In re L.A.
¶1 J.R. (Father) appeals the juvenile court‘s order terminating his parental rights in L.A. (Child). We affirm.
BACKGROUND
¶2 This appeal concerns Father‘s right to parent Child. Child‘s mother (Mother) admitted to using drugs during her
¶3 That same day, the juvenile court held a shelter hearing. Father was transported from the jail to the shelter hearing. At the hearing, the State indicated to the court that Father wished to have DNA testing done. The court therefore “order[ed] that DNA testing be done” and instructed Father to “[c]ooperate with DCFS in getting that taken care of.” The court also asked Father how long he “anticipate[d] being incarcerated” and told him, “[I]f you get out [of jail], make sure you get ahold of DCFS so they can follow through with the testing.” The court‘s written order, which was prepared by the State, provided, “The Court further orders that: the child and father submit to DNA testing to establish paternity.”
¶4 Subsequently, the case was transferred to another juvenile court judge, and over the course of the next few months, four child welfare hearings took place.1 Father was not transported to any of these hearings. The issue of Father‘s paternity arose during several of the hearings, but each time the issue was discussed, it was determined that Father had not yet established paternity. On March 3, 2015, Father was released from jail. Shortly thereafter, he went to the Office of Recovery Services (ORS) and underwent DNA testing.
¶5 Father appeared at the next child welfare hearing, held on April 28. At the hearing, DCFS requested that the juvenile court
¶6 On July 7, 2015, the juvenile court held a permanency hearing to determine whether Child could be returned to Mother. DCFS again asked the court to terminate Mother‘s reunification services, which the court ultimately did. After initially declining to permanently appoint Father‘s current counsel, the court appointed her to represent Father. During the hearing, there was also a discussion regarding Father‘s attempts to establish paternity. The State noted that ORS wanted to include Mother in its DNA testing and that Mother had not been cooperating. Counsel for Father‘s parents further noted that ORS would not conduct a DNA test of Mother because she did not have a valid form of identification. After expressing confusion as to why ORS needed Mother to conduct a DNA test regarding Father‘s paternity (rather than comparing Child‘s and Father‘s tests) and noting that “ORS is throwing up roadblocks,” the juvenile court told Father, “I don‘t know why you haven‘t filed a voluntary declaration of paternity, . . . I mean, really, that‘s—how simple is that? Could have been done months ago.”
¶7 That same day, Father and Mother filed affidavits stating that Father is Child‘s biological father. The next day, Father filed a motion to adjudicate his paternity. The court granted Father‘s motion and adjudicated Father as the legal father of Child on August 13. Father was again incarcerated on September 7.
¶8 On September 28, the State filed an amended petition to terminate both Mother‘s and Father‘s parental rights. The juvenile court held a termination trial on November 12.2 Father
¶9 On November 20, 2015, the juvenile court entered an order terminating Father‘s parental rights. The court found, in relevant part:
At the November, 2015 trial, [Father] complained that he was not transported to the December 16, 2014 hearing and that [DCFS] never came to collect a DNA sample. [Father] was not transported to the hearing because he was not a party to the action. Additionally, there was no order that [DCFS] collect [Father‘s] DNA or pay for the testing. [DCFS] originally alleged and [Mother] subsequently admitted that paternity had not been established. [Father] was suspected of being the father but ultimately it was his responsibility to establish legal paternity.
The court further found that while it was concerning that Father took “nearly nine months to establish paternity . . . , what is more concerning is [Father‘s] inability to remain out of jail.” The court then concluded that pursuant to
¶10 Father subsequently filed a motion pursuant to
¶11 Father now appeals the juvenile court‘s order terminating his parental rights.
ISSUES
¶12 First, Father contends that “the Order for DNA testing, and subsequent inaction toward testing and/or out and out resistance to testing and other avenues of establishment of paternity resulted in a fundamentally unfair process.” Second, he contends that there was insufficient evidence to support the juvenile court‘s determination that he was “‘unfit’ pursuant to
ANALYSIS
I. DNA Testing
¶13 Relying on
¶14 “Like the Utah Supreme Court, ‘we are resolute in our refusal to take up constitutional issues which have not been properly preserved, framed and briefed[.]‘” Salt Lake County v. Butler, Crockett & Walsh Dev. Corp., 2013 UT App 30, ¶ 32, 297 P.3d 38 (quoting Brigham City v. Stuart, 2005 UT 13, ¶ 14, 122 P.3d 506, rev‘d on other grounds, 547 U.S. 398 (2006)). To preserve an issue for appeal, “the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (citation and internal quotation marks omitted). “The preservation rule applies to every claim, including constitutional questions[.]” Seamons v. Brandley, 2011 UT App 434, ¶ 3, 268 P.3d 195 (per curiam). “Among other things, this standard requires that the issue be ‘specifically raised.‘” Butler, 2013 UT App 30, ¶ 32 (quoting 438 Main St., 2004 UT 72, ¶ 51). “Where there is no clear or specific objection and the specific ground for objection is not clear from the context[,] the theory cannot be raised on appeal.” State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (alteration in original) (citation and internal quotation marks omitted). “Thus, if a party makes an objection at trial based on one ground, this objection does not preserve for appeal any alternative grounds for objection.” Id.
¶15 “‘When a party raises an issue on appeal without having properly preserved the issue below, we require that the party articulate an appropriate justification for appellate review[.]‘” Butler, 2013 UT App 30, ¶ 33 (quoting State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171). Our supreme court has “recognized only three instances in which an appellate court may address an issue for the first time on appeal“: “(1) where the appellant establishes that the trial court committed plain error; (2) where exceptional
¶16 Father‘s brief contains no citation to the record demonstrating that his due process claim was preserved in the juvenile court, nor does our review of the record indicate that it was. Moreover, Father does not invoke an exception to the preservation rule. See Butler, 2013 UT App 30, ¶ 33. Consequently, this claim is not properly before us.
¶17 Nevertheless, the record indicates that several of Father‘s subarguments on appeal were raised below outside of the due process context. More specifically, Father argues that (1) after the shelter hearing, he should have been transported to the hearings regarding Child, and (2) it was DCFS‘s responsibility to ensure that DNA testing of Father and Child occurred. We address each issue in turn.
¶18 First, Father notes that after the shelter hearing, he “was not transported to hearings and didn‘t appear until the end of April, 2015” and asserts that “[i]t is troubling that after bringing [him] into the proceeding by service and transportation to [the shelter hearing], [he] was effectively excluded from four hearings by virtue of the fact that no transportation order was submitted to the Court.” Father‘s argument is inadequately briefed. An appellant‘s brief must 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.”
¶19 Second, Father contends that “the transcript of the shelter hearing makes [it] very clear that the Court placed upon [DCFS] a burden to facilitate the DNA testing” and that the court‘s written order—prepared by the State—“changed the tenor of the Order to omit the obligation placed on the State to see the DNA testing through.” Father also asserts that DCFS was, at best, “half-heartedly participating in the [DNA] testing” and that although “the State was aware of [Mother‘s] lack of identification and . . . ORS‘s resistance or failure to complete the testing, . . . it did nothing to timely address the matter with the Court.” Father implies that these circumstances delayed his ability to establish paternity and that the delay was later used against him to support the termination of his parental rights.
¶20 At the shelter hearing, the juvenile court addressed the issue of DNA testing:
[Court]: Okay, at this point it doesn‘t appear that [Father] has been—paternity is still in question; is that right?
[State‘s counsel]: That is correct, your Honor. My understanding is that he would like DNA testing done so [DCFS] will have to set that up through ORS.
[Court]: All right, is that accurate[?]
[Father]: (No verbal response). [Court]: All right, I‘ll order that DNA testing be done. Cooperate with DCFS in getting that taken care of[.]
. . . .
[Court]: [H]ow long do you anticipate being incarcerated?
[Father]: I don‘t know (inaudible).
. . . .
[Father]: Oh, I have no idea. I‘m in [on] a probation violation. (Inaudible).
[Court]: Okay.
[Father]: I want to do whatever it takes to get her back.
[Court]: Well, if you get out, make sure you get ahold of DCFS so they can follow through with the testing, okay?
The juvenile court‘s final written order simply stated, “The Court further orders that: the child and father submit to DNA testing to establish paternity.”
¶21 At trial, Father testified, “[T]hey ordered . . . a DNA test when I was in jail. They never came through.” And during closing argument, Father‘s counsel asserted that “[n]obody who sought the order, nor the Court who . . . signed off on the order that Dad and child get a [DNA] test did anything about it.” In its order terminating Father‘s parental rights, the juvenile court found that “there was no order that [DCFS] collect the father‘s
¶22 We first address Father‘s contention that the juvenile court‘s written order “changed the tenor of the Order to omit the obligation placed on the State to see the DNA testing through.” After reviewing the court‘s oral ruling from the shelter hearing and its final written order, we are persuaded that the two rulings, while not entirely in conflict, do contain some confusing discrepancies. See generally M.F. v. J.F., 2013 UT App 247, ¶ 6, 312 P.3d 946 (“Our case law is clear that where a court‘s oral ruling differs from a final written order, the latter controls.“). Specifically, at the shelter hearing, the juvenile court “order[ed] that DNA testing be done” and told Father to “[c]ooperate with DCFS in getting that taken care of.” Given this language, along with the facts that the successful completion of DNA testing would require at least some effort on the part of the appropriate testing agency (either DCFS or ORS) and that Father was incarcerated at that time, it was not wholly unreasonable for Father to believe that DCFS might seek him out to complete the DNA testing and that he was only required to cooperate with DCFS in its efforts to do so.3 On the other hand, at the shelter hearing, the court asked Father how long he “anticipate[d] being incarcerated” and told him: “Well, if you get out, make sure you get ahold of DCFS so they can follow through with the testing, okay?” This statement, along with the court‘s final written order requiring “the child and father submit to DNA testing to establish paternity,” should have put Father on notice that DCFS was not required to seek him out to complete the DNA testing and that it was his responsibility to contact DCFS once he got out of jail.
¶24 We acknowledge, and the State concedes, that “Father may have been hampered in establishing his paternity due to his incarceration.” But “means other than genetic testing were available to [Father] to establish his paternity,” see In re S.H., 2005 UT App 324, ¶ 20, 119 P.3d 309, a fact which Father recognizes. Indeed, in his briefing, Father concedes that “DNA testing is but one method of establishing legal paternity under Utah law,” and he acknowledges the existence of several alternative methods for establishing paternity, including an adjudication of paternity and a voluntary declaration of paternity.4 See
¶25 Rather, as will be discussed in more detail below, infra ¶ 30, the juvenile court terminated Father‘s parental rights because Father‘s actions, specifically his “inability to remain out of jail,” demonstrated that he was unable to remedy the conditions giving rise to Child‘s out-of-home placement. Pursuant to
¶26 Moreover, we agree with the State that, as a general matter, “the onus of establishing paternity rests upon the alleged father.” The Utah Supreme Court has stated that “the rights of parents are commensurate with the responsibilities they have assumed, and in the case of unmarried fathers, a biological relationship alone is insufficient to establish constitutionally protected parental rights.” In re adoption of B.B.D., 1999 UT 70, ¶ 10, 984 P.2d 967; see also Lehr v. Robertson, 463 U.S. 248, 260 (1983) (“Parental rights do not spring full-blown from the biological connection between parent and child.” (emphasis, citation, and internal quotation marks omitted)). “Under Utah law, an unmarried biological father has an inchoate interest that acquires constitutional protection only when he demonstrates a timely and full commitment to the responsibilities of parenthood . . . .” In re adoption of B.B.D., 1999 UT 70, ¶ 11 (emphasis added) (citation and internal quotation marks
¶27 In sum, we conclude that Father‘s due process claim was not preserved; that Father‘s arguments pertaining to his lack of transportation to the hearings regarding Child and the juvenile court‘s duty to inform him of alternative methods of establishing paternity are inadequately briefed; and that any discrepancies between the court‘s oral and written rulings regarding DNA testing, and any delays resulting therefrom or otherwise, were harmless. We ultimately agree with the State that it was Father‘s responsibility alone to establish paternity.
II. Sufficiency of the Evidence
¶28 Father contends that there was insufficient evidence to support the juvenile court‘s determination that he was “‘unfit’ pursuant to [section] 78A-6-507(1)(d)” of the Utah Code. “Findings of fact in a parental rights termination proceeding are overturned only if they are clearly erroneous.” In re G.B., 2002 UT App 270, ¶ 9, 53 P.3d 963 (citation and internal quotation marks omitted). Under this standard, we will set aside the juvenile court‘s findings of fact only “if the findings . . . are against the clear weight of the evidence, or if [we] otherwise
¶29 “Utah law requires a court to 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 some minimum threshold of fitness, such as finding that a parent is unfit or incompetent based on any of the grounds for termination under [section 78A-6-507] of the Utah Code.” Id. (citation and internal quotation marks omitted); see also
¶30
- [Child] is being cared for in a foster home under the supervision of [DCFS] and the Court;
- [Father] has been unwilling or unable to remedy the circumstances that caused [Child] to be placed in [DCFS‘s] custody. At the time of the November, 2015 trial, there was still no legal parent able to properly care for [Child], nor had there been in nearly a year. Also, [Father‘s] habitual incarceration demonstrated his inability or unwillingness to remedy the circumstances that caused his child to be in an out-of-home placement.
- Given that [Father] will be incarcerated until May 14, 2016, he will not be capable of exercising proper and effective parental care of [Child] in the near future.
We conclude that the record evidence supports the juvenile court‘s determination that Father was unable to remedy the circumstances that caused Child to be in an out-of-home placement and that there was a substantial likelihood that Father would not be capable of exercising proper and effective parental care in the near future.
¶32 First, Father challenges the juvenile court‘s finding that he “would likely need some services before he could be an appropriate parent” and the court‘s reference to Father‘s possible need for drug treatment. More specifically, according to Father, the juvenile court did not, and could not find, “based on the record, ‘habitual or excessive use of intoxicating liquors, controlled substances, or dangerous drugs that render the parent unable to care for the child.‘” (Quoting
¶33 As Father correctly observes, the juvenile court did not find “‘habitual or excessive use of intoxicating liquors, controlled substances, or dangerous drugs that render the parent unable to care for the child.‘” (Quoting
¶34 Here, although the juvenile court used the term “Unfitness” as a section heading to describe the ground for terminating Father‘s parental rights, the court did not terminate Father‘s parental rights on the grounds that he was “unfit or incompetent” or that he had “neglected or abused” Child. See
¶36 Father next challenges the juvenile court‘s finding regarding his “inability to remain out of jail.” Relying on Father‘s testimony, the juvenile court found that Father was released from jail on March 3, 2015; that he was subsequently reincarcerated on September 7, 2015, for a probation violation; and that he would not be released from jail until May 14, 2016. Father contends that “the Code provides direction for the Court as to how incarceration may be viewed as evidence of unfitness” and observes that under
¶37 To begin with, in terminating Father‘s parental rights, the juvenile court did not rely on
¶38 After reviewing the record, we conclude that there was ample evidence to support the juvenile court‘s determination that Father was unable or unwilling to remedy the circumstances that caused Child to be in an out-of-home placement. See
¶39 Father further testified that while he was out of jail, he visited with Child twice before his visitations were stopped because he “didn‘t have the paternal rights.” Subsequently, after the juvenile court adjudicated Father‘s paternity in August 2015, he had two more visits with Child about two weeks before he went back to jail. Father testified that he loved Child and that he “just want[ed] to be there for [his] daughter.” And he testified that he was back in jail “for [a] probation violation” for “not checking in.” Father explained:
I was doing really good when I was on probation. When I knew that my daughter was born, I was doing really good. I had two jobs. I was doing my classes that my [probation officer] ordered me to do. I was checking in. I was doing my [urinalysis tests]. I came out good. I was clean.
Then after that, when they stopped my visit[s] from my daughter, I kind of f[e]ll back, because I was always behind the mother so she can be clean, which she wasn‘t going to, and picking up more charges because of her saying that I hit her, which I didn‘t ever hit her. . . .
Father also testified that when he was working two jobs between March and September 2015, he did not “save or put away any money for [Child],” because he was “trying to pay [his] mom the money that she put out to bail [Mother].” He testified that he had had no income since he had been reincarcerated in September. During the termination trial, the juvenile court also acknowledged that Father had “convictions for narcotic equipment [and] possession of controlled substance,” according to the petition to terminate parental rights.
¶41 The record also supports the juvenile court‘s determination that there was a substantial likelihood that Father would “not be capable of exercising proper and effective parental care of [Child] in the near future.” See
¶43 In a related but separate argument, Father contends that “[t]he Court‘s finding that [he] ‘did nothing’ to establish paternity between March, 2015, and July 2015, through a mechanism other than DNA testing is unsupported by the record, and therefore constitutes an abuse of discretion.” Again, “[f]indings of fact in a parental rights termination proceeding are overturned only if they are clearly erroneous.” In re G.B., 2002 UT App 270, ¶ 9 (citation and internal quotation marks omitted).
¶44 The juvenile court found that “[a]lthough provisional counsel was appointed for [Father] on April 28, 2015 to help him establish paternity, he did not attempt to establish paternity through an alternative route [other than DNA testing] until July, 2015.” The court further found:
20. [Father] missed the first three months of [Child‘s] life because he was incarcerated. Over the next five months, [Father] made efforts to establish his paternity but they seem to have been in short bursts of energy and effort. In mid-March and early April, [Father] made serious efforts to establish his paternity. From late April, when the court provisionally appointed [counsel] until early July, there was no evidence that [Father] made any efforts. Then another burst of energy and effort occurred in July.
21. While taking nearly nine months to establish paternity is concerning, what is more concerning is [Father‘s] inability to remain out of jail.
¶46 In any event, although the court indicated that the amount of time—nine months—it took Father to establish paternity was “concerning,” the court‘s findings demonstrate that it viewed the delay as a relatively minor issue and that its
CONCLUSION
¶47 Based on the foregoing, we affirm the juvenile court‘s order terminating Father‘s parental rights.