A.W. v. State (In Re State Ex Rel. K.W.) ( 2018 )

2018 UT App 44THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF K.W. AND A.W.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
A.W.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20170229-CA
Filed March 22, 2018
Third District Juvenile Court, Salt Lake Department
The Honorable Mark W. May
No. 1127816
Joshua Fawson, Attorney for Appellant
Sean D. Reyes, John M. Peterson, and Carol L.C.
Verdoia, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.
CHRISTIANSEN, Judge:
¶1 A.W. (Father) appeals the juvenile court’s order
terminating his parental rights to his children, K.W. and A.W.
Father contends (1) that the Division of Child and Family
Services (DCFS) failed to sufficiently modify the reunification-
services plan to accommodate his disabilities as required by the
Americans with Disabilities Act (the ADA), (2) that the evidence
was insufficient to support the juvenile court’s finding that
termination of his parental rights was in the children’s best
interests, and (3) that said termination was not “strictly
In re K.W.
necessary,” as required by Utah Code section 78A-6-507. We
conclude that Father’s ADA claim fails because Father has not
carried his burden of demonstrating clear error in the juvenile
court’s finding that DCFS provided him reasonable
accommodations. We further conclude that Father has not
shown that the juvenile court’s best-interests finding was clearly
erroneous. And we conclude that Father’s argument regarding
the necessity of termination is inadequately briefed. We
therefore affirm the juvenile court’s order.
BACKGROUND
¶2 Father suffered, and continues to suffer from, from
bipolar disorder with psychotic tendencies, memory loss from
injuries sustained in a car accident, 1 and cognitive impairments
from brain surgery to treat a colloidal cyst. Father also had seven
drug-related convictions stretching across four states from 1989
to 2012. At the time his parental rights were terminated in March
2017, Father had recently used both marijuana and
methamphetamine and was homeless.
¶3 In March 2016, Father contacted law enforcement officers
seeking transport to a shelter for himself and his two children,
K.W. and A.W. After arriving at the shelter, Father was taken to
another facility to receive psychiatric treatment. DCFS was
initially unable to locate Father, and the children were placed in
the State’s custody. In April 2016, the court ordered DCFS to
provide Father with reunification services, noting that Father
“desires help from DCFS and is willing to participate in
services.” In May 2016, the court held a disposition hearing.
Although it appears from the record that the court and DCFS
were aware that Father suffered from disabilities, Father did not
reference the ADA at the hearing or ask for specific
accommodations other than for help with transportation. The
1. The mother of the children died in this accident.
20170229-CA 2 2018 UT App 44In re K.W.
reunification-services plan required Father to undergo a mental
health evaluation, comply with the resulting treatment
recommendations, undergo drug testing, and meet with
Assessment and Referral Services (ARS). The court also ordered
modifications to the plan to accommodate Father’s needs,
including offering Father transportation for any assessments.
¶4 Father did not attend the initial child and family team
meeting. And when he did eventually meet his DCFS
caseworker to discuss the resulting service plan, it was a
“difficult conversation” because he was “so upset just with the
fact that the [children] were removed in the first place.” After
seeing a police car nearby, Father became worried that he would
be arrested. Father also became “very emotional concerning the
removal of his children” and “could not carry on a
conversation.”
¶5 The caseworker arranged to pick Father up to take him to
a mental health facility for an evaluation. But when they arrived,
the facility was unable to see Father that day and instead
scheduled a future appointment. The caseworker also scheduled
an appointment for Father at ARS for a drug and alcohol
assessment. However, Father did not appear at or reschedule
either of these appointments.
¶6 Father’s contact with DCFS was limited throughout the
reunification period. Father was homeless but was often at or
near a certain park. When Father had not contacted the
caseworker for a while, she would go to the park and look for
him to discuss his case. On four or five occasions, the caseworker
was able to find Father there and meet with him. But when she
tried to speak with him about treatment services, he would
become emotional, angry, or paranoid.
¶7 In Father’s view, he had not done anything wrong and
there was therefore no reason for him to use the services;
accordingly, Father refused to participate in them. As a result,
Father did not receive the mental health or drug and alcohol
20170229-CA 3 2018 UT App 44In re K.W.
treatment from DCFS required by the service plan. And despite
the caseworker’s urging, Father refused to visit his previous
treatment provider. Father also refused to submit to random
drug testing. Eventually, Father stopped cooperating with DCFS
at all.
¶8 At first, the caseworker arranged for Father to meet with
the children at DCFS’s office on a weekly basis. Father would get
rides to the office from friends or a relative. According to the
caseworker, Father would get angry at those visits, claiming that
the children had been kidnapped, and he would attempt to find
out from the children where they were living. Father was not
consistent in attending these scheduled visits.
¶9 The caseworker then sought to accommodate Father’s
needs by organizing visits with the children at the park where
Father was living. At first, the visits were consistent. But later,
Father would often become angry and suggested that he would
go to the children’s school to take them away. After one visit at
the park during which Father was “unhappy and yelling,” the
caseworker determined that it was no longer safe to have visits
there and decided that future visits would be at the DCFS office.
However, Father did not attend any more visits or contact DCFS
thereafter.
¶10 Transportation was a recurring problem for Father
throughout the reunification period. Although the caseworker
had initially driven him to appointments, Father’s repeated use
of “aggressive and angry tones” caused the caseworker’s
supervisor to advise her not to transport Father for safety
reasons. The caseworker then got bus passes for Father, but he
refused to use them, claiming that he was unable to bring his
bicycle and cart on the bus. 2
2. In its final order, the court noted that Father “is homeless and
all of his possessions are contained in a cart that he pulls with his
(continued…)
20170229-CA 4 2018 UT App 44In re K.W.
¶11 Housing was also an issue for Father. Father refused to go
to a homeless shelter despite his caseworker’s encouragement.
According to the caseworker, Father did not want to go to a
shelter due to his anxiety about large groups of people. Father
knew that suitable housing was necessary for him to regain
custody of his children but did not take any action toward that
end.
¶12 There were also significant communication barriers
between DCFS and Father. For example, Father had no
consistent phone number that DCFS could use to contact him.
Between January 2017 and the beginning of March 2017, Father
used five different phone numbers. And when Father would call
DCFS, he would usually refuse to answer questions about his
progress in obtaining housing and employment. Instead, he
would fixate on what he perceived as DCFS kidnapping his
children.
¶13 The juvenile court eventually changed the goal for the
children from reunification to adoption. At the termination-of-
parental-rights trial, Father appeared and testified. His
testimony is discussed below, to the extent that it is relevant to
his claims on appeal. After trial, the court ruled that the services
had been unsuccessful at addressing the reasons the children
had been placed in an out-of-home placement. The court found
that several grounds for termination of Father’s parental rights
had been proven by clear and convincing evidence and
consequently terminated Father’s parental rights. Father appeals.
(…continued)
bicycle.” It is unclear what Father had previously done with the
bicycle and cart on those occasions that the caseworker drove
him to his appointments.
20170229-CA 5 2018 UT App 44In re K.W.
STANDARD OF REVIEW
¶14 “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. “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 B.A., 2017 UT App 202,
¶ 2, 407 P.3d 1053.
ANALYSIS
I. Americans with Disabilities Act
¶15 Utah law requires DCFS to make reasonable efforts to
provide court-ordered reunification services to a parent before
the court may terminate that parent’s rights to his or her child.
Utah Code Ann. § 78A-6-507(3) (LexisNexis 2012). The ADA
applies to the provision of such services and requires that
“reasonable modifications” be made to a reunification-services
plan to accommodate a parent who has a qualifying disability.
See In re K.C., 2015 UT 92, ¶¶ 1, 23, 362 P.3d 1248. “Juvenile
courts have broad discretion in determining whether reasonable
reunification efforts were made. Accordingly, absent a
demonstration that the determination was clearly in error, we
will not disturb the determination.” In re K.F., 2009 UT 4, ¶ 52,
201 P.3d 985 (quotation simplified). 3
3. The court’s internal style guide has adopted the parenthetical
“quotation simplified” in the spirit of the nascent “cleaned up”
parenthetical. See, e.g., State v. Cady, 2018 UT App 8, ¶ 9 n.2.
20170229-CA 6 2018 UT App 44In re K.W.
¶16 Here, the ADA was not explicitly mentioned until
Father’s closing argument at the termination trial. However, it
appears that Father’s disabilities were known to the parties and
the juvenile court—in promulgating the service plan, the
juvenile court ordered that certain “modifications to the Service
Plan” be made “to accommodate [Father],” including that DCFS
offer transportation to any assessments and that all requirements
be reflected in writing.
¶17 On appeal, Father contends that DCFS “failed to make
reasonable modifications to services as mandated under [the
ADA].” In its order terminating Father’s parental rights, the
juvenile court determined that DCFS had “made reasonable
efforts to provide services to [Father].” Therefore, Father now
bears the burden of proving that this determination was clearly
erroneous. See In re K.F., 2009 UT 4, ¶¶ 44, 52. He identifies
several areas in which he believes DCFS failed to make
reasonable modifications or efforts, including transportation and
communication.
¶18 Father concedes that DCFS made some efforts to provide
reunification services to him. On appeal, he identifies additional
things that DCFS could have done to help better support his
efforts to comply with the court-ordered service plan. But Father
does not provide any authority regarding the line between
reasonable and unreasonable efforts; i.e., what level of support
and services DCFS is required to extend to a disabled parent
pursuant to the ADA to aid the parent–child reunification
efforts. Cf. In re P.H., 783 P.2d 565, 572 (Utah Ct. App. 1989)
(“[R]ehabilitation is a two-way street which requires
commitment on the part of the parents, as well as the availability
of services from the State.” (citation and internal quotation
marks omitted)). The fact that DCFS could have made further
efforts to help Father resolve the issues that required removal of
his children does not necessarily mean that the efforts that were
made were unreasonable. Moreover, Father’s contention is
undermined by his lack of cooperation with DCFS and his
20170229-CA 7 2018 UT App 44In re K.W.
failure to notify the court or DCFS that he intended to access the
services but needed additional modifications to do so.
¶19 At the disposition hearing held on May 10, 2016, Father’s
counsel agreed to a service plan that had several modifications
to accommodate Father’s needs. But Father failed to take
advantage of those services and now claims that these
modifications, made to assist him in light of his disabilities, were
insufficient. During the time that the service plan was in effect,
Father never informed the court that he was unable to access the
provided services and never asked the court to make additional
modifications to enable him to do so. Instead, DCFS and the
court were left to guess whether Father’s failure to participate in
the services was due to an inability to do so or an unwillingness
to do so.
¶20 There was certainly good reason for DCFS to believe the
latter. The juvenile court noted that, throughout the case, Father
did not believe he had done anything wrong and had therefore
refused to discuss or participate in the mental-health and
substance-abuse treatment programs that were required by the
service plan. The court also noted that Father’s contact with
DCFS was limited. And when DCFS was able to communicate
with Father, he would become aggressive, emotional, angry,
and/or paranoid. Father did not want to talk about the services
he was supposed to engage in; instead, he focused on the
removal of the children, his kidnapping claims, and his efforts to
discover where they lived and went to school. It appears that, as
a result, DCFS was never made aware of Father’s claim that the
reason for his non-participation in the services was the
inadequacy of the modifications to accommodate his disabilities.
¶21 For example, with regard to transportation, Father
complains that “no transportation was offered” for his
rescheduled mental-health assessment and substance-abuse
evaluation. But in actuality, transportation was offered; Father
20170229-CA 8 2018 UT App 44In re K.W.
was given bus passes for this purpose. 4 Father next asserts that
he was unable to use the bus system due to his confusion and
because the bus drivers would not allow him to take his
possessions aboard the buses. 5 But Father does not demonstrate
that he ever informed DCFS of his bus-related struggles or that
he asked for modifications to the service plan to address those
struggles.
¶22 Similarly, Father argues that “DCFS never referred Father
to the relevant agencies to receive help to get a phone,” which
caused communication obstacles. But Father does not assert that
4. Father claims that it is disputed whether he was given bus
passes until much later in the case, highlighting his own
testimony. But the court heard testimony from the caseworker
and from Father and nevertheless found that he had been given
bus passes. Father does not explain why that finding was clearly
erroneous, and we therefore accept it as true.
5. As noted above, Father apparently transported all of his
possessions using a bicycle and cart. He claims that the bus
drivers would not allow him to take his bicycle and cart on the
buses, and therefore that the bus system was not a viable option
for him. Even assuming that the ADA’s “reasonable
modifications” requirement extends beyond the triggering
disability to attenuated or unrelated obstacles, such as
homelessness, Father’s argument in this regard is unavailing.
First, Father concedes that he was initially given rides by the
caseworker and that he rode the bus to attend the termination
trial. And the court found that Father was occasionally given
rides by his friends and relatives. There is no record of what
Father did with his bicycle and cart on those occasions, and
therefore no indication that the solution, whatever it was, would
not have worked when Father tried to use the bus system.
Second, there is no evidence in the record that Father informed
DCFS or the court of the bicycle-and-cart problem, much less
that he asked for assistance or an accommodation on that basis.
20170229-CA 9 2018 UT App 44In re K.W.
he ever asked for such help. And Father concedes that he was
able to communicate with DCFS on some occasions, using five
different phone numbers during the time the service plan was in
effect. While it is true that the caseworker testified that the
biggest obstacle in the case was that it was “hard to get ahold of
[Father],” she was also clear that she was able to do so, at least
sometimes. In her view, much of the obstacle was that it was
“hard to help him understand anything that was going on with
the case.” She noted, “Some days, he would just refuse to talk to
me; some days, he would refuse to do anything because he
would say he didn’t do anything wrong; [and] [s]ome days, he
would consider it, but there was no follow-through.” In other
words, although DCFS did not assist Father in getting a phone,
Father never asked for such assistance and Father was still able
to make and receive phone calls.
¶23 The service plan contained several modifications to
accommodate Father’s disabilities, and DCFS made significant
efforts to assist Father in completing the requirements of the
plan. Father has not demonstrated clear error in the juvenile
court’s finding that the efforts made by DCFS were reasonable.
Father cannot carry his burden of persuasion on appeal by
simply noting that the efforts made were ultimately unsuccessful
and identifying additional steps DCFS could have taken,
especially when the record reflects that Father was generally
uncooperative and failed to inform DCFS of further
modifications he needed to successfully complete the service
plan.
II. Best Interests
¶24 Father also contends that “[t]he evidence was insufficient
to support the court’s finding that it was in the children’s best
interest that Father’s parental rights be terminated.” Specifically,
Father argues that the children should have been placed in a
“family-supported parenting plan” as an “appropriate
accommodation” under the ADA. He notes that his brother and
his brother’s wife (Uncle and Aunt) had cared for the children
20170229-CA 10 2018 UT App 44In re K.W.
and suggests that DCFS should have considered some sort of
plan that allowed him, with the help of Uncle and Aunt, to retain
his parental rights.
¶25 Father highlights the successes the children had achieved
while being cared for by Uncle and Aunt. But he does not outline
the exact contours of a proposed family-supported parenting
plan. For example, Father does not explain where the children
would live, since Uncle and Aunt have now moved to Oregon
while Father remains in Utah. Similarly, while Father
acknowledges that placement with Uncle and Aunt would
violate a DCFS policy, 6 his response is only to assert—without
citation to authority—that the ADA requires DCFS to modify its
policies in this circumstance.
¶26 In any event, Father did not present a proposed
family-supported parenting plan at any time before the
termination trial. This failure undermines his position insofar as
it relies on the ADA. See In re K.C., 2015 UT 92, ¶¶ 20, 27, 362
P.3d 1248 (explaining that there is no bright-line bar to raising an
ADA claim for the first time at a termination trial but noting that
“[a] parent who waits until the eleventh hour to request a
modification under the ADA may thoroughly undermine [his or
her] ability to establish that such modification is reasonable”
given that a child’s interest in permanency and stability favors
“[t]he expeditious resolution of a termination proceeding”). And
Father did not present such a plan at the termination trial.
¶27 Father also suggests that termination is not in the
children’s best interests because “[t]erminating Father’s parental
rights [will] terminate contact between the children and Father,
severing what has been a very important relationship in the
6. DCFS has a policy preventing placement of a child with
individuals who have been convicted of manslaughter or certain
other crimes. Uncle’s criminal record shows a manslaughter
conviction from approximately thirty years ago.
20170229-CA 11 2018 UT App 44In re K.W.
children’s lives.” But the foster parents, who wanted to adopt
the children, testified that they would facilitate visits between
Father and the children: “We’re not trying to exclude
anybody . . . . [W]e understand they have family, even besides
their dad [and] we’re not ever going to try to take that away
from them . . . [a]s long as it’s good for them and it’s what they
want.”
¶28 Given the grounds for termination presented to the court
and the evidence presented that Father was unable to rectify the
circumstances that led to his children originally being removed
from his custody, Father has not demonstrated that the juvenile
court’s finding that termination of his parental rights was in the
children’s best interests was clearly erroneous.
III. “Strictly Necessary”
¶29 Father’s final contention, limited to four sentences, is that
terminating his parental rights was not “strictly necessary.” See
Utah Code Ann. § 78A-6-507(1) (LexisNexis 2012). He asserts
that the juvenile court’s finding that terminating his parental
rights was strictly necessary was erroneous because Uncle and
Aunt could have been granted permanent custody and
guardianship of the children.
¶30 This argument is inadequately briefed and therefore fails
to carry Father’s burden of persuasion. As noted above, DCFS’s
policy precluded placement with Uncle, and Father has not
established that the ADA required modification of that policy.
Moreover, the juvenile court expressed concern that Uncle and
Aunt, if granted guardianship, would not allow the children to
continue living with the foster parents. 7 Father’s brief contention
in this regard does not address either of these concerns.
7. We note the children’s expressed desires to continue living
with the foster parents and be adopted by them, but we ascribe
no legal significance to those desires on appeal.
20170229-CA 12 2018 UT App 44In re K.W.
Consequently, Father has not carried his burden of persuasion to
show error in the court’s conclusion that termination was strictly
necessary.
¶31 While we are sympathetic to Father’s plight, we are
unable to see any abuse of discretion in the juvenile’s court’s
decision to terminate Father’s parental rights. Because Father
was not able to remedy the problems that led to K.W.’s and
A.W.’s removal from his custody and did not demonstrate that
the services offered to him were insufficient, the juvenile court
appropriately focused on finding permanency and stability for
these two young children.
¶32 Affirmed.
20170229-CA 13 2018 UT App 44