J.R. v. State, 402 P.3d 69

Child born November 2014 tested positive for drugs; DCFS filed abuse/neglect petition days later and alleged paternity not established; J.R. (Father) was incarcerated at that time.
At the shelter hearing the court ordered DNA testing and told Father to cooperate with DCFS; Father was transported to that hearing but was not transported to subsequent hearings while incarcerated.
Father was released March 3, 2015, submitted to DNA testing through ORS, appeared at an April hearing, and provisional counsel was appointed; paternity was formally adjudicated in August 2015 after affidavits and a motion by Father.
Father was reincarcerated September 7, 2015; the State filed to terminate parental rights and the juvenile court held a termination trial November 12, 2015.
The juvenile court terminated Father’s rights under Utah Code § 78A-6-507(1)(d), finding (1) Child in foster care, (2) Father unable/unwilling to remedy circumstances due to habitual incarceration, and (3) substantial likelihood Father could not provide proper care in the near future; Father appeals.

Issue	Father’s Argument	State’s Argument	Held
Whether the court/State’s failure to secure DNA testing and follow through created a fundamentally unfair process (due process/preservation)	Court’s oral order and shelter-hearing statements created a state obligation to secure testing; inaction denied him a fair process and delayed paternity	Father failed to preserve a constitutional due-process claim below; even if delayed, alternatives to DNA existed and delay was harmless	Claim not preserved; appellate court deems the delay harmless and places burden to establish paternity on Father; termination affirmed
Whether evidence supported termination under Utah Code § 78A-6-507(1)(d) (unfitness/unable to remedy and inability to care in near future)	Father: record insufficient to show inability/unwillingness to remedy or substantial likelihood he cannot parent in near future; incarceration and a single drug "slip" insufficient	Court: Father was incarcerated for much of Child’s life, reincarcerated, lost jobs, showed relapse and need for services — evidence supports inability to remedy and near-future incapacity	Sufficient evidence supports termination under § 78A-6-507(1)(d); juvenile court’s factual findings not clearly erroneous

Brigham City v. Stuart, 122 P.3d 506 (Utah 2005) (preservation requirement for appellate review of constitutional claims)
438 Main St. v. Easy Heat, Inc., 99 P.3d 801 (Utah 2004) (issue preservation standard)
Salt Lake County v. Butler, Crockett & Walsh Dev. Corp., 297 P.3d 38 (Utah Ct. App. 2013) (declining to reach unpreserved constitutional issues)
In re C.C., 301 P.3d 1000 (Utah 2013) (exceptions allowing appellate review of unpreserved issues)
In re adoption of B.B.D., 984 P.2d 967 (Utah 1999) (unmarried father’s biological relationship alone insufficient; must timely assume parental responsibilities to gain constitutional protection)
In re S.H., 119 P.3d 309 (Utah Ct. App. 2005) (alternative methods to establish paternity beyond genetic testing)
In re G.B., 53 P.3d 963 (Utah Ct. App. 2002) (standard of review for parental-termination findings)
In re R.A.J., 991 P.2d 1118 (Utah Ct. App. 1999) (two-part test for termination: parental unfitness and child’s best interest)
Lehr v. Robertson, 463 U.S. 248 (U.S. 1983) (biological parenthood alone does not automatically confer full constitutional parental rights)