In re L.A.

2017 UT App 131THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF L.A.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
J.R.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20151005-CA
Filed July 28, 2017
Third District Juvenile Court, Salt Lake Department
The Honorable Mark W. May
No. 1108194
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 J.R. (Father) appeals the juvenile court’s order terminating
his parental rights in L.A. (Child). We affirm.
BACKGROUND
¶2 This appeal concerns Father’s right to parent Child.
Child’s mother (Mother) admitted to using drugs during her
In re L.A.
pregnancy, and Child tested positive for drugs at her birth in
November 2014. A few days after Child was born, the Division
of Child and Family Services (DCFS) filed a verified petition
alleging that Child was abused and neglected. The petition
further alleged, “Paternity has not been established. [J.R.] may be
the father of the child. He is currently incarcerated at the Salt
Lake County Metro Jail.”
¶3 That same day, the juvenile court held a shelter hearing.
Father was transported from the jail to the shelter hearing. At the
hearing, the State indicated to the court that Father wished to
have DNA testing done. The court therefore “order[ed] that
DNA testing be done” and instructed Father to “[c]ooperate with
DCFS in getting that taken care of.” The court also asked Father
how long he “anticipate[d] being incarcerated” and told him,
“[I]f you get out [of jail], make sure you get ahold of DCFS so
they can follow through with the testing.” The court’s written
order, which was prepared by the State, provided, “The Court
further orders that: the child and father submit to DNA testing
to establish paternity.”
¶4 Subsequently, the case was transferred to another juvenile
court judge, and over the course of the next few months, four
child welfare hearings took place.1 Father was not transported to
any of these hearings. The issue of Father’s paternity arose
during several of the hearings, but each time the issue was
discussed, it was determined that Father had not yet established
paternity. On March 3, 2015, Father was released from jail.
Shortly thereafter, he went to the Office of Recovery Services
(ORS) and underwent DNA testing.
¶5 Father appeared at the next child welfare hearing, held on
April 28. At the hearing, DCFS requested that the juvenile court
1. A third juvenile court judge presided over two of these
hearings, held on January 15, 2015, and February 19, 2015. Judge
May presided over the remaining proceedings in this case.
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terminate reunification services to Mother, but the court instead
continued reunification services for Mother and Child and set a
permanency hearing for July 2015. In addition, the court
provisionally appointed Father’s current counsel.
¶6 On July 7, 2015, the juvenile court held a permanency
hearing to determine whether Child could be returned to
Mother. DCFS again asked the court to terminate Mother’s
reunification services, which the court ultimately did. After
initially declining to permanently appoint Father’s current
counsel, the court appointed her to represent Father. During the
hearing, there was also a discussion regarding Father’s attempts
to establish paternity. The State noted that ORS wanted to
include Mother in its DNA testing and that Mother had not been
cooperating. Counsel for Father’s parents further noted that ORS
would not conduct a DNA test of Mother because she did not
have a valid form of identification. After expressing confusion as
to why ORS needed Mother to conduct a DNA test regarding
Father’s paternity (rather than comparing Child’s and Father’s
tests) and noting that “ORS is throwing up roadblocks,” the
juvenile court told Father, “I don’t know why you haven’t filed a
voluntary declaration of paternity, . . . I mean, really, that’s—
how simple is that? Could have been done months ago.”
¶7 That same day, Father and Mother filed affidavits stating
that Father is Child’s biological father. The next day, Father filed
a motion to adjudicate his paternity. The court granted Father’s
motion and adjudicated Father as the legal father of Child on
August 13. Father was again incarcerated on September 7.
¶8 On September 28, the State filed an amended petition to
terminate both Mother’s and Father’s parental rights. The
juvenile court held a termination trial on November 12.2 Father
2. Mother voluntarily relinquished her parental rights at the
beginning of the termination trial and has no involvement in this
appeal.
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testified during the trial about his incarceration and his efforts to
establish paternity of Child.
¶9 On November 20, 2015, the juvenile court entered an
order terminating Father’s parental rights. The court found, in
relevant part:
At the November, 2015 trial, [Father] complained
that he was not transported to the December 16,
2014 hearing and that [DCFS] never came to collect
a DNA sample. [Father] was not transported to the
hearing because he was not a party to the action.
Additionally, there was no order that [DCFS]
collect [Father’s] DNA or pay for the testing.
[DCFS] originally alleged and [Mother]
subsequently admitted that paternity had not been
established. [Father] was suspected of being the
father but ultimately it was his responsibility to
establish legal paternity.
The court further found that while it was concerning that Father
took “nearly nine months to establish paternity . . . , what is
more concerning is [Father’s] inability to remain out of jail.” The
court then concluded that pursuant to Utah Code subsection
78A-6-507(1)(d), Father’s “habitual incarceration demonstrated
his inability or unwillingness to remedy the circumstances that
caused [Child] to be in an out-of-home placement.” The court
also concluded that it was in Child’s best interest to terminate
Father’s parental rights.
¶10 Father subsequently filed a motion pursuant to rule 52(b)
of the Utah Rules of Civil Procedure, requesting clarification of
the juvenile court’s termination order. Among other things,
Father requested clarification regarding “[w]hat obligation does
[DCFS] have after alleging paternity, and hearing an order to
have the child tested to determine paternity, to act on and
comply with that Order” and “[w]hat obligations do [DCFS] and
[the] Court have, after allowing the appearance of an alleged
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father at a child welfare hearing, to secure his appearance at
future hearings, particularly when that alleged father is
incarcerated.” The juvenile court denied Father’s motion,
concluding: “The Findings of Fact were sufficiently detailed and
included enough facts to disclose the process through which the
ultimate decision was reached. There was no allegation that any
facts, conclusions or orders were clearly erroneous. This Court
does not find that any clarification is needed.”
¶11 Father now appeals the juvenile court’s order terminating
his parental rights.
ISSUES
¶12 First, Father contends that “the Order for DNA testing,
and subsequent inaction toward testing and/or out and out
resistance to testing and other avenues of establishment of
paternity resulted in a fundamentally unfair process.” Second,
he contends that there was insufficient evidence to support the
juvenile court’s determination that he was “‘unfit’ pursuant to
section 78A-6-507(1)(d)” of the Utah Code.
ANALYSIS
I. DNA Testing
¶13 Relying on Utah Code subsection 78A-6-503(2), Father
contends that “the Order for DNA testing, and subsequent
inaction toward testing and/or out and out resistance to testing
and other avenues of establishment of paternity resulted in a
fundamentally unfair process.” See generally Utah Code Ann.
§ 78A-6-503(2) (LexisNexis Supp. 2016) (“The court shall provide
a fundamentally fair process to a parent if a party moves to
terminate parental rights.”). According to Father, “[t]his Court
should recognize the inherent statutory and fundamental duty
the State has to identify, notice, and serve parents and bring
20151005-CA 5 2017 UT App 131In re L.A.
them into such cases so that their statutory and fundamental due
process rights can be guaranteed.” The State characterizes this
issue as “[w]hether the juvenile court or [the] State had any
obligation to assist [Father] in establishing paternity.” The
guardian ad litem contends that Father’s due process claim was
not preserved below.
¶14 “Like the Utah Supreme Court, ‘we are resolute in our
refusal to take up constitutional issues which have not been
properly preserved, framed and briefed[.]’”Salt Lake County v.
Butler, Crockett & Walsh Dev. Corp., 2013 UT App 30, ¶ 32, 297
P.3d 38 (quoting Brigham City v. Stuart, 2005 UT 13, ¶ 14, 122
P.3d 506, rev’d on other grounds, 547 U.S. 398 (2006)). To preserve
an issue for appeal, “the issue must be presented to the trial
court in such a way that the trial court has an opportunity to rule
on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99
P.3d 801 (citation and internal quotation marks omitted). “The
preservation rule applies to every claim, including constitutional
questions[.]” Seamons v. Brandley, 2011 UT App 434, ¶ 3, 268 P.3d
195 (per curiam). “Among other things, this standard requires
that the issue be ‘specifically raised.’” Butler, 2013 UT App 30,
¶ 32 (quoting 438 Main St., 2004 UT 72, ¶ 51). “Where there is no
clear or specific objection and the specific ground for objection is
not clear from the context[,] the theory cannot be raised on
appeal.” State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (alteration in
original) (citation and internal quotation marks omitted). “Thus,
if a party makes an objection at trial based on one ground, this
objection does not preserve for appeal any alternative grounds
for objection.” Id.¶15 “‘When a party raises an issue on appeal without having
properly preserved the issue below, we require that the party
articulate an appropriate justification for appellate review[.]’”
Butler, 2013 UT App 30, ¶ 33 (quoting State v. Winfield, 2006 UT 4,
¶ 14, 128 P.3d 1171). Our supreme court has “recognized only
three instances in which an appellate court may address an issue
for the first time on appeal”: “(1) where the appellant establishes
that the trial court committed plain error; (2) where exceptional
20151005-CA 6 2017 UT App 131In re L.A.
circumstances exist; or (3) in some situations, where a claim of
ineffective assistance of counsel is raised on appeal.” In re C.C.,
2013 UT 26, ¶ 17, 301 P.3d 1000 (brackets, citations, and internal
quotation marks omitted). Accordingly, the Utah Rules of
Appellate Procedure require an appellant’s brief to contain a
“citation to the record showing that the issue was preserved in
the trial court” or “a statement of grounds for seeking review of
an issue not preserved in the trial court.” Utah R. App. P.
24(a)(5)(A), (B).
¶16 Father’s brief contains no citation to the record
demonstrating that his due process claim was preserved in the
juvenile court, nor does our review of the record indicate that it
was. Moreover, Father does not invoke an exception to the
preservation rule. See Butler, 2013 UT App 30, ¶ 33.
Consequently, this claim is not properly before us.
¶17 Nevertheless, the record indicates that several of Father’s
subarguments on appeal were raised below outside of the due
process context. More specifically, Father argues that (1) after the
shelter hearing, he should have been transported to the hearings
regarding Child, and (2) it was DCFS’s responsibility to ensure
that DNA testing of Father and Child occurred. We address each
issue in turn.
¶18 First, Father notes that after the shelter hearing, he “was
not transported to hearings and didn’t appear until the end of
April, 2015” and asserts that “[i]t is troubling that after bringing
[him] into the proceeding by service and transportation to [the
shelter hearing], [he] was effectively excluded from four
hearings by virtue of the fact that no transportation order was
submitted to the Court.” Father’s argument is inadequately
briefed. An appellant’s brief must contain “the contentions and
reasons of the appellant with respect to the issues
presented, . . . with citations to the authorities, statutes, and parts
of the record relied on.” Utah R. App. P. 24(a)(9). To comply
with this rule, “[b]riefs must contain reasoned analysis based
upon relevant legal authority. An issue is inadequately briefed
20151005-CA 7 2017 UT App 131In re L.A.
when the overall analysis of the issue is so lacking as to shift the
burden of research and argument to the reviewing court.” State
v. Davie, 2011 UT App 380, ¶ 16, 264 P.3d 770 (citation and
internal quotation marks omitted). In this case, Father has not
cited any authority nor provided any legal analysis in support of
his argument that he should have been transported to the
hearings regarding Child even though he had not yet established
his paternity at the time of the hearings in question.
Consequently, Father has not carried his burden of persuasion
on appeal.
¶19 Second, Father contends that “the transcript of the shelter
hearing makes [it] very clear that the Court placed upon [DCFS]
a burden to facilitate the DNA testing” and that the court’s
written order—prepared by the State—“changed the tenor of the
Order to omit the obligation placed on the State to see the DNA
testing through.” Father also asserts that DCFS was, at best,
“half-heartedly participating in the [DNA] testing” and that
although “the State was aware of [Mother’s] lack of
identification and . . . ORS’s resistance or failure to complete the
testing, . . . it did nothing to timely address the matter with the
Court.” Father implies that these circumstances delayed his
ability to establish paternity and that the delay was later used
against him to support the termination of his parental rights.
¶20 At the shelter hearing, the juvenile court addressed the
issue of DNA testing:
[Court]: Okay, at this point it doesn’t appear that
[Father] has been—paternity is still in question; is
that right?
[State’s counsel]: That is correct, your Honor. My
understanding is that he would like DNA testing
done so [DCFS] will have to set that up through
ORS.
[Court]: All right, is that accurate[?]
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[Father]: (No verbal response).
[Court]: All right, I’ll order that DNA testing be
done. Cooperate with DCFS in getting that taken
care of[.]
....
[Court]: [H]ow long do you anticipate being
incarcerated?
[Father]: I don’t know (inaudible).
....
[Father]: Oh, I have no idea. I’m in [on] a probation
violation. (Inaudible).
[Court]: Okay.
[Father]: I want to do whatever it takes to get her
back.
[Court]: Well, if you get out, make sure you get
ahold of DCFS so they can follow through with the
testing, okay?
The juvenile court’s final written order simply stated, “The
Court further orders that: the child and father submit to DNA
testing to establish paternity.”
¶21 At trial, Father testified, “[T]hey ordered . . . a DNA test
when I was in jail. They never came through.” And during
closing argument, Father’s counsel asserted that “[n]obody who
sought the order, nor the Court who . . . signed off on the order
that Dad and child get a [DNA] test did anything about it.” In its
order terminating Father’s parental rights, the juvenile court
found that “there was no order that [DCFS] collect the father’s
20151005-CA 9 2017 UT App 131In re L.A.
DNA or pay for the testing” and that “ultimately it was
[Father’s] responsibility to establish legal paternity.”
¶22 We first address Father’s contention that the juvenile
court’s written order “changed the tenor of the Order to omit the
obligation placed on the State to see the DNA testing through.”
After reviewing the court’s oral ruling from the shelter hearing
and its final written order, we are persuaded that the two
rulings, while not entirely in conflict, do contain some confusing
discrepancies. See generally M.F. v. J.F., 2013 UT App 247, ¶ 6, 312
P.3d 946 (“Our case law is clear that where a court’s oral ruling
differs from a final written order, the latter controls.”).
Specifically, at the shelter hearing, the juvenile court “order[ed]
that DNA testing be done” and told Father to “[c]ooperate with
DCFS in getting that taken care of.” Given this language, along
with the facts that the successful completion of DNA testing
would require at least some effort on the part of the appropriate
testing agency (either DCFS or ORS) and that Father was
incarcerated at that time, it was not wholly unreasonable for
Father to believe that DCFS might seek him out to complete the
DNA testing and that he was only required to cooperate with
DCFS in its efforts to do so.3 On the other hand, at the shelter
hearing, the court asked Father how long he “anticipate[d] being
incarcerated” and told him: “Well, if you get out, make sure you
get ahold of DCFS so they can follow through with the testing,
okay?” This statement, along with the court’s final written order
requiring “the child and father submit to DNA testing to
establish paternity,” should have put Father on notice that DCFS
was not required to seek him out to complete the DNA testing
and that it was his responsibility to contact DCFS once he got out
of jail.
3. In addition, while not a part of the court’s oral ruling, during
the shelter hearing, the State observed that Father wanted to
have DNA testing done and that “[DCFS] will have to set that up
through ORS.” (Emphasis added.)
20151005-CA 10 2017 UT App 131In re L.A.
¶23 In any event, we do not perceive any resulting harm to
Father. Father took the steps necessary to establish paternity
when, in July 2015, he filed a motion to adjudicate his paternity,
accompanied by sworn statements from both Father and Mother
that he is Child’s biological father. See Utah Code Ann. §§ 78B-
15-201(2)(c), -615 (LexisNexis 2012). Thereafter, on August 13,
the juvenile court granted Father’s motion and adjudicated him
as the legal father of Child.
¶24 We acknowledge, and the State concedes, that “Father
may have been hampered in establishing his paternity due to his
incarceration.” But “means other than genetic testing were
available to [Father] to establish his paternity,” see In re S.H.,
2005 UT App 324, ¶ 20, 119 P.3d 309, a fact which Father
recognizes. Indeed, in his briefing, Father concedes that “DNA
testing is but one method of establishing legal paternity under
Utah law,” and he acknowledges the existence of several
alternative methods for establishing paternity, including an
adjudication of paternity and a voluntary declaration of
paternity.4 See Utah Code Ann. § 78B-15-201(2)(b), (c). And while
the juvenile court’s order terminating Father’s parental rights
4. Although Father concedes that there are methods other than
DNA testing sufficient to establish paternity, he argues that “his
avenues for establishing paternity were not outlined for him at
the outset on the record” and that “he [should have] been
properly notified of mechanisms to establish paternity rather
than being steered toward DNA testing the State had no
intention of providing.” However, the record indicates that
Father initially told the court that he wanted to pursue DNA
testing. In any event, this claim is inadequately briefed. Father
has not cited any authority or provided any legal analysis in
support of his assertion that the juvenile court had an affirmative
duty to inform him of alternative methods of establishing
paternity. Consequently, Father has not carried his burden of
persuasion on this point.
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notes that it took Father “nearly nine months to establish
paternity,” the order also indicates that the court did not
substantially rely on the amount of time it took Father to
establish paternity in terminating his parental rights.
¶25 Rather, as will be discussed in more detail below, infra
¶ 30, the juvenile court terminated Father’s parental rights
because Father’s actions, specifically his “inability to remain out
of jail,” demonstrated that he was unable to remedy the
conditions giving rise to Child’s out-of-home placement.
Pursuant to Utah Code subsection 78A-6-507(1)(d), the juvenile
court determined that Child was being cared for in a foster
home, that “there was still no legal parent able to properly care for
[Child] nor had there been in a year”; that Father’s “habitual
incarceration demonstrated his inability or unwillingness to
remedy the circumstances that caused [Child] to be in an out-of-
home placement”; and that because Father would be
incarcerated until May 14, 2016, he was not capable of taking
care of Child in the near future. (Emphasis added.) Thus, we
conclude that any delay Father experienced in establishing his
parental rights was ultimately harmless.
¶26 Moreover, we agree with the State that, as a general
matter, “the onus of establishing paternity rests upon the alleged
father.” The Utah Supreme Court has stated that “the rights of
parents 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 parental rights.” In re adoption of B.B.D., 1999 UT 70,
¶ 10, 984 P.2d 967; see also Lehr v. Robertson, 463 U.S. 248, 260
(1983) (“Parental rights do not spring full-blown from the
biological connection between parent and child.” (emphasis,
citation, and internal quotation marks omitted)). “Under 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 . . . .” In re adoption of B.B.D., 1999 UT 70, ¶ 11
(emphasis added) (citation and internal quotation marks
20151005-CA 12 2017 UT App 131In re L.A.
omitted). “An unmarried father demonstrates his commitment to
the responsibilities of parenthood . . . by establishing legal
paternity, in accordance with the requirements of [Utah law].” Id.(alteration in original) (citation and internal quotation marks
omitted). Had Father wanted to secure constitutional protections
as a parent earlier, it was within his power to do so. See In re
S.H., 2005 UT App 324, ¶ 20 (observing, where the mother
delayed in submitting her DNA sample, that “means other than
genetic testing were available to [the father] to establish his
paternity” and that it “was completely within [his] control to file
a voluntary declaration of paternity and thus guarantee[] that he
would receive [constitutional protection]” (second, third, and
fourth alterations in original) (citation and internal quotation
marks omitted)). Indeed, as the juvenile court noted, Father
could have filed a voluntary declaration of paternity “months”
before he did so.
¶27 In sum, we conclude that Father’s due process claim was
not preserved; that Father’s arguments pertaining to his lack of
transportation to the hearings regarding Child and the juvenile
court’s duty to inform him of alternative methods of establishing
paternity are inadequately briefed; and that any discrepancies
between the court’s oral and written rulings regarding DNA
testing, and any delays resulting therefrom or otherwise, were
harmless. We ultimately agree with the State that it was Father’s
responsibility alone to establish paternity.
II. Sufficiency of the Evidence
¶28 Father contends that there was insufficient evidence to
support the juvenile court’s determination that he was “‘unfit’
pursuant to [section] 78A-6-507(1)(d)” of the Utah Code.
“Findings of fact in a parental rights termination proceeding are
overturned only if they are clearly erroneous.” In re G.B., 2002
UT App 270, ¶ 9, 53 P.3d 963 (citation and internal quotation
marks omitted). Under this standard, we will set aside the
juvenile court’s findings of fact only “if the findings . . . are
against the clear weight of the evidence, or if [we] otherwise
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reach[] a definite and firm conviction that a mistake has been
made.” In re S.L., 1999 UT App 390, ¶ 20, 995 P.2d 17 (omission
in original) (citation and internal quotation marks omitted).
¶29 “Utah law requires a court to make two distinct findings
before terminating a parent-child relationship.” In re R.A.J., 1999
UT App 329, ¶ 7, 991 P.2d 1118. “First, the court must find that
the parent is below some minimum threshold of fitness, such as
finding that a parent is unfit or incompetent based on any of the
grounds for termination under [section 78A-6-507] of the Utah
Code.” Id. (citation and internal quotation marks omitted); see
also Utah Code Ann. § 78A-6-507 (LexisNexis 2012) (listing the
grounds for termination of parental rights and stating 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). Father
does not challenge the juvenile court’s ruling 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.
¶30 Utah Code section 78A-6-507 provides, among other
things, that a juvenile court may terminate parental rights if the
court finds that (1) “the child is being cared for in an out-home-
placement under the supervision of the court”; (2) “the parent
has substantially neglected, willfully refused, or has been unable
or unwilling to remedy the circumstances that cause the child to
be in an out-of-home placement”; and (3) “there is a substantial
likelihood that the parent will not be capable of exercising
proper and effective parental care in the near future.” Utah Code
Ann. § 78A-6-507(1)(d). In terminating Father’s parental rights,
the juvenile court observed that it was concerned about Father’s
“inability to remain out of jail,” and that Child would be
eighteen months old by the time Father was released from jail.
20151005-CA 14 2017 UT App 131In re L.A.
The court also noted that “just because someone is released from
jail does not mean they are ready to parent a young child” and
that “[Father] would likely need some services before he would
be an appropriate parent.” As an example, the court observed
that Father had “testified his drug tests were clean until he ‘fell
back’” and that Father “appears to have a substance abuse issue
that needs to be addressed.” The court observed that Father’s
probable need for services meant that Child “would be more
than 18 months old before [Father] is ready to be a parent.” The
court ultimately terminated Father’s parental rights based on
Utah Code subsection 78A-6-507(1)(d), after finding by clear and
convincing evidence that
(1) [Child] is being cared for in a foster home
under the supervision of [DCFS] and the Court;
(2) [Father] has been unwilling or unable to
remedy the circumstances that caused [Child]
to be placed in [DCFS’s] custody. At the time of
the November, 2015 trial, there was still no
legal parent able to properly care for [Child],
nor had there been in nearly a year. Also,
[Father’s] habitual incarceration demonstrated
his inability or unwillingness to remedy the
circumstances that caused his child to be in an
out-of-home placement.
(3) Given that [Father] will be incarcerated until
May 14, 2016, he will not be capable of
exercising proper and effective parental care of
[Child] in the near future.
We conclude that the record evidence supports the juvenile
court’s determination that Father was unable to remedy the
circumstances that caused Child to be in an out-of-home
placement and that there was a substantial likelihood that Father
would not be capable of exercising proper and effective parental
care in the near future.
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¶31 Father concedes that because “[Child] was in a legal risk
foster placement, the first subpart [of subsection 78A-6-507(1)(d)]
is not at issue.” With respect to the second and third
requirements of subsection 78A-6-507(1)(d), Father challenges
two of the juvenile court’s findings, which, according to Father,
are “simply insufficient to demonstrate that he had . . . ‘been
unwilling to remedy the circumstances that caused [Child] to be
in an out-of-home placement; and . . . that there is a substantial
likelihood that [he] will not be capable of exercising proper and
effective parental care in the near future.’” (Quoting Utah Code
Ann. § 78A-6-507(1)(d) (LexisNexis 2008).)
¶32 First, Father challenges the juvenile court’s finding that he
“would likely need some services before he could be an
appropriate parent” and the court’s reference to Father’s
possible need for drug treatment. More specifically, according to
Father, the juvenile court did not, and could not find, “based on
the record, ‘habitual or excessive use of intoxicating liquors,
controlled substances, or dangerous drugs that render the parent
unable to care for the child.’” (Quoting Utah Code Ann. § 78A-6-
508(2)(c) (LexisNexis 2008).) Regarding Father’s drug use, the
court observed that “[Father] testified his drug tests were clean
until he ‘fell back’” and that Father “appears to have a substance
abuse issue that needs to be addressed.” Father concedes that
“[t]he evidence seems to suggest use on one occasion of some
unknown substance,” but he contends that “[t]estimony of clean
tests and then a ‘slip’ is legally insufficient for the Court to find
by clear and convincing evidence ‘habitual or excessive use’”
under subsection 78A-6-508(2)(c) of the Utah Code.
¶33 As Father correctly observes, the juvenile court did not
find “‘habitual or excessive use of intoxicating liquors, controlled
substances, or dangerous drugs that render the parent unable to
care for the child.’” (Quoting Utah Code Ann. § 78A-6-508(2)(c).)
Nor was it required to do so. Utah Code subsection 78A-6-508(2)
lists several “circumstances, conduct, or conditions,” including
habitual or excessive drug use, that courts may consider “[i]n
determining whether a parent or parents are unfit or have
20151005-CA 16 2017 UT App 131In re L.A.
neglected a child.” Utah Code Ann. § 78A-6-508(2) (LexisNexis
Supp. 2016) (emphasis added). Thus, we read the circumstances
listed under subsection 78A-6-508(2) to apply to two specific
grounds for termination under subsection 78A-6-507(1)—
whether a parent is “unfit or incompetent” pursuant to
subsection 78A-6-507(1)(c), and whether a parent “has neglected
or abused the child” pursuant to subsection 78A-6-507(1)(b). See
id. § 78A-6-507(1)(b), (c) (LexisNexis 2012).
¶34 Here, although the juvenile court used the term
“Unfitness” as a section heading to describe the ground for
terminating Father’s parental rights, the court did not terminate
Father’s parental rights on the grounds that he was “unfit or
incompetent” or that he had “neglected or abused” Child. See id.
Instead, the juvenile court relied on the threefold test set forth in
subsection 78A-6-507(1)(d).5 Supra ¶ 30. But more importantly,
the record demonstrates that the juvenile court noted Father’s
need for additional services—due to, for example, his ”substance
abuse issue”—not as an independent basis for terminating
Father’s parental rights, but because that need would further
delay Father’s ability to take and care for Child after his
incarceration ended. Accordingly, Father’s argument regarding
habitual or excessive drug use under Utah Code subsection 78A-
6-508(2) is misplaced.
5. Even if we were to conclude that the circumstances listed
under subsection 78A-6-508(2) constituted evidence of grounds
for termination under subsection 78A-6-507(1)(d), a juvenile
court is not limited to the enumerated circumstances in
subsection 78A-6-508(2) in determining whether there is
evidence of grounds for termination of parental rights. See Utah
Code Ann. § 78A-6-508(2) (LexisNexis Supp. 2016) (“In
determining whether a parent or parents are unfit or have
neglected a child the court shall consider, but is not limited to, the
[enumerated] circumstances, conduct, or conditions[.]”
(emphasis added)).
20151005-CA 17 2017 UT App 131In re L.A.
¶35 Moreover, while we express no opinion as to whether
“[t]estimony of clean tests and then a ‘slip’ is legally insufficient
for the Court to find by clear and convincing evidence ‘habitual
or excessive use’” under subsection 78A-6-508(2)(c), evidence of
an ongoing substance abuse problem is surely relevant to a
parent’s ability, or inability, to “exercis[e] proper and effective
parental care” pursuant to Utah Code subsection 78A-6-
507(1)(d). Here, Father testified that he was initially “doing
really good” on probation and “was clean,” but that he “f[e]ll
back” and stopped checking in with his probation officer “when
[DCFS] stopped [his] visit[s] from [Child].” Consequently,
Father’s challenge to the court’s finding that he “would likely
need some services before he would be an appropriate parent” is
not well taken.
¶36 Father next challenges the juvenile court’s finding
regarding his “inability to remain out of jail.” Relying on
Father’s testimony, the juvenile court found that Father was
released from jail on March 3, 2015; that he was subsequently
reincarcerated on September 7, 2015, for a probation violation;
and that he would not be released from jail until May 14, 2016.
Father contends that “the Code provides direction for the Court
as to how incarceration may be viewed as evidence of unfitness”
and observes that under Utah Code subsection 78A-6-508(2)(e),
“[t]he Court may consider ‘whether the parent is incarcerated as
a result of conviction of a felony, and the sentence is of such a
length that the child will be deprived of a normal home for more
than one year.’” (Quoting Utah Code Ann. § 78A-6-508(2)(e).)
Father therefore contends that the juvenile court could not rely
on his incarceration in terminating his parental rights because
“the evidence found by the Court does not include that [Father]
was convicted of a felony,”6 and because Father “had been
6. In its findings, the juvenile court noted that on the day Child
was born, Father “was incarcerated in jail on a conviction of
Theft by Receiving Stolen Property” but that “[n]o evidence was
(continued…)
20151005-CA 18 2017 UT App 131In re L.A.
incarcerated nine and a half weeks as of the trial date.”7 We are
not persuaded.
¶37 To begin with, in terminating Father’s parental rights, the
juvenile court did not rely on subsection 78A-6-508(2)(e) as
evidence of grounds for termination. In addition, as previously
discussed, the circumstances listed under subsection 78A-6-
508(2) do not apply to subsection 78A-6-507(1)(d), on which the
district court relied. Supra ¶¶ 33–34. Rather, subsection 78A-6-
507(1)(d) requires a finding that “there is a substantial likelihood
that the parent will not be capable of exercising proper and
effective parental care in the near future.” Utah Code Ann. § 78A-
6-507(1)(d)(iii) (LexisNexis 2012) (emphasis added). This is an
indication that parental rights may be terminated pursuant to
subsection 78A-6-507(1)(d) without consideration as to whether
“the child will be deprived of a normal home for more than one
(…continued)
presented as to whether this was a felony or a misdemeanor
conviction.”
7. As part of this argument, Father contends that the juvenile
court was “not entitled on November 12th, 2015, to take into
account the expected sentence up to May 14th, 2016, which had
not happened yet.” Essentially, Father’s argument is that the
juvenile court could not consider the length of Father’s
prospective incarceration in determining whether the one-year
incarceration provision of Utah Code subsection 78A-6-508(2)(e)
was met; rather, according to Father, the court could consider
only the length of Father’s “actual incarceration on the trial
date,” which was nine and a half weeks. Aside from the fact that
the juvenile court did not rely on subsection 78A-6-508(2)(e) in
making its decision, see supra ¶ 30, Father’s argument on this
point is inadequately briefed, see Utah R. App. P. 24(a)(9). Father
has not cited any authority or provided any legal analysis in
support of this argument, and we therefore decline to further
address it.
20151005-CA 19 2017 UT App 131In re L.A.
year” due to a parent’s incarceration. Compare id. § 78A-6-
508(2)(e) (emphasis added), with id. § 78A-6-507(1)(d). Indeed, if
we were to adopt Father’s argument, the “more than one year”
time frame enumerated in subsection 78A-6-508(2)(e) would
essentially render subsection 78A-6-507(1)(d)’s “in the near
future” time frame equivalent to at least one year. However, we
presume that “the legislature used the different terms advisedly
and we enforce them as plainly set forth in the statute.” State v.
Johnson, 2007 UT App 392, ¶ 10, 174 P.3d 654; see also Valencia v.
Labor Comm’n, 2015 UT App 50, ¶ 10, 345 P.3d 1277 (“We
presume the legislature used each term in the statute advisedly
and according to its ordinary meaning.”). Moreover, subsection
78A-6-507(1)(d) does not require that a parent’s inability to
exercise proper care of a child result from a parent’s
“incarcerat[ion] as a result of conviction of a felony,” see Utah
Code Ann. § 78A-6-508(2)(e), or as a result of incarceration at all.
To the contrary, the plain language of subsection 78A-6-507(1)(d)
indicates that a parent’s inability to exercise proper care of a
child in the near future could result from a variety of
circumstances including, but not limited to, a parent’s
incarceration. Consequently, we conclude that Father’s
argument regarding subsection 78A-6-508(2)(e) is misplaced and
that the juvenile court could consider evidence of Father’s
incarceration in determining whether to terminate his parental
rights under subsection 78A-6-507(1)(d).
¶38 After reviewing the record, we conclude that there was
ample evidence to support the juvenile court’s determination
that Father was unable or unwilling to remedy the circumstances
that caused Child to be in an out-of-home placement. See Utah
Code Ann. § 78A-6-507(1)(d). Father testified at the termination
trial that he was incarcerated on the day of Child’s birth in
November 2014—as a result of his conviction of theft by
receiving stolen property—and that he was released from jail on
March 3, 2015. He further testified that he was most recently
incarcerated on September 7, 2015, for a probation violation and
that he would not be released from jail until May 14, 2016. From
March 3, 2015, to September 7, 2015, while Father was out of jail,
20151005-CA 20 2017 UT App 131In re L.A.
he lived with his parents and worked two jobs, which he lost
when he was reincarcerated.
¶39 Father further testified that while he was out of jail, he
visited with Child twice before his visitations were stopped
because he “didn’t have the paternal rights.” Subsequently, after
the juvenile court adjudicated Father’s paternity in August 2015,
he had two more visits with Child about two weeks before he
went back to jail. Father testified that he loved Child and that he
“just want[ed] to be there for [his] daughter.” And he testified
that he was back in jail “for [a] probation violation” for “not
checking in.” Father explained:
I was doing really good when I was on probation.
When I knew that my daughter was born, I was
doing really good. I had two jobs. I was doing my
classes that my [probation officer] ordered me to
do. I was checking in. I was doing my [urinalysis
tests]. I came out good. I was clean.
Then after that, when they stopped my
visit[s] from my daughter, I kind of f[e]ll back,
because I was always behind the mother so she can
be clean, which she wasn’t going to, and picking
up more charges because of her saying that I hit
her, which I didn’t ever hit her. . . .
Father also testified that when he was working two jobs between
March and September 2015, he did not “save or put away any
money for [Child],” because he was “trying to pay [his] mom the
money that she put out to bail [Mother].” He testified that he
had had no income since he had been reincarcerated in
September. During the termination trial, the juvenile court also
acknowledged that Father had “convictions for narcotic
equipment [and] possession of controlled substance,” according
to the petition to terminate parental rights.
20151005-CA 21 2017 UT App 131In re L.A.
¶40 We conclude that there was sufficient evidence to support
the juvenile court’s termination of Father’s parental rights based
on Utah Code subsection 78A-6-507(1)(d). Specifically, Father
was incarcerated on the day of Child’s birth. Father was released
from jail on March 3, 2015, and he was initially “doing really
good” and “was clean.” Nevertheless, at some point after DCFS
stopped his visits with Child because he had not yet established
his paternity, Father “f[e]ll back” and stopped checking in with
his probation officer. He also picked up a new charge for
allegedly hitting Mother. Father was reincarcerated in September
2015. Thus, at the time of the termination trial in November 2015,
when Child was approximately eleven months old, Father had
been incarcerated for a significant portion of Child’s life, and he
would remain incarcerated until May 14, 2016, when Child
would be nearly eighteen months old. Consequently, the record
supports the juvenile court’s determination that Father’s
“habitual incarceration demonstrated his inability or
unwillingness to remedy the circumstances that caused [Child]
to be in an out-of-home placement.” See Utah Code Ann. § 78A-
6-507(1)(d)(ii).
¶41 The record also supports the juvenile court’s
determination that there was a substantial likelihood that Father
would “not be capable of exercising proper and effective
parental care of [Child] in the near future.” See id. § 78A-6-
507(1)(d)(iii). At the November 2015 termination trial, Father
testified that he would be incarcerated until May 14, 2016. Thus,
Father was incapable of exercising proper and effective parental
care of Child for at least the next six months, at which point
Child would already be eighteen months old. Moreover, as
previously discussed, Father’s trial testimony indicated that he
“appears to have a substance abuse issue that needs to be
addressed,” and his likely need for services would only further
delay his ability to be an effective parent. Father also testified
that he had had no income since he had been reincarcerated in
September 2015.
20151005-CA 22 2017 UT App 131In re L.A.
¶42 In sum, there was sufficient evidence to support the
juvenile court’s determination that Father was unable to remedy
the circumstances that caused Child to be in an out-of-home
placement and that there was a substantial likelihood that Father
would not be capable of exercising proper and effective parental
care in the near future.
¶43 In a related but separate argument, Father contends that
“[t]he Court’s finding that [he] ‘did nothing’ to establish
paternity between March, 2015, and July 2015, through a
mechanism other than DNA testing is unsupported by the
record, and therefore constitutes an abuse of discretion.” Again,
“[f]indings of fact in a parental rights termination proceeding are
overturned only if they are clearly erroneous.” In re G.B., 2002
UT App 270, ¶ 9, 53 P.3d 963 (citation and internal quotation
marks omitted).
¶44 The juvenile court found that “[a]lthough provisional
counsel was appointed for [Father] on April 28, 2015 to help him
establish paternity, he did not attempt to establish paternity
through an alternative route [other than DNA testing] until July,
2015.” The court further found:
20. [Father] missed the first three months of
[Child’s] life because he was incarcerated. Over the
next five months, [Father] made efforts to establish
his paternity but they seem to have been in short
bursts of energy and effort. In mid-March and
early April, [Father] made serious efforts to
establish his paternity. From late April, when the
court provisionally appointed [counsel] until early
July, there was no evidence that [Father] made any
efforts. Then another burst of energy and effort
occurred in July.
21. While taking nearly nine months to establish
paternity is concerning, what is more concerning is
[Father’s] inability to remain out of jail.
20151005-CA 23 2017 UT App 131In re L.A.
¶45 The court’s written findings demonstrate that, contrary to
Father’s assertion, the juvenile court did not find that Father
“‘did nothing’ to establish paternity between March, 2015, and
July 2015, through a mechanism other than DNA testing.”
Rather, the court’s findings establish that it recognized Father’s
“serious efforts to establish his paternity” between mid-March
and early April. However, the record indicates that after the
court appointed provisional counsel on April 28, 2015, Father
failed to make any additional efforts beyond DNA testing to
establish paternity until July 7.8 At the July 7 hearing, the court
stated, “I don’t know why you haven’t filed a voluntary
declaration of paternity, . . . I mean, . . . how simple is that?
Could have been done months ago.” That same day, Father and
Mother filed affidavits attesting that Father is Child’s biological
father, and the next day, Father filed a motion to adjudicate his
paternity. Based on the foregoing, the court’s finding that
“[f]rom late April, when the court provisionally appointed
[counsel] until early July, there was no evidence that [Father]
made any efforts” to establish paternity through an alternative
route other than DNA testing is supported by the record
evidence.
¶46 In any event, although the court indicated that the
amount of time—nine months—it took Father to establish
paternity was “concerning,” the court’s findings demonstrate
that it viewed the delay as a relatively minor issue and that its
8. Father asserts, without citation to the record, that “the record
supports that in order to establish paternity in some way other
than DNA testing, [he] (1) wrote a letter attesting he would
execute an[y] paperwork necessary to establish paternity;
(2) requested counsel; (3) proceeded to the Office of Vital
Statistics and was not permitted to execute a voluntary
declaration because of [Mother’s] lack of I.D.; (4) offered and
requested to be adjudicated legal father at [the] hearing [on] July
7th, 2015; and (5) substantially [and] immediately filed a certified
statement and motion to be adjudicated father.”
20151005-CA 24 2017 UT App 131In re L.A.
ultimate decision to terminate Father’s parental rights was
primarily based on his “inability to remain out of jail.” As
previously discussed, in terminating Father’s parental rights
under Utah Code subsection 78A-6-507(1)(d), the juvenile court
found (1) that Child was being cared for in a foster home, (2) that
“there was still no legal parent able to properly care for [Child],
nor had there been in a year” and that Father had demonstrated
an inability or unwillingness to remedy the circumstances
causing out-of-home placement of Child due to his habitual
incarceration, and (3) that because Father would be incarcerated
until May 14, 2016, he was not capable of taking care of Child in
the near future. We conclude that Father’s argument on this
point mischaracterizes the court’s findings and that the court’s
findings regarding Father’s efforts to establish paternity apart
from DNA evidence were supported by the facts.
CONCLUSION
¶47 Based on the foregoing, we affirm the juvenile court’s
order terminating Father’s parental rights.
20151005-CA 25 2017 UT App 131