all that they can
for their children. They would be visiting. They
would be working their services. And in this case,
my concern is he decided not to. . . . [H]e did admit
to alcohol. Without the services, if he’s still using,
that’s my concern.
Finally, the expert testified that the children would suffer serious
physical or emotional damage if returned to their parents’
custody.
¶9 The ICWA expert witness’s testimony was consistently
qualified by her statements that further efforts with Father
would be possible only if he stayed in contact with DCFS so that
his whereabouts were known. The expert’s testimony does not
support Father’s assertion that the expert believed that the active
efforts requirement was not satisfied nor did it undermine the
juvenile court’s determination that further efforts would be
futile. Father’s assertion that the evidence from the ICWA expert
was insufficient because she was ‚unable to identify any specific
serious emotional or physical harm which would occur to the
children if they were returned to [Father’s] custody‛ is both
unpersuasive and unsupported by meaningful analysis.
20150955-CA 6 2016 UT App 3In re M.D.
¶10 Additional evidence in the record supports the juvenile
court’s determination that further efforts directed to Father
would be futile. The caseworker testified that during the
protective supervision case, Father told her before a May 2014
hearing that he did not want to continue his services. She had
assisted Father in setting up evaluations, called agencies on his
behalf, and set up appointments. However, Father then decided
that he did not want to participate in those services. The
caseworker talked to Father before he reached this decision and
encouraged him to continue services. A second caseworker who
assumed responsibility after removal of the children from the
mother testified that Father contacted her in August 2014 a
couple of times, but that he also called from a pay phone and left
no contact information. She testified that if a parent fails to
participate in services, there would still be some contact through
supervised visits with the children that might provide an
opportunity to motivate the parent to participate. Father did not
attend any supervised visits. Although Father claimed that his
caseworkers did not keep in contact with him, he admitted that
they had no way to contact him. He also claimed that he could
have been reached through his sister, but the original
caseworker testified on rebuttal that when she asked his sister or
the children’s mother about Father, they always said that they
had not talked to him.
¶11 Father’s challenge to the best interests determination also
lacks merit. The juvenile court found that the children had
medical and mental health issues that require treatment, and the
court detailed those requirements. Although the children were
not in a prospective adoptive home, the testimony demonstrated
that this was the result of the continuing efforts of DCFS and the
Navajo tribe to place the children in an Indian home that could
meet their specific physical and mental health needs, which
included exploring a possible kinship placement in Arizona.
Based upon Father’s testimony, the juvenile court found that he
was not even aware of the physical or mental health needs of the
children. Father had made ‚no effort to learn or educate[]
20150955-CA 7 2016 UT App 3In re M.D.
himself as to what services they do need.‛ Father did not have a
relationship with the children and had not had any meaningful
contact with them for at least a year. The best interest
determination is amply supported by the evidence.
¶12 Father’s core challenge to the sufficiency of the evidence
to support any ground for termination or the best interest
determination is based upon his claim that he did not receive the
active efforts required by the ICWA. Father’s related claims,
which are based solely upon his own assertions that he is now
sober and ‚ready to engage fully in his case,‛ and that the State
therefore should be required to extend him further services in an
effort to reunify him with the children, similarly lacks merit.
Father does not otherwise challenge the sufficiency of the
evidence to support any of the enumerated grounds for
termination or the best interest determination. Because ‚a
foundation for the court’s decision exists in the evidence,‛ we
affirm. See In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.
20150955-CA 8 2016 UT App 3