In re D.R.

2022 UT App 124THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF D.R.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
L.L.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20210898-CA
Filed November 10, 2022
Seventh District Juvenile Court, Moab Department
The Honorable Mary L. Manley
No. 1196258
Gregory W. Stevens, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGE RYAN D. TENNEY and SENIOR JUDGE KATE APPLEBY
concurred. 1
CHRISTIANSEN FORSTER, Judge:
¶1 The State took custody of L.L.’s (Mother) eight-year-old
daughter (Child) and established a Child and Family Plan with a
goal of reunification. But after approximately four months, the
juvenile court terminated reunification services due to Mother’s
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
In re D.R.
near-total failure to complete the requirements of the Child and
Family Plan. Subsequently, Mother requested that the court
reinstate reunification services on the ground that she should
have been given more time as an accommodation under the
Americans with Disabilities Act (the ADA). The juvenile court
denied Mother’s request and eventually terminated her parental
rights.
¶2 We are asked to determine whether the juvenile court’s
ruling violated Mother’s rights under the ADA and whether her
trial counsel performed ineffectively by failing to obtain a
successful ruling on her motion. Because we determine that
granting Mother more time would not have allowed her to
complete reunification services and that the juvenile court had no
affirmative obligation to craft an accommodation that Mother did
not request, we affirm the court’s ruling on her motion. Moreover,
because we conclude that Mother’s claim of ineffective assistance
of counsel is speculative, we reject that claim as well.
BACKGROUND
¶3 In March 2021, the State took custody of Child. The juvenile
court found Child to be “neglected and/or dependent.” The
Department of Child and Family Services (DCFS) set a
permanency goal of reunification and established a Child and
Family Plan, which required Mother to complete a mental health
and substance abuse evaluation; participate in random drug
testing; not abuse illegal, prescription, or non-prescription drugs;
complete any recommended substance abuse and mental health
treatment; acquire appropriate housing; complete a domestic
violence assessment and complete any recommended treatment;
and not allow Child to be exposed to domestic violence.
¶4 In early July, however, DCFS requested that the court
terminate reunification services. Mother resisted, reporting that
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she faced challenges in completing the requirements of the
reunification plan because she faced “technology issues and
issues with her disability.” She explained that she had obtained a
car and intended to move back to Utah from Colorado to
participate in reunification services. Mother therefore requested
“more time to work [on] reunification services.” Mother did not
specifically request accommodation under the ADA.
¶5 The court found that Mother had made minimal progress
on the reunification plan. She had moved to Colorado, “despite
being warned this would make services difficult.” She had missed
twenty-one drug tests, and of the three she completed, all were
positive for methamphetamine. Mother had not obtained stable
housing and had not completed any of the ordered assessments.
She missed three video visits and two in-person visits with Child,
including a visit on Child’s birthday. Moreover, she had
continued to have contact with Child’s father, despite claiming
not to know where he was, and she had been involved in a new
domestic violence incident with him. The court therefore set the
matter for a permanency hearing on July 22, 2021.
¶6 Following the permanency hearing, the court found that
Mother had not taken any additional drug tests since the
permanency hearing was scheduled, missing six tests in the two-
week period; that she had missed an additional visit with Child;
and that she had not actually moved to Utah as she indicated she
would. Additionally, Mother had received a new drug possession
charge in Colorado. The court found that Mother had “failed to
comply with the court approved plan in whole or in part” and that
this failure was the result, not of limitations beyond her control,
but of her “unwillingness to engage in the services intended to
address” the underlying issues that led to Child’s removal. Based
on these findings, the court concluded that “[a]n additional 90
days is not likely to result in achievement of the objectives of the
treatment plan for” Mother and that “provision of further
reunification efforts is not reasonable.” The court therefore
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changed Child’s permanency goal to adoption and terminated
reunification services.
¶7 A month later, Mother filed a motion asking the court to
hold a new permanency hearing or modify its order terminating
reunification services. She argued that she had not been granted
reasonable accommodation under the ADA with respect to
reunification services. Mother asserted that she suffered from a
brain arteriovenous malformation (AVM), which she claimed
“[t]he court and DCFS have been aware [of] since the onset of this
case.” She argued that her disability makes it difficult “to
accomplish things as quickly as other people” and that she
“required additional time to access the reunification services with
her disabilities to afford her the same opportunities as any non-
disabled individual.”
¶8 The court rejected Mother’s argument because it concluded
that although she had “established a disability,” she had not
shown that her “disability qualifies her for reasonable
accommodations” or that her requested accommodation of more
time was reasonable. Accordingly, the court denied her request
that it reinstate reunification services. Following a subsequent
termination trial, which Mother did not attend, the juvenile court
terminated Mother’s parental rights. Mother now appeals.
ISSUES AND STANDARDS OF REVIEW
¶9 First, Mother argues that the juvenile court exceeded its
discretion in denying her motion to reinstate reunification
services on ADA grounds. 2 “Trial courts are in the best position
2. The parties and the juvenile court engaged in extensive analysis
of whether DCFS and the court were obligated to provide Mother
with ADA accommodations, based on their general awareness
(continued…)
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to evaluate the credibility of witnesses, the parent’s level of
participation in reunification services, and whether services were
appropriately tailored to remedy the problems that led to the
child’s removal.” In re K.F., 2009 UT 4, ¶ 52, 201 P.3d 985. “Thus,
appellate courts defer to juvenile courts on matters of credibility,
and 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.” Id. (quotation simplified).
¶10 Second, Mother argues that if we affirm the juvenile court’s
ruling, then we must necessarily determine that her trial counsel
was ineffective for failing to raise an adequate argument in
support of her ADA claim. “An ineffective assistance of counsel
claim raised for the first time on appeal presents a question of
law,” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162, which we review
for correctness.
that Mother suffered from a disability, prior to the time she filed
her motion specifically invoking the ADA. However, Mother
appears to have abandoned that argument on appeal. See generally
In re B.A., 2017 UT App 202, ¶¶ 5–8, 407 P.3d 1053 (explaining that
“vague claims of a disability” are insufficient to put DCFS and the
juvenile court on notice that the ADA applies). Instead, she asserts
that “once [she] invoked the ADA by way of her Motion under
Rule 59(a) after the permanency hearing, DCFS and the juvenile
court were charged with identifying any modifications to the
reunification plan that might be reasonable.” Thus, on appeal, we
consider only whether the ADA required the juvenile court to
reinstate reunification services following Mother’s motion
invoking the ADA, not whether the ADA precluded the juvenile
court from terminating reunification services at the permanency
hearing.
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ANALYSIS
I. The juvenile court did not exceed its discretion in rejecting
Mother’s ADA argument.
¶11 The juvenile court rejected Mother’s ADA claim on the
ground that she had not established she was a “qualified
individual with a disability” under the ADA because she could
not demonstrate that there was a reasonable accommodation that
would allow her to successfully participate in reunification
services. A qualified individual is “an individual with a disability
who, with or without reasonable modifications to rules, policies,
or practices, . . . meets the essential eligibility requirements for the
receipt of services or the participation in programs or activities
provided by a public entity.” 42 U.S.C. § 12131(2); see also In re
K.C., 2015 UT 92, ¶ 22, 362 P.3d 1248.
¶12 The only accommodation Mother requested was
“additional time to access the reunification services with her
disabilities to afford her the same opportunities as any non-
disabled individual.” We agree with the juvenile court that
without any evidence that Mother had even begun to progress on
the reunification plan, she could not show that she was capable of
completing reunification services even with the additional time
she requested. As the juvenile court explained, “[Mother] is
asking for more time to begin to do all of the things that she has
failed to start in more than four months. Her lack of engagement,
and lack of parental interest in services, does not support a
different outcome.” “There is no additional reasonable
accommodation that could have been provided to [Mother]
without her engagement in the services provided. [Mother’s]
refusal to engage in any services balanced against [Child’s] best
interests for permanency, make the request for additional time an
unreasonable accommodation because it would create a hardship
in providing permanency for [Child] when there is no indication
it would net a different result.”
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¶13 Mother nevertheless suggests that there may have been
other appropriate accommodations and that the juvenile court
and DCFS had an “affirmative obligation” to “explore reasonable
accommodations” and “identify[] any modifications to the
reunification plan that might be reasonable.” Relying on In re K.C.,
2015 UT 92, 362 P.3d 1248, she suggests that she had no
responsibility to request any specific modification and that it was
the responsibility of DCFS and the juvenile court to
independently research her condition and identify
accommodations that might have helped her to participate in
reunification services. We can see how some isolated language
from In re K.C. might be interpreted this way, but reading the case
as a whole, it is apparent to us that the supreme court did not
intend the result advanced by Mother here. Although the court
stated that “the juvenile court is charged . . . with identifying any
modifications to the reunification plan that might be reasonable,”
id. ¶ 27 (emphasis omitted), it also clearly expected the parent
challenging a juvenile court’s rejection of an ADA claim to
identify the “specific modification that [the parent] requested that
was denied by the court,” id. ¶ 30. This court expressed a similar
expectation in In re C.C., 2017 UT App 134, 402 P.3d 17, when it
approved the juvenile court’s rejection of an ADA defense where
the mother had not identified “any specific accommodation . . .
that was denied or not provided by DCFS or by the Court.” Id.
¶ 31 (quotation simplified). Thus, we do not read In re K.C. as
imposing an “affirmative obligation” on the juvenile court to
make a parent’s ADA arguments for them by identifying potential
reasonable accommodations that the parent did not request.
¶14 Moreover, we do not agree that the ADA can be reasonably
read to impose such an obligation. Juvenile court judges do not
have the medical background to understand and assess the effects
of an illness or disability on a parent’s ability to complete
reunification services without being presented with specific
evidence. And even if they did, individual victims of an illness or
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disability may experience such a variety of symptoms that a mere
diagnosis does not provide a sufficient basis for assessing the
accommodations an individual with that diagnosis might need.
Thus, we agree with the State and the guardian ad litem that the
burden must be on the individual requesting accommodation
under the ADA to present the court with information regarding
their disability, how it affects them, and the accommodations that
would allow them to participate in reunification services.
¶15 For these reasons, the juvenile court did not err in denying
Mother’s request to reinstate reunification services.
II. Mother has not demonstrated that she received ineffective
assistance of counsel.
¶16 Mother next argues that if we “conclude that there was
insufficient argument and evidence . . . to support [Mother’s]
claim that DCFS and the juvenile court had failed to comply with
the ADA, then we also have to conclude that trial counsel was
ineffective.” To succeed on a claim of ineffective assistance of
counsel, Mother must demonstrate both (1) that counsel’s
performance was deficient and (2) that she suffered prejudice as a
result of counsel’s deficient performance. See In re C.M.R., 2020 UT
App 114, ¶ 19, 473 P.3d 184.
¶17 Mother claims that even though she did not appear at the
termination trial, counsel should have called Mother’s father,
mother, and brother, as well as an expert witness, to testify about
her disability. However, the record does not indicate what the
testimony of any of these individuals would have been. Without
knowing what additional evidence counsel could have presented
regarding Mother’s disability, any allegation that counsel was
ineffective is purely speculative.
¶18 Mother asks that we remand this case for an evidentiary
hearing on her ineffective assistance of counsel claim. See generally
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In re S.H., 2007 UT App 8, ¶ 16, 155 P.3d 109 (determining that this
court has the authority to remand an appeal from juvenile court
to allow the juvenile court to make factual findings regarding an
ineffective assistance of counsel claim). However, as such a
remand is analogous to a remand under rule 23B of the Utah Rules
of Appellate Procedure, see In re C.M.R., 2020 UT App 114, ¶ 37
(Harris, J., concurring), it requires a “nonspeculative allegation of
facts, not fully appearing in the record on appeal, which, if true,
could support a determination that counsel was ineffective. And
to support its contentions, the party must submit affidavits that
demonstrate both the deficient performance by counsel and the
resulting prejudice to the defendant,” State v. Griffin, 2015 UT 18,
¶ 17, 441 P.3d 1166 (quotation simplified); cf. In re C.M.R., 2020 UT
App 114, ¶ 31 (stating that the mother “attached extra-record
evidence uncovered by [counsel] to her appellate brief” in support
of her request for remand on her ineffective assistance claim); In
re S.H., 2007 UT App 8, ¶ 15 (stating that the mother filed an
affidavit detailing evidence to support her ineffective assistance
claim). Mother has provided us with no affidavits or other extra-
record evidence indicating that her argument that counsel could
have obtained better evidence in support of her ADA claim is
anything but speculative. We therefore deny her request for
remand.
¶19 Moreover, we are not convinced that additional evidence
regarding Mother’s limitations would have altered the court’s
denial of her request for accommodation. As explained, Mother
was required to show that additional time or any other
accommodation would enable her to complete the objectives of
the reunification plan. See In re K.C., 2015 UT 92, ¶ 22, 362 P.3d
1248. Given Mother’s unwillingness to participate in services
during the four months when reunification services were
provided, it is unlikely Mother could show that she was capable
of making meaningful progress, regardless of any
accommodation she received. As our supreme court stated in In
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re K.C., “We cannot fault the juvenile court for concluding that any
further modifications would be unreasonable.” Id. ¶ 29.
CONCLUSION
¶20 We agree with the juvenile court that Mother was not a
qualified individual under the ADA because she did not identify
any reasonable accommodation that would have allowed her to
successfully participate in reunification services. Moreover, the
court did not have an affirmative obligation to explore potential
ADA accommodations that Mother had not requested. Finally,
because there is no record evidence indicating that counsel failed
to make arguments that would have allowed Mother to succeed
on her ADA claim, she cannot establish that she received
ineffective assistance of counsel. Accordingly, we affirm.
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