2017 UT App 131
Utah Ct. App.2017Background
- Child born November 2014 tested positive for drugs; DCFS filed abuse/neglect petition and alleged paternity uncertain with J.R. (Father) incarcerated.
- At the shelter hearing the court ordered DNA testing and told Father to cooperate with DCFS; Father was transported to that hearing but not to subsequent hearings while incarcerated.
- Father was released March 3, 2015, completed DNA testing through ORS later, then provisionally appointed counsel in April; Father and Mother signed affidavits of paternity in July and court adjudicated Father as legal parent in August 2015.
- Father was reincarcerated September 7, 2015, and remained incarcerated until May 14, 2016 per his testimony at trial.
- State moved to terminate parental rights; termination trial held November 12, 2015; juvenile court terminated Father’s rights under Utah Code §78A-6-507(1)(d), relying chiefly on Father’s habitual incarceration and inability to remedy conditions causing out-of-home placement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court/State failed to provide a fundamentally fair process by not securing DNA testing/transportation, denying due process | Father: court’s shelter-order plus inaction by DCFS/ORS effectively excluded him and delayed paternity establishment, violating due process | State: onus was on Father to establish paternity; no preserved due process claim below; alternative paternity methods existed | Court: Due-process claim not preserved; any ambiguity about who must act was harmless because Father later established paternity and onus generally rests with alleged father |
| Whether sufficient evidence supported termination under §78A-6-507(1)(d) (unable/unwilling to remedy and unlikely to parent in near future) | Father: incarceration and limited drug-use evidence insufficient to show unfitness or inability to remedy; timing of incarceration should not be weighed as he had not yet served full prospective sentence | State: Father’s habitual incarceration, history of falling back on probation, loss of income/visits, and need for services made him unlikely to parent in near future | Court: Evidence supported termination—Father’s recurrent incarceration, interruption of visits, substance issues, and projected incarceration until May 2016 met (1)(d) grounds |
Key Cases Cited
- In re adoption of B.B.D., 984 P.2d 967 (Utah 1999) (unmarried father’s constitutional interest matures only after timely, full commitment to parental responsibilities)
- Lehr v. Robertson, 463 U.S. 248 (1983) (biological connection alone does not automatically create constitutional parental rights)
- In re S.H., 119 P.3d 309 (Utah Ct. App. 2005) (alternative means besides genetic testing exist for establishing paternity)
- 438 Main St. v. Easy Heat, Inc., 99 P.3d 801 (Utah 2004) (issues must be presented to trial court to preserve them for appeal)