State v. State

HAGEN, Judge

Opinion Fourth District Juvenile Court, American Fork Department
The Honorable Suchada P. Bazzelle
No. 1127762 Scott N. Weight, Attorney for Appellant Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee Martha Pierce, Guardian ad Litem JUDGE DIANA HAGEN authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred. HAGEN, Judge: ¶1 The Utah Division of Child and Family Services (DCFS) removed Child and her younger sister from their parent's home following a domestic violence incident and reports of sexual abuse perpetrated by the appellant, their father (Father). After an investigation, DCFS filed criminal charges against Father and filed a child welfare petition in juvenile court. The juvenile court found that Father had sexually abused Child but nonetheless ordered reunification services on the recommendation of DCFS. Two years later, the court terminated Father's parental rights to Child and her younger sister, basing its decision on Father's unfitness and failure of parental adjustment. It also concluded that termination was in the children's best interests. ¶2 Father argues that the juvenile court erred in terminating his parental rights for various reasons. First, Father contends that the court violated his due process rights by delaying reunification services while his criminal charges were still pending and by considering facts not in evidence when deciding to terminate his parental rights. Because Father failed to preserve these arguments below, we decline to consider their merits. ¶3 Next, Father argues that the court erred in determining that DCFS made reasonable efforts to provide him with reunification services and in finding that he was an unfit or incompetent parent. Father has failed to demonstrate that either of these determinations was against the clear weight of the evidence. Accordingly, we affirm.

¶4 In March 2016, Child reported to an extended family member that Father had performed oral sex on her when she was eight years old. Child also disclosed that her mother (Mother) told her to keep it a secret. After Child's statement was reported to the police, DCFS immediately removed Child and her younger sister from Mother and Father's care. The State also filed criminal charges against Father based on Child's report. ingested the substances and cannot be excused from his misconduct." The juvenile court also explained that while it would not consider the psycho-sexual evaluator's modified recommendations in determining whether Father had complied with treatment recommendations, it would consider them to the extent that they showed "what treatment [was] needed to fully rehabilitate [Father]." ¶20 Finally, after concluding that "DCFS made reasonable efforts toward [Father] to pursue a goal of reunification" and that Father "was given ample information, support[,] and communication from DCFS to achieve the objectives of the Child and Family Plan," the court terminated Father's parental rights and awarded temporary guardianship and custody to the children's maternal grandparents, pending adoption. ¶21 Father appeals.

¶22 Father argues that the juvenile court committed four errors in terminating his parental rights. First, Father contends that the juvenile court erred by failing to maintain the the juvenile court's factual findings based upon the clearly erroneous standard." In re B.C., 2018 UT App 125, ¶ 2, 428 P.3d 18 (per curiam) (quotation simplified).

¶25 Father's first two claims of error—that the juvenile court improperly delayed his case pending the resolution of the criminal charges against him and that it improperly considered evidence outside of the record—fail for lack of preservation. "Under our adversarial system, the parties have the duty to identify legal issues and bring arguments before an impartial tribunal[.]" State v. Johnson, 2017 UT 76, ¶ 14, 416 P.3d 443. "When a party fails to raise and argue an issue in the [court below], it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation." Id. ¶ 15. Furthermore, even if a legal argument was adequately preserved in the court below or an exception to preservation applies, a party must provide a "citation to the record showing that the issue was preserved for review[] or a statement of grounds for seeking review of an issue not preserved." Utah R. App. P. 24(a)(5)(B). ¶26 Here, Father raises his constitutional claims for the first time on appeal and makes no argument that an exception to preservation applies. In fact, Father argued in his opening brief that his constitutional claims "were not required to be preserved." To the contrary, it is well established that Utah appellate courts will not review unpreserved constitutional claims unless an exception to the preservation rule applies. See, e.g., Kell v. State, 2012 UT 25, ¶ 36, 285 P.3d 1133 (declining to consider constitutional arguments on appeal where they had not been preserved and the defendant had not demonstrated that an exception to the preservation rule applied); Donjuan v. McDermott, 2011 UT 72, ¶ 4, 266 P.3d 839 (declining to consider a father's constitutional claims in a child custody dispute because "he failed to preserve them in the district court"). ¶27 Accordingly, we decline to address Father's due process claims.

¶28 Father next claims that the juvenile court's finding that DCFS made reasonable efforts to provide him with reunification services "is against the clear weight of the evidence." Specifically, Father argues that DCFS failed to provide his psycho-sexual evaluator with information that would have impacted the evaluator's recommendations. As a result, he contends that he was afforded an inadequate opportunity to comply with the recommendations in the addendum to his psycho-sexual evaluation and that DCFS deprived him of "reasonable visitation" with his daughters. We reject these arguments and affirm the juvenile court's finding that DCFS made reasonable efforts to provide Father with reunification services. ¶29 When reunification services are ordered, the juvenile court must find that DCFS made "reasonable efforts" to provide requested that DCFS speak with Child's therapist about additional visitation after termination of reunification services, Father has not shown where the record supports his contention that DCFS did not make reasonable efforts to do so. ¶34 In sum, Father has failed to identify anywhere in the record that shows DCFS failed to make reasonable efforts to provide him with reunification services and, accordingly, we affirm the juvenile court's findings.

¶35 Finally, Father contends that the grounds cited by the juvenile court in terminating his parental rights are against the clear weight of the evidence. Under Utah Code section 78A-6-507, a court may terminate parental rights on the basis of any one of the grounds listed therein. Utah Code Ann. § 78A-6-507(1) (LexisNexis 2012). Among other things, "[a] juvenile court may terminate parental rights if the court finds that a parent has either abandoned a child, neglected a child, or is an unfit or incompetent parent." In re B.O., 2011 UT App 215, ¶ 2, 262 P.3d 46 (per curiam). "[W]hen a foundation for [such findings] exists in the evidence," we do not "engage in a reweighing of the evidence." In re B.C., 2018 UT App 125, ¶ 2, 428 P.3d 18 (per curiam) (quotation simplified). ¶36 The juvenile court terminated Father's parental rights on two bases—that Father is an unfit or incompetent parent and defense of his sexually abusive actions was that he was under the influence of alcohol and drugs at the time he committed the abuse such that he did not remember doing so. Despite this, the juvenile court found that Father willfully failed to comply with the court's drug and alcohol testing order and that he admitted to drinking while his juvenile court case was pending. ¶39 Overall, the record supports the district court's finding that Father's behavior demonstrated a "remarkably passive attitude toward his reunification services." Not only did Father fail to comply with the court's order for drug and alcohol testing and order for individual sex abuse therapy, but Father also delayed participating in other services until just before his termination trial. For example, the court ordered Father to receive and comply with a domestic violence evaluation in early 2016. Father did not begin domestic violence treatment until nearly a year later and did not complete it until a few weeks before his termination trial. The record shows that Father had many opportunities to meaningfully participate in reunification services and demonstrate his fitness and successful parental adjustment from the outset of the juvenile court proceedings but failed to do so. As such, the evidence supports a finding that Father was an unfit parent because he sexually abused Child and because he failed to adequately remedy the circumstances that led to that abuse.

¶40 Because Father failed to preserve his claim that the juvenile court violated his due process rights and has not demonstrated that an exception to the preservation rule applies, we decline to address his constitutional arguments. We reject Father's other arguments and affirm the juvenile court's determinations that DCFS made reasonable efforts to provide reunification services and that Father's sexual abuse of Child 18 and failure to comply with court orders were grounds for termination of his parental rights.