In re C.J. , 2017 UT App 126 ( 2017 )

2017 UT App 126THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF C.J.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
R.C.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20160223-CA
Filed July 28, 2017
Fifth District Juvenile Court, Cedar City Department
The Honorable Thomas M. Higbee
No. 1099672
Matthew D. Carling, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and JILL M. POHLMAN concurred.
TOOMEY, Judge:
¶1 C.J. (Child) lived with S.J. (Mother) and was occasionally
left in the care of R.C. (Father). When Child was eight months
old, the juvenile court ordered her removal from Mother due to
parental neglect. Father sought reunification with Child, but
ultimately the juvenile court terminated his parental rights. He
appeals that decision, challenging the sufficiency of the evidence
to support termination and arguing that one of our rules of
appellate procedure is unconstitutional. Because the evidence
supporting termination is substantial, and because the Utah
In re C.J.
Supreme Court has decided Father’s constitutional argument in
another case, we affirm.
BACKGROUND
¶2 Child was born premature and underweight and was in
Mother’s and maternal Grandmother’s care for approximately
the first five months of her life. Mother then left Grandmother’s
residence, and Child was thereafter cared for by Grandmother,
who occasionally left her in the care of Father. Several months
later, the Division of Child and Family Services (DCFS)
successfully petitioned for her removal from Mother’s custody
for neglect. The juvenile court considered placing Child with
Father, but it determined his situation was unsafe for Child
because Father lived with his father (Grandfather), who abused
substances “including oxycodone, oxymorphone, and
methamphetamine” while he was also using methadone. By May
2014, Child was in DCFS custody.
¶3 When DCFS first became involved with Child, she was
seven months old and weighed just ten pounds. She suffered
constipation as well as “severe reflux” that triggered vomiting
after she ate. She also was born with an ankle condition that
required her to use braces. Before being placed with her foster
parents, Child was diagnosed with “failure to thrive syndrome,”
which can be caused by parental neglect.
¶4 Eventually the juvenile court adjudicated Child neglected
by Mother and ordered reunification services for both parents. In
Father’s case, the services included a child and family plan
requiring him to: (1) undergo a psychological evaluation;
(2) complete parenting classes; (3) find stable housing; (4) obtain
stable employment; (5) remain drug and alcohol free; (6) develop
a plan to live independently from Grandfather; (7) form healthy
relationship boundaries with family; and (8) attend individual
therapy.
20160223-CA 2 2017 UT App 126In re C.J.
¶5 In May 2015, the juvenile court conducted a permanency
hearing and found that Child could not safely return to either
parent, reunification was unlikely to occur within ninety days,
neither parent had substantially complied with the respective
child and family plan, and it was not in Child’s best interests to
return to either parent. In Father’s case, the court focused on his
failure to find housing separate from Grandfather, even though
Father knew it was required by his plan, particularly because
Grandfather’s substance abuse issues remained unaddressed.
The court was also concerned about Father’s limited parenting
skills, even after months of services to help him improve them. It
changed Child’s permanency goal from reunification to
termination of each parent’s rights.
¶6 Mother voluntarily relinquished her rights, but Father
proceeded to trial. After trial and supplemental briefing, the
juvenile court issued Findings of Fact and Conclusions of Law in
support of its decision to terminate Father’s parental rights. It
determined that Child was “abused, neglected and dependent”
based on Mother’s conduct during Child’s early infancy, and as
to Father, that he was “dependent upon [Grandfather] to
provide housing and other needs”; he “appear[ed] to have
mental health issues”; at one time he lived with a girlfriend who
was “low-functioning” and who “inappropriately cared for
[Child] on more than one occasion”; he “live[d] in a home where
there is significant substance abuse” although his own drug tests
were “clean”; and while most of the fault lies with Mother, “the
actions and inactions of the Father constitute[d] neglect of
[Child].”1
1. The juvenile court detailed its determination that Father
neglected Child:
During this important formative time in the Child’s
life the Father essentially went about his life with
little discernable effort to meet the needs and
(continued…)
20160223-CA 3 2017 UT App 126In re C.J.
¶7 The court catalogued the mixed success of reunification
efforts. It noted that the plan to address Father’s “parental
deficiencies[2] consisted of parent training, remaining drug and
alcohol free, psychological and parental fitness evaluations,
individual therapy if recommended, and stable housing and
employment independent of [Grandfather].” It individually
addressed these subjects, finding that (1) Father “was still
unsteady in his parenting skills, but did improve”; (2) the
psychological evaluation “was ultimately determined to be
invalid”; (3) Father was “way late getting into individual
therapy,” and once he began participating, “he did not do so to
the point sufficient to identify and remedy [his] psychological,
relationship and parenting flaws”; (4) Father “complied with the
requirements of the service plan as it relates to his drug use”;
(5) Father “improved his employment,” which although it was
inadequate to support himself and Child, was “certainly an
improvement and is one sure sign of Father’s commitment to his
family obligations”; and (6) Father’s regular visits with Child
(…continued)
protect the safety of his child. He testified that
Mother and [Grandmother] made his involvement
difficult. And he did provide some care in the
months immediately before removal. But overall,
because of the actions and omissions of the parents,
the Child’s life was chaotic and her needs were not
being adequately met. . . . [T]he Child still suffers
the effects of this abuse and neglect.
2. The court explained, “The Father’s parenting problems at the
inception of the reunification case were: immaturity, lack of
parental skill, lack of parental instincts, relationships, including
both female relationships and relationship with [Grandfather],
boundaries with family, mental health and independent stable
housing and stable employment.”
20160223-CA 4 2017 UT App 126In re C.J.
were “generally appropriate,” and they have a “stable
relationship.”
¶8 The court extensively addressed the issues surrounding
Grandfather:
Father still lives with [Grandfather]. The court has
mixed feelings about this. On the one hand, while
parental independence is often significant, it is
certainly not a litmus test for keeping parental
rights. Father’s reasons for staying with
[Grandfather] are noble. [Grandfather] has health
and medication management issues and Father
wants to help.
On the other hand, living with [Grandfather]
creates significant issues. [Grandfather] is not safe
as a care giver and family support provider for the
Child. The Child could not safely be placed with
him at the beginning of the case. Grandfather has a
drug problem. He tested positive for
methamphetamine which he tried unsuccessfully
to explain away. He has a prescription medication
problem. He never took accountability or obtained
treatment. He’s never meaningfully addressed his
addiction issues, which appear to be significant
involving both pain medications and
methamphetamine. Grandfather also has lifestyle
issues. Near the end of the reunification period,
Father, of his own choice, became the primary care
giver for [G]randfather. This goes the opposite
direction from that outlined in the service plan.
Instead of achieving independence Father has
cemented the enmeshment. So this Child would be
raised in that environment. Significantly, Father
will rely extensively on [G]randfather to tend the
Child when Father is at work and to transport both
20160223-CA 5 2017 UT App 126In re C.J.
Father and the Child. This Father has no driver[]
license, no car, and relies on [Grandfather] or
others in getting place to place. Of necessity, then,
the same reliance would have to be placed on
others for the transportation of the Child. It would
be rare indeed for this court to leave a child in a
generationally unstable home with unaddressed
methamphetamine and pain management issues.
It added that even though well-intentioned, “[F]ather simply
does not have the current skill, ability or aptitude to provide the
level of care required by [Child].”
¶9 With respect to Child, the juvenile court noted her
improvement since she was placed in foster care, but also noted
that “[s]he still has extraordinary needs.” “There are still
developmental issues, feeding and reflux issues, and the ankle
issues that will just have to be addressed over time. . . . And if
the first two years of this Child’s life are any indication, there
will be other issues [that] arise as the Child grows.” Meeting
those needs will require “exceptional parenting skills,” and
“[o]ngoing care, encouragement, teaching and correction will
have to be consistent and reliable.”
¶10 The court’s assessment of the foster family was favorable.
They were “exceptional”; “skilled, attentive, consistent and
committed”; and “have demonstrated their ability to properly
raise this Child in every way.” Child’s needs were “best met by
the foster parents,” and although Father had “made a
respectable effort to adjust his circumstances, conduct and
conditions, [he] ha[d] not done so to a degree sufficient to make
it in the Child’s best interest” to return to him. Moreover, Child
had “become integrated into the foster family to the extent that
her familial identity is indeed with that family.” Although Child
had emotional ties with Father, as well as her foster family,
“[t]he foster family ha[d] significantly greater capacity and
20160223-CA 6 2017 UT App 126In re C.J.
disposition to give the [C]hild love, affection and guidance and
to continue the education of the Child than does [Father].”
¶11 The court ultimately found that Father was unfit, “failed
at parental adjustment,” and had “substantially neglected,
willfully refused, or been unable or unwilling to remedy the
circumstances which cause[d] the Child to be in an out of home
placement. There [was] a substantial likelihood that the Father
[would] not be capable of exercising proper and effective
parental care in the near future.” It found that “[t]ermination of
parental rights is strictly necessary.”
¶12 The juvenile court was troubled by the termination
decision3 and had previously requested supplemental briefing
from the attorneys in addition to engaging in its own research on
the matter of its discretion in termination cases. Ultimately,
though, it proceeded with termination and concluded the State
had proven Father’s neglect, unfitness, lack of parenting skills,
and failure of parental adjustment. It also found that termination
would be in Child’s best interests. It concluded, “In reality, . . .
there is no way the court could return [Child] to [Father] because
of the risks in the existing home. With that option eliminated,
and the court arguably precluded by statute from granting
additional reunification services, termination of parental rights
became the only realistic viable option.”
ISSUES AND STANDARD OF REVIEW
¶13 Father contends the evidence was insufficient to support
the juvenile court’s decision to terminate his parental rights.
“When a challenge to the sufficiency of the evidence is raised,
3. The juvenile court noted, “This case gives the court
considerable pause,” because it “hesitates to take such dramatic
action for a relatively common form of neglect,” and “Father
showed considerable effort during the service plan.”
20160223-CA 7 2017 UT App 126In re C.J.
[w]e review the juvenile court’s factual findings based upon the
clearly erroneous standard.” In re J.C., 2016 UT App 10, ¶ 13, 366
P.3d 867 (alteration in original) (citation and internal quotation
marks omitted). To overturn the juvenile court’s decision, “[t]he
result must be against the clear weight of the evidence or leave
the appellate court with a firm and definite conviction that a
mistake has been made.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d
435 (alteration in original) (citation and internal quotation marks
omitted). “When a foundation for the juvenile court’s decision
exists in the evidence, an appellate court may not engage in a
reweighing of the evidence.” Id.¶14 Father also contends that Utah Rule of Appellate
Procedure 58 unconstitutionally deprives parents of their
meaningful right to appeal. Our supreme court has examined
and rejected this very contention in In re B.A.P., 2006 UT 68, 148
P.3d 934. Therefore, we follow In re B.A.P. and reject Father’s
contention here.4
4. Additionally, Father’s contention is moot on appeal. Rule 58(a)
of the Utah Rules of Appellate Procedure allows this court to
decide a case after reviewing the petition on appeal, or
alternatively allows this court to set the case for full briefing. In
child welfare proceedings, the petition on appeal may not exceed
fifteen pages. Utah R. App. P. 55(c). Father argues rule 58 is
unconstitutional because it allows this court to deny full briefing
to a party. Father further argues the fifteen page limit of the
petition makes it impossible for a party arguing insufficiency of
the evidence to meet the marshalling requirement, for “a party
who fails to identify and deal with supportive evidence will
never persuade an appellate court to reverse under the
deferential standard of review that applies to such issues.” State
v. Nielsen, 2014 UT 10, ¶ 40, 326 P.3d 645; see Utah R. App. P.
24(a). Father concedes that this issue is moot in his case because
he was granted full briefing on appeal. He argues we should
nevertheless address this issue under the public interest
(continued…)
20160223-CA 8 2017 UT App 126In re C.J.
ANALYSIS
¶15 Father contends there is insufficient evidence to terminate
his parental rights. A juvenile court must 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 a minimum threshold of
fitness,” see id.; Utah Code Ann. § 78A-6-507 (LexisNexis 2012)
(citation and internal quotation marks omitted), and “the finding
of any single ground [of parental unfitness under the statute] is
sufficient to warrant termination of parental rights,” see In re
R.D., 2013 UT App 127, ¶ 4, 302 P.3d 497 (per curiam). Second,
the court must find that the child’s best interests are served by
terminating parental rights. See In re R.A.J., 1999 UT App 329,
(…continued)
exception because it evades review—whenever this court grants
full briefing, the issue becomes moot. See Ellis v. Swensen, 2000
UT 101, ¶¶ 25–26, 16 P.3d 1233 (stating an appellate court will
consider a moot issue if it falls under the public interest
exception by affecting the public interest, being likely to recur,
and being capable of evading review). We decline to address this
issue under the public interest exception first because it is
capable of being reviewed by the Utah Supreme Court through a
petition for a writ of certiorari, and second because the Utah
Supreme Court has already decided rule 58 is constitutional. See
In re B.A.P., 2006 UT 68, ¶¶ 13, 20, 148 P.3d 934. In re B.A.P. was
decided under the more stringent marshalling requirements that
preceded Nielsen, but the supreme court still concluded rule 58
was constitutional. See id. (“If an appellant finds fifteen pages to
be inadequate, then wisdom dictates use of some of those pages
to persuade the court of appeals that full briefing is needed.
Otherwise, the page limit is just a matter of convenience and
uniformity; it has nothing to do with limiting the scope of the
appeal.”).
20160223-CA 9 2017 UT App 126In re C.J.
¶ 7; Utah Code Ann. § 78A-6-506(3). Father argues the evidence
was insufficient for the court to make these findings.
I. Sufficient Evidence Demonstrates Father Is an Unfit Parent.
¶16 In terminating Father’s parental rights, the juvenile court
concluded four different grounds justified the termination:
Father (1) neglected Child, in that “Father’s actions
demonstrated a ‘lack of proper parental care of a child by reason
of the faults or habits of the parent,’” (2) was unfit, (3) failed at
parental adjustment, and (4) failed to remedy the circumstances
which led to removal. See Utah Code Ann. § 78A-6-507(1)(b)–(e);
see also id. § 78A-6-105(27)(a)(ii) (LexisNexis Supp. 2016)
(defining neglect). One ground alone is sufficient for a juvenile
court to terminate parental rights, see id. § 78A-6-507(1), and
because we determine there was sufficient evidence that Father
was an unfit parent, we decline to analyze whether there was
sufficient evidence supporting the other grounds for
termination.
¶17 Father argues there is insufficient evidence demonstrating
he is an unfit parent. He asserts he has taken parenting classes,
enrolled in individual therapy, and found stable employment.
Father acknowledges he was required to secure stable housing
but argues his residence with Grandfather is “safe and stable,”
and there was no evidence presented that Grandfather was unfit
to help care for Child. Father also acknowledges his
psychological evaluation was invalid, which delayed his
enrollment in therapy, but he alleges the delay “was no fault” of
his own.
¶18 The Utah Code lists several conditions a juvenile court
“shall consider” when determining “whether a parent or parents
are unfit,” though the court is not limited to considering the
listed conditions. Utah Code Ann. § 78A-6-508(2) (LexisNexis
Supp. 2016). Among these conditions are (1) “emotional illness,
mental illness, or mental deficiency of the parent that renders the
parent unable to care for the immediate and continuing physical
20160223-CA 10 2017 UT App 126In re C.J.
or emotional needs of the child for extended periods of time”
and (2) “repeated or continuous failure to provide the child with
adequate food, clothing, shelter, education, or other care
necessary for the child’s physical, mental, and emotional health
and development by a parent or parents who are capable of
providing that care.” Id. § 78A-6-508(2)(a), (d).
¶19 The juvenile court carefully considered the evidence and
gave “three primary reasons” for its decision that Father was
unfit: (1) “Father is unable to provide a proper home for the
Child,” (2) “Father failed to address his mental health issues,”
and (3) “Father’s parenting skills are simply not sufficient to
meet the high needs of this Child.” The juvenile court’s decision
was based on substantial evidence.
¶20 First, the court determined that Father was unable to
provide a proper home for Child. Father’s child and family plan
required him to find stable housing and develop a plan to live
independently from Grandfather. But despite this requirement,
the court determined Father “still lives with [Grandfather]” and
this “creates significant issues.” Grandfather’s substance abuse
issues were the main reason for Child’s removal from Father’s
care. Father’s willingness to care for Grandfather is honorable,
but his choice to continue to live with Grandfather prevents
Father from providing a safe environment for Child. Father
argues that he bought a lockbox for Grandfather’s medication
and that his residence with Grandfather is “safe and stable.” But
Grandfather’s “significant substance abuse” involves
methamphetamine and other drugs, and he never “took
accountability or obtained treatment.” These issues are
unresolved, and Father indicated Grandfather would assist with
Child’s care. We agree with the juvenile court that placing Child
in Father’s care was not a viable option while Father continued
to reside with Grandfather. See id. § 78A-6-508(2)(d).
¶21 Next, the court determined Father “failed to address his
mental health issues,” primarily because his psychological
evaluation was invalid, which caused delays in identifying and
20160223-CA 11 2017 UT App 126In re C.J.
addressing Father’s mental health needs. In addition to this,
“because of Father’s procrastination, he was way late in getting
into individual therapy.” Father argues that this was not his
fault, but regardless of the problems with the evaluation, there
was nothing that prevented him from enrolling in individual
therapy. Ultimately, he did enroll and participate in some
sessions, but it was insufficient to “identify and remedy” his
“psychological, relationship, and parenting flaws,” and Father’s
mental health issues rendered him “unable to care for the
immediate and continuing physical or emotional needs of”
Child. See id. § 78A-6-508(2)(a).
¶22 Finally, the court determined “Father’s parenting skills
are simply not sufficient to meet the high needs of this Child.”5
The court noted the progress Father had made with his
parenting skills—Father enrolled in classes, “[h]e listened and
tried to do the things he was taught,” and his skills improved.
But the court recognized Child had “extraordinary needs”
including “severe reflux issues, ear infections, motor skill and
developmental issues, feeding issues, and issues with her
ankles.” While the court was sympathetic with Father, and noted
he had made significant efforts to improve his parenting ability,
Father was still unable to care for Child and her substantial
needs. Father had to be retaught basic skills during each visit
with Child, and even then, continued to be uncomfortable
changing Child’s diaper. Father does not have the ability to
provide the “care necessary for [Child’s] physical, mental, and
emotional health and development.” See id. § 78A-6-508(2)(d).
We agree with the juvenile court that Father’s lack of parenting
skills “may not be enough by itself” to terminate parental rights,
5. The standard of parental fitness may vary depending on the
needs of the child. See In re Anjoski, 770 N.W.2d 1, 14 (Mich. Ct.
App. 2009) (stating that when determining parental fitness, “the
inquiry must focus on a parent’s abilities relative to the child’s
needs”).
20160223-CA 12 2017 UT App 126In re C.J.
but together “with the lack of a proper home and failure to
address the mental health concerns[,] this constitutes unfitness.”
¶23 Father has made consistent efforts to improve, but
substantial evidence demonstrates the lack of a proper home for
Child, Father’s failure to adequately address his mental health
issues, and his inability to care for Child’s special needs. We
conclude the juvenile court had sufficient evidence to determine
Father was an unfit parent.
II. Sufficient Evidence Demonstrates Termination Is in Child’s
Best Interests.
¶24 Next, Father contends the court determined without
sufficient evidence “that it was not in the best interests of the
Child to be returned to Father.” Father has not adequately
briefed this contention; the issue is mentioned once in the
briefing and never elaborated on or otherwise analyzed. See
Utah R. App. P. 24(a)(9) (requiring an appellant’s brief to
“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”); State v.
Thomas, 961 P.2d 299, 304 (Utah 1998) (“It is well established that
a reviewing court will not address arguments that are not
adequately briefed.”).
¶25 In any event, there was sufficient evidence to support the
finding that termination was in Child’s best interests. Though
Father had a strong bond with her and attempted to improve his
situation and skills, at the time of the termination trial, Father’s
parenting skills were not sufficient to meet Child’s basic and
significant needs. Father still lived with Grandfather, whose
substance abuse was the primary reason Child could not be
placed in Father’s care. In contrast, Child’s foster parents
demonstrated their ability to care for her substantial needs, and
have been giving her feeding therapy to help with her reflux
issues, physical therapy for her ankle problems, and therapy to
develop her motor skills. Child has improved dramatically
20160223-CA 13 2017 UT App 126In re C.J.
under their care, and they have the skills necessary to continue
to meet her needs. In addition, the foster parents testified they
love Child and wish to adopt her. This evidence sufficiently
supports the juvenile court’s finding that termination was in
Child’s best interests. See In re F.B., 2012 UT App 36, ¶¶ 5–7, 271
P.3d 824 (per curiam) (considering several factors when
determining that termination was in the children’s best interests,
including time resided with the foster parents, integration into
the foster family, the foster parents’ ability to respond to the
children’s needs, the children’s need for permanency, and the
mother’s history of problematic behavior).
CONCLUSION
¶26 We conclude there was sufficient evidence for the juvenile
court to terminate Father’s parental rights and accordingly
affirm the judgment of the juvenile court.
20160223-CA 14 2017 UT App 126