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State ex rel. K.W.

Court of Appeals of Utah

March 22, 2018

State of Utah, Appellee. A.W., Appellant,

          Third District Juvenile Court, Salt Lake Department The Honorable Mark W. May No. 1127816

          Joshua Fawson, Attorney for Appellant

          Sean D. Reyes, John M. Peterson, and Carol L.C. Verdoia, Attorneys for Appellee

          Martha Pierce, Guardian ad Litem Judge Michele M. Christiansen authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.

          CHRISTIANSEN, Judge

         ¶1 A.W. (Father) appeals the juvenile court's order terminating his parental rights to his children, K.W. and A.W. Father contends (1) that the Division of Child and Family Services (DCFS) failed to sufficiently modify the reunification-services plan to accommodate his disabilities as required by the Americans with Disabilities Act (the ADA), (2) that the evidence was insufficient to support the juvenile court's finding that termination of his parental rights was in the children's best interests, and (3) that said termination was not "strictly necessary, " as required by Utah Code section 78A-6-507. We conclude that Father's ADA claim fails because Father has not carried his burden of demonstrating clear error in the juvenile court's finding that DCFS provided him reasonable accommodations. We further conclude that Father has not shown that the juvenile court's best-interests finding was clearly erroneous. And we conclude that Father's argument regarding the necessity of termination is inadequately briefed. We therefore affirm the juvenile court's order.


         ¶2 Father suffered, and continues to suffer from, from bipolar disorder with psychotic tendencies, memory loss from injuries sustained in a car accident, [1] and cognitive impairments from brain surgery to treat a colloidal cyst. Father also had seven drug-related convictions stretching across four states from 1989 to 2012. At the time his parental rights were terminated in March 2017, Father had recently used both marijuana and methamphetamine and was homeless.

         ¶3 In March 2016, Father contacted law enforcement officers seeking transport to a shelter for himself and his two children, K.W. and A.W. After arriving at the shelter, Father was taken to another facility to receive psychiatric treatment. DCFS was initially unable to locate Father, and the children were placed in the State's custody. In April 2016, the court ordered DCFS to provide Father with reunification services, noting that Father "desires help from DCFS and is willing to participate in services." In May 2016, the court held a disposition hearing. Although it appears from the record that the court and DCFS were aware that Father suffered from disabilities, Father did not reference the ADA at the hearing or ask for specific accommodations other than for help with transportation. The reunification-services plan required Father to undergo a mental health evaluation, comply with the resulting treatment recommendations, undergo drug testing, and meet with Assessment and Referral Services (ARS). The court also ordered modifications to the plan to accommodate Father's needs, including offering Father transportation for any assessments.

         ¶4 Father did not attend the initial child and family team meeting. And when he did eventually meet his DCFS caseworker to discuss the resulting service plan, it was a "difficult conversation" because he was "so upset just with the fact that the [children] were removed in the first place." After seeing a police car nearby, Father became worried that he would be arrested. Father also became "very emotional concerning the removal of his children" and "could not carry on a conversation."

         ¶5 The caseworker arranged to pick Father up to take him to a mental health facility for an evaluation. But when they arrived, the facility was unable to see Father that day and instead scheduled a future appointment. The caseworker also scheduled an appointment for Father at ARS for a drug and alcohol assessment. However, Father did not appear at or reschedule either of these appointments.

         ¶6 Father's contact with DCFS was limited throughout the reunification period. Father was homeless but was often at or near a certain park. When Father had not contacted the caseworker for a while, she would go to the park and look for him to discuss his case. On four or five occasions, the caseworker was able to find Father there and meet with him. But when she tried to speak with him about treatment services, he would become emotional, angry, or paranoid.

         ¶7 In Father's view, he had not done anything wrong and there was therefore no reason for him to use the services; accordingly, Father refused to participate in them. As a result, Father did not receive the mental health or drug and alcohol treatment from DCFS required by the service plan. And despite the caseworker's urging, Father refused to visit his previous treatment provider. Father also refused to submit to random drug testing. Eventually, Father stopped cooperating with DCFS at all.

         ¶8 At first, the caseworker arranged for Father to meet with the children at DCFS's office on a weekly basis. Father would get rides to the office from friends or a relative. According to the caseworker, Father would get angry at those visits, claiming that the children had been kidnapped, and he would attempt to find out from the children where they were living. Father was not consistent in attending these scheduled visits.

         ¶9 The caseworker then sought to accommodate Father's needs by organizing visits with the children at the park where Father was living. At first, the visits were consistent. But later, Father would often become angry and suggested that he would go to the children's school to take them away. After one visit at the park during which Father was "unhappy and yelling, " the caseworker determined that it was no longer safe to have visits there and decided ...

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