In re A.J. ( 2017 )

2017 UT App 235THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF A.J. AND A.J.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
B.J.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20160134-CA
Filed December 29, 2017
Fourth District Juvenile Court, American Fork Department
The Honorable Suchada P. Bazzelle
No. 1101463
Janell R. Bryan, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN
concurred.
CHRISTIANSEN, Judge:
¶1 B.J. (Father) appeals the juvenile court’s order terminating
his parental rights to A.J. (Older Child) and A.J. (Younger Child).
We affirm.
In re A.J.
BACKGROUND
¶2 Father and J.E. (Mother) are the natural parents of Older
Child and Younger Child. In June 2014, the Division of Child
and Family Services (DCFS) filed a petition for custody after
Older Child told a teacher at her school that during a May 2014
argument, Father and Mother had physically pulled her arms
and legs in different directions, causing Older Child to “slam[]”
her face on the ground. After a shelter hearing, the children were
removed from the parents’ custody and placed into DCFS’s
custody.
¶3 In July 2014, the juvenile court ordered DCFS to conduct a
risk assessment on Father. The risk assessment revealed “serious
concerns” that Father had a substance abuse problem. Based on
the risk assessment, DCFS recommended that Father submit to
random drug tests, reduce his medication dosages, participate in
substance abuse treatment, participate in psychological testing
and follow any recommendations therefrom, attend a parenting
program, and undergo a domestic violence assessment.
Although the juvenile court did not order services for Father at
that time, DCFS arranged for random drug testing and
assessments so that Father could start addressing the identified
concerns before adjudication. Father did not participate in any
services until they were later ordered.
¶4 In February 2015, the juvenile court held a pretrial
hearing on the State’s amended verified petition to adjudicate
the children as neglected. Father entered a plea under rule 34(e)
of the Utah Rules of Juvenile Procedure, by which he stipulated
to several allegations in the State’s amended verified petition
and “neither admitted nor denied” other allegations. The
juvenile court therefore deemed the allegations in the petition to
be true. 1 Among other things, the court found the following
1. Pursuant to rule 34(e), “[a] respondent may answer by
admitting or denying the specific allegations of the petition, or
(continued…)
20160134-CA 2 2017 UT App 235In re A.J.
allegations to be true: (1) Older Child had been injured as a
result of the May 2014 incident between Father and Mother;
(2) Father “[has] a substance abuse problem and such problem
interfere[s] with [his] ability to parent [the] children”; (3) Father
and Mother “have a history of domestic violence”; and (4) “the
children have been present during fights between the parents
and are impacted by the exposure to domestic violence.” The
juvenile court adjudicated the children as neglected by Father.
¶5 The juvenile court also approved a service plan, which
required Father to (1) participate in a mental health evaluation,
“specifically [a] psychological evaluation”; (2) submit to a
substance abuse assessment; (3) participate in random urinalysis
tests; (4) “[s]ign any required releases of information for all
medical, psychological, domestic violence, and/or substance
abuse treatment providers [and] provide copies to DCFS”;
(5) participate in a domestic violence assessment; (6) visit with
the children on a regular basis; (7) “[m]aintain stable and
appropriate housing”; (8) maintain employment; and
(9) participate in a parenting program. The court also directed
DCFS to conduct pill counts of Father’s medications, and Father
acknowledges this included the requirement to take his pills as
prescribed.
¶6 In March 2015, the juvenile court found that Father had
made “[l]ittle progress” with his service plan and scheduled a
permanency hearing for June 15. At the permanency hearing, the
juvenile court determined that both parents had “failed to
participate in, comply with, in whole or part, or to meet the goals
of [the] court approved treatment plan” and changed the
permanency plan for the children to adoption. Regarding Father
(…continued)
by declining to admit or deny the allegations. Allegations not
specifically denied by a respondent shall be deemed true.” Utah
R. Juv. P. 34(e).
20160134-CA 3 2017 UT App 235In re A.J.
specifically, the court observed that Father had attended a
substance abuse assessment and was attending the
recommended therapy. Father had attended thirty drug tests,
but he had also missed forty drug tests. In addition, “DCFS had
been conducting pill counts and many of [Father’s] prescriptions
were off count, indicating he was not using his medications as
prescribed.” The court observed that Father had completed a
psychological evaluation but had not followed the
recommendations from that evaluation. Father also had not
completed a domestic violence assessment or parenting
program. Father’s attendance at visits with the children had
improved, but he had still missed three out of twelve scheduled
visits.
¶7 The State filed a petition to terminate the parents’
parental rights on July 1, 2015. In the petition, the State asserted
that it had been provided with a copy of an independent medical
evaluation (the Medical Evaluation) conducted on Father in
November 2013. The Medical Evaluation was prepared by Dr.
Mattingly in response to Father’s complaints of ongoing injuries
from a September 2011 work accident. Although Father’s doctor
had cleared him to go back to work later that year, Father did
not return to work, asserting that he had migraines from the
work accident. According to the State, Dr. Mattingly had
concluded in her evaluation that Father’s work injuries had been
minor and had stabilized, that Father’s complaints of headaches
had not been substantiated by any objective findings, and that
Father had “opioid dependence and abuse/opioid dependence.”
The Medical Evaluation also included Father’s medical records
from September 2011, the time of Father’s work accident, to
November 2013.
¶8 Father filed a motion in limine seeking to suppress both
Dr. Mattingly’s testimony and the Medical Evaluation. Father
observed that the Medical Evaluation included “many pages of
[his] Medical Records” and asserted that the Medical Evaluation
was “protected by the confidentiality owed him by his
20160134-CA 4 2017 UT App 235In re A.J.
physicians and treatment providers.” In its response, the State
argued that Father’s physical and emotional health were at issue
and that there was “no violation of confidentiality rules.” The
State further asserted that Mother had given the Medical
Evaluation to DCFS. 2 According to the State, Father “had left
[the Medical Evaluation] in the couples’ home and allowed
[Mother] to have the document”; therefore, Father had waived
any privilege to the information in the Medical Evaluation.
¶9 The juvenile court did not rule on the admissibility of the
Medical Evaluation until the first day of the termination trial in
November 2015. 3 The court initially declined to admit the
Medical Evaluation but allowed Dr. Mattingly to testify. The
court noted that it would strike Dr. Mattingly’s testimony if
Father did not assert a medical defense justifying “his substance
use.” Father later presented testimony from one of his doctors,
Dr. Dana, that he had prescribed buprenorphine, commonly
known as Suboxone or Subutex, based on Father’s frequent
headaches and migraines. 4 Accordingly, the juvenile court
observed that “a medical defense [was] being launched.” The
court then determined that Dr. Mattingly’s testimony had
2. Mother testified that she found the Medical Evaluation in a
storage unit she shared with Father and gave the Medical
Evaluation to DCFS.
3. Mother voluntarily relinquished her parental rights on the last
day of the termination trial. She is not a party to this appeal.
4. Buprenorphine is a schedule III controlled substance intended
for the treatment of pain (Buprenex) and opioid addiction
(Suboxone and Subutex). Drug & Chemical Evaluation Section,
Office of Diversion Control, Drug Enforcement Administration,
Buprenorphine (July 2013), https://www.deadiversion.usdoj.gov/
drug_chem_info/buprenorphine.pdf [https://perma.cc/K3XS-
NQ8R].
20160134-CA 5 2017 UT App 235In re A.J.
authenticated the Medical Evaluation, and the court admitted
the Medical Evaluation in its entirety into evidence.
¶10 In its written order terminating Father’s parental rights,
the juvenile court acknowledged that the Medical Evaluation
“was performed at the request of an insurance company
opposing [Father’s] worker’s compensation benefits.” Thus, the
court determined, “the analysis and conclusions of [the Medical
Evaluation] were likely to be biased,” and the court “gave them
no weight in reaching its decision.” However, the court observed
that the Medical Evaluation also contained “a compilation of
[Father’s] medical history that was a recitation of treatment notes
from other treatment providers.” The court found that “this
section of the evaluation was sufficiently objective to be reliable
and useful in understanding the context and history of the
medical treatment [Father] received for his work injury.” The
court stated that it “did rely on Dr. Mattingly’s compilation of
[Father’s] medical records” to assess Father’s medical defense
“that he was using prescription medications for medical
reasons.” In its written findings, the juvenile court referred to the
medical history from the Medical Evaluation numerous times
and concluded that Father “is a drug addict.”
¶11 The juvenile court terminated Father’s parental rights
based on five different grounds. The court found that (1) Father
had neglected the children “by exposing them to incidents of
domestic violence, by not attending to the children’s needs, by
not providing them a safe and stable home environment, and by
exposing them to drug use”; (2) Father was an unfit or
incompetent parent based on his “serious substance abuse
problem”; (3) the children had been in an out-of-home
placement, and Father “has substantially neglected, or has been
unable or unwilling to remedy the circumstances that cause[d]
the children to be in an out-of-home placement, and there is a
substantial likelihood that [Father] will not be capable of
exercising proper and effective parental care in the near future”;
(4) Father had failed to make a parental adjustment “in that [he]
20160134-CA 6 2017 UT App 235In re A.J.
was not able to achieve the goals of the DCFS service plan and
demonstrate he could be a responsible parent”; and (5) Father
had made “insufficient efforts . . . to support the children, to
prevent further neglect of them, to eliminate the risk of serious
harm to the children, and to avoid being an unfit parent.” The
juvenile court also found that it was “strictly necessary” and in
the best interests of the children to terminate Father’s parental
rights.
¶12 Father now appeals the juvenile court’s order terminating
his parental rights.
ISSUES AND STANDARDS OF REVIEW
¶13 Father raises four issues on appeal. First, he contends that
“[t]he Medical Evaluation was unfairly prejudicial and required
complete exclusion.” Second, in a related argument, Father
contends that “[t]he Medical Evaluation was a private document
and reliance on any portion thereof cannot justify termination of
parental rights.” “A trial court has broad discretion to admit or
exclude evidence and its determination typically will only be
disturbed if it constitutes an abuse of discretion.” In re L.N., 2004
UT App 120, ¶ 9, 91 P.3d 836 (citation and internal quotation
marks omitted). “The existence of a privilege [or an exception
thereto] is a question of law, which we review for correctness.”
State v. Worthen, 2008 UT App 23, ¶ 9, 177 P.3d 664 (alteration in
original) (citation and internal quotation marks omitted), aff’d,
2009 UT 79, 222 P.3d 1144.
¶14 Third, Father contends that without the Medical
Evaluation, “[t]he remaining evidence was insufficient to
support termination” of his parental rights. 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
20160134-CA 7 2017 UT App 235In re A.J.
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. “When 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.
¶15 Fourth, Father contends that DCFS failed to make
reasonable efforts to provide reunification services.
“[D]etermining whether or not DCFS has provided reasonable
services to parents requires trial judges to observe facts[] . . .
relevant to the application of the law that cannot be adequately
reflected in the record available to appellate courts.” In re A.C.,
2004 UT App 255, ¶ 12, 97 P.3d 706 (second alteration and
omission in original) (citation and internal quotation marks
omitted). Accordingly, the juvenile court has broad discretion in
determining whether DCFS made reasonable efforts at
reunification. Id.ANALYSIS
I. Any Error in Admitting the Medical Evaluation Was Harmless.
¶16 Father’s first two contentions involve the Medical
Evaluation. First, he contends that “[t]he Medical Evaluation was
unfairly prejudicial and required complete exclusion” under
Utah Rule of Evidence 403. Second, he contends that “[t]he
Medical Evaluation was a private document and reliance on any
portion thereof cannot justify termination of parental rights.”
More specifically, he asserts that the Medical Evaluation was
privileged under Utah Rule of Evidence 506.
¶17 Rule 403 provides:
The court may exclude relevant evidence if its
probative value is substantially outweighed by a
20160134-CA 8 2017 UT App 235In re A.J.
danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.
Utah R. Evid. 403. Rule 506 provides that “[a] patient has a
privilege, during the patient’s life, to refuse to disclose and to
prevent any other person from disclosing information that is
communicated in confidence to a physician or mental health
therapist for the purpose of diagnosing or treating the patient.”
Id. R. 506(b). But the privilege is not absolute. State v. Worthen,
2008 UT App 23, ¶ 10, 177 P.3d 664, aff’d, 2009 UT 79, 222 P.3d
1144. Rule 506 contains certain exceptions to the patient
privilege, including the directive that “[n]o privilege
exists . . . [f]or communications relevant to an issue of the
physical, mental, or emotional condition of the patient . . . in any
proceeding in which that condition is an element of any claim or
defense.” Utah R. Evid. 506(d)(1)(A).
¶18 We need not address Father’s evidentiary arguments at
great length because, even if the juvenile court erred by
admitting the Medical Evaluation, any error in admitting such
evidence was harmless. See State v. Hamilton, 827 P.2d 232, 240
(Utah 1992) (“We do not determine whether the evidence was
admitted improperly, because we conclude that any error in its
admission was harmless.”). “Harmless error ‘is an error that is
sufficiently inconsequential that there is no reasonable likelihood
that it affected the outcome of the proceedings.’” In re A.R., 2017
UT App 153, ¶ 12, 402 P.3d 206 (quoting H.U.F. v. W.P.W., 2009
UT 10, ¶ 44, 203 P.3d 943).
¶19 Here, the juvenile court initially declined to admit the
Medical Evaluation, but the court allowed Dr. Mattingly to
testify on the condition that “at the conclusion of the trial[,] if
any kind of medical defense has not been launched by [Father],
it’s possible that this testimony is not relevant and I could then
strike that testimony.” Later in the trial, Dr. Dana testified that
when Father came into his clinic, he was having frequent, severe
20160134-CA 9 2017 UT App 235In re A.J.
headaches that “seemed to have characteristics of migraine.” Dr.
Dana testified that based on Father’s frequent headaches and
migraines, he prescribed buprenorphine. Observing that “a
medical defense is being launched,” the juvenile court
determined that Dr. Mattingly’s testimony had authenticated the
Medical Evaluation, and the court admitted the Medical
Evaluation into evidence.
¶20 In its written order terminating Father’s parental rights,
the juvenile court determined that “the analysis and conclusions
of [the Medical Evaluation] were likely to be biased,” and the
court “gave them no weight in reaching its decision.” However,
the court observed that the Medical Evaluation also contained “a
compilation of [Father’s] medical history that was a recitation of
treatment notes from other treatment providers.” The court
“found that this section of the evaluation was sufficiently
objective to be reliable and useful in understanding the context
and history of the medical treatment [Father] received for his
work injury.” The court stated that it “did rely on Dr.
Mattingly’s compilation of [Father’s] medical records” to assess
Father’s medical defense “that he was using prescription
medications for medical reasons.”
¶21 On appeal, Father does not dispute that he launched a
medical defense at trial. See Utah R. Evid. 506(d)(1)(A). Indeed,
he acknowledges that his “defense at trial was that he suffered
from migraines, which justified his prescription medication.”
Father asserts that “the Medical Evaluation had the undue
tendency to improperly suggest [he] was a drug addict, which
was unfairly prejudicial,” and that his use of a medical defense
“did not entitle the State to access all of [his] past medical
records to rebut such defense in favor of termination.”
According to Father, the juvenile court erred when it “found his
entire medical history as discoverable and admissible based on
his defense of one medical complaint for headaches.”
¶22 Our supreme court has acknowledged that “[r]ule 506 is
only broad enough to allow the disclosure of information
20160134-CA 10 2017 UT App 235In re A.J.
relevant to an element of any claim or defense.” Sorensen v.
Barbuto, 2008 UT 8, ¶ 10, 177 P.3d 614. “Therefore, rule 506(d)(1)
is a limited waiver of privilege, confined to court proceedings,
and restricted to the treatment related to the condition at issue.”
Id. “[A] waiver under rule 506(d)(1) does not mean that the
patient has consented to the disclosure of his entire medical
history.” Id.¶23 Assuming, for the sake of argument, that the Medical
Evaluation contained privileged information, 5 the fact that
Father asserted a medical defense did not automatically entitle
the juvenile court to rely on Father’s comprehensive medical
history in terminating his parental rights. Cf. id. After reviewing
the record, it does appear that the juvenile court failed to
properly assess the admissibility of the Medical Evaluation and
to limit its consideration of the evaluation “to the treatment
related to the condition at issue.” See id. Nevertheless, we
conclude that any error in the juvenile court’s admission of, and
reliance on, the Medical Evaluation was harmless. See In re A.R.,
2017 UT App 153, ¶ 12. As explained in Part II of this opinion,
there was sufficient independent evidence demonstrating that
Father had a substance abuse issue and sufficient evidence to
5. Father asserts, without citation to the record, that “[t]he
parties agree the Medical Evaluation is privileged and meets the
definitions of [Utah Rule of Evidence] 506(b).” This assertion
appears to be incorrect, as the State asserts that “[n]either Dr.
Mattingly’s testimony nor the [Medical Evaluation] were
privileged because of the nature of Father’s encounter with Dr.
Mattingly,” i.e., Father had no physician-patient relationship
with Dr. Mattingly, because Dr. Mattingly “did not examine
Father or prepare [the Medical Evaluation] for treatment; it was
conducted for the sole purpose of determining his fitness to
return to work.” The State further asserts that “even if privilege
exists,” Father waived the privilege when he launched a medical
defense at trial.
20160134-CA 11 2017 UT App 235In re A.J.
support the juvenile court’s ultimate decision to terminate
Father’s parental rights. 6
II. Sufficient Evidence Supports the Juvenile Court’s Termination
of Father’s Parental Rights.
¶24 Father contends that “if the Medical Evaluation and Dr.
Mattingly’s testimony [had] been properly excluded,” the
remaining evidence was insufficient “to support the juvenile
court’s findings and conclusion that the children are neglected as
to Father.” The State, on the other hand, contends that “[e]ven
assuming admitting Dr. Mattingly’s testimony and the [Medical
Evaluation] was error, it was necessarily harmless because other
sufficient evidence existed to terminate Father’s parental rights.”
We agree with the State.
¶25 “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, 991 P.2d 1118. “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 under section [78A-6-507] of the Utah
Code.” Id. (citation and internal quotation marks omitted); see
also Utah Code Ann. § 78A-6-507(1) (LexisNexis 2012) (listing the
grounds for termination of parental rights). Pursuant to section
78A-6-507(1), the finding of a single enumerated ground is
sufficient to warrant the termination of parental rights. See Utah
6. Father also asserts that the State “had no right to the Medical
Evaluation provided . . . by Mother” because it is a private
medical record under the Government Records Access and
Management Act and that the State violated the Health
Insurance Portability and Accountability Act “by disclosing the
Medical Evaluation without Father’s consent.” Given our
determination that there was sufficient evidence to terminate
Father’s parental rights without the Medical Evaluation, we need
not address these issues.
20160134-CA 12 2017 UT App 235In re A.J.
Code Ann. § 78A-6-507(1). “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;
see also Utah Code Ann. § 78A-6-506(3) (LexisNexis 2012). “A
petitioner has the burden of establishing both of these elements
by clear and convincing evidence.” In re R.A.J., 1999 UT App 329,
¶ 7; see also Utah Code Ann. § 78A-6-506(3). Father does not
challenge the juvenile court’s determination that termination of
his parental rights was in the children’s best interests, and we
therefore address only the parental fitness element of the
statutory test. 7
¶26 The juvenile court terminated Father’s parental rights on
five different grounds: (1) Father had neglected the children “by
exposing them to incidents of domestic violence, by not
attending to the children’s needs, by not providing them a safe
and stable home environment, and by exposing them to drug
use”; (2) Father was an unfit or incompetent parent based on his
“serious substance abuse problem”; (3) the children had been in
an out-of-home placement, and Father “has substantially
neglected, or has been unable or unwilling to remedy the
circumstances that cause[d] the children to be in an out-of-home
placement, and there is a substantial likelihood that [Father] will
not be capable of exercising proper and effective parental care in
the near future”; (4) Father had failed to make a parental
adjustment “in that [he] was not able to achieve the goals of the
DCFS service plan and demonstrate he could be a responsible
parent”; and (5) Father had made “insufficient efforts . . . to
support the children, to prevent further neglect of them, to
eliminate the risk of serious harm to the children, and to avoid
being an unfit parent.” See Utah Code Ann. § 78A-6-507(1)(b)–(f).
7. In his reply brief, Father generally asserts that if grounds for
termination are present, “best interests can then be considered.”
But Father provides no analysis regarding the children’s best
interests in this case.
20160134-CA 13 2017 UT App 235In re A.J.
So long as sufficient evidence existed to support at least one of
the grounds found by the court, the termination of Father’s
parental rights was appropriate.
¶27 On appeal, Father focuses his arguments on the juvenile
court’s determination that he had neglected the children “by
exposing them to drug use” and was an unfit parent based on
his “serious substance abuse problem.” See Utah Code Ann.
§ 78A-6-507(1)(b), (1)(c). As previously discussed, Father asserts
that if the Medical Evaluation had not been admitted into
evidence, “the remaining evidence would have been insufficient
to terminate [his parental] rights.”
¶28 Utah Code section 78A-6-507 provides, among other
things, that a court may terminate a parent’s parental rights if
the court finds that “the parent has neglected or abused the
child” or that “the parent is unfit or incompetent.” Id. Section
78A-6-508 provides, in relevant part, that “[i]n determining
whether a parent or parents are unfit or have neglected a child
the court shall consider, but is not limited to, the following
circumstances, conduct, or conditions: . . . (c) habitual or
excessive use of intoxicating liquors, controlled substances, or
dangerous drugs that render the parent unable to care for the
child.” Id. § 78A-6-508(2)(c) (LexisNexis 2012). We conclude that,
even after setting aside the Medical Evaluation, sufficient
independent evidence exists to support the juvenile court’s
conclusion that Father had a substance abuse problem and had
exposed the children to drug use.
¶29 To begin with, in his rule 34(e) plea, Father admitted that
he had a “substance abuse problem” and that it interfered with
his ability to parent the children. Nevertheless, when confronted
by this admission at trial, Father denied having a substance
abuse problem.
¶30 Mother’s trial testimony also indicated that Father had a
substance abuse problem. Mother testified that after his work
accident, Father “pretended to have headaches and different
20160134-CA 14 2017 UT App 235In re A.J.
things to get pain medication.” Mother stated, “[W]e’d go to the
doctors and on the way there [Father would] be rubbing his
eyes, . . . or doing certain things to get prepared to go to the
doctor before we got there.” Mother explained, “[W]e were
going for the pain pills, that’s what we were doing it for.”
Mother stated that when Father got pain medication, they would
“split the bottle.” She stated they “smoked [instant release
oxycodone] and we would sniff them, we’d swallow them.”
Mother explained:
[I]t took about a year and a half to actually get that
high dosage of the medication. But before then we
were just . . . sniffing the [L]ortab or the low dose
of the [Percocet] that [Father] got at first. [H]e did a
whole bunch of different treatments to get what we
wanted. Once we got what we wanted, that’s
where we stayed with it every time we went to the
doctor.
According to Mother, Older Child sometimes went to the doctor
with them, and Father “would just start acting . . . sad . . . so
[Older Child] would be like putting her arms around him like,
it’s okay[,] but it’s just putting on a show for the doctor to be
looking at him like, he’s really hurt.”
¶31 Mother further testified that when the family lived in a
different house, she and Father used drugs in their bedroom or
in a shed behind the house. The parents would leave Older
Child to watch Younger Child when they did this. Older Child
told DCFS that Mother and Father would “do nothing but sit in
the shed” and that when Mother and Father were in the shed,
she and Younger Child “couldn’t spend . . . time with them.”
According to a DCFS caseworker, in her first visits with the
children, Older Child understood that the children had been
removed from their parents’ custody, in part, because their
parents had been doing drugs in the shed.
20160134-CA 15 2017 UT App 235In re A.J.
¶32 As part of his service plan, Father was required to submit
to random urinalysis tests. The DCFS caseworker testified that
Father “did fairly well in the beginning” and only “missed a few
here and there.” However, between August 27, 2015, and
October 6, 2015, Father missed six urinalysis tests. He also tested
positive for Xanax in October 2015. Father did not have a
prescription for Xanax. Rather, at that time, Father had
prescriptions only for Ambien and Suboxone, so the DCFS
caseworker presumed he had gotten the Xanax illegally. This
occurred approximately one month before the beginning of the
termination trial. Father acknowledged at trial that he had
missed some tests, but he claimed it was due to his work.
¶33 The juvenile court had also ordered DCFS to conduct pill
counts of Father’s prescription medications. The court noted that
“[a]t times the counts were off and at other times [Father] forgot
to bring the pill[s]. The counts were not reliable because of the
inconsistencies and [Father’s] non-compliance.” The DCFS
caseworker testified that Father’s pill counts were often
unsuccessful because Father would forget to bring his
medications, and he once brought three pills in his wallet
without the prescription bottle, “so [she] couldn’t double check
when the prescription was filled.” At the very first pill count,
Father did not bring his Ambien with him, claiming that “he was
told by the pharmacist that the Ambien would interact with the
Suboxone and would kill him.” Ultimately, Father “never
brought his Ambien” to the pill counts, but when the DCFS
caseworker called Father’s doctor, “Ambien was still being
prescribed to [Father].” The DCFS caseworker also testified that
Father had told her that he was trying to get off of his
prescription medications. The caseworker had requested several
times that Father sit down with his current doctor and “come up
with an actual written plan to [wean him] off of the Suboxone if
that’s what he was planning on doing,” but Father never
submitted a plan.
20160134-CA 16 2017 UT App 235In re A.J.
¶34 Based on the foregoing, we conclude that there was
sufficient evidence apart from the Medical Evaluation from
which the juvenile court could conclude that Father was unfit
due to his failure to address his substance abuse problem. 8 Thus,
8. We note that Father does not directly address the juvenile
court’s grounds for termination under Utah Code section 78A-6-
507(1)(d) and (1)(f). See Utah Code Ann. § 78A-6-507(1)(d)
(LexisNexis 2012) (failure to “remedy the circumstances that
cause the child to be in an out-of-home placement” and “there is
a substantial likelihood that the parent will not be capable of
exercising proper and effective parental care in the near future”);
id. § 78A-6-507(1)(f) (failure of parental adjustment). We could
affirm on this failure alone. See, e.g., In re B.C., 2016 UT App 208,
¶ 6, 385 P.3d 705 (per curiam) (“Because Mother does not
challenge the grounds of neglect, unfitness, or token efforts, this
court need not review her claim that the evidence was
insufficient to support the grounds of abandonment.”); In re
N.M., 2007 UT App 16U, para. 2 (per curiam) (observing, where
the juvenile court terminated the mother’s parental rights on
multiple grounds and the mother challenged only one ground
on appeal, that the mother had implicitly conceded that there
was adequate evidentiary support for the juvenile court’s other
grounds for termination).
Further, Father does not address the issue of domestic
violence. Instead, he cursorily asserts that domestic violence was
“not the focus at trial.” Where a party fails to marshal the
evidence in support of a challenged finding, the party “will
almost certainly fail to carry its burden of persuasion on appeal.”
State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645. Father has not
marshaled the evidence supporting the juvenile court’s finding
of domestic violence, nor has he demonstrated that the evidence
clearly preponderates against the findings made regarding
domestic violence or that the juvenile court otherwise abused its
discretion. 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.
20160134-CA 17 2017 UT App 235In re A.J.
the evidence supports the juvenile court’s decision to terminate
Father’s parental rights on the basis of unfitness.
III. DCFS Made Reasonable Efforts to Reunite Father with
the Children.
¶35 Lastly, Father contends that DCFS failed to make
reasonable efforts to provide reunification services.
¶36 Pursuant to Utah Code section 78A-6-507, “in any case in
which the court has directed the division to provide
reunification services to a parent, the court must find that the
division made reasonable efforts to provide those services before
the court may terminate the parent’s rights under Subsection
(1)(b), (c), (d), (e), (f), or (h).” Utah Code Ann. § 78A-6-507(3)(a)
(LexisNexis 2012). “DCFS [complies] with its statutory obligation
to make reasonable efforts toward reunification if it makes a fair
and serious attempt to reunify a parent with a child prior to
seeking to terminate parental rights.” In re A.C., 2004 UT App
255, ¶ 14, 97 P.3d 706.
¶37 The juvenile court determined that “[r]easonable efforts
were made by DCFS to facilitate treatment for [Father].” The
court observed:
Although the Petition was not adjudicated as to
[Father] until February 2015, DCFS immediately set
him up with services in July 2014, so as not to
delay [Father] receiving necessary treatment. He
was set up with random drug testing, he was
provided referrals for assessments and given
information for parenting programs. If there was
delay in treatment, the delay was caused by
[Father]. DCFS could not have done anything more
to assist [Father] in addressing identified concerns
in being a parent.
20160134-CA 18 2017 UT App 235In re A.J.
The court also noted that Father did not participate in any
services until they were ordered by the court.
¶38 Although Father’s argument is framed as such, Father
does not truly argue that DCFS failed to provide him with the
proper level of assistance in obtaining the required services.
Instead, the thrust of Father’s argument is that, despite his
alleged substantial compliance with the service plan, DCFS still
sought termination of his parental rights. However, Father’s
argument mischaracterizes the factual record, because Father did
not substantially comply with the terms of his service plan.
¶39 Father’s service plan required him to (1) participate in a
mental health evaluation, “specifically [a] psychological
evaluation”; (2) submit to a substance abuse assessment;
(3) participate in random urinalysis tests; (4) “[s]ign any required
releases of information for all medical, psychological, domestic
violence, and/or substance abuse treatment providers [and]
provide copies to DCFS”; (5) participate in a domestic violence
assessment; (6) visit with the children on a regular basis;
(7) “[m]aintain stable and appropriate housing”; (8) maintain
employment; and (9) participate in a parenting program. The
juvenile court also directed DCFS to conduct pill counts of
Father’s medications. Father acknowledges this included the
requirement to take his pills as prescribed.
¶40 The juvenile court found that Father “did work on some
objectives in the service plan” but that he “only partially
complied with the plan by working on a few of the objectives.”
For example, Father failed to complete or make substantial
progress on the domestic violence objective in his service plan.
Indeed, before the start of the termination trial, Father had
completed only two of the recommended twenty weeks of
domestic violence treatment. Consequently, the juvenile court
observed that “[t]he domestic violence objective contained in the
service plan has not been addressed by [Father]” and that Father
was still in need of domestic violence treatment.
20160134-CA 19 2017 UT App 235In re A.J.
¶41 Regarding the urinalysis testing requirement, Father
missed six tests between August 27, 2015, and October 6, 2015.
He also tested positive for Xanax in October 2015, a controlled
substance for which he did not have a prescription. Father also
made it difficult for DCFS to conduct pill counts by failing to
bring his medications with him and by bringing three pills in his
wallet without the prescription bottle, “so [the DCFS
caseworker] couldn’t double check when the prescription was
filled.” The juvenile court determined that “[t]he counts were not
reliable because of the inconsistencies and [Father’s] non-
compliance.”
¶42 Additionally, Father’s compliance with the service plan’s
requirement that he “maintain safe, stable and appropriate
housing” was questionable at best. Although Father had
housing, he was sharing an apartment with another man who
was receiving housing assistance for the unit. Father’s name was
not on the lease. Instead, Father was “allowed to live at the
apartment at the will of the roommate.” The juvenile court noted
that “[t]here could be a possible violation of the housing
assistance agreement because the housing authority was not
informed [that Father] was living in the unit and there was no
check of eligibility with [Father’s] income.” Thus, the juvenile
court determined, “[t]here is concern about the stability of
[Father’s] housing.”
¶43 Based on the foregoing, Father’s assertion that he
substantially complied with the service plan lacks merit. 9 As
9. Although Father does not specifically address the juvenile
court’s determination regarding failure of parental adjustment,
supra ¶ 34 note 8, we note that Father’s failure to substantially
comply with his service plan is evidence of his failure of parental
adjustment. See In re J.T., 2012 UT App 253, ¶ 3, 286 P.3d 960 (per
curiam); see also Utah Code Ann. §§ 78A-6-507(1)(e), -508(5)
(LexisNexis 2012).
20160134-CA 20 2017 UT App 235In re A.J.
such, Father cannot demonstrate that DCFS’s decision to seek
termination is evidence of its failure to offer reasonable services
when he failed to fully avail himself of the services DCFS did
offer.
¶44 Father also briefly asserts that “DCFS had given up by the
time of adjudication.” However, the record speaks to the
contrary. At trial, Father acknowledged that the DCFS
caseworker encouraged him to begin services before they were
ordered by the juvenile court, but he chose not to begin services
because he was “upset.” Father testified, “I didn’t know how any
of this was happening or how it was right because . . . I’m a great
father.”
¶45 The DCFS caseworker testified that after the State’s
petition was adjudicated in February 2015, she gave Father the
information he needed to obtain his substance abuse assessment;
Father did not complete the assessment until the end of March.
She also stated that Father did not complete his psychological
evaluation until the end of May and that he had canceled several
appointments. The DCFS caseworker testified that she reminded
Father that those assessments needed to be done, “especially
since it wasn’t just the assessment, he would have to follow
whatever recommendations were [made] in that assessment.”
She testified that Father often acted like “he was hearing [what
she told him] for the first time” and that she “wasn’t sure if he
was being manipulative necessarily or if he really truly didn’t
understand.” The DCFS caseworker sent Father reminders via
text message and in person; she tried “to use all different kinds
of communication to make sure he understood everything.” She
also testified that she had ordered cognitive evaluations to
determine if Father was capable of understanding what was
required of him and that the test results indicated that Father
“should be able to do these things.”
¶46 In sum, we conclude that Father did not substantially
comply with the service plan and that the juvenile court acted
within its discretion when it found that DCFS had made
20160134-CA 21 2017 UT App 235In re A.J.
reasonable efforts to reunify Father with the children prior to
terminating his parental rights. The record demonstrates that
DCFS made reasonable efforts both before and after the State’s
petition was adjudicated to facilitate treatment for Father.
CONCLUSION
¶47 We affirm the juvenile court’s order terminating Father’s
parental rights.
20160134-CA 22 2017 UT App 235