In re B.A. , 2017 UT App 201 ( 2017 )

2017 UT App 201THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF B.A.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
R.A.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20160703-CA
Filed November 9, 2017
Third District Juvenile Court, West Jordan Department
The Honorable Renee M. Jimenez
No. 1109173
Joseph Lee Nemelka, Attorney for Appellant
Sean D. Reyes, John M. Peterson, and Emily I.
Iwasaki, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
CHRISTIANSEN, Judge:
¶1 R.A. (Father) appeals the juvenile court’s order
terminating his parental rights to B.A. (Child). Father contends
that the evidence was insufficient to support the juvenile court’s
findings regarding Father’s fitness to parent and Child’s best
interests. Father also contends that the juvenile court improperly
terminated his parental rights based upon his failure to comply
with the child and family service plan (the Service Plan). Finally,
Father contends that the juvenile court erred by allowing a lay
In re B.A.
witness to give expert witness testimony despite not being
designated as an expert. We conclude that the evidence
presented at trial was sufficient to support the juvenile court’s
findings, that the court did not terminate Father’s parental rights
solely due to his failure to comply with the Service Plan, and that
Father failed to adequately brief his witness contention;
consequently, we affirm.
¶2 We recognize that juvenile court judges have special
training, experience, and interest in their field, as well as the
opportunity to judge credibility firsthand; consequently, we
review a juvenile court’s decision to terminate parental rights
deferentially and will not disturb the juvenile court’s findings
and conclusions unless the preponderance of the evidence
clearly militates against the findings made or the court has
otherwise abused its discretion. In re A.B., 2007 UT App 286,
¶ 10, 168 P.3d 820; In re R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d
1118.
¶3 “Utah law requires a court to make two distinct findings
before terminating a parent-child relationship.” In re R.A.J., 1999
UT App 329, ¶ 7. “First, the court must find that the parent is
below some minimum threshold of fitness, such as finding that a
parent is unfit or incompetent based on any of the grounds for
termination” enumerated in Utah Code section 78A-6-507. Id.(citation and internal quotation marks omitted). See generally
Utah Code Ann. § 78A-6-507(1) (LexisNexis 2012) (listing the
grounds for termination of parental rights). “Second, the court
must find that the best interests and welfare of the child are
served by terminating the parents’ parental rights.” In re R.A.J.,
1999 UT App 329, ¶ 7.
I. Unfitness
¶4 Father first contends that the evidence was insufficient for
the juvenile court to have properly found that he fell below the
minimum threshold of parental fitness. Father challenges the
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juvenile court’s findings that: (1) he neglected Child, (2) he was
an unfit or incompetent parent, (3) he had willfully refused or
was unable or unwilling to remedy the circumstances that
caused Child to be in an out-of-home placement, and (4) there
was a substantial likelihood that Father would not be capable of
exercising proper and effective parental care in the near future.
¶5 We will uphold the termination of Father’s parental rights
so long as any one of the above-stated grounds was supported
by sufficient evidence. See Utah Code Ann. § 78A-6-507(1). One
of the grounds for termination set forth in the statute is whether
the parent is unfit due to “habitual or excessive use of
intoxicating liquors, controlled substances, or dangerous drugs
that render the parent unable to care for the child.” See id. § 78A-
6-507(1)(c); id. § 78A-6-508(2)(c). Here, between the time the
juvenile court first ordered Father to submit to random drug
testing and the date of trial, Father was required to submit to
drug testing over 100 times, but he only appeared for testing on
15 occasions. Of those 15 occasions, he tested positive for
controlled substances on 4 occasions. Additionally, while this
child-welfare case was pending, police investigated a domestic-
violence incident involving Father, and Father admitted to them
that he had “been using Spice.”
¶6 After this evidence was presented at trial, the juvenile
court found that “[Father] has missed a majority of the required
drug tests” and that “[Father] has been inconsistent in his drug
testing, having only tested on a few occasions.” The court also
noted Father’s positive tests for controlled substances and his
admission to drug use. The court concluded that, for these and
other reasons, Father was “unfit or incompetent, thereby
justifying the termination of [his] parental rights.”
¶7 On appeal, Father challenges neither the admissibility nor
the accuracy of the drug test evidence. In fact, Father mentions
drug testing only to describe the procedural history of the case
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and does not refer to drugs or drug testing anywhere in his
arguments. Given the uncontested evidence of Father’s drug use,
we must conclude that a foundation existed for the juvenile
court’s determination that Father was an unfit parent due to his
continuing use of controlled substances. And “[w]hen a
foundation for the court’s decision exists in the evidence, an
appellate court may not engage in a reweighing of the evidence.”
In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.
¶8 Because the evidence does not “clearly preponderate[]
against the findings” made by the juvenile court relating to
Father’s drug use, we will not disturb the drug-use findings or
the conclusions resting upon them. See In re A.B., 2007 UT App
286, ¶ 10, 168 P.3d 820. Because this was a sufficient basis for the
juvenile court’s conclusion that Father fell below the minimum
threshold of parental fitness, we need not and do not review
Father’s challenges to the other factual bases articulated by the
court in support of that conclusion.
II. Best Interests
¶9 Father also contends that the evidence was insufficient for
the juvenile court to have properly found that termination of
Father’s parental rights was in Child’s best interests. See generally
Utah Code Ann. § 78A-6-509(1) (LexisNexis 2012) (listing factors
a juvenile court must consider before terminating a non-
custodial parent’s rights); id. § 78A-6-510 (listing factors a
juvenile court must consider before terminating parental rights
to a child currently placed in a foster home). Specifically, Father
asserts the juvenile court based its findings in this regard
“substantially on testimony” given by the mother of the foster
family (Foster Mother). Father attacks Foster Mother’s credibility
on the ground that “Foster Mother’s overarching desire to adopt
[Child] substantially weakens Foster Mother’s testimony and the
weight that the court should afford [that testimony].” Father
then asserts that, as a result of Foster Mother’s alleged lack of
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credibility, there was “limited evidence in favor” of termination
and “ample evidence on the record to suggest otherwise.”
¶10 It is the province of the factfinder to consider the potential
biases of a witness when determining what weight to assign to
that witness’s testimony. Here, the factfinder—the juvenile
court—was aware that Foster Mother wanted to adopt Child and
thus that her testimony was potentially biased. The court
nonetheless credited certain aspects of her testimony. On appeal,
we will not substitute our judgment of evidentiary weight and
credibility for that made by the juvenile court. In re A.K., 2015 UT
App 39, ¶ 25, 344 P.3d 1153; In re J.P., 2003 UT App 297U,
para. 4.
¶11 Because Foster Mother’s testimony, even in light of her
possible bias, along with extensive other record evidence,
provided a sufficient foundation for the juvenile court’s ultimate
decision that termination of Father’s parental rights was in
Child’s best interests, we cannot reweigh that evidence and thus
do not disturb the juvenile court’s determination. See In re B.R.,
2007 UT 82, ¶ 12. 1
1. In his opening brief, Father claims that several positive
changes in Child’s behavior cannot be attributed to the foster
home because those changes flowed from proper mental health
treatment. However, the record is clear that Child’s problematic
behaviors, as well as the extensive tooth decay, sleep loss, and
weight loss noted by the juvenile court, began when Child lived
with Father and were finally treated only once Child began
living in the foster home. Thus, regardless of whether the
positive changes were the direct result of placement in the foster
home, it is clear that removal from Father’s custody finally
allowed someone—whether the foster family or medical
professionals—to treat Child’s conditions.
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III. Service Plan
¶12 Father further contends that the juvenile court improperly
terminated his parental rights “on the basis that [he] failed to
complete the requirements” of the Service Plan. 2 “The court may
not terminate the parental rights of a parent because the parent
has failed to complete the requirements of a child and family
plan.” Utah Code Ann. § 78A-6-507(2) (LexisNexis 2012).
¶13 Father argues that “the juvenile court made a specific
finding that as a result of Father not complying with [the Service
Plan], he ‘demonstrated a failure of parental adjustment,
unfitness and/or neglect and failure to remedy out-of-home
placement.’” Father asserts, “Thus, the juvenile court clearly
associated Father’s failure to complete the requirements of the
service plan with its grounds for termination of his parental
rights.”
¶14 Father’s argument is misplaced. The statute does not
prohibit a juvenile court from considering a parent’s failure to
comply with a child and family plan as part of the calculus of
parental unfitness; rather, the juvenile court may not terminate
the parent’s rights solely because the parent did not comply with
the plan or to punish the parent for noncompliance. See In re J.T.,
2012 UT App 253, ¶ 3, 286 P.3d 960 (per curiam). Indeed,
“fail[ure] to comply substantially with the terms and conditions
of a plan . . . is evidence of failure of parental adjustment.” Utah
2. This section of Father’s opening brief is titled as a challenge to
the sufficiency of the evidence to support the juvenile court’s
finding that the Department of Child and Family Services made
reasonable efforts to achieve reunification. However, the
argument presented is unconnected to that topic. We address the
argument made on appeal rather than the one hinted at in the
section title.
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Code Ann. § 78A-6-508(5). And the juvenile court’s ruling makes
clear that it considered Father’s noncompliance only as evidence
of Father’s nonadjustment, unfitness, and failure to remedy the
circumstances leading to the out-of-home placement.
¶15 Because the court treated Father’s noncompliance merely
as evidence pertinent to other issues, and did not terminate
Father’s parental rights solely for his failure to comply with the
Service Plan put in place by the court, we conclude that the court
did not err in considering Father’s noncompliance.
IV. Witness
¶16 Finally, Father contends that “[t]he juvenile court erred by
allowing a lay witness to testify as an expert.” More specifically,
Father challenges the testimony of Child’s therapist (Therapist).
¶17 At trial, Therapist testified that she had conducted a
mental health assessment of Child and diagnosed him with
“other specified depressive disorder.” Therapist recounted
Child’s behaviors and symptoms that had led to that diagnosis.
Therapist also testified that Child had previously been
diagnosed with ADHD by another medical professional and
stated which behaviors would be consistent with the ADHD
diagnosis. After the State asked Therapist to explain other
specified depressive disorder, Father objected that Therapist was
not an expert witness. The court eventually sustained the
objection, specifically preventing Therapist from testifying as to
“[w]hat constitutes other specified depressive disorder.”
¶18 During Father’s cross-examination, Therapist stated that
“ADHD can affect executive function in kids.” Father asked if
she could have made that statement without her training. After
she responded, “No,” Father then asked the court to “discount, if
not strike, any evidence from this witness.” (Emphasis added.)
He stated that he was “objecting to all of her testimony where
she made comments that a lay person would not know.” The
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juvenile court overruled this objection, noting that Therapist was
a fact witness because she treated Child and that Therapist’s
expertise was a result of the education she had received to
become a therapist.
¶19 Father’s contention in this regard is inadequately briefed.
Rule 24 of the Utah Rules of Appellate Procedure requires that
an appellant’s brief include “[a]n argument” which “shall
contain the contentions and reasons of the appellant with respect
to the issues presented.” Utah R. App. P. 24(a)(9) (2016). Father’s
brief is devoid of an argument. Instead, he quotes rule 701 and
rule 702 of the Utah Rules of Evidence (governing lay witness
testimony and expert witness testimony respectively), recounts
the testimony elicited from Therapist and the two objections he
made at trial, and concludes that the issue was preserved for
appeal. Father does not explain why he believes the juvenile
court’s determination (that the content of Therapist’s testimony
was within the scope of lay witness testimony) was incorrect or
an abuse of discretion. Similarly, while Father does quote the
relevant rules of evidence, he does not address the rationale of
the juvenile court’s ruling or analyze that ruling in light of the
rules of evidence. Father’s failures improperly shift the burden
of making an argument and of finding authorities to support
that argument to this court. See State v. Davie, 2011 UT App 380,
¶ 16, 264 P.3d 770 (“An issue is inadequately briefed when the
overall analysis of the issue is so lacking as to shift the burden of
research and argument to the reviewing court.” (citation and
internal quotation marks omitted)).
¶20 Of course, our analysis must focus on whether Father has
established a sufficient argument for ruling in his favor, not
merely whether his brief suffers from a technical deficiency. See
Bank of America v. Adamson, 2017 UT 2, ¶ 12, 391 P.3d 196. But see
id. (“[A]n appellant who fails to adequately brief an issue will
almost certainly fail to carry its burden of persuasion on appeal.”
(citation and internal quotation marks omitted)).
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¶21 It appears that Father is suggesting that Therapist’s
testimony exceeded the scope of permissible lay witness
testimony as defined by rule 701. As noted above, the juvenile
court excluded Therapist’s explanation of what behaviors were
generally associated with certain conditions. Therapist’s
remaining testimony broadly fell into two categories: a recitation
of Child’s behaviors and the diagnoses based on those behaviors.
¶22 Therapist’s description of Child’s behaviors was based on
her own observations. It was therefore proper lay witness
testimony because it was “rationally based on the witness’s
perception,” was relevant, and was “not based on scientific,
technical, or other specialized knowledge.” See Utah R. Evid.
701.
¶23 Therapist’s testimony regarding Child’s diagnoses of
ADHD and other specified depressive disorder was arguably
based on scientific or specialized knowledge. But even assuming
that this was expert testimony, any error in admitting the
testimony was harmless. The diagnoses were also memorialized
in a written psychological evaluation of Child that had been
admitted into evidence for consideration by the court via
stipulation of the parties. Thus, if the diagnoses portion of
Therapist’s testimony had been excluded, the juvenile court
would have still had evidence before it that Child had been
diagnosed with those conditions. Moreover, the focus of the
court’s ultimate determination was not on what specific
conditions Child suffered from, but what negative behaviors
Child exhibited and whether those behaviors had been
ameliorated after Child’s placement with the foster family.
¶24 Father’s brief provides no reasoned analysis or argument
regarding the admissibility of Therapist’s testimony. But even if
we assume that Therapist’s testimony exceeded the bounds of
proper lay witness testimony, a question we do not answer, we
are unable to see how any prejudice could have resulted.
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Because Father’s inadequate briefing fails to address the
possibility of prejudice, and because no prejudice is apparent,
Father has failed to establish a sufficient argument for ruling in
his favor. See Adamson, 2017 UT 2, ¶ 12.
¶25 Affirmed.
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