State of Utah, in the interest of L.A., a person under eighteen years of age.
State of Utah, Appellee. J.R., Appellant,
District Juvenile Court, Salt Lake Department The Honorable
Mark W. May No. 1108194
Colleen K. Coebergh, Attorney for Appellant
D. Reyes and John M. Peterson, Attorneys for Appellee
Pierce, Guardian ad Litem.
Michele M. Christiansen authored this Opinion, in which
Judges J. Frederic Voros Jr. and Stephen L. Roth concurred.
J.R. (Father) appeals the juvenile court's order
terminating his parental rights in L.A. (Child). We affirm.
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
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."
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. 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.
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
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."
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.
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
Father testified during the trial about his incarceration and
his efforts to establish paternity of Child.
On November 20, 2015, the juvenile court entered an order
terminating Father's parental rights. The court found, in
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
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.
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
Father now appeals the juvenile court's order terminating
his parental rights.
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.
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
"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.
"'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).
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 ...