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State ex rel. L.A. v. State

Court of Appeals of Utah

July 28, 2017

State of Utah, in the interest of L.A., a person under eighteen years of age.
State of Utah, Appellee. J.R., Appellant,

         Third District Juvenile Court, Salt Lake Department The Honorable Mark W. May No. 1108194

          Colleen K. Coebergh, Attorney for Appellant

          Sean D. Reyes and John M. Peterson, Attorneys for Appellee

          Martha Pierce, Guardian ad Litem.

          Judge Michele M. Christiansen authored this Opinion, in which Judges J. Frederic Voros Jr. and Stephen L. Roth concurred.


         ¶1 J.R. (Father) appeals the juvenile court's order terminating his parental rights in L.A. (Child). We affirm.


         ¶2 This appeal concerns Father's right to parent Child. Child's mother (Mother) admitted to using drugs during her pregnancy, and Child tested positive for drugs at her birth in November 2014. A few days after Child was born, the Division of Child and Family Services (DCFS) filed a verified petition alleging that Child was abused and neglected. The petition further alleged, "Paternity has not been established. [J.R.] may be the father of the child. He is currently incarcerated at the Salt Lake County Metro Jail."

         ¶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 terminate reunification services to Mother, but the court instead continued reunification services for Mother and Child and set a permanency hearing for July 2015. In addition, the court provisionally appointed Father's current counsel.

         ¶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 testified during the trial about his incarceration and his efforts to establish paternity of Child.

         ¶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 Utah Code subsection 78A-6-507(1)(d), Father's "habitual incarceration demonstrated his inability or unwillingness to remedy the circumstances that caused [Child] to be in an out-of-home placement." The court also concluded that it was in Child's best interest to terminate Father's parental rights.

         ¶10 Father subsequently filed a motion pursuant to rule 52(b) of the Utah Rules of Civil Procedure, requesting clarification of the juvenile court's termination order. Among other things, Father requested clarification regarding "[w]hat obligation does [DCFS] have after alleging paternity, and hearing an order to have the child tested to determine paternity, to act on and comply with that Order" and "[w]hat obligations do [DCFS] and [the] Court have, after allowing the appearance of an alleged father at a child welfare hearing, to secure his appearance at future hearings, particularly when that alleged father is incarcerated." The juvenile court denied Father's motion, concluding: "The Findings of Fact were sufficiently detailed and included enough facts to disclose the process through which the ultimate decision was reached. There was no allegation that any facts, conclusions or orders were clearly erroneous. This Court does not find that any clarification is needed."

         ¶11 Father now appeals the juvenile court's order terminating his parental rights.


         ¶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 section 78A-6-507(1)(d)" of the Utah Code.


         I. DNA Testing

         ¶13 Relying on Utah Code subsection 78A-6-503(2), 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." See generally Utah Code Ann. § 78A-6-503(2) (LexisNexis Supp. 2016) ("The court shall provide a fundamentally fair process to a parent if a party moves to terminate parental rights."). According to Father, "[t]his Court should recognize the inherent statutory and fundamental duty the State has to identify, notice, and serve parents and bring them into such cases so that their statutory and fundamental due process rights can be guaranteed." The State characterizes this issue as "[w]hether the juvenile court or [the] State had any obligation to assist [Father] in establishing paternity." The guardian ad litem contends that Father's due process claim was not preserved below.

         ¶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 circumstances exist; or (3) in some situations, where a claim of ineffective assistance of counsel is raised on appeal." In re C.C., 2013 UT 26, ¶ 17, 301 P.3d 1000 (brackets, citations, and internal quotation marks omitted). Accordingly, the Utah Rules of Appellate Procedure require an appellant's brief to contain a "citation to the record showing that the issue was preserved in the trial court" or "a statement of grounds for seeking review of an issue not preserved in the trial court." Utah R. App. P. 24(a)(5)(A), (B).

         ¶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, 201 ...

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