L.L. v. State, 20210898-CA

CourtCourt of Appeals of Utah
Writing for the CourtCHRISTIANSEN FORSTER, Judge
Citation2022 UT App 124
PartiesL.L., Appellant, v. State of Utah, Appellee.
Docket Number20210898-CA
Decision Date10 November 2022

2022 UT App 124

L.L., Appellant,
v.

State of Utah, Appellee.

No. 20210898-CA

Court of Appeals of Utah

November 10, 2022


Seventh District Juvenile Court, Moab Department The Honorable Mary L. Manley No. 1196258

Gregory W. Stevens, Attorney for Appellant

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

Martha Pierce, Guardian ad Litem

Judge Michele M. Christiansen Forster authored this Opinion, in which Judge Ryan D. Tenney and Senior Judge Kate Appleby concurred. [1]

CHRISTIANSEN FORSTER, Judge

¶1 The State took custody of L.L.'s (Mother) eight-year-old daughter (Child) and established a Child and Family Plan with a goal of reunification. But after approximately four months, the juvenile court terminated reunification services due to Mother's

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near-total failure to complete the requirements of the Child and Family Plan. Subsequently, Mother requested that the court reinstate reunification services on the ground that she should have been given more time as an accommodation under the Americans with Disabilities Act (the ADA). The juvenile court denied Mother's request and eventually terminated her parental rights.

¶2 We are asked to determine whether the juvenile court's ruling violated Mother's rights under the ADA and whether her trial counsel performed ineffectively by failing to obtain a successful ruling on her motion. Because we determine that granting Mother more time would not have allowed her to complete reunification services and that the juvenile court had no affirmative obligation to craft an accommodation that Mother did not request, we affirm the court's ruling on her motion. Moreover, because we conclude that Mother's claim of ineffective assistance of counsel is speculative, we reject that claim as well.

BACKGROUND

¶3 In March 2021, the State took custody of Child. The juvenile court found Child to be "neglected and/or dependent." The Department of Child and Family Services (DCFS) set a permanency goal of reunification and established a Child and Family Plan, which required Mother to complete a mental health and substance abuse evaluation; participate in random drug testing; not abuse illegal, prescription, or non-prescription drugs; complete any recommended substance abuse and mental health treatment; acquire appropriate housing; complete a domestic violence assessment and complete any recommended treatment; and not allow Child to be exposed to domestic violence.

¶4 In early July, however, DCFS requested that the court terminate reunification services. Mother resisted, reporting that

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she faced challenges in completing the requirements of the reunification plan because she faced "technology issues and issues with her disability." She explained that she had obtained a car and intended to move back to Utah from Colorado to participate in reunification services. Mother therefore requested "more time to work [on] reunification services." Mother did not specifically request accommodation under the ADA.

¶5 The court found that Mother had made minimal progress on the reunification plan. She had moved to Colorado, "despite being warned this would make services difficult." She had missed twenty-one drug tests, and of the three she completed, all were positive for methamphetamine. Mother had not obtained stable housing and had not completed any of the ordered assessments. She missed three video visits and two in-person visits with Child, including a visit on Child's birthday. Moreover, she had continued to have contact with Child's father, despite claiming not to know where he was, and she had been involved in a new domestic violence incident with him. The court therefore set the matter for a permanency hearing on July 22, 2021.

¶6 Following the permanency hearing, the court found that Mother had not taken any additional drug tests since the permanency hearing was scheduled, missing six tests in the two-week period; that she had missed an additional visit with Child; and that she had not actually moved to Utah as she indicated she would. Additionally, Mother had received a new drug possession charge in Colorado. The court found that Mother had "failed to comply with the court approved plan in whole or in part" and that this failure was the result, not of limitations beyond her control, but of her "unwillingness to engage in the services intended to address" the underlying issues that led to Child's removal. Based on these findings, the court concluded that "[a]n additional 90 days is not likely to result in achievement of the objectives of the treatment plan for" Mother and that "provision of further reunification efforts is not reasonable." The court therefore

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changed Child's permanency goal to adoption and terminated reunification services.

¶7 A month later, Mother filed a motion asking the court to hold a new permanency hearing or modify its order terminating reunification services. She argued that she had not been granted reasonable accommodation under the ADA with respect to reunification services. Mother asserted that she suffered from a brain arteriovenous malformation (AVM), which she claimed "[t]he court and DCFS have been aware [of] since the onset of this case." She argued that her disability makes it difficult "to accomplish things as quickly as other people" and that she "required additional time to access the reunification services with her disabilities to afford her the same opportunities as any non-disabled individual."

¶8 The court rejected Mother's argument because it concluded that although she had "established a disability," she had not shown that her "disability qualifies her for reasonable accommodations" or that her requested accommodation of more time was reasonable. Accordingly, the court denied her request that it reinstate reunification services. Following a subsequent termination trial, which Mother did not attend, the juvenile court terminated Mother's parental rights. Mother now appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 First, Mother argues that the juvenile court exceeded its discretion in denying her motion to reinstate reunification services on ADA grounds.[2] "Trial courts are in the best position

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to evaluate the credibility of witnesses, the parent's level of participation in reunification services, and whether services were appropriately tailored to remedy the problems...

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