In re J.S. , 2017 UT App 113 ( 2017 )

2017 UT App 113THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF J.S.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
J.S.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Opinion
No. 20170365-CA
Filed July 13, 2017
Seventh District Juvenile Court, Price Department
The Honorable Craig M. Bunnell
No. 1117628
Travis H. Blackburn, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and
DAVID N. MORTENSEN.
PER CURIAM:
¶1 J.S. (Father) appeals the termination of his parental rights
to his child. We affirm.
¶2 “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. “Because of the factually intense nature of such an
inquiry, the juvenile court’s decision should be afforded a high
degree of deference.” Id. “Thus, in order to overturn the juvenile
court’s decision ‘[t]he result must be against the clear weight of
In re J.S.
the evidence or leave the appellate court with a firm and definite
conviction that a mistake has been made.’” Id. (alteration in
original) (quoting In re Z.D., 2006 UT 54, ¶¶ 33, 40, 147 P.3d 401).
Further, “[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 Father raises a single issue on appeal. He claims that the
juvenile court erred by “ending reunification with [Father] after
[ten] weeks and by not making reasonable efforts to provide
services to” Father. In support of his claim, Father argues that he
had difficulty drug testing and attending required counseling
due to his employment. He also argues that it was not in the
child’s best interest “to prematurely terminate his reunification
services” and that the Division of Child and Family Services
(DCFS) “should have made additional efforts to facilitate his
drug testing and counseling requirements.” Father contends that
DCFS did not make reasonable efforts to provide services to him
and that DCFS should have offered him alternatives that would
have allowed him to “continue to keep working full time at his
job and complete the child and family plan at the same time.”
¶4 “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” in Utah Code section 78A-6-507. Id.(citation and internal quotations marks omitted). “Second, the
court must find that the best interests and welfare of the child
are served by terminating . . . parental rights.” Id. Under section
78A-6-507, the finding of a single ground will support
termination of parental rights. See Utah Code Ann. § 78A-6-
507(1) (LexisNexis 2012). Father does not challenge any ground
for termination found by the juvenile court. Instead, he
characterizes his claim on appeal as a challenge to the best
interest determination. The following facts are relevant to the
issue on appeal.
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¶5 DCFS first became involved with the child and his parents
in February 2015 as a result of concerns with domestic violence
and drug use by both parents. DCFS offered the parents
voluntary services in March 2015, including drug testing, mental
health and substance abuse assessments, and treatment for both
parents. The child came into DCFS custody on July 8, 2015, as a
result of both parents’ failure to respond to voluntary services
and treatment and their ongoing drug use. On August 13, 2015,
the juvenile court entered its “stipulated findings of fact,
conclusions of law, and adjudication/disposition order,” which
established jurisdiction over the child as abused and neglected
by the parents. The juvenile court set a primary goal of
reunification with the parents and incorporated the Child and
Family Plan as a court order.
¶6 In July 2015, Father completed a substance abuse and
mental health assessment. In August 2015, Father completed a
Parental Fitness Evaluation. That evaluation did not recommend
that reunification be pursued with Father because he was not
ready to pursue reunification based on his attitudes toward
DCFS and his attitude and perspective with respect to drug use.
Father was “unapologetic for his behaviors and continued to
claim he had done virtually nothing wrong.” The evaluation
stated that in order for reunification to be recommended, Father
would have to remain clean for at least three months and
significantly change his attitude and perspective with respect to
using drugs. However, in the event that reunification with
Father was pursued, the evaluation also recommended the
services that would be necessary. The Child and Family Plan
included reunification services for Father.
¶7 In August 2015, DCFS filed an order to show cause based
on Father’s failure to comply with his mandated services. Father
admitted the allegations of the order to show cause. On
September 2, 2015, the juvenile court found Father to be in
contempt of its order and sentenced Father to thirty days in jail
with twenty-eight days suspended contingent on future
compliance with the court’s order. At an October 7, 2015 review
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hearing, the juvenile court found that Father had five positive
drug tests in September 2015. Father disputed the results and
requested an evidentiary hearing. Father had not consistently
attended treatment, and he told the court he attended only when
he was not working. The juvenile court requested DCFS to file a
new order to show cause to address Father’s continued
noncompliance with the Child and Family Plan and set an
evidentiary permanency hearing regarding Father only.
¶8 Father was present and represented by counsel at the
November 18, 2015 evidentiary permanency hearing. Father had
submitted ten negative drug tests to DCFS in October 2015. He
submitted eight drug tests in November 2015 prior to the
hearing, all but one of which was negative. However, he tested
positive for methamphetamine and THC on November 16, 2015.
Father also had not been attending therapy as required. His
therapist testified that Father was attending roughly half of the
recommended group treatment and had made little progress on
his issues. At the hearing, Father stipulated to the termination of
reunification services for him. As a result, DCFS requested
dismissal of the pending order to show cause. The juvenile court
entered a permanency order as to Father, finding that he had not
substantially complied with his reunification service
requirements or met the goals of the Child and Family Plan, that
the child could not be safely returned to Father, and that it
would be detrimental to the child to do so. After termination of
Father’s reunification services, the child’s permanency goal was
changed to reunification with Mother. Father continued to have
supervised visits with the child.
¶9 At the termination trial, Father testified that he believed
he needed more treatment than he received and that he asked for
inpatient drug rehabilitation and was denied. Father testified
that, after he served two days in jail in September 2015, he was
pressured to give up his desired goal of reunification with his
child. Two months later, in November 2015, he decided to stop
working on reunification services because he was “struggling at
work and everything.” He testified that he was unable to get
20170365-CA 4 2017 UT App 113In re J.S.
time off work to do his classes, therapy, and drug testing. He
wanted to continue to get treatment. He did not get treatment
earlier in the case because he needed to keep his job. He testified
that he never received any accommodation that would have
allowed him to go to treatment after hours. Father testified that
he felt his drug problem needed to be addressed in a residential
drug treatment program. When he was recommended for an
outpatient treatment and testing program, he failed to complete
that program and chose to quit working on services, asserting
that it was too difficult for him to work and do his testing and
treatment.
¶10 The juvenile court found that Father had not engaged in
any recommended treatment since reunification services were
terminated in November 2015. The juvenile court addressed
Father’s arguments in the following findings:
It was up to [Father] to work out his employment
issues, as it was most important that he engage in
treatment and testing. He chose to prioritize his job
over addressing his substance abuse and mental
health issues. He could offer no proof that he made
any reasonable or real effort to work out any
claimed conflict between his job and his treatment
requirements. He never addressed the issue with
the Court and instead just decided to stop the
reunification process. [Father] continues to blame
others, particularly [DCFS] and the judicial system,
for his problems and takes no personal
responsibility for his actions or behaviors. He
asserted that he wasn’t given a fair chance to
engage in services to try and remedy the issues
which led to the child’s removal from [his] care,
despite having over two years to do so. He was
provided with at least four months of voluntary
services before the child was placed into [DCFS]
custody to engage in drug testing and treatment,
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but he wholly refused to engage in those services.
He was granted an opportunity to engage in
reunification services thereafter but he only tried to
do those services for four months before quitting.
He has since had another fifteen months to engage
in those services on his own. He has not submitted
to any drug tests through [DCFS] or another
testing program since November 2015.
¶11 Notwithstanding his stipulation in November 2015 that
his reunification services should be terminated, Father now
claims that the juvenile court erred in terminating reunification
efforts so early in the case. Father’s petition on appeal does not
demonstrate why it would be error for the juvenile court to
accept Father’s stipulation to end reunifications efforts, which he
made at the permanency hearing where he was represented by
counsel. By stipulating that reunification efforts could be
terminated, Father invited the very error he now claims that the
juvenile court committed. “[W]here a party makes an affirmative
representation encouraging the court to proceed without further
consideration of an issue, an appellate court need not consider
the party’s objection to that action on appeal.” State v. Moa, 2012
UT 28, ¶ 27, 282 P.3d 985. Father cannot demonstrate that the
juvenile court erred in terminating reunification services in
November 2015 based on Father’s stipulation.
¶12 We therefore consider Father’s arguments only insofar as
he claims that DCFS failed to offer or provide reasonable
reunification services. See In re A.T., 2015 UT 41, ¶ 12, 353 P.3d
131 (stating that a parent may raise DCFS’s failure to provide
reasonable reunification services at the termination trial). Father
acknowledges that reunification services are not a right, see In re
J.P., 2015 UT App 26, ¶ 4, 344 P.3d 162 (per curiam), and that the
juvenile court may terminate reunification services at any time,
see Utah Code Ann. § 78A-6-314(11)(b) (LexisNexis Supp. 2016).
Nevertheless, he claims that DCFS should have made additional
efforts to assist him by making alternate means available to him
to complete his plan that would not interfere with his work
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schedule. Father argues that DCFS is required to make a “fair
and serious attempt to reunify a parent with a child prior to
seeking to terminate parental rights.” See In re A.C., 2004 UT App
255, ¶ 14, 97 P.3d 706. He contends that he was not given a fair
and serious attempt at reunification and that DCFS “gave up
working with him instead of making alternative means available
to him to complete his plan.” Nowhere does Father address the
fact that he stipulated to the termination of reunification
services.
¶13 Furthermore, the juvenile court squarely addressed, and
rejected, Father’s argument that he was not given a fair
opportunity to participate in services. The court noted that
Father provided “no proof that he made any reasonable or real
effort to work out any claimed conflict between his job and his
treatment requirements,” nor did he address the claimed conflict
with the court. In sum, the juvenile court found that Father “was
granted the opportunity to engage in reunification services,” but
he voluntarily chose to quit those services after four months.
“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. Because
a foundation exists for the juvenile court’s decision, we do not
disturb it. Father has not otherwise challenged any of the
findings of fact or conclusions of law pertaining to the best
interest determination, including the findings made at the
November 18, 2015 permanency hearing that the child could not
be safely returned to Father’s care.
¶14 Affirmed.
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