State of Utah, in the interest of B.A., a person under eighteen years of age.
State of Utah, Appellee. R.A., Appellant,
District Juvenile Court, West Jordan Department The Honorable
Renee M. Jimenez No. 1109173
Lee Nemelka, Attorney for Appellant.
D. Reyes, John M. Peterson, and Emily I. Iwasaki, Attorneys
Pierce, Guardian ad Litem.
Michele M. Christiansen authored this Opinion, in which
Judges Jill M. Pohlman and Diana Hagen concurred.
R.A. (Father) appeals the juvenile court's order
terminating his parental rights to B.A. (Child). Father
contends that the evidence was insufficient to support the
juvenile court's findings regarding Father's fitness
to parent and Child's best interests. Father also
contends that the juvenile court improperly terminated his
parental rights based upon his failure to comply with the
child and family service plan (the Service Plan). Finally,
Father contends that the juvenile court erred by allowing a
lay witness to give expert witness testimony despite not
being designated as an expert. We conclude that the evidence
presented at trial was sufficient to support the juvenile
court's findings, that the court did not terminate
Father's parental rights solely due to his failure to
comply with the Service Plan, and that Father failed to
adequately brief his witness contention; consequently, we
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.
"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. "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" enumerated in Utah Code section 78A-6-507.
Id. (citation and internal quotation marks omitted).
See generally Utah Code Ann. § 78A-6-507(1)
(LexisNexis 2012) (listing the grounds for termination of
parental rights). "Second, the court must find that the
best interests and welfare of the child are served by
terminating the parents' parental rights." In re
R.A.J., 1999 UT App 329, ¶ 7.
Father first contends that the evidence was insufficient for
the juvenile court to have properly found that he fell below
the minimum threshold of parental fitness. Father challenges
the juvenile court's findings that: (1) he neglected
Child, (2) he was an unfit or incompetent parent, (3) he had
willfully refused or was unable or unwilling to remedy the
circumstances that caused Child to be in an out-of-home
placement, and (4) there was a substantial likelihood that
Father would not be capable of exercising proper and
effective parental care in the near future.
We will uphold the termination of Father's parental
rights so long as any one of the above-stated grounds was
supported by sufficient evidence. See Utah Code Ann.
§ 78A-6-507(1). One of the grounds for termination set
forth in the statute is whether the parent is unfit due to
"habitual or excessive use of intoxicating liquors,
controlled substances, or dangerous drugs that render the
parent unable to care for the child." See id.
§ 78A-6-507(1)(c); id. § 78A-6-508(2)(c).
Here, between the time the juvenile court first ordered
Father to submit to random drug testing and the date of
trial, Father was required to submit to drug testing over 100
times, but he only appeared for testing on 15 occasions. Of
those 15 occasions, he tested positive for controlled
substances on 4 occasions. Additionally, while this
child-welfare case was pending, police investigated a
domestic-violence incident involving Father, and Father
admitted to them that he had "been using Spice."
After this evidence was presented at trial, the juvenile
court found that "[Father] has missed a majority of the
required drug tests" and that "[Father] has been
inconsistent in his drug testing, having only tested on a few
occasions." The court also noted Father's positive
tests for controlled substances and his admission to drug
use. The court concluded that, for these and other reasons,
Father was "unfit or incompetent, thereby justifying the
termination of [his] parental rights."
On appeal, Father challenges neither the admissibility nor
the accuracy of the drug test evidence. In fact, Father
mentions drug testing only to describe the procedural history
of the case and does not refer to drugs or drug testing
anywhere in his arguments. Given the uncontested evidence of
Father's drug use, we must conclude that a foundation
existed for the juvenile court's determination that
Father was an unfit parent due to his continuing use of
controlled substances. And "[w]hen a foundation for the
court's decision ...