In re J.F. and D.V.F. (J.F. v. State)

2014 UT App 82
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF J.F. AND D.V.F., PERSONS
UNDER EIGHTEEN YEARS OF AGE.
____________
J.F.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20131150-CA
Filed April 10, 2014
Fifth District Juvenile Court, Cedar City Department
The Honorable Thomas M. Higbee
No. 1082846
William H. Leigh and Matthew D. Carling,
Attorneys for Appellant
Sean D. Reyes and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES JAMES Z. DAVIS, J. FREDERIC VOROS JR., and
JOHN A. PEARCE.
PER CURIAM:
¶1 In this consolidated appeal, J.F. (Father) appeals both an
adjudication order and an order terminating his parental rights to
J.F. and D.V.F. We affirm.
¶2 “[I]n order to overturn the juvenile court’s decision, the
result must be against the clear weight of the evidence or leave the
appellate court with a firm and definite conviction that a mistake

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20131150-CA 2 2014 UT App 82
has been made.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (citation
and internal quotation marks omitted). We “review the juvenile
court’s factual findings based upon the clearly erroneous
standard.” In re E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680. A finding
of fact is clearly erroneous when, in light of the evidence
supporting the finding, it is against the clear weight of the
evidence. Id. Therefore, “[w]hen a foundation for the court’s
decision exists in the evidence, an appellate court may not engage
in a reweighing of the evidence.” In re B.R., 2007 UT 82, ¶ 12.
¶3 Father claims the juvenile court erred “by faulting [Father]
for failure to protect the fetus from the mother’s fetal exposure
abuse.” Father’s challenges relate to three different stages of the
child welfare proceeding—adjudication, disposition, and
termination—without making any distinction between them. The
challenged finding in the adjudication and disposition order stated
that Father “knew or should have known of the mother’s substance
use while pregnant and caring for their 18 month old daughter and
he failed to protect the child from this abuse.” Father does not
challenge the remaining detailed findings supporting the
adjudication of the children as abused or neglected. Those findings
referred to a history of substance abuse, Father’s significant drug
addiction for over twelve years, instability of housing in homeless
shelters and inexpensive motels, the unsuitable condition of the
motel room where the family resided, and—based upon Father’s
own testimony—his criminal history and past termination of
parental rights to at least one child. The court also found that the
lack of meaningful prenatal care was “equally attributable” to
Father and was “in and of itself abuse and neglect,” making
additional findings on the adverse effects of the lack of prenatal
care. Finally, the juvenile court found that D.V.F. was hospitalized
for ten days while exhibiting significant symptoms of drug
withdrawal. The court found that Father failed to either drug test
or visit the children consistently after removal. Father had the
ability to earn money, but he did not do so. Failure to protect the
children from their mother’s abuse was one of many factors
supporting an abuse and neglect adjudication that brought the
children within the juvenile court’s jurisdiction. Even if Father

In re J.F. & D.V.F.
20131150-CA 3 2014 UT App 82
could successfully challenge the failure-to-protect finding, the
adjudication order is amply supported by the remaining
unchallenged findings.
¶4 At the disposition hearing held immediately after the
adjudication, Father did not seek reunification services,
volunteering that he would not seek reunification and would be
willing to relinquish his parental rights in favor of the mother’s
obtaining reunification services. Therefore, Father has not
preserved any issue regarding the juvenile court’s decision not to
grant him reunification services. Father also does not challenge the
detailed findings addressing the juvenile court’s weighing of the
factors relevant to a determination that reunification with the
parents would not be a dispositional goal.
¶5 Father next challenges the failure-to-protect finding as a
basis for the termination of his parental rights. The juvenile court
determined that there were several grounds supporting the
termination of Father’s parental rights. Pursuant to Utah Code
section 78A-6-507, the finding of a single enumerated ground will
support the termination of parental rights. Utah Code Ann.
§ 78A-6-507 (LexisNexis 2012). Therefore, if sufficient evidence
supports any of the grounds for termination found by the juvenile
court, the termination is appropriate. Father challenges only the
ground of abuse and neglect as it relates to the failure to protect the
children from the effects of their mother’s drug use. However, the
juvenile court also found that Father was an unfit and incompetent
parent based upon his abuse and neglect, his habitual and excessive
use of controlled substances, and his repeated and continual failure
to provide the children with adequate food, clothing, shelter, or
other care. See id. § 78A-6-507(1)(c). The juvenile court further
found that (1) the children were being cared for in an out-of-home
placement under the supervision of the juvenile court and the
Division of Child and Family Services, see id. § 78A-6-507(d)(i);
(2) Father had “substantially neglected, wilfully refused, or has
been unable or unwilling to remedy the circumstances that caused
them to be in an out-of-home placement,” see id. § 78A-6-507(d)(ii);
and (3) “there is a substantial likelihood that [Father] will not be

In re J.F. & D.V.F.
20131150-CA 4 2014 UT App 82
capable of exercising proper and effective parental care in the near
future,” see id. § 78A-6-507(1)(d)(iii). The juvenile court also found
a failure of parental adjustment because following the adjudication,
Father failed to visit, pay support, maintain a stable lifestyle, drug
test, or express appropriate interest in his children. See id. § 78A-6-
507(e). Finally, the juvenile court found that Father had made only
token efforts to avoid being an unfit parent. See id. § 78A-6-507(f).
Because the evidence amply supports the remaining unchallenged
grounds for termination, a challenge to the finding on failure to
protect the children from their mother’s abuse or neglect, even if
successful, would not support reversal.
¶6 Father claims that the juvenile court improperly admitted
child welfare records from other states at the adjudication trial.
Following the shelter hearing, the juvenile court ordered the State
to obtain any child welfare records involving the parents from
other states. Father objected to the admission of the out-of-state
records under the business records exception to the hearsay rule
because the records compiled some documents generated by other
states. The juvenile court admitted the out-of-state child welfare
records only for purposes of the disposition hearing and ruled that
if the State sought their admission for any other purpose, it would
be required to provide appropriate foundation. The State did not
seek admission for adjudication purposes, and Father made no
further objection. The admission of the out-of-state records for
purposes of setting the dispositional goal for the children was not
error. See Utah R. Juv. P. 46(a) (“The court may receive any
evidence that is relevant to the disposition of the case including
reliable hearsay and opinions.”). Furthermore, Father testified
about the child welfare proceedings in other states, admitting that
his parental rights to one or more of his older children had been
terminated. He also testified about his criminal history. Therefore,
the adjudication findings about those out-of-state proceedings were
based upon Father’s own testimony.
¶7 Father claims that he was denied an opportunity to
challenge the removal warrant. The first and most appropriate
opportunity to challenge the removal warrant was at the shelter

In re J.F. & D.V.F.
20131150-CA 5 2014 UT App 82
hearing, which is intended to determine the legitimacy of removal.
The shelter order in this case ruled that the removal was
appropriate. Father did not provide a transcript of that hearing for
this appeal. Furthermore, Father’s claim that he attempted to
challenge the removal warrant at the adjudication trial is not
supported by the record.
¶8 Father contends that the juvenile court erred in denying him
a continuance of the termination trial. Father was present at the
pretrial and had actual notice of the trial date. Father was
incarcerated in Las Vegas on the day of the trial. Although
termination of parental rights proceedings must comport with due
process, there is “no absolute statutory or constitutional right to
attend the trial.” In re A.E., 2001 UT App 202, ¶ 14, 29 P.3d 31
(citations and internal quotation marks omitted). A juvenile court
has no duty to ensure a parent’s presence at the trial, where the
parent had adequate notice of the trial date. Id. ¶ 15. Here, Father
was incarcerated for upwards of ten days before seeking a
continuance on the eve of trial although he had actual notice of the
trial date. See In re Z.Z., 2013 UT App 215, ¶ 22, 310 P.3d 772
(stating that parents “failed to show they exercised any semblance
of due diligence in attempting to be present for the termination trial
in Utah or at least to seek a continuance in a timely manner”).
Because Father had adequate notice, did not demonstrate any
diligent efforts to be present, and failed to timely seek a
continuance, the continuance was denied without offending due
process.
¶9 Father claims that the juvenile court plainly erred “in
determining that the adoption of the children was plausible when
an insufficient amount of time had passed for a bond to be
established between the foster parents and the children, and thus
it was not shown that adoption was in the children’s best interests.”
The juvenile court found that it was in the best interests of the
children to be placed in the custody of the Division of Child and
Family Services for adoption. The juvenile court also found within
its order that it had assessed the factors in Utah Code section
78A-6-510(1), (2), and (3) and found that they weighed in favor of

In re J.F. & D.V.F.
20131150-CA 6 2014 UT App 82
the foster parents. Father claims that the short time that the
children had been in a prospective adoptive placement precluded
the court from making any finding that adoption would be in the
children’s best interests. The termination trial was on November 1,
2013. In the first week of October, a family agreed to adopt the
children if they became available. The family had previously
provided respite care for the children. Father’s assertion that the
best interests finding was based solely upon the prospective
adoptive parents’ willingness to adopt is incorrect. The record
reflects that the caseworker testified about visiting the children in
the prospective adoptive home, the children’s progress there, and
the suitability of the home and the prospective adoptive parents.
We previously concluded that while the lack of a prospective
adoptive placement weighed against termination of parental rights,
“the juvenile court correctly concluded that it was not controlling
with regard to the children’s best interests.” In re J.D., 2011 UT App
184, ¶ 23, 257 P.3d 1062. Father has not demonstrated that the
juvenile court erred in concluding that it was in the Children’s best
interests to terminate parental rights and allow them to be adopted
into a stable home where their needs were being met.
¶10 Father contends that application of rule 58 of the Utah Rules
of Appellate Procedure—allowing an appellate court to issue a
decision based upon a petition on appeal—unconstitutionally
denies the right to a meaningful appeal. The Utah Supreme Court
rejected this constitutional challenge in In re B.A.P., 2006 UT 68, 148
P.3d 934. The appellants in B.A.P. argued that “the expedited
procedures outlined in the appellate rules, and applied by the court
of appeals, denied them their constitutional right to a meaningful
appeal by precluding full presentation of legal argument to the
appellate court.” Id. ¶ 1. Under the rules, “an appellant files a
petition on appeal, which is substantially equivalent to a docketing
statement.” Id. ¶ 9. The supreme court rejected a claim that the
rules prevented adequate presentation of argument, noting that
because rule 58 allows an appellate court to render a decision based
upon the petition on appeal without full briefing, “counsel would
be remiss to omit arguments from that petition, albeit argument in
specific, exact, and concise form.” Id. ¶ 12. The supreme court

In re J.F. & D.V.F.
1. Rule 55(d) explains the required contents of a petition on appeal.
For example, rule 55(d)(4) requires “a concise statement of the
material adjudicated facts as they related to the issues presented in
a petition on appeal.” Rule 55(d)(5) requires “a statement of the
legal issues presented for appeal, how they were preserved, . . . and
the applicable standard of review.” Finally, rule 55(d)(6) requires
(continued...)
20131150-CA 7 2014 UT App 82
determined that the page limitation was not too restrictive to allow
meaningful presentation. Id. ¶ 13. The supreme court rejected “the
notion that deciding a case on its merits without an unfettered
presentation of legal argument is equivalent to refusing to fully
hear the case,”concluding that “an appellate court may properly
render a decision in the absence of full presentation of arguments
without offending the appellant’s constitutional right to a
meaningful appeal.” Id. ¶ 16. The supreme court held that “as a
constitutional matter, and as a matter of rule interpretation, these
rules do nothing to preclude either a presentation of appropriate
legal arguments or a meaningful appeal,” id. ¶ 19, nor do the rules
preclude an appellant “from presenting cogent, concise legal
argument to an appellate court,” id. ¶ 20.
¶11 The constitutionality of the appellate rules pertaining to
child welfare appeals was resolved by the Utah Supreme Court in
B.A.P. Accordingly, “an appellate court may constitutionally
render a decision on the merits with only a presentation of the
issues along with an appellate court’s independent examination of
the record.” In re K.K., 2013 UT App 126, ¶ 5, 302 P.3d 495 (per
curiam)(mem.). Nevertheless, Father argues that language from our
unpublished decision of In re N.N., 2010 UT App 79U (per curiam),
is inconsistent with B.A.P. and demonstrates that this court applies
the appellate rules in a manner that denies parties a meaningful
right to appeal. In N.N., we “remind[ed] all counsel appearing in
child welfare proceedings of their responsibilities to file petitions
on appeal, and responses to those petitions, that comply with the
requirements of rules 55(d) and 56(b) of the Utah Rules of
Appellate Procedure.” Id. para. 2. Accordingly, we explained,1

In re J.F. & D.V.F.
1. (...continued)
a petition to include “statutes, case law, and other legal authority
for each issue raised.” Rule 56(b) states the analogous requirements
for a response to the petition on appeal.
20131150-CA 8 2014 UT App 82
While the court is mindful of the restrictions placed
upon litigants due to the expedited appellate process
in child welfare proceedings, petitions on appeal and
responses to those petitions must be designed to
zealously advocate the positions of the parties and to
assist the court in resolving the matter. In so doing,
the parties should provide the court with an
adequate statement of facts that will allow the court
to understand the nature and history of the case.
Further, the parties should attempt to apply legal
authority to the particular facts of the case. See In re
B.A.P., 2006 UT 68, ¶ 12, 148 P.3d 934 (discussing the
obligation to include an argument section in a
petition on appeal). Legal citations unaccompanied
by an application to the particular facts and issues
involved in the case are rarely helpful. Ultimately,
counsel should consider petitions on appeal and
responses thereto to be more like briefs than
docketing statements.
Id.
¶12 Father contrasts the statement in B.A.P. that the petition on
appeal is the equivalent of a docketing statement, see B.A.P., 2006
UT 68, ¶ 9, with the statement in N.N. that a petition on appeal is
more like a brief than a docketing statement, see N.N., 2010 UT App
79U, para. 2, to support his argument that we apply the rules in a
manner that denies the right to a meaningful appeal. However,
consistent with the interpretation of the appellate rules in B.A.P.,
the explanatory dicta in N.N. merely underscored the hybrid
nature of petitions on appeal and responses to them, reminding
parties of their obligations to provide documents that are in

In re J.F. & D.V.F.
20131150-CA 9 2014 UT App 82
compliance with appellate rules and that will assist the court in
reaching its decision. We also note that we granted Father’s request
for an extension to the page limitation for petition on appeal.
¶13 Because “a foundation for the court’s decision exists in the
evidence,” we affirm the juvenile court’s adjudication and
disposition order and the order terminating Father’s parental
rights. See In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.