In re A.W. , 2018 UT App 217 ( 2018 )

2018 UT App 217THE UTAH COURT OF APPEALS
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.
Opinion
No. 20180150-CA
Filed November 23, 2018
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, 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
In re A.W.
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.
1. Father does not challenge the juvenile court’s ultimate
determination that the termination of his parental rights was in
the children’s best interests.
20180150-CA 2 2018 UT App 217In re A.W.
¶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
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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.
20180150-CA 4 2018 UT App 217In re A.W.
¶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
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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
2. Group A conditions include requirements that an individual
“[e]nter into, participate, and successfully complete sex offender
therapy as determined by the treating facility and therapists as
determined by [the Utah Department of Corrections,] [h]ave no
direct or indirect contact with victim(s) or victim’s family
without prior written approval of the board of pardons and
parole[, and] . . . [h]ave no contact or association with children
under age 18 years, residing at home, without prior written
approval of Adult Probation and Parole.” See Utah Dep’t of
Corrections, Sex Offender Group A Conditions,
https://corrections.utah.gov/images/groupaconditions.pdf.
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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 arose
out of Father’s sexual abuse of Child. The evaluator explained
that, because some of his results “came up defensive,” which
may have indicated that Father had been dishonest, Father’s
admission that he had sexually abused Child gave additional
meaning to Father’s test results.
¶16 The DCFS permanency worker testified that since March
2016 Father had participated in only two individual counseling
sessions to address his sexual abuse of Child. The permanency
worker further testified that Father had not provided any proof
that he engaged in individual therapy sessions to address
“sexual appropriateness” as ordered by the court in the
November 2016 hearing. When she called the counseling service
to obtain the records for DCFS, it confirmed that Father had
attended only two individual sessions. In addition, she
explained that DCFS was notified the day before trial that Father
had only completed his domestic violence training a few weeks
before the termination trial.
¶17 Father testified on his own behalf and presented the
testimony of his mother, sister, and substance abuse counselor.
Father testified that he completed substance abuse counseling
and domestic violence treatment, but he admitted that he did not
complete therapy sessions to specifically address his sexual
abuse of Child. Father also recalled attending four domestic
violence counseling sessions between April and August 2016
and attending only one additional individual treatment session,
despite recommendations that he attend more. Father once again
20180150-CA 7 2018 UT App 217In re A.W.
admitted to sexually abusing Child. Nevertheless, he maintained
that it “wasn’t an intentional” act of abuse, because he had been
under the influence of alcohol and prescription drugs at the
time. Father testified that he addressed his sexual abuse of Child
in his four sessions with a domestic violence counselor and that
he felt he had taken accountability for the abuse. He further
admitted at trial that he had missed drug tests on multiple
occasions because he had remembered to call the testing center
too late in the day and that he had simply stopped calling in
September 2017, despite a court order to continue testing. In
addition, Father admitted that he had consumed alcohol “a
couple of times” since his juvenile court case was opened.
¶18 At the conclusion of the termination trial, the juvenile
court determined that Father was “an unfit or incompetent
parent.” In support of this determination, the court found that
Father’s delay in participating in domestic violence treatment
“left insufficient time for him to demonstrate that he ha[d]
internalized and implemented the treatment and met the
objective of the Child and Family Plan,” that Father’s
“compliance with court-ordered [drug and alcohol] testing was
inconsistent,” that Father “willfully decided not to comply” with
his testing obligations, and that Father participated “in one
individual counseling session to address his sexual abuse of
[Child].”
¶19 In addition, the court found that Father’s extensive
defense at trial of “his lack of progress in treating the sexual
abuse issue” was “without merit.” Specifically, the court rejected
Father’s assertions that he had complied with each of the court’s
treatment orders and that his substance abuse and domestic
violence treatment adequately addressed his sexual abuse of
Child. The court remained unconvinced, in the absence of expert
testimony, that Father’s consumption of drugs and alcohol was
the sole cause of Child’s sexual abuse. But assuming it was, the
court reasoned that Father was “solely responsible for having
20180150-CA 8 2018 UT App 217In re A.W.
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, 3 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. 4
¶21 Father appeals.
ISSUES AND STANDARDS OF REVIEW
¶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
3. Because Father did not receive the addendum until after
reunification services had been terminated, the juvenile court
did not consider the addendum “in its analysis of the grounds of
failure of parental adjustment and/or compliance with the Child
and Family Plan.”
4. In the same order terminating Father’s parental rights, the
juvenile court also accepted and entered Mother’s voluntary
relinquishment of parental rights, which Mother executed in a
hearing before Father’s termination trial.
20180150-CA 9 2018 UT App 217In re A.W.
independence of the juvenile court proceedings from the
concurrent criminal court proceedings and by making
reunification contingent on resolution of the criminal charges.
Next, Father contends that the juvenile court erred when it
independently investigated the facts and relied on that evidence
in its order terminating parental rights. With both contentions,
Father essentially argues that the juvenile court violated his due
process rights. See In re J.B., 2002 UT App 268, ¶ 8, 53 P.3d 968(holding that a juvenile court’s reliance on facts that the father
never had an opportunity to challenge violated due process); In
re S.A., 2001 UT App 308, ¶ 21, 37 P.3d 1172 (holding that “due
process rights are not violated by multiple or simultaneous
proceedings” but “a criminal prosecution is a completely
independent proceeding” from a child welfare case (quotation
simplified)). “Constitutional issues, including due process, are
questions of law which we review for correctness.” In re adoption
of S.L.F., 2001 UT App 183, ¶ 9, 27 P.3d 583 (quotation
simplified).
¶23 Father’s third contention is that the evidence did not
support the juvenile court’s finding that DCFS had made
reasonable efforts to provide him with reunification services.
Juvenile courts are afforded “wide latitude of discretion as to the
judgments [they] arrive[] at.” In re K.F., 2009 UT 4, ¶ 18, 201 P.3d
985 (quotation simplified). As such, “[w]e apply a clearly
erroneous standard in determining whether the juvenile court’s
findings are based upon sufficient evidence.” Id. “A finding of
fact is clearly erroneous only when, in light of the evidence
supporting the finding, it is against the clear weight of the
evidence.” In re K.K., 2017 UT App 58, ¶ 2, 397 P.3d 745 (per
curiam).
¶24 Finally, Father contends that the juvenile court’s grounds
for terminating his parental rights were against the clear weight
of the evidence. When considering whether to overturn a
juvenile court’s decision to terminate parental rights, “we review
20180150-CA 10 2018 UT App 217In re A.W.
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).
ANALYSIS
I. Father’s Due Process Claims
¶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.”5 To the contrary, it is well established that Utah
5. In making the argument that these issues need not be
preserved for appellate review, Father cites rule 52(a)(3) of the
Utah Rules of Civil Procedure but provides no further
(continued…)
20180150-CA 11 2018 UT App 217In re A.W.
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.
II. “Reasonable Efforts” Finding
¶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
(…continued)
explanation of how rule 52 operates to nullify our longstanding
rule that questions of constitutional law must be preserved.
20180150-CA 12 2018 UT App 217In re A.W.
such services before terminating parental rights. Utah Code Ann.
§ 78A-6-507(3)(a) (LexisNexis Supp. 2018). “Reasonableness is an
objective standard that depends upon a careful consideration of
the facts of each individual case.” In re K.K., 2017 UT App 58, ¶ 5,
397 P.3d 745 (per curiam) (quotation simplified). In determining
whether DCFS has made reasonable efforts at reunification, we
afford the juvenile court “broad discretion,” In re A.R., 2017 UT
App 153, ¶ 47, 402 P.3d 206 (quotation simplified), because of
“the court’s opportunity to judge credibility firsthand . . . [and]
the juvenile court judges’ special training, experience and
interest in this field.” In re K.K., 2017 UT App 58, ¶ 2 (quotation
simplified). Generally, as long as DCFS has made “a fair and
serious attempt to reunify a parent with a child prior to seeking
to terminate parental rights,” the division has complied with its
statutory obligation. Id. ¶ 5 (quotation simplified).
¶30 Here, without acknowledging that the juvenile court
ordered reunification services in a case in which there was a
statutory presumption against doing so, see Utah Code Ann.
§ 78A-6-312(4)(LexisNexis 2012), Father fails to identify any facts
in the record that suggest DCFS did not make reasonable efforts
to provide him with reunification services. 6 The record shows
that DCFS timely facilitated counseling for Father and Child,
developed a child and family plan that the court adopted in an
order, and referred Father to substance abuse and psycho-sexual
evaluators. DCFS also supervised Father’s progress throughout
the proceedings and monitored the children’s welfare.
¶31 Father also ignores the several times in the record in
which the juvenile court made an unchallenged periodic
6. Father provides only two citations to the record to support his
argument on this point. Instead of providing citations, he has
cobbled together an argument from bare assertions of fact and
unidentified quotations from various court orders.
20180150-CA 13 2018 UT App 217In re A.W.
finding—before its termination order—that DCFS had made
reasonable efforts to provide him with reunification services.
Rather, to support his argument, Father makes unsupported
assertions that DCFS deprived him of an opportunity to comply
with the recommendations in the psycho-sexual evaluation
addendum and that, as a result, he could not visit with Child
outside of therapy. As to the psycho-sexual evaluation
addendum, Father has pointed to no evidence in the record that
suggests the addendum was not made available to Father as
soon as possible. The evaluator testified that he made changes to
his recommendations immediately after DCFS notified him of
Father’s criminal conviction, which prompted the modifications.
¶32 Furthermore, although Father accurately asserts that the
addendum was not provided to him until after reunification
services were terminated, he fails to show how he was
prejudiced by this timing. The juvenile court did not consider the
addendum to the evaluation in determining that Father had
failed to participate in reunification services and comply with
previous treatment recommendations. As Father acknowledges,
the court considered the addendum only to determine “what
[was] needed to fully rehabilitate [Father] in light of his criminal
conviction” for the purpose of deciding what was in the
children’s best interests going forward.
¶33 As to Father’s argument that DCFS failed to provide him
with reasonable visitation, both Child’s therapist and the DCFS
permanency worker testified at trial that visitation was
dependent on what Child and her treatment providers decided
was in her best interest. From the outset of his juvenile court
case, Father’s visitation with Child was limited due to his
admitted sexual abuse of Child. 7 And although the juvenile court
7. Notably, Utah Code section 78A-6-312 provides that “[i]n
cases where obvious sexual abuse… [is] involved” neither DCFS
(continued…)
20180150-CA 14 2018 UT App 217In re A.W.
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.
III. Grounds for Termination
¶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
(…continued)
nor a juvenile court “has any duty to make ‘reasonable efforts’ or
to, in any other way, attempt to provide reunification services.”
Utah Code Ann. § 78A-6-312(4) (LexisNexis Supp. 2018). And
under subsection (3), visitation is included in the definition of
reunification services. Id. § 78A-6-312(3).
20180150-CA 15 2018 UT App 217In re A.W.
that Father demonstrated a failure of parental adjustment. See
Utah Code Ann. § 78A-6-507(1). “So long as sufficient evidence
existed to support at least one of the grounds found by the court,
the termination of Father’s parental rights was appropriate.” In
re A.J., 2017 UT App 235, ¶ 26, 414 P.3d 541.
¶37 We need not consider the juvenile court’s alternative
ground for termination because there was sufficient evidence to
support the finding that Father was an unfit or incompetent
parent. Utah Code section 78A-6-508 lists circumstances that
“constitute prima facie evidence of unfitness.” Utah Code Ann.
§ 78A-6-508(6)(a) (LexisNexis 2012). “[S]exual abuse . . . due to
known or substantiated abuse or neglect by the parent” is
included in that list. Id. Here, the court found, and Father
admitted on multiple occasions, including at his termination
trial, that he had sexually abused Child. The court noted this fact
in its order and relied on it in terminating Father’s parental
rights.
¶38 Nevertheless, Father argues that while his “prior conduct
did constitute prima facie evidence of [his] unfitness,” he “could
demonstrate parental fitness” because he complied with
reunification services and the juvenile court’s orders. This
argument ignores the juvenile court’s specific finding that “[a]s
of the date of the trial, [Father’s] sexual abuse of [Child was]
almost entirely untreated on his part.” The court ordered Father
to complete therapy to specifically address his sexually abusive
behavior and “sexual appropriateness.” Father does not dispute
that he attended only one or two therapy sessions that
specifically addressed sexual appropriateness. Instead, Father
contends that his substance abuse treatment adequately
addressed the sexual abuse because he would not have sexually
abused Child if he had not been intoxicated. But Father’s
attendance of substance abuse therapy does not excuse his
failure to complete “sexual appropriateness” therapy as the
juvenile court expressly ordered. Furthermore, Father’s entire
20180150-CA 16 2018 UT App 217In re A.W.
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 juvenile 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.
CONCLUSION
¶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
20180150-CA 17 2018 UT App 217In re A.W.
and failure to comply with court orders were grounds for
termination of his parental rights.
20180150-CA 18 2018 UT App 217