In re X.C.H. ( 2017 )

2017 UT App 106THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF X.C.H.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
G.H.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20150613-CA
Filed June 29, 2017
Third District Juvenile Court, Salt Lake Department
The Honorable Julie V. Lund
No. 1033582
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES J. FREDERIC VOROS JR. and STEPHEN L. ROTH
concurred.
CHRISTIANSEN, Judge:
¶1 Appellant G.H. (Father) challenges the juvenile court’s
order terminating his parental rights in X.C.H. (Child). We
affirm.
In re X.C.H.
BACKGROUND
¶2 In November 2008, T.C. (Mother) gave birth to Child. In
April 2010, the Division of Child and Family Services (DCFS)
filed a verified petition alleging that Child was “abused,
neglected, and/or dependent.” The petition further alleged that
“[G.H.] is the father of [Child]” and that G.H. was “believed to
be residing in a detention facility in Montana.” Father was not
served with notice of the proceedings and did not appear.
Nevertheless, the juvenile court “found the allegations of the
State’s petition to be true and correct” and incorporated the
State’s allegations regarding Father into its findings (the 2010
Order). After determining that Mother had been involved in
multiple domestic violence incidents, the court ordered
protective supervision services for Mother and Child. In October
2010, Mother and Child were released from protective services.
¶3 In 2014, the State filed another verified petition, seeking
custody of Child. The petition stated that Father was Child’s
“alleged father.”1 In April 2014, after a shelter hearing, the
juvenile court granted the State’s request for custody of Child.
The court observed that Father had not been served with notice
of the shelter hearing, that “paternity for [Child did] not appear
to be established by the alleged father,” and that Father was
believed to reside “out of state.” Child went to live with a foster
family with whom he had previously resided.
¶4 On May 22, 2014, the State’s petition was adjudicated as
to Mother. Mother did not attend the hearing, and the juvenile
court entered a default judgment against her. The juvenile court
found that Father was Child’s “alleged father” and that his
whereabouts were unknown, but that Mother believed he was
1. “‘Alleged father’ means a man who alleges himself to be, or is
alleged to be, the genetic father or a possible genetic father of a
child, but whose paternity has not been determined.” Utah Code
Ann. § 78B-15-102(2) (LexisNexis 2012).
20150613-CA 2 2017 UT App 106In re X.C.H.
living in Montana. The court ultimately concluded that Child
was neglected and that DCFS would retain custody.
¶5 In a verified petition filed on July 22, the State sought
termination of Mother’s parental rights. This petition again
stated that Father was Child’s “alleged father.”
¶6 Around that time, a DCFS caseworker began efforts to
locate Father. She looked on “Vine Link and the Montana State
website” to see if Father was incarcerated; looked “through the
[Office of Recovery Services database] and [DCFS’s] SAFE
website” for a phone number for Father and found that “there
was a phone number in there, but it wasn’t correct”; and asked
Mother’s family for Father’s contact information. She did not
“look in any search engines,” use whitepages.com, or hire a
constable or private investigator to help locate Father. She also
did not check to see if Father’s paternity of Child had been
established in Montana.
¶7 Mother eventually provided the DCFS caseworker with
contact information for Father. On July 30, the DCFS caseworker
called Father and left him a message “that [DCFS] didn’t have
[proof of] paternity for him”; however, she did not actually
speak with Father until September 2. At that time, the DCFS
caseworker “told [Father] again that [DCFS] didn’t have [proof
of Father’s] paternity, and he said that he would get it to [her] by
Monday,” which was “less than a week” away. Father, however,
did not timely follow through, and DCFS did not get “the
paternity paper” from him until December 5.2
2. It is unclear what document this mention of Father’s
“paternity paper” referred to. During oral argument before this
court, Father’s counsel suggested that the document was a
Montana birth certificate for Child. In her brief, the guardian ad
litem asserted that “[t]he document, dated January 29, 2009[,]
from an Ohio lab, appeared to be the results of genetic testing
(continued…)
20150613-CA 3 2017 UT App 106In re X.C.H.
¶8 Once DCFS received “the paternity paper” from Father,
the DCFS caseworker maintained regular contact with him. The
DCFS caseworker informed Father of a January 29, 2015 hearing
related to Mother’s termination trial, and the DCFS caseworker
and Father met in person for the first time at that hearing.
¶9 Father’s first supervised visit with Child took place on
January 29 after the hearing, and Father had one more visit with
Child on February 24. Father completed only one of his
scheduled phone calls with Child even though the DCFS
caseworker had rearranged the phone call schedule to
accommodate Father’s work schedule. Father provided no
financial support, cards, or gifts for Child before the termination
trial.
¶10 In February 2015, the juvenile court appointed Father’s
current counsel to represent him. And in April 2015, Father filed
an answer in apparent response to the State’s verified petition
for termination of Mother’s parental rights. In his answer, Father
asserted that he “is [the] biological father of [Child], which has
been established by DNA testing, and he believes this Court
adjudicated him father.”3 Somewhat contradictorily, he also
objected “to any findings from [the 2010 Order] pertaining to
him,” which included the finding that Father “is the father of
(…continued)
confirming [Father’s] biological relationship to Child.” The
document was not entered into evidence and does not appear in
the record on appeal.
Regardless, in its order terminating Father’s parental
rights, the juvenile court found that the “documentation [from]
December 2014, prov[ed] paternity had been established
substantially at [Child’s] birth.”
3. “‘Adjudicated father’ means a man who has been adjudicated
by a tribunal to be the father of a child.” Utah Code Ann. § 78B-
15-102(1).
20150613-CA 4 2017 UT App 106In re X.C.H.
[Child]”—the very finding Father now claims amounted to an
adjudication of his paternity.
¶11 The juvenile court held a termination trial on May 4,
2015.4 Both the DCFS caseworker and Child’s foster father
testified. At the conclusion of the trial, the juvenile court
terminated Father’s parental rights on grounds of abandonment
and lack of anything other than token efforts at communication.
The court also found it to be in Child’s best interest to terminate
Father’s parental rights, observing that (1) Child had been cared
for by his foster parents for more than a year; (2) he had formed
an attachment to his foster family; (3) “[t]here [were] bonds of
love and affection that exist[ed] in the [foster] home”; (4) Child
had been thriving in the foster home; and (5) the foster parents
were “meeting [Child’s] needs and [were] willing to adopt him.”
The court expressed concern regarding DCFS’s delay in
contacting and locating Father, but it also observed that it was
“not convinced that if [Father] had been located and joined in a
more timely fashion, that there would have been a different
result.” Father challenges the juvenile court’s order terminating
his parental rights.
ISSUES
¶12 First, Father contends that the State violated its “statutory
duties to notify [him] in a timely fashion[, which] resulted in a
fundamentally unfair process.” Second, Father contends that the
juvenile court “facilitate[d] improper burden shifting, in
violation of the due process clause, when it allowed a
circumstance where the State made [Father] ‘prove’ paternity to
[DCFS] before he was notified of any hearing.” Third, Father
4. Mother failed to appear for trial, and the juvenile court
ultimately terminated her parental rights. Mother is not a party
to this appeal.
20150613-CA 5 2017 UT App 106In re X.C.H.
contends that “there was insufficient evidence that [he]
abandoned [Child], or made merely ‘token efforts.’”
ANALYSIS
I. Notice
¶13 Father first contends that “the State’s violations of
statutory duties to notify [him] in a timely fashion resulted in a
fundamentally unfair process.”5 According to Father, “[t]he State
had a duty to [notify him] of the adjudication on the initial
Petition in 2014.” (Citing Utah Code section 78A-6-310(1)(b).)
¶14 “The right to raise one’s children is a fundamental liberty
interest protected by the Fourteenth Amendment to the United
States Constitution.” In re L.M., 2013 UT App 191, ¶ 12, 308 P.3d
553 (brackets, citation, and internal quotation marks omitted); see
also Utah Code Ann. § 78A-6-503(1) (LexisNexis 2012) (“Under
both the United States Constitution and the constitution of this
state, a parent possesses a fundamental liberty interest in the
care, custody, and management of the parent’s child.”).
“Accordingly, that right may not be terminated without due
process of law.” In re L.M., 2013 UT App 191, ¶ 12; see also U.S.
Const. amend. XIV, § 1 (“No State shall . . . deprive any person of
life, liberty, or property, without due process of law[.]”); Utah
Code Ann. § 78A-6-503(2) (“The court shall provide a
fundamentally fair process to a parent if a party moves to
terminate parental rights.”). Due process requires, at a
minimum, “adequate notice and an opportunity to be heard in a
5. We read Father’s reference to “a fundamentally unfair
process” to relate to Utah Code section 78A-6-503’s requirement
that “[t]he court shall provide a fundamentally fair process to a
parent if a party moves to terminate parental rights.” Utah Code
Ann. § 78A-6-503(2) (LexisNexis 2012).
20150613-CA 6 2017 UT App 106In re X.C.H.
meaningful manner.” In re L.M., 2013 UT App 191, ¶ 12 (citation
and internal quotation marks omitted).
¶15 Here, Father contends that the 2010 Order constituted “an
adjudication order stating he was the father.” Thus, according to
Father, “[t]he State had a duty to [notify him] of the adjudication
on the initial Petition in 2014.” (Citing Utah Code section 78A-6-
310(1)(b).) We first consider whether the 2010 Order constituted
an adjudication of Father’s paternity.
¶16 Pursuant to section 78B-15-601 of the Utah Uniform
Parentage Act (the Parentage Act), “[a]n adjudicative proceeding
may be maintained to determine the parentage of a child.” Utah
Code Ann. § 78B-15-601(1) (LexisNexis 2012); see also id. § 78B-15-
102(1) (“‘Adjudicated father’ means a man who has been
adjudicated by a tribunal to be the father of a child.”). In a
proceeding to adjudicate parentage, “a man whose paternity of
the child is to be adjudicated” shall be joined as a party. Id.
§ 78B-15-603(2). Additionally, this court has previously observed
that “[a]djudication is ‘[t]he legal process of resolving a
dispute.’” Kielkowski v. Kielkowski, 2015 UT App 59, ¶ 16, 346 P.3d
690 (second alteration in original) (quoting Adjudication, Black’s
Law Dictionary 47 (9th ed. 2009)); cf. id. ¶ 18 (concluding that the
district court did not adjudicate the husband’s paternity where
“[n]either party raised the parentage issue during the divorce
proceedings” and the district court “simply entered a decree by
default on a form that was automatically generated from [the
husband’s] verified petition and merely reiterated [the
husband’s] representation that there were ‘no children at issue in
this marriage’”); Reller v. Reller, 2012 UT App 323, ¶¶ 13–15, 291
P.3d 813 (concluding that the district court “had not previously
adjudicated parentage” because a “perfunctor[y] recit[al] in a
default divorce decree that there was one child resulting from
the marriage does not elevate the question of paternity to one
that ‘the tribunal addresses’ for purposes of the [Parentage Act]”
(emphasis and citation omitted)).
20150613-CA 7 2017 UT App 106In re X.C.H.
¶17 Here, although the 2010 Order stated that Father “is the
father of [Child],” this statement in the court’s order did not
constitute an adjudication of Father’s paternity of Child under
section 78B-15-601 of the Parentage Act. First, Father was not a
party to the 2010 proceedings—a fact that he acknowledged
below—as required by section 78B-15-603 to adjudicate
parentage. See Utah Code Ann. § 78B-15-603(2). Second, Father’s
paternity of Child was not at issue in that case, and thus, there
was no parentage dispute to be resolved, i.e., adjudicated. See
Kielkowski, 2015 UT App 59, ¶ 16. Rather, the 2010 Order, titled
“Findings of Fact, Conclusions of Law and Adjudication Order
Re: Mother,” was primarily concerned with Mother’s behavior
and the welfare of Child. Simply put, the juvenile court’s
statement that Father “is the father of [Child]” was nothing more
than a restatement or, a “perfunctor[y] recit[al],” of the
allegations in the State’s 2010 verified petition. See Reller, 2012
UT App 323, ¶ 13. We therefore conclude that the 2010 Order
was not an adjudication of Father’s paternity of Child.
¶18 Having determined that the juvenile court did not
adjudicate Father’s paternity of Child in the 2010 Order, we turn
to Father’s claim that he was entitled to receive notification of
the 2014 proceedings. Father asserts that “[t]he State had a duty
to [notify him] of the adjudication on the initial Petition in 2014.”
According to Father, “the State skirted that duty by the [sleight]
of hand in changing [his] status from ‘father,’ to ‘alleged
father.’”6
6. We note that with regard to this argument, Father does not
allege judicial error. See State v. Perkins, 2014 UT App 60, ¶ 10,
322 P.3d 1184 (“[A] judicial error is one made in rendering the
judgment and results in a substantively incorrect judgment.”
(citation and internal quotation marks omitted)). Rather, he
alleges error on the part of DCFS.
In its oral ruling at trial, the juvenile court acknowledged
that “the law requires that this be a fundamentally fair process
(continued…)
20150613-CA 8 2017 UT App 106In re X.C.H.
¶19 Father’s notification argument hinges on a premise that
we have rejected, namely that the 2010 Order constituted an
adjudication of his paternity. However, because the 2010 Order
did not constitute an adjudication of Father’s paternity of Child,
at the time Child was taken into DCFS custody in April 2014,
Father was only a putative father.7
¶20 “Both the United States Supreme Court and the Utah
Supreme Court have held that a putative father is not necessarily
entitled to ‘constitutionally protected parental rights.’” In re S.H.,
2005 UT App 324, ¶ 16, 119 P.3d 309 (quoting In re adoption of
B.B.D., 1999 UT 70, ¶ 10, 984 P.2d 967, and citing Lehr v.
Robertson, 463 U.S. 248, 257–60 (1983)).
“[W]hile it is true that the relationship between
parent and child is afforded some protection by the
federal and state constitutions, the rights of parents
(…continued)
for parents of children” and that “the delays that arose out of
[DCFS’s] lack of contact in locating [Father] at the beginning of
the case [were] concerning to the Court.” The court further
stated, “I’m hoping that in the efforts made to appoint [Father]
counsel, giving him visits when he came, and providing an
opportunity for him to have weekly phone contact, as well as an
opportunity to present his case in Court today, that that helped
remedy the delays that occurred, and [aided in the] effort to
make this process fair to him and give him his due date in
Court.” But the court also stated that it was “not convinced that
had [Father] been located in the first month or two that this case
arose a year ago, that we would have had a different outcome
here today.”
7. A “putative father” is “[t]he alleged biological father of a child
born out of wedlock.” Putative father, Black’s Law Dictionary
(10th ed. 2014). This definition is similar to the Parentage Act’s
definition of “[a]lleged father.” Supra ¶ 3 note 1.
20150613-CA 9 2017 UT App 106In re X.C.H.
are commensurate with the responsibilities they
have assumed, and in the case of unmarried
fathers, a biological relationship alone is
insufficient to establish constitutionally protected
rights.”
Id. (quoting In re adoption of B.B.D., 1999 UT 70, ¶ 10); see also
Lehr, 463 U.S. at 260–61 (“Parental rights do not spring full-
blown from the biological connection between parent and child.
They require relationships more enduring.” (emphasis, citation,
and internal quotation marks omitted)).
¶21 In In re adoption of B.B.D., our supreme court noted that
“[u]nder Utah law, an unmarried biological father has an
inchoate interest that acquires constitutional protection only
when he demonstrates a timely and full commitment to the
responsibilities of parenthood,” which commitment is
demonstrated by “establishing legal paternity, in accordance
with the requirements of [Utah law].” 1999 UT 70, ¶ 11 (second
alteration in original) (emphasis, citation, and internal quotation
marks omitted); see also In re adoption of B.Y., 2015 UT 67, ¶ 43,
356 P.3d 1215 (“An unwed father’s rights are merely provisional.
To perfect such rights a father must comply with legal
prerequisites established by the state. Failure to do so leaves the
father’s parental rights without any substantive protection . . . .”
(citations omitted)); In re S.H., 2005 UT App 324, ¶ 15 n.3
(observing that Utah case law did not support the father’s
position that “standing and parental due process protections”
should be extended to “any person claiming status as a putative
father, even if that person has not taken any measures to
substantiate his paternity claim”).
¶22 The Parentage Act provides several methods by which
“[t]he father-child relationship is established between a man and
a child,” including “an effective declaration of paternity by the
man.” Utah Code Ann. § 78B-15-201(2)(b) (LexisNexis 2012).
Here, Father never attempted to file a declaration of paternity,
and he did not take any steps to provide DCFS with proof of his
20150613-CA 10 2017 UT App 106In re X.C.H.
paternity of Child until December 5, 2014, when he provided
DCFS with a “paternity paper” identifying him as Child’s father.
From that point forward, the juvenile court and DCFS
recognized Father’s paternity of Child,8 and Father was notified
of the proceedings regarding Child. Had Father wanted to
secure constitutional protections as a parent earlier, filing a
declaration of paternity was certainly a viable option. In
addition, Father could have provided DCFS with the “paternity
paper” much sooner than he did. Indeed, when Father and the
DCFS caseworker spoke in September 2014, Father told her that
he would provide proof of paternity within the week; however,
he did not do so until December 5, 2014.
¶23 Moreover, although the juvenile court was on notice in
April 2014 that Father was a potential father, the court was not
required to notify him of any proceedings relating to Child.
“‘[T]he [federal] Constitution does not require either a trial judge
or a litigant to give special notice to nonparties who are
presumptively capable of asserting and protecting their own
rights.’” In re S.H., 2005 UT App 324, ¶ 21 (quoting Lehr, 463 U.S.
at 265); see also id. (concluding that even where “the juvenile
court was on notice that [the father] was a potential father,” the
court was “not required to provide him with special notice,”
because he “was capable of filing a voluntary declaration of
paternity and preserving his rights as a parent to [the child]”).
Because Father was capable of preserving his rights as a parent
of Child well before December 2014, the juvenile court was not
required to provide Father with notice before he did so.
8. Although DCFS and the juvenile court recognized Father’s
paternity of Child based on the “paternity paper” Father
supplied to DCFS, both the State and the guardian ad litem
assert that Father has never established legal paternity in Utah
pursuant to one of the enumerated methods in Utah Code
subsection 78B-15-201(2).
20150613-CA 11 2017 UT App 106In re X.C.H.
¶24 Lastly, Father argues that DCFS’s “actions in bringing
[him] into the proceeding set the State up to argue that [his]
actions and responses demonstrated insufficient interest based
on what would be expected of a normal parent.” We are not
persuaded that DCFS contributed to Father’s lack of interest in
Child. The juvenile court expressed concern regarding “the
delays that arose out of [DCFS’s] lack of contact in locating
[Father] at the beginning of the case”; however, the court
ultimately stated that it was “not convinced that had [Father]
been located in the first month or two that this case arose a year
ago, that we would have had a different outcome here today.”
And although the State could have done more to locate Father
and bring him into the case earlier, the juvenile court did not rely
on Father’s absence from the initial 2014 proceedings as a basis
for terminating his parental rights.
¶25 In sum, we conclude that the 2010 Order did not
adjudicate Father’s paternity of Child, and because Father was
only a putative father at the start of the 2014 proceedings, he was
not entitled to notice at that time.
II. Burden to Prove Paternity
¶26 Father next contends that “the Court facilitate[d]
improper burden shifting, in violation of the due process clause,
when it allowed a circumstance where the State made [Father]
‘prove’ paternity to the Division before he was notified of any
hearing.” According to Father, “[i]n terminating [his] rights for
inaction when his delay in entry into the case was due to the
State requiring him to jump through hoops to prove to [DCFS
that he] had established paternity, the Court facilitated improper
burden shifting.”
¶27 Father concedes that this issue was not preserved below
and argues that we should address it under the exceptional-
circumstances exception to the preservation rule. Father asserts
that he “should be viewed as having established an ‘exceptional
circumstance,’ for not raising this issue at trial in that the
statutory scheme does not allow him to do so” and that, “[i]f all
20150613-CA 12 2017 UT App 106In re X.C.H.
deprivations of rights under the initial Petition are silenced by
[the] filing of a Petition to Terminate, no argument can be made
about the deprivations of those rights.”
¶28 “The exceptional circumstances concept serves as a safety
device, to assure that manifest injustice does not result from the
failure to consider an issue on appeal.” State v. Irwin, 924 P.2d 5,
8 (Utah Ct. App. 1996) (citation and internal quotation marks
omitted); see also In re adoption of K.A.S., 2016 UT 55, ¶ 19, 390
P.3d 278 (observing that the exceptional-circumstances exception
is reserved “for the most unusual circumstances where our
failure to consider an issue that was not properly preserved for
appeal would have resulted in manifest injustice” (citation and
internal quotation marks omitted)). It is “used sparingly,
properly reserved for truly exceptional situations, for
cases . . . involving rare procedural anomalies.” Irwin, 924 P.2d at
11 (citation and internal quotation marks omitted); see also, e.g.,
Salt Lake City v. Ohms, 881 P.2d 844, 847 (Utah 1994) (concluding
that exceptional circumstances existed because “the only way” to
challenge the commissioner’s authority was to first consent to
that authority, through waiver, effectively agreeing not to object
to that authority at trial, and then to obtain judicial consideration
of the constitutionality of the commissioner’s authority for the
first time on appeal).
¶29 We conclude that the exceptional-circumstances doctrine
does not aid Father. To begin with, Father’s brief fails to
adequately analyze this claim. Briefs require “not just bald
citation to authority but development of that authority and
reasoned analysis based on that authority.” State v. Thomas, 961
P.2d 299, 305 (Utah 1998). “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.” Smith
v. Smith, 1999 UT App 370, ¶ 8, 995 P.2d 14 (citation and internal
quotation marks omitted).
¶30 Here, Father makes two references to the exceptional-
circumstances doctrine, stating that he “should be viewed as
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having established an ‘exceptional circumstance,’” and that “this
Court should consider the requirement of exceptional
circumstance[s] in presenting this issue for the first time on
appeal.” However, he fails to cite any authority regarding the
doctrine, and as a consequence, he fails to discuss what that
authority requires and to then explain how the facts of his case
satisfy those requirements.
¶31 Rather, Father cursorily asserts that he was unable to raise
his burden-shifting argument below. However, he has failed to
adequately explain why he was unable to do so. Father has not
asserted, and nothing in the record indicates, that he was
actually barred from raising, or denied the opportunity to raise,
the issue of burden-shifting in the juvenile court.9 Father must do
more than simply assert that he was unable to raise a claim
below; he must demonstrate how the actual circumstances he
encountered in the juvenile court process prevented him from
raising the claim he asserts for the first time on appeal.
Consequently, we conclude that Father has failed to demonstrate
9. After Father provided proof of his paternity of Child, the
juvenile court appointed counsel to represent Father. See Utah
Code Ann. § 78A-6-1111(1)(c) (LexisNexis Supp. 2014) (“If, in
any action initiated by the state or a political subdivision of the
state . . . , a parent or legal guardian requests an attorney and is
found by the court to be indigent, counsel shall be appointed by
the court to represent the parent or legal guardian in all
proceedings directly related to the petition or motion filed by the
state, or a political subdivision of the state[.]”); In re S.H., 2005
UT App 324, ¶ 19 n.4, 119 P.3d 309 (observing that the father’s
right to counsel attached “[a]s soon as the court established that
[he] was [the child’s] biological father” and that “the court was
under no obligation to provide him with counsel” before then, as
he “had not established himself as a parent to [the child]”).
Father’s counsel could have raised this burden-shifting
argument at trial.
20150613-CA 14 2017 UT App 106In re X.C.H.
exceptional circumstances that would justify his failure to
preserve this claim in the juvenile court.
¶32 In any event, while the circumstances of Father’s situation
are unfortunate, they are not exceptional. Father contends that
“[h]aving asserted paternity [in the 2010 proceedings], it was the
State’s obligation to prove it”; however, he has cited nothing in
the way of support for this proposition. Rather, he cites to
provisions pertaining to shelter hearings, adjudication and
dispositional hearings, and pretrial hearings. And contrary to
Father’s assertion, the State did not bear the burden of
establishing Father’s paternity of Child. As previously discussed,
“[u]nder Utah law, an unmarried biological father has an
inchoate interest that acquires constitutional protection only
when he demonstrates a timely and full commitment to the
responsibilities of parenthood,” which commitment is
demonstrated by “establishing legal paternity, in accordance
with the requirements of Utah law.” In re adoption of B.B.D., 1999
UT 70, ¶ 11, 984 P.2d 967 (brackets, emphasis, citation, and
internal quotation marks omitted); see also In re adoption of B.Y.,
2015 UT 67, ¶ 43, 356 P.3d 1215 (“An unwed father’s rights are
merely provisional. To perfect such rights a father must comply
with legal prerequisites established by the state. Failure to do so
leaves the father’s parental rights without any substantive
protection . . . .” (citations omitted)). Given the foregoing, the
burden of establishing paternity in a proceeding such as this is
clearly on the claimant, not the State. Thus, we see nothing
exceptional in the State’s failure to notify Father of the
proceedings involving Child before Father provided proof of his
paternity.
III. Sufficiency of the Evidence
¶33 Father contends that there was insufficient evidence to
support the juvenile court’s determination that he abandoned
Child “or made merely ‘token efforts’ under [Utah Code section]
78A-6-507(1)(f).” When reviewing the decision to terminate
parental rights, “we give the juvenile court a wide latitude of
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discretion as to the judgments arrived at based upon not only the
court’s opportunity to judge credibility firsthand, but also based
on the juvenile court judges’ special training, experience, and
interest in this field.” In re A.B., 2007 UT App 286, ¶ 10, 168 P.3d
820 (brackets, citation, and internal quotation marks omitted).
Thus, “we will not disturb the juvenile court’s findings and
conclusions unless the evidence clearly preponderates against
the findings as made or the court has abused its discretion.” In re
R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d 1118 (brackets, citation,
and internal quotation marks omitted). “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.
¶34 “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 under section [78A-6-507] of the Utah Code.” Id.(citation and internal quotation marks omitted); see also Utah
Code Ann. § 78A-6-507 (LexisNexis 2012) (listing the grounds for
termination of parental rights and providing that the finding of a
single enumerated ground will support the 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; 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). Here, Father does
not challenge the juvenile court’s determination that termination
of his parental rights was in Child’s best interest, and we
therefore address only the parental fitness element of the
statutory test.
¶35 Utah Code section 78A-6-507 provides, among other
things, that a juvenile court may terminate parental rights if the
20150613-CA 16 2017 UT App 106In re X.C.H.
court finds that “the parent has abandoned the child” or that
“only token efforts have been made by the parent . . . to support
or communicate with the child.” Utah Code Ann. § 78A-6-
507(1)(a), (1)(f)(i). In terminating Father’s parental rights, the
juvenile court found, “based upon the un-rebutted testimony
and clear and convincing evidence,” that
1. [Child] came into the State’s custody in April
2014 after extended periods of time where he
stayed with [the foster] family. During the time
[Child] stayed with [the foster] family there was no
contact from [Father], and likewise in that period
of time specifically prior to April 2014 but mostly
from that point forward to today, the past thirteen
months, there has been no financial support given
by [Father], no birthday cards, and no inquiries
into how [Child] was doing.
2. Once there was contact from the DCFS
caseworker, . . . during the months of July to
September 2014, it took [Father] months to provide
the [paternity] paperwork which was ultimately
provided in December 2014. During that period of
time he did not seek a visit or inquire about [Child]
until the Court hearing in January 2015.
3. Since having paternity recognized by the Court
and DCFS, [Father] has had two visits and no
phone calls. Efforts were made to arrange the
schedule of the foster parents to accommodate
weekly phone calls, however, [Father] did not take
advantage of those. These facts and this behavior
[are] not consistent with the normal interest that a
parent would demonstrate in their child.
....
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6. There was no contact between [Father] and the
foster parents between the time of the voluntary
placement and the time after [Father] appeared at
the first hearing he attended, January, 2015[.]
7. There has been no support of [Child] by [Father]
in the way of child support, gifts, cards, or
anything of the like[.]
8. There were delays which arose out of [DCFS’s]
lack of contacting and locating [Father], which are
concerning to the court[.]
....
14. The Court is not convinced that if [Father] had
been located and joined in the matter in a more
timely fashion, that there would have been a
different result[.]
15. [Father] did not request visitation until he
attended Court in late January, 2015[.]
16. Since having paternity recognized by [DCFS],
[Father] had two visits and no phone calls, despite
the fact that efforts were made to provide him
weekly phone calls with the minor[.]
The court then terminated Father’s parental rights based on Utah
Code subsections 78A-6-507(1)(a) and (1)(f), concluding that
“grounds exist to terminate [Father’s] parental rights and those
grounds include abandonment . . . and the lack of [anything
more than] token efforts.” The court determined that for a period
“in excess of six months,” Father had “failed to communicate
with [Child] by mail, telephone, or otherwise, and that
[Father] . . . failed to show the affection of a natural parent
without just cause.” The court further determined that Father
20150613-CA 18 2017 UT App 106In re X.C.H.
had “not made anything more than token efforts to support or
communicate with [Child].”
¶36 Father argues that the evidence was insufficient to
support the juvenile court’s determination that he abandoned
Child. Under Utah law, “it is prima facie evidence of
abandonment that the parent . . . failed to communicate with the
child by mail, telephone, or otherwise for six months; [or] failed
to have shown the normal interest of a natural parent, without
just cause.” Utah Code Ann. § 78A-6-508(1)(b), (1)(c) (LexisNexis
2012). The burden then shifts to the respondent parent to rebut
the presumption of abandonment. In re T.E., 2011 UT 51, ¶ 22,
266 P.3d 739. “In rebutting the presumption, respondent parents
may present any evidence indicating that they did not
consciously disregard their parental obligations or that their
conduct did not lead to the destruction of the parent-child
relationship.” Id. We conclude that the evidence supports the
juvenile court’s finding that Father abandoned Child.
¶37 At trial, there was evidence that Father had failed to
communicate with Child between at least July 2014 (when the
DCFS caseworker first contacted Father) and January 2015 (when
Father first came to a hearing)—around seven months. Child’s
foster father testified at trial that Child came to live with him in
April 2014, and that from “when DCFS contacted [Father] in
July” 2014 “until the termination of [Mother’s parental rights in
January 2015], when [Father] attended court,” Father had no
contact with the foster father.10 The foster father also testified
that he never received any phone calls, money, supplies, or cards
from Father. In addition, the DCFS caseworker testified that
Father had had no visits with Child between April 2014 and
January 2015 and that Father had not sent any money, supplies,
cards, or birthday cards to Child during that time. She also
10. Given that Child would have been five years old in July 2014,
any communication between Father and Child would almost
certainly have had to go through Child’s foster family.
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testified that Father “had no contact” with Child “between the
time [she] had the case and January [2015]” and that Child
“didn’t receive any sort of money or supplies or anything” from
Father. She further testified that her conversations with Father
revolved around “Court dates” and that Father “never asked
[her] how [Child] was doing in school, or how he was doing.”
Based on the foregoing, we conclude that the State made a prima
facie showing of abandonment.
¶38 That showing shifted the burden to Father to show that he
had not abandoned Child. See In re T.E., 2011 UT 51, ¶ 22. Father
presented no evidence to the juvenile court that he had any
contact, direct or indirect, with Child between July 2014 and
January 2015, nor did he present any evidence that he had even
attempted to contact Child or his foster parents during that time.
See id. ¶ 27 & n.35 (holding that attempts or efforts at
communication do not qualify as communication pursuant to
Utah Code subsection 78A-6-508(1), but that “they may be
relevant to whether the respondent parent has rebutted the
presumption of abandonment arising from the prima facie
evidence and to whether the respondent parent has made more
than ‘token efforts’ to communicate with the child”).
Nevertheless, Father argues that he was “precluded from contact
at least from . . . July 30th, 2014, in which the [DCFS] worker
advised they ‘didn’t have paternity’ on him and therefore, he
was not being treated as father, provided the rights of a father,
or joined in the case.” He also argues that “during this time, it
was [not] a ‘lack of normal interest,’ which kept [him] from
communication with [Child],” and that “the ‘just cause’ for the
lack of contact was that [DCFS] had the child in custody, and
was demanding that [Father] prove paternity before he was
treated as father, brought into the case, and viewed as being
entitled to any contact with the minor.” Father further claims
that “there is no evidence that he was aware of [Child’s]
location.” These arguments fall short of rebutting the
presumption of abandonment.
20150613-CA 20 2017 UT App 106In re X.C.H.
¶39 Contrary to Father’s assertion, there is no evidence that
DCFS actively prevented him from communicating with or
supporting Child. And the fact that DCFS had not yet
recognized Father as Child’s father or brought Father into the
proceedings in no way prevented Father from communicating
with or supporting Child, or inquiring about Child via his foster
parents or the DCFS caseworker between July 2014 and January
2015. Moreover, Father’s claim that he was unaware of Child’s
location demonstrates a lack of contact with Child and supports
the juvenile court’s finding that Father failed to show the normal
interest of a natural parent. We conclude that the evidence
amply supports the termination of Father’s parental rights on the
ground of abandonment.
¶40 We next address Father’s related argument that there was
insufficient evidence to support the termination of his parental
rights based on only token efforts. As previously discussed, Utah
Code section 78A-6-507 provides that a juvenile court may
terminate parental rights if the court finds that “only token
efforts have been made by the parent . . . to support or
communicate with the child.” Utah Code Ann. § 78A-6-
507(1)(f)(i) (LexisNexis 2012).
¶41 Token efforts involve “minimal or superficial efforts
given the parent’s circumstances.” See In re T.E., 2011 UT 51,
¶ 37; see also In re adoption of B.O., 927 P.2d 202, 209 (Utah Ct.
App. 1996) (“‘Token’ is defined as ‘merely simulated; slight or of
no real account.’” (quoting Webster’s New Twentieth Century
Dictionary 1919 (2d ed. 1979))). The evidence supports the
juvenile court’s finding that Father made only token efforts to
support or communicate with Child. See Utah Code Ann. § 78A-
6-507(1)(f)(i).
¶42 Both the DCFS caseworker and Child’s foster father
testified that Father had not provided support for Child by way
of money, supplies, or cards between July 2014 and January
2015. And Father concedes that “[t]hough [he] was provided the
foster parents[’] address after the January, 2015, hearing, he
20150613-CA 21 2017 UT App 106In re X.C.H.
provided nothing in the way of financial support, cards, or gifts
to [Child] before the May, 2015, trial.” Moreover, although
Father had two visits with Child in January and February 2015
after having his paternity recognized, Father acknowledges that
he failed to call Child “between early February and the trial
date” in May. Indeed, the DCFS caseworker testified that she
had “rearranged the [phone call] schedule” “so it worked for
[Father],” but that he had called “[z]ero” times since she set up
the new phone call schedule. Thus, the record evidence indicates
that Father made no efforts to support Child, and that he made
only “minimal or superficial efforts” to communicate with Child
after his paternity was recognized in December 2014. See In re
T.E., 2011 UT 51, ¶ 37. We therefore conclude that the evidence
amply supports the termination of Father’s parental rights on the
ground that Father made only token efforts to support or
communicate with Child.
CONCLUSION
¶43 We affirm the juvenile court’s order terminating Father’s
parental rights in Child.
20150613-CA 22 2017 UT App 106