STATE OF UTAH, IN THE INTEREST OF B.A., A PERSON UNDER EIGHTEEN YEARS OF AGE. M.T., Appellant, v. STATE OF UTAH, Appellee.
No. 20160708-CA
THE UTAH COURT OF APPEALS
November 9, 2017
2017 UT App 202
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
Third District Juvenile Court, West Jordan Department. The Honorable Renee M. Jimenez. No. 1109173. Harini Venkatesan, Attorney for Appellant. Sean D. Reyes, John M. Peterson, and Emily I. Iwasaki, Attorneys for Appellee. Martha Pierce, Guardian ad Litem.
CHRISTIANSEN, Judge:
¶1 M.T. (Mother) appeals the juvenile court‘s order terminating her parental rights to B.A. (Child). She contends (1) that the juvenile court erroneously ruled that the Americans with Disabilities Act (the ADA) was inapplicable, (2) that the evidence was insufficient to support a finding that she was an unfit parent, (3) that the evidence was insufficient to support a finding that termination of Mother‘s parental rights was in Child‘s best interests, and (4) that the evidence was insufficient
¶2 We recognize that juvenile court judges have special training, experience, and interest in their field, as well as the opportunity to judge credibility firsthand; consequently, we review a juvenile court‘s decision to terminate parental rights deferentially and will not disturb the juvenile court‘s findings and conclusions unless the preponderance of the evidence clearly militates against the findings made or the court has otherwise abused its discretion. In re A.B., 2007 UT App 286, ¶ 10, 168 P.3d 820; In re R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d 1118.
I. Americans with Disabilities Act
¶3 Mother contends that “[t]he juvenile court erred in ruling that [the ADA] was inapplicable due to [Mother‘s] failure to request an accommodation previously.”1 Although Mother‘s phrasing suggests that the juvenile court ruled that the ADA was
¶4 Mother first mentioned the ADA at the termination trial. The juvenile court found that Mother had not established that she suffered from a medical condition of the type necessitating accommodations under the ADA and that Mother never requested any accommodation:
[Mother] has not been diagnosed with a medical condition that prohibits her from engaging [in] or attending a drug treatment program, domestic violence treatment program or from obtaining employment. During the entire time of the reunification services time period,2 [Mother] never claimed she was disabled or referenced the Americans with Disabilities Act. [Mother] never requested a change or an accommodation to the Child and Family Plan to address her medical issues.
¶5 On appeal, Mother claims that she “had repeatedly put DCFS on notice about her ongoing medical issues” but does not cite to any part of the record in support of this claim. Instead, she relies on her testimony at the termination hearing to the effect that, due to the lapse of her insurance, she had been forced to stop seeing a primary care physician and had been forced to cancel a scheduled surgical procedure. There is no record indication that, prior to the termination hearing, Mother notified DCFS that she had a disability, i.e., that she suffered from “a physical or mental impairment that substantially limits one or more major life activities.” See
¶6 There is no doubt that the ADA applies to the government‘s provision of reunification services. See In re K.C., 2015 UT 92, ¶ 20, 362 P.3d 1248. And there is no bright-line bar to raising an ADA claim for the first time at the final termination proceeding or trial. See id. ¶ 24 (holding that Utah law does not preclude invocation of the ADA “at the eleventh hour of a termination proceeding“). But see id. ¶ 27 (noting that a child‘s interest in permanency and stability favors “[t]he expeditious resolution of a termination proceeding” and, as a result, “[a] parent who waits until the eleventh hour to request a modification under the ADA may thoroughly undermine [his or her] ability to establish that such modification is reasonable“).
¶7 However, to succeed on the merits of an ADA claim in the context of reunification, the parent must establish that he or she is a “‘qualified individual with a disability.‘” Id. ¶ 22 (quoting
¶8 Aside from Mother‘s vague claims of a disability, none of
II. Unfitness
¶9 Mother next contends that the evidence was insufficient to support the juvenile court‘s determination that she was an unfit parent. The termination of Mother‘s parental rights was appropriate so long as sufficient evidence existed to support at least one of the unfitness grounds found by the court and to support the court‘s finding that such termination was in Child‘s best interests. See In re R.A.J., 1999 UT App 329, ¶ 7.
¶10 Here, the juvenile court found (1) that Mother was an
¶11 The court highlighted Mother‘s extensive use of painkilling drugs, finding that Mother did not complete a court-ordered substance abuse evaluation for over 9 months; that Mother had not started, much less successfully completed, a substance abuse treatment program; that Mother had missed more ordered drug tests than she had completed; that Mother had tested positive for various drugs at least 16 times but “has not provided proof of prescription medications to account for all of the positive results“; that Mother visited hospital emergency rooms at least 23 times including nine visits in a single month; that those visits were spread across 5 different hospitals; that Mother ignored recommendations that she follow up these visits by making appointments with non-emergency specialists; that multiple emergency-room physicians reported that Mother left
[Mother] is either unable or unwilling to participate in a drug treatment program. She has continued to engage in drug seeking behaviors as evidenced by her multiple visits to the emergency room, seeking narcotics and leaving the emergency room when she is not administered IV narcotics or a prescription for pain medication. Furthermore, [Mother] has failed to follow up with the recommended medical care[.]
¶12 On appeal, Mother primarily argues that she is not an unfit parent as a result of habitual or excessive use of controlled substances. She asserts, without citation to the record, that the juvenile court erroneously deemed her missed drug tests to be positive drug tests. Our review of the court‘s findings does not support this assertion. Rather, the court appears to have considered separately the facts that Mother missed more drug tests than she completed and that, of the tests she did take, sixteen were positive for opiates, one was positive for benzodiazepines, and one was positive for oxycodone. We cannot see how these considerations support Mother‘s assertion that the court treated her missed tests as positive tests.
¶13 Mother also argues that it was improper for the court to construe medical documents, which she had submitted, as evidence against her interests. Her single sentence argument in this regard is not supported by citation to any authority. Moreover, the interpretation of evidence is within the sole
¶14 Finally, Mother argues that she “substantially complied with the Court ordered service plan which was intended to remedy the circumstances that caused the child to be out of her home.” Mother claims that she “had housing and employment, previously completed domestic violence and substance abuse treatment, had subsequently completed two further assessments, was engaging in couples counseling with [Child‘s father] to address the underlying cause of the domestic violence, and was actively engaged in her regular visitation of [Child].” However, Mother does not provide any citation to the record to support these claims, some of which directly contradict the juvenile court‘s findings. For example, while Mother now claims she completed substance abuse treatment, the court actually found that “[Mother] has not started or successfully completed a substance abuse treatment program.”7
¶15 Mother‘s conclusory claims in this regard fall short of
¶16 Mother has not demonstrated that the evidence clearly militates against the findings made regarding her drug use and has not shown that the juvenile court otherwise abused its discretion in making them. See In re A.B., 2007 UT App 286, ¶ 10; In re R.A.J., 1999 UT App 329, ¶ 6. Because the court did not abuse its discretion in making those findings, we see no error in the juvenile court‘s determination that Mother was an unfit parent.8
III. Best Interests
¶17 Mother next contends that the evidence was insufficient for the juvenile court to have properly found that termination of her parental rights was in Child‘s best interests. See generally
¶18 Mother first argues that Child‘s behavioral problems were the result of being removed from Mother and that “[i]t is highly probable that the behaviors [Child] displayed when [Child] went to the current foster placement could be attributed to the trauma of being removed from [Mother] and coming into DCFS custody.” We note Mother presented this argument to the juvenile court, which considered and rejected it. In support of this argument on appeal, Mother points only to the testimony of Child‘s therapist. However, this testimony was limited to the therapist‘s opinion that it was possible that Child‘s mood and isolation was due to the removal. The therapist did not suggest that Child‘s significant cognitive and developmental deficits could also be attributed to the removal.9 In the absence of
¶19 Turning to Child‘s emotional needs, Mother describes testimony that Child had emotional bonds with Mother. But as the State notes, a loving relationship between Mother and Child does not necessarily mean termination is not in Child‘s best interests. See In re J.F., 2013 UT App 288, ¶ 4, 317 P.3d 964. Rather, the existence of such a relationship is one of several factors to be considered by the juvenile court. See, e.g., id. ¶¶ 4–5; In re B.R., 2007 UT 82, ¶ 15, 171 P.3d 435. The juvenile court‘s findings indicate that the court was aware of Child‘s love for Mother and that it weighed evidence of that bond against other evidence showing Child‘s love for the foster parents. The court concluded that despite Child loving both Mother and the foster parents, Child‘s best interests would be served by terminating Mother‘s parental rights because she had not “sufficiently addressed [her] own needs let alone . . . demonstrate[d] that [she] can make sure [Child‘s] needs are also met.” Thus, the court considered the emotional bond Mother highlights on appeal and determined it was outweighed by other evidence. The preponderance of the evidence does not clearly militate against the court‘s finding that termination was in Child‘s best interests, and we will therefore not substitute our judgment for that of the juvenile court. See In re A.B., 2007 UT App 286, ¶ 10; In re R.A.J., 1999 UT App 329, ¶ 6.
¶20 Mother next argues that the foster parents had “financial means and adequate support from DCFS” and that if she had been provided those same services, Child would have thrived with her. In addition to the behavior and emotional issues
¶21 The juvenile court made extensive findings regarding Child‘s best interests before concluding that termination of Mother‘s parental rights was “strictly necessary.” On appeal, Mother‘s arguments are largely based on conclusory statements that contradict those findings, but which cite neither the record nor authority. Mother has therefore failed to carry her burden of showing that the preponderance of the evidence clearly militated against the court‘s findings. We therefore have no occasion to substitute our judgment for that of the juvenile court. See In re A.B., 2007 UT App 286, ¶ 10; In re R.A.J., 1999 UT App 329, ¶ 6.
¶22 Mother next contends that the evidence was insufficient to support the juvenile court‘s finding that DCFS “provided reasonable efforts to reunify the family.” Specifically, Mother argues that DCFS “imputed to Mother an underlying substance abuse issue rather than accepting at face value all the overwhelming documentation which showed Mother in fact had recurring medical issues.” She asserts that the medical issues “prevented her from submitting to each and every [urinalysis] test.” Mother also claims that her caseworkers “advised Mother to engage in [urinalysis] testing and in treatment at child and family team meetings, [but] they failed to provide any alternate services despite Mother‘s repeated requests.”
¶23 However, Mother fails to provide any citation to the record evidencing the alleged “overwhelming documentation” of her medical issues. As noted above, supra ¶¶ 5, 7, Mother did not provide the court with any evidence of a disability that would require some sort of accommodation to otherwise complete her drug-testing requirements. And nowhere in the record or in the briefing on appeal does Mother identify from which disability she claims to suffer. Instead, she relies on a “Substance Abuse and Mental Health Assessment” which documented her claim that she had been prescribed pain medication. But her statement to a counselor that she had been prescribed pain medication was not supported by a doctor‘s prescription for such medication.11 Similarly, Mother does not cite any part of the record to support her claim that she requested alternate services. Moreover, even if Mother had done so and been refused, she has not explained why the services she was offered fell below a reasonable standard.
¶25 Affirmed.
Notes
At oral argument before this court, Mother asserted for the first time that, because she informed DCFS of her medical conditions, DCFS or the court had a duty to investigate whether Mother‘s medical conditions amounted to an ADA-qualifying disability. Mother analogized to a section of the Indian Child Welfare Act (ICWA) which provides that certain ICWA provisions apply “where the court knows or has reason to know that an Indian child is involved.”
Mother‘s assertion suffers from factual and legal infirmities. First, as noted above, in her related claims, Mother did not provide record citations showing how and when she informed DCFS of her alleged medical conditions, let alone ADA-qualifying disabilities. Second, unlike ICWA, the ADA does not contain a “reason to know” provision. In any event, this argument was raised for the first time at oral argument, and this court “will not reverse based on an unbriefed argument raised for the first time at oral argument.” In re Gregory, 2011 UT App 170, ¶ 10, 257 P.3d 495.