State v. State

437 P.3d 640

STATE of Utah, IN the INTEREST OF A.W. and A.W., Persons Under Eighteen Years of Age.

A.W., Appellant,

v.State of Utah, Appellee.

No. 20180150-CA

Court of Appeals of Utah.

Filed November 23, 2018

Scott N. Weight, Attorney for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Salt Lake City, Attorneys for Appellee

Martha Pierce, Salt Lake City, Guardian ad Litem

Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

Opinion

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, the State filed criminal charges against Father and DCFS 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.¹

¶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.

BACKGROUND

¶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.

¶5 Following the children’s removal from Mother and Father’s care, child welfare proceedings were commenced in juvenile court. The juvenile court found an immediate risk of harm to Child and her younger sister and concluded that "removal was appropriate and necessary and continuing removal from [Mother and Father was] appropriate." The court ordered temporary custody of Child and her younger sister to DCFS. Due to the sexual abuse allegation, Father was prohibited from visitation with his children outside of therapy sessions.

¶6 Father admitted that he remembered touching his daughter sexually after taking two sleeping pills, but he maintained that he did not recall performing oral sex on her. Based on Child’s report and Father’s admission, the court found that Child was abused and that there was a presumption against reunification. Despite the presumption against reunification, the court followed DCFS’s recommendation and ordered that Father participate in reunification services and undergo testing to determine his treatment needs. The court also set the primary goal for Child and her younger sister as returning to their parents’ care. To accomplish this goal, the court ordered that DCFS develop a child and family plan that stated the duties of the parties in working toward reunification and permanency. At a hearing in May 2016, at which Father was present with counsel, the juvenile court received a completed plan from DCFS, reviewed the plan with the parties, and ordered Father and Mother to comply with it.

¶7 At the same hearing, the court found that DCFS "had made reasonable efforts to finalize the child and family plan and move the children toward permanency, and services offered by the Division have been reasonable." Father did not object to the court’s findings. The order also adopted the child and family plan, ordered compliance with it, and directed Father to complete a parental fitness and psycho-sexual evaluation and comply with any evaluation recommendations. In addition, the court entered an order stating that, should it determine in the future that reunification was against the best interests of the children or that the parents had failed to meet the objectives of the child and family plan, adoption would become the children’s new permanency goal.

¶8 In June 2016, DCFS successfully moved for a court order granting temporary guardianship of Child and her younger sister to their maternal grandparents. In August 2016, DCFS submitted a progress report to the juvenile court acknowledging that Father had completed substance abuse and psycho-sexual evaluations and requesting that the child and family plan adopt the recommendations from both treatment evaluations. During a hearing at which both Mother and Father were present, the court ordered that the child and family plan be amended in accordance with DCFS’s request and made a finding that DCFS had made reasonable efforts to "finalize the child[ren’s] service plan and its permanency goal." Father did not object. The updated child and family plan ordered Father to complete a domestic violence assessment, update DCFS about his substance abuse treatment and testing, provide updates to DCFS and the juvenile court about his ongoing criminal case regarding Child’s sexual abuse, and complete services recommended in his psycho-sexual and substance abuse evaluations.

¶9 Father’s substance abuse evaluation recommended that he participate in outpatient treatment, abstain from the use of alcohol and drugs, and attend a recovery skills group. Father’s psycho-sexual evaluation recommended further treatment to address Father’s sexual abuse of Child. The evaluator specifically recommended that Father complete his outpatient substance abuse treatment program, "begin addressing the actual incident of sexually inappropriate behavior," and submit to random drug testing. The evaluation also stated that the evaluator should be informed if Father was eventually convicted of a sex crime so that he could update his recommendations.

¶10 At a hearing in November 2016, the juvenile court reviewed Father’s evaluation with Father and his counsel and ordered that Father "complete therapy for sexual appropriateness." Father’s attorney requested that the court enter the order for Father to complete the therapy "so that [Father could] get started on [it] right away."

¶11 Additionally, the juvenile court ordered that Father submit to random drug testing at least eight times per month. In March 2017, DCFS requested and the court ordered that Father’s testing be increased to two or three times per week. Following a hearing held the same month, the court expressed concern in a written order about "[F]ather’s [urine analysis] compliance issues." Thereafter, the juvenile court terminated all other reunification services but ordered Father to continue drug and alcohol testing.

¶12 In April 2017, DCFS petitioned for termination of Father’s parental rights, alleging that he had "failed to remedy the circumstances that caused the [c]hildren to be removed from his care." Specifically, DCFS alleged that Father’s criminal charges had not been resolved, leaving his ability to provide care and stability for his children in question; his compliance with drug testing was "inconsistent"; he had failed to release information about his progress in therapy and domestic violence treatment to DCFS; and he had not obtained independent housing. The petition also stated that Child and her younger sister had "thrived in the care of their grandparents." As a result, DCFS contended that it was "strictly necessary and in the best interests of the children" to terminate Father’s parental rights.

¶13 Before the trial on termination of Father’s parental rights, Father pled guilty to child abuse recklessly causing serious physical injury, a third degree felony. The district court placed Father on probation, the terms of which included Group A sex offender conditions.² As a result, his psycho-sexual evaluator provided an addendum to his original evaluation, modifying Father’s treatment recommendations. In the addendum, the evaluator recommended that Father participate in individual therapy, group therapy with other sexual offenders, and a psycho-sexual skills course. The stated goal of these treatment recommendations was to help Father "establish[ ] more functional interpersonal relationships, acknowledg[e] ... his responsibility regarding his sexual acting out, and control[ ] his sexual impulses." Father filed a motion in limine to exclude evidence of the evaluator’s modified recommendations from the termination trial as irrelevant and unduly prejudicial. The court granted Father’s motion in part, but ruled that it would consider the modifications to the extent they affected its determination of the children’s best interests.

¶14 At Father’s termination trial in September and October 2017, the State presented testimony from Child’s therapist, Father’s psycho-sexual evaluator, Child’s maternal grandmother, and the DCFS permanency worker assigned to Father’s case. Child’s therapist testified that he had witnessed "nothing but positive interactions" between Child and her maternal grandparents and that he never recommended that Child and Father’s interactions be expanded beyond supervised therapy-based visitation.

¶15 Father’s psycho-sexual evaluator testified that he had reinterpreted the results of Father’s initial tests after he was notified that Father pled guilty to the criminal charges that...