In re Z.M. (D.D. v. State)

2013 UT App 267
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF Z.M., A PERSON UNDER
EIGHTEEN YEARS OF AGE.
______________
D.D.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20130615-CA
Filed November 15, 2013
Third District Juvenile Court, Tooele Department
The Honorable Mark W. May
No. 1073438
Wayne A. Freestone, Attorney for Appellant
John E. Swallow and Carol L.C. Verdoia,
Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES GREGORY K. ORME, JAMES Z. DAVIS, and
CAROLYN B. MCHUGH. JUDGE MCHUGH
concurred in the result.
PER CURIAM:
¶1 D.D. (Father) appeals the termination of his parental rights.
The only issues on appeal are whether the juvenile court erred by
not ordering reunification services for Father, who was
incarcerated, or by not making findings that offering services
would be detrimental to the child. See generally In re A.T., 2013 UT
App 184, ¶ 15, 307 P.3d 672.

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20130615-CA 2 2013 UT App 267
¶2 Z.M. was removed from the custody of S.M. (Mother) on
August 29, 2012, at which time Father was incarcerated. Father was
present with counsel at the September 4, 2012 shelter hearing, at
which both parents admitted the allegations of the amended
verified petition. In the resulting September 17, 2012 adjudication
order, the juvenile court ordered services for Mother but did not
address services for Father. Father did not attend the hearing held
on October 4, 2012. The minutes from that hearing state that he was
not transported. The court set the primary goal for Z.M. as
reunification with Mother. Father was not present at an October 11,
2012 hearing, but he was represented by counsel. The October 22,
2012 order from that hearing states, “It was reported that the father
remains incarcerated and he has again refused to be transported.
This is the second time the father has refused to be transported in
order to attend a hearing in this matter.” The October 22, 2012
order concluded,
2. Due to father’s refusal to take part in these
proceedings, the child shall not be returned to his
custody at any time in the future until the father has
appeared before this court.
3. No reunification services shall be provided to the
father until such time as he appears before this court.
Father did not seek reunification services or object when services
were not provided to him based upon his failure to appear in the
juvenile court and participate in the child welfare case.
¶3 Father refused to be transported for a disposition hearing
held on November 15, 2012, and his appointed counsel was
“released from his appointment as legal counsel for the father who
refuses to come to court.” Father also was not present at the
January 17, 2013 hearing when Z.M.’s permanency goal was
changed to adoption. Despite his prior “release,” Father’s counsel
was present and was reappointed. Father appeared at the February
21, 2013 pretrial hearing on the petition for termination of parental
rights, indicating that he would like to contest the petition and that

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20130615-CA 3 2013 UT App 267
he disagreed with the foster placement of Z.M. Father was present
and represented at the termination trial.
¶4 Father does not challenge any of the juvenile court’s findings
of fact supporting termination of his parental rights. Father’s only
challenge on appeal is based upon In re A.T.,2013 UT App 184, 307
P.3d 672, which was issued one month after the termination order
being appealed. Father concedes that he did not preserve the issues
for appeal, but he argues that In re A.T. announces a “new
interpretation” of the statute and therefore its issuance after the
decision in this case is an exceptional circumstance that allows us
to consider the merits of his appeal. See State v. Irwin, 924 P.2d 5, 10
(Utah Ct. App. 1996) (stating that exceptional circumstances may
exist where a change in “the settled interpretation of law colored
the failure to have raised an issue at trial”). Based upon the facts of
this case, we conclude that no exceptional circumstances exist
justifying our review of Father’s claim on appeal.
¶5 The incarcerated parent in In re A.T. unsuccessfully sought
reunification services in the juvenile court and thereby preserved
the issue for appeal. Id. ¶ 7. In contrast, Father here did not seek
reunification services and, indeed, largely failed to participate in
the child welfare proceedings leading up to the termination trial.
As a result, the juvenile court denied reunification services “until
such time as [Father] appears in court.” Father did not challenge
the failure to order reunification services, which was based upon
his failure to appear and participate in the juvenile court
proceedings and not upon his incarceration. The district court’s
October 22, 2012 order reserved consideration of whether Father
would be granted reunification services until such time as Father
appeared in court. Father did not appear until after Mother had
failed in her service plan and the goal for Z.M. had changed from
reunification with Mother to adoption or permanent guardianship
with Mother’s relatives. Because the order denying reunification
services was based upon Father’s failure to participate in the child
welfare case and not on his incarceration, In re A.T., even if viewed
as representing a major shift in our jurisprudence, does not offer an

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20130615-CA 4 2013 UT App 267
escape hatch for Father. Unlike the parent in In re A.T., he was
denied services for reasons other than incarceration.
¶6 Because Father does not otherwise challenge the findings of
fact, conclusions of law, and order terminating his parental rights,
we affirm the order of the juvenile court.